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https://www.courtlistener.com/api/rest/v3/opinions/1336325/ | 131 S.E.2d 303 (1963)
259 N.C. 558
STATE of North Carolina ex rel. UTILITIES COMMISSION
v.
TIDEWATER NATURAL GAS COMPANY and City of Rocky Mount.
No. 461.
Supreme Court of North Carolina.
June 14, 1963.
*305 J. Melville Broughton, Jr., and Robert B. Broughton, Raleigh, for appellant Tidewater Natural Gas Co.
Spruill, Trotter, Biggs & Lane, by James R. Trotter, Rocky Mount, for appellant City of Rocky Mount.
McCoy, Weaver, Wiggins & Cleveland, by Donald W. McCoy and John E. Raper, Jr., Fayetteville, for appellee North Carolina Natural Gas Corp.
RODMAN, Justice.
While Carolina proposes to raise most of the money allegedly needed for the continuing and successful operation of its business from two classes, (a) its own customers to whom it distributes gas, and (b) municipalities and utilities who purchase for resale to their customers, this is nonetheless a general rate case and not a complaint proceeding provided for in G.S. § 62-72. State ex rel. Utilities Comm. v. Carolina Power & Light Co., 250 N.C. 421, 109 S.E.2d 253.
The Commission's findings, stated summarily in part and quoted in part, are: Carolina must pay for all the gas which it can demand and which Transco is obligated to furnish irrespective of whether Carolina uses the gas or not. This is denominated a demand charge. In addition to the demand charge it must pay a fixed rate per MCF for all gas actually used. This is denominated a commodity charge. "For the fiscal year 1959-60 the gross operating revenue of the company, adjusted, was $5,285,242. Total operating revenue deductions were $5,718,930, resulting in an operating loss of $433,688. Other income in the amount of $25,713 reduced the loss to $407,975. Income deductions in the way of interest on long-term debt, amortization of debt discount and expense and other items amounted to $1,080,566. Thus, the company experienced for the fiscal year a loss of $1,488,541.
"In an effort to reduce expenses the company has released a part of its allocated gas, thereby reducing its demand charge." (When the petition was heard, the demand had by contract been reduced from 39,780 to 20,000 MCF per day.) Transco has twice increased its rates since Carolina began operating. The latest increase became effective under bond on 17 April 1961. "Based on the proposed increased rates and the price of purchased gas under present rates the gross revenue of Carolina for the fiscal year 1960-61 will be $7,096,118. Operating revenue deductions will be $6,751,008, resulting in an operating income of $354,110. Income deductions for interest, amortization of debt discount and expense and other items will amount to $1,190,263 for a net loss of $835,990." (The figures for the year 1960-61 were based on actual experience for a three-month period and estimates for the remainder of the fiscal year. The estimate included an estimated increase in the *306 number of customers and the amount of gas used per customer.) The estimated income for the fiscal year 1960-61 included the sum of $218,000 estimated to be produced by the proposed rates. Carolina is going through the first stages of development and is experiencing large losses. "As of December 31, 1960, average utility plant in service, less average contributions in aid of construction and without any allowance for working capital, was $20,681,414." "Actually, it is not earning a rate of return at all but is operating at a deficit." Prior to the time Carolina began providing natural gas, its customers were using liquid petroleum. Appliances intended to use liquid petroleum had to be converted to use natural gas. Carolina was having to contribute substantially to these conversion costs. Transco's increase in rates, put in effect on 17 April 1961 under bond, would cost Carolina on its estimated use of gas for the fiscal year 1960-61 $269,000. Carolina's witness testified that he did not anticipate Federal Power Commission would approve Transco's proposed increase in full. (His estimate in that respect proved to be correct. Federal Power Commission actually allowed only a part of the increase sought by Transco. Nonetheless the part so allowed was substantial.)
The original schedule under which Tidewater purchased had an escalator clause providing for an increase or decrease in the rates charged it dependent upon increases or decreases in the cost of gas to Carolina. The new schedule applicable to Carolina omitted this clause. This omission and the asserted discrimination in the rate charged it as compared with rates charged other customers of Carolina form the basis of Tidewater's appeal.
Similar escalator clauses in other schedules were deleted from the new schedules. These clauses are advantageous to patrons when gas is in over supply and the producers reduce their price to dispose of their entire product; but the reverse is true when the product is scarce and the price goes up. Whether such a clause should or should not be incorporated in a particular rate schedule is more appropriate to a complaint case than to a general rate case.
In a complaint case the field of inquiry is limited to the comparatively narrow question of fair treatment to a group or to a class. Necessarily the Commission must be given broad discretion with respect to the extent which it will hear evidence relating to a particular schedule when the basic question for consideration is: Does the utility need an increase in rates to function effectively or, conversely, can the utility continue to operate, provide efficient service to its customers, and make a fair return to the owners of its properties, or may it so function after a reduction in rates? State ex rel. Utilities Comm. v. Carolinas Committee for Industrial Power Rates and Area Development, Inc., 257 N.C. 560, 126 S.E.2d 325; State ex rel. Utilities Comm. v. Carolina Power & Light Co., supra.
To require the Commission in a general rate case to go into minute details with respect to each of the proposed increases and the possible inequalities which might be created thereby would distract its attention from the crucial question, namely: What is a fair rate of return on company's investment so as to enable it by sound management to pay a fair profit to its stockholders and to maintain and expand its facilities and services in accordance with the reasonable requirements of its customers in the territory covered by its franchise? State ex rel. North Carolina Utilities Comm. v. Piedmont Natural Gas Co., 254 N.C. 536, 119 S.E.2d 469; State ex rel. Utilities Comm. v. State, 239 N.C. 333, 80 S.E.2d 133.
The other reason assigned by Tidewater for a reversal is an asserted discrimination in the rate which it pays under Schedule 2 and the rate charged under Schedule ME. Schedule 2 fixes the following rates:
*307 Gas resoldinterruptible 36¢ per MCF (an increase of 1.5%)
Gas resoldair conditioning 36¢ per MCF (a decrease of 25%)
All other gas 79.5¢ per MCF (an increase of 6.5%)
Schedule ME fixes the price of gas sold to the United States Government for military purposes and for military housing. It is not sold for resale. The rates charged under that schedule are:
Gasinterruptible 33.5¢ per MCF
Gasair conditioning 50.73¢ per MCF
All other gas 70.73¢ per MCF
The company proposed no change in this schedule.
The rate charged for "all other gas" sold under Schedule ME is nearly 9¢ less than charged for "all other gas" sold under Schedule 2, but it will be observed that gas sold for air conditioning costs nearly 15¢ more when purchased under Schedule ME than when purchased under Schedule 2.
Several reasons might be suggested justifying these differences in rates. Whether the differences discriminate against Tidewater can be determined in a complaint hearing. The order which has been entered does not estop Tidewater from applying to the Commission for a modification, if in fact the order is discriminatory and to the detriment of Tidewater.
The questions presented by Rocky Mount's appeal, unlike the questions presented by Tidewater, are directed to the sufficiency of the evidence and findings to support a rate increase so as to provide a fair and reasonable return for the services furnished. It says in its brief: "The City acknowledges that the evidence shows that North Carolina Natural has and is likely to continue to experience losses. However, its position is that this does not authorize the Commission to disregard the rate-making procedures required by law. Whether it does is the underlying question presented by this appeal."
Rocky Mount, after the hearing had concluded, asked the Commission to reopen the case and require Carolina to furnish evidence of (1) the original cost of Carolina's property, (2) replacement cost, (3) "trended cost" of the property, (4) income statement for the period beginning 1 January 1960 and ending 31 December 1960, (5) details with respect to the manner of computing depreciation, (6) a detailed showing with respect to the portion of the rate base allocated to the transmission system and the portion allocated to the distribution system of the business, and (7) similar breakdowns with respect to Carolina's income.
The request was denied. The parties, of course, had a right on cross-examination during the hearing to develop such facts as they deem necessary for presentation of their case. They had a right to subpoena the company's records, but when the hearings had concluded and the parties had been given full opportunity to present their cases, it was a question for the Commission whether it had sufficient evidence to determine the issues raised by the petition and answers. It had the discretionary power to take additional evidence, but was not required to do so. Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708. Certainly there is nothing in this record to indicate the Commission acted capriciously.
Petitioner's exhibits included statements showing (1) its assets and liabilities, (2) actual and adjusted income for the fiscal year beginning 1 October 1959 and ending 30 September 1960, (3) average number of customers billed for gas used for differing purposes such as residential, commercial, industrial, interruptible, military, etc., (4) the quantity of gas used by each type of customer, (5) the amount of revenue provided by each type of user under the old and proposed rates, (6) the amount of gas used by Rocky Mount and the other municipalities purchasing for resale with a statement of the cost under the old and proposed *308 rates, (7) a statement of the amount paid Transco for gas purchased under its old rate for the months of October, November, and December 1959 and January, February, and March 1960, with an estimate of the amounts to be paid for the remainder of the year under the higher rate charged by Transco, (8) estimates of gas to be sold each month during the year to begin 1 October 1960 and end 30 September 1961, and the income which would be received under the old and new rates, (9) the amount actually invested in plant and working capital providing a rate base on 31 December 1960 in excess of $20,000,000, (10) estimated cash flow for the period 1 February through 30 September 1961, (11) the capital structure consisting of capital stock, mortgages, and income debentures.
The several schedules were explained in detail by witnesses for petitioner. On 31 December 1960 its mortgage and debentures represented 91.16% of its capital structure. When the application for an increase in rates was filed, the plant was a new one. It was not completed and put in operation until September 1959. Appellants offered no evidence indicating the work of construction was not carried out in an economical manner. There is nothing to suggest that replacement cost or "trended cost" differs materially from the cost of construction. In this situation it would seem unreasonable and unjust to Carolina to require it to make substantial expenditures for cost studies which could in no way affect the result.
Carolina did not base its application on a desire to provide a fair and reasonable return to its stockholders. It merely asked for funds sufficient to permit it to live until it has developed its business to a point where it can hope to make some, if not a fair, return to its owners. If and when that date arrives, appellant may file its petition with the Commission for a re-examination of the capital structure and what the company should be permitted to earn for the services which it renders.
We find nothing in the evidence indicating rate discriminations requiring Rocky Mount to charge its customers a higher rate than Carolina charges its customers for similar service. If Rocky Mount feels that the rate charged it necessarily results in a discrimination between those who buy from it for use and those similarly situated in other municipalities of the State who purchase from Carolina, Rocky Mount may, by complaint, request the Commission to correct that inequality.
Our examination of the record leads to the conclusion that the Commission had plenary evidence to support its findings, hence binding on appeal, G.S. § 62-26.10, and these findings justify its order. It follows that the judgment of the Superior Court must be and is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336384/ | 301 S.C. 158 (1990)
390 S.E.2d 486
FIRST SOUTH SAVINGS BANK, INC., Respondent
v.
GOLD COAST ASSOCIATES, A South Carolina General Partnership, Robert H. Howorka, Allison Howorka, Daniel R. Denton, Catherine M. Denton, Marsh Harbor Owner's Association, Ferguson Enterprises, Inc. and Palmetto Federal Savings Bank, Defendants, of whom Robert H. Howorka, Deniel, R. Denton, Howorka and Catherine M. Denton are Appellants. Appeal of Robert H. HOWORKA, Daniel R. Denton, Allison Howorka, Catherine M. Denton.
1469
Court of Appeals of South Carolina.
Heard December 12, 1989.
Decided March 12, 1990.
*159 Daniel R. Denton, Beaufort, for appellants.
Steven M. Anastasion, Columbia, for respondent.
Heard Dec. 12, 1989.
Decided March 12, 1990.
SHAW, Judge:
Respondent, First South Savings Bank, Inc., foreclosed a mortgage held on property owned by Gold Coast Associates, a general partnership of which appellants, Robert H. Howorka, Denial R. Denton, Allison Howorka and Catherine Denton were partners. The master ordered the property sold at public auction, but kept the bidding open since a deficiency judgment was sought. The partners petitioned for an appraisal and First South moved to quash the petition as untimely. The trial court granted the motion to quash and the partners appeal. We affirm.
On March 21, 1985, Gold Coast Associates executed a note to First South in the sum of $1,250,000.00. The partners signed as guarantors on the note and certain property was mortgaged to secure payment. On June 21, 1987, First South instituted foreclosure proceedings and requested a deficiency judgment. A hearing was held on December 29, 1987, and on February 2, 1988, the master issued his order finding the partners liable on the debt and ordered the property sold at public auction. The master further ordered the bidding to remain open for thirty days after the date of sale, as a deficiency judgment was demanded. Notice of sale was served on the partners on March 31, 1988 stating the master would offer the property to the highest bidder on April 4, 1988. A public auction was held on April 4, 1988 at which time First South entered the highest bid in the amount of $760,000.00 No upset bid was offered within the statutory thirty day period which ended May 4, 1988, and on June 6, 1988, the master issued his report on sale and disbursements calculating a total deficiency of $52,016.27.
On June 30, 1988, the partners filed and served a petition for order of appraisal which more than thirty days after the bids were in. On July 19, 1988, First South filed and served a motion to quash the partners' petition for order of appraisal. *160 On August 11, 1988, a hearing was held on First South's motion to quash. An order confirming the master's report on sale and disbursements was signed by the master on September 13, 1988 and filed on September 27, 1988. On September 30, 1988, the circuit court issued on order quashing the partners' petition for order of appraisal for failure to make timely application.
The issue before us on appeal is when the time begins to run for filing a petition for order of appraisal pursuant to S.C. Code Ann. § 29-3-680 (Supp. 1988). That section provides as follows:
In any real estate foreclosure proceeding a defendant against whom a personal judgment be taken or asked, whether he has theretofore appeared in the action or not, may Within thirty days after the sale of the mortgaged property apply by verified petition to the clerk of court in which the decree or order of sale was taken for an order of appraisal. (Emphasis added.)
The partners contend the date of sale contemplated in the above statute is the date of the order confirming the sale. We disagree.
The court's primary function in interpreting a statute is to ascertain the intention of the legislature, and when the terms of a statute are clear and unambiguous, the court must apply them, according to their literal meaning. Lindsay v. Main Ins. Co., 281 S.C. 331, 315 S.E. (2d) 166) (Ct. App. 1984). Words used in a statute should be given their plain and ordinary meaning unless something in the statute requires a different interpretation. Multimedia, Inc. v. Greenville Airport Commission, 287 S.C. 521, 339 S.E. (2d) 884 (Ct. App. 1986). Further, a statutory provision should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute. Hay v. S.C. Tax Commission, 273 S.C. 269, 255 S.E. (2d) 837 (1979).
Upon reviewing the statute in question, we find the word "sale" refers to the judicial sale at public auction plus the thirty day period for possible additional bids. However, even if we were to accept appellants' argument that the meaning is ambiguous, we find the legislative intent was that such a date *161 would trigger the running of the thirty day period. This is a reasonable and practical construction consistent with the purpose and policy of the statute.
Further support for this conclusion can be found in a reading of Rule 71(b) S.C.R.C.P., governing procedure required for foreclosure. That rule provides in pertinent part as follows:
Unless the pleadings state that no personal or deficiency judgment is demanded or any right to such judgment is expressly waived in writing, the bidding shall not be closed upon the day of sale but shall remain open until the thirtieth day after such sale exclusive of the day of the sale. (Emphasis added.)
We therefore hold the date of "sale," as contemplated by § 29-3-680, was May 4, 1988, the date when the master received all possible bids and knew all information necessary to make a final report. The circuit court properly quashed the motion for order of appraisal as it was not made within the required thirty day period.
Affirmed.
SANDERS, C.J., and BELL., J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336401/ | 194 Ga. App. 361 (1990)
390 S.E.2d 445
LITTLE
v.
THE STATE.
A90A0162.
Court of Appeals of Georgia.
Decided January 30, 1990.
Fierman & Nolan, Martin L. Fierman, James A. Nolan, for appellant.
Joseph H. Briley, District Attorney, James L. Cline, Assistant District Attorney, for appellee.
SOGNIER, Judge.
Sidney Little was indicted for murder and was convicted of involuntary manslaughter in the commission of an unlawful act and sentenced to ten years in prison. He appeals.
1. Appellant first raises the insufficiency of the evidence to support his conviction. The evidence adduced at trial showed that on the evening of April 8, 1989, appellant, the victim, Robert Swain, and several others were drinking at a club in Eatonton. Several witnesses testified that appellant and Swain argued, then physically struggled, and that during the struggle appellant pulled a gun from under his shirt and hit Swain on the side of the head. Witnesses testified that they *362 saw appellant point the gun in Swain's face and "snap" it. When Swain then pushed appellant backward into some trash barrels appellant shot Swain, who died immediately. Appellant admitted that he was carrying the gun and that Swain was unarmed, but testified that Swain was the aggressor; that he hit Swain with the gun in the hope that would stop him; and that the gun went off accidentally.
"`On appeal of a conviction based on a jury verdict' the appellate court examines `the evidence in a light most favorable to support that verdict' and resolves `all conflicts in favor of the verdict.' [Cit.]" Hosch v. State, 185 Ga. App. 71 (1) (363 SE2d 258) (1987). Viewing this evidence in the light most favorable to the jury's verdict, we find the evidence sufficient to enable a rational trier of fact to convict appellant of involuntary manslaughter in the commission of an unlawful act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant contends the trial court erred by allowing the prosecutor to ask him on cross-examination, over objection, whether the witnesses who testified that appellant had pointed the gun at Swain and snapped it were lying. Although, as pointed out by appellant, the truthfulness or veracity of a witness is solely within the province of the jury, Brundidge v. State, 184 Ga. App. 860 (1) (363 SE2d 66) (1987), and we have held that "[i]n no circumstance may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth," State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988), we fail to see how the prosecutor's question violated these principles. Appellant's response to the question in no way "bolstered the veracity" of any witness, but merely emphasized the conflict in the evidence, which it was the jury's duty to resolve, and the trial court properly charged the jurors that they were "made by law the sole and exclusive judges of the credibility or believability of witnesses." We find no error here.
3. Appellant presents no argument or citation of authority regarding his third enumeration of error, and it is therefore deemed abandoned pursuant to this Court's Rule 15 (c) (2).
Judgment affirmed. Carley, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336407/ | 194 Ga. App. 152 (1990)
390 S.E.2d 246
MASON
v.
THE STATE.
A89A2218.
Court of Appeals of Georgia.
Decided January 2, 1990.
Robbins & White, Stanley W. Robbins, for appellant.
C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.
BANKE, Presiding Judge.
On appeal from his conviction of selling cocaine, the appellant contends that the trial court erred in refusing to charge the jury on the defense of entrapment.
Two undercover narcotics officers testified that the appellant waved at them to stop while they were traveling in an unmarked patrol car, approached their vehicle, and asked them if they "were looking for anything." They testified that they told the appellant they were looking for cocaine and that he then offered to take them to a place where they could get some. The appellant got into the car with the officers and over the next 30 to 45 minutes directed them to several different locations, until they ultimately arrived at a mobile home park where, after obtaining $100 from the officers and leaving them his driver's license as security, he departed the vehicle. Upon his return approximately five minutes later, he handed them a quantity of cocaine, and they arrested him.
The appellant maintained that it was the officers who had stopped him on the night in question and that he had gotten into their car merely to get a ride home. While he denied being a seller of cocaine, he admitted being a user, stating that he had taken the officer's money "to see if [he] could buy some cocaine from somebody for them" with the expectation that they would share it with him if he was successful. Held:
"Entrapment exists where the idea and intention of the commission of the crime originated with a government officer . .. and he, by undue persuasion, incitement or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer." OCGA § 16-3-25. Even assuming that the idea to purchase cocaine originated with the officers, there is no suggestion that they induced the appellant to commit the crime through "undue persuasion, incitement or deceitful means." Accord *153 Harold v. State, 185 Ga. App. 481 (1) (364 SE2d 615) (1988); McDonald v. State, 156 Ga. App. 143 (4) (273 SE2d 881) (1980). Rather, "`[t]he trial transcript clearly shows that the defendant was a willing seller . . . to the undercover agent[s], and the authorities merely provided him with an opportunity to make a sale he was predisposed to make. "(T)here is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense." [Cits.]'" Mafnas v. State, 149 Ga. App. 286, 290 (254 SE2d 409) (1979). It follows that the trial court did not err in refusing the appellant's request for a charge on entrapment.
Judgment affirmed. Sognier and Pope, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336411/ | 390 S.E.2d 453 (1990)
98 N.C. App. 217
Lance Monroe MIDDLETON and Frances J. Middleton, Plaintiffs,
v.
Bessie D. MIDDLETON, Defendant,
v.
Herman Clayton MIDDLETON, Third Party Defendant.
No. 8822SC1237.
Court of Appeals of North Carolina.
April 17, 1990.
*454 James E. Snyder, Jr., Lexington, for plaintiffs-appellants.
No brief filed for defendant-appellee.
SARAH ELIZABETH PARKER, Judge.
After review of the transcript and record on appeal, we conclude that this appeal was not timely filed. We, therefore, dismiss the appeal pursuant to Rule 3 of the N.C. Rules of Appellate Procedure. The transcript reveals the following dialogue between the trial judge and counsel at the conclusion of the trial, after the jury had returned its verdict:
THE COURT: ... Any motions at the conclusion of the Verdict being recorded?
MR. SNYDER: At the conclusion of the Verdict, the Plaintiffs would make a motion to set aside the Verdict as being against the greater weight of the evidence.
THE COURT: Do you wish to be heard?
MR. SNYDER: No, sir.
THE COURT: Does the Defendant wish to be heard?
MR. GRAY: No, Your Honor.
THE COURT: Third Party Defendant wish to be heard?
MR. LEONARD: No, sir.
THE COURT: The Court would deny that motion.
MR. SNYDER: Further, Your Honor, the Plaintiffs would make a motion for a new trial for reasons of the
THE COURT: The Court would deny that at this time. Do you wish to give Notice of Appeal?
MR. SNYDER: Not at this time.
THE COURT: Third Party Defendant wish to give Notice of Appeal?
MR. LEONARD: No, Your Honor.
The written judgment was signed and filed 21 April 1988. On 22 April 1988 counsel for plaintiffs filed a written motion for judgment notwithstanding the verdict and, alternatively, for a new trial. A hearing on the motions was held 6 June 1988 and the motions were again denied. Finally, on 13 June 1988 plaintiffs filed their written notice of appeal.
General Statute 1A-1, Rule 50 provides in pertinent part the following:
Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a *455 directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
G.S. 1A-1, Rule 50(b)(1). Under Rule 3 of the N.C. Rules of Appellate Procedure, timely filing of a motion for judgment notwithstanding the verdict or for a new trial pursuant to G.S. 1A-1, Rule 50(b) and Rule 59 tolls the period for filing and serving written notice of appeal in civil actions. The full time for appeal commences to run and is to be computed from the entry of the order granting or denying the motions under Rule 50(b) or Rule 59. N.C. Rules App.Proc., Rule 3(c).
In the present case, plaintiffs entered their written notice of appeal within 10 days after the entry of the 6 June order denying their 22 April written motions for judgment notwithstanding the verdict and for a new trial. In our opinion, however, plaintiffs were not entitled to make these written motions or to a hearing on these motions because they had previously made oral motions for judgment notwithstanding the verdict and for a new trial in open court on 14 April 1988 and were afforded an opportunity to be heard which they declined. Their Rule 50(b) and Rule 59 motions having been denied in open court at that time, plaintiffs were not entitled to file written motions requesting the same relief and thereby toll the period for filing written notice of appeal. Since the 13 June 1988 written notice of appeal was not filed within 10 days of entry of judgment, which by the terms of the judgment was 14 April 1988, we dismiss the appeal as untimely.
Appeal dismissed.
EAGLES and ORR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336366/ | 242 S.C. 357 (1963)
131 S.E.2d 44
The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant,
v.
Mrs. Nancy SCHRIMPF, Executrix of the Last Will and Testament of James C. Schrimpf, Jr., Respondent.
18067
Supreme Court of South Carolina.
May 13, 1963.
*358 Messrs. Daniel R. McLeod, Attorney General, J. McNary Spigner, Assistant Attorney General, of Columbia, and Francis R. Fant, of Anderson, for Appellant.
*359 J. Calhoun Pruitt, Esq., of Anderson, for Respondent.
Messrs. Daniel R. McLeod, Attorney General, J. McNary Spigner, Assistant Attorney General, of Columbia, and Francis R. Fant, of Anderson, for Appellant, in Reply.
May 13, 1963.
MOSS, Justice.
The South Carolina State Highway Department, the appellant herein, instituted, pursuant to Section 33-122 of the 1952 Code of Laws of South Carolina, this condemnation proceeding against James C. Schrimpf, Jr., the respondent herein, to acquire a right of way for highway purposes and to determine just compensation to be paid the respondent for the land so taken. The respondent appealed to the Court of Common Pleas for Anderson County from the award made by the Condemnation Board and the cause was heard de novo, pursuant to Section 33-139 of the Code. The jury, on January 25, 1961, rendered a verdict for the respondent in the amount of $14,960.00. On February 10, 1961, a judgment on the verdict was filed and entered by the respondent in the Clerk of Court's office for Anderson County, South Carolina. On February 16, 1961, the appellant paid the respondent the amount of the verdict. The respondent contended that he was entitled to interest on the verdict and judgment from January 25, 1961 to February 16, 1961. The appellant refused to pay interest on the verdict and judgment. Pursuant to an agreement between the parties the respondent accepted the sum of $14,960.00, but the question *360 of whether the respondent was entitled to interest was held open for later determination. Thereafter, the respondent moved before the Honorable J.B. Pruitt, Resident Judge of the Tenth Circuit, for an order requiring the appellant to pay interest on the verdict from the date of its rendition until February 16, 1961. On March 30, 1961, the Trial Judge held that the respondent was entitled to collect interest at the rate of six per cent per annum on the amount of the verdict from the date thereof to the date of payment, which interest amounted to the sum of $55.00, and from this ruling the South Carolina State Highway Department has appealed.
The appellant contends that the entry of a judgment on the verdict of the jury in this case was improper because there is no provision in the highway condemnation statutes authorizing such.
Section 10-1458 of the Code authorizes the Clerk of Court upon receiving a verdict to make an entry thereof in his minutes and to enter judgment in conformity with the verdict unless a different direction is given by the Court. Circuit Court Rule 3 provides that the Clerk shall not enter, without special leave of the Court, any judgment until the expiration of five days after the Court has adjourned for the term. The question here is whether the aforesaid statute and rule of Court applies to a verdict in a highway condemnation case.
Mauldin v. City Council of Greenville, 64 S.C. 444, 42 S.E. 202, was a statutory proceeding under section 30 of the charter of the City of Greenville to secure compensation for damages to property abutting on Main Street of said City, resulting from the lowering of the grade of said street. A board of arbitrators appointed pursuant to the aforesaid section of the City charter assessed the amount of damages. Both parties appealed to the Circuit Court and the issue of the amount of damages was submitted to a jury and a verdict was had in favor of the plaintiff. From the judgment entered thereon, on motion of the defendant, an appeal was prosecuted to this Court. The respondent, who was the *361 landowner, made a motion to dismiss the appeal on the grounds (1) that there was no authority for entering judgment upon the verdict in this special proceeding; and (2) there was no right of appeal from the verdict. This Court held that, pursuant to what is now Section 10-1458 of the Code, that judgment may be entered up on verdict of jury in appeal from assessment of damages by arbitrators for altering grade of street, under special statutory proceeding and appeal taken thereon, and losing party may enter up judgment for purposes of appeal. The Court specifically said "If the party in whose favor the verdict is does not enter, or cause to be entered, any judgment thereon, the other party desiring to appeal may cause judgment to be entered thereon, as in this case." It is implicit that the holding in the Mauldin case was bottomed upon the premise that an appeal to this Court must be from the judgment and not from the verdict of the jury. This Court so held commencing with the case of Winsmith v. Walker, 5 S.C. 473, and concluding with Sherbert v. School District, 169 S.C. 191, 168 S.E. 391. However, this rule is no longer applicable and has been changed by Section 7-5 of the 1952 Code, which permits an appeal from a verdict.
The Mauldin case, as is heretofore stated, was brought under Section 30 of the charter of the City of Greenville and "was practically a suit for damages already sustained." Haig v. Wateree Power Company, 119 S.C. 319, 112 S.E. 55. In Paris Mountain Water Company v. City Council of Greenville, 53 S.C. 82, 30 S.E. 699, Section 30 of the Greenville City Charter was construed, not only to give compensation for property taken, but damages sustained by reason of the City changing the grade of a street. The verdict in the Mauldin case fixed the amount of damages and furnished the basis of a final judgment which necessarily had to be entered as such when the City desired to appeal therefrom because no appeal could be taken from the verdict under the rule as it then existed.
In the case of Ex Parte Postal Telegraph Cable Company, 72 S.C. 552, 52 S.E. 676, the Court, for the purpose of *362 considering a certiorari proceeding, considered the judgment entered by the clerk in a condemnation proceeding regular in all respects, but cast doubt on the authority of the clerk to enter a final judgment on the verdict of a condemnation jury when it said: "The authority of the clerk to enter a formal judgment in the court of common pleas on the verdict of a condemnation jury regularly obtained was not drawn in question before Judge Dantzler, and is not made in the petition for certiorari."
A review of other eminent domain statutes is enlightening. Section 25-3 of the Code, with reference to every municipality or other corporation, upon which the power of eminent domain has been conferred, shall be required, whenever it institutes a condemnation proceeding against any property to either take the property and pay the amount of the award, or in the event of the abandonment of the condemnation proceeding, to pay the owner of the property sought to be condemned all expenses incurred by him in connection therewith, and such fees, costs and expenses to be fixed by a Master or Referee, and when confirmed by the Circuit Court "shall constitute a judgment against the corporation or municipality instituting the condemnation proceedings and may be entered in the office of the clerk of court, enrolled and enforced as other judgments of the common pleas court."
The Public Works Eminent Domain Law, Section 25-101 et seq., of the 1952 Code, sets forth the procedure by which any Federal Agency, State public body or authorized corporation may institute proceedings for the acquisition of any real property necessary for any public works project and provides for trial of the issue of just compensation either before a Special Master or, upon demand, by a jury. It is also provided in Section 25-125 and Section 25-127 of the Code that the Court, but only on motion of the petitioner unless title to the property has vested in the petitioner, shall enter a final judgment as fixed by the Court or in accordance with the verdict of the jury, and designate the parties entitled to such compensation. Section 25-130 of the Code provides upon the rendition of the final judgment vesting title in the *363 petitioner, that the Clerk of Court shall make and certify under seal a copy of such judgment. It is thus apparent that the Public Works Eminent Domain Law provides specifically for the entry of judgment in the office of the Clerk of Court under the conditions stated.
Sections 25-161 to 170 of the Code sets up the procedure for Condemnation by Municipalities. It is provided that freeholders shall be selected to determine just compensation with the right to the municipality or the landowner to appeal to the Court of Common Pleas and the issues on appeal shall be tried de novo before a jury. Section 25-169 of the Code provides that when any final judgment shall be obtained, either by the award of the freeholders or the order of any Court, then the landowner shall execute a deed to the municipality for the real estate condemned. It is then provided that if such landowner fails or neglects so to do, that the Clerk of the Court after the final judgment is entered in his office, and the amount of the award or verdict of the jury is paid into his office, shall execute a deed for the property condemned to such municipality. This section provides for the entry of a judgment of condemnation under the conditions stated.
The South Carolina State Highway Department is an administrative agency of the State and is authorized to acquire, by condemnation, any lands that may be necessary for the construction, maintenance, improvement or safe operation of highways in this State. Section 33-122 of the Code. The condemnation here is by the State through its administrative agency, the appellant herein.
A review of the condemnation statutes, as such applies to the appellant herein. Section 33-122 et seq. contains no provision comparable to those contained in Sections 25-3, 25-101 et seq. or 25-161 to 170 with reference to the entry of a judgment in a condemnation proceeding. The only use of the word "judgment" in the statute authorizing condemnation by the appellant is that portion of Section 33-139, which provides inter alia, that:
*364 "* * * The verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside in other cases or unless the judgment of the court thereupon be reversed, for error of law, on appeal to the Supreme Court. * * *"
The provision contained in the foregoing quoted statute that "[t]he verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside in other cases" simply gives to the Circuit Court, as is expressed in Section 10-1215 of the Code, the authority to grant a new trial in a case in which there has been a trial by jury and such may be granted for reasons for which a new trial is usually granted in the Courts of law of this State. The portion of the quoted statute making the verdict of the jury in a condemnation case final, "unless the judgment of the court thereupon be reversed, for error of law, on appeal to the Supreme Court," merely provides the right to have the proceedings reviewed by this Court to determine whether an error of law has been committed in the trial of the condemnation proceeding. The words "the judgment of the court thereupon" have reference to whether the Circuit Judge committed the error in setting aside or refusing to set aside the verdict of the jury in a condemnation proceeding for which verdicts may be set aside or affirmed in other cases.
The case of Southern Power Company v. White, 92 S.C. 219, 75 S.E. 459, was a condemnation proceeding in which a verdict was returned for the landowner. The plaintiff gave notice of a motion for a new trial upon the ground of the excessiveness of the award. The Trial Judge refused the motion, holding that he was without authority to interfere with the verdict or grant a new trial because the condemnation statute provided, with reference to the verdict of the jury, that "whose verdict shall be final and conclusive, unless a new trial shall be ordered by the Supreme Court." This Court reversed the decision of the lower Court and said:
*365 "* * * We think the history of the legislation of the time shows that the purpose of inserting those words was merely to provide the right to have the proceedings reviewed by the Supreme Court, at first on writ of error, and afterwards, when that writ was abolished, by appeal; because, at that time there had not been enacted any general law as to what proceedings of the circuit courts could be reviewed by the Supreme Court, and hence, no doubt, it was thought necessary to provide in the condemnation act for such review; otherwise, there would have been no appeal from the judgment of the circuit court. * * *"
The pertinent statutory provisions under which the appellant condemns property, as we construe such, do not provide for the entry of a judgment upon the verdict of a jury, while the other condemnation statutes, to which we have referred, direct the entry of judgment under the conditions therein stated. In the case of South Carolina State Highway Department v. Southern Railway Co., 239 S.C. 1, 121 S.E. (2d) 236, this Court had for consideration the question of whether interest should be considered in arriving at just compensation. There it was pointed out that under the State Authorities Eminent Domain Act, Section 25-27 of the Code, and the Public Works Eminent Domain Law, Section 25-110 of the Code, that express provision is made for the payment of interest but no comparable provision appears in any of the acts providing for the condemnation of property by the appellant for highway purposes and, as is applicable here, the Court said "it will not be presumed that the absence of such provision was an oversight which this Court should remedy by reading such into the acts."
The entry of a judgment is merely a ministerial act for the purposes of notice, lien and enforcement. Spartan Mills et al. v. Law, 186 S.C. 61, 194 S.E. 653. Section 33-144 of the Code provides inter alia that "[T]he original papers in all condemnation proceedings to acquire any right of way for any State highway shall be filed by the Department in its offices at Columbia." It is then provided that an index to such shall be kept and made *366 by the department. Section 33-145 of the Code provides that the filing and indexing of the original papers in all condemnation proceedings shall have the same force and effect as if such condemnation proceedings were actually recorded in the office of the Clerk of the Court in which the land described in such condemnation proceedings is situated. It is thus apparent that it was not necessary to enter the judgment in this case for the purpose of giving notice thereof because the statutes aforementioned provide such. It was not necessary to file the judgment for the purpose of creating a lien or enforcing such. The entry of the judgment in this case could not give any lien over any property of the state and no execution could be levied against the property of the state in the absence of a statute expressly creating such right in express terms. Brooks v. One Motor Bus, 190 S.C. 379, 3 S.E. (2d) 42.
We conclude that there is no statutory authority where the South Carolina State Highway Department condemns property authorizing the Clerk of the Court to enter and enroll as a judgment the award made by the jury. If the General Assembly had intended that a verdict in a condemnation proceeding instituted by the appellant should ripen into a judgment, it would have said so, as it did in the other condemnation statutes, to which reference has been made. Section 10-1458 of the Code is only applicable to verdicts rendered in civil actions and does not apply to a verdict rendered by a jury under a condemnation statute, unless such statute provides for the entry of a judgment thereunder. Cf. Haig v. Wateree Power Company, 119 S.C. 319, 112 S.E. 55.
The Trial Judge not only held that the award of the jury in this case was properly entered as a judgment but he further held that such would bear interest as is provided in Section 8-2 of the 1952 Code of Laws.
Having reached the conclusion that there is no statutory authority authorizing the Clerk of the Court to enter and enroll as a judgment an award made by the jury in a condemnation case, it necessarily follows that the respondent *367 was not entitled to interest under the aforesaid section of the Code.
The order of the Trial Judge holding that it was proper to enter as a judgment the award made by the jury in this case and in allowing interest thereon is reversed.
TAYLOR, C.J., and LEWIS, J., concur.
BUSSEY and BRAILSFORD, JJ., dissent.
BUSSEY, Justice (dissenting).
It is with regret that I find myself unable to concur in the majority opinion in this case.
The questions involved in this appeal are somewhat variously stated by the parties in their respective briefs, but the basic contentions of the appellants are, (1) that the entry of a judgment on the verdict was improper, and (2) that, regardless of whether or not the judgment was properly entered, the landowner is not entitled to recover interest on the verdict from the date thereof to the date of payment. The respondent challenges the foregoing contentions of the appellant and further expressly contends that since the Constitution of this State is self-executing, Article I, Section 17 of the Constitution of South Carolina compels that interest after verdict should be paid as a part of the just compensation provided for by the Constitution.
With respect to the first contention, the appellant argues that there is no provision in the Highway Condemnation Statutes, 1962 Code Sections 33-125 et seq., authorizing the entry of a judgment and that the rule laid down by this court in Haig v. Wateree Power Co., 119 S.C. 319, 112 S.E. 55, should control the decision on this point, rather than the rule in Mauldin v. City Council of Greenville, 64 S.C. 444, 42 S.E. 202.
The Haig case is clearly distinguishable from the instant case, as there the verdict of the jury was not a final adjudication of the rights of the parties. Here, according to the statement of the case, the taking of the landowner's property by the Department occurred on September 7, 1960, and the verdict of the jury was on January 25, 1961. Of course, the *368 Department may abandon a condemnation at any time before taking actual possession and entering, Jennings v. Sawyer, 182 S.C. 427, 189 S.E. 746, but it is not contended that the Department has any right of abandonment here. Under the circumstances of this case, the verdict of the jury finally adjudicated the rights of the parties, just as in the Mauldin case where it was held that the clerk was required, under the provisions of what is now 1962 Code Section 10-1458, to enter a judgment on the verdict of the jury.
The majority opinion differentiates the Mauldin case from the case at bar, in part, on the ground that it was "bottomed upon the premise that an appeal to this Court must be from the judgment and not from the verdict of the jury. * * * However, this rule is no longer applicable and has been changed by Section 7-5 of the 1952 Code [of Laws], which permits an appeal from a verdict. * * * The verdict in the Mauldin case fixed the amount of damages and furnished the basis of a final judgment which necessarily had to be entered as such when the City desired to appeal therefrom because no appeal could be taken from the verdict under the rule as it then existed."
I respectfully point out that Section 7-5 has no application except to verdicts "on which a final judgment might be entered." Therefore, it seems to me that the enactment of said section can have no effect on the decision of this case unless the verdict is one on which a final judgment may be entered.
Moreover, it seems clear to me that the legislature contemplated and provided for the entry of a judgment upon a jury verdict in a highway condemnation case. Section 33-139 provides, inter alia, that,
"The verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside in other cases or unless the judgment of the court thereupon be reversed, for error of law, on appeal to the Supreme Court." (Emphasis added.)
I find myself in disagreement with the construction accorded the foregoing section in the majority opinion. It *369 seems to me that no effect is given to the disjunctive words "or unless". My view of the statutory language under consideration is that it provides that the verdict shall be final except in two totally different disjunctive classifications, the first of which is that it shall not be final if set aside by the trial judge, and the other classification is that it shall not be final if the judgment of the court thereupon (that is to say, the verdict) be reversed by the supreme court. The language clearly contemplates an appeal to the supreme court, and such an appeal will lie, without entry of judgment, under Section 7-5, only if judgment might have been entered on the verdict.
I, therefore, conclude that the judgment was properly entered in this case, which brings us to the question of whether the verdict, even though properly entered up as a judgment, bears interest under Section 8-2 of the 1962 Code of Laws, the applicable portion of which reads as follows:
"In all money decrees and judgments of courts enrolled or entered, * * * in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law * * *."
The lower court held that the judgment here falls in the same category as all other verdicts and judgments and would bear interest in accordance with the foregoing statutory provision. The appellant contends the foregoing provision is inapplicable here, even though the judgment be properly entered, in the absence of language in Section 8-2 making it expressly applicable to judgments against the State. The precise question thus raised has not heretofore been before this court but has been considered by various courts, the decisions being not in harmony, and there being some support for appellant's contention.
The weight of authority from other jurisdictions, however, supports the propositions that when a state either consents to be sued or voluntarily becomes a party to litigation, it subjects itself to the jurisdiction of the court and the judgment thereof, and that statutes providing for interest on all judgments are applicable to any judgment which might *370 be rendered against the state. For authorities supporting these propositions see Franklin Bros. et al. v. Standard Mfg. Co. et al., Tex. Civ. App., 78 S.W. (2d) 294; Commonwealth v. Lyon, 72 S.W. 323, 24 Ky. L. Rep. 1747; Duree v. State, La. App., 96 So. (2d) 854; Reeves v. State of Louisiana, 232 La. 116, 94 So. (2d) 1; State v. Warden, 206 Okl. 223, 242 P. (2d) 129; State v. La Plata River & Cherry Creek Ditch Co. et al., 101 Colo. 368, 73 P. (2d) 997; Fla. Livestock Board v. Gladden, Fla., 86 So. (2d) 812; Connecticut General Life Ins. Co. v. State, Cal. App., 117 P. (2d) 377.
In this state the right to sue the state for compensation for land taken for public use is granted by the Constitution and had the Department not proceeded under the condemnation statutes, but had taken the right of way without any process, the state would have been subject to suit. Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842; Hardin v. City of Greenville, 161 S.C. 53, 159 S.E. 465. When the Department commenced the eminent domain proceedings pursuant to the applicable statutes, it submitted itself to the jurisdiction of the court knowing full well that under the statute the proceeding could well end in a judgment against the Department. I see no good or logical reason why this judgment, properly entered against the Department, should not bear interest in accordance with the provisions of Section 8-2 of the Code.
Assuming, however, that the majority opinion is correct in concluding that the applicable statutes do not authorize the entry of a judgment and interest thereon in a highway condemnation case, we still have left for consideration the constitutional issue relied upon by the respondent. I respectfully submit that the case of Haig v. Wateree Power Co., supra, is binding precedent for the allowance of interest on the verdict here, even in the absence of the entry of a judgment and independently of the statutory provisions above discussed.
*371 Under the circumstances of that case, the court properly held that judgment could not be entered on the verdict because the condemnor had an election, as to whether to pay the verdict, until it actually took possession of the property. The court squarely held that in the absence of any statute on the subject, the allowance of interest on the verdict was controlled "by the constitutional principle requiring just compensation for property taken." The court pointed out that upon the rendition of the verdict and fixing the award, the taking of the property became optional with the condemnor and the rights of the landowner were seriously affected. I quote from the opinion:
"If the amount of the award had been paid on the date of the rendition of the verdict, when the right to take vested in the condemnor, it would have been `just compensation.' As the payment was postponed by the condemnor until a future time, the landowners did not receive `full compensation' as contemplated under the Constitution. The difference is the same as between a sale for cash and a sale on time. The plaintiffs herein are entitled to interest under the constitutional provisions requiring just and full compensation for private property taken for public purposes."
Attention is also invited to the equally strong language in the concurring opinion of Mr. Justice Cothran.
The case of South Carolina Highway Dept. v. Southern Railway, 239 S.C. 1, 121 S.E. (2d) 236, is precedent only for the proposition that interest, or its equivalent, from the date of the taking to the date of the trial may not be included in the verdict and we, of course, are bound by this decision.
The Haig case, correctly decided in accordance with the great weight of authority, was not overruled by the Southern Railway case, and we are not requested to even review it here. Therefore, the respondent is entitled to stare decisis application of the principle that the verdict in a condemnation case draws interest, as a necessary element of just compensation, even though it be held that it was improper to enter a final judgment on the verdict. The fact that here, *372 contrary to the Haig case, the verdict is against the sovereign is of no legal consequence because the sovereign, just as other condemnors, is enjoined by the Constitution to pay just compensation, and the Haig case is binding authority for the proposition that this requires the allowance and payment of interest on a condemnation verdict.
For all of the foregoing reasons, I would affirm the judgment of the lower court.
BRAILSFORD, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336381/ | 218 Ga. 854 (1963)
131 S.E.2d 105
COLLIER
v.
HIRSCH.
21878.
Supreme Court of Georgia.
Argued January 16, 1963.
Decided April 4, 1963.
Rehearing Denied May 13, 1963.
Houston White, for plaintiff in error.
Almon, Clein & Ray, contra.
MOBLEY, Justice.
This case is here by virtue of the grant of a petition for the writ of certiorari to review the judgment of the Court of Appeals in Collier v. Hirsch, 106 Ga. App. 652 (127 SE2d 859), which was the second appearance of the case originally before that court in Hirsch v. Collier, 104 Ga. App. 271 (121 SE2d 318). Reference may be made to the reports of those two decisions for a full understanding of the case.
*855 In Hirsch v. Collier, 104 Ga. App. 271, 275, supra, the Court of Appeals held that the motion to set aside the judgment on the ground of fraud did not set forth a cause of action because there was "no allegation of any act by the plaintiff before the judgment was rendered upon which the defendant reasonably could have placed confidence or been assured that plaintiff would not take a judgment against him, or that prevented the defendant from appearing to defend the suit." The original motion, ruled upon in that appearance of the case, alleged that the plaintiff received the check on December 26, 1960, accepted it, retained it in his possession, and later cashed it. In his amendment to the motion, defendant alleged that at the time the plaintiff received and accepted the check he intended to retain the check for the purpose of reducing it to cash at a later date and that he did retain it until he cashed it at a later date. He also alleges by way of amendment that "as a result of the making of said accord and satisfaction on December 26, 1960, by the receipt and acceptance of said check on December 26, 1960, with said endorsement thereon, the plaintiff agreed to dismiss this suit in this court and not to permit a default judgment to be taken thereon." The Court of Appeals held in the decision now under review, Collier v. Hirsch, 106 Ga. App. 652, 653, supra, that "the only factual allegation added by the amendment is that when plaintiff received the check on December 26, 1960, he intended to retain and cash it ... In the amendment there is still `no allegation of any act by the plaintiff before the judgment was rendered upon which the defendant reasonably could have placed confidence or been assured that plaintiff would not take a judgment against him, or that prevented the defendant from appearing to defend the suit.' ... Since this essential element is still missing in the amended motion, it is the law of this case that the motion cannot withstand the general demurrer."
We agree with the Court of Appeals that the first-mentioned allegation in the amended motion is the only factual allegation added by way of amendment, for the second-mentioned allegation is most assuredly nothing more than a conclusion of law and is not an allegation of ultimate facts. We further agree that this factual allegation does not supply the element missing in the original motion and it is therefore the law of *856 the case that the motion cannot withstand the general demurrer lodged against it.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.
CANDLER, Justice, dissenting.
On December 2, 1960, Jack Hirsch sued James T. Collier in the Civil Court of Fulton County for $445.56, an amount allegedly due him by Collier for accounting services. Collier mailed him a check for $50 on December 24, 1960, on the back of which he wrote: "This check to be cashed only if Jack Hirsch CPA accepts it in full settlement and drops his legal action against J. Taylor Collier..." Hirsch received the check on December 26, 1960, kept it, and took a judgment against Collier on January 5, 1961, for $445.56 principal, $5.03 interest and $11.50 court costs. On January 16, 1961, Hirsch cashed the check which Collier had mailed him, but before doing so altered it by clipping off the words which Collier had written on the back of it. Hirsch kept the $50 the proceeds of Collier's check, caused an execution to be issued against him for the amounts recovered by the judgment, and garnisheed his bank account. Collier filed a motion in the Civil Court of Fulton County to set aside the judgment rendered against him which alleges all of the facts mentioned above. Hirsch demurred generally to the motion on the ground that its allegations were insufficient to state a cause of action for the relief sought. He also demurred to it specially on several different grounds. His demurrers were overruled by the trial judge and he excepted and sued out a writ of error to the Court of Appeals. That court reversed the trial court's ruling. See Hirsch v. Collier, 104 Ga. App. 271 (121 SE2d 318). There the Court of Appeals said: "Defendant contends that his motion pleads facts showing an accord and satisfaction on December 26, 1960, ten days before the judgment was actually taken *857... and eight days before default judgment could have been taken. The allegations of the motion are as follows: `That [plaintiff] received said check in due course of mail on December 26, 1960, and did not return said check to [defendant], but accepted same and retained same in his possession, and later cashed same at a time unknown to [defendant] at Herman's, Inc ... which presented same for payment to [defendant's] bank ... where same was paid on January 16, 1961.' While from these allegations an inference favorable to the defendant could be drawn that the plaintiff accepted the check on December 26, 1960, the pleaded facts do not support such an inference. It is elementary law in this State that pleadings are to be construed against and not for the pleader on demurrer. Therefore, the above allegations cannot be construed to show an acceptance of the offered accord and satisfaction prior to the judgment."
After that decision was rendered, and before the remittitur was made the judgment of the trial court, Collier amended his motion and alleged in substance the following: Hirsch, on December 26, 1960, received and accepted his check for $50 with the above mentioned words written on the back of it, intending at that time to retain it in his possession for the purpose of reducing it to cash at a later date; that he did retain it in his possession until he cashed it; that receipt and acceptance of such check on December 26, 1960, with the aforementioned intention, was at that time an accord and satisfaction of the claim he had sued on; and that Hirsch by accepting and retaining his check on December 26, 1960, under the aforementioned circumstances, agreed to dismiss the suit which he had filed against movant and not to permit a default judgment to be taken against him. The trial judge sustained a general demurrer to Collier's amended motion and dismissed it. The Court of Appeals affirmed his ruling, Collier v. Hirsch, 106 Ga. App. 652 (127 SE2d 859) and this court granted certiorari to review the judgment rendered by the Court of Appeals.
As I view the allegations of Collier's amendment, they materially changed his original motion and supplied the facts which the Court of Appeals held were lacking on its first review of the *858 case; and treating the allegations of the amended motion as true, as must be done for purposes of the demurrer, I think they show that an accord and satisfaction of the claim Hirsch sued on was fully consummated on December 26, 1960. See Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196). And because of Hirsch's alleged reprehensible conduct, I do not think he is in any position to contend that Collier was not diligent in defending the suit which he had filed against him. See Citizens Bank v. Todd, 151 Ga. 475 (2) (107 S.E. 486).
I am authorized to say that Chief Justice Duckworth concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336372/ | 107 Ga. App. 695 (1963)
131 S.E.2d 651
FINCHER
v.
FOX.
39902.
Court of Appeals of Georgia.
Decided April 8, 1963.
Rehearing Denied May 1, 1963.
*697 Levy & Stonecypher, Jean Wm. Levy, for plaintiff in error.
Hurt, Baird & Peek, Joe C. Freeman, Jr., Paul M. Hawkins, contra.
RUSSELL, Judge.
1. It is first argued that the formation of the ice on the driveway occurred without any negligence on the part of the defendant due to natural weather conditions and that the defendant cannot be held liable, even though as landlord he had a duty to keep the premises safe for tenants and their invitees (Code § 105-401) and to keep the premises and approaches in good repair. Code § 61-112; Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (2) (116 S.E. 17). The contention raises the question of whether or not there is a duty on a landlord implicit in his general duty to keep the premises in repair to remove temporary accumulations of nature such as rain water, ice and snow. In Netherland v. Pacific employers Ins. Co., 101 Ga. App. 837, 841 (115 SE2d 122) this court begged the question, holding that there was involved not only ice which had recently formed but a slippery condition caused by soil erosion and accumulation of mud over a period of time. Likewise, in Wasserman v. Southland Investment Corp., 105 Ga. App. 420 (124 SE2d 674) there was involved not only natural ice, but ice due to the negligent manner in which the defendant landlord had attempted to clear the approaches to the apartment house. There is a divergence of opinion in other jurisdictions as to whether a duty rests upon the landlord under common-law principles to remove artificial and temporary accumulations of this nature which is the subject of an exhaustive discussion in *698 26 ALR2d 610 et seq., and from which it appears that Indiana, Maine, Massachusetts, New York (on occasion) and Ohio have followed the rule that generally no such duty exists, whereas Connecticut, the District of Columbia, New Hampshire, New Jersey, later New York cases, Ohio and Oregon tend to judge the duty under general applicable principles of negligence and to base the decision upon whether or not the landlord has used reasonable care to keep the approaches reasonably safe after notice of the condition and a reasonable opportunity to correct it. See also Grizzell v. Foxx, 48 Tenn. App. 448 (348 S.W.2d 815). This would seem to be more in accord with Georgia law, where generally the duty as interpreted by legal decisions over a period of years remains constant and the yardstick furnished by decided cases may be applied although the situation is a new one, as for example applying applicable principles of automobile negligence law to a tort action involving negligence in operating an airplane. Sammons v. Webb, 86 Ga. App. 382 (71 SE2d 832). This principle is regularly followed in determining negligence of an owner to invitees involving natural and temporary accumulations of rain water. Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680). An act of God is one which occurs by reason of inevitable natural forces unaffected by human agency (Code § 102-103), and the fact that the accumulation of the ice here was an act of God does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action. This ground of the motion for summary judgment is without merit.
2. A landlord is not an insurer of the safety of his tenants. Liability results only from his failure to exercise ordinary care to make repairs after notice to him of the defective condition coupled with a failure to repair within a reasonable time. Ledbetter v. Gibbs, 19 Ga. App. 485 (1) (91 S.E. 875); Rothschild v. First Nat. Bank, 54 Ga. App. 486 (188 S.E. 301); Dickey v. Suggs, 90 Ga. App. 124 (82 SE2d 24); Huey v. Nix, 94 Ga. App. 498 (95 SE2d 339). "In order for the landlord to be liable it must appear that notice of the defective and unsafe condition of the premises had been given to him, and a reasonable opportunity afforded him to repair the defective condition; or it must *699 appear that the landlord otherwise had knowledge of the defect in the premises that caused the tenant to receive personal injuries." Upchurch v. Coggins, 70 Ga. App. 205, 206 (27 SE2d 869). The notice may be actual or constructive, but, if the latter, it must be shown to have existed for such a length of time, or under such circumstances as to put the owner of the building on notice before he will be liable for resulting injuries. Lupion v. Blass, 101 Ga. App. 264 (113 SE2d 413). Usually, what is a reasonable time is a jury question. In the present case the allegation is that the landlord "Knew or should have known" of the dangerous condition, which amounts to only constructive notice. Doyal v. Russell, 183 Ga. 518 (189 S.E. 32). Neither in the pleadings nor in the affidavit is it shown that the adverse weather conditions were so widespread as to place the landlord on notice of the icy condition of this driveway. The bulk of the ice did not form until after sundown of the day in question, and the plaintiff was injured shortly before midnight. It appears that there was snow at an office building where the plaintiff went on the morning of that day, and in front of a nearby apartment house which he visited after working hours. It does not appear whether weather conditions were such that the snow which fell on the driveway the night before and which was not sufficient to obstruct it the next morning might reasonably have been expected to turn to ice, or that other parts of the city generally were in the grip of an ice storm. The ice formation took place after the close of the working day at a time when it might well be impossible to obtain service for its removal; as a matter of fact it is inferable that the defendant lived in an adjoining county and the apartment house was in charge of a real estate company which presumably had closed for the day at the time the dangerous condition commenced to form. It thus appears both that there was no actual notice or knowledge on the part of the landlord and no sufficient factual averments to predicate a recovery on the ground of implied notice. Cf. Jones v. West End Theatre Co., 94 Ga. App. 299 (94 SE2d 135). In Allan v. Essanee, Inc., 309 Mass. 1 (33 NE2d 271), a verdict for the plaintiff was reversed for lack of a sufficient time interval to charge the defendant with constructive *700 notice and an opportunity to remedy the condition where, although there was testimony that it had snowed and frozen two days before and there had been a slight thaw the day before, there was no testimony as to ice other than on the morning of the accident. The same result was reached in Gianpaola v. Paoli, 129 N.Y.S. 180, where there was testimony that sleet and freezing rain had fallen for a period of two days before the plaintiff slipped on an accumulation of snow and ice. The facts here are insufficient to present a jury question on the alleged defective maintenance of the premises by the defendant where the condition had existed for less than six hours during the evening and night and no actual notice was given by the tenant or acquired by the landlord or his agent.
The trial court did not err in granting the defendant's motion for summary judgment.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336591/ | 194 Ga. App. 441 (1990)
390 S.E.2d 659
INTERNATIONAL SOFTWARE SOLUTIONS, INC.
v.
ATLANTA PRESSURE TREATED LUMBER COMPANY et al.
A89A1879.
Court of Appeals of Georgia.
Decided February 8, 1990.
Robert E. Hall, for appellant.
Charles L. Jurjevich, for appellees.
BIRDSONG, Judge.
Appellant appeals the final judgment in favor of appellees/plaintiffs in the amount of $5,500 of the State Court of Fulton County.
Appellees filed suit in magistrate court averring in its statement of claim that it "seeks rescission of the contract, to return the [computer] system to the [d]efendant, and a refund of its money." (Emphasis supplied.) Appellant demanded trial by jury and the case was transferred to the state court. The trial court found inter alia that the parties had agreed appellant/defendant would sell and install a computer system for appellees; that the installed system never performed the function desired by appellees and agreed upon by the parties; that appellees were a small business with unique, but reasonable, computer system requirements; that the system sold and installed by appellants did not meet appellees' needs; and, that appellees paid appellant $5,500 for the computer system. The trial court concluded that appellant had breached the agreement by failing to deliver a computer that could meet appellees' needs, and that appellees had the statutory requirements of OCGA § 13-4-62 for rescission for nonperformance.
Appellant contends the trial court erred in concluding as a matter of law that appellees were entitled to rescission because "it is uncontroverted that the [a]ppellees at no time tendered, or offered to tender, to [a]ppellant the ... computer system," and that the "computer system was retained by [a]ppellees even as of the date of trial."
Generally in this state, a party desiring to rescind a contract must, as a condition precedent to such rescission, restore or tender the benefits received under the contract. See generally Acme Brewing *442 Co. v. Wm. Rahr Sons Co., 10 Ga. App. 564 (73 SE 955) (restitution before absolution), citing Harden v. Lang, 110 Ga. 392 (1) (36 SE 100); 26 EGL, Restitution, § 13; compare Home Ins. Co. v. Swann, 34 Ga. App. 19, 26 (128 SE 70) and Collins v. Frazier, 23 Ga. App. 236 (1) (98 SE 188).
"The rule that he who desires to rescind a contract must restore whatever he has received under it is one of justice and equity ... and must be reasonably construed and applied. The object of the rule is theoretically to place the parties in statu quo; but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand." (Emphasis supplied.) 17 AmJur2d 996, Contracts, § 512. It is apparent from a comparison of the plain language of OCGA §§ 13-4-60 with 13-4-62 that the latter statute, pertaining to rescission for nonperformance, embraces this basic concept. OCGA § 13-4-62 contains no express statutory requirement for restoration as a condition precedent to rescission for nonperformance, rather it authorizes such rescission "but only when both parties can be restored to the condition in which they were before the contract was made."
In Smith v. McWhorter, 173 Ga. 255, 273 (160 SE 250), the Supreme Court held that "`[o]ne rescinding [a] contract is not required to return consideration, when to do so would be unreasonable or impossible.'" (Emphasis supplied.) If the nonperforming party to the contract absents himself so that a restoration of the contract benefit gained cannot be timely made by the rescinding party, a suit for rescission may be maintained without a tender to the creditor in person, if the plaintiff offers to pay the money into court for him. Smith, supra at 274, citing Berry v. Williams, 141 Ga. 642 (81 SE 881). The evidence supports an inference that, after it became apparent that appellees were not satisfied with the equipment, appellant's agent acted in a manner making it unreasonable, within the meaning of Smith, supra, for appellees to return the computer system to appellant. Moreover, appellees' pleadings reflect its desire to return appellant's computer system, and in open court an express offer to do so was made by appellees' agent. Restoration does not require that the opposite party be placed in exact status quo, but only that he be placed substantially in his original position, and that the rescinding party shall derive no unconscionable advantage from the rescission. 26 EGL, supra at p. 21. We are satisfied the record before us shows that appellees' in-court offer of restoration of appellant's computer system met these tests.
Moreover, the transcript is replete with testimony from appellees' agent regarding a pattern of delaying conduct on the part of appellant's agent to repeatedly assert (even in his final conversation with appellees' attorney) that the computer system problem could be corrected *443 within a short period of time. The transcript also contains testimony from appellees' agent that after a certain point in time appellant's attorney refused to answer telephone messages and cancelled any further scheduled meetings. Construing this evidence most favorably to support the verdict and judgment as we are required to do on appeal, Locke v. Vonalt, 189 Ga. App. 783 (1) (377 SE2d 696), we find that the conduct of appellant's agent lulled appellees for a substantial period of time into believing that the deficiencies in the computer system could and would be timely corrected, and that by the time it became apparent to appellees that the deficiencies would not be corrected, appellant's agent had terminated further communications with the appellees. It is well settled that "[t]he law does not entitle one to profit by his own wrong." State Hwy. Dept. v. Cobb Constr. Co., 111 Ga. App. 822, 827 (143 SE2d 500).
Furthermore, "[a] correct decision of the trial court will not be reversed, regardless of the reasons given therefor." National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532).
Judgment affirmed on condition that the computer system be returned to appellant; otherwise, judgment is reversed. Deen, P. J., and Cooper, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312894/ | Andrea R. Wood, United States District Judge
Plaintiff Starr Indemnity & Liability Co. ("Starr") provided workers' compensation insurance for construction contractor Lend Lease (US) Construction, Inc. ("Lend Lease"). Lend Lease managed a construction project for which it retained subcontractors that were also insured under Lend Lease's policy from Starr. One of the subcontractors, however, also had a contract with another employer, which Starr claims made Defendant Technology Insurance Co., Inc. ("TIC") its coinsurer on Lend Lease's construction project. While working on the project, four ironworkers employed by the subcontractor sustained injuries for which they sought workers' compensation benefits. Starr covered their claims, paying a total of $ 583,045.18. As Starr's policy with Lend Lease contained a $ 500,000 deductible, Lend Lease reimbursed Starr for that amount. Starr has brought the present action seeking equitable contribution from TIC for its share of the ironworkers' claims. Now before the Court are cross-motions for summary judgment filed by Starr and TIC, each seeking a ruling on whether Starr may recover the $ 500,000 deductible from TIC, if Starr proves that TIC was in fact a coinsurer of Lend Lease. (Dkt. Nos. 59, 72.) For reasons explained below, the Court finds in favor of TIC on this narrow issue.
BACKGROUND
In evaluating cross-motions for summary judgment, the Court must take "the facts in the light most favorable to the *725non-movant, first for one side and then for the other." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Eng'rs, Local Union 150, AFL-CIO , 335 F.3d 643, 648 (7th Cir. 2003). Here, there are several disputed facts, particularly with respect to those facts supporting Starr's motion for partial summary judgment. Yet the present motions concern a purely legal issue that will only arise if Starr proves certain facts establishing that TIC was a coinsurer obligated to pay out for the injuries for which Starr seeks equitable contribution. Both parties agree that TIC's coinsurer status should be resolved at a later stage in the proceedings. Thus, any disputed facts are not material to the present motions. For that reason, where disputed, the Court provides Starr's version of the following facts for context, while not resolving any disputed factual issues at this time.
Lend Lease was the construction manager for a construction project in downtown Chicago. (Def.'s Resp. to Pl.'s Statement of Uncontroverted Facts ("DRSUF") ¶¶ 6, Dkt. No. 67.) To provide insurance for the construction project, Lend Lease created a Contractor Controlled Insurance Program ("CCIP"). (Id. ¶ 7.) Pursuant to the CCIP, construction workers on the project were covered by the Workers' Compensation and Employers Liability insurance policy that Lend Lease acquired from Starr. (Id. ¶¶ 4, 7.) The CCIP Procedures Manual stated that subcontractors of every tier would be required to enroll in the CCIP, unless specifically excluded. (Id. ¶ 8.) Accordingly, Lend Lease's sub-subcontractor on the project, Midwest Steel, Inc. ("Midwest"), was enrolled in the CCIP and insured by Starr. (Id. ¶¶ 10-11.)
At all relevant times, Midwest was a party to a Client Service Agreement with Administrative Employer Services, Inc. ("AES"). (Id. ¶ 19.) Pursuant to the Client Service Agreement, all Midwest employees working on the Lend Lease project were deemed also to be AES employees. (Id. ¶ 20.) Among the responsibilities AES agreed to assume was to provide workers' compensation insurance for Midwest employees.1 (Id. ) AES's Workers' Compensation and Employers Liability insurance policy was issued by TIC. (Id. ¶ 18.)
Pursuant to its policy issued to Lend Lease, Starr agreed to pay all damages for bodily injuries sustained by Lend Lease employees. (Id. ¶ 5.) However, the policy contained a "Deductible Coverage Endorsement" under which Lend Lease was required to reimburse Starr for amounts paid up to the $ 500,000 per accident deductible. (Id. ) Thus, Starr would pay for all covered losses in the first instance, but Lend Lease would subsequently repay Starr for any amounts it paid up to the deductible. (Id. ) In the event Lend Lease failed to reimburse Starr, Starr was entitled to cancel the policy but would remain fully liable for the amount of claims incurred before cancellation. (Id. ) By contrast, TIC's policy contained no deductible provision. (See Aff. of Baer, Ex. 5 at TIC 001215-18, Dkt. No. 62.) Both Starr and TIC's policies contained an identical "Other *726Insurance" provision, however, which stated:
We will not pay more than our share of benefits and costs covered by this insurance and other insurance or self-insurance. Subject to any limits of liability that may apply, all shares will be equal until the loss is paid. If any insurance or self-insurance is exhausted, the shares of all remaining insurance will be equal until the loss is paid.
(Id. Ex. 1 at STARR 000100-01; id. Ex. 5 at TIC 001216.)
On December 29, 2014, four ironworkers suffered injuries while working on Lend Lease's downtown Chicago construction project. (DRSUF ¶ 12.) Those injured ironworkers sought workers' compensation benefits for their injuries. (DRSUF ¶ 13; Pl.'s Resp. to Def.'s Statement of Material Facts ("PRSMF") ¶ 4, Dkt. No. 82.) In their applications for workers' compensation benefits, the ironworkers identified both Midwest and AES as their employers. (DRSUF ¶ 14.) Starr ultimately paid $ 583,045.18 to cover all expenses associated with the injured ironworkers' claims. (Id. ¶ 16.) Shortly thereafter, Lend Lease reimbursed Starr for the full amount of the $ 500,000 deductible. (PRSMF ¶ 17.)
Prior to commencing the present action, Lend Lease filed another lawsuit in the United States District Court for the Northern District Illinois against TIC and AES. (PRSMF ¶ 5; Lend Lease (US) Constr., Inc. v. Admin. Emp'r Servs., Inc. , No. 1:15-cv-04318 (N.D. Ill.).) In the complaint, Lend Lease alleged that TIC was a coinsurer for purposes of the ironworkers' injuries pursuant to Midwest's contract with AES. (PRSMF ¶ 6.) Lend Lease sought indemnification from TIC for the full $ 500,000 that Lend Lease paid to Starr to satisfy the Starr policy's deductible. (Id. ) TIC moved to dismiss the action, arguing that Lend Lease "failed to plead a legal theory which would entitle it to recover its own deductible from [TIC] under Illinois law." (Id. ¶ 7.) The district court ruled in TIC's favor and dismissed Lend Lease's claims with prejudice, finding that Lend Lease could not maintain a claim for equitable contribution from TIC for amounts it paid to satisfy the Starr policy's deductible because Lend Lease was not itself an insurer. (Id. ¶¶ 10-11); Lend Lease (US) Constr., Inc. v. Tech. Ins. Co. (Lend Lease I) , No. 15 C 4318, 2016 WL 147895, at *3 (N.D. Ill. Jan. 13, 2016).
Following dismissal of its complaint, Lend Lease filed a motion pursuant to Federal Rule of Civil of Procedure 59(e) to alter or amend the judgment, requesting that the dismissal be without prejudice so that Lend Lease could file a third amended complaint. (Def.'s Resp. to Pl.'s Suppl. Statement of Uncontroverted Facts ¶ 1, Dkt. No. 84.) Lend Lease's proposed third amended complaint sought to add Starr as a plaintiff so that Starr could bring a contribution claim against TIC. (Id. ¶ 2.) The district court denied the motion. (Id. ¶ 4.) Lend Lease then appealed the dismissal to the Seventh Circuit. (PRSMF ¶ 13.) However, the Seventh Circuit affirmed the district court's ruling, holding that Lend Lease was not entitled to contribution or indemnification from TIC. (Id. ¶¶ 14-15); Lend Lease (US) Constr., Inc. v. Admin. Emp'r Servs., Inc. (Lend Lease II) , 840 F.3d 386 (7th Cir. 2016). Its decision also addressed Lend Lease's Rule 59(e) motion, again affirming the district court and noting that "Lend Lease has already had three chances to plead correctly-making this a case of three strikes and you're out-and Starr can litigate its own claims against TIC." Lend Lease II , 840 F.3d at 388. Starr apparently heeded the Seventh Circuit's admonition and filed the present action for equitable contribution against TIC in the Circuit Court of Cook County, Illinois, which TIC promptly removed to this Court on the basis of *727diversity jurisdiction.2 (Notice of Removal, Dkt. No. 1.)
DISCUSSION
Both parties agree that their motions for partial summary judgment focus on a single legal issue for which there are no disputed issues of material fact: whether Starr may recover from TIC the $ 500,000 it paid in connection with the injured ironworkers' claims, even though Lend Lease reimbursed that sum pursuant to the deductible provision in its insurance policy with Starr. Whereas Starr contends that the deductible must be included in its contribution claim, TIC argues that Starr already has been made whole for the amount of the deductible and may only seek contribution from TIC for its share of payments made in excess of the deductible. Although TIC's status as a coinsurer from whom Starr may seek equitable contribution will be determined later, the parties seek to narrow the issues such that if a jury (or the Court) at a later stage in the proceedings determines that TIC shared with Starr an obligation to cover the ironworkers' claims, the damages issue will already be resolved. The Court agrees that there are no disputed issues of material fact as to this legal issue such that it is ripe for resolution.
I. Collateral Estoppel
TIC argues in its motion for partial summary judgment that the doctrine of collateral estoppel precludes Starr from pursuing its equitable contribution claim against TIC. Collateral estoppel, or issue preclusion, precludes the relitigation of an issue that has been resolved in a previous lawsuit between the same parties or their privies. DeGuelle v. Camilli , 724 F.3d 933, 935 (7th Cir. 2013). When considering the preclusive effect of a previous federal court judgment, the Court must apply the federal common law of collateral estoppel. Midwest Operating Eng'rs v. Dredge , 147 F.Supp.3d 724, 736 (N.D. Ill. 2015). Collateral estoppel has four elements:
(1) the issue sought to be precluded is the same as an issue in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; (3) the determination of the issue must have been essential to the final judgment; and (4) the party against whom estoppel is invoked must have been fully represented in the prior action.
Adams v. City of Indianapolis , 742 F.3d 720, 736 (7th Cir. 2014).
TIC contends that the district court in Lend Lease's action against TIC issued a final judgment finding that Lend Lease could not recover the $ 500,000 deductible from TIC. Now, according to TIC, Starr is seeking to relitigate an issue that has already been decided by a district court and affirmed by the Seventh Circuit. Although it is Starr rather than Lend Lease that seeks to recover the deductible in this action, TIC asserts that Starr should be collaterally estopped because Starr is litigating Lend Lease's interests rather than its own. That is because Starr has been fully repaid for the amounts it expended up to the deductible, and thus it no longer has any rights as to that sum.
The Court can quickly reject the application of collateral estoppel here for two reasons. First, the issue in the present action is not the same as that in the earlier action. Indeed, in affirming the district court's dismissal of the earlier action, the *728Seventh Circuit clearly stated that the "argument for splitting the workers' compensation benefits between" Starr and TIC "is not this case." Lend Lease II , 840 F.3d at 387. Second, both the district court and the Seventh Circuit ruled in the previous action that Lend Lease, as a non-insurer, could not state a claim for equitable contribution because such a claim exists only between coinsurers. Lend Lease II , 840 F.3d at 387 ; Lend Lease I , 2016 WL 147895, at *2-3. Lend Lease therefore could not represent Starr's interests in an equitable contribution claim because that claim could be raised only by Starr. Lend Lease II , 840 F.3d at 388 ("Starr can litigate its own claims against TIC.") Conversely, Starr cannot represent Lend Lease's interests here because an equitable contribution claim concerns only coinsurers. Consequently, collateral estoppel does not preclude Starr from pursuing recovery of the $ 500,000 deductible.
II. Allocation of the Deductible
The core legal dispute raised in both motions for partial summary judgment is whether Starr may recover Lend Lease's deductible in the event that TIC is found to be a coinsurer and such that Starr may maintain an equitable contribution claim against it. Starr's motion asks the Court to conclude as a matter of law that Starr may base its equitable contribution claim on the total amounts it paid to cover the injured ironworkers' claims, including amounts reimbursed by Lend Lease pursuant to its policy's deductible provision. Meanwhile, TIC asserts that Starr would obtain a double recovery if it is permitted to seek contribution for the deductible. Accordingly, TIC asks the Court to exclude the $ 500,000 deductible from Starr's equitable contribution claim and find that Starr may recover only approximately $ 41,500, which constitutes TIC's share of the amounts Starr paid above the deductible-i.e. 50% of $ 83,000.3
Under Illinois law, "[c]ontribution as it pertains to insurance law is an equitable principle arising among coinsurers which permits one insurer who has paid the entire loss, or greater than its share of the loss, to be reimbursed from other insurers who are also liable for the same loss." Home Ins. Co. v. Cincinnati Ins. Co. , 213 Ill.2d 307, 290 Ill.Dec. 218, 821 N.E.2d 269, 276 (I2004). Starr argues that it is entitled to equitable contribution because it paid the full amount of the claims, including the $ 500,000 deductible, at least a portion of which should have been borne by TIC. Illinois courts have found that the "right to equitable contribution arises when one insurer pays money for the benefit of another insurer." E.g. , Am. Nat'l Fire Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. , 343 Ill.App.3d 93, 277 Ill.Dec. 767, 796 N.E.2d 1133, 1136 (2003). And Starr did actually pay the deductible amounts due to the particulars of the deductible agreement, which required Starr to pay the claims in the first instance and then seek reimbursement from Lend Lease. Moreover, by paying those amounts, Starr did benefit TIC. As a result, all else being equal, the Court likely would conclude that TIC was liable for the full amount of the deductible.
While neither party cited the case, the Court finds the Seventh Circuit's decision in Taco Bell Corp. v. Continental Casualty Co. , 388 F.3d 1069 (7th Cir. 2004), to be analogous. That case involved two coinsurers, Continental and Zurich, that had shared a duty to cover their insured's litigation *729defense costs. Zurich's insurance policy contained a self-insurance retention clause whereby the insured would pay the first $ 2 million of any defense costs; Continental's policy did not contain any such provision. Id. at 1075. Initially, Continental paid the insured's defense costs, but it then sought half of those costs from Zurich. However, the Seventh Circuit held that a fifty-fifty method of allocation was inappropriate as "Continental did not negotiate a self-retention provision and is not entitled to benefit from Zurich's provision." Id. Thus, the Seventh Circuit held that Zurich could subtract $ 2 million from the amount it was required to reimburse Continental. Id. Like Zurich, here, Starr negotiated the deductible provision shielding it from coverage up to $ 500,000 per accident whereas TIC's policy did not limit its exposure whatsoever. Applying the Taco Bell court's allocation method, TIC would be liable for the $ 500,000 deductible plus its one-half share of the amounts Starr paid over the deductible, for a total of $ 541,500.
Several other cases from outside this Circuit have similarly concluded that an insurer without a deductible, or with a smaller deductible than its coinsurer, is liable for the difference. Starr relies heavily on Pacific Power & Light Co. v. Transport Indemnity Co. , 460 F.2d 959 (9th Cir. 1972). There, the insured was protected by two insurance policies, but one policy had a $ 25,000 deductible provision. When the insured incurred damages approximately equal to $ 25,000, it bore those costs itself and then sought reimbursement from its insurer without a deductible, arguing that it was obligated to pay the entire sum. When that insurer refused to reimburse the insured, the insured initiated a breach of contract action. The Ninth Circuit held that both insurers had a duty to indemnify the insured, and that the insured's loss would be prorated fifty-fifty between its two insurers, "with the deductible feature resolved between [the insurer with the deductible] and the insured." Id. at 962 & n.5. The Ninth Circuit further noted as to the deductible that "[o]nly one of [the two insurers] bargained for the deductible provision," and the court thus declined to allow the insurer without a deductible to "receive[ ] it as a windfall." Id. at 962 n.5. Other courts have disagreed with Pacific Power to the extent that the court prorated the loss between the two insurers, instead holding the insurer without a deductible (or a smaller deductible) liable for the entire amount of the other insurer's deductible (or the difference between the two deductibles). See Cargill, Inc. v. Commercial Union Ins. Co. , 889 F.2d 174, 180 (8th Cir. 1989) ; Ins. Co. of N. Am. v. Cont'l Cas. Co. , 431 F.Supp. 316, 319 (E.D. Pa. 1977), rev'd on other grounds , 575 F.2d 1070 (3d Cir. 1978). Nonetheless, those courts agreed with Pacific Power that an insurer without a deductible does not get to enjoy the benefit of a coinsurer's deductible. But instead of prorating the loss, they allocated the full amount of the coverage gap to the insurer without a deductible (or with a smaller deductible).
The present matter does not come before this Court on a blank slate, however. Indeed, Lend Lease has already fully reimbursed Starr for the amounts Starr paid within the deductible. It then unsuccessfully attempted to recover the deductible from TIC in the earlier lawsuit. In the present action, Starr and TIC are the only parties and Starr is asking the Court to order TIC to reimburse it for a sum for which Starr has already been fully reimbursed. By contrast, in Pacific Power , the insured instituted a direct action against its insurer. See Pacific Power , 460 F.2d at 960. Similarly, in Taco Bell, Cargill , and another case relied upon by Starr, Keene Corp. v. Insurance Co. of North America , No. 78-1011, 1983 U.S. Dist. LEXIS 16944 (D.D.C. May 13, 1983), the insured was a *730party to the action. And while Insurance Co. of North America v. Continental Casualty Co. , 431 F.Supp. 316, 317 (E.D. Pa. 1977), was between only the coinsurers, neither insurer had paid any sum to the insured and were instead seeking an adjudication of their respective liabilities. Thus, in those cases, the courts were able to make a fair allocation of the disputed sums between the coinsurers and their insured.
That is not possible here due to the procedural history and the cause of action asserted. Because Lend Lease reimbursed Starr for payments up to its deductible, it is Lend Lease that has paid more than its share of the loss. And if TIC is in fact a coinsurer, it should have been liable to Lend Lease for at least a portion of the deductible.4 Thus, it is Lend Lease that is interested in recovering the deductible. But Lend Lease is not a party here. Starr is the plaintiff and it has already been made whole-recovering the deductible would be a windfall to it. Furthermore, as discussed above, Starr cannot represent Lend Lease's interests here, as Starr's claim is for equitable contribution, which may only be brought by one insurer against another insurer. See Lend Lease II , 840 F.3d at 387 ; Lend Lease I , 2016 WL 147895, at *3. Moreover, "[s]uch an action is based in equity and does not depend upon the contractual rights of the insured." Progressive Ins. Co. v. Universal Cas. Co. , 347 Ill.App.3d 10, 282 Ill.Dec. 953, 807 N.E.2d 577, 585 (2004). Thus, the Court does not believe it is appropriate to consider Lend Lease's interests when equitably allocating the disputed sum between its two insurers. That is especially true where Lend Lease has had its chance to litigate the proper allocation of the deductible, and its case was dismissed with prejudice after Lend Lease failed three times to plead a proper claim.
This Court takes no issue with those courts that have held that an insurer is not entitled to enjoy a windfall from a deductible provision agreed to by another insurer and its insured. Yet here, the Court cannot rule in such a way as to eliminate such a windfall. TIC may well enjoy a windfall if it is liable only for its share of the sums paid in excess of the deductible, but the most the Court can do is shift that windfall from TIC to Starr. The Court does not believe that such a resolution is more equitable than the status quo. And Starr has not explained why allowing it to recover sums for which it has already been reimbursed is an equitable result. That is likely because Starr knows that it will not retain any recovery of the deductible for itself. Indeed, Starr concedes that, "as part of the deductible agreement, Starr explicitly agreed to repay Lend Lease in certain situations where Starr obtains a recovery after the deductible has been paid." (Pl.'s Reply in Support of Mot. for Partial Summ. J. at 13 n.9, Dkt. No. 78; see also Aff. of Baer, Ex. 1 at STARR000011.) Nonetheless, Starr insists that what it "might do with any recovery simply does not impact TIC's obligations as a co-insurer."(Pl.'s Reply in Support of Mot. for Partial Summ. J. at 13.) But that argument cuts both ways: the Court also cannot consider the possibility that Starr will refund any recovery of the deductible to Lend Lease in determining what is equitable with respect to Starr. As discussed above, the Court may only consider the equities as between the two parties before it in this action. And Starr, having already been reimbursed for what it paid within the deductible, is entitled to no more.
*731In making its case for contribution, Starr analogizes the reimbursement it received from Lend Lease to a collateral source payment to a tort victim. The collateral source rule provides that "benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor." Arthur v. Catour , 216 Ill.2d 72, 295 Ill.Dec. 641, 833 N.E.2d 847, 851 (2005). For example, if a tort victim receives an insurance payment for his injury, that payment will not reduce the tortfeasor's liability in a subsequent action. See Wilson v. Hoffman Grp., Inc. , 131 Ill.2d 308, 137 Ill.Dec. 579, 546 N.E.2d 524, 530 (1989). Illinois courts recognize that the collateral source rule presents an exception to the general rule against double recovery. E.g. , Chuttke v. Fresen , 416 Ill.Dec. 978, 86 N.E.3d 1263, 1267 (Ill. App. Ct. 2017). "The justification for this rule is that the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons." Wilson , 137 Ill.Dec. 579, 546 N.E.2d at 530. Starr contends that the same rationale applies here: TIC should not be able to benefit from the fact that Starr made a deal with Lend Lease whereby Starr received reduced premiums in exchange for Lend Lease's exposure to the first $ 500,000 of workers' compensation claims per accident.
The Court finds that the rationale underlying the collateral source rule does not apply with the same force in an action for equitable contribution. In particular, the rule focuses on the wrongdoer and payments made by the wrongdoer to compensate for injuries that he or she caused. Where an individual causes harm, he or she should not be absolved of liability for that harm because the injured party happened to be covered by insurance. See Arthur , 295 Ill.Dec. 641, 833 N.E.2d at 852 ("But it is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor" (quoting Restatement (Second) of Torts § 920A, Comment b).) However, courts generally only apply the rule where "the payment by the collateral source would not have been made 'but for' the injury caused by the tortfeasor." Atmel Corp. v. St. Paul Fire & Marine Ins. Co. , 430 F.Supp.2d 984, 987 (N.D. Cal. 2006) (applying California law). That is not the case in an equitable contribution action where an insurer is seeking contribution from a coinsurer for a payment made to cover an insured's injury caused by some third party. TIC is not a wrongdoer in the same sense as a tortfeasor whose negligence or intentional acts caused the insured harm. Indeed, TIC had no role whatsoever in causing Lend Lease to reimburse Starr for the amounts paid within the deductible. Rather, that payment was triggered by the ironworkers' injuries and made pursuant to Lend Lease's workers' insurance policy with Starr and the associated deductible agreement. Given the nature of the cause of action and the present facts, the Court cannot justify departing from the general rule against double recovery.
The Court is also not persuaded by Starr's analogizing its deductible agreement to a reinsurance contract. Specifically, Starr claims that reinsurance is not a factor in a contribution action between coinsurers because the direct insurance policy and the reinsurance contract agreement are two separate contracts. In the same way, Starr's deductible agreement is separate from its insurance policy with Lend Lease. Yet Starr provides no authority for its assertion that reinsurance is not a factor in a contribution action. And in any case, there is no basis for concluding that Starr's insurance policy with Lend Lease is a separate contract from the deductible *732provision. The deductible provision is contained within the same policy and is between the policy's insured and insurer.5 A reinsurance contract is simply not comparable, as it generally is a separate contract from the direct insurance policy with no identity between the reinsurer and the direct insurer's insured.
In sum, the Court determines that, based on the facts before it, Starr is not entitled to contribution from TIC for any portion of the amounts Lend Lease reimbursed to Starr pursuant to their workers' compensation insurance policy's deductible agreement. Because Starr has been made whole by Lend Lease, it no longer has any interest in the deductible. Consequently, the Court holds that Starr may not include the $ 500,000 deductible in its claim for equitable contribution from TIC.
CONCLUSION
For the foregoing reasons, Starr's motion for partial summary judgment (Dkt. No. 59) is denied and TIC's motion for partial summary judgment (Dkt. No. 72) is granted.
The Court pauses here to note that the core factual dispute between the parties concerns AES's status as Midwest's co-employer and AES's obligation to provide workers' compensation insurance for Midwest employees. Specifically, TIC argues that Starr relies on an incorrect version of the Client Services Agreement, and the operative agreement governing Midwest's relationship with AES during the times relevant to this action did not obligate AES to provide workers' compensation insurance for Midwest's employees. (DRSUF ¶¶ 19-20.) For present purposes, the Court accepts Starr's version of the disputed facts, because the legal issue presented in the cross-motions arises only if the factual disputes are later resolved in Starr's favor.
The original complaint also named AES as a party. However, this Court dismissed AES from the action because the waiver of subrogation clause in the Midwest-AES contract precluded Starr from bringing claims against AES as subrogee to Midwest. (Mem. Op. and Order on Mot. to Dismiss at 4-8, Dkt. No. 41); Starr Indem. & Liab. Co. v. Tech. Ins. Co. , No. 16-cv-09553, 2017 WL 4340177, at *2-4 (N.D. Ill. Sept. 30, 2017).
The Court has rounded the total amounts at issue. The exact amount to which TIC claims Starr is potentially entitled is $ 41,522.59.
Because the Court finds that Starr is not entitled to recover any part of the deductible from TIC, the Court need not conclusively determine whether TIC would have been required to reimburse the entire $ 500,000 deductible or only a prorated portion of that amount.
The policy's deductible provision is set out in a Deductible Coverage Endorsement. (See Aff. of Baer, Ex. 1 at STARR 000009-11.) The endorsement lists the policy number as 900 0005000 00, which is the same policy number associated with the underlying policy. (Compare id. at STARR 000009 with STARR 000088.) The underlying policy also clearly states that the policy may only be changed "by endorsement issued by us to be part of this policy ." (Id. at STARR 000100 (emphasis added).) | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1336542/ | 194 Ga. App. 375 (1990)
390 S.E.2d 607
BUDGET-LUXURY INN OF DAYTON, LTD. et al.
v.
KAMASH ENTERPRISES, INC.
A89A2224.
Court of Appeals of Georgia.
Decided January 16, 1990.
Rehearing Denied February 2, 1990.
Slaughter & Virgin, Frank W. Virgin, for appellants.
Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, for appellee.
McMURRAY, Presiding Judge.
On June 20, 1986, plaintiff Kamash Enterprises, Inc., and defendant Budget-Luxury Inn of Dayton, Ltd., executed a "letter of commitment" pursuant to which plaintiff agreed to purchase certain property from defendant for the sum of $900,000. The property was described as the "Admiral Benbow Hotel (excluding garage), 3rd and Jefferson Street, Dayton, Ohio." The agreement provided that the closing was "contingent upon inspection and approval of the statements of accounts of the hotel and inspection and approval of the property itself within 14 days of the acceptance of this Letter of Agreement by all parties." With regard to earnest money, the agreement provided: "Upon the signing of this agreement, the purchaser shall remit the sum of $50,000 earnest money to Uni-Real, Inc. (a Georgia Licensed Broker) to be thereafter held by Uni-Real, Inc., until the removal of the 14-day contingency period herein above referred to and then shall be deposited into a trust account of Escrow Agent To be appointed for closing (Chicago Title & Insurance Co.)." Pursuant to the commitment letter, plaintiff remitted a $50,000 check made payable to defendant Uni-Real, Inc., and endorsed as follows: "For deposit only in escrow acct."
Thereafter, the parties amended their agreement in order to reduce the total price of the property to $800,000. In a July 10, 1986, letter confirming the parties' understanding, the president of defendant Uni-Real, Inc., set forth the new terms of payment. In so doing, he added: "As per your agreement, we will deposit your check in the amount of $50,000, which is your non-refundable earnest money deposit, and this will apply in full against the purchase price." Plaintiff acknowledged and agreed to the new terms set forth in the July 10, 1986, letter by signing it.
Thereafter, the parties failed to close and, on August 5, 1986, plaintiff demanded the return of the earnest money. Defendants refused to return the earnest money and plaintiff instituted suit seeking the return of the earnest money plus interest from August 5, 1986. Defendants answered the suit and denied any liability to plaintiff.
The case was tried by the court sitting without a jury. With regard to the character of the earnest money, the president of defendant Uni-Real, Inc., testified: "I think the intent in this instance was not as a reimbursement for any economic out of pocket expense, but it was an effort on the part of the seller to see if the buyer was dead serious in this transaction to take this property off of the market for what amounted to six to eight weeks." He added that the $50,000 figure "was an arbitrary number that ... the seller suggested."
*376 After trial, judgment was entered in favor of plaintiff and against defendants, the trial court reasoning that the agreement was unenforceable because the description of the property was not set forth with sufficient certainty to identify and quantify the land in question. Defendants appeal, asserting (1) the trial court should not have considered the sufficiency of the legal description because that was not an issue at trial and (2) the trial court erred in ruling the legal description to be insufficient. Held:
"Depending on the language used in the contract and the intent of the parties, the existence of an earnest money provision in a real estate contract can have one of three effects in the case of a breach by the buyer. First, the money could be considered as partial payment of any actual damages which can be proven as a result of the breach; second, the money could be applied as part payment of the purchase price in the enforcement of the contract in a suit for specific performance; and thirdly, the money could be liquidated damages for breach of the contract by the buyer." Everett Assoc. v. Garner, 162 Ga. App. 513, 515 (291 SE2d 120). In the case sub judice, defendants seek neither actual damages nor specific performance. Thus, defendants can justify retaining the money only if it constitutes liquidated damages.
"A contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach. See Thorne v. Lee Timber Prods., 158 Ga. App. 226, 227 (279 SE2d 521) (1981), citing Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976)." Broadcast Corp. of Ga. v. Subscription Television, 177 Ga. App. 199 (338 SE2d 775). Based on the evidence adduced at trial, at least two of the three factors required for a finding of liquidated damages are missing: the intention to provide for damages and the estimate of the probable loss. The testimony of defendant Uni-Real, Inc.'s president makes this clear. In his words, the $50,000 figure bore no relation to estimated damages; rather, it was an arbitrary number high enough to ensure that the buyer would go through with the deal.
Because the earnest money in the case sub judice was clearly an unenforceable penalty, Florence Wagon Works v. Salmon, 8 Ga. App. 197 (2) (68 S.E. 866), we need not consider whether the trial court erred in its consideration of the description set forth in the letter of commitment. Whether or not the trial court erred is of no consequence *377 since there is no evidence in the record which would authorize a judgment for defendants. See Ricks v. Redwine, 73 Ga. 273 (2a) (1884); Scales v. Wood, 100 Ga. App. 836, 837 (4) (112 SE2d 670).
Judgment affirmed. Carley, C. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336544/ | 390 S.E.2d 509 (1990)
Dennis Lee HUDSON
v.
COMMONWEALTH of Virginia.
Record No. 0978-88-1.
Court of Appeals of Virginia.
April 3, 1990.
*510 Allan D. Zaleski (Robinson, Zaleski & Lindsey, Norfolk, on brief), for appellant.
Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and JOSEPH E. BAKER and COLEMAN, JJ.
JOSEPH E. BAKER, Judge.
Dennis Lee Hudson (appellant) appeals his bench trial conviction for statutory burglary and larceny. He argues that the trial court erred in refusing to grant his motion to disregard the Voluntary Sentencing Guidelines being tested[1] in a pilot program developed by six circuit court judges pursuant to the direction of the Virginia Supreme Court.
Immediately following his conviction, appellant moved for a presentence report as provided for in Code § 19.2-299. At the presentence hearing appellant made the following objection:
I want to note an objection to the guidelines in general. I think that they are in violation of section 19.2-299 which relates to preparation and use of presentence reports by the Court ... the Court should ignore the guidelines and not use them at all.... The section 19.2-299 covers the preparation and use of presentence reports. It says the purpose is to use [them] in order that the Court can be fully advised as to an appropriate sentence to be imposed. I seize on the word fully. If the Court is fully advised by the presentence report and testimony at the hearing, it should not have anything else to use in the sentencing process.... The use of the guidelines is not authorized by statute.... by inference cannot be used by statute. Therefore, we would object to the attachment of the three guideline sheets to the presentence report.
In overruling appellant's motion, the trial court responded that the "guidelines as we have them now are not binding but used as a tool. Another factor that can be considered and the Judge can use as he sees fit." That response reflects the clear intent of the Judicial Sentencing Guidelines Oversight Committee, the committee of six circuit court judges and, significantly, that of the Supreme Court of Virginia. We reject appellant's contention that use of the voluntary sentencing guidelines violates Code § 19.2-299; thus, we affirm the judgment of the trial court.
Appellant argues that the provisions of Code § 19.2-299 prohibit the use of guidelines instituted by judicial edict, and asserts that if a pilot program involving sentencing guidelines is to be instituted it only can be by legislative action, not by judicial implementation. We find no such prohibition in Code § 19.2-299. The portion of that statute relied on by appellant provides in pertinent part:
Investigations and reports by probation officers in certain cases. A. when a person is tried upon a felony charge and is adjudged guilty of such charge, the court may, or on the motion of the defendant shall, before imposing sentence direct a probation officer of such court to thoroughly investigate and report upon the history of the accused and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed.
The legislature has set the range for punishment for those who violate the larceny and statutory burglary code provisions. In establishing the sentencing range it endowed the trial court with inherent and discretionary power to impose appropriate sentences. Here, the sentence was not only within the range set by the legislature, it was less than the average sentence for the offense as specified by the guidelines. If the sentence is within the range set by the legislature, an appellate court will not interfere with the judgment. In McCann v. Commonwealth, 174 Va. 429, 448, 4 S.E.2d 768, 775 (1939), the Court said:
*511 It is an established rule in this jurisdiction that when the punishment ascertained by the jury is within the limitations fixed by the statute governing the crime charged in the indictment, this court will not interfere with a judgment carrying into effect the verdict of the jury.
See also Perry v. Commonwealth, 208 Va. 283, 289, 156 S.E.2d 566, 571 (1967).
Moreover, Code § 19.2-299 provides that the probation officer shall, among other things, report "all other relevant facts." A relevant "other fact" may well be information concerning the average sentence imposed on others convicted of similar crimes. If, as appellant argues, the word "fully" contained in Code § 19.2-299 means the trial court "should not have anything else to use in the sentencing process" except the probation report, the trial court would not be able to consider the evidence heard during the course of the trial. We hold that in enacting Code § 19.2-299 the legislature did not intend to thus limit the trial court. When the sentence imposed by the trial court is within the statutory range established by the legislature, use of the guidelines as a "tool" to assist the court in determining the appropriate sentence does not violate Code § 19.2-299.
For the reasons stated, we affirm the judgment of the trial court.
Affirmed.
NOTES
[1] The Circuit Court of the City of Norfolk is one of the six courts specifically selected to test the guidelines. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336523/ | 301 S.C. 94 (1990)
390 S.E.2d 372
Harold H. WALL, Respondent
v.
David HUGUENIN, individually and as Trustee, Cathy Armstrong, Julius A. Huguenin and Edward U. Huguenin, Appellants.
1463
Court of Appeals of South Carolina.
Heard January 23, 1990.
Decided February 20, 1990.
*95 Darrell Thomas Johnson, Jr., Hardeeville, Robert W. Dibble, Jr., of McNair Law Firm, and Stephen A. Spitz, Columbia, for appellants.
Gary D. Brown, Ridgeland, and James B. Richardson, Jr., of Richardson & Smith, Columbia, for respondent.
Heard Jan. 23, 1990.
Decided Feb. 20, 1990.
CURETON, Judge:
In this action to quiet title the circuit court confirmed the special referee's findings that Wall owns the roads and a duck pond on property he had purchased from the Huguenin family. The Huguenin family also appeals the circuit court's confirmation[1] of the special referee's finding that laches barred them from enforcing an option to purchase a portion of the property. We affirm.
During the period 1972-74, Harold Wall and his brothers[2] acquired three tracts of land from Edward P. Huguenin, the father of the appellants. The tracts consisted of 193 acres, 530 acres, and 112 acres (less two acres retained for a home place). The deed to this third tract states the acreage conveyed was 101.161 acres. The referee found an error in transposition and concluded the acreage should have read 110.161 acres because the full tract of 112.161 acres minus two acres for the home place equals 110.161.
*96 The initial hearing before the special referee focused on ownership of the duck pond and of the road from S.C. Highway 462 to the driveway leading to the property now owned by the Huguenin family.[3] A supplemental hearing before the referee focused on the validity and enforceability of an option held by the Huguenin family.
The issues raised on appeal are whether the referee's findings are without evidentiary support or against the a clear preponderance of the evidence. The referee found (1) laches bars the Huguenins from enforcing the option to repurchase a portion of the property; (2) the duck pond was conveyed as a part of the October 7, 1974, conveyance from the father to Wall; and (3) Wall owns the road that runs from S.C. Highway 462 through his property.
An action to quite title is an equitable action. Bryan v. Bryan, 285 S.C. 434, 330, S.E. (2d) 310 (Ct. App. 1985). In an equity action tried by a special referee, whose findings are concurred in by a circuit judge, the concurrent findings will not be disturbed on appeal unless found to be without evidentiary support or against the clear preponderance of the evidence. Ex Parte Guaranty Bank & Trust Co., 255 S.C. 106, 177 S.E. (2d) 359 (1970); Townes Associates Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E. (2d) 773 (1976).
OPTION
The option in controversy was dated October 7, 1974. It was between Weldon Wall, brother of respondent and a former part owner of the property, in question, and Edward Huguenin, Jr. It granted to the father an openended right to buy back some of the land conveyed by him to the Walls.[4] Following the referee's report in the first hearing, the Huguenins attempted to exercise this option. Wall moved to reopen the hearing to consider the validity and *97 enforceability of the option. The referee reopened the hearing. After taking testimony he found the option valid but unenforceable because of laches. The referee cited the case of Lindler v. Adcock, 250 S.C. 383, 158 S.E. (2d) 192 (1967), for the proposition that the 13 year delay by the Huguenins in exercising the option was unreasonable.
The Huguenins argue the referee and trial judge erred in applying laches because Wall did not establish the elements of laches. They argues the delay was reasonable and the referee erred in imposing a 10 year period as the yardstick for determining whether laches had occurred. We agree the cases do not impose a hard and fast 10 year rule. However, under the facts of this case, we agree with the referee that the 13 year delay was unreasonable. Lindler, 250 S.C. 383, 158 S.E. (2d) 192 (an option must be exercised in a reasonable period of time if no time is specified).
The Huguenins also argue the facts of this case do not show the delay was inexplicable and negligent. In support of this argument they argue their father was never in a financial position to exercise the option. They also argue Wall effectively precluded the exercise of the option by heavily mortgaging the property thus making it impractical to obtain a release of the property from the mortgage. The referee found the financial condition of the father did not constitute an excuse for failure to exercise the option. He also found the mortgage on the property did not prevent the Huguenins from exercising their option rights. These findings are not without evidentiary support or against the clear preponderance of the evidence. The Huguenins have not shown Wall would have been unable to obtain a release of the property from the mortgage. Likewise, the fact the father was financially unable to exercise the option during his lifetime is not the fault of Wall.
The Huguenins also argue it was inappropriate for the referee to consider the validity and enforceability of the option because the pleadings do not raise that issue. We disagree. Wall made a motion before the referee to reopen the hearing to consider the issue after the Huguenins attempted to exercise the option. The record shows no objection to or appeal of the referee's order reopening the hearing. The record also shows the Huguenins acquiesced in the *98 supplementary hearing which all parties understood was held to dispose of unsettled issues in the quiet title action. Furthermore, the complaint is broad enough to comprehend a challenge to the validity of the option.
We summarily reject the Huguenins arguments that laches was inappropriate because Wall came into court with unclean hands. This argument is manifestly without merit and we dispose of it under S.C. Code Ann. Section 14-8-250 (Cum. Supp. 1989).
DUCK POND
The Heguenins argue the referee was in error in finding Wall was the owners of an 11.206 acre parcel of land known as the Duck Pond. Their argument is that a 1974 deed from the father to Wall did not convey the Duck Pond property. Whether or not the tract of land passed under the 1974 deed is not dispositive. The referee also found Wall now owns the tract by adverse possession. No exception or argument challenges this ruling. An alternative ruling of a lower court that is not excepted to constitutes a basis for affirming the lower court and is not reviewable on appeal. Moody v. McLellan, 295 S.C. 157, 367 S.E. (2d) 449 (Ct. App. 1988).
ROAD FROM HIGHWAY 462
As noted previously, Wall received the property by three deeds. The subject road lies within property formerly contained in either or both the 193 acre tract and the 530 acre tract. The 193 acre tract makes up the northernmost part of the entire tract and was deeded by the father to Wall in 1972. The property description in the deed gives as its southern boundary lands "now or formerly of Huguenin." The 530 acre tract which is situated generally south of the 193 acre tract gives as its northern boundary the 193 acre tract. The other tract consisting of approximately 110 acres lies generally east of the 530 acre tract. A plat depicts the questioned road as running generally along a portion of the boundary between the 193 and the 530 acre tracts. The deed makes no reference to the road. The deed to the 530 acre tract contains the following language following the description.
*99 Also right of ingress and egress over the driveway of the said Edward P. Huguenin, Jr. leading from S.C. Highway No. 462 to his home and the right of ingress and egress over the old road leading from S.C. Highway No. 19 along the property line of that property being retaining by the said Edward P. Huguenin, Jr.
Additionally, by a 1981 deed, the father conveyed an easement over the subject road to Daniel E. Henderson. A dispute arose between Henderson and Wall over the use of the road. Henderson filed suit against Wall. The suit was settled by a consent order. The consent order reads in pertinent part:
[Wall] further recognizes the validity of [Henderson's] Easement over and across the dirt road leading from S.C. Highway 462 to the point of beginning referred to above; further, and in addition to the above, [Wall] recognizes and admits the validity of [Henderson's] Easement duly recorded in the Office of the Clerk of Court for Jasper County in Deed Book 83, at page 562.
The Huguenins argue the combined import of the 1972 deed and the consent order together with the father's use and maintenance of the road demonstrate their father intended to retain ownership of the road and the 1972 deed granted to Wall only an easement to use it. The referee rejected this argument and held the 1972 deed conveyed all property contained within its description to include the road. He concluded the language in the 1972 deed regarding an easement "refers to an additional right of ingress and egress to the Grantees, being the Walls...."
The plat of the acreage does not depict the area of the road as a separate track. No metes and bounds for the road are shown. This is important considering Wall's testimony the property was purchased on a per acre basis and no deduction was made for the property contained in the road. Additionally, Wall and other witnesses testified without contradiction that the easement in the 1972 deed referred to a 750 foot driveway located on property retained by the father in 1972 and not to the road in question. Finally, the Huguenins admitted they had never received a tax notice for the property contained in the road.
*100 While the 1972 deed is not made a part of the record, we assume it contained the usual language in the granting clause. Wall argues the effect of the easement language is to lessen the otherwise fee simple estate previously granted. In construing a deed the intention of the grantor must be ascertained and effectuated, unless that intention contravenes some well-settled rule of law or public policy. Wayburn v. Smith, 270 S.C. 38, 239 S.E. (2d) 890 (1977). Any ambiguity in a deed is construed against the grantor. Ward v. Woodward, 287 S.C. 343, 338 S.E. (2d) 347 (Ct. App. 1985). In case of conflict between two provisions in a deed, the last shall yield to the first and the first is to be given its full effect. Glasgow v. Glasgow, 221 S.C. 322, 70 S.E. (2d) 432 (1952).
Considering the facts of this case in light of the settled rules of construction discussed above, we cannot say the referee's findings were without evidentiary support or against the clear preponderance of the evidence. Accordingly, the order of the trial court is affirmed.
Affirmed.
SANDERS, C.J., and GARDNER, J., concur.
NOTES
[1] Hereafter, when we refer to the referee's decision we refer to the concurring decisions of both the circuit court and the referee.
[2] The brothers subsequently conveyed their interests to Wall.
[3] While the referee and court found that another road or path was also owned by Wall, no argument is made in the appellants' brief concerning the ownership of that road or path. Thus, it presents no issue on appeal.
[4] Respondent, Harold Wall, claimed he had no knowledge of the option. However, the referee found he and his brother Weldon were joint adventurers in the purchase of the property and, under agency principles, knowledge to Weldon would be implied to Harold. Harold does not challenge this conclusion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336529/ | 390 S.E.2d 775 (1990)
Michael Larry FARMER
v.
COMMONWEALTH of Virginia.
Record No. 0532-88-3.
Court of Appeals of Virginia.
April 10, 1990.
Rehearing En Banc Granted June 6, 1990.
Michael J. Barbour (Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, on brief), for appellant.
Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and BARROW and MOON, JJ.
KOONTZ, Chief Judge.
In a January 8, 1988 bifurcated trial by jury, Michael Larry Farmer, appellant, was convicted of driving under the influence (DUI), a third or subsequent offense within five years in violation of Code § 18.2-266, *776 and of driving after being declared an habitual offender in violation of Code § 46.1-387.8. In this appeal, Farmer argues that the trial court erred by admitting evidence of his prior DUI convictions during the guilt stage of the trial and by admitting evidence of his refusal to perform field sobriety tests.[1] We find that the trial court did not err by admitting evidence of Farmer's prior DUI convictions, but did err in admitting evidence of Farmer's refusal to submit to field sobriety tests.
I. FACTS
At approximately 2:16 a.m. on August 2, 1986, Deputy Sheriff Robert Hoback of the Pulaski County Sheriff's Department observed a purple AMC drive past him in the opposite direction. Hoback recognized the driver of the vehicle as Farmer, whom he had known approximately twenty years. Because Hoback knew that Farmer did not possess a valid driver's license, he turned to pursue Farmer. As Hoback pursued the vehicle, it sped up before turning into a gas station and coming to a stop. Officer Hoback parked his vehicle behind Farmer's and approached Farmer's vehicle. Hoback discovered Farmer in the back seat and his companion in the front passenger seat; no one was in the driver's seat.[2] Hoback testified that he detected a strong odor of alcohol when he assisted Farmer out of the vehicle. According to Hoback, Farmer was unsteady on his feet, was weaving, had slurred speech and glassy eyes, used abusive language, and had a strong odor of alcohol on his breath. On cross-examination, Farmer admitted that he had consumed six to ten beers over a period of several hours that night. Over Farmer's objection, Officer Hoback testified that Farmer refused to perform the requested field sobriety tests.
The Commonwealth requested and was granted a bifurcated trial. During the guilt phase of the trial, the Commonwealth introduced evidence of Farmer's prior DUI convictions. Farmer's entire traffic record, which included the prior DUI offenses and various other traffic infractions, was introduced during the sentencing phase of the trial.
II. EVIDENCE OF PRIOR DUI CONVICTIONS
Farmer first alleges that the trial court erred by admitting evidence of his prior DUI convictions during the guilt phase of his bifurcated trial for DUI as a third or subsequent offense within five years. Farmer argues that evidence of prior DUI convictions is not part of the substantive offense of driving under the influence in violation of Code § 18.2-266 made punishable by Code § 18.2-270, and, therefore, is not admissible in the guilt stage of a bifurcated trial in accordance with Code § 46.2-943 (formerly Code § 46.1-347.2). We do not construe Code § 46.2-943 as precluding evidence of prior DUI convictions in the guilt stage of a trial for DUI as a third or subsequent offense. Further, we hold that evidence of prior DUI convictions is necessary to prove the substantive offense of driving under the influence as a third or subsequent offense, and therefore, is admissible during the guilt stage of a bifurcated trial.
Code § 46.2-943 allows for a bifurcated trial for traffic offenses and provides, in pertinent part, that "[w]hen any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law." (emphasis added). The purpose of a bifurcated trial is to allow the trier of fact to *777 consider the prior traffic record of the accused for sentencing purposes while avoiding the risk of prejudice to the accused when determining guilt or innocence. Thus, Farmer correctly asserts that evidence of the prior traffic record of the accused is admissible only in the sentencing phase of a bifurcated trial, since allowing it in the guilt phase of a trial would undermine the purpose of Code § 46.2-943. However, we disagree with Farmer's contention that evidence of prior DUI convictions, standing alone, is not admissible during the guilt phase of a trial where the offense is charged as a third or subsequent offense pursuant to Code §§ 18.2-266 and 18.2-270. Evidence of prior DUI convictions and evidence of prior traffic records are not the same. Traffic records as contemplated by Code § 46.2-943 contain prior suspensions and revocations of a driver's license and prior convictions of moving traffic violations, including, but not limited to, DUI convictions. Thus, while evidence of a prior DUI conviction may be a part of a traffic record, such evidence does not necessarily constitute the traffic record for purposes of the application of Code § 46.2-943.
In the present case, at the guilt stage of the trial, the Commonwealth introduced evidence by "Commonwealth Exhibit # 1" of Farmer's prior DUI convictions in 1982, 1985 and 1986, respectively. Farmer's prior traffic record, which contained convictions of numerous other traffic violations, was produced by "Commonwealth Exhibit # 6" and was not introduced until the sentencing stage of the trial. This procedure is consistent with the provisions of Code § 46.2-943. This Code section prohibits the introduction of the entire traffic record during the guilt stage of a bifurcated trial. Because we find that evidence of a prior DUI conviction is independent of the traffic record and was appropriately introduced in this case, we hold that evidence of the prior DUI convictions was admissible during the guilt phase of Farmer's trial.
Evidence of prior DUI convictions is necessary during the guilt stage of a trial for DUI as a third or subsequent offense in order for the Commonwealth to meet its burden of proof. As the Commonwealth asserts, it "is entitled to prove the elements set forth in the [warrant], and proof of the [DUI charge as a third or subsequent offense under Code § 18.2-266] required proof of the previous conviction[s] for [DUI]." Glover v. Commonwealth, 3 Va. App. 152, 161, 348 S.E.2d 434, 441 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988). Indeed, in Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)), our Supreme Court held that "[f]or the heavier punishment to be imposed by the jury or the court trying the case without the jury, `the prior offense must be charged and proven.'"
The arrest warrant charged Framer with unlawfully operating a motor vehicle while intoxicated as a third or subsequent offense within five years in violation of Code § 18.2-266. To convict Farmer of the offense charged, the Commonwealth was required to present evidence to prove that Farmer previously had been convicted on two or more occasions of driving under the influence within a five year period. The jury was properly instructed that in order to convict Farmer of the offense charged, the Commonwealth had to prove that Farmer was driving a motor vehicle, was under the influence at the time of driving the vehicle, and had two or more prior DUI convictions within the past five years. Not only would the Commonwealth necessarily fail to meet its burden of proof if evidence of prior DUI convictions was not admitted, but the trial court could not properly instruct the jury on the elements of the charge of driving under the influence as a third or subsequent offense if the Commonwealth was not permitted to introduce evidence of the prior DUI convictions during its case in chief.
In summary, we hold that evidence of prior DUI convictions does not constitute the "traffic record" as contemplated by Code § 46.2-943 where the offense charged under Code § 18.2-266 is a subsequent offense of DUI punishable under Code § 18.2-270. We further hold that proof of *778 such charge requires proof of the prior DUI convictions. For these reasons, the trial court did not err in admitting evidence of Farmer's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial.
III. REFUSAL TO SUBMIT TO FIELD SOBRIETY TESTS
Farmer also argues that his right against self-incrimination under the United States and Virginia Constitutions was violated when the trial court admitted evidence of his refusal to submit to field sobriety tests. Although this is an issue of first impression in Virginia, it has been addressed by several of our sister states and by the United States Supreme Court.
The fifth amendment to the United States Constitution, as applied to the states through the fourteenth amendment, provides that no person shall be compelled to be a witness against himself in a criminal trial. Similarly, Article I, § 8 of the Virginia Constitution provides that no person shall "be compelled in any criminal proceeding to give evidence against himself...." The fifth amendment protection against self-incrimination extends only "to testimonial or communicative evidence and does not protect one from being compelled to produce nontestimonial evidence." State v. Neville, 346 N.W.2d 425, 429 (S.D. 1984) (quoting State v. Maher, 272 N.W.2d 797, 799 (S.D.1978)). See also Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966); Deering v. Brown, 839 F.2d 539, 541 (9th Cir.1988); United States v. Williams, 704 F.2d 315, 317 (6th Cir.1983); State v. Theriault, 144 Ariz. 166, 167, 696 P.2d 718, 719 (Ct.App. 1984); Walton v. City of Roanoke, 204 Va. 678, 681-82, 133 S.E.2d 315, 317-18 (1963). "Testimonial" evidence for fifth amendment purposes is "evidence which reveals the subject's knowledge or thoughts concerning some fact." Commonwealth v. Brennan, 386 Mass. 772, 778, 438 N.E.2d 60, 64 (1982). "[T]he prohibition of compelling a man in a criminal court to be witness against himself is ... not an exclusion of his body as evidence when it may be material." Schmerber, 384 U.S. at 763, 86 S.Ct. at 1832 (quoting Holt v. United States, 218 U.S. 245, 252-53, 31 S. Ct. 2, 6, 54 L. Ed. 1021 (1910)). Thus, the Supreme Court in Schmerber concluded that a defendant could be forced to undergo a blood-alcohol test without violating his fifth amendment right against self-incrimination since
"[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone."
Id. at 765, 86 S.Ct. at 1833.
In South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), the Supreme Court went further and held that "the admission into evidence of a defendant's refusal to submit to [a blood-alcohol] test likewise does not offend the right against self-incrimination." Id. at 554, 103 S.Ct. at 917. In reaching this conclusion, the Court declined to determine whether a refusal constitutes testimonial evidence since "[t]he situations arising from a refusal present a difficult gradation from a person who indicates refusal by complete inaction, to one who nods his head negatively, to one who states "I refuse to take the test," to the respondent here, who stated "I'm too drunk, I won't pass the test." Id. at 561-62, 103 S.Ct. at 921. The Court reasoned that it was unnecessary to determine whether evidence of a refusal is testimonial because it would not fall under the protective provisions of the right in any event since no impermissible coercion or compulsion occurred as the state provided the accused with a choice of either submitting to the test or refusing.[3]Id. at 562, *779 103 S.Ct. at 921. Since the state could legitimately compel the accused to submit to the blood-alcohol test in accordance with Schmerber, the Court reasoned that "the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making the choice." Id. at 563, 103 S.Ct. at 922. Because the accused was offered a choice, the Court held that there was no element of compulsion, and therefore, S.D. Codified Laws Ann. §§ 32-23-10.1 and 19-13-28.1 allowing the admission of evidence of a refusal to submit to testing at a trial for DUI does not violate a defendant's fifth amendment right against self-incrimination.
While the holding in Neville would appear to compel us to reject Farmer's argument that his fifth amendment right against self-incrimination was violated, we do not reach that issue because we find that Farmer's right against self-incrimination as guaranteed by Article I, § 8 of the Virginia Constitution was violated.[4]
We first address Farmer's argument that evidence of his refusal to take the so-called field sobriety test was inadmissible because there is no statutory authority for law enforcement authorities to request or require a suspected driver to perform such tests. Thus, he argues that there should be no conditions or penalties on the refusal to take such tests.
In Virginia, unlike South Dakota and other states, our statutory scheme specifically prohibits the use of an accused's refusal to take a breath or blood test in the accused's trial for driving under the influence of alcohol pursuant to Code § 18.2-266, the general statute prohibiting such conduct. Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol. This Code section further provides that the suspected person shall have the right to refuse to permit his breath to be analyzed and that his failure to permit such analysis shall not be evidence against him. Regardless of a refusal under Code § 18.2-267, Code § 18.2-268(B) provides that one who operates a motor vehicle on a public highway in the Commonwealth is deemed to have consented to chemical testing to determine the alcoholic content of his blood. Code § 18.2-268(E) provides that the accused may refuse to submit to chemical testing. In the event of a refusal, Code § 18.2-268(T) provides for a suspension of the accused's driver's license upon a determination that the refusal was not reasonable. Code § 18.2-268(O), however, provides that "[t]he failure of an accused to permit a sample of his blood or breath to be taken for a chemical test ... is not evidence and shall not be subject to comment by the Commonwealth at the trial of [the driving under the influence charge], except in rebuttal." See Walton, 204 Va. at 683, 133 S.E.2d at 318 (evidence of refusal to submit to blood test inadmissible in trial for DUI).
Farmer correctly asserts that there is no statutory authority in Virginia for police administration of field sobriety tests. Moreover, there are no "standardized" field sobriety tests in this state. While such tests are frequently administered by law enforcement officers in this state to make a preliminary determination of the condition of a suspected driver, there is no statutory requirement that a driver take such tests either before or after arrest for violation of Code § 18.2-266. Similarly, unlike the refusal to take breath or blood tests, there is no statutory prohibition against the admission of evidence of a refusal to take a field sobriety test. In view *780 of this statutory silence, however, we are unable to discern a statutory basis upon which Farmer would have this court address his challenge to the admissibility of his refusal. In short, there is simply no statutory prohibition available to Farmer.
We turn now to Farmer's claim under the Virginia Constitution. At the outset, we recognize that the results of field sobriety tests, blood-alcohol or breath tests constitute "real" or "physical" evidence which is not protected by the right against self-incrimination. Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832; see also Theriault, 144 Ariz. at 167, 696 P.2d at 719; People v. Ramirez, 199 Colo. 367, 374-75, 609 P.2d 616, 621 (1980); State v. Haze, 218 Kan. 60, 60-61, 542 P.2d 720, 721 (1975); Walton, 204 Va. at 681-82, 133 S.E.2d at 317-18. To the extent that field sobriety tests are dexterity tests, the results of such tests constitute real or physical evidence since the "tests are based on the loss of coordination, balance and dexterity that results from intoxication, [and] they do not force the subject to betray his subjective knowledge of the crime through communication or testimony." State v. Hoenscheid, 374 N.W.2d 128, 130 (S.D.1985). Conversely, a refusal to submit to such tests conveys the defendant's thoughts or knowledge, which the right against self-incrimination is intended to protect.
Evidence of a defendant's refusal is relevant in that it shows that he believed that the results of the test would tend to incriminate him and thus shows that he believed that he was guilty. Specifically, the state wants the jury to infer, from the fact of a defendant's refusal, that he is saying, "I will not take the field sobriety tests because I believe I will fail them." The evidence is therefore conduct communicating the defendant's state of mind; it is, in essence, testimony concerning the defendant's belief on the central issue of the case.
State v. Green, 68 Or.App. 518, 522, 684 P.2d 575, 577 (1984), rev'd on other grounds, 71 Or.App. 519, 692 P.2d 720 (1984). Indeed, "[t]he obvious purpose and certain result of proving a person accused of intoxication refused a request to take... test[s] is to show the jury that the accused, with his full knowledge of the true amount he had consumed, thought he could not afford to take said test[s]." Dudley v. State, 548 S.W.2d 706, 707-08 (Tex.Crim.App.1977).[5] Further, unlike the situation where a defendant is compelled to produce physical evidence, as in Schmerber, a refusal to submit to testing necessarily utilizes the defendant's testimonial capacities, and the defendant's participation is no longer that of mere donor. Schmerber, 384 U.S. at 765, 86 S.Ct. at 1833. Rather, the defendant is forced to reveal his thoughts concerning his level of intoxication. "[T]he expression of the contents of an individual's mind is testimonial communication." Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 2347 n. 9, 101 L. Ed. 2d 184 (1988). We therefore hold that evidence of refusal to submit to a field sobriety test is testimonial or communicative evidence. However, in order to be inadmissible, the refusal also must have been compelled by the state. Article I, § 8 Virginia Constitution. See also Green, 68 Or.App. at 523, 684 P.2d at 578.
Prohibited compulsion exists when a court imposes a penalty "for exercising a constitutional privilege ... by making its assertion costly." Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106 (1965). "The Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify." Carter v. Kentucky, 450 U.S. 288, 301, 101 S. Ct. 1112, 1119, 67 *781 L.Ed.2d 241 (1981). When Officer Hoback requested that Farmer take the field sobriety tests, Farmer admittedly had the option of complying or refusing. Farmer refused. There was no practical way Officer Hoback could compel cooperation with a dexterity test. However, to hold that the state did not compel Farmer's refusal because, as a practical matter, Farmer had a choice, we believe, is unsound. Farmer could have avoided having the testimonial content of his refusal used against him only by submitting to the field test which the Commonwealth otherwise had no statutory authority to require. Unlike a blood or breath test, there is no "implied consent" to submit to a field test, and unlike a blood or breath test, there is no statutory guarantee that the testimonial content of the refusal will not be used against the accused. It is true that a refusal to submit to a blood or breath test may result in the revocation of one's driving privilege and, to that extent, a "penalty" is attached to the "act" of refusal. But in the case of the blood or breath test, the Commonwealth, by extracting a penalty, is not "compelling" testimonial communications since to impose the "penalty" it is not relying on the "testimonial" content of the refusal. The "act" of refusal, without more, is sufficient to result in loss of driving privileges. No inference as to content of the actor's state of mind is necessary to impose the sanction. "If [the accused] performs the tests he provides evidence. If he refuses the test he provides evidence. This is compulsion of the most insidious nature." Hoenscheid, 374 N.W.2d at 134 (Grosshans, J., dissenting). We believe the conclusions of the Court of Appeals of Oregon are appropriate in Virginia.
While an officer may properly request a driver to [take the field sobriety tests], the officer may go no further. Because defendant had no obligation to take the test, there could also be no conditions placed on his refusal. Use of the fact that he refused enables the state to obtain communicative evidence to which it would otherwise have no right, as a result of defendant's refusal to provide noncommunicative evidence to which it also had no right. The situation is thus a true Hobson's Choice.
Green, 68 Or.App. at 526, 684 P.2d at 579.
We hold that evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused right, under Article I, § 8 of the Constitution of Virginia, not to "be compelled... to give evidence against himself." Therefore, we hold that the trial court erred by admitting evidence of Farmer's refusal at his trial for DUI.
IV. HARMLESS ERROR ANALYSIS
The Commonwealth argues that if the trial court did err by admitting evidence of Farmer's refusal, the error was harmless. We disagree. "It is well settled that `error in a criminal case will require reversal of a conviction unless the error is harmless beyond a reasonable doubt.'" Scaggs v. Commonwealth, 5 Va.App. 1, 6, 359 S.E.2d 830, 832 (1987) (quoting Jones v. Commonwealth, 218 Va. 732, 737, 240 S.E.2d 526, 529 (1978)). Further, "[e]rror will be presumed to be prejudicial unless it plainly appears that it could not have affected the result." Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951).
While there was additional evidence of Farmer's intoxication, we cannot say that the admission of Farmer's refusal was harmless beyond a reasonable doubt. The evidence which Farmer sought to exclude conveyed to the jury that Farmer himself believed that he was too intoxicated to take and pass the requested tests. Therefore, because we cannot say that the admission of this evidence did not affect the jury's decision, we cannot find that the error was harmless beyond a reasonable doubt.
For the foregoing reasons, we reverse Farmer's conviction of driving under the influence and remand this case for a new trial, if the Commonwealth be so advised.
Affirmed in part, reversed in part, and remanded.
MOON, Judge, dissenting.
I would affirm the decision of the trial court because the error, if any, was harmless *782 beyond a reasonable doubt. Defendant did not seriously contend at any point in the trial that he was not under the influence. His defense was that he was not driving the car. The uncontradicted evidence was that he was unsteady on his feet, was weaving, had slurring speech and glassy eyes, that he had a heavy odor of alcohol on his person, and that he used profane language toward the police officer who arrested him. He admitted that he drank six to seven beers during the evening, before leaving a bar at midnight, and afterward drank as many as three beers in his car. He did not contradict the police officer in any respect concerning the police officer's observations regarding his sobriety. Under the circumstances, I do not believe that any rational trier of fact would have found but that appellant was driving under the influence, even if the evidence of refusal to take the field sobriety tests had been excluded. Therefore, I would hold that any error in the evidence's admission was harmless beyond a reasonable doubt.
UPON A PETITION FOR REHEARING EN BANC
Before the Full Court
On April 24, 1990 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on April 10, 1990 and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on April 10, 1990 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
NOTES
[1] Farmer was tried jointly on the DUI and habitual offender charges without objection. Accordingly, on appeal, we assume that the evidence of which he complains was considered by the jury only for purposes of the DUI charge for which it was produced by the Commonwealth.
[2] Farmer does not challenge the sufficiency of the evidence to establish that he was the driver of the vehicle, and, therefore, we do not address it in this appeal. Rule 5A:18. In addition, because Farmer's conviction of driving after being declared an habitual offender was supported by the evidence that he was driving, whether under the influence or not, we affirm his conviction for that offense.
[3] S.D. Codified Laws Ann. § 32-23-10 (1989) permits a suspect to refuse to submit to a blood test to determine the alcoholic content of his blood and requires police officers to inform a suspect of this right. However, if a suspect refuses to submit to chemical testing, his license may be revoked for a period of one year, S.D. Codified Laws Ann. § 32-23-10, and evidence of the refusal may be admitted at trial. S.D. Codified Laws Ann. §§ 32-23-10.1 and 19-13-28.1.
[4] In Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954), the Court held that admission of a statement of an accused's refusal to submit to a blood test did not violate his state constitutional right against self-incrimination based on the then current analysis that the constitutional prohibition against self-incrimination did not apply to evidence of extra-judicial admissions or confessions. Because the accused was not a witness, his statement was held to be admissible. Because it is now well settled that the right against self-incrimination has been extended, we find the Commonwealth's reliance on this case is misplaced. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[5] Following Neville, Texas passed legislation similar to that of South Dakota expressly allowing the introduction of evidence of refusal to submit to testing in a trial for DUI. See Tex. Rev.Civ.Stat.Ann. art. 67011-5, § 3(g) (Vernon Supp.1984). See also Ashford v. State, 658 S.W.2d 216 (Tex.Ct.App.1983). However, Texas has continued to follow the holding of Dudley in those cases where the incident giving rise to the charge of DUI occurred before the effective date of the statutory provision. See e.g. Sinast v. State, 688 S.W.2d 631 (Tex.Ct.App.1985); Brant v. State, 676 S.W.2d 223 (Tex.Ct.App.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336616/ | 102 Ga. App. 66 (1960)
115 S.E.2d 726
LONG CONSTRUCTION COMPANY
v.
RYALS.
38342.
Court of Appeals of Georgia.
Decided June 21, 1960.
Rehearing Denied July 7, 1960.
Dudley Cook, for plaintiff in error.
Roland Neeson, contra.
*69 CARLISLE, Judge.
1. Questions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable and indisputable cases, solely for the jury. Montgomery v. Southern Ry. Co., 78 Ga. App. 370 (1d) (51 S.E.2d 66); Harvey v. Zell, 87 Ga. App. 280, 284 (1a) (73 S.E.2d 605). Unless the allegations *67 of the petition set up facts from which reasonable minds cannot differ as to the cause of the injury, they are sufficient to carry the case to the jury. Bazemore v. McDougald Construction Co., 85 Ga. App. 107, 110 (68 S.E.2d 163).
2. "`It is no defense in an action for an injury resulting from negligence that the negligence or wilful wrong of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. A juridical cause need not be the sole cause.' Jaggard on Torts, 67. `If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause.' Cooley on Torts (3d Ed.) 119." Rollestone v. Cassirer & Co., 3 Ga. App. 161, 173 (59 S.E. 442).
3. Under the foregoing principles, the right of the plaintiff to recover for negligent conduct on the part of the defendant alleged to have proximately resulted in injury to the plaintiff is not barred as a matter of law by the mere fact that the allegations of the petition show also that the plaintiff's injuries were in some measure contributed to by his own voluntary intoxication. Hubbard v. Cofer, 98 Ga. App. 565, 567 (106 S.E.2d 358).
4. The petition stated a cause of action, as against a general demurrer sufficient to present a jury question as to whether under the application of the last clear chance doctrine the negligence of the plaintiff in placing himself in peril and in not discovering it until too late, was too remote to be considered as a contributing cause of the injury, and as to whether or not the negligence of the defendant's agent in failing to discover the plaintiff's peril and take steps to avoid the same by either reducing the speed of the vehicle, sounding his horn or turning the vehicle from its path, could be considered as the producing sole and proximate cause of the plaintiff's injuries. Casteel v. Anderson, 89 Ga. App. 68, 72 (78 S.E.2d 831).
5. While ordinarily a driver of an automobile, who is proceeding lawfully along a public street, is not bound to anticipate that an intoxicated person will step from the curb directly into the path of his vehicle, where, from the actions of the person injured and others on the curbside observed by him, *68 he may reasonably anticipate that someone would get in the street ahead of his vehicle, he may under such circumstances, be chargeable with negligence in failing to take appropriate steps to avoid injuring such person, or persons. Whether his failure to exercise such care and to take such steps amounted to negligence, and whether it was the proximate cause of the plaintiff's injuries is a question solely for the jury's determination.
6. Only two of the special demurrers are argued and insisted upon in the brief of counsel for the plaintiff in error. The special demurrer to the allegations with respect to the duty of the defendant's driver to anticipate "such an occurrence" on the ground that there was no legal duty to anticipate that the plaintiff would leave his place of safety on the sidewalk and enter the street is but an elaboration of the general grounds of demurrer and is disposed of by the ruling thereon.
7. The allegations contained in paragraph 26 of the petition that the plaintiff did not instigate, cause or contribute to the altercation, and that the plaintiff at all times sought to disengage himself from the other man, are allegations of fact and not mere conclusions, nor are they necessarily contradictory of the allegations that the plaintiff was intoxicated. It follows that the trial court did not err in overruling the ground of the demurrer attacking those allegations for those reasons.
Judgment affirmed. Gardner, P. J., Townsend and Frankum, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336633/ | 236 S.C. 606 (1960)
115 S.E.2d 288
G. Perrin GALPHIN, Appellant,
v.
Bertha V. WELLS, Individually, as Executrix of the Last Will and Testament of Ethel E. Wells, et al., Respondents (three cases).
17684
Supreme Court of South Carolina.
July 14, 1960.
Edward A. Harter, Jr., Esq., of Columbia, for Appellant.
*607 Messrs. Rosen & Horger, of Orangeburg, for Respondents, other than Senie, P. Bennett, and T.B. Bryant, Jr., of Orangeburg, for Respondent, Senie P. Bennett.
Edward A. Harter, Jr., Esq., of Columbia, for Appellant, on Reply.
July 14, 1960.
TAYLOR, Justice.
Plaintiff brought three actions in the Court of Common Pleas for Orangeburg County seeking to recover for services rendered to Misses Ida I. Wells, Ethel E. Wells, and Addie C. Wells, all deceased.
Named as defendants are the executrix of the will of Ida I. Wells and the persons named in her will or their legal representatives and one Senie P. Bennett, who is alleged to have or claims some interest in the land described in the complaint as having been owned by the three sisters as tenants in common.
Answer to the first complaint (Ida I. Wells) was served by Bertha V. Wells, individually and as executrix of the Wills of Ethel E. Wells and Ida I. Wells and Theo Ermine Wells Harrison, individually and as administratrix, CTA of the estate of Addie C. Wells. Similar answers were served by Marjorie Wells Jager and Catherine Wells Creach; the other defendants, except Senie P. Bennett, defaulted.
By agreement of counsel, the answers to the first complaint were allowed to stand as answers to the other complaints *608 and only the first complaint and the answer of Bertha V. Wells and others appear in the record.
By the consent, the cases were referred to the Honorable C.E. Summers, Judge of the County Court of Orangeburg as Special Referee "to take the testimony arising under the pleadings, to hear and determine all matters of law and fact, and to report his findings and conclusions back to this court." Briefly the complaint alleges that in 1922 at the request of the four sisters, Pauline (who died in 1937), Ida (who died in 1945), Ethel (who died in 1956), and Addie (who died in 1957), plaintiff left his job in North Carolina and came to work for them on their plantation in Orangeburg County and that continuously, until the death of each, he performed services of supervision, preservation of property, management of labor, purchasing, general management and overseeing, selling, attending to or caring for and looking after the "sisters continuously every day, and when necessary at night." He further alleges that such services were reasonably worth $1.50 per day, amounting to $12,592.50 to Ida. Against the estates of Ethel E. and Addie C. Wells, no per diem value is alleged, but the total reasonable value is alleged to be $22,950.00 to each. In addition, it is alleged that plaintiff expended certain moneys of his own for the benefit of the sisters and that he is entitled to restitution in the amount of $577.36 from each. It is further alleged that the estates have not been fully administered as provided by law, that there are outstanding creditors of each estate and the personal property in each is insufficient to pay the indebtedness, that each sister owned an undivided one-third interest in a tract of land of approximately 293 acres and prays judgment in the amounts set forth, that the assets of each estate be marshalled, the land sold by the Court, the administration completed and the benefits applied.
The answer of Bertha Wells and others briefly alleges that the necessary has been done in the administration of the estate, denies that plaintiff left his job in North Carolina at the request of the sisters or that he performed the services *609 set forth in the complaint, denies that the estate is indebted to him, but alleges that plaintiff was more than compensated for any services rendered and pleads the six year Statute of Limitations, Code 1952, § 10-143.
The answer of Senie P. Bennett alleges that she acquired title to about 2 1/2 acres of land by deed of Addie C. Wells, Ethel E. Wells, and Theo Wells Harrison in 1956.
All cases were referred to Honorable C.E. Summers, County Judge, as Special Referee, who by agreement of counsel, heard them together and denied plaintiff's claim and ordered him to pay costs. Exceptions were duly taken to the report and heard by Honorable J. Robert Martin, Jr., Presiding Judge, who handed down his Order confirming the report of the Special Referee in its entirety; and plaintiff appeals to this Court contending, first, that the Court erred in failing to consider the third item of the Will of each of the sisters which speaks of "the many services he (plaintiff) has rendered to me and my sisters" and failed to hold that payment for such services was a "just" debt within the direction of the first item of each Will; and, second, in failing to find that plaintiff was entitled to the sum of $577.36 in each case as funds advanced to the three sisters.
Item I of each of the Wills provided: "I direct my executrix hereinafter named to pay all my just debts, if any there be, as soon after my death as practicable"; and it is under this provision that plaintiff bases his claim, contending that the amounts set forth in the complaints are "just" debts.
Item III of the will of Ida I. Wells reads as follows: "After the death of my two said sisters, namely, Ethel E. Wells and Addie C. Wells, I give and devise unto my nephew G. Perrin Galphin, all of my interest in ten acres of land now owned by me and my said two sisters, the said land to be cut off in as nearly a rectangular shape as possible, in the corner of our said land, adjoining Grady Breeland and Mrs. Rosalie D. Moorer, and bounded by the Eutawville Highway on the North, by Grady Breeland on the Northeast, by *610 Mrs. Rosalie D. Moorer on the Southeast, and by land of me and my sisters on the Southwest. I make this gift to my said nephew in appreciation of the many services he has rendered to me and my sisters. I give this land to him absolutely."
Plaintiff lays stress upon the words "I make this gift to my said nephew in appreciation of the many services he has rendered me and my sisters" in the above to lend support to his contention that the amounts set forth in the complaints are "just" debts by reason of services rendered, his claim being based principally upon the grounds that he managed the plantation for the sisters over a period of years and rendered services in doing so for which he has not been compensated.
The record reveals that plaintiff's testimony is somewhat vague and indefinite as to how these operations were handled, what he did by way of management, what was made or lost on the plantation, he having kept no account of funds received and expended; in fact, neither plaintiff nor any of his witnesses were able to testify with any degree of certainty as to what, if any, financial arrangements existed between the plaintiff and the decedents. On the contrary, the only living sister of the decedents, Miss Bertha Wells, testified that over a period of years plaintiff rented the plantation in question from the sisters, that accurate records were kept as to such rentals, that settlement was made each year with plaintiff, that the premises were always considered as having been "rented to Perrin," and that all services rendered by the plaintiff were paid for by the sisters, that since 1949, plaintiff had agreed to pay $700.00 per year rent and furnish 7 dressed hogs, that all the equipment on the premises when plaintiff took over was used by him for his own operations, that they experienced some difficulty in collecting the rent, and that the mortgage which plaintiff alleges in his complaint to have paid off was not paid by him but was paid through the sale of timber, supplemented by funds of this witness and her sisters. An account book kept by Miss Bertha Wells in her handwriting and that of her sister, Miss *611 Addie Wells, substantiating this testimony, was admitted into evidence and it reveals that rentals were paid for each year since 1949, giving the amount paid and the balances due. In addition thereto, there was introduced into evidence a letter dated February 1, 1957, from the plaintiff addressed to Miss Addie C. Wells, in which an offer was made by the plaintiff to perform certain acts upon the reduction of rent from $700.00 to $600.00 for that year. Other witnesses for the defendants, who are nieces of the decedents, testified that the property was always referred to as being "rented to Perrin" and a settlement was made with the plaintiff each year.
The record further reveals that the premises in question contained 189 acres of open land, and in accord with the plaintiff's own witness, the reasonable rental for these premises since the year 1950 would be about $10.00 per acre. Further, by plaintiff's own testimony, he withheld $300.00 from the sale price of the timber as damages sustained when the timber cutters permitted the stock to get out and damage his crops.
This matter, by agreement, was treated throughout as an equity matter and will be so considered for the purpose of this appeal. In such matters where issues of fact are found by the Master (Referee) and concurred in by the Circuit Judge, the factual findings will not be disturbed unless such findings are without evidence to support them or are against a clear preponderance thereof. Alderman et al. v. Alderman et al., 178 S.C. 9, 181 S.E. 897, 105 A. L.R. 102; Young v. Levy et al., 206 S.C. 1, 32 S.E. (2d) 889.
From the foregoing recital of the evidence, it cannot be said that the findings of the Referee concurred in by the Presiding Judge are without evidentiary support or are against a clear preponderance thereof.
We are, therefore, of opinion that the Order appealed from should be affirmed, and it is so ordered. Affirmed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336648/ | 115 S.E.2d 1 (1960)
252 N.C. 787
Barbara WATTERS, by and through her Next Friend, V. Gregg Watters,
v.
Homer Lloyd PARRISH, Mattie Lee Parrish, Harry W. Lawrence and Harry E. Lawrence, and Harry E. Lawrence, Guardian Ad Litem for Harry W. Lawrence.
No. 462.
Supreme Court of North Carolina.
June 30, 1960.
*3 Leath & Blount, Rockingham, for Homer Lloyd Parrish and Mattie Lee Parrish, defendants-appellants.
Smith, Moore, Smith, Schell & Hunter, McNeill Smith, David McK. Clark, Greensboro, and Z. V. Morgan, Hamlet, for Harry W. Lawrence and Harry E. Lawrence, defendants-appellants.
Webb & Lee and W. G. Pittman, Rockingham, for plaintiff-appellee, on the appeal of defendants Lawrence and Parrish.
PARKER, Justice.
The instant case was commenced by the issuance of summons on 28 May 1959, which was served on all the defendants, except Harry E. Lawrence as guardian ad litem of his son, Harry W. Lawrence, on 1 June 1959. Summons was issued against Harry E. Lawrence as guardian ad litem of his son, Harry W. Lawrence, on 17 *4 July 1959 and served on him the same day. Harry W. Lawrence, by his next friend, Harry E. Lawrence, instituted an action by the issuance of summons on 15 June 1959 in Richmond County Superior Court to recover damages for personal injuries in the collision here against defendants Parrish, and which was served on defendants Parrish the next day. Frank Williams, a passenger in the pickup truck driven by Homer Lloyd Parrish, instituted by the issuance of summons on 26 March 1959 in the same county a similar action against defendants Parrish, and which was served on defendants Parrish the next day. None of these summonses were in the record. We had them certified here by the lower court.
Immediately prior to the trial of the instant case Harry W. Lawrence made a motion that the court place his case against defendants Parrish on the civil issue docket for trial before the trial of the instant case and of the Frank Williams case, and that plaintiff here and Frank Williams be restrained from bringing their cases to trial, until his case against defendants Parrish is finally determined. The trial court, in its discretion, denied the motion. Harry W. Lawrence assigns this as error, and contends in his brief that any judgment here against both defendants would be res judicata in his action against the Parrishes, and no prejudice could come to the plaintiff here if his case is tried first, since she is not a party to it, and that "the trial judge abused his discretion in refusing the continuance."
A motion for a continuance is addressed to the sound discretion of the trial judge, and, in the absence of manifest abuse, his ruling thereon is not reviewable. Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910; Piedmont Wagon Co. v. Bostic, 118 N.C. 758, 24 S.E. 525.
A trial court is vested with wide discretion in setting for trial and calling for trial cases pending before it. Jones v. Jones, 94 N.C. 111; Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899; 88 C.J.S. Trial § 31.
Whether one lawsuit will be held in abeyance to abide the outcome of another rests in the sound discretion of the trial judge, and his action will not be disturbed on appeal, unless the discretion has been abused, for there is power inherent in every court to control the disposition of causes on its docket with economy of time and effort for itself, for counsel, and for litigants. 53 Am.Jur., Trial, § 14, § 15 and § 16. "The suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both." Landis v. North American Co., 299 U.S. 248, 57 S. Ct. 163, 166, 81 L. Ed. 153.
Plaintiff in the instant case commenced her action before Harry W. Lawrence did his, and alleged in her complaint that she was grievously injured by his negligence and the negligence of Homer Lloyd Parrish. Our study of the record fails to disclose any unusual or extraordinary circumstances or any clear case of hardship or inequity to Harry W. Lawrence that would have justified the trial judge in continuing plaintiff's case here, and requiring her to sit by with folded arms until Harry W. Lawrence had reached a final determination of his action against Homer Lloyd Parrish and wife. Harry W. Lawrence has not shown that Judge Phillips manifestly abused his discretion in denying his motion. His assignment of error in that respect is overruled. See 88 C.J.S. Trial § 33 a, Advancement or Preference of Cases.
During the trial all the defendants offered evidence. All the defendants assign as error the denial of their motions for *5 judgments of nonsuit renewed at the close of all the evidence. Defendants Parrish and defendants Lawrence filed separate briefs.
About 3:45 p. m. on Sunday, 4 January 1959, plaintiff, a 20-year-old girl, was a passenger in a Chevrolet automobile driven by her friend, Harry W. Lawrence, and travelling in a westerly direction on the County Home Road near the town of Hamlet. This is a hard-surfaced road about 18 feet wide with a marked center line, which has 6 to 8 feet sand and gravel shoulders. At the same time and place Homer Lloyd Parrish, with a passenger, Frank Williams, was driving a pickup truck in an easterly direction on this road. It was a pretty day, and the road was dry. The road at the scene of the collision was fairly level and straight. No other automobile was near the scene of the collision when it occurred, except an automobile some 150 or 200 feet behind Parrish's pickup truck.
Plaintiff's evidence, including the testimony of defendant Harry W. Lawrence called by plaintiff as a witness for herself against the defendants Parrish, and the testimony of John A. Cartwright a witness for the defendants Lawrence who was travelling some 150 or 200 feet behind the Parrish truck, shows the following facts as to Homer Lloyd Parrish's operation of his pickup truck: At the place where the Hospital Road and the County Home Road intersect, there is a traffic light with a traffic island. When Parrish turned his truck to enter the County Home Road, he drove over the traffic island, and in turning right into the County Home Road went over to the asphalt, not really an island, more of an abutment, before proceeding down the County Home Road. In going down the road he drove several times over the center line, and just before the collision his truck made a wide sweep over on the left side of the road and went off on the shoulder. When Parrish's truck approached the Lawrence automobile, the Parrish truck was on its left side of the road half off on the left shoulder coming directly toward the Lawrence automobile. The Parrish truck continued to approach the Lawrence automobile in this manner, until the Lawrence automobile was 75 to 100 feet away. This is the testimony of Harry W. Lawrence: "He was coming down my side of the road and was on my right coming directly toward me. I was back down the highway traveling from east going west. This truck was coming at me on my side of the road and half off on my shoulder and was coming at me on my side of the road halfway off my side of the road, and if I had cut this way, it appeared to me at the time that he would have run directly into the side of me; and if I had gone straight, he would have run head-on. The only choice that I had at the time was to go over there to try to get out of his way because he had my side of the highway. I could not say how far he was away when I first saw him, but I do know that I was on my right side of the road. If we did not turn to the side of the road on which the accident happened simultaneously, then I turned first; I do not know exactly which of us turned first. I know that when I turned over there, he was still on my side of the road. At that time I turned, I'd say he was 75 to 80 feet down the road. It could not have been as much as 150 feet." The two automobiles collided in about the middle of the road, according to John A. Cartwright, on Parrish's side of the road, according to plaintiff's own testimony, and the testimony of Frank Williams.
Patrolman J. B. Pierce, a witness for defendants Lawrence, immediately after the collision and at the scene saw Homer Lloyd Parrish, who had a strong odor of alcohol on his breath. In Pierce's written report of his investigation of the collision he stated that Parrish's ability was impaired by reason of the fact he had been drinking.
In the collision Homer Lloyd Parrish suffered, inter alia, one broken knee and a badly gashed knee. Some 45 minutes or an hour and 15 minutes after the wreck, Rex Howell, Captain on the Hamlet Police *6 Force and a witness for defendants Lawrence, saw Parrish in the Hamlet Hospital. When Howell got to the hallway next to the operating room, he heard loud, boisterous and profane language. When Howell went in the operating room, Dr. James asked him to hold Parrish on the operating table as he was trying to sew up his knees and he couldn't keep him still long enough to do it. He smelled the odor of alcohol on Parrish's breath. When Howell came in, Parrish quieted down.
Plaintiff's testimony in respect to the collision is as follows in substance: She and Harry W. Lawrence had been dating each other for three years. It was the last day of her Christmas vacation, for she was to return to college that afternoon. They were riding around this Sunday afternoon and talking. She was sitting about six or seven inches from the door with her knees on the seat facing Harry, who was driving. When Harry yelled "look out," she turned and saw the old Parrish truck about 200 feet away coming down the road cutting to its left. She put her hand over her face, and threw her head down on Harry's chest. She felt Harry's automobile go to the other side of the road. Harry was slowing down, and about that time there was a crash. The crash was on Harry's left side of the road, and Parrish's right side.
Frank Williams, a passenger in the Parrish truck and a witness for plaintiff, testified in substance: When the Parrish truck and the Lawrence automobile meeting each other were about 200 feet apart, the Lawrence automobile was on its left side of the road, and the Parrish truck on its left side of the road. Parrish went back to his side, and Lawrence went back to his side. Then Lawrence came down his lane, and collided right into Parrish, and Parrish pulled his truck to the right. The automobiles collided on Parrish's side of the road.
Homer Lloyd Parrish, called as a witness by plaintiff, testified as follows: "At the time I first observed it, the vehicle that was meeting me was on its left hand side, or the south side of the dotted white line. When I first saw the car, I was on the right hand side of the dotted white lines traveling east. When I first saw him, I didn't do anything; and I proceeded on down the road for a short distance. It seemed he didn't see me, and so I went to the left. We were still a short distance away, and he came back to his side so there wasn't room over there for both of us; and I went back to mine. When I went back to my right, he came back over there; and we hit and we wrecked. I saw him when he cut back across to the left side. When he cut back to his left, I was back on my right side of the road. When I saw him, he was coming back to my right. I cut off the road, but there wasn't time to avoid the collision. Part of both vehicles was on the south side on the shoulder of the highway when the collision occurred. One wheel of each vehicle was on the dirt, the right wheel of mine and the left of his." Homer Lloyd Parrish, after plaintiff rested her case, testified in his own behalf. His testimony then was substantially similar to his testimony as a witness for plaintiff in respect to the operation of the two automobiles immediately prior to the collision.
Harry W. Lawrence offered evidence in his behalf, but did not go back on the stand as a witness for himself.
When defendants made their motions at the close of all the evidence for judgments of involuntary nonsuit, plaintiff is entitled to have her evidence considered in the light most favorable to her. Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492. "Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court," Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327, 328, and do not justify a nonsuit. Keaton v. Blue Bird Taxi Co., 241 N.C. 589, 86 S.E.2d 93.
The law is well established in this jurisdiction that in ruling upon a motion for an involuntary judgment of nonsuit, *7 after all the evidence of plaintiff and both defendants is in, the court may consider so much of both defendants' evidence, or the evidence of either of them, as is favorable to plaintiff or tends to clarify or explain evidence offered by plaintiff not inconsistent therewith, but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by plaintiff. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Murray v. Wyatt, 245 N.C. 123, 95 S.E.2d 541; King v. Powell, 252 N.C. 506, 114 S.E.2d 265. Otherwise, consideration would not be in the light most favorable to plaintiff. Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Atkins v. White Transp. Co., 224 N.C. 688, 32 S.E.2d 209.
Plaintiff's evidence, and the evidence of the defendants Lawrence favorable to her, considered in the light most favorable to her, tends to show, inter alia, that Homer Lloyd Parrish was guilty of negligence per se, in operating his pickup truck while under the influence of intoxicating liquor in violation of G.S. § 20-138, in failing to drive his automobile on the right half of the highway in violation of G. S. § 20-146, and of failing to give to the approaching Lawrence automobile one-half of the main travelled part of the road in violation of G.S. § 20-148, and that such negligence caused a collision of his truck and the Lawrence automobile in about the middle of the road, and contributed proximately to plaintiff's injuries, as alleged in her complaint. Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345. The trial court properly denied Homer Lloyd Parrish's motion for judgment of nonsuit made at the close of all the evidence, and also a similar motion of his wife, Mattie Lee Parrish, by reason of the stipulation they made above set forth, and their assignment of error thereto is overruled.
Plaintiff's evidence and the evidence of defendants Parrish and of defendants Lawrence favorable to her, considered in the light most favorable to her, tends to show, inter alia, that Harry W. Lawrence was guilty of negligence per se in failing to drive his automobile on the right half of the highway as he was meeting an approaching automobile proceeding in the opposite direction in violation of G.S. § 20-146, and of failing to give to the approaching Parrish truck one-half of the main travelled part of the road in violation of G.S. § 20-148, and of negligence in failing to keep a proper lookout, Clark v. Emerson, 245 N.C. 387, 95 S.E.2d 880, as alleged in the complaint.
Defendants Lawrence contend in their brief that conceding that the Lawrence automobile was initially on the wrong side of the road, such negligence was insulated by the intervening negligence of the defendant Homer Lloyd Parrish. Such a contention is not tenable. Harry W. Lawrence, according to his own testimony, was travelling 45 miles an hour, and according to the testimony of Frank Williams, a witness for plaintiff, when the two automobiles were about 200 feet apart, the Lawrence automobile was on its left side of the road. Parrish, according to Williams' testimony, was travelling 35 miles an hour. This evidence would warrant a finding by a jury that Harry W. Lawrence, by driving his automobile on his left side of the road under the circumstances above set out, in the exercise of ordinary care, might have reasonably foreseen that he and the approaching Parrish truck would cut back and forth on the road to avoid a collision, and the resulting collision in the middle of the road (testimony of John A. Cartwright, a witness for the Lawrences) followed so quickly and is so connected with Harry W. Lawrence's negligence, that it constituted a direct chain of events resulting from the negligence of Harry W. Lawrence in driving on his left side of the road, and that such negligence on the part of Harry W. Lawrence was a proximate cause of plaintiff's injuries. "No negligence is `insulated' so long as it plays a substantial and *8 proximate part in the injury." Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876, 879. A judgment of involuntary nonsuit of plaintiff's case against the defendants Lawrence on the ground that Harry W. Lawrence's negligence was insulated by the intervening negligence of Homer Lloyd Parrish would be improper, because "the test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury." Butner v. Spease (Spease v. Butner), 217 N.C. 82, 6 S.E.2d 808, 812.
Defendants further contend that Harry W. Lawrence was confronted with a sudden emergency, that he acted with due care, and they are entitled to a nonsuit. Such contention is without merit. This principle is not available to defendants Lawrence on their motions for judgment of nonsuit upon the facts here, for the reason that taking plaintiff's evidence as true, as we are compelled to do in considering such a motion (Polansky v. Miller's Mutual Fire Ins. Ass'n, 238 N.C. 427, 78 S.E.2d 213), and considering it in the light most favorable to her, Harry W. Lawrence by his own negligence in driving his automobile on the left side of the road under the circumstances above set forth brought about or contributed to the emergency. Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593.
The trial court properly denied Harry W. Lawrence's motion for judgment of involuntary nonsuit made at the close of all the evidence, and also a similar motion by his father, Harry E. Lawrence, by reason of the stipulation above set forth, and their assignment of error thereto is overruled.
During the cross-examination of Homer Lloyd Parrish, when he was on the stand as an adverse witness for plaintiff, this occurred: Homer Lloyd Parrish admitted he had no North Carolina driver's license. He was then asked by counsel for the Lawrences: "You've been convicted of drunk driving, haven't you?" The trial judge sustained an objection by Parrish's counsel stating it is not competent, he would let him put it in later. To this ruling the defendants Lawrence did not except. After some colloquy between Lawrence's counsel and the judge, the judge stated in effect that if Parrish had been convicted of drunken driving prior to this occasion or subsequent to it, that would be competent, but a conviction of drunk driving by Parrish on this particular occasion would be incompetent. To this ruling the defendants Lawrence excepted. At this point the jury was sent to its room, and in the jury's absence counsel for the Lawrences asked Parrish: "You have been convicted of driving drunk, haven't you?" He replied: "Yes, sir, in Recorder's Court in Richmond County as a result of this accident, but I have never been convicted before that accident of any traffic laws." Defendants Lawrence assign as error the exclusion of this evidence, contending it was competent for the purpose of impeaching Parrish's credibility as a witness, and they state further in their brief they "do not contend that the evidence of Parrish's previous unappealed conviction for drunken driving arising out of the occurrence here in controversy should be received as substantive evidence against him." They further assign as error the ruling of the court to the effect that they could not ask the general question if Parrish had been convicted of drunken driving.
In Swinson v. Nance, 219 N.C. 772, 15 S.E.2d 284, 289, on cross-examination, the defense attorney attempted to ask one of the plaintiffs in an action for negligence growing out of an automobile collision if he had not been convicted of reckless driving as a result of the accident. The plaintiff would have answered in the affirmative. Exclusion of the evidence of conviction was held proper, though counsel for defendant stated that he asked the question solely for the purpose of impeaching the witness. *9 This Court said: "Passing the fact that the question was not renewed when the jury returned, we think its exclusion was proper anyway. If the sole purpose was to impeach the witness by showing that he had been convicted of a criminal offense, the question might have been formulated differently. The question tied the testimony to the transaction then under civil investigation and the effect, if the evidence should be admitted, was to bring before the jury on the question of contributory negligence the fact that the plaintiff had been convicted of careless driving by another jury because of the same act of negligence. The situation is novel as far as we can discover, but we are convinced that the exclusion of the evidence was proper, on this principle ut res magis valeat quam pereat.'" In reference to this point in the Swinson case, this comment appears in 34 N.C.Law Review, p. 291, note 52: "While the evidence was offered for the purposes of impeachment, it would seem that the exclusion of the evidence, had it been offered on the issue of the plaintiff's negligence, should follow a fortiori. Cf. Warren v. Pilot Life Insurance Co., 215 N.C. 402, 2 S.E.2d 17 (1939)."
Mosely v. Ewing, Fla.1955, 79 So. 2d 776, was an action to recover damages for personal injuries sustained by plaintiff, when the automobile he was driving was hit from the rear by an automobile driven by defendant. On cross-examination of defendant by plaintiff's counsel, defendant, over his objection, was compelled to answer that he had been convicted of reckless driving and fined as the result of such conviction. The Supreme Court of Florida held that the admission of this evidence over the defendant's objection constituted reversible error, and ordered a new trial. See also Eggers v. Phillips Hardware Co., Fla.1956, 88 So. 2d 507.
Sherwood v. Murray, Tex.Civ.App.1950, 233 S.W.2d 879, 880, was an action for damages growing out of a collision between two automobiles. Plaintiff was a guest in an automobile being driven by one Al Hoffman. Hoffman testified he did not stop at the stop sign on Blacker Street before entering Stanton Street. On cross-examination counsel asked him: "As a matter of fact, you forfeited a bond you put up in the police station, didn't you?" The court sustained an objection to the question. It was a fact that Hoffman did put up a sum of money as a bond and forfeited it by failure to appear. The Court in its opinion said: "Evidence that Hoffman had forfeited a bond he had put up at the police station was inadmissible for any purpose * * *. By the great weight of authority even evidence of a conviction in a criminal prosecution for the very acts which constitute the negligence sought to be established in a civil suit as the basis of liability is not admissible unless such conviction is based on a plea of guilty. See Annotations, 31 A.L.R. 262; 57 A.L.R. 504; 80 A.L.R. 1145. There are a few authorities holding such evidence admissible to substantiate evidence as to the defendant's action. See 9 Blashfield Cyc. of Automobile Law and Procedure, p. 641, Sec. 6196. However, we have found no authority holding evidence of such conviction admissible for the purpose of impeaching the witness." (Emphasis ours.)
Johnson v. Empire Machinery Co., 5 Cir., 256 F.2d 479, and Dunham v. Pannell, 5 Cir., 1959, 263 F.2d 725, are distinguishable. In the Johnson case, Cooper, the defendant's driver, several days after the accident paid a fine without insisting on a trial for following too closely. In the Dunham case, the truck driver signed a statement, admitting guilt to charge of a traffic offense. In McMullen v. Cannon, Ind.App.1958, 150 N.E.2d 765, 766, relied on by defendants Lawrence, plaintiff, on cross-examination, was asked whether he had been convicted of drunk driving for the purpose of impeachment. The court sustained an objection to the question. Plaintiff was then asked: "On this particular date were you operating your motor vehicle under the influence of liquor?" To which he replied "I was not." The Court ordered a new trial holding the question asked, to which an objection was sustained, was proper. That was a different *10 situation from what we have here. In the instant case Parrish replied that he had been convicted of driving drunk on the occasion when the collision occurred which formed the basis of the instant case, but that he had never been convicted before that accident of any traffic laws. There is no evidence so far as the record discloses that he has been convicted of the violation of any traffic laws since the collision here. Certainly, driving drunk is a violation of the traffic laws. See Annotation, 20 A.L.R. 2d 1217: "Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses."
Following our own decision of Swinson v. Nance, supra, with which Moseley v. Ewing, supra, seems to be in accord, we hold that the court properly excluded the evidence that Parrish had been convicted of driving his truck while drunk on the occasion when the collision here occurred. To have admitted it in evidence for the purpose of impeaching Parrish might, and probably would have caused the jury to give such conviction undue weight in this action, wherein plaintiff was seriously injured and asking for large damages. The judge told counsel for defendants Lawrence in effect he could ask Parrish if he had been convicted of drunk driving before or subsequent to the collision here. He declined to ask questions to that effect. If he had asked such questions, there is nothing in the record to show that he would have received any benefit thereby, and the burden is upon defendants Lawrence to show prejudicial error. Johnson v. Heath, 240 N.C. 255, 81 S.E.2d 657. The assignments of error by defendants Lawrence in respect to these matters are overruled.
Defendants Lawrence assign as error number 3 that the judge just before court recessed in the afternoon sustained upon objection of Parrish's counsel this question asked by their counsel on cross-examination of plaintiff: "if you didn't tell your father it was not Harry's fault?" This assignment of error will be disregarded, because it is not supported by an exception in the record, but only by an exception appearing in the assignment of error. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223. In addition it is without merit because upon the reconvening of court the following morning the judge reversed himself, and the prosecutrix answered the question as follows: "I have told my father that I don't blame Harry."
The other assignments of error by the defendants Lawrence as to the evidence, brought forward and discussed in their brief, are not meritorious and all are overruled.
Defendants Parrish have no assignment of error and no exception as to the evidence.
At the close of all the evidence and before the charge defendants Lawrence tendered issues, as did defendants Parrish. The court submitted to the jury the issues tendered by defendants Lawrence. The issues tendered by defendants Parrish included an issue as to whether or not plaintiff by her own negligence contributed to her injuries. Defendants Parrish assign as error the failure of the court to submit an issue of contributory negligence.
The evidence upon which defendants Parrish rely in respect to this assignment of error is contained primarily in the testimony of plaintiff, and is to this effect: She was sitting with her knees on the seat talking to Harry W. Lawrence, and he was talking to her. She was looking at Harry, and paying no attention to the road ahead or his operation of the automobile. She was paying attion to what Harry was saying, and she assumes Harry was paying attention to what she was saying. She did not tell him to look at the road. Defendants Parrish contend if she had been watching the road, she would have seen that Harry W. Lawrence was driving on his left side of the road, and could have warned him, and her failure to do so was contributory negligence.
Plaintiff's testimony is further to this effect: It was a pretty day and the road was *11 dry. The speed of the Lawrence automobile was about 40 miles per hour: Harry W. Lawrence testified his speed was 45 miles an hour. She did not observe anything that caused her to have any complaint about the way Harry was driving at the time the collision occurred.
In Gardiner v. Travelers Indemnity Co., La.App., 11 So. 2d 61, 64, the Court said: "Ordinarily, a guest may rely on the driver to keep a proper lookout, unless the danger is obvious, or is known to the guest, and is apparently not known to the driver. The guest cannot be expected to keep the same careful lookout at all times as the driver is required to keep, and the guest is necessarily required to intrust a great part of his safety to the driver. Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 4, p. 202, § 2411 et seq.; 5 Am.Jur., Automobiles, Section 476, p. 770." In our Perm. Ed. of Blashfield the page is 541.
Granting that it is the duty of a guest passenger in an automobile to exercise ordinary care for his own safety, and as one item thereof to maintain some sort of lookout (Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787), what constitutes the exercise of ordinary care on the part of the guest depends on circumstances. The place occupied by the guest is important in determining whether he exercised reasonable care, for one on the front seat may have a far better opportunity of discovering danger ahead than one on the back seat. 5A Am.Jur., Automobiles and Highway Traffic, § 795.
In Darling v. Browning, 120 W.Va. 666, 200 S.E. 737, 739, plaintiff was a guest passenger riding on the front seat. The Court said: "In the course of the ordinary operation of an automobile under circumstances and conditions which may be considered usual for the street or road being traveled by it, guests in the automobile are not required to be constantly at the height of attention and alertness in order to raise an instant alarm if danger should arise. Such strictness of requirement would impose an exaction, destructive of the reasonable use and enjoyment of automobiles. A guest must not be oblivious to danger but, on the other hand, the law does not require that he be annoyingly active in vigilance and in proclaiming notice of danger. Such conduct may readily result in more harm than good." To the same effect see 5A Am.Jur., Automobiles and Highway Traffic, § 794. See also 60 C.J.S. Motor Vehicles § 202, p. 545, wherein it is said: "A guest * * * is not bound * * * to pay constant attention to the management of the car." In Lindley v. Sink, 218 Ind. 1, 30 N.E.2d 456, 462, 2 A.L.R. 2d 772, the Court said: "Ordinarily a passenger in an automobile, having no control over the management of the automobile, may rely upon the assumption that the driver will exercise proper care and caution, and, therefore, under the facts and circumstances of the particular case the passenger may be exercising reasonable care for his safety although not keeping a lookout for other cars approaching." See also White v. State Farm Mut. Auto Ins. Co., 222 La. 994, 64 So. 2d 245, 42 A.L.R.2d 338headnote 4 in A.L.R. See also 5A Am.Jur., Automobiles and Highway Traffic, § 795.
If Harry W. Lawrence's automobile was on the left side of the road, there is nothing in the record to show for what distance it had been on that side, and nothing to show plaintiff could have seen that unless she had been constantly alert. The road was dry, the time was 3:45 p. m., there was nothing to obscure the vision of the driver, Harry W. Lawrence, and he was driving from 40 to 45 miles an hour on a road that at and near the scene of collision was fairly level and straight. Harry W. Lawrence testified he had just come out of a curve, he could see the highway for several hundred yards, and he had both hands on the wheel looking straight ahead. Homer Lloyd Parrish testified he came out of a curve at the scene of the collision. It is true she testified she was facing Harry W. Lawrence talking to him, paying no attention to the road ahead or his operation of *12 the automobile, but she also testified that he was driving 40 miles an hour, and that she observed nothing that caused her to complain about the way Harry was driving at the time the collision occurred. As she was aware of these facts, this is not a case where she surrendered herself completely to the care of the driver. In our opinion, there is no evidence tending to show that plaintiff failed to exercise ordinary care for her safety which proximately contributed to her injury. The court properly refused to submit the issue of contributory negligence tendered by defendants Parrish. The case of Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326, contains many similar facts, and no issue of contributory negligence was submitted. For other cases where no issue of contributory negligence was submitted see, Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143; York v. York, 212 N.C. 695, 194 S.E. 486.
All assignments of error to the charge by defendants Parrish and defendants Lawrence are to the first two issues, none by any of the defendants to the damage issue. All these assignments of error brought forward and discussed in the briefs of the respective parties have been examined, and all are untenable and all are overruled. The court gave to the jury the prayers for instructions prayed by defendants Lawrence, which take up according to quotation marks in the charge seven pages of the charge. There is nothing in the record to indicate that the court refused any such prayer of defendants Lawrence, or changed a word of these prayers for instructions. It would seem that such long prayers for instructions covered every aspect of the law and facts, as contended by defendants Lawrence during the trial.
Defendants Lawrence assign as errors certain parts of the charge which they contend contain improper comments by the judge on the weight and sufficiency of the evidence, and show bias on the part of the judge which deprived them of a fair trial. Defendants Parrish make no such contentions. We find nothing in the record and charge to support such contentions as to the conduct and language of the able and learned jurist who presided at the trial.
All assignments of error brought forward and discussed in the briefs of defendants Parrish and of defendants Lawrence are overruled. In the trial below we find as to defendants Parrish and as to defendants Lawrence.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336675/ | 101 Ga. App. 655 (1960)
115 S.E.2d 117
PEOPLES LOAN & FINANCE CORPORATION et al.
v.
CY OWENS.
38186.
Court of Appeals of Georgia.
Decided April 28, 1960.
Adhered To May 13, 1960.
*656 Wright, Rogers, Magruder & Hoyt, Clinton J. Morgan, for plaintiffs in error.
Covington, Kilpatrick & Storey, J. S. Kilpatrick, contra.
GARDNER, Presiding Judge.
On the motion to quash (paragraph 1 of which is predicated on the addition of the word, "Inc." after the words, "Cy Owens"), the word "Inc." is alleged to have been added by amendment. We find that the record shows that the word "Inc." was in the original petition, which, although styled "Cy Owens, Inc. v. Peoples Automobile Loan & Finance Co. et al." recited in the first sentence: "The petition of Cy Owens of Cy Owens, Inc., a corporation organized and existing under the laws of the State of Michigan." The amendment of July 18, 1959 struck the words "of Cy Owens," contended to be a typographical error, and left the words "of Cy Owens, Inc., a corporation", etc. The process was styled "Cy Owens, Inc." and was served on the defendants on July 21 and 27 respectively, *657 of the same year. It is thus undisputed that the defendants were served in a case styled in the correct name of the corporate plaintiff. It cannot be said that a new party was added by amendment because no new matter was added by amendment. Whatever the words "of Cy Owens of Cy Owens, Inc." meant as originally written, the petition must be considered in the condition in which it appeared at the time of the service of process, under authority of Crown Laundry v. Burch, 205 Ga. 211 (53 S.E.2d 116) where it is stated: "Attaching process to the amendment petition is the legal equivalent of attaching process to a petition which in the first instance prayed for process." In that case the prayer for process was added by amendment before service of process. In the present case the introductory statement in the first sentence was amended to delete superfluous matter so that it would correspond to the caption, and the defendants were as a matter of fact served in the case of "Cy Owens, Inc.", this fact appearing on the process, and corresponding with the petition as amended prior to service of process. Therefore, the instant case should not be dismissed on the ground that the plaintiff sought to substitute a new party plaintiff. It is true that a new party plaintiff cannot, under any circumstances, be added by amendment. We see no good purpose to be served by citing the decisions on this point which appear in the brief of the defendants. The motion to quash is not meritorious on any ground assigned. It follows that the court did not err in overruling the motion to quash.
2. The defendant McCoy has filed a plea to the jurisdiction. We do not find anything meritorious in this plea because it is predicated on the same principle of law involved in the motion to quash, i.e., the allegation that there has been an attempt to add a new and distinct party by amendment, contrary to the provisions of Code § 81-1303. The trial court did not err in overruling this plea.
3. We find that there is no merit to the objections to the plaintiff's amendment to the effect that there was an attempt to add new and distinct parties defendant by amendment, and the court did not err in overruling this plea. See our reasons set out in division 1 hereinbefore.
*658 4. We come next to determine the demurrers to the petition as amended. Paragraph 1 of the demurrer was properly overruled by the court for the reason that it alleges that an attempt was made to substitute a corporation plaintiff in lieu of an individual plaintiff. This question has been passed on hereinabove. Paragraph 2 of the demurrer alleges that paragraph 3 of the amendment to the petition is ambiguous in that it is insufficient to put the defendants on notice as to whether the plaintiff's action is based on a claim of title or a right of possession, and that the plaintiff should be required to make an election or strike the paragraph. That paragraph of the amended petition reads as follows: "That said defendant, Douglas W. Dennard, is president of the defendant corporation, Douglas Motor Sales, Inc., and defendant, Charles M. McCoy is vice-president of defendant Douglas Motor Sales, Inc., and is vice-president and manager of defendant Peoples Automobile Loan & Finance Corp. and that each of the defendants individually, and in concert and collusion with each other, knowingly converted said personal property to their uses, and refuses to deliver the above described property to your petitioner or to pay them the profits thereof." We cannot see that this paragraph of the petition is subject to the criticism directed to it, and the demurrer to this paragraph was properly overruled.
Paragraph 3 demurs to the same paragraph of the petition quoted immediately hereinabove by alleging that the phrasing "each of the defendants individually, and in concert in collusion with each other, have knowingly converted said personal property to their uses" as being a mere unsupported conclusion of the pleader. Paragraph 4 of the demurrer objects to the same phrase in the petition and alleges that the petition fails to allege how and by what acts these defendants converted said property. Paragraph 5 of the demurrer goes to the same phrase of the petition and alleges that the phrase is ambiguous, self-contradictory, and not sufficient to put these defendants on notice as to whether their liability is based on individual or collusive action. Paragraph 6 demurs to the same paragraph of the petition and particularly to the phrase reading: "and refuses to deliver . . . or to pay them the profits thereof" because it is alleged *659 that this paragraph fails to show when and where the defendants made such refusal and the name of the person who made demand on them.
It is our opinion that the trial court properly sustained demurrers numbered 3, 4, 5 and 6.
Paragraph 7 demurs to and moves to strike that part of paragraph 3 which reads as follows: "Charles N. McCoy is vice-president of defendant Douglas Motor Sales, Inc." because it is alleged that this is irrelevant and prejudicial and that it has no connection with the ultimate facts involved. The trial court overruled this demurrer and we think properly so because the other pleadings are clear and no one was harmed by this phraseology.
Under the record before us we find no reversible error in any of the rulings of the trial court.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
ON MOTION FOR REHEARING.
We have read the motion for rehearing carefully. In our original opinion we did not think it necessary to labor through the pleadings to the extent of pointing out, paragraph by paragraph, the motion to quash the process which referred to the amendment filed by the plaintiff on July 18, 1959. It would have been necessary to go into the amendment paragraph by paragraph.
Actually, according to our minds, the amendment contains, as pointed out, an objection to the alleged addition of the word, "Inc." in paragraph 1, and generally otherwise the motion to quash is predicated on the allegation that the process of July 20, 1959, is null and void. We have reread the opinion as it was written and we do believe that we have sufficiently covered each point to which objection is made and we have nothing to add at this point except to deny the motion for rehearing and adhere to our judgment of April 28, 1960.
Motion for rehearing denied. Carlisle, J., concurs. Townsend, J., concurs specially.
TOWNSEND, Judge, concurring specially on rehearing. I concur with the judgment of affirmance, but not with what is said in the motion to rehear nor with the first sentence of the majority *660 opinion. As I pointed out in the first instance, the amendment to the petition in question did not add the word "Inc." to the plaintiff's name, but deleted the superfluous words "of Cy Owens." And while I agree with counsel for the movant that a new party may conceivably be added by deletion as well as addition of material, I find that was not the case here for the reason that the petition and process, at the time they were served upon the defendant designated that defendant as "Cy Owens, Inc.," and it is my position that where the wording of the original petition is such as to suggest a typographical error, and that error is corrected prior to service of process, the petition in the form in which process and service are made will alone be considered in considering who are the parties to the case.
Counsel for movant correctly states that this court had not passed upon the first ground of the motion to quash process, based on the proposition that the trial court was without jurisdiction to entertain an amendment, and to attach process to the petition, while the case was pending in this court. An examination of the record shows that the remittitur of this court in the case of McCoy v. Cy Owens, Inc., 99 Ga. App. 615 (109 S.E.2d 543) was filed in the trial court on June 15, 1959, and the amendment was not filed there until July 21, 1959, so the contention is not true as a matter of fact. Another part of the case embodied in Douglas Motor Sales, Inc. v. Cy Owens, Inc., 99 Ga. App. 890 (109 S.E.2d 874) was also on appeal and that remittitur was filed in the trial court on August 5, 1959, but the judgment there involved simply affirmed the case as to other defendants and did not affect these defendants. The decision in Kiser v. Kiser, 214 Ga. 849 (108 S.E.2d 265) as this court understands it does not mean that an amendment cannot be filed in the trial court under any circumstances if there is an appeal as to any feature of the case pending in this court or the Supreme Court. What it means is that if all of the case is so pending, as where a single defendant appeals after verdict and judgment, then there is no part of the case left pending in the trial court as to which an amendment to pleadings would be operative. Such a situation is not here involved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/611992/ | 999 F.2d 545
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Samuele MANNO, Defendant-Appellant.
No. 92-30089.
United States Court of Appeals, Ninth Circuit.
Submitted May 4, 1993.*Decided July 21, 1993.
1
Before PREGERSON and KLEINFELD, Circuit Judges; LEGGE, District Judge**
2
MEMORANDUM***
3
Defendant Samuele Manno appeals after pleading guilty to cocaine possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The appeal concerns appellant's pretrial motion to suppress evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
4
The district court held an evidentiary hearing on appellant's motion to suppress the evidence found in his vehicle. Appellant argued that his stop by the police was pretextual, that the detention following the stop was a ploy to hold him and search his car, that he did not consent to the search, and in the alternative, if he did consent, his consent was not voluntary. The district judge denied the suppression motion, stating his reasons on the record. He found that the initial stop and Manno's subsequent consent to the search were valid. Defendant then entered a conditional guilty plea.
5
The district court found that the police officer observed Manno's car both weaving and driving significantly below the speed limit. The officer pulled him over, and a second officer was summoned to the scene. After calling in defendant's license and registration and finding no outstanding warrants, and after deciding that Manno was not intoxicated, Manno was told that he could leave. As Manno and the police walked towards his car, the officers told him that drugs were frequently smuggled along this route. They asked Manno if they could search the car. Manno consented to the search, and an officer subsequently found cocaine in his car.
II.
6
The factual findings of the district court are reviewed under the clearly erroneous standard. Maine v. Taylor, 477 U.S. 131 (1986). Questions of mixed law and fact are considered first by reviewing the factual issues under the clearly erroneous standard, then considering the applicable law de novo, and finally considering the application of law to fact de novo. United States v. Allen, 831 F.2d 1487, 1494 (9th Cir.1987), cert. denied 487 U.S. 1237 (1988).
7
Voluntariness of consent is a factual question to be determined from all of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973); United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988). The prosecutor has the burden of proving that consent was "freely and voluntarily given" and "(t)his burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548 (1968) However, a prosecutor need not prove that defendant knew he had the right to refuse consent. Schneckloth, 412 U.S. at 249.
III.
8
The district court's findings were supported by the evidence and are not clearly erroneous.
9
Appellant does not dispute the record that he crossed the traffic line and that he was driving well below the usual speed. He nevertheless argues that the stop was a pretext for the police to interrogate and search him. An arrest may not be used as a pretext to search for evidence. Whether the arrest is pretextual hinges upon the motives of the arresting officer. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986), (quoting, Williams v. United States, 418 F.2d 159, 161 (9th Cir.1969)). However, the facts in the record establish that the police had reason to stop Manno, because he was driving as if he were intoxicated, and there is no other evidence in the record of pretext.
10
Appellant argues that once the officers determined that he was not drunk and decided to let him go, they should have released him immediately and not held him longer in order to search his car. He also argues that he either did not consent to the search, or if he did consent, the consent was not voluntary. Appellant's factual argument is contrary to the findings made by the district judge. Once defendant's license and registration were cleared, and the police decided that he was not intoxicated, the police informed Manno that he was free to leave. They then asked him if they could search his car. The judge found that defendant consented and that his consent was voluntary. The district court's findings were supported by the record.
11
The decision of the district court denying the motion to suppress is AFFIRMED.
*
The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)
**
Hon. Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/724228/ | 92 F.3d 1178
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.C. Allen FORREN, Plaintiff-Appellant,v.SELECTIVE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
No. 95-1985.
United States Court of Appeals, Fourth Circuit.
Aug. 2, 1996.
Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. James C. Turk, District Judge. (CA-94-25-L)
ARGUED: Robert Cornelius Wood, III, EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appellant. Jean L. Schmidt, ROBERTS & FINGER, L.L.P., New York, New York, for Appellee. ON BRIEF: Kristine H. Smith, EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appellant. Joel L. Finger, ROBERTS & FINGER, L.L.P., New York, New York, for Appellee.
W.D.Va.
AFFIRMED.
Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
PER CURIAM:
1
C. Allen Forren filed this action asserting claims for employment discrimination under the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et seq.) and for wrongful discharge in violation of the public policy of the Commonwealth of Virginia. Forren contends that his former employer, Selective Insurance Company of America ("Selective"), terminated his employment because of his age. Selective contends that Forren voluntarily accepted a severance package, and that his separation from employment was the result of his unwillingness to accept another position with the company after a company reorganization effectively rendered him unqualified for his job position.
2
On Selective's motion, the district court entered summary judgment in favor of Selective on both of Forren's claims, concluding that he failed to present direct evidence of discrimination and that he failed to establish a prima facie case of discrimination under the McDonnell-Douglas scheme of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).* Forren argues on appeal that the district court erred in reaching both of these conclusions. We disagree. Our careful review of the record and the controlling legal principles readily convinces us that the district court ruled correctly, and we therefore affirm the summary judgment on the reasoning set forth in the district court's memorandum opinion. Forren v. Selective Ins. Co. of Am., C.A. No. 94-0025-L (W.D.Va. Apr. 13, 1995).
AFFIRMED
*
Because the district court rejected the age discrimination claim, it determined that the wrongful discharge claim necessarily must also fail | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/770752/ | 229 F.3d 593 (7th Cir. 2000)
Lisetta Molnar, Plaintiff-Appellee, Cross-Appellant,v.Lloyd Booth and East Chicago Community School Corp., Defendants-Appellants, Cross-Appellees.
Nos. 98-4047, 98-4056, 98-4127, 98-4291
In the United States Court of Appeals For the Seventh Circuit
Argued September 24, 1999-Decided October 2, 2000
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2 96 CV 259 JM--James T. Moody, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Bauer, Ripple, and Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.
1
This appeal comes to us from a jury's verdict in favor of plaintiff Lisetta Molnar on her sexual harassment claims against the East Chicago Community School Corporation (East Chicago) and Lloyd Booth, the principal of the junior high school where she taught. She based these claims on both Title VII and 42 U.S.C. sec. 1983. In addition to modest awards of $500 each on the two theories, the jury awarded $25,000 in punitive damages against Booth and the court added $65,760 in attorneys' fees against both defendants. The defendants' appeals are based principally on the district court's denial of their motions for judgment as a matter of law under Fed. R. Civ. P. 50, though they also complain about other aspects of the trial, the fees, and (in Booth's case) the punitive damages. Molnar cross-appealed from the court's decision to grant judgment as a matter of law on part of her sexual harassment claim. Finding no reversible error in any of the court's decisions, even taking into account the changed landscape for sexual harassment claims after the Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), we affirm.
2
* The account of the facts that follows presents them in the light most favorable to Molnar, for two reasons. To the extent we are considering the Rule 50 motions filed by Booth and East Chicago, we are obliged to view the facts in the light most favorable to the non-moving party--that is, Molnar. See Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 343-44 (7th Cir. 1995). To the extent we are reviewing the jury's verdict, we must view the facts in the light that supports its verdict. McCalpine v. Foertsch, 870 F.2d 409, 414 (7th Cir. 1989); LaMontagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1410 (7th Cir. 1984). With respect to the jury instructions, evidentiary rulings, and disposition of attorneys' fees, our review of the district court's actions is essentially for abuse of discretion (though the specific standard for jury instructions cautions us to make sure that the law was fairly stated to the jury).
3
Molnar began working at Westside Junior High School, which was part of East Chicago, on August 22, 1994. She had been engaged to teach art classes as an intern, and she hoped to become qualified to be a full-fledged teacher at the end of her internship there. Booth was the principal of Westside.
4
On her first day of work, Booth ogled her and made appreciative noises. He took her into his office, closed the door, and put on music. He then suggested that he and Molnar had much in common and asked for her telephone number. During the same conversation, he told her that he could secure various benefits for her like a permanent art room--a "perk" that she, like other junior teachers, did not have--and supplies. She perceived all of this as a sexual advance, which made her uncomfortable.
5
For a time, Booth's unwelcome behavior continued. Over the next three to four weeks he called Molnar down to his office on a regular basis during the class period set aside for planning. He discussed "personal things." She thought she saw him staring at her from outside her classroom on several occasions. He showed her a music room and a wrestling room as potential art rooms. He invited her onto his boat. He talked about how difficult it was to meet people and have relationships and discussed the threat of AIDS with her. Once he pulled his pants tightly over his crotch, making Molnar think he was calling attention to that part of his body. Molnar felt intimidated by Booth, but she rejected all of his advances.
6
Her spurning of him had rather immediate repercussions. Booth took back the art supplies he had given her, and all talk of giving her an art room evaporated. At one point Molnar asked the Director of Secondary Education for East Chicago, Charles Carter, for help in getting a room. When Booth learned of the inquiry, he became angry and told Molnar not to go over his head again.
7
Matters became worse at the end of the school year. In May 1995, Booth gave the Indiana Professional Standards Board an evaluation of Molnar's internship that could have been understood as failing her. He specifically failed her in two categories, but, in a contradictory move, he also signed the back of the form. Standing alone, the signature on the back of the form would have meant that she could get her license. On the other hand, the negative evaluation on the face of the form meant that she could not. The effect of the inconsistent feedback from Booth meant, according to Molnar, that she was not in a position to receive the license.
8
The rest of the evidence supports her view that the failing evaluation was a serious matter. Molnar learned of it in October 1995 when union officials told her about it. She asked them to file a grievance on her behalf complaining both about Booth's sexually harassing conduct and his retaliation when she rejected him by failing her. Around the same time, Booth learned that she was protesting the evaluation, and he warned her, "you don't know what you're getting yourself into."
9
The union officials followed through by informing the school administrators of Booth's harassing and retaliatory conduct. One School Board member testified that he had asked someone to look into the matter, but no one ever talked directly to Molnar, and in the meantime Booth continued to haunt her. At the Board meeting of November 27, 1995, union members formally presented her grievance. Nothing happened except Booth's reappearance in her classroom a week later, ostensibly to perform another evaluation. This prompted the union to institute a formal grievance proceeding. The Board scheduled a hearing for three weeks after the union's presentation, but no hearing ever took place. Instead, on December 27, the Board overturned the conclusion that she had failed her internship. It never made a decision on the sexual harassment charges, nor did it take any disciplinary action against Booth, who continued to serve as Molnar's principal for the remainder of that school year.
II
10
Molnar filed her complaint against Booth and East Chicago on August 15, 1996. She argued that East Chicago had violated both Title VII and sec. 1983, and that Booth had violated sec. 1983, through the sexual harassment she had suffered. The case went to trial, where both defendants moved under Fed. R. Civ. P. 50 for judgment as a matter of law. The district court granted the motions insofar as they sought to eliminate Molnar's claim based on "hostile environment" sexual harassment (a commonly recognized category before the Ellerth and Faragher decisions), but it denied them otherwise.
11
At the trial, over the defendants' objection, Molnar presented the testimony of Christine Kolavo, another woman who had served her internship under Booth's supervision. Kolavo testified that Booth had asked permission to call and date her, and that when she refused, he had discontinued his supervision of her and had asked Vice-Principal Donna Vega to take over. The defendants' objection was based on relevancy and potential prejudice; Molnar defended its admissibility on three grounds: that it was admissible to establish retaliatory intent, that it was proper to impeach Booth's testimony that he had never asked out any female employee and would never do so, and that it tended to show that East Chicago was on notice of Booth's behavior. The district court agreed that it was relevant to Booth's intent and not unduly prejudicial and on that basis admitted it.
12
The defendants also object to the court's instructions to the jury, which were obviously drafted before Ellerth and Faragher. The three instructions at issue, numbers 4-6, all relate expressly to Title VII liability and thus are relevant only to the claims against East Chicago. (Booth makes the erroneous statement in his brief that because he cannot be liable under Title VII, he should also be exempt from liability under sec. 1983. That is not true. See Wudtke v. Davel, 128 F.3d 1057, 1064 (7th Cir. 1997) (and cases cited there). Those three instructions as a whole clearly showed that the court was restricting the Title VII theory to East Chicago, as was proper. The remaining instructions make it clear that it was asking the jury to evaluate Booth's conduct only under sec. 1983.) East Chicago argues that the three instructions misstated both pre- and post-Ellerth and Faragher law and that this error independently requires us to reverse and remand for a new trial.
13
The jury found for Molnar on both her Title VII and her Equal Protection claims, awarding her $500 in actual damages against East Chicago on the Title VII count and $500 against Booth and East Chicago on the sec. 1983 count. It also awarded her $25,000 in punitive damages against Booth on the sec. 1983 count. The district court entered judgment on the verdict on March 16, 1998. In response to Molnar's motion for costs and attorneys' fees, the court entered a final order on October 29, 1998, awarding attorneys' fees in the amount of $65,760 jointly and severally against Booth and East Chicago. Booth and East Chicago have appealed from the verdict and fee orders against them, and Molnar has taken a cross-appeal from the district court's Rule 50 order dismissing her hostile environment claims.
III
A. Appeal of Booth and East Chicago
14
Our review of the district court's denial of the defendants' motions for judgment as a matter of law under Rule 50 is de novo. See Deimer v. Cincinnati Sub-Zero Products, supra, 58 F.3d at 343-44. In addition, it is particularly important here to acknowledge that we apply the law as it now is, including the Supreme Court's intervening decisions in Ellerth and Faragher. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993).
1. Title VII
15
Although Booth's brief contains some references to Title VII, we reiterate for the sake of completeness the fact that the district court's instructions clearly indicated that it was not permitting Molnar to pursue a Title VII claim against Booth. This was correct, because an individual supervisor does not fall within the definition of the term "employer" for Title VII purposes. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912, 917 (7th Cir. 1996); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995). Thus, the jury was never invited to impose liability on Booth under Title VII, it never did so, and Booth has no grounds for complaining about any ruling of the district court on a Rule 50 motion that addressed his liability under that theory.
16
East Chicago, in contrast, was Molnar's employer and it was therefore potentially liable to her for a violation of that statute. The district court also denied East Chicago's Rule 50 motion seeking to keep from the jury Molnar's claim of sexual harassment. Viewing the evidence in the light most favorable to Molnar, and keeping in mind the Supreme Court's guidance in Ellerth and Faragher for these claims, we find no error in the court's decision.
17
In Ellerth and Faragher, the Supreme Court established the standards that govern the liability of an employer for sexually harassing behavior of a supervisor toward a subordinate employee. The Court abandoned the prior distinction, for vicarious liability purposes, between so-called quid pro quo harassment and hostile environment harassment, in favor of a test that distinguished between cases in which the supervisor takes a tangible employment action against the subordinate and those in which he does not. Ellerth, 524 U.S. at 760-65; Faragher, 524 U.S. at 807. The employer's liability in all kinds of cases is determined under agency principles, as the Supreme Court has developed them.
18
In general, employers bear vicarious liability for the harassment committed by a supervisor, in accordance with the following rules as summarized in Faragher
19
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
20
524 U.S. at 807-08. Regardless of the vocabulary then in use, Molnar therefore had to have evidence in the record that, if believed by the jury, would have shown that she was suffering from sexual harassment. In addition, the question whether the harassment led to a tangible employment action was critical. If so, East Chicago was liable without more; if not, East Chicago was entitled in principle to the opportunity to show (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that Molnar unreasonably failed to take advantage of any preventive or corrective opportunities provided by her employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
21
Though we consider it a close call, we conclude that Molnar did show a "tangible employment action," as the Court signaled that term should be understood in Ellerth. Citing with approval the concept of "tangible employment action" used in this court's decision in Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993), the Court highlighted indicia such as "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Ellerth, 524 U.S. at 761. We reaffirmed the Crady test in our post-Ellerth/Faragher decision in Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999). To similar effect, in Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999), we said that "[a] tangible employment action has to cause a substantial detriment to the plaintiff's employment relationship." Id. at 932 n.8.
22
The clearest tangible employment action shown in Molnar's evidence was Booth's confiscation of the art supplies he had given her--supplies the jury could have believed were necessary for her to be able to perform her assigned job. (Indeed, as we discuss below, the jury was specifically told in Instruction 6 that it had to find that Molnar's reaction to Booth's advances "affected tangible aspects of her employment." Its verdict for Molnar indicates that it did so find.) This deprivation was not something the School Board ever fixed. At least as a temporary matter, the negative evaluation Booth gave Molnar was also a tangible employment action; the jury could have believed that it spelled the end of a career for an intern. The mere fact that the evaluation was reversed more than six months later and Molnar's career put back on track does not diminish its importance during the time it lasted. To hold otherwise would mean that harassing supervisors could demote employees who rejected their advances with impunity, as long as they later reversed the demotion and restored the employees to their former positions. The short duration is naturally relevant to the degree of damage Molnar suffered from the evaluation, but the jury's verdict of $500 on this claim indicates strongly that the jury was aware of that fact too.
23
The clearest tangible employment action shown in Molnar's evidence was Booth's confiscation of the art supplies he had given her--supplies the jury could have believed were necessary for her to be able to perform her assigned job. (Indeed, as we discuss below, the jury was specifically told in Instruction 6 that it had to find that Molnar's reaction to Booth's advances "affected tangible aspects of her employment." Its verdict for Molnar indicates that it did so find.) This deprivation was not something the School Board ever fixed. At least as a temporary matter, the negative evaluation Booth gave Molnar was also a tangible employment action; the jury could have believed that it spelled the end of a career for an intern. The mere fact that the evaluation was reversed more than six months later and Molnar's career put back on track does not diminish its importance during the time it lasted. To hold otherwise would mean that harassing supervisors could demote employees who rejected their advances with impunity, as long as they later reversed the demotion and restored the employees to their former positions. The short duration is naturally relevant to the degree of damage Molnar suffered from the evaluation, but the jury's verdict of $500 on this claim indicates strongly that the jury was aware of that fact too.
24
If, in the alternative, one were to dismiss the confiscation of supplies as insufficiently grave to amount to a tangible employment action, and one were to recharacterize the evaluation as a threat of a tangible action instead of a present detriment, we would turn to the other half of the Ellerth/Faragher test. Ordinarily, that would require a remand so that East Chicago could have the chance to prove its affirmative defense by a preponderance of the evidence. Remand is not necessary in all cases, however, as Faragher itself illustrates. In Faragher, after outlining its new affirmative defense, the Court concluded that "[w]hile the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed." 524 U.S. at 808. That was so because the district court had found that the City had entirely failed to disseminate its policy against sexual harassment to its beach employees, its officials made no effort to monitor the conduct of its supervisors, and the policy had no provision for bypassing the problematic supervisors when someone wanted to register a complaint. Id. The Court thus held as a matter of law that the City could not establish the affirmative defense.
25
On the alternate hypothesis that Molnar did not show a tangible employment action, we find the same to be true in the present record. East Chicago does not dispute Molnar's assertion that it had no policy specifically aimed at sexual harassment. The only relevant policy East Chicago puts forward as a potential basis for an affirmative defense is the general policy it had barring discrimination on the basis of race, color, or sex. That policy was not a sexual harassment policy: it did not provide any guidance as to what employees should do in the face of sexual harassment--it did not even mention or define sexual harassment. (It is not surprising, then, that Booth, various other East Chicago employees, and union officials offered uncontroverted testimony that they had no idea (or were extremely confused about) what sexual harassment was, and what they should do about it.) Like the City in Faragher, East Chicago thus could never show that it had exercised reasonable care to prevent and correct promptly any harassing behavior. It could not show that Molnar unreasonably failed to take advantage of corrective opportunities it provided, because it provided none. It did not investigate Molnar's grievance; it set a hearing for three weeks later, which was over twice the normal time limit, and then it did not conduct one. There was therefore enough evidence for Molnar to prevail on this view of the facts as well.
26
There is a certain amount of forcing a square peg into a round hole when we evaluate evidence and jury instructions that were organized and drafted under an earlier view of the law according to a later Supreme Court decision. Nonetheless, this is the task the Court has given us in Harper. In addition, since Rule 50 motions are reviewed de novo in any event, we are free to see if any rational jury could find in the non- moving party's favor. Here we have no trouble saying that the answer is yes, under the now- governing legal standards, and thus we find no error in the district court's decision to submit the case to the jury.
27
Our review of the jury instructions on the Title VII claim, Instructions 4 and 5, is similarly influenced by later changes. Once again, the standard of review is a liberal one: we look at jury instructions only to determine if taken as a whole they were sufficient correctly to inform the jury of the applicable law. Maltby v. Winston, 36 F.3d 548, 560 (7th Cir. 1994). Even if the instruction contains errors or misguides the jury, the error is reversible only if a litigant is prejudiced.
28
Taken together with Instruction 6, we think that the jury instructions were adequate. After reciting the pertinent part of Title VII, Instruction 4 told the jury that "[a] plaintiff may establish a violation of Title VII by proving that she was threatened with or suffered adverse employment decisions for refusing unwelcome sexual advances. This type of claim under Title VII is called a claim of quid pro quo sexual harassment or sexual discrimination." So far, so good: Ellerth and Faragher permit both threats and actual adverse actions to be actionable (distinguishing between them only for purposes of the affirmative defense), and it has been clear since Meritor Sav. Bank F.S.B. v. Vinson, 477 U.S. 57 (1986), and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that sexual harassment is encompassed within Title VII's prohibition against sex discrimination. Instruction 5 told the jury that it had to find for the plaintiff on each of four listed elements
29
(1) the plaintiff was a member of a protected class.
30
(2) the plaintiff was subject to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature.
31
(3) the harassment complained of was based on sex.
32
(4) that she suffered or was threatened with a materially adverse change in the terms or conditions of her employment as the result of her refusal to comply with the sexual requests and advances.
33
Again, even though these would in all likelihood not be the instructions that would be drafted today, given Ellerth and Faragher, they communicate the most important points to the jury.
34
It is the final paragraph of Instruction 6, however, that led us earlier to resolve our doubts in favor of concluding that the jury found an actual tangible employment action. That instruction was a classic "quid pro quo" instruction, which told them that the employer (i.e. East Chicago) was strictly liable for quid pro quo harassment, which occurs when a supervisor uses his supervisory authority either by making submission to requests for sexual favors a term or condition of the individual's employment, or by making submission or rejection the basis for decisions affecting the individual. The instruction concluded as follows: "Defendant School Corporation, the employer, is thus responsible or liable for the action of plaintiff's supervisor in plaintiff's claim of quid pro quo sexual harassment if plaintiff Molnar proves, by a preponderance of the evidence, that her reaction to Booth's advance affected tangible aspects of her employment."
35
In our view, these instructions did not so signficantly misstate the law as to require vacation of this verdict and remand for a new trial. In fact, in emphasizing that the action had to be "based on sex," the district court anticipated the Supreme Court's later decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
2. Section 1983
36
East Chicago purports to challenge the jury instructions on both Title VII and sec. 1983, but its brief makes it clear that the only instructions it is attacking are 4, 5, and 6, which pertained only to Title VII and which we have already discussed. It also challenges the district court's denial of its Rule 50 motion on the sec. 1983 claim, arguing that the evidence did not show the kind of intentional discrimination that is necessary for a claim under the equal protection clause. Based on the evidence, however, we believe this was properly a question for the jury. For example, the lack of any policy addressed to sexual harassment was East Chicago's responsibility, not Booth's. Furthermore, East Chicago offers little in the way of argument in support of its claim other than analogies to Title VII. Thus, even if there were points unique to sec. 1983 that it might have developed, it did not do so, and we will not undertake that task.
37
As far as Booth is concerned, we have already noted his error in assuming that because he is not a proper defendant for Title VII, he cannot be held individually liable under sec. 1983. That mistaken premise forms the basis for most of the rest of his arguments, which point out various alleged errors in the Title VII jury instructions. Once again, there was evidence in the record on which the jury was entitled to rely, and we see no reversible error in the district court's decision to submit the case to them.
3. Admission of Kolavo Testimony
38
As we noted earlier, Christine Kolavo testified at trial on Molnar's behalf. Kolavo was a former employee whom Booth had supervised. She recounted an incident in which Booth had followed her out to her car and asked for her telephone number. Kolavo refused to give it to him and then reported the "come on" to Assistant Principal Vega. Vega then offered to supervise Kolavo directly. Kolavo did not make any report to the general school administration.
39
The defendants argued that Kolavo's testimony was irrelevant and prejudicial; Molnar responded that it tended to show either Booth's retaliatory intent or his discriminatory motive, that it impeached Booth's testimony that he had never asked out a person under his supervision and would not do so, and that it gave East Chicago notice of Booth's conduct. The district court, whose decision here we review only for abuse of discretion, admitted it, and did not give an instruction telling the jury it could be considered only for impeachment.
40
We are not impressed with the argument that this evidence gave East Chicago notice about Booth's behavior, especially because Kolavo herself did not alert the administration to the incident. Nor does it show anything about retaliatory intent, either with respect to Kolavo herself or with respect to Molnar. Discriminatory motive, or more accurately modus operandi, comes closer to the mark. Rule 404(b) allows the admission of evidence of other acts if it tends to prove facts like intent, preparation, and absence of mistake. Booth's effort to establish a sexual relationship with Kolavo (which was the way she saw it) suggests that he intended to do the same with Molnar and that he was not accidentally engaged in behavior that could be misconstrued. This was not the entirety of what Molnar needed to prove, but the request for sexual favors was a piece of the evidentiary puzzle, and as such, evidence tending to make the existence of that fact more probable was admissible. See also Fed. R. Evid. 401. In addition, and perhaps even more clearly, the evidence was admissible for impeachment purposes. The fact that no limiting instruction to that effect was given was the defendants' own fault, as they never requested one.
41
Finally, even if the Kolavo evidence would have been better left out (that is, even if the district court's decision to allow it was an abuse of discretion), we find that the error was harmless. See Fed. R. Evid. 103; 28 U.S.C. sec. 2111. Both defendants took advantage of ample opportunities at trial to argue that Booth's actions toward Kolavo were not discriminatory and that East Chicago did not derive any notice from them. Furthermore, the evidence did not report shocking behavior; it was about a simple social request that the listener found inappropriate and that was rebuffed. The jury was thus able to place this one piece of evidence in its proper perspective.
4. Punitive Damages Against Booth
42
Booth claims that the jury's award of $25,000 against him was excessive, because there was insufficient evidence for it to find that he had the requisite scienter to support punitive damages. Unfortunately, he has done little to preserve this point properly. He never moved for judgment as a matter of law on punitive damages, nor did he move for a new trial after the jury returned its verdict and the trial court entered its order. Never having asked the district judge to fix this problem, it is too late in the day to ask us to do so.
43
At least in this procedural posture, we find nothing reversible here. Under Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), a defendant must behave with malice or reckless indifference in order for a court to impose punitive damages on him. Id. at 535. The terms "malice" and "reckless indifference" "pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. The Court specifically rejected an additional "egregious misconduct" requirement that the court of appeals had engrafted onto the statute.
44
The events here took place in 1994, long after the law of sexual harassment had become well established by the Supreme Court. The jury could have found that Booth (the relevant actor here, since we are considering only the sec. 1983 theory) acted with malice or reckless indifference toward Molnar, particularly after she rejected his advances. Booth also attacks the amount of the award, $25,000, as grossly excessive. We realize that this is a significant amount of money for an individual, but as a matter of law $25,000 is not so far out of line that it must be reduced. We upheld a similar punitive damages award in Merriweather v. Family Dollar Stores of Indiana, 103 F.3d 576, 581 (7th Cir. 1996), another sexual harassment case. Assuming as we must that the jury believed Molnar's account and not Booth's, this award is not "monstrously excessive."
B. Molnar's Cross-Appeal
45
Molnar's cross-appeal focuses on the district court's dismissal of her "hostile environment" theory of sexual harassment. But, just as we had to evaluate the verdict in her favor under current Supreme Court law, we must evaluate this part of the case under the current law as well. Many of the facts Molnar put forth fit more comfortably under the old "hostile environment" rubric than they did under the "quid pro quo" classification: facts like Booth's habit of standing outside her classroom and ogling her, calling her to his office continuously, and persistently asking for her telephone number to the point where she started avoiding the lunchroom and common areas lest she find him there. But Molnar was able to introduce this evidence at the trial, and jury instructions 4 and 5 allowed the jury to consider threats as well as actions. Even though instruction 6 called for the jury to find an effect on "tangible" aspects of her employment, the fact is that the jury did so. Molnar would have a stronger case for reversal if the jury had rejected her case under this arguably more demanding standard. The loss of the chance here to present more squarely to the jury the question whether the harassment was sufficiently severe or pervasive to amount to a hostile environment was unimportant given the way things worked out.
46
It would be pointless in our view to send this case back for a retrial on a theory that the Supreme Court has since rejected. Our review of this record satisfies us that Molnar was able to put before the jury all relevant evidence, and the jury was able as a practical matter to consider the very points it would look at under a proper Ellerth/ Faragher set of instructions. We therefore find no reversible error in the district court's grant of judgment as a matter of law on this part of her case.
C. Attorneys' Fees
47
The district court awarded $65,760 in attorneys' fees jointly and severally against both defendants. They assert that it abused its discretion in doing so (which is the proper standard of review). We do not find the award to be so far out of line that it must be reconsidered. Molnar in the end walked away with $35,000 in total damages: $1,000 actual damages on the two counts, and $25,000 punitive damages. The fees are a little less than double that. In addition to winning her monetary award, she was also instrumental in causing East Chicago to institute a sexual harassment policy in the wake of her case.
48
East Chicago also argues that the fees should have been apportioned between the defendants, rather than being imposed jointly and severally, because the monetary award against it was so much smaller than the award against Booth. Again, even though this might have been reasonable, we do not find the district court's refusal to do so an abuse of discretion. When two or more defendants actively participate in a constitutional violation, they can be held jointly and severally responsible for indivisible attorneys' fees. See Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir. 1996). A number of factors govern the decision whether to apportion or to use joiint and several liability: the relative active or passive role each defendant played, fairness, and the goal of reimbursing private attorneys general. Id. Molnar's attorneys' fees were indivisible, because so many of the issues against the two defendants were the same or similar. As in Herbst, Booth could have been seen as an important moving force behind East Chicago's policies (or lack thereof at the pertinent time). This is enough, in our view, to keep the district court's decision within the bounds of its discretion.
IV
49
The judgment of the district court is Affirmed. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1336674/ | 236 S.C. 583 (1960)
115 S.E.2d 308
STATE, Respondent,
v.
James LANGLEY, Appellant.
17679
Supreme Court of South Carolina.
July 8, 1960.
*584 Charles W. McTeer, Esq., of Chester, for Appellant.
Messrs. Daniel R. McLeod, Attorney General, and Julian L. Johnson, Assistant Attorney General, of Columbia, and George F. Coleman, Solicitor, of Winnsboro, for Respondent.
*585 July 8, 1960.
TAYLOR, Justice.
Defendant, convicted before a Magistrate for violation of the provisions of Act No. 181 of the General Assembly for 1959, now appearing as Sec. 5-624.2 of the Supplement to the Code of Laws of South Carolina, 1952, appeals contending that such Act is violative of Art. I, Sec. 5, of the Constitution of South Carolina, and of the XIV Amendment of the Constitution of the United States.
The Act under consideration provides:
"It shall be unlawful for the operator of any pinball machine to permit any minor under the age of eighteen to play or operate such machine. The operator of any pinball machine shall be responsible that every person who plays or operates his machine is in fact legally authorized to do so."
It is admitted that defendant is an operator of such machine as is referred to in the Act and that at the time of his arrest, a minor of the age of 17 years was playing such machine in his place of business. Defendant elected not to testify but as a defense attacked the constitutionality of the Act by moving that the charges be dismissed upon the ground that the Act was in violation of Art. I, Sec. 5, of the Constitution of South Carolina, and of the XIV Amendment to the Federal Constitution. The motion to dismiss was overruled, and defendant sentenced to pay a fine or serve thirty days in jail. From this sentence defendant appealed to the Court of General Sessions, which affirmed the sentence of the Magistrate and defendant now appeals to this Court.
At the outset we might state that we are concerned here only with the effect of the provisions of the foregoing section *586 of the Code upon an operator who permits a minor under the age of eighteen years to play a pinball machine in his place of business.
It is apparent that the purpose of the Legislature in the enactment of the Statute in question was to regulate the operation of pinball machines and not to prohibit their operation.
A pinball machine has been described as one in use of which the player, after depositing a coin in the slot, puts balls in play by pulling a spring actuated plunger on a tilted table upon which there are bumpers which deflect balls in various directions through various lanes, producing a score registered from contact with different bumpers. Young people gather in places of business where pinball machines are located and play such machines in a competitive way, either against one another or the score attainable on the machine itself. The very nature of the machine, the flashing of the lights, the mounting of the score, and its operation in general, is conducive to wagering or gaming. In fact, Legislative history reveals that the General Assembly has been quite concerned with the regulation of such machines and at times they have been declared to be gambling devices. Alexander et al. v. Martin et al., 192 S.C. 176, 6 S.E. (2d) 20; Alexander v. Hunnicutt et al., 196 S.C. 364, 13 S.E. (2d) 630; Ingram v. Bearden, 212 S.C. 399, 47 S.E. (2d) 833; Ringstaff v. Evans, 212 S.C. 411, 47 S.E. (2d) 838.
The General Assembly in licensing the operation of such machines has a right to regulate such operation under its police power for the public benefit and to require the operation to be conducted in such a way as not to be obnoxious to public health, manners or morals. In re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929; Walton v. City of Atlanta, D.C. 89 F. Supp. 309; 5 Cir., 180 F. (2d) 143; New Orleans Water-Works Co. v. St. Tammany Water Works Co., 120 U.S. 64, 7 S. Ct. 405, 30 L. Ed. 563.
*587 The Act in question does not prohibit the carrying on of a legal business but is a regulation of such business under the police power of the State, see Arnold et al. v. City of Spartanburg et al., 201 S.C. 523, 23 S.E. (2d) 735; and such police power may be exercised for the benefit of the public safety, health, peace, morals, or general welfare, Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E. (2d) 36.
For the foregoing reasons, we are of opinion that the Order appealed from should be affirmed; and it is so ordered.
Affirmed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336681/ | 202 Va. 33 (1960)
CITY OF RICHMOND
v.
MARGARET JOHNSON, ET AL.
Record No. 5143.
Supreme Court of Virginia.
September 2, 1960.
James A. Eichner, Assistant City Attorney (J. Elliott Drinard, City Attorney, on brief), for the appellant.
Present, Eggleston, C.J., and Spratley, Miller, Whittle, Snead and I'Anson,
1. Robert Johnson, a deputy high constable of the city of Richmond, after receiving papers to be served and while still at the high constable's office, was accidentally shot and killed by a fellow deputy, with a pistol furnished by the city which he was drawing to clean. Such pistols were customarily carried by all deputies. In the instant proceeding by Johnson's widow for compensation benefits under the Workmen's Compensation Act Johnson was held to be a municipal employee within the meaning of Code 1950, section 65-4, and not a state employee.
2. The accident causing the death arose out of and was in the course of employment. The city's contention that it did not arise out of the employment was without merit since the hazard was incident to the employment and there was a reasonable causal connection between the conditions under which the work was required to be performed and the resulting injury.
Appeal from an award of the Industrial Commission of Virginia. The opinion states the case.
Jesse M. Johnson (Johnson & Schrieberg, on brief), for the claimants, appellees.
Reno S. Harp, III, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
EGGLESTON
EGGLESTON, C.J., delivered the opinion of the court.
Margaret Johnson, the widow of Robert M. Johnson, deceased, filed with the Industrial Commission, on behalf of herself and her two infant children, a claim against the City of Richmond for compensation benefits under the Workmen's Compensation Act. Code, | 65-1 ff. It was alleged that the deceased was an "employee" of the City of Richmond and was fatally injured "while on duty." The city filed an answer denying that the deceased was its employee within the meaning of the Act, and asserting that he was an employee of the Commonwealth of Virginia. The city further alleged that even if the deceased were its employee, the fatal injury did not arise out of his employment within the meaning of the Act. The Commonwealth, having been made a party defendant in the proceeding, took the position that the deceased was not its employee but was an employee of the city within the meaning of the Act.
The hearing commissioner decided both points adversely to the contentions of the city, awarded compensation to the claimants, and on review the full Commission upheld the award. The city has appealed, making the same contentions which it advanced before the Industrial Commission.
The facts are undisputed. According to the stipulation of the parties, Johnson, the deceased, "was employed as a Deputy High Constable for the City of Richmond" in 1953, and so continued until his death. On December 5, 1958, about 8:30 a.m., Johnson and a fellow deputy, Carlisle M. Slater, arrived at the office of the high constable in the City Hall and received the papers which were to be served by them in the course of their duties. Both deputies were carrying pistols furnished to them by the city and customarily carried while performing their duties. Observing that Johnson was cleaning his pistol, Slater remarked that his weapon also needed cleaning. As Slater was removing his weapon from his coat pocket it was accidently discharged and the bullet fatally wounded Johnson who was standing near by.
The office of high constable of the city of Richmond, the method of that officer's appointment, the duties of his office, the appointment of deputies and their salaries are thus fixed in the city charter (Acts 1948, ch. 116, p. 270):
"Section 19.19. High Constable. -- There shall be a high constable who shall be appointed by a majority of the judges of the civil justice *35 court, civil justice court, part II, and of the police court, part II, and shall hold office at their pleasure. He shall receive such salary as shall be fixed by the council to be paid by the city. He shall be the ministerial officer of the civil justice court, civil justice court, part II, and of police court, part II, in their exercise of civil jurisdiction, and shall execute all civil process, warrants and summonses emanating from or returnable to said courts for service within the city, and shall have the same powers, duties and authority as are prescribed by law for the sheriff of the city of Richmond with respect to the execution of such process, warrant and summonses. He shall appoint such number of deputies as shall be determined by a majority of the judges of the civil justice court, civil justice court, part II, and police court, part II, and approved by the council. They shall hold office at the pleasure of the high constable and shall receive such salaries as shall be fixed by the council to be paid by the city. * * *"
The first question presented is whether such a deputy high constable is an employee of the city within the meaning of the Workmen's Compensation Act. Code, | 65-4, as amended by Acts of 1958, ch. 187, p. 249, thus defines an "employee":
"Unless the context otherwise requires 'employee' includes every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer; and as relating to those so employed by the state the term 'employee' includes the officers and members of the National Guard, the Virginia State Guard and the Virginia Reserve Militia, registered members on duty or in training of the United States Civil Defense Corps of this State, the forest wardens, and all other officers and employees of the State, except only such as are elected by the people or by the General Assembly, or appointed by the Governor, either with or without the confirmation of the Senate, * * *; as relating to municipal corporations and political divisions of the State, the term 'employee' includes all officers and employees thereof, except such as are elected by the people or by the governing body of the municipal corporation or political division, who act in purely administrative capacities and are to serve for a definite term of office. Policemen and firemen, except policemen and firemen in cities containing more than two hundred thirty thousand inhabitants, and sheriffs and their deputies, town and city sergeants and town and city deputy sergeants, county *36 and city commissioners of the revenue, county and city treasurers, attorneys for the Commonwealth, clerks of courts of record and county and municipal courts, and their deputies, officers and employees, shall be deemed to be employees of the respective cities, counties or towns in which their services are employed and by whom their salaries are paid or in which their compensation is earnable. * * *"
The contention of the city that a deputy high constable is not an employee of the city but an employee of the Commonwealth is based mainly on the opinion of this court in Burch Hardwicke, 30 Gratt. (71 Va.) 24, 32 Am.Rep. 640. There we held that the mayor of the city of Lynchburg, who was given the constitutional authority to remove certain "city officers" for misconduct, was not empowered to remove the chief of police because, it was said, he was not a city officer, within the meaning of the constitutional provision, but a state officer. In discussing who are state and city officers it was pointed out that "there are many officers, such as city judge, sergeant, clerk, commonwealth's attorney, treasurer, sheriff, high constable, and the like," who are "elected or appointed for the city," and that "while their jurisdiction is confined to the local limits, their duties and functions, in a measure, concern the whole state." (Emphasis supplied.) These, it was said, are state officers. (71 Va., at page 34.) The chief of police was held to be in that category. See also, Lambert Barrett, 115 Va. 136, 140, 78 S.E. 586, Ann. Cas. 1914D 1226. On this holding the city argues that the high constable and his deputies are "state" officers and employees and not city officers and employees.
What was said in the Burch case is not determinative of the issue here. We are not concerned with whether the high constable of the city of Richmond and his deputies are technically state officers rather than city officers. Our concern is whether they have been classified for compensation benefits in Code, | 65-4, as amended, as state employees or municipal employees. Both sides concede that they are entitled to compensation and differ only as to the classification in which they have been placed by the statute.
It is interesting to observe that policemen, sheriffs, sergeants, clerks, treasurers and Commonwealth attorneys, who are said in the Burch case to be "state officers," are now specifically listed in Code, | 65-4, as amended, as "employees of the respective cities, counties or towns in which their services are employed and by whom their salaries are paid." Thus the General Assembly, recognizing that these officers *37 should be entitled to the benefits of the Workmen's Compensation Act, by classifying them as city, county or town employees, has determined that these political subdivisions rather than the Commonwealth should bear the expense of such benefits. The narrow issue on this phase of the case is whether a deputy high constable of the city of Richmond is intended to be included in the same category. We hold that he is.
Both sides concede, and it is settled in this State, that within the meaning of the Workmen's Compensation Act a deputy high constable occupies the same status as his principal. Board of Sap'rs of Rockingham County Lucas, 142 Va. 84, 91, 128 S.E. 574. Hence, if the high constable of the city of Richmond is an employee of the city within the meaning of the Act, so is his deputy.
Under the provisions of Section 19.19 of the city charter, supra, the high constable is "the ministerial officer" of the several specified local courts "in their exercise of civil jurisdiction." He is appointed by a majority of the judges of these courts and holds office "at their pleasure." Hence, he is under the control of these local judges and the Commonwealth exercises no control over him. The same section of the charter provides that the high constable "shall receive such salary as shall be fixed by the council to be paid by the city." Thus the selection and engagement of this official, the power of control and dismissal, and the payment of his salary clearly indicate that he is employed locally, that is, by the city. Under Section 9.07(d) of the city charter, as amended, he is included in the "unclassified service" of the city. [1]
Moreover, Section 19.19 of the city charter, supra, specifies that the high constable "shall have the same powers, duties and authority as are prescribed by law for the sheriff of the city of Richmond with respect to the execution of such process, warrants and summonses." In this respect, the duties and services which the high constable performs are similar to those performed by the sheriff of the city, who, under the express terms of Code, | 65-4, is classified as a city employee. It is logical that these local officers should have the same status under the Workmen's Compensation Act.
All of these matters clearly show a legislative intent to classify *38 the high constable and his deputies as city employees and not as state employees.
Under Code, | 65-7, in order to be compensable, the accident resulting in injury to or death of an employee must be one "arising out of and in the course of the employment." The city concedes that the accident here arose "in the course of the employment," that is, within the period of the employment, at a place where the employee might reasonably be, and while he was reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Bradshaw Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686. But it insists that the accident was not one "arising out of" the employment, because, it says, the hazard of such an accident was not incident to the employment.
In Bradshaw Aronovitch, supra, we held that the words "arising out of" the employment should receive a liberal construction in order to carry out the humane and beneficent purposes of the Act. 170 Va., at page 336, 196 S.E., at page 686. See, also, Southern Motor Lines Co. Alvis, 200 Va. 168, 170, 171, 104 S.E.2d 735, 738.
We further pointed out in the Bradshaw case, supra, that an injury arises out of the employment when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. 170 Va., at page 335, 196 S.E., at page 686.
Applying these principles, there is ample evidence to sustain the finding of the Commission that the accident with which we are concerned arose out of the employment of the deceased deputy. As has been said, it occurred just after the deputies had gathered the papers which they were to serve in the course of their employment. Because of the nature of their duties it was the custom of all deputies to carry weapons while on duty. This was with the knowledge and consent of the high constable. It was also with the knowledge and consent of the city which furnished the weapons for the purpose. The carrying of the weapons, of course, necessitated their being handled from time to time with the incidental risk of injury or death from an accidental discharge. Thus there was a causal connection between the conditions under which the work was required to be performed and the resulting injury or death from an accidental discharge of a weapon. This was a hazard of the employment to which the deceased *39 and his fellow deputies were exposed and one not shared by the public at large.
The city cites a number of cases in which compensation has been denied employees for injuries sustained by accidental shooting. None of these involves situations in which employees are permitted or directed to carry weapons in the course of their employment. Goins Shreveport Yellow Cabs (La. App.), 200 So. 481, is in point. There the employer furnished its taxicab drivers with pistols to protect themselves and the employer's property from robbers and possible trouble from striking drivers. While a cab driver and a fellow employee were riding together and comparing their weapons, one was accidently discharged and the fellow employee injured. It was held to be an accident which arose out of the employment. The court reasoned that necessarily the employees would be called on to handle the weapons, from time to time, and hence each was exposed to the hazard of accidental shooting. The same principles apply in the present case.
For these reasons the award of the Industrial Commission is
Affirmed.
NOTES
[1] "| 9.07. Unclassified Service. -- The service of the city shall be divided into the unclassified and classified services. The unclassified service shall consist of: * * * (d) the high constable and his deputies and the justices of the peace provided for in this charter; * * *." Acts 1958, ch. 185, p. 244. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336677/ | 101 Ga. App. 894 (1960)
115 S.E.2d 430
ANDERSON
v.
R. H. MACY & COMPANY, INC.
38264.
Court of Appeals of Georgia.
Decided June 9, 1960.
Rehearing Denied June 24, 1960.
*895 Abraham J. Walcoff, for plaintiff in error.
Schwall & Heuett, contra.
FELTON, Chief Judge.
1. In Gaultney v. Windham, 99 Ga. *896 App. 800, 806 (109 S.E.2d 914) this court after an exhaustive study of the principles involved stated: "To recapitulate, in an independent affirmative action for fraud and deceit, which must be predicated upon actual fraud, the plaintiff must allege and prove the following essential ingredients: (1) the defendant made the representation; (2) at the time he knew they were false (or what the law regards as the equivalent of knowledge, a fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, Code § 105-302); (3) the defendant made the representations with the intention and purpose of deceiving the plaintiff; (4) the plaintiff relied upon such representations; (5) the plaintiff sustained the alleged loss and damage as the proximate result of their having been made; and (6) an element frequently omitted in the cases enumerating the essentials, want of knowledge by the party alleged to have been deceived that the representation was false." In addition to the cases cited in that opinion the following decisions have stated various elements of an action for fraud and deceit: Cosby v. Asher, 74 Ga. App. 884, 886 (41 S.E.2d 793) and cit.; Norris v. Hart, 74 Ga. App. 444, 445 (40 S.E.2d 96); Eastern Motor Co. v. Lavender, 69 Ga. App. 48, 51 (24 S.E.2d 840); Edwards v. Stiles, 81 Ga. App. 138, 139 (58 S.E.2d 260); McBurney v. Woodward, 84 Ga. App. 807, 814 (67 S.E.2d 398); Aderhold v. Zimmer, 86 Ga. App. 204, 206 (71 S.E.2d 270). See also Code §§ 105-301, 105-302.
A petition which sufficiently alleges these elements may yet be subject to general demurrer on another ground. "It is well settled that fraud cannot form the basis of an action or a defense thereto, in the absence of any trust or confidential relationship, if it appears that the person relying on the fraud as a basis for the action or in defense thereto had equal and ample opportunity to prevent the happening of the occurrence, and made it possible through a failure to exercise proper diligence." Millender v. Looper, 82 Ga. App. 563, 569 (61 S.E.2d 573). "While it is true that the question of whether the person to whom the alleged false and fraudulent representations were made was negligent in relying upon such representations would ordinarily be *897 a question for a jury . . . if it is apparent from the pleading of a person relying on such false and fraudulent representations that he was negligent in so doing, and such pleading is properly attacked by demurrer, it is the duty of the court to so decide as a matter of law." Love v. Nixon, 82 Ga. App. 445, 452 (61 S.E.2d 423). For recent applications of this principle to petitions on general demurrer, see Watkins v. Mertz, 83 Ga. App. 115 (62 S.E.2d 744). Skinner v. Melton, 84 Ga. App. 98 (65 S.E.2d 693) and Scott v. Fulton National Bank, 92 Ga. App. 741 (89 S.E.2d 892). An amplification of rules applicable to the situation where the plaintiff does not have equal and ample opportunity to prevent the happening of the alleged fraudulent occurrence is found in Diebert v. McWhorter, 34 Ga. App. 803, 804 (132 S.E. 110): "Thus where the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which needs must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other's statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking up the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth [citations]."
The defendant contends that the present petition does not make out a case of fraud and deceit because it fails to allege that the bankruptcy was fraudulent or that the plaintiff parted with its goods upon the representation that defendant lost the charge plate. In Brooks v. Pitts, 24 Ga. App. 386 (1) (100 S.E. 776) this court held that the mere fact that the defendant procured credit and promised to pay for an ordinary current purchase of goods, and subsequently failed to meet his obligation prior to the time that he voluntarily went into bankruptcy (some 34 days thereafter) is not of itself sufficient evidence of obtaining property by false pretenses. In the present case the petition alleges that the defendant, while insolvent, began a systematic scheme of making purchases with no present purpose of paying for them. In Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299, *898 300 (68 S.E. 1077), this court held: "To buy goods without a present intention to pay is a false representation of one's intention. Therefore, to buy goods without a present intention to pay will avoid a discharge. Of course, ordinarily, promises to perform some act in the future will not amount to fraud in legal acceptation, although subsequently broken without excuse. This is especially true of a promise to pay money. Otherwise any breach of contract would amount to fraud. But the intent with which a promise which has been violated was made is for the jury." The allegations of the petition are sufficient as against a general demurrer to remove this case from the principle of Brooks v. Pitts, 24 Ga. App. 386, supra, and to make out a question for the jury as to the intent with which the purchases were made. Furthermore, the allegations that the defendant made 39 purchases from the plaintiff through the use of the charga plate which she falsely represented she had lost after the plaintiff's demand for its return is sufficient to show as against a general demurrer that the plaintiff parted with its goods on the faith of the alleged false representation. Cf. Garbutt Lumber Co. v. Walker, 6 Ga. App. 189 (1) (64 S.E. 698). The petition adequately alleges all of the elements necessary to make out an action for fraud and deceit.
It is further contended that the general demurrer should have been sustained because the plaintiff by the exercise of ordinary care could have discovered the falsity of the representations on which the action is based. At least with regard to the alleged demand by the plaintiff for the return of the charge plate on August 4, 1959, the petition discloses a situation involving the existence of a material fact, the verity of which must needs be ascertained from the statement of the one acquainted therewith, and under the principle stated in Deibert v. McWhorter, 34 Ga. App. 803, supra, we think the plaintiff had a right to rely on the truth of the defendant's statements with reference thereto. As the Supreme Court itself observed in Fenley v. Moody, 104 Ga. 790, 793 (30 S.E. 1002), "We are not aware of any rule of law, or decision of any court, that goes to the extent of saying that one who has been imposed upon by a deceitful and false statement can have no relief unless, before *899 acting upon such a statement, he had exhausted all means at his command to ascertain its truth. This would be, in effect, holding that scarcely under any circumstances will relief be granted to one who has been the victim of misplaced confidence in his fellow-man." The petition in the present case therefore presents a question for the jury in this regard. "Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for the determination by the jury." Elliott v. Marshall, 179 Ga. 639, 640 (176 S.E. 770) and cit. See also Johnson v. Sherrer, 197 Ga. 392, 395 (29 S.E.2d 581); Dorsey v. Green, 202 Ga. 655, 659 (44 S.E.2d 377); Holt v. Gloer, 44 Ga. App. 685 (162 S.E. 663); Georgia Fruit Growers, Inc. v. Vaughn, 45 Ga. App. 17 (2) (163 S.E. 221); Daniel v. Dalton News Co., 48 Ga. App. 772, 775 (173 S.E. 727); Stovall v. Rumble, 71 Ga. App. 30, 35 (29 S.E.2d 804); Norris v. Hart, 74 Ga. App. 444, 446, supra. While we entertain grave doubts as to whether items purchased prior to May 14, 1959, upon which date a purchase for $20.60 is shown by the attached exhibit to have been made, which should have resulted in a checking of the defendant's credit rating under the procedure alleged in the petition, and whether the $137.44 balance due on May 1, 1959, prior to the inception of the alleged fraudulent scheme, are properly included in the present action, such defects are not attacked by special demurrer, and the general demurrer to the petition as a whole is without merit.
2. The defendant has demurred specially to the whole of paragraphs 5 and 10 of the petition as being conclusions of the pleader. From what has been said above, these grounds of demurrer are without merit.
The court did not err in overruling the general and special demurrers.
Judgment affirmed. Nichols and Bell, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336710/ | 101 Ga. App. 851 (1960)
115 S.E.2d 576
JONES
v.
THE STATE.
38102.
Court of Appeals of Georgia.
Decided June 1, 1960.
Rehearing Denied June 21, 1960.
*853 William Hall, John L. Westmoreland, Grigsby H. Wotton, for plaintiff in error.
Paul Webb, Solicitor-General, A. Paul Cadenhead, E. L. Tiller, contra.
GARDNER, Presiding Judge.
1. It is contended generally by the plea in abatement that because Mr. Cadenhead, an attorney of the Atlanta bar employed by the office of the Solicitor to help with the investigation and subsequent proceedings relating to dishonesty among public officials and related matters, appeared in the grand jury room at the time an indictment against this defendant and Brinson, a public official, for the offense of cheating and swindling was being considered, Cadenhead not being sworn and not being an authorized person to be present in the grand jury room at that time, the indictment was void and accordingly there could be no offense of embracery committed in connection with such void indictment. Cadenhead was not present in the grand jury room when the grand jury returned the indictment in this case.
*854 The question is directed not to the legality of the indictment on which this defendant was tried in this case, but the legality of a former indictment as to which it is alleged that the defendant embraced certain jurors. As to perjury, it has been held that, so long as there is pending a proceeding over which the court has jurisdiction as to the subject matter, the fact that the alleged perjury was committed in a case which stated no cause of action and was subject to general demurrer did not keep it from being a judicial proceeding so as to be the foundation for the perjury charge. Williford v. State, 56 Ga. App. 40 (192 S.E. 93). As to the crime of embracery itself, it may be committed by approaching a prospective juror who has been neither sworn nor empaneled in the case, and who may never have anything to do with the case in which he is attempted to be influenced. Martin v. State, 43 Ga. App. 287 (158 S.E. 635). Code § 26-4702 makes embracery the crime of attempting "to influence a jury corruptly to one side." The jury is no less a jury because, as to one of the defendants, the indictment it returns is subject to be quashed. The grand jury is no less constituted as such, the indictment is no less returned, and the case is no less pending until disposed of, because there was an error in the proceedings which, if urged on the trial of the indictment, would preclude conviction under that indictment. Embracery as defined in our Code section may be perpetrated by attempting to influence a grand juror, although no indictment was returned, and even perhaps by influencing him on a matter before the grand jury which did not include the finding of a true bill. It cannot be said that this defendant is not charged with influencing "a jury" unless this grand jury was so constituted as not to be a legal grand jury, and the question is not whether it is a good indictment, but whether it is a legally constituted grand jury.
Special grounds 9 and 11 of the motion for a new trial are also without merit for the same reason.
2. On consideration of the demurrers it is noted that the indictment charged the defendant with the offense of embracery in that "Edward Westlake then and there being a grand juror and foreman of the grand jury sworn and serving at the March-April *855 term, 1959, of Fulton Superior Court, and said grand jury then and there having under consideration a special presentment against accused and J. W. Brinson, Jr., charging accused and said Brinson with the offense of cheating and swindling the State of Georgia, accused did wilfully and feloniously, by offer and promise of money to said grand juror and foreman; by attempting to procure the said grand juror and foreman to take money; and by persuasions and entreaties, attempt corruptly to influence the said grand juror and foreman to the side of the accused, and to use his power, authority, and influence as foreman and as a grand juror in favor of the accused." The general demurrer is based on the proposition that the Code section refers only to traverse juries, and the special demurrer here insisted on is addressed to the underlined language on the ground that it is ambiguous and indefinite.
(a) It is generally accepted that the crime of embracery relates to attempts to influence grand jurors as well as traverse jurors. 18 Am. Jur. 617, § 7; U. S. v. Russell, 255 U.S. 138 (41 S. Ct. 260, 65 L. Ed. 553); 3 Wharton, Criminal Law (1957 Ed.) § 1282. The offense of embracery is of common-law origin, as is the institution of the grand jury, and, while there are no crimes in Georgia except those made so by statute, it is nevertheless permissible, where the language of the statute does not change the common-law intendment of the crime, to look to the meaning of the words employed as they existed in order to determine the definition of words employed by the statute. Accordingly, it is no ground of demurrer that the crime is alleged to have been perpetrated as to a grand juror.
(b) It is ordinarily sufficient to describe the offense in the language of the Code. Code § 27-701. The words here objected to are in the language of Code § 26-4702. It is charged specifically that the crime was committed by offering money, and by attempting to procure the foreman of the grand jury to take money; accordingly, the addition of the words "and by persuasions and entreaties," which must be taken to refer to the attempt to procure a money transaction, is not so vague and ambiguous as to vitiate the indictment. The trial court did not err in overruling the demurrers to the indictment.
*856 3. Under Code § 27-1201 a change of venue should be granted by the trial court "if from the evidence submitted the court shall be satisfied that an impartial jury cannot be obtained to try the case." Under Code § 38-1708, where the question under examination is one of opinion, any witness may swear to his opinion or belief, stating his reasons; if the issue shall be to the existence of a fact, opinions generally are inadmissible. On the hearing of evidence regarding the possibility of obtaining an impartial jury the fair-trial issue relates to a future thing; being an issue which only the future can determine absolutely, it is necessarily a matter of opinion at the time when the testimony is being heard. In Broxton v. State, 24 Ga. App. 31 (2) (99 S.E. 635) it was held: "Evidence that the defendant would receive a fair and impartial trial in the county wherein the alleged crime was committed was relevant, to throw light upon the state of the public mind." That opinion evidence is generally considered on this issue see Douberly v. State, 184 Ga. 573 (1) (192 S.E. 223); Nickles v. State, 89 Ga. App. 538 (1) (80 S.E.2d 97). If it is relevant to show that the defendant may obtain a fair trial, it is also relevant when offered to show that he may not obtain a fair trial, when the facts upon which the opinion is based are stated. It was accordingly error for the trial court, in considering the 12 affidavits offered by the defendant for this purpose, to sustain an objection to that part of each which set forth that the witness, because of the facts stated, was of the opinion that the defendant could not obtain a fair trial because the prospective jurors "who have been summoned and will be impaneled to try him have been so exposed to the adverse, unfavorable and antagonistic newspaper articles, radio reports, television reports, and television moving pictures, and the general discussions caused thereby . . . that they would not yield readily to the testimony and evidence in the case." This is true even though the court would not be in any way bound by the opinions so expressed, but he should have considered them as relevant to the issue. However, since the court did take into consideration the facts on which such opinions were based, and since his decision was amply supported by the evidence, the judgment refusing to change the venue of the trial was not error.
*857 4. (a) Error is assigned on the overruling of the motion for a new trial consisting of the general grounds and sixteen special grounds.
The defense moved to continue the case on the ground that the defendant was first indicted for this offense under indictment 77427, and that he was forced to trial on a Tuesday under indictment 77502 which had been returned only on a previous Friday; that there was a variance between the two indictments and he was accordingly not ready to go to trial under indictment 77502 although he would have been ready and would have had, under the rules of court, to go to trial under indictment 77427. The judgment of the trial court overruling the motion for a continuance is excepted to both directly in the bill of exceptions and as a special ground of the motion for a new trial. The only changes made by the second indictment were (a) an allegation that the date of the offense was April 11, rather than March 11, 1959, and (b) that the special presentment then pending was "against accused and J. W. Brinson, Jr." rather than against the "accused." It was not shown that four days was an insufficient length of time to prepare a defense as against these two changes in an indictment as to which counsel stipulated they were otherwise ready for trial. The court did not abuse his discretion in overruling the motion. Code § 81-1419; Harris v. State, 119 Ga. 114 (45 S.E. 973).
(b) An assignment of error on a judgment of the trial court refusing to change the venue is not a proper ground of a motion for a new trial. Waters v. State, 158 Ga. 510 (123 S.E. 806).
(c) The general grounds and special grounds 6 and 12 of the amended motion for a new trial deal with the defense of entrapment and contend that the conviction was erroneous because the defense was sustained as a matter of law. The witness James Moore testified that he was a friend of the defendant; that he talked with the defendant on March 9, and learned that the defendant was being investigated by the grand jury; that he had read some of it in the newspaper before then; that J. W. Brinson was present and the witness asked him if he thought there was any chance he might be able to get out of the thing in any way and Brinson replied: "If we could find anybody we knew *858 on the grand jury we might be able to find some way." The defendant said Brinson had a copy of the grand jury list in his car. While Brinson was gone the defendant told Moore if there was any possible way he could get out of it he would like to do it no matter what the cost. Moore, after examining the list, said he thought he knew a friend of the foreman Westlake. The defendant said, "You had better call him up but I will have to tell you what to tell him. Tell your friend not to mention anyone's name. Ask him if he can soft pedal the whole situation that is before the grand jury." Moore then contacted Sanders and said: "I have this friend of mine in trouble and I was wondering if you thought it would be advisable to maybe feel Westlake out and see what he thought about it." He then testified: "He said he didn't believe that Westlake would accept anything, that he didn't know whether he would bring pressure but he wouldn't accept any money . . . When he said he wouldn't accept any money, I didn't tell Mr. Sanders about any money being involved. I did mention the name of my friend here." Sanders reported to Moore "that Mr. Westlake decided everybody before the grand jury was a bunch of criminals and that he was going to be a Sir Galahad and so forth and wasn't going to think about any legitimate businessman . . . but Mr. Westlake sounded like he might change his mind about putting everybody in jail and all." Moore testified: "In that initial meeting, there was nothing said about trying to give anybody any money or any presents or anything other than to see if he could get fair treatment before the grand jury . . . All my activities in this matter were acts of friendship in trying to help a friend. . . I had not told Mr. Sanders up to that time to offer Mr. Westlake any money or presents or anything other than to appeal to him only on a friendship basis."
Moore had a second conference with Sanders who "made the statement that he didn't see the need of talking to Mr. Westlake further, and at that time the whole thing was forgotten." Moore reported this conversation to Jones and any idea of influencing Westlake in their favor, whether innocently or corruptly, was then abandoned and Moore went to Nassau for a two-week vacation.
*859 Edward Westlake testified that at the time he had the conversation with Sanders he was told by Sanders that Moore "represented a number of people who were greatly concerned by the way the State investigations were turning out, and that these people were afraid of their possible personal involvement in these cases. He said they were so desperate that they were willing to do anything to head off the State investigation or to get me to act favorably or vote favorably in their behalf. He said that figures anywhere from five thousand to a hundred thousand dollars had been mentioned . . . among these individuals being H. Candler Jones. I told him that some testimony had already come out in the grand jury about Mr. Jones." Westlake also made it clear to Sanders that he intended to do his duty as a grand jury foreman in accordance with his oath. He returned home and transcribed the conversation as he remembered it, but said nothing to anyone about it for almost a month. Eventually he decided to report the conversation to the Fulton County Solicitor-General. After considerable consultation, Westlake was advised to see if he could establish a direct contact with Moore to see "whether they wished to continue this bribery attempt." He called Moore several times but the latter was out of the city. He finally spoke to him the Tuesday after Moore's return to the city on Monday, identified himself, and said he would like to talk for about thirty minutes if possible. No one connected with the prosecution intended at any time to accept a bribe, their negotiations and discussions being solely to bring about the commission of the crime of embracery by the defendant. The meeting between Moore and Westlake was arranged as outlined above and after preliminary sparring for about an hour, which Westlake testified was "to see who would mention the business at hand first, and I outwaited him," Moore suggested that the State investigations were a mess. Westlake agreed. Moore said he was interested only in the defendant, and that he had told Jones that Dave Sanders was a mutual friend. Westlake said he was glad Sanders was out of it. Moore asked what it would take to help Mr. Jones in this matter. Westlake said his vote was not decisive, the man who could do some good would be Mr. Webb "who perhaps we *860 could get to work favorably for us," and Moore then asked: "What do you think it would take, one, two, three, four, five?" meaning thousands of dollars. Westlake said he "thought it would take a great deal more than that to take care of both Mr. Webb and me because after all our necks would be stuck way out"; for Moore to see what Mr. Jones was willing to do and then contact him again. Moore also swore: "Up to that time, Candler Jones knew nothing of anything that I was doing or that I was talking to anybody or was going to talk to anybody about it."
Westlake testified that he continued to encourage Moore; that he would reassure Moore whenever it appeared that the latter lost confidence in the deal going through; that he told Moore, and later Jones, that the plan was satisfactory with Mr. Webb, who was willing to go along because he and Mr. Cadenhead were at outs with each other. On cross-examination he stated that at Jones' request he asked Mr. Webb to call Mr. Jones' attorney; that the call was in regard to turning over some documents and not specifically to reassure Mr. Jones, but "I think also it probably would have reassured Mr. Jones." In his statement, the defendant said that the arrangement between himself and Westlake was that if Webb was in on the deal he was to call his attorney regarding the documents; that Mr. Webb called him directly and he was thereby led to believe that the solicitor was working with him. No further testimony was offered by the State as to this telephone conversation. As to Westlake's conversation with the defendant, he testified "[Jones] said that he wanted to be sure before he paid out any money that like any other good business man he would get what he was paying for. He said it wouldn't do him any good if these indictments were merely put off for another thirty days and went before the next grand jury, he wanted to be sure that these indictments or this indictment would not recur at the next grand jury, that it could be quashed completely. I said I thought it could. I said Mr. Webb will cooperate on that. And the reason I told him that Mr. Webb would cooperate on that was because of the previous conversation which I had with Mr. Moore that we would try to see if *861 Mr. Webb wouldn't cooperate in helping quash this indictment, and I said I didn't know specifically what Mr. Webb can do or will do." On cross-examination he testified as to the conversation of March 11: "As far as I was concerned and as far as the man who had the contact with me, Mr. Sanders, the matter was a closed book. And it stayed a closed book between me and Sanders, and has stayed a closed book between me and Sanders. And I stated when Mr. Moore and I first talked it was a game of cat and mouse between us as to which one would broach the subject first and I outwaited him . . . It is substantially correct that Mr. Moore said to me that I was foreman of the grand jury but that Mr. Webb is Solicitor and what about Mr. Webb in this situation and I said to Mr. Moore that I thought I could handle Mr. Webb and that he would join in it . . . I called at his office and said that the least we would take for this window contract was $10,000; I told him that is the least we would take. I didn't tell him anybody was `we', but I think he understood. And whether he thought `we' was me and Paul Webb, I don't know what he thought; I suppose he did. And I would say that is what I intended him to think by what I told him . . . I told Mr. Jones that Mr. Webb could take care of this pending indictment and I said I didn't know exactly how he could nor was I particularly interested in how he could but I knew he could. And Mr. Jones told me at that meeting at Hastings he was not interested in temporary relief, and I assured him that as far as the March-April grand jury was concerned that he would get relief there and told him that I thought Mr. Webb could handle it as a closed thing."
The incidents leading up to the deposit of the bribe money in a telephone booth by this defendant on April 11, 1959, pursuant to the arrangements made with Westlake, fall naturally into two divisions. First, the defendant and Moore procured Sanders to talk to Westlake; this talk resulted in a repudiation by Westlake so explicit that all parties thereto considered the incident at an end. Whatever Sanders may have inferred, and whatever he actually said to Westlake, the evidence is undisputed that he was cautioned by Jones not to use his name, and *862 he was not authorized by Jones or Moore to mention any sum of money. The act of sending Sanders to talk to Westlake was undoubtedly in the nature of a "feeler", but it was not embracery for the reason that no offer or attempt was made at that time, certainly none sanctioned by the defendant, to enter into any agreement, whether corrupt or not. Sanders did state on his own initiative that many people were involved of whom Jones was one, and that there was money to be made, but he made no offer under the State's version of the affair. The testimony of the defense does not of course go even this far, as they contend that the conversation as authorized by Jones was with a view to calling Westlake's attention to the fact that innocent business men whose names were unfairly bandied about in the investigation would receive undue injuries to their reputations. The "persuasions" mentioned in Code § 26-4702 are insufficient to make out the crime under this record as of March 11, 1959. Therefore, no crime had been committed as of that date and the defendants had abandoned any intent they might have had to commit this particular crime.
Secondly, it is undisputed that the first move which led to the commission of this crime was initiated at a conference in the office of the Solicitor-General on April 1, 1959, over three weeks later. Pursuant thereto, Westlake informed Moore that he wanted to talk with him. Since the men had never met, did not know each other, and had had no prior contact other than through the mediation of Sanders, it cannot be seriously disputed that this meant and was intended to mean to Moore that Westlake was interested in further discussion of the names then being investigated by the grand jury, including especially Candler Jones. Moore would not know whether the interest was in the interests of fair play; whether it was corrupt, motivated by the desire to take a bribe, or was a pretense of corruption made for the purpose of exposure. But there is no scintilla of doubt that both men understood the situation. They "sparred" for an hour, and Westlake described himself as outwaiting his opponent by which he meant outwitting him. His preliminary words were such as to convince Moore that his purpose *863 in arranging the meeting was to receive money. He eventually outlined the manner in which this could be done by inventing the procedure of "handling" the solicitor, without which, under the undisputed evidence, the crime would not have been committed, since Jones' interest was not to block this particular grand jury investigation so much as to assure himself that it would not be renewed at the next term. It is implicit in the testimony that Mr. Webb's complicity was to be signalized by a call from his office to the defendant's attorneys giving a stated message. There is no evidence that this call was made. However, the defendant stated that it was made directly to him and this statement stands undenied. Entrapment is generally recognized as a defense where the defendant is solicited or enticed into committing a crime which he would not otherwise have committed. Osborne v. State, 92 Ga. App. 518 (88 S.E.2d 862). "Entrapment exists where the idea and intention of the commission of a crime originates with an officer of the State, and he, by undue persuasion, incitement, and deceitful means, induces the defendant to commit an act . . . which the defendant would not have committed except for the conduct of such officer." Sutton v. State, 59 Ga. App. 198 (3) (200 S.E. 225). It occurs when the criminal conduct is "the product of the creative activity" of law enforcement officials. Sherman v. U. S., 365 U.S. 369 (78 S. Ct. 819, 2 L. Ed. 2d 848). Where officers suspect a person of being systematically guilty of a certain type of offense, such as selling illegal liquor, the setting of a trap by proposing to such person that he sell to the decoy is not generally considered entrapment in the sense that it may be used as a legal defense for the reason that a part of the law-enforcement process involves the apprehension and removal of known criminals. A different situation is presented where a man is persuaded into committing a crime in the first instance. As was stated in Butts v. U. S., 273 F. 35, 38: "The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. . . It is unconscionable, contrary to public policy and to the established law of the land to punish a man for the commission *864 of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded and lured him to attempt to commit it." We do not insist in this case that the record shows the defendant never thought of committing the crime until the idea was placed in his mind by the foreman of the grand jury, nor is such a conclusion necessary. Granted that Jones displayed a willingness to corrupt; granted that if Westlake had not refused to proceed at the first meeting between him and Sanders these initial negotiations might well have led to the same conclusion and he would, under those facts, have been properly convicted; yet, the fact remains that this was not the case, and any criminal enterprise lodged in the defendant's thoughts was abandoned before it had an opportunity to come to fruition.
The carefully laid plans of the prosecution to bring about the commission of this crime are indicative of its lack of faith in the strength of its original case against this defendant, the suppression of which this crime was committed to accomplish. The presence of the representatives of the media for the dispensation of news on the scene of the place selected by the prosecution for the commission of the crime tends to discredit the motives of the prosecution as being for the prevention of crime and to bring about punishment for its commission. On the contrary, a desire to stage a sensational crime for publicity purposes is reflected.
That this was a trap set by the highest law-enforcement officers of the State of Georgia in Fulton County cannot be denied. The State's contention is that it by-passes the defense of entrapment because the scheme originated in the mind of the defendant and not with them. However, a careful analysis of this evidence is insufficient to support the State's theory in this respect. Pursuant to a well laid plan they renewed negotiations with Moore, whom they knew to be active on behalf of the defendant. In the original negotiations the defendant had neither made, proposed, nor authorized any corrupt offer. The first offer to corruption of which the defendant had knowledge came from the prosecution. Every objection and obstacle which the *865 defendant foresaw was met and solved by the prosecution. The media in this locality for the dispensation of news were kept informed of every progressive step that the prosecution was able to make toward the ultimate springing of the trap. Their knowledge of the time and place of the ultimate incident was such as to indicate that the whole drama was staged primarily for their benefit. They were able to take up strategic positions where they could make motion pictures of the crime while it was in the process of being committed, as well as in its earlier stages. In this case the prosecution went further and participated more in bringing about the commission of the crime by the defendant than in any case we have been able to find anywhere in the United States where the defense of entrapment was not upheld. This court is of the opinion that the conduct of the prosecution in this case falls far short of the high standard that must be set by law-enforcement officers in the administration of justice on behalf of the sovereign State of Georgia, and we cannot approve it.
The defense of entrapment being complete, and the evidence not otherwise authorizing conviction, the trial court erred in denying the motion for new trial.
(d) The remaining grounds of the amended motion for a new trial are either controlled by what has been held in the foregoing division of this opinion, or they are otherwise without merit.
Judgment reversed. Townsend and Carlisle, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336749/ | 101 Ga. App. 907 (1960)
115 S.E.2d 424
HUNTER
v.
BENAMY.
HUNTER et al.
v.
BENAMY.
38301, 38302.
Court of Appeals of Georgia.
Decided June 13, 1960.
Rehearing Denied June 27, 1960.
*908 Huie, Etheridge & Harland, James R. Harland, Smith, Field, Ringel, Martin & Carr, H. A. Stephens, Jr., for plaintiffs in error.
Robert W. Spears, Wm. G. Grant, contra.
BELL, Judge.
Although the demurrers to the petitions attempt to set out several grounds both general and special, in substance all demurrers raise only the question as to whether the petitions state a cause of action, and the briefs of the parties show that this is the only issue brought before this court and requested for determination. It is evident that the allegations in count 2 of the petitions do clearly and concisely set out a cause of action on an oral agreement employing the plaintiff to obtain a purchaser for certain real estate owned by the defendants, and the plaintiff's broker's commissions were earned by procuring a purchaser ready, able and willing to buy pursuant to an actual offer to buy on terms stipulated by the owner. See Code § 4-213. This agreement, although oral, may be the basis for this action. Lingo v. Blair, 32 Ga. App. 111 (122 S.E. 802).
These actions were originally brought in two counts. Count one in each petition was founded on the agreement to pay commissions embodied in a contract to sell executed by the broker, purchaser and seller. Count two in each was based on the parol agreement above discussed. The general demurrer to count one in each petition was sustained, and there were no exceptions to these rulings by cross-bills. It appears to us that the only ground on which such rulings could have been based in each instance is that the written contract is void and unenforceable because of indefiniteness. Those rulings, not having been excepted to, constitute the law of this case and are controlling on that point. This court, therefore, is not called upon *909 to express an opinion as to whether or not the contract to sell was too indefinite to be enforced.
The contention of the plaintiff in error to the effect that the offer made to the purchasers through the plaintiff-broker was only conditionally accepted in that the acceptance contained a proposition not mentioned in the offer, is not well taken for the reason that this counter-offer was dropped from the negotiations and the parties signed the contract to sell. This contract to sell was attached to the petitions, and it showed that there was an agreement of purchase and sale according to terms satisfactory to the seller.
The contention that the oral listing contract was merged into the final contract of purchase and sale executed by seller and purchaser is fruitless because it is the law of this case that the written contract is void for indefiniteness. As pointed out, this was determined by the sustaining of the general demurrers to count one, which count in each petition was based on the breach of the written contract, coupled with the failure to except thereto. There can be no merger of a prior oral agreement into a void contract. The plaintiff in error in his brief cites the case of Dunford v. Townsend, 100 Ga. App. 550 (112 S.E.2d 14), but there the factual situation involved shows the case to have been one based on an action for a breach of the written contract and not on one for a breach of the oral listing contract.
The concise allegations in the petitions have attached and made a part thereof several exhibits which add factual bases for the allegations, and although many of these are not necessary for an adequate petition, in some cases they do substantiate the allegations, and these are especially acceptable in actions of this kind. Reid v. Morrison, 31 Ga. App. 613 (121 S.E. 860). The objections to the overruling of the demurrers seem to be based primarily on interpretations as to the meaning of the contents of certain exhibits offered by the plaintiff. However, these exhibits in no way negative or defeat the basic allegations of the petitions, and the objections raised on the strained interpretations by the defendants are interpretations which must be left to the fact finders in the later trials of these cases. There are no allegations of fraud or improper acts of any type, *910 and it is clear that count two of the petitions each states a cause of action and is not subject to the demurrers interposed.
The orders of the Civil Court of Fulton County overruling the demurrers to count two of both these petitions are correct and are hereby
Affirmed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336744/ | 237 S.C. 75 (1960)
115 S.E.2d 685
SOUTHERN RAILWAY COMPANY, Petitioner-Respondent,
v.
SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, C.R. McMillan, as Chief Highway Commissioner, and S. R. Pearman, as State Highway Engineer, Respondents-Appellants.
17692
Supreme Court of South Carolina.
August 3, 1960.
*76 Messrs. Daniel R. McLeod, Attorney General, and Fulmer & Barnes, of Columbia, for Appellants.
Messrs. Frank G. Tompkins, Jr., and Robert J. Thomas, of Columbia, for Respondent.
*77 August 3, 1960.
Per curiam.
This action was commenced by Southern Railway Company, the petitioner herein, in the original jurisdiction of this Court, pursuant to Section 58-835 of the 1952 Code of Laws of South Carolina. The action is in the nature of an appeal from a decision of the South Carolina State Highway Department, appellant herein, determining that the petitioner should contribute to the cost of the reconstruction of a highway bridge near the corporate limits of the Town of York, South Carolina. The State Highway Department purported to act pursuant to Sections 58-831 et seq., of the 1952 Code of Laws, in assessing forty per cent of the cost of reconstructing such bridge, which spanned a cut in which lay the tracks of the Railway Company.
This cause was referred to Honorable Edward W. Mullins, as Special Referee, for the purpose of taking the testimony and reporting to this Court his findings of fact and conclusions of law.
It appears from the record that the Special Referee convened a hearing for the purpose of taking the testimony. At such hearing, the parties submitted a stipulation of the facts. The Special Referee, in a report dated February 27, 1960, recommended that the relief sought by the Southern Railway Company be granted. The State Highway Department filed timely exceptions to such report, and sustaining grounds were also submitted by the Southern Railway Company.
The case came on to be heard before this Court upon the issues made by the exceptions filed by the South Carolina State Highway Department.
*78 The report of the Special Referee has been carefully considered in the light of the record and the exceptions. We have concluded that the issues presented by the exceptions were correctly decided by the said Special Referee. The exceptions are overruled and the report of the Special Referee is adopted as the judgment of this Court. Let it be reported.
The report of Special Referee Mullins follows:
This action was commenced by Southern Railway Company in the Supreme Court in its original jurisdiction pursuant to Section 58-835, Code of Laws of South Carolina, 1952, and is in nature an appeal from a decision of the State Highway Department determining that Southern Railway Company should contribute to the cost of reconstructing a highway bridge in York County. The matter was referred to me by an Order of the Chief Justice dated June 12, 1957, for the purpose of taking the testimony and reporting to the Court my findings of fact and conclusions of law. It subsequently developed that the parties were able to stipulate the facts, and they are not now in dispute.
To understand the issues in the case, it is necessary to review briefly the history and nature of the bridge in question. In 1927 and 1928, the Highway Department relocated U.S. Highway No. 321 to straighten an undesirable curve and eliminate the necessity of crossing at grade a track of the Carolina and Northwestern Railway Company at two points. The relocated highway crossed a cut in which lay a track of the Southern Railway Company, and the original bridge (the predecessor of the bridge in question) was built to span that cut.
On August 5, 1955, the Highway Department served notice on Southern Railway Company that it had determined that it had become necessary to reconstruct the said bridge. The notice was stated to be given pursuant to Sections 58-831 et seq., Code of Laws of South Carolina, 1952. It further recited:
"The necessity for the reconstruction of the existing structure arises by reason of the fact that the said existing structure *79 is inadequate for traffic on Highway No. 321. The existing structure, built in 1928, is constructed of creosoted timbers and structural steel and has a twenty-two foot roadway. Timbers of the said bridge have deteriorated, and present traffic needs require a minimum roadway of thirty feet. Existing structure was designed to carry a load of H 10, and deterioration has lowered this capacity to H8, and present needs require a structure with a capacity of H20-S16. Vehicular traffic over said bridge has increased since its construction. A twenty-four hour count by this Department in 1954 showed passage of 1,664 vehicles and in 1941, a passage of 850 vehicles."
On August 19, 1955, Southern Railway Company by letter acknowledged receipt of said notice, but said:
"Southern Railway Company does not feel obligated to participate in this project as it did not contribute to the original construction or maintenance of the bridge and has derived no benefits therefrom, nor would Southern Railway Company derive any benefits from the rebuilding of this bridge."
On August 23, 1955, the Highway Department served its second notice on Southern Railway Company, reciting:
"Please Take Notice that the South Carolina State Highway Department has determined the cost of effecting the reconstruction of a grade separation structure hereinafter more particularly described, in the amount of Forty-six Thousand ($46,000.00) Dollars, and that, pursuant to the provisions of Section 58-833, 1952 Code of Laws of South Carolina, the portion of such cost to be borne by The Southern Railway Company is the sum of 40% thereof, to wit Eighteen Thousand, Four Hundred ($18,400.00) Dollars."
It is from the latter notice that Southern Railway Company perfected this appeal.
It is stipulated by the parties:
"1. That the track of the Southern Railway Company at the point of the York bridge and for a distance of at *80 least 1,000 feet on each side of the bridge, has been, since 1916, when the railroad was originally constructed, in a cut of a depth of approximately 20 feet and of a width necessary to accommodate the railroad track.
"2. That, at the point in question, the track of the Southern Railway Company never crossed any higher at grade and that, because of the physical characteristics of the situs in question, a grade crossing would not be feasible or practical.
"* * * The relocation of the highway in 1927-1928 did not eliminate any Southern Railway Company grade crossings in the immediate vicinity."
I have not recited all of the facts that were stipulated but only those that are material to the issues involved.
To place the issues in proper perspective, reference should be made to the fundamental principle that the Highway Department is a statutory creature of the State (Section 3321, Code of Laws of South Carolina, 1952) deriving its powers from the Legislature. It has no inherent power. Whatever power it attempts to exercise must be found in some Act. Martin v. Saye, 147 S.C. 433, 145 S.E. 186. This principle seems to have been properly recognized by the Highway Department throughout these proceedings as it has repeatedly made reference to Sections 58-831 et seq., Code of Laws of South Carolina, 1952, as the source of its asserted authority.
The statutory source of power on which the Highway Department relies is Article 11 of Chapter 10, Title 58, Code of Laws of South Carolina, 1952, entitled "Alteration of Grade Separation Structures." Section 58-833 provides a scheme for the apportionment of costs between the Highway Department and the affected railroad of reconstructing, changing or altering a "grade separation structure and its approaches." Section 58-834 reads:
"This article shall apply to all cases where grade separation structures on State highways across railroads are, in *81 the judgment of the State Highway Department, for any reason inadequate for the traffic on the highway, but shall not apply to grade crossings. This article shall not be construed as relieving any railroad company from any obligation or duty now borne by or resting upon such company in connection with any grade separation structure."
Is the bridge in question a "grade separation structure"? The question has been argued fully by both sides, orally and by brief. After careful study and reflection, I am persuaded that this bridge is not such a structure. The term "grade separation" was presumably used advisedly by the Legislature to describe a structure having a particular function; that is, to separate the level of a road from the level of a railroad track at a point where such road and track cross. This was not the function of the bridge in question. There are many reasons why a bridge may be built, and one such purpose might be in some instances the elimination or prevention of a highway-railroad grade crossing. This was not the purpose here. The York bridge was built to span a cut and was no different from a bridge built to span any type of depressed area. True, there was a railroad track in the cut, but it was the latter and not the former that created a need for the bridge.
The foregoing conclusion is strengthened when consideration is had of the principle that these statutes, being in derogation of the common law must be strictly construed. Powell v. Greenwood County, 189 S.C. 463, 1 S.E. (2d) 624; Purdy v. Moise, 223 S.C. 298, 75 S.E. (2d) 605.
It is, of course, proper in considering the meaning of Article 11 to consider also other statutory provisions relating to the same subject-matter. Dantzler v. Callison, 230 S.C. 75, 94 S.E. (2d) 177, appeal dismissed 352 U.S. 939, 77 S. Ct. 263, 1 L.Ed. (2d) 235; Abell v. Bell, 229 S.C. 1, 91 S.E. (2d) 538; Edwards v.` State Educational Finance Commission, 222 S.C. 433, 73 *82 S.E. (2d) 456; Arkwright Mills v. Murph, 219 S.C. 438, 65 S.E. (2d) 665; Spartanburg County v. Arthur, 180 S.C. 81, 185 S.E. 486; Temple v. McKay, 172 S.C. 305, 174 S.E. 23; Fishburne v. Fishburne, 171 S.C. 408, 172 S.E. 426; Gregg Dyeing Co. v. Query, 166 S.C. 117, 164 S.E. 588, affirmed 286 U.S. 472, 52 S. Ct. 631, 76 L. Ed. 1232, 84 A.L.R. 831; Winn v. Harby, 166 S.C. 99, 164 S.E. 434; Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796.
Perhaps the clearest statement of that principle is contained in Gregg Dyeing Co. v. Query, supra, 166 S.C. at pages 123-124, 164 S.E. at page 590:
"It is a settled rule of statutory construction that it is the duty of the court to ascertain the intent of the Legislature and give it effect so far as possible within constitutional limitations. When a statute is a part of other legislation, designed as a whole to establish an expressed state policy, the court should strive to effectuate that policy. To aid in its construction, the statute must be read in the light of cognate legislation. Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796. And, in construing statutes on the same subject, `they shall be taken together, and construed in pari materia; even though there be no express reference by the latter statute to the former.' State v. Fields, 2 Bailey 554, 25 R.C.L., p. 1060. See, also, Columbia Gaslight Co. v. Mobley, 139 S.C. 113, 137 S.E. 211.
"`The rule that statutes in pari materia should be construed together applies with peculiar force to statutes that are contemporaneous.' 25 R.C.L., 1062.
"This Court has said: `There is no rule better supported by justice and wisdom than that, when there are several acts on the same subject, they should be read together as one act, so far as their provisions are consistent; as by this means, the mischief, the remedy, and the intention, of the legislature, are more distinctly seen and applied.' (Italics ours.) Richards v. McDaniel, 2 Mill 18.
*83 "While, as a general rule, reference to statutes in pari materia for purposes of construction has been made largely where there is ambiguity in the language of the statute construed, yet this principle has not been limited solely to such instances.
"`Statutes in pari materia must be construed together and given a construction, if possible, which violates no constitutional provision' (Syllabus). Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, 70 A.L.R. 550.
"Again: `These two acts are cognate parts of a single purpose the liquidation and retirement of designated road and bridge bonds in the accomplishment of which purpose the provisions of the two acts are inextricably interrelated. They should therefore be construed in pari materia as one enactment.' (Italics ours.) Amos v. Mathews, 99 Fla. 1, 126 So. 308, 313."
The term "grade separation structure" is used not only in Article 11 but in several instances in Article 10 of the same Chapter entitled "Elimination of Grade Crossings at Instances of Others Than Commission." Article 10 deals with the original construction of a "grade separation structure" whereas Article 11 deals with the reconstruction, change or alteration of such a structure. Section 58-813 of Article 10 speaks of "* * * the elimination of any grade crossing by means of a grade separation structure * * *." Section 58-815 of Article 10 applies to the material to be used in the construction of "the grade separation structure." Section 58-816 of Article 10 provides a scheme for the division of the costs "of the elimination of the grade crossings by means of grade separation structures." Section 58-820 of Article 10 requires that the Highway Department's share of the cost be appropriated or arranged for before the railroad can be required to proceed with the construction "of such grade separation structure." Section 58-821 allows an appeal by the railroad from an order of the Highway Department requiring it to provide "a grade separation structure." Section 58-823 of Article 10 authorizes the Highway Department *84 during the appeal to proceed at its own risk with the construction of the "grade crossing separation structure." And Section 58-824 of Article 10 provides that grade crossings replaced by "grade separation structures" and no longer used by the general public may be continued only as private crossings.
Article 10 was enacted by the Legislature in 1924. Article 11 was enacted in 1932. When the two Articles are considered together, it is manifest that in enacting Article 11 the Legislature used "grade separation structure" as a term with an established meaning.
There are three reported cases in South Carolina construing the analagous sections of Article 10 which throw much light on the type of structures intended to be covered by that Article. The first of these cases was State ex rel. State Highway Department v. Piedmont & N. Ry. Co., 186 S.C. 49, 194 S.E. 631, involving an action brought by the State Highway Department to recover part of the construction cost of a bridge over the railroad's tracks. The action involved Section 8438, Code of Laws of South Carolina, 1932. (Sections 58-813 and 58-814 of the 1952 Code.) The latter provide:
"§ 58-813. Notice to railroad and effort to agree on plans.
"Whenever any such subdivision or department of the State government as is mentioned in § 58-812, having jurisdiction, may determine upon the elimination of any grade crossing by means of a grade separation structure, prompt notice shall be given to the railroad company owning or operating the railroad involved. Within ten days thereafter the representatives of the department and of the railroad involved shall meet and adopt a layout, with the grades and alignments mutually satisfactory." (Emphasis added.)
"§ 58-814. Procedure when agreement not reached.
"Failing to agree, the department or subdivision may order the railroad involved to proceed with the construction of such a structure as it may require as indicated in plans *85 and specifications accompanying its order. The railroad shall begin work thereon within sixty days after receipt of such order and shall complete the structure within a reasonable time."
An order of nonsuit against the Highway Department was affirmed upon the grounds, first, that the Statute of Limitations had run on the action, and second, that the cited statutory sections do not apply where no grade crossing is eliminated. On the latter point, the Court said:
"* * * (U)nder the facts of this case, as disclosed by the record, the statute under which plaintiff seeks to hold defendant liable for a share of the cost of constructing the bridge is not applicable.
"We think the motion must be granted on this ground.
"The title of the act under which the proceeding is brought is in these words: `Act to Establish a Uniform Basis for the Elimination of Grade Crossings.' Act March 8, 1924, 33 St. at Large, p. 1057.
"In this case there was no grade crossing at the place where the bridge was constructed. As a matter of fact, there was no road there. The Highway Department set out to build a new road at that point to extend from Greenville to Easley and beyond. Already there was such a road, known as Road No. 2, which was at that time a part of the system of state highways. This road, some hundreds of feet north of the new road, No. 13, crossed the tracks of the defendant railroad on a sound wooden bridge. South of the location of the new road No. 13 was another road crossing the railroad tracks at grade. The old road No. 2 has been removed from the state highway system, but it remains and is used as a county road. The road south of No. 13 remains and is also used as a county road and still crosses the railroad at grade. Thus it is seen that no grade crossing has been eliminated. The Highway Department has built a new road, No. 13; it had to cross the defendant's tracks, and it was necessary to build a bridge over the tracks. In order to make the railroad company liable for its share of the cost of constructing such *86 bridge, it must be shown that its construction effectuated the elimination of grade crossings over its tracks. The evidence is conclusive that no grade crossing has been eliminated.
"It is clear that the act in question does not apply in these circumstances; that the defendant is not liable for any part of the costs of construction of the bridge." 194 S.E. at pages 635-636.
The next case was State ex. rel. State Highway Department v. Southern Railway Co., 186 S.C. 315, 195 S.E. 633. The Highway Department sought to have the railroad pay part of the cost of a replacement overhead bridge crossing the railroad's tracks and a river. A nonsuit against the Highway Department was affirmed. After deciding the case primarily upon procedural grounds, the Court added:
"It seems plain to us that this is not such a grade-crossing elimination project as comes within the intent and purpose of the act of 1924 * * * which provides a uniform plan for the elimination of grade crossings throughout the state. The testimony and the profiles and maps in evidence show that the primary object of this project was to construct a new bridge over Saluda River at Chappels. * * * Clearly, this was the moving consideration which induced the placing of the bridge at this point. The elimination of the grade crossing was an incident thereto." 195 S.E. at page 637. (The cited Act of 1924 is now Article 10 of Chapter 10, Title 58, Code of Laws of South Carolina, 1952)
The third case is Powell v. Greenwood County, 189 S.C. 463, 1 S.E. (2d) 624. This was an action by the receiver of a railroad to recover from a county the cost of repairing a bridge spanning a cut in which the railroad's track lay. The track had been laid many years before the road was built. When the county put in the road, the railroad built the bridge over its track and maintained it, until it was replaced by a new bridge paid for equally by the county and the railroad. The railroad repaired the bridge and sought reimbursement under Article 10 pertaining to the elimination of grade crossings.
*87 The Circuit Judge, in an opinion reproduced in the Supreme Court's per curiam opinion, held that Article 10 did not apply:
"`I am of the opinion that Sections 8437 to 8447 apply only to the elimination of existing grade crossings. These sections are in derogation of the common law and therefore will have to be strictly construed. It is my opinion that it would not apply to a case of this kind * * *'." 1 S.E. (2d) at page 625. (The cited Sections are from the 1932 Code, now Article 10 of Chapter 10, Title 58, Code of Laws of South Carolina, 1952.)
The meaning of Articles 10 and 11 seems very clear. The first authorizes the elimination of grade crossings by means of grade separation structures and provides a scheme for the apportionment of costs between the Highway Department and the railroad. The second article authorizes the reconstruction, change or alteration of such structures, the same structures originally built pursuant to the first article, and provides a similar, but not identical, scheme for the apportionment of costs.
The distinction between the bridge in question and a grade separation structure is more than a technical one. The difference is substantial. A grade separation structure has for its purpose the promotion of safety and convenience from hazards partly of the railroad's making. The Legislature must have felt that the railroad could legitimately be required to bear a part of the cost of that type of structure, which expense it could recoup over a period of years from faster time schedules and the elimination of costly grade crossing accidents. The type of structure involved in this case did not eliminate any hazards, for there were none. No benefits inured to the railroad from this bridge.
I have considered the question from all approaches, including what I believe to be the common sense approach, and in each instance the answer is the same. The action of the Highway Department exceeded its authority.
*88 I have also heard argument as to grave constitutional questions of property rights which would have to be considered if Article 11 were applicable. I am impressed with the force of the railroad's argument, and I think that there is indeed a trend away from imposing such costs on the railroad (See City of Winston-Salem v. Southern Railway Co., 248 N.C. 637, 105 S.E. (2d) 37). However, in view of the conclusion already reached, I find it unnecessary to consider the constitutional issues, because of the rule that constitutional questions will not be determined, unless their determination is essential to a disposition of the case.
I respectfully recommend that the relief sought by Petitioner be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337158/ | 169 Ga. App. 538 (1984)
313 S.E.2d 727
BACON
v.
DECATUR FEDERAL SAVINGS & LOAN ASSOCIATION et al.
67346.
Court of Appeals of Georgia.
Decided January 4, 1984.
Rehearing Denied January 19, 1984.
T. Lee Bishop, Jr., for appellant.
Buddy M. Mears, William E. Cannon, Jr., for appellees.
BIRDSONG, Judge.
Decatur Federal Savings & Loan Association, as successor to American Fidelity Savings & Loan Association of Albany, brought suit for default of payments on six promissory notes executed by Bacon, seeking full payment of the notes, interest and attorney fees. Bacon admitted executing the notes but denied that he was indebted in the amount claimed. The case went to trial on a written stipulation of the parties that the only documents to be offered in evidence by the plaintiff would be the notes and certain security deeds referred to in the complaint and a letter from counsel for the plaintiff regarding attorney fees; that the only documents to be offered in evidence by the defendant would be appraisals as to the value of the properties referred to in the notes attached to the complaint; and that copies of *539 original documents could be used in lieu of original documents without objection by either party, but that all objections applicable to the admission of any other documents offered in evidence at trial were reserved. At trial the plaintiff tendered some sixteen exhibits consisting of the stipulated notes, security deeds and letters, and four other documents relating to the merger of American Federal and Decatur Federal. Bacon objected to the admission of each document and all objections were overruled. The defense rested without offering any evidence and Bacon now appeals from a verdict directed in favor of Decatur Federal in the amount sought. Held:
1. Having stipulated prior to trial that copies of the original notes and security deeds comprising the underlying transactions of the debt sued on would be admitted without objection, appellant is estopped to object to admission of these documents on best evidence grounds. Maynard v. Rawlins, 45 Ga. App. 91 (3) (163 S.E. 269). In any event, the best evidence rule (OCGA § 24-5-4 (Code Ann. § 38-203)) is inapplicable here since neither the existence nor the contents of these documents was in issue. Jones v. Sudduth, 162 Ga. App. 602 (292 SE2d 448).
2. Exhibits 12 through 15 consisted of copies of certain documents concerning the merger of American Federal and Decatur Federal, which Bacon demanded to be produced at trial when the originals were not immediately available. Here again, appellant's objections based on the best evidence rule were properly overruled. The copies of these writings were not introduced to prove the contents thereof, but to establish that a merger had in fact occurred and the notes transferred to Decatur Federal in refutal of appellant's attack on Decatur Federal's standing to bring the instant suit. Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580 (285 SE2d 181). "Furthermore, admission of the documents could not be harmful error in view of the fact that those with personal knowledge testified as to their content. [Cits.]" Millwood v. State, 166 Ga. App. 292 (5) (304 SE2d 103). Any objection to admission of this testimony was waived when the court reserved ruling on its competency until a later stage of the trial and counsel for appellant failed to invoke a final ruling thereon. State Hwy. Dept. v. Harrison, 115 Ga. App. 349 (2) (154 SE2d 723).
3. In light of the competent evidence that a merger had taken place between American Federal and Decatur Federal, and the appellant's in-court stipulations that no payments had been made under the notes and the amount of principal and interest owing thereunder, the defense of lack of privity is without merit and Decatur Federal was entitled to the verdict directed in its favor. See Williams v. Universal Decorators, 161 Ga. App. 165 (288 SE2d 115); *540 Hazel v. Tharpe & Brooks, 159 Ga. App. 415 (1) (283 SE2d 653); Gleaton v. Bank of Arlington, 40 Ga. App. 291 (2) (149 S.E. 438).
4. "It does not appear that there was any valid reason for the appellant to anticipate reversal of the superior court's judgment, and consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee's request for award of damages in the amount of 10 percent of judgment is granted." Hanover Ins. Co. v. Scruggs Co., 162 Ga. App. 640, 641 (292 SE2d 493); OCGA § 5-6-6 (Code Ann. § 6-1801).
Judgment affirmed with direction to assess a penalty of 10 percent. McMurray, C. J., and Shulman, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337160/ | 252 Ga. 267 (1984)
313 S.E.2d 678
BELL
v.
THE STATE.
40619.
Supreme Court of Georgia.
Decided March 7, 1984.
David Markus, for appellant.
James L. Webb, Solicitor, Christina Craddock, Assistant Solicitor, for appellee.
Michael R. Hauptman, amicus curiae.
GREGORY, Justice.
The defendant was convicted under OCGA § 16-11-36 (Code Ann. § 26-2616) for "loitering and prowling." The evidence at trial *268 showed that the arresting officer, a veteran patrol officer in the downtown Atlanta area, observed, near midnight, the defendant and another man squeezing between the wall and a locked gate of the Davison's parking garage in order to exit the garage. When the officer attempted to question the men, the defendant's companion fled. The defendant immediately halted and gave no resistance. After the defendant's companion was apprehended, the arresting officer advised both men of their rights under Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694) (1966), but did not place them under arrest. The officer then inquired whether they would like to explain why they were exiting the parking garage by squeezing through a locked gate. The defendant responded they were taking a short-cut through the garage.
The arresting officer testified that he believed this to be an unreasonable explanation as the defendant would have had to enter the garage from Carnegie Street, walk 150 feet to the stairwell, go down two flights of steps, then walk another 250 feet to the point where he could squeeze by the locked gate. The officer expressed his opinion that this path did not amount to a short-cut, but, in fact, required far greater effort on the part of the defendant than if he had simply travelled the sidewalk to his intended destination. The officer then placed the defendant and his companion under arrest. The officer testified the arrest was made due to his concern for the safety of the vehicles parked in the Davison's garage.[1]
1. The defendant makes a facial attack on OCGA § 16-11-36 (Code Ann. § 26-2616), arguing initially that it is void for vagueness. The pertinent sections of this statute provide:
"(a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
"(b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity *269 to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.
"(c) A person committing the offense of loitering or prowling shall be guilty of a misdemeanor."
The defendant maintains the phrases "loiter," "prowl" and "in a place at a time or in a manner" are "elastic standards which fail to provide sufficient guidelines to ordinary people so that they can understand what conduct is prohibited by the statute."
In construing the constitutionality of a statute, we must examine it in its entire context. The legislature enacted OCGA § 16-11-36 (Code Ann. § 26-2616) in 1980, patterning it after the Florida loitering statute, § 856.021, and Section 250.6 of the Model Penal Code.[2] With the exception of minor distinctions, OCGA § *270 16-11-36 (Code Ann. § 26-2616) is drafted in language identical to that of the Florida statute and Model Penal Code.[3]
In upholding the Florida statute against a void-for-vagueness attack, the Florida Supreme Court concluded the statute could be interpreted in a constitutional manner to proscribe only loitering or prowling which amounts to a threat to the safety of persons or property, conduct which persons of common intelligence may readily appreciate. State v. Ecker, 311 S2d 104 (Fla.) (1975), cert. den., Bell v. Florida, 423 U.S. 1019 (96 SC 455, 46 LE2d 391) (1975). The Comments to § 250.6 of the Model Penal Code support the interpretation that the conduct sought to be prohibited is only that loitering which creates a danger to persons or property. "As a threshold matter, the section requires at least some manifestation of aberrant behavior [and] ... the circumstances must be such that this behavior warrants alarm for the safety of persons or property in the vicinity." Comments, § 250.6 Model Penal Code, Proposed Official Draft of the American Law Institute, p. 390 (1962).
We agree with these observations and find them applicable to our analysis of the constitutionality of OCGA § 16-11-36 (Code Ann. § 26-2616). But see, City of Portland v. White, 9 Ore. App. 239 (495 P2d 778) (1972); City of Bellevue v. Miller, 85 Wash. 2d 539 (536 P2d 603) (1975).[4] While the meanings of certain isolated terms are arguably *271 elusive, the statute, when read as a whole, passes constitutional muster in advising persons of ordinary intelligence of the conduct sought to be prohibited. The statute also defines the offense in terms which discourage arbitrary enforcement. Due process requires no more. Kolender v. Lawson, ___ U. S. ___ (103 SC 1855, 75 LE2d 903) (1983); Monroe v. State, 250 Ga. 30 (295 SE2d 512) (1982). The offense of loitering is committed only when the actor engages in conduct "not usual for law abiding individuals" which creates "a reasonable alarm or immediate concern for the safety of persons or property in the vicinity." While as defendant suggests, perspectives may differ as to what conduct is "usual" for law-abiding citizens, the statute narrows the construction of this phrase by making it clear the conduct must be that which would alarm a reasonable person that danger exists to person or property. The statute further provides guidelines for determining whether this alarm is justified, thus avoiding the possibility of arbitrary enforcement.
Initially the investigating officer must determine whether the suspect's conduct poses a danger to persons or property. Section (b) offers guidelines to assist the officer in making this determination. However, these guidelines do not require the officer to make an arrest, even if one or more of the situations suggested therein is present. If, drawing on all his professional experience, the officer concludes the suspect presents a danger to persons or property in the vicinity and arrests him for loitering or prowling, it is then a matter for the trier of fact to determine whether, under all the circumstances revealed by the evidence, the suspect's conduct gave rise to reasonable alarm for the safety of persons or property. In resolving this issue the jury may also consider the guidelines of Section (b). The statute does not require a conviction if one or more of the listed circumstances is found. We point out that while there are useful guidelines, they do not represent an exhaustive list of factors which may be used in assessing whether the suspect's conduct reasonably warrants alarm. We also point out that under Section (b), no violation occurs if the investigating officer fails to afford the suspect an opportunity to dispel otherwise reasonable alarm by explaining his conduct.
Following the Florida Supreme Court we hold that the words "`under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity' mean those circumstances where peace and order are *272 threatened or where the safety of persons or property is jeopardized." 311 S2d at 109.
Defendant's reliance on Bullock v. City of Dallas, 248 Ga. 164 (281 SE2d 613) (1981) is misplaced. In that case we struck a municipal ordinance[5] which provided no guidelines by which "`any citizen who desired to conform his conduct to this provision would be [able] to discern whether he risked criminal responsibility... .'" 248 Ga. at 167. As pointed out above, OCGA § 16-11-36 (Code Ann. § 26-2616) does not suffer from this defect.[6]
2. Defendant complains OCGA § 16-11-36 (b) (Code Ann. § 26-2616) violates the Fifth and Fourteenth Amendments (Code Ann. § 1-805 and 1-815 et seq.) by requiring a suspect to identify himself as well as explain his presence and conduct.
We agree with the defendant "that while police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Kolender v. Lawson, 103 SC, supra, at 1860, n. 9; Davis v. Mississippi, 394 U.S. 721, 727, n. 6 (89 SC 1394, 22 LE2d 676) (1969). However, the State *273 correctly points out that OCGA § 16-11-36 (Code Ann. § 26-2616) does not require a suspect to provide information, but, rather, guarantees him the opportunity to explain his conduct, thereby possibly dispelling the officer's concern for the safety of persons or property before any official action is allowed. We conclude the proffering of this opportunity does not abrogate the right against self-incrimination. The statute permits the officer to make a threshold inquiry to evaluate the situation confronting him. The statute does not permit an interrogation of the suspect for the purpose of gathering evidence to establish guilt. See Shy v. State, 234 Ga. 816, 823 (218 SE2d 599) (1975).
The defendant misreads the statute in arguing that an accused may be convicted in any circumstance where he fails to explain his conduct and presence to the satisfaction of the arresting officer. The statute, in fact, safeguards against this situation. Section (b) provides in part, "No person shall be convicted of an offense under this Code section ... if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern." (Emphasis supplied.) We conclude the legislature intended for the trier of fact to determine, after hearing all the evidence at trial, whether the accused's explanation was true and should reasonably have dispelled the arresting officer's concern for the safety of persons or property in the area. That is, unless the trier of fact determines, beyond a reasonable doubt, under all circumstances of the case, that the explanation given would not have dispelled the officer's alarm or immediate concern, the accused must be acquitted. See Note 3, supra; compare Section 856.021, Florida statutes, § 250.6 Model Penal Code.
3. We conclude OCGA § 16-11-36 (Code Ann. § 26-2616) is not void for vagueness nor does it, on its face, violate the right against self-incrimination.
Judgment affirmed. All the Justices concur, except Bell, J., who dissents.
NOTES
[1] This evidence shows Davison's was not open at the time of arrest, but that the parking garage remained open to serve the hotel district trade. Four cars were parked on the level from which the defendant was observed exiting.
[2] Governor George Busbee proposed OCGA § 16-11-36 (Code Ann. § 26-2616) to the legislature in January 1980. The statute was specifically patterned after Florida statute Section 856.021 and the Model Penal Code, Proposed Official Draft Section 250.6 of the American Law Institute (1962), in part because the constitutionality of the Florida statute had been upheld by the Florida Supreme Court. State v. Ecker, 311 S2d 104 (Fla.) (1975), cert. denied, Bell v. Florida, 423 U.S. 1019 (96 SC 455, 46 LE2d 391) (1975). See, Memorandum, Office of the Governor, January 18, 1980.
Florida Statutes Section 856.021 provides:
"(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
"(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
"(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083."
Model Penal Code § 250.6 provides:
"A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm."
[3] The most notable of these distinctions involves the standard by which a proferred explanation of the suspect's "conduct and presence" is to be judged. The Florida statute and MPC provide "No person shall be convicted of an offense under this section if ... it appears at trial that the explanation given by the [suspect] is true, and if believed by the officer at the time, would have dispelled the alarm or immediate concern." (Emphasis supplied.) The corresponding provision of OCGA § 16-11-36 (Code Ann. § 26-2616) states, "No person shall be convicted of an offense under this Code section if ... it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern." (Emphasis supplied.)
[4] Both the Oregon statute and Washington Municipal ordinance were patterned after § 250.6 of the Model Penal Code. The statute and ordinance in these cases were similar to OCGA § 16-11-36 (Code Ann. § 26-2616). Both were declared unconstitutional on vagueness grounds.
[5] The Dallas City Ordinance provided: "No person shall remain or loiter upon any premises to which the public has access, including but not limited to such places as business and shopping area parking lots, where the person's presence upon such premises is unrelated to the normal activity, use or business for which such premises are made available to the public." We determined that the broad language of the ordinance could impose criminal liability on a person who suffered a sudden injury while on the premises or on a child retrieving his baseball from a business parking lot. 248 Ga. at 168.
[6] Nor are we persuaded that Kolender v. Lawson, ____ U. S. ____ (103 SC 1855, 75 LE2d 903) (1983) is apposite. Cal. Penal Code § 647(e) provides a person is guilty of a misdemeanor if he "loiters ... upon the streets ... and refuses to identify himself and account for his presence when requested by a police officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." The California Court of Appeal interpreted the statute to require an individual to furnish "credible and reliable identification ... carrying reasonable assurance that the identification is authentic and providing a means for getting in touch with the person who has identified himself." People v. Solomon, 33 Cal. App. 3d 429, 438 (108 Cal. Reptr. 867) (1973), cert. den., 415 U.S. 951 (1974). In affirming the determination by the Ninth Circuit that the statute is unconstitutional, the Supreme Court stated the statute "contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a `credible and reliable' identification." 103 SC at 1859. The Court expressed its concern that the determination of "`credible and reliable' identification ... `entrust(s) lawmaking "to the moment-to-moment judgment of the policeman on his beat."'" 103 SC at 1860. As we have pointed out, OCGA § 16-11-36 (Code Ann. § 26-2616) does contain standards for determining what a citizen must do to comply with the law. The enforcement of the statute does not place unbridled discretion in the power of law enforcement officials. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1755562/ | 597 So. 2d 915 (1992)
Frank G. CIBULA, Jr., individually and Frank G. Cibula, Jr., Richard H. Gaunt, and Kent S. Pratt, Formerly d/b/a Cibula Gaunt and Pratt, Appellants,
v.
Leslie A. ROSS, Jr., Appellee.
No. 91-1581.
District Court of Appeal of Florida, Fourth District.
April 22, 1992.
Philip D. Parrish and Robert M. Klein of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for appellants.
Michael W. Simon of Mattlin & McClosky, Boca Raton, and Steven H. Goldfarb, Boynton Beach, for appellee.
PER CURIAM.
While the record establishes the attorney's limited authority to settle the claim against her client, it contains no evidence of her client's clear and unequivocal consent to the filing of an offer of judgment. Because an adverse judgment has ramifications that a voluntary dismissal of a claim does not, authority to settle does not equate to authority to file an offer of judgment. We reverse. See Weitzman v. Bergman, 555 So. 2d 448 (Fla. 4th DCA 1990); Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So. 2d 796 (Fla. 1st DCA 1985).
GLICKSTEIN, C.J., and DELL and WARNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277288/ | 6 S.W.3d 646 (1999)
In re HOOVER, BAX & SLOVACEK, L.L.P., Relator.
No. 08-99-00161-CV.
Court of Appeals of Texas, El Paso.
October 7, 1999.
*648 Randall L. Rouse, Shafer, Davis, Joel B. Locke, Ashley, O'Leary & Stoker, Odessa, for relator.
Robert C. Grable, Kelly, Hart & Hallman, Fort Worth, Alan W. Harris, Andrews & Kurth, L.L.P., Dallas, Kevin B. Jackson, Law Offices of Jackson & Mason, Andrews, Alfred H. Ebert, Andrews & Kurth, Houston, Daniel J. Sheehan, Daniel Sheehan and Associates, LLP, Dallas, for respondents.
Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
OPINION
SUSAN LARSEN, Justice.
This is an original proceeding in mandamus. We deny relief for the reasons stated below.[1]
FACTS
Relator Hoover, Bax & Slovacek, L.L.P. ("HBS") originally represented John Walton in a lawsuit against Bass Enterprises Production Co., Perry R. Bass, Inc. f/k/a Sid W. Richardson, Inc., Sid R. Bass, Inc., Keystone, Inc., Goliad Partners, L.P., Alamo Partners, L.P. n/k/a Stonegate Partners, *649 L.P., Lee M. Bass, Inc., Thru Line, Inc., and Sid Richardson Carbon & Gasoline Company a/k/a Sid Richardson Gasoline Company (collectively "Bass"). Walton alleged multiple causes of action all based on environmental damage and improper payment of royalties. Walton fired HBS and eventually settled his claims against Bass with the aid of other counsel. Before the settlement, HBS intervened in the lawsuit requesting attorney's fees incurred during its representation of Walton. Bass filed a motion to sever HBS's claims from the suit, which the trial court granted along with Bass and Walton's agreed motion to dismiss their claims thus rendering judgment final in the original suit. After filing an unsuccessful motion for new trial, HBS filed this petition for writ of mandamus seeking to reverse the trial court's severance order.
JURISDICTION
HBS filed a direct appeal from the severance order along with this petition for writ of mandamus. HBS did so because there exists an apparent split in authority among the courts of appeals as to whether an order severing a cause of action is subject to review by way of appeal. HBS points to Nicor Exploration Co. v. Florida Gas Transmission Company,[2] from the Corpus Christi court of appeals and this court's holding in Cass v. Stephens.[3] In Nicor, the Corpus Christi court found that it had jurisdiction to reverse an improper severance order.[4]Nicor specifically disagreed with this court's opinion in Cass,[5] which appears to hold that an appellate court can never address an invalid severance because an invalid severance leaves no final appealable judgment thus always depriving the appellate court of jurisdiction.[6]
Upon close examination, we believe our intent in Cass has been misconstrued (understandably so, as we explain below). In Cass, the trial court found that Cass committed discovery abuses. The trial court ordered monetary discovery sanctions against Cass and struck Cass's affirmative pleadings.[7] Then the trial court severed Cass's stricken causes of action and the order for monetary sanctions into a separate cause of action thus making them final.[8] Cass appealed both the trial court's severance order and the order entering the discovery sanctions. This court first sustained Cass's sixth point of error challenging the severance, then determined that because the severance had been improper, there should have been no final judgment in the case.[9] We therefore decided that we lacked "jurisdiction to consider the other points of error."[10] We then misspoke by concluding that it was "necessary for us to dismiss the appeal."[11] By earlier sustaining Cass's sixth point of error and specifically noting that we lacked jurisdiction to consider the "other" points of error, we intended to reverse the case on the severance issue, then find no jurisdiction to address the remaining points of error since the discovery order would become interlocutory upon rejoining the original suit. The case therefore should not have been dismissed for want of jurisdiction in its entirety. To the extent that Cass can be read to hold otherwise, we overrule it now.
We find, however, that Cass and Nicor are inapplicable to the facts of this *650 case. In both Cass and Nicor, the appellant was party to a judgment rendered final by its severance from other pending claims. Thus, the Cass and Nicor appellants appealed from final judgments which had been erroneously severed. In contrast, HBS and its claims were severed from Walton's settled claims against Bass. The severance of HBS's claims rendered the agreed judgment on Walton's claims against Bass final, but HBS's claims remain pending in the severed suit. Thus, HBS is not a party to a final appealable judgment. HBS's avenue for challenging the trial court's order severing its claims from the original suit is by petition for writ of mandamus.[12] We analyze its claims under those well-settled standards.
STANDARD OF REVIEW
Mandamus will lie only to correct a clear abuse of discretion.[13] Moreover, there must be no other adequate remedy at law.[14]
1. Clear abuse of discretion
An appellate court rarely interferes with a trial court's exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law.[15] With respect to resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court.[16] The relator must therefore establish that the trial court could reasonably have reached only one decision.[17] Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable.[18] With respect to a trial court's determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no "discretion" in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.[19]
2. No adequate remedy by appeal
An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate.[20] Mandamus will not issue where there is "a clear and adequate remedy at law, such as a normal appeal."[21] Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies."[22]
APPLICABLE LAW: SEVERANCE
A claim may be properly severed only if: (1) the controversy involves more than one cause of action; (2) the severed *651 claim is one that would be the proper subject of a lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues.[23] In this case, we find that HBS's severed claims meet all three criteria.
1. Controversy Involves More than One Cause of Action
The controversy at issue here involves more than one cause of action. Walton claimed environmental damages against Bass. HBS's claims against Walton, on the other hand, are for attorney's fees incurred during HBS's representation of Walton prior to termination. Although HBS claims that it owns an interest in Walton's cause of action against Bass, the record does not support HBS's contention. HBS's petition in intervention for legal fees was based on its June 27,1995 written agreement with Walton. That agreement initially required Walton to assign and convey an undivided interest in his claims to HBS. Upon termination of the representation, however, the agreement provided that Walton
[I]mmediately pay the Firm [HBS] the then present value of the Contingent Fee described in subsections (A) and (C) above, plus all Costs then owed to the Firm, plus subsequent legal fees at the rate of $200.00 per hour of billed time, and Costs, if any, necessarily incurred by the Firm to facilitate the transfer of representation to any subsequent law firm and/or for the Firm to withdraw from any litigation.
It is undisputed that Walton terminated HBS's representation. Accordingly, the meaning of the contractual language regarding termination controls the nature of HBS's interest in Walton's cause of action.
In the interpretation of contracts, the primary concern of courts is to ascertain and to give effect to the intentions of the parties as expressed in the instrument.[24] This requires the court to examine and consider the entire instrument and reach a decision so that none of the provisions will be rendered meaningless.[25] Further, a contract is to be construed in accordance with its plain language, and it is presumed that the parties intended each clause to have some effect.[26] The court will not strike down any portion of the contract unless there is an irreconcilable conflict.[27]
We would be hard pressed to find the plain language and intent of the termination clause to be anything other than a requirement for Walton, upon termination of HBS, to pay HBS the present value of HBS's interest in Walton's cause of action. Essentially, the clause requires Walton to "buy out" HBS's interest in the cause of action should Walton choose to terminate HBS's services. Thus, the assignment to HBS of an undivided interest in Walton's causes of action did not survive HBS's termination as counsel. Instead, HBS's rights against Walton as of the time of the termination are contractually limited to the "then present value" of the prospective contingent fee HBS would have realized had HBS continued to represent Walton. HBS therefore has a contractual cause of action against Walton that is completely separate from Walton's causes of action against Bass.
2. Severed Claim Would be Proper Subject of Lawsuit if Independently Asserted
HBS's claims against Walton sound in contract. We find no reason that *652 HBS's contract claim could not be asserted against Walton in an independent suit. HBS raises none.
3. Severed Claim not so Interwoven with Remaining Action to Involve Same Facts/Issues
As we have already determined, HBS no longer holds an assigned interest in Walton's claims against Bass. Instead, it holds a separate contractual claim against Walton for its legal fees. Whether HBS is entitled to its contractual fee and the value of that fee, particularly since the fee is in terms of present value at the time of termination, is an issue unrelated to Walton's continued pursuit of his causes of action against Bass. Although the amount of Walton's eventual settlement with Bass may be of evidentiary value to HBS, HBS's quest for its fees is not controlled by the same facts and issues involved in Walton's environmental causes of action against Bass.
CONCLUSION
Accordingly, we do not find that the trial court abused its discretion in severing HBS's claims from the original suit. We therefore deny mandamus relief.
NOTES
[1] In addition to this petition for writ of mandamus, HBS also filed an appeal, cause number 08-99-00058-CV, on the same issue. Because we find that we have no jurisdiction over HBS's appeal and HBS's remedy is more appropriately in the nature of mandamus, we dismiss that appeal.
[2] 911 S.W.2d 479 (Tex.App.-Corpus Christi 1995, writ denied).
[3] 823 S.W.2d 731 (Tex.App.-El Paso 1992, no writ).
[4] Nicor, 911 S.W.2d at 482.
[5] Id.
[6] Cass, 823 S.W.2d at 734.
[7] Id. at 733.
[8] Id. at 732-33.
[9] Id. at 733-34.
[10] Id. at 734 (emphasis added).
[11] Id. at 734.
[12] See In re El Paso County Hosp. Dist., 979 S.W.2d 10, 12-13 (Tex.App.-El Paso 1998, orig. proceeding) (petition for writ of mandamus appropriate vehicle for challenge to severance order not resulting from final judgment).
[13] Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding).
[14] Id.
[15] See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding).
[16] Walker, 827 S.W.2d at 839-40.
[17] Id.
[18] Id.
[19] Walker, 827 S.W.2d at 840.
[20] Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986) (orig.proceeding).
[21] Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)).
[22] Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas in Appellate Procedure in Texas, Sec. 1.4(1)(b) at 47 [2d Ed.1979]).
[23] In re El Paso County Hosp. Dist., 979 S.W.2d at 12.
[24] Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Duracon, Inc. v. Price, 817 S.W.2d 147, 149 (Tex.App.-El Paso 1991, writ denied).
[25] Coker, 650 S.W.2d at 393; Duracon, Inc., 817 S.W.2d at 149.
[26] Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983) (opin. on rehearing).
[27] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2280677/ | 926 F. Supp. 635 (1996)
Debbie L. GAUSMANN, Plaintiff,
v.
CITY OF ASHLAND, et al., Defendants.
No. 1:95-CV-2375.
United States District Court, N.D. Ohio, Eastern Division.
April 15, 1996.
*636 James H. Banks, Dublin, OH, for Debbie L. Gausmann.
*637 Richard P. Wolfe, II, Ashland, OH, Gregory G. Baran, Baran, Piper, Tarkowsky & Fitzgerald, Mansfield, OH, Steven William Ritz, Todd M. Raskin, Mazanec, Raskin & Ryder, Solon, OH, for City of Ashland, Ohio, and Mark Burgess.
Richard P. Wolfe, II, Ashland, OH, Steven William Ritz, Todd M. Raskin, Mazanec, Raskin & Ryder, Solon, OH, for Ashland City Fire Department.
MEMORANDUM AND ORDER
O'MALLEY, District Judge.
Plaintiff Debbie Gausmann brings this action against the City of Ashland ("Ashland") and its Fire Chief, Mark Burgess, in his individual and official capacities. Gausmann alleges that she twice applied to Ashland for employment as a firefighter, but was denied employment both times for illegal reasons. Gausmann mixes and matches several theories of liability in her complaint, but apparently makes the following claims: (1) violation of Ohio Rev.Code § 4112; (2) violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (3) violation of 42 U.S.C. § 1983, through denial of her right to equal protection of the laws, guaranteed by the Fourteenth Amendment; (4) violation of 42 U.S.C. § 2000e ("Title VII"); and (5) punitive damages.[1]
Defendants have filed a motion to dismiss in part. Specifically, defendants seek to dismiss only these claims: (1) Gausmann's Title VII claim against all defendants; (2) the punitive damages claim against all defendants; and (3) all claims against the Fire Chief in his individual capacity (docket no. 4). For the reasons set forth below, the motion to dismiss in part is GRANTED.
I.
The Court accepts the following allegations as true for purposes of this ruling. Gausmann, who is 47 years old, is currently a paramedic/firefighter employed by Madison Township. In April of 1993, she applied to Ashland for the position of volunteer firefighter. She was not hired. Instead, defendants hired three younger males for the position, although she was more qualified than the males.
Later, in August of 1994, Gausmann applied to Ashland for the position of firefighter/paramedic. Gausmann scored second out of 66 persons who took the civil service examination, a required part of the employment application process. Again, however, defendants did not hire Gausmann; defendants told her that she was too old for the position. Gausmann alleges this excuse was pretextual, however, because defendants had stated to a male applicant that they would "waive" the age requirement that had disqualified Gausmann. Gausmann also alleges Burgess stated "there is no place for women in fire service."
Gausmann filed a charge of discrimination with the Ohio Civil Rights Commission ("OCRC") and the Equal Employment Opportunity Commission ("EEOC").[2] After 180 days had passed without any agency action, Gausmann requested and received a "right to sue letter" from the EEOC.
*638 II.
In deciding a motion to dismiss under Rule 12(b)(6), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325, 111 S. Ct. 1842, 1845, 114 L. Ed. 2d 366 (1991); Dana Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882 (6th Cir.1990); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489 (6th Cir.1990). However, the Court need not accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944, 92 L. Ed. 2d 209 (1986). A well-pleaded allegation is one that alleges specific facts and does not merely rely upon conclusory statements. The Court is to dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984).
III.
A. Gausmann's Title VII Claim Against All Defendants.
1. Scope of the Administrative Charge.
In her administrative charge of discrimination filed with the OCRC and EEOC, Gausmann answered the question "CAUSE OF DISCRIMINATION BASED ON (check appropriate box(es))" by checking the box marked "AGE." She did not check the box marked "SEX." In detailing her charge, Gausmann wrote that defendants "disqualified [her] for hire to the [Paramedic Fire Fighter] position because of my age, 45, in violation of the Age Discrimination in Employment Act." Complaint Ex. A at 1. The affidavit Gausmann attached to her charge contains an identical statement, and makes several allegations in support of a claim of age discrimination. Nowhere in her charge or affidavit, however, does Gausmann make any claim of gender discrimination, nor does she tender any allegations that could be viewed as supportive of a claim of gender discrimination. Indeed, the only reference to gender in the charge or affidavit is contained in the affidavit's blank line that Gausmann was required to fill in with the word "female," to describe her gender.
In the motion to dismiss, defendants note that Title VII forbids discrimination based on "race, color, religion, sex, or national origin" and not age. 42 U.S.C. § 2000e-2(a). Defendants further note that a plaintiff may not proceed on a claim for discrimination forbidden under Title VII unless she first files an administrative charge. Romain v. Kurek, 836 F.2d 241, 245 (6th Cir.1987). Defendants thus conclude that, because Gausmann did not file an administrative charge of discrimination forbidden by Title VII, her claim that defendants violated Title VII by discriminating against her on the basis of her gender must be dismissed.
Gausmann responds by arguing that she is not limited to bringing a claim for only the type of discrimination detailed in her administrative charge. Rather, her complaint may allege discrimination claims limited only by the "scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination." Farmer v. ARA Services, Inc., 660 F.2d 1096, 1105 (6th Cir. 1981); E.E.O.C. v. Bailey Co., Inc., 563 F.2d 439, 447 (6th Cir.1977), cert. denied, 435 U.S. 915, 98 S. Ct. 1468, 55 L. Ed. 2d 506 (1978). Gausmann insists that the EEOC's investigation of her administrative charge of age discrimination would surely have expanded to encompass an inquiry into whether defendants had discriminated against her on the basis of gender. Defendants reply that Gausmann's charge was clearly directed to only age discrimination, and the EEOC would not have investigated whether she was the victim of gender discrimination.
In Bailey, the Sixth Circuit discussed the circumstances under which an EEOC investigation of a charge of one kind of discrimination might reasonably be expected to expand to include investigation of another kind of discrimination. Bailey, 563 F.2d at 446-47. First, the Sixth Circuit referred to the case of Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970), in which a claimant charged gender discrimination, but the "[i]nvestigation by the EEOC ... revealed that the employer discriminated against the complaining *639 party because of her national origin." Bailey, 563 F.2d at 447. The Sixth Circuit agreed with the Sanchez court that the complainant in Sanchez should have been permitted to state a claim for both types of discrimination "because the EEOC investigation into the charge revealed the true basis of the discrimination against the employee" and "[n]ot to allow the lawsuit would have penalized a lay person for not attaching the correct legal conclusion to her claim and thus would have constituted an improperly narrow construction of Title VII." Id.
The Sixth Circuit then compared the circumstances in Sanchez with those in Bailey itself. In Bailey, the EEOC investigated a charge of gender discrimination. The EEOC found no evidence of gender discrimination, but discovered isolated evidence of religious discrimination that had not affected the original complainant. The Sixth Circuit found that the allegations of religious discrimination later made by the EEOC "could not reasonably be expected to grow out of [the original] charge." Id.
This Court finds that this case presents circumstances more akin to those in Sanchez than in Bailey. Sanchez teaches that the EEOC could reasonably be expected to investigate whether a complainant was denied hire because the employer discriminated against the complainant, to the position already at issue in the complaint, on the basis of age, sex, or any other impermissible reason. Bailey teaches that it would be unreasonable to expect the EEOC to investigate whether non-complainants suffered discriminatory treatment unrelated to the complainant's charge. In this case, the scope of an EEOC investigation of Gausmann's age discrimination charge could reasonably be expected to expand to determine whether defendants discriminated against her, in connection with employment decisions she complained of in her EEOC charge, on the basis of gender. For this reason, and because to so hold furthers the purposes of Title VII, defendants' motion to dismiss Gausmann's Title VII claim based on the limited scope of Gausmann's initial administrative charge is denied.
2. Gausmann's Ineligibility for the Position.
Although the Court declines to dismiss Gausmann's Title VII claim based on the scope of her administrative charge, the Title VII claim must be dismissed on other grounds. Specifically, even if Gausmann can show defendants had a discriminatory animus toward her based on her gender, defendants would necessarily have made the same decision not to hire Gausmann even absent this impermissible motivation.
Ohio Revised Code § 124.42 sets an age limit of 31 for the "original appointment" of a person to the position of firefighter, but allows municipalities to extend this age limit to 36. Ashland has, in fact, extended the age limit to 36. Ashland Ord. No. 155.05 (1969). The setting of age limits pursuant to Ohio Rev.Code § 124.42 has been upheld as constitutionally valid. Munteanu v. Barberton, 655 F. Supp. 1357 (N.D.Ohio 1987).
At the time of the alleged discrimination by defendants, Gausmann was about 45 years old, well in excess of the age limit legally set by defendants.[3] Assuming Gausmann could show clear evidence that defendants had an illegal gender-based discriminatory animus toward her, defendants would then have to prove "that [they] would have made the same decision even if [they] had not considered the plaintiff's gender." Cesaro v. Lakeville Comm. School Dist., 953 F.2d 252, 254 (6th Cir.1992) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 1794, 104 L. Ed. 2d 268 (1989)); Terbovitz v. Fiscal Ct. of Adair Cty. Ky., 825 F.2d 111, 115 (6th Cir.1987) (plaintiff must prove "that the adverse employment action would have been taken even in the absence of the impermissible motivation"). In this case, defendants were required by law to make the same decision. Regardless of any gender-based discriminatory animus, defendants were precluded from hiring Gausmann because *640 of her age, which exceeded the allowed maximum.
In an effort to avoid the force of Ohio Rev.Code § 124.42, Gausmann suggests she was not seeking an "original appointment" to Ashland firefighter. Gausmann argues that, because she was already a firefighter for Madison Township, her hire into the position of firefighter for Ashland would not have been an "original appointment." This argument fails; Gausmann's hire could only have been an "original appointment" or a "promotion." Ohio Rev.Code § 124.43; cf. State ex rel. Delph v. Barr, 1988 WL 38820 at *7 (Ohio Ct.App. Apr. 21, 1988) (where the court had to determine whether relator's hire was an "original appointment to the Greenfield Police Department or a promotion from within such department"). Clearly, Gausmann was not applying for a promotion from within the Ashland Fire Department, so she was necessarily vying for an "original appointment," to which the age limits legally applied. Accordingly, defendants' motion to dismiss Gausmann's Title VII claim against all defendants must be GRANTED, based on Gausmann's legal ineligibility for the positions for which she applied.[4]
B. Punitive Damages.
Defendants argue that punitive damages are not available against a governmental agency or a governmental official sued in his official capacity. Gausmann concedes this point, stating that her "claim for punitive damages is against Mark Burgess, in his individual capacity, only." Response Mem. at 4. Accordingly, defendants' motion to dismiss Gausmann's punitive damages claim is GRANTED as to defendant Ashland. Gausmann's punitive damages claim against Burgess in his individual capacity is addressed below.
C. Claims Against Burgess in his Individual Capacity.
Defendants ask the Court to dismiss all claims against Fire Chief Burgess in his individual capacity. For the reasons set out below, the Court dismisses these claims.
1. Age Discrimination Claim.
Defendants argue that a plaintiff may not pursue a claim under the ADEA against a government worker in his individual capacity. Gausmann does not dispute this assertion, which appears to be valid. Kizer v. Curators of University of Missouri, 816 F. Supp. 548, 551 (E.D.Mo.1993); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.1994). Accordingly, the motion to dismiss Gausmann's age discrimination claim against Burgess in his individual capacity is GRANTED.
2. Gender Discrimination Claim.
For the reasons stated above in section III(A)(2) of this opinion, the motion to dismiss Gausmann's gender discrimination claim against Burgess in his individual capacity is GRANTED.
3. Ohio Statutory Claim.
Ohio prohibits age and gender discrimination through Ohio Rev.Code § 4112.02(A). Ohio courts have not squarely addressed the question of whether a plaintiff may pursue a claim under § 4112.02(A) against a government supervisor employee in his individual capacity. As noted in Johnson, 871 F.Supp. at 987, "Ohio courts have given *641 at least implicit approval of individual liability by reviewing without comment cases in which co-employee supervisors were named defendants." On the other hand, the Ohio Supreme court has held that federal case law applying Title VII is generally applicable to cases involving § 4112.02(A). Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St. 2d 192, 196, 20 O.O.3d 200, 421 N.E.2d 128 (1981).
The Court is compelled to conclude that Gausmann does not state a claim under § 4112.02(A) against Burgess in his individual capacity. The reasoning behind precluding an "individual capacity" suit under Title VII applies equally to preclude a suit under § 4112.02(A). Both statutes prohibit "employers" from discriminating. In Title VII, "the `agent' provision in the statutory definition of `employer' only ensures that employers cannot escape respondeat superior liability." Bremiller, 879 F.Supp. at 788. The "agent" provision in Title VII does not allow claims against supervisors in their individual capacity. Id. The Ohio statute defines "employer" to include "any person acting directly or indirectly in the interest of an employer," instead of merely using the term "agent." Cf. § 4112.01(A)(2); 42 U.S.C. § 2000e(b). Nonetheless, it seems equally clear that the Ohio statutory definition is meant only to ensure that employers cannot escape respondeat superior liability. Accordingly, neither statute authorizes a claim against a government supervisory employee in his individual capacity. The motion to dismiss Gausmann's Ohio statutory claim against Burgess in his individual capacity is GRANTED.
4. Section 1983 Claim.
Burgess asks that Gausmann's § 1983 claim be dismissed against him in his individual capacity, based on failure to state a claim for which relief can be granted. This argument is well-taken; Gausmann's § 1983 claim fails for the same reason as does her Title VII claim. Even if Gausmann can show defendants treated her differently based on her gender, defendants would necessarily have made the same decision not to hire Gausmann absent this impermissible treatment.
To prove her § 1983 claim, Gausmann must show that she was denied equal protection of the laws because her gender was "the motivating or `but-for' factor in the decision" not to hire her. Wright v. Phipps, 765 F. Supp. 1544, 1547 (W.D.Va.1990). Even assuming Gausmann can make this showing, Burgess prevails if he can "show that an unrelated motive was an independently effective motive." Id. There is no question that Burgess had an unrelated and independently effective motive for declining to hire Gausmann: she was ineligible for the position as a matter of state and municipal law because her age exceeded the maximum legal limit. Accordingly, the motion to dismiss Gausmann's § 1983 claim against Burgess in his individual capacity is GRANTED.
5. Punitive Damages.
Because the Court has dismissed all other claims against Burgess in his individual capacity, the claim against him for punitive damages must also fail. Accordingly, the motion to dismiss Gausmann's punitive damages claim against Burgess in his individual capacity is GRANTED.
IV.
In summary, the Court finds defendants' motion to dismiss in part well-taken. Accepting Gausmann's allegations as true, the following claims must be dismissed for failure to state a claim upon which relief can be granted: (1) the Title VII claim against all defendants; (2) the punitive damages claim against all defendants; and (2) all claims against Burgess in his individual capacity. Thus, the current status of the claims made in this case is set out in the following chart.
*642
Burgess in his Burgess in his City of
official capacity individual capacity Ashland
Title VII DISMISSED DISMISSED DISMISSED
ORC § 4112 not dismissed DISMISSED not dismissed
ADEA not dismissed DISMISSED not dismissed
§ 1983 not dismissed DISMISSED not dismissed
Punitive DISMISSED DISMISSED DISMISSED
The Court also notes that those claims not dismissed were not made a subject of the motion to dismiss.
IT IS SO ORDERED.
NOTES
[1] Conceivably, the complaint could also be read to assert a claim for negligent and/or intentional infliction of emotional distress. In their motion to dismiss, however, defendants characterized the complaint as containing only the above-listed claims, and plaintiff did not object. Accordingly, the Court holds that plaintiff has not stated a claim for infliction of emotional distress. In any event, it is clear that such a claim would fail because Gausmann has not and cannot allege facts showing that "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 317 (6th Cir. 1989). Claims of emotional distress are routinely dismissed in the context of termination of employment. Flynn v. Fahlgren & Swink, Inc., 746 F. Supp. 729, 731 (S.D.Ohio 1990). In addition, Parker has not alleged she was in fear of an actual physical peril, as she must to prevail on a claim of negligent infliction of emotional distress. Heiner v. Moretuzzo, 73 Ohio St. 3d 80, 652 N.E.2d 664 (1995).
[2] Gausmann alleges that she filed a charge of "sex and age discrimination." Complaint at ¶ 31. The Court cannot accept this allegation as true, however, as the administrative charge which is attached as an exhibit to the complaint clearly makes a claim only of age discrimination. See discussion below in section III(A)(1) of this opinion.
[3] Gausmann alleges she was 47 years old when the complaint was filed in 1995, and she applied for the firefighter positions in 1993 and 1994.
[4] As additional grounds for dismissal of the Title VII claim against him, Burgess argues that a plaintiff may not pursue a claim under Title VII against a supervisor in his individual capacity. As the parties' briefs make clear, the courts are split on this question. Cf. Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.1994) (individual public employee supervisor may not be held liable); Bremiller v. Cleveland Psychiatric Inst., 879 F. Supp. 782, 787-88 (N.D.Ohio 1995) (same); Johnson v. University Surgical Group Assocs. of Cincinnati, 871 F. Supp. 979 (S.D.Ohio 1994) (individual private sector co-employee supervisor may be held liable). The Sixth Circuit has not ruled on this issue, but the "greater weight of recent authority" holds that individual liability does not exist under Title VII. Bremiller, 879 F.Supp. at 788. This Court agrees with the reasoning set out in Bremiller and the cases cited therein, and thus adds that Gausmann does not state a claim under Title VII against Burgess in his individual capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277163/ | 8 Cal. App. 4th 1458 (1992)
10 Cal. Rptr. 2d 922
THE PEOPLE, Plaintiff and Respondent,
v.
HENRY LEE HENDRIX, Defendant and Appellant.
Docket No. D015106.
Court of Appeals of California, Fourth District, Division One.
August 20, 1992.
*1459 COUNSEL
Charles F. Cambell, 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, Janelle B. Davis and David I. Friedenberg, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WIENER, Acting P.J.
A jury found the defendant, Henry Lee Hendrix, guilty of simple assault (Pen. Code,[1] § 240), a lesser included offense of assault with intent to commit rape (§ 220), and felony false imprisonment by violence (§§ 236/237). The court found Hendrix had been convicted of two serious felonies within the meaning of section 667, subdivision (a) and sentenced him to the lower term of sixteen months for his conviction of false imprisonment with a one-year consecutive term for each prison prior, for a total of three years and four months. The court stayed its six-month sentence on the simple assault conviction pursuant to section 654. We conclude that Hendrix's contention that his conviction of felony false imprisonment must *1460 be reversed because the trial court erred in failing to give a requested instruction on the lesser included offense of misdemeanor false imprisonment has merit. We therefore reverse the judgment on that count.[2] In all other respects we affirm the judgment. We remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 8:30 to 9 p.m. 23-year-old Bethany M. was walking to a friend's house when she saw Hendrix standing in the driveway in front of his house. She knew Hendrix, having seen him around the neighborhood for about six years. Hendrix was about 29 years old. Bethany did not have a dating relationship with him.
Bethany asked Hendrix if she could use the bathroom in his house. Hendrix invited her in and they walked upstairs together. After using the bathroom Bethany saw Hendrix sitting on the edge of his bed playing Nintendo. Hendrix asked her if she wanted to play. She sat down on the bed and joined him in playing the game.
Fifteen to twenty minutes later Hendrix said he did not want his nieces or nephews bothering him and closed the bedroom door. The door's lock was broken and to secure the door Hendrix pushed a couch against it. Hendrix asked Bethany if she wanted to smoke a "joint." She replied she did and Hendrix rolled a joint for her. She smoked most of it.
After a period of about 45 minutes or so, Bethany got up and said she had to leave. As she started toward the door, the light was turned off and Hendrix grabbed her from behind. Hendrix's hand was on the front of her neck. He pushed her on to the bed and started to choke her. He said she was not going to leave after smoking his marijuana. Hendrix's upper body pinned her down. He used his knee in an effort to force her legs apart.
Bethany heard someone coming up the stairs and screamed for help. The person outside yelled at Hendrix to open the door. Bethany ran toward the *1461 door which was pushed open by Hendrix's sister. Bethany told her Hendrix had tried to rape her. Bethany also told her aunt about the incident and then reported it to the police. Although Bethany did not see a doctor she suffered a sore throat from the attack and had some scratches on her neck.
Dr. Russell Bruce Hubbard, a psychiatrist with expertise on the effects of drugs, testified for the defense. He explained marijuana could produce anxiety attacks or paranoid episodes as well as producing perceptual distortions and visual hallucinations. Use of marijuana could also adversely affect long term memory by interfering with the transfer of information from short term to long term memory. Given a hypothetical situation similar to the defense theory of what occurred in the bedroom, Dr. Hubbard testified it was possible the marijuana Bethany smoked could have affected her memory of the incident and could have led to panic or a paranoid episode.
The door to Hendrix's bedroom could be pushed partially open from the outside when the couch was pushed against it. Although it could not be completely opened it could be opened enough so that someone could get through the door.
Cleo Rambus testified he was at Hendrix's house between 8:30 and 10 p.m. Hendrix came out of the house and asked him if he could give a lady a ride home. Rambus said he could not do so. Hendrix returned home. A few minutes later a woman came out of the house. Rambus did not notice anything unusual about her.
On rebuttal Officer Jeanmarie Frary testified she interviewed Bethany at approximately 10:35 p.m. on the date the incident occurred. Officer Frary had training and experience in recognizing people under the influence of drugs or alcohol. She was also familiar with the symptoms of persons under the influence of marijuana. When she spoke with Bethany, Bethany displayed no symptoms of recent alcohol or marijuana consumption.
DISCUSSION
(1) Hendrix argues the court committed reversible error when it rejected defense counsel's request to give an instruction on misdemeanor false imprisonment, a lesser included offense of felony false imprisonment.
Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." Section 237 provides that punishment for false imprisonment may either be a fine not exceeding $1,000 or by imprisonment in the county jail for not more than one year or both, except where "such *1462 false imprisonment [is] effected by violence, menace, fraud, or deceit...." In such circumstances, false imprisonment is a felony and is "punishable by imprisonment in the state prison." (§ 237.)
Here, the court instructed solely on false imprisonment by violence or menace pursuant to CALJIC No. 9.60:
"Every person who by violence or menace violates the liberty of another person by intentionally and unlawfully restraining, confining, or detaining such other person and compelling such person to stay or go somewhere without his consent is guilty of the crime of false imprisonment by violence or menace, in violation of ... sections 236 and 237.
"In order to prove such crime, each of the following elements must be proved: a person intentionally and unlawfully violated the liberty of another person by restraining, confining, or detaining that person and compelling him or her to stay or go somewhere without his or her consent; and, two, such act was done by violence or menace.
"Violence means the exercise of physical force used to restrain over and above the force necessary to effect such restraint.
"Menace means a threat of harm express or implied by work or act."
When asked to give CALJIC No. 16.135,[3] misdemeanor false imprisonment, the court said:
"The only basis for false imprisonment that I can see is that he knocked her down and got on top of her, which made it difficult for her to leave. And that surely involves force. So I don't I think the [lesser included offense] would be confusing and unsupported by the evidence. It's refused."
The flaw in the court's reasoning as seen by the foregoing instructions is the court's belief that force was solely an element of felony false imprisonment. Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as "violence" with the false imprisonment effected by such violence a felony. Thus the court here erred in rejecting the proffered instruction on the ground Hendrix used force.
*1463 The omission of the instruction in this case is particularly significant since the jury rejected the prosecution's explanation of Hendrix's behavior convicting him only of simple assault. In reaching this decision the jury seems to have accepted the defense argument that the events could not have occurred the way they were described by Bethany. Defense counsel pointed out that Hendrix was 6'2", 220 pounds and Bethany only 5'2", 110 pounds. Because of Hendrix's clearly overpowering strength, counsel argued, it was absurd to think that Hendrix could not have raped Bethany had he wanted to do so. The physical evidence also failed to fully corroborate her testimony since she did not have the bruises or marks usually seen where the perpetrator intends to commit rape. Moreover, Hendrix's bedroom did not look as if a scuffle had occurred there. Consistent with Hendrix's portrayal of the events there was ample evidence for the jury to believe that although Hendrix used force, he did not use anything other that the amount of force necessary to prevent Bethany from leaving his bedroom. Accordingly, because the legal basis for the court's refusal to give the requested instruction was erroneous and because there was ample evidence to warrant the giving of the instruction, the court prejudicially erred in failing to do so.
DISPOSITION
The conviction of felony false imprisonment is reversed. The balance of the judgment of conviction and true findings is affirmed. The case is remanded for further proceedings consistent with this opinion.
Work, J., and Froehlich, J., concurred.
NOTES
[1] All statutory references are to the Penal Code.
[2] In light of our decision it is unnecessary for us to address Hendrix's additional argument that the court abused its discretion when it failed to consider whether to strike one or both prison priors for purposes of sentencing. As an editorial comment, although the record is ambiguous, we think it shows the court was aware of its discretion in this regard. In any event provided Hendrix is retried and again convicted of felony false imprisonment the trial court will have the further opportunity to exercise its discretion at sentencing and strike one or both of the priors. (See e.g., People v. Ruby (1988) 204 Cal. App. 3d 462, 465 [251 Cal. Rptr. 339].) Presumably, at that time the court will clearly articulate its awareness of its discretion so that the sentencing issue presented in this appeal can be avoided.
[3] CALJIC No. 16.135, false imprisonment, provides:
"Every person who falsely imprisons another is guilty of violating Penal Code section 236, a misdemeanor.
"False imprisonment is the [unlawful] violation of the personal liberty of another. False imprisonment means there must be an intentional [and unlawful] restraint, confinement or detention which compels a person to stay or go somewhere against [his] [her] will...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277168/ | 8 Cal. App. 4th 475 (1992)
10 Cal. Rptr. 2d 296
THE PEOPLE, Plaintiff and Respondent,
v.
JAMES IRVING SHOALS, Defendant and Appellant. In re JAMES IRVING SHOALS on Habeas Corpus.
Docket Nos. H008493, H009169.
Court of Appeals of California, Sixth District.
July 28, 1992.
*481 COUNSEL
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Mark S. Howell and Matthew P. Boyle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PREMO, J.
James Irving Shoals appeals from judgment after a jury convicted him of two narcotics offenses. He admitted three prior felony convictions and the court found a fourth true. The court imposed a 12-year state prison sentence. Appellant raises numerous points including prosecutorial misconduct, sufficiency of the evidence, sufficiency of the jury instructions, and erroneous denial of his Marsden[1] motion and new trial motions. We affirm in part and reverse in part.
Appellant also petitions this court for a writ of habeas corpus based on ineffective assistance of trial counsel for failing to move to suppress evidence seized in the search of the motel room, and for failing to proffer the codefendant's guilty plea at trial. We will discuss these contentions in connection with this appeal.
1. FACTS
Around 9 a.m. on September 27, 1990, four state parole officers went to the Executive Inn in San Jose to arrest appellant and search his room and a car he had been seen driving. When the parole agents arrived, there were two occupants in the room; appellant was in the shower and a woman named Jackie Levell opened the door.
The search of the room yielded 21 small baggies; 2 were tested and contained cocaine base. Two baggies were found on a nightstand near a man's watch, a ring, and a pager, and the rest were in the open drawer of the nightstand. There was $533.32 in cash hidden under the mattress and in a suitcase which also contained women's and children's clothes. With the exception of the clothes appellant put on when he got out of the shower, the only clothing in the room was women's and children's. However, men's *482 cologne was on the dresser in the bedroom and deodorant and razors were found in the bathroom.
Parole Officer Donald McLellan searched the wallet that was removed from appellant's pants and found a California driver's license in the name of Michael Dean Lampley. McLellan also learned that appellant had rented the room on September 5, 1990, using the name "Chooks." Either he or Levell paid the rent daily in cash; appellant paid two-thirds of the time. The motel manager reported that appellant responded when addressed as "Mr. Chooks." The 24-hour switchboard handled heavy telephone traffic to and from appellant's room day and night, with callers asking for "Chooks," for "the Black gentleman," for "room 219," and for Levell.
McLellan searched the trunk of a 1990 Chrysler parked nearby, which was one of the cars appellant had been seen driving. He found clothing (mostly women's and children's, but some men's), and about 25 papers in the trunk. The name Kenneth Nunn was on an application for cash aid, food stamps, and medical assistance, and the name Anita Nunn was on a magazine wrapper. The first name Edward was on another document.
The name Vonceil Belfield appeared on numerous papers, including a traffic citation issued on September 7, 1990, for being under the influence of cocaine. The citation described a four-door 1990 Chrysler with the license plate No. 2SPJ652 which matched the license plate and description of the Chrysler McLellan searched.
The Chrysler belonged to General Rent-a-Car, and was last rented on July 15, 1990, to a person named Lasou. General Rent-a-Car had no record of the car being missing between July and October, or that anyone using the names Shoals, Nunn, or Belfield rented the car or had access to the keys.
At trial, the parties stipulated that appellant knew the narcotic nature of cocaine, that the search was legal, and that the pager was owned by "another person," not appellant.
Of the six counts charged against appellant, he was found guilty of possession of cocaine base for sale (count 1, Health & Saf. Code, § 11351.5) and maintaining a place for selling or using a controlled substance (count 4, Health & Saf. Code, § 11366). The other counts were dismissed.[2] Appellant admitted two enhancements which authorized additional three-year consecutive terms for prior drug convictions. (Health & Saf. Code, § 11370.2, subd. *483 (c).) He also admitted a prior felony conviction for which he had served a prison term. (Pen. Code, § 667.5, subd. (b).) He agreed to a court trial on another charged prior, which was found to be true.
After his conviction, appellant filed a motion for a new trial. The court denied it and then imposed a four-year term on count 1, two years concurrent on count 4, three years consecutive for each of the two prior drug convictions, and one year consecutive for each of the two prior prison terms. This appeal ensued.
2. CONTENTIONS ON APPEAL
First, appellant contends that it was reversible error for the trial court to deny his motion for a new trial. He asserted that Levell's availability to testify constituted newly discovered evidence.
Second, appellant asserts that the evidence on count 4 was insufficient to prove that the motel room was "opened or maintained for the purpose of unlawfully selling, giving away, or using controlled substances," and that the court failed to define the "non-obvious terms of Health and Safety Code section 11366 [count 4, `the "maintaining" offense']."
Appellant also challenges the court's refusal of the jury's request for the written version of the instruction on the elements of count 4, and the court's response to the jury's request without notifying defense counsel and giving her an opportunity to be heard.
Appellant asserts further instructional error in the court's failure to give sua sponte CALJIC No. 2.71 on admissions, which contains the warning that evidence of a defendant's oral admission should be viewed with caution.
Next, appellant claims that the prosecutor engaged in misconduct requiring reversal when he "repeatedly and relentless [sic] ... made reference to the `fact' that appellant was unemployed at the time he was arrested." Actually, as respondent admits, there was no evidence before the jury on appellant's employment status.
Appellant complains of further misconduct when the prosecutor argued to the jury, "You're going to say, well, wait a minute, someone else was in that room. Miss Levell.... The court has instructed ... that you can't consider that." Appellant interprets this statement as an "assertion that the law *484 required the jury in effect to disregard the defense theory, ... that the drugs were in the exclusive possession of Jackie Levell...."
Next, appellant declares that reversal is required for the court's error in denying the Marsden motion he made on the second day of trial in which he claimed that defense counsel was unprepared and that she had counseled codefendant Jackie Levell to refuse to testify in his behalf.[3]
Next, appellant claims that, in regard to the contested prior conviction, the prosecution failed to prove that he committed an offense or was in prison custody during the five years between his completion of a prison term on August 20, 1985, and the commission of the offenses in this case in September 1990.
Finally, appellant contends that the cumulative effect of the "numerous errors" requires reversal.
3. MOTION FOR A NEW TRIAL
At trial, the defense planned to elicit from Jackie Levell testimony that the cocaine belonged to her and that she hid it from appellant when he visited her so that he would not know she had it. However, in a hearing outside the presence of the jury, Levell, with sentencing pending on the plea of guilty she had entered on the first day of trial, invoked her privilege against self-incrimination as to all questions. She did not appear in front of the jury.
The defense then proffered one complete letter and two fragments of letters in different handwriting which it claimed Levell sent to appellant. Defense counsel represented that Levell personally wrote one letter, but that she had vision problems and would often dictate her letters. The letters contained admissions that the motel room and the cocaine rocks were Levell's. However, defense counsel was unable to lay a foundation for the admission of any of the letters. Levell had invoked her privilege against self-incrimination, and no witness was available to authenticate the handwriting of the letter purportedly handwritten by Levell. (Appellant had not provided counsel with the letters until that morning.) Accordingly, the letters were not admitted into evidence. Appellant presented no further defense.
When appellant's motion for a new trial came to hearing on May 22, appellant produced a declaration under penalty of perjury from Levell which stated: (1) that she had invoked her Fifth Amendment right against self-incrimination on the advice of her attorney; (2) that she had since been *485 sentenced and was serving her sentence; (3) that 60 days had elapsed since she was sentenced and that she was not appealing the matter; and (4) that she told a probation officer who interviewed her in connection with appellant's presentencing report that she and 2 others bought the crack cocaine for $200 for their personal use and not for sale, that appellant did not know about it, and that she had hidden it and appellant did not know it was in her room. She also stated that she would testify to these facts if appellant were granted a new trial.
Appellant intended to present Levell's live testimony at the hearing on the motion; however, Levell was not present in court at the morning session, and her attorney was not present in the afternoon. The court heard and denied the motion on the basis of Levell's declaration, which the court stated "does not support a granting of a motion for a new trial."[4]
Sentencing followed immediately. At the end of the hearing, the prosecutor stated: "[F]or the record, Your Honor, the court in this matter did deny the defense motion for a new trial, and I just want to make it clear for the record I believe that was based on People versus Corona, which is located at 238 Cal. App. 2d 1914." The court responded: "It's based on a variety of reasons that I'm not going [sic] enumerate on the record."
"When a verdict has been rendered ... against the defendant, the court may, upon his application, grant a new trial.... [¶] [] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given...." (Pen. Code, § 1181.)
(1a) "A motion for new trial on the ground of newly discovered evidence is looked upon with disfavor. [Citation.] The granting or denial of *486 such a motion is within the sound discretion of the trial court and, absent a clear showing of abuse of discretion, will not be reversed on appeal." (People v. Hernandez (1971) 19 Cal. App. 3d 411, 416 [96 Cal. Rptr. 854].)
(2a) Appellant challenges the trial court's ruling, claiming that "the Levell testimony certainly was newly discovered. During the trial Levell refused to testify; in truth, this evidence did not even `exist' until after the trial was over." (Italics appellant's.) Appellant reasons that if "the defense knows at the time of trial what the witness would say, but it is faced with the problem that the witness cannot be called to testify[,] [w]hen the witness later becomes available to testify, his testimony must be regarded as `newly discovered.'" (Italics appellant's.)
(1b) "The standard of review of an order denying a motion for a new trial based on newly discovered evidence was established by [the Supreme Court] in 1887: `To entitle a party to a new trial on the ground of newly discovered evidence, it must appear, "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ...' [Citations.]" (People v. Martinez, supra, 36 Cal.3d at p. 821.)
At the motion, in addition to Levell's declaration, defense counsel stated that Levell "was represented throughout and I never spoke to her directly about what her testimony would be, could not do so her attorney refused to let me do so at any time.... [¶] ... We had the hearing ... at trial to see if we could get her testimony in. She took the Fifth and I was precluded from getting her testimony in ... [A]t that point until I saw the probation report [I wasn't] sure what her testimony would be."
Respondent "submit[s] the Levell declaration was not newly discovered evidence."[5] It cites People v. Corona (1965) 238 Cal. App. 2d 914 [48 Cal. Rptr. 193], for the proposition that a declaration from a codefendant who *487 refused to testify at trial is not newly discovered evidence. In Corona, the codefendant was being tried side-by-side with Corona. Corona did not attempt to call him as a witness, and he did not request to testify. "Penal Code section 1323.5 (superceded by Evid. Code, § 930) provides in part: `... the person accused or charged [of a crime] shall, at his own request, but not otherwise, be deemed a competent witness.'" (People v. Corona, supra, 238 Cal. App.2d at p. 920.)
(2b) In this case, appellant did call Levell as a witness. She responded by exercising her privilege against self-incrimination. She was legally unavailable as a witness. (Evid. Code, § 240, subd. (a)(1).)
In a similar case where the Attorney General asserted that the evidence was not newly discovered because the defense knew of the likely content of the testimony of a witness whom neither the defense nor the prosecution could find before trial, and who was therefore unavailable as a witness (Evid. Code, § 240, subd. (a)(5)), the court stated: "Were the `newly discovered' requirement interpreted literally and restrictively, this set of facts might pose some concern. But we read the Supreme Court's decision in People v. Williams (1962) 57 Cal. 2d 263, 273-274 [18 Cal. Rptr. 729, 368 P.2d 353] to have rejected such a mechanistic interpretation in favor of a more realistic approach which ties the concept of `newly discovered' evidence to the reasonableness of the defense conduct in failing to present the evidence at the first trial. In Williams, the court reversed an order denying a new trial even though the defendant knew of the `new' witness and her potential testimony before the first trial. (Id., at p. 272.) This approach was reinforced in Martinez, supra, 36 Cal. 3d 816, in which the court held that the attorney's lack of diligence in discovering relevant evidence, as distinguished from the defendant's, will generally not support the denial of a motion for new trial. (Id., at p. 825.) In the present case, the People do not contend that the failure to present [Levell's] testimony at the first trial was the product of defendant's lack of diligence. Accordingly, we conclude that [Levell's] testimony was `newly discovered' evidence within the meaning[] of Williams. ..." (People v. Hayes (1985) 172 Cal. App. 3d 517, 523-524 [218 Cal. Rptr. 362], fn. omitted.)
Nevertheless, the trial court was correct in denying the motion. To support a motion for a new trial, the evidence must be "such as to render a different result probable on a retrial of the cause...." (People v. Martinez, supra, 36 Cal.3d at p. 821, citation omitted.) Appellant believes that Levell's testimony would directly contradict "the prosecution's theory that the circumstances supported the conclusion appellant lived in the motel room and was dealing cocaine out of that motel room, and therefore was surely the *488 owner of the cocaine the police found." Appellant points out, "Numerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant. [Citations.]" (People v. Martinez, supra, 36 Cal.3d at p. 823.)
Levell's affidavit does not "contradict the strongest evidence introduced against the defendant." Her promised testimony that appellant had no knowledge of the presence of the cocaine and that she hid it "created at most a conflict with the prima facie case made out by the prosecution...." (People v. Charley Quong (1935) 5 Cal. App. 2d 137, 139 [42 P.2d 386].)
Appellant was arrested in company with Levell in a motel room which he had rented under a false name. He had been seen coming and going from the room for almost a month, and had received numerous telephone calls addressed to the false name or to his description ("the Black gentleman"). At the time of his arrest, he was unclothed. The only men's clothing in the room was his. The watch and ring, his by reasonable inference, were on the nightstand near two bindles of cocaine. The rest were in an open drawer in the nightstand where "[y]ou couldn't miss seeing them."
While Levell's affidavit is not cumulative, since no witness testified to her claim of ownership of the property or that she had hidden it, the clear thrust of the defense presented was that appellant did not live in the room or have dominion and control over its contents.
Consideration of whether it is reasonably probable that Levell's testimony would have affected the outcome of the trial if it had been presented to the jury, "asks both the trial and appellate courts to determine whether the inability of the defendant to present the evidence in question prejudiced the outcome of the trial. In viewing such an issue, we justifiably accord considerable deference to the trial judge `because of "his observation of the witnesses, [and] his superior opportunity to get `the feel of the case.'" [Citation.]' [Citation.]" (People v. Hayes, supra, 172 Cal. App.3d at pp. 524-525.)
"It is not uncommon, after trial, for one not charged with a crime to attempt to absolve his fellow confederate who has been convicted. [Citation.] The trial court was not bound to accept the statement of [the witness] as true. [Citation.] It was entitled to regard it with distrust and disfavor. [Citations.]" (People v. Gompertz (1951) 103 Cal. App. 2d 153, 163 [229 P.2d 105].)
"Each case must be determined by its circumstances, and the new trial granted or refused according to the view taken of the whole evidence, in *489 connection with the alleged newly discovered evidence.... Granting or refusing a new trial must necessarily rest largely in the discretion of the court in which the trial has been had, and we cannot say, from the record before us, that the court failed to exercise a fair and reasonable judgment in denying the motion." (People v. Sullivan (1906) 3 Cal. App. 502, 513-514 [86 P. 834].)
4. "MAINTAINING A PLACE"
(a) Sufficiency of the Instruction
(3a) Appellant contends that the court erred in its instructions on count 4, opening or maintaining a place for unlawfully selling, giving away, or using any controlled substance (Health & Saf. Code, § 11366). He charges that the court failed to orally define "opening" or "maintaining," and then declined the jury's written request for "[e]lements of proof for Count No. 4."
The trial court instructed the jury: "The defendant is accused in count 4 of the information of having committed the crime of maintaining a place in violation of Health and Safety Code section 11366.
"Every person who opens or maintains a place for the purpose of unlawfully selling, giving away, and using a controlled substance, to wit: cocaine base, is guilty of maintaining a place in violation of Health and Safety Code section 11366."
After deliberations started, the jury wrote a note asking for the elements of count 4, remarking, "They are not in the instructions we received." Without consulting counsel as required by Penal Code section 1138, the court returned the note with the written answer: "All of the elements are included in the narrative portion of the instructions."[6]
(4) "It is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. [Citation.] A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation]. A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, *490 and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution's case. [Citation.]" (People v. Reynolds (1988) 205 Cal. App. 3d 776, 779; Pen. Code, § 1138 [252 Cal. Rptr. 637].)
In the instant case, the court instructed the jury by reading the statute. However, that language does not make clear that in applying the law to the facts, the jury must determine the existence of "[t]he proscribed `purpose' [which] is one that contemplates a continuity of such unlawful usage; a single or isolated instance of the forbidden conduct does not suffice.... [T]he requirement of a purpose for such sequential use is not limited to maintenance; it embraces both opening and maintenance. To `open' the place for a single sale or use is no more covered by the statute than to maintain it for such singular purpose; the Legislature set up no such artificial distinction. It obviously condemned either opening or maintaining for the purpose of repetitious or successive unlawful conduct." (People v. Horn (1960) 187 Cal. App. 2d 68, 72 [9 Cal. Rptr. 578].)
(5a) Respondent is correct that when a court has generally instructed the jury on a point, defendant must make a request for a more specific instruction or be deemed to have waived the point on appeal. (People v. Anderson (1966) 64 Cal. 2d 633, 639 [51 Cal. Rptr. 238, 414 P.2d 366].) (3b) However, in this case, the language of the statute did not fully apprise the jury of the technical definition of an element of the crime.
Cases construing the terms "maintaining" or "opening" in reference to narcotics cases rely on earlier opinions which construed those terms in statutes proscribing maintaining alcohol-related nuisances during Prohibition. These were places whose proprietors meant them to be used for consumption or sale of alcohol. Similarly, the courts have held that Health and Safety Code section 11366 and its predecessor, section 11557, are aimed at places intended for a continuing course of use or distribution.
This concept must be made clear to the fact finder. Therefore, we agree with appellant that defining "maintaining" and "opening" is necessary because the statute employs a technical, legal meaning of these terms which is not likely to be commonly understood. (See People v. Anderson, supra, 64 Cal.2d at p. 639.)
(5b) Since defendant's due process rights include the right to have the jury determine every element of the offense (People v. Reynolds, supra, 205 Cal. App.3d at p. 779), and since "[i]t is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function" (ibid.), *491 appellant's failure to request the instruction does not waive the issue. A denial of the right to have the jury determine every material issue "constitutes a miscarriage of justice regardless of the strength of the prosecution's case. [Citation.]" (Ibid.) (3c) The jury was not instructed fully on the meaning of the elements of the offense in this case. Therefore, count 4 must be reversed.
(b) SUFFICIENCY OF THE EVIDENCE
Notwithstanding this conclusion, we must examine appellant's challenge to the sufficiency of the evidence of count 4. Relying on the cases cited above which require proof of continuity of unlawful usage, he contends that "[s]ince there was evidence of only a single occasion on which contraband was possessed in the motel room, the evidence was manifestly insufficient to sustain the conviction on count 4.
"Additionally, ... the prosecution failed to prove it was the motel room the `place' this charge was tied to that was to be the location of sales, gifts, or usage. [¶] For both of these reasons," he concludes, "the conviction on count 4 must be reversed."
Respondent cites People v. Mehra (1925) 73 Cal. App. 162, 170-171 [238 P. 802], for the proposition that maintaining a common nuisance may be shown first by possession and a series of sales; or by possession and a single sale accompanied by circumstances which raise the inference of the purpose for which the possession is had; or, finally, by "possession, in connection with surrounding circumstances, such as the large quantity of liquor on hand, the various kinds of liquor, the containers in which it is kept, the character of the place, the manner in which it is fitted up, the use of passwords in gaining access to the premises, evidence of people visiting the place in unusual numbers or at unusual times, all of which may reasonably raise the inference of a purpose to sell and sufficiently support the charge of maintaining a common nuisance." (Italics respondent's.)
(6) Perhaps by emphasizing one of the listed factors respondent is suggesting that possession of a large quantity of narcotics is sufficient to establish the crime of "maintaining a place." If so, we disagree.
The prosecution must prove that appellant opened or maintained room 219 for the purpose of selling the cocaine base. "Even where the statute provides that the unlawful possession of intoxicating liquor is prima facie evidence that such intoxicating liquor is possessed for the purpose of unlawful sale or disposition [which the court stated earlier in its opinion that the California *492 statute does not], the presumption does not arise that the place or establishment where the liquor is kept, is conducted as a common nuisance, or is maintained as a place for the unlawful sale of intoxicating liquor." (People v. Mehra, supra, 73 Cal. App. at p. 171.)
Health and Safety Code section 11366 does not declare that a presumption arises that the possession of a controlled substance is prima facie evidence that it is possessed for the purpose of unlawful sale, gift, or use. Neither does the presumption arise that the place where the controlled substance is kept was opened or maintained as a place for its unlawful sale, use, or gift.
Therefore, we must look to the factors besides "large quantity" which the Mehra court stated bore on defendant's purpose for opening or maintaining the room. The evidence in the instant case showed: (1) the character of the place was that of a home for a woman, possibly a man, and children; (2) the room was fitted up as a bedroom; (3) there was no evidence of people visiting the place in unusual numbers or at unusual times; or (4) no evidence of people under the influence on or around the premises; (5) there was no evidence of lookouts or of the use of passwords or codes to gain access; and, (6) there was no drug paraphernalia or drug residue in the room.
Although there was expert testimony that "the sheer number" of bindles indicates possession for sale, a large number of bindles, unlike a large quantity of alcohol, is extremely portable. The comings and goings of appellant but not of customers support the inference that any selling to, giving away to, or using by others besides appellant and Levell took place elsewhere.
In Mehra the court stated: "there is no testimony whatever of maintaining room No. 3 ... for any purpose. The testimony simply shows the finding of a jug of whisky or jackass brandy in the bedroom unlocked by the defendant. If it were there for his own use, even though unlawfully obtained, it is evident that nothing within the language of a common nuisance was being maintained. Private possession in a private place may constitute the crime of unlawful possession, but that act, in and of itself, does not constitute any other criminal offense, under ... the Volstead Law...." (People v. Mehra, supra, 73 Cal. App. at p. 171.)
The Mehra court rejected upholding the conviction upon a lesser degree of evidence. "Any other holding would lead to the conclusion that wherever a bottle of liquor may be unlawfully in anyone's home, a conviction for maintaining a common nuisance may be had. [Citations.]" (People v. Mehra, supra, 73 Cal. App. at p. 171.)
*493 In People v. Horn, supra, 187 Cal. App. 2d 68, a case with much stronger indicia that the premises were maintained for the purpose of unlawful sale or use, the court found the required continuity of use was not established. In that case, five of the occupants of appellant's apartment were found with old and new needle marks on their arms while under the influence of narcotics; a couple of the occupants, including one woman who lived there permanently, were established to be narcotic addicts but there was no showing that they were currently addicts; the stoveless kitchen was shabby and the bedroom was dirty and neglected; the only narcotic found on the premises was a slight residue in one spoon; there were several articles for injecting narcotics on the premises but no showing they had been used more than once; the officers attempted to gain entry through a ruse, but failed, and had to force their way in; and although an occupant of the room was asking for "the next fix" as the officers approached the door, the court declared the statement indicated no more than that on one occasion occupants used narcotics within the apartment. (Id. at p. 74.)
Respondent cites People v. Roeschlaub (1971) 21 Cal. App. 3d 874, 878 [98 Cal. Rptr. 888], for a case where "additional `circumstances surrounding' the proscribed conduct may be sufficient to establish the offense. [Citation.]" However, that case shows a "single instance" of sales as well as "additional `circumstances surrounding.'" (Ibid.) "Negotiations that took place between Deputy Alexander and defendant at defendant's home in the presence of the codefendants on August 4 constitute the single instance. In addition, the surrounding circumstances the necessity for Alexander to go to defendant's home to close the deal (the amount of LSD offered for sale at $18,000 is hardly an amount that would be sold on the street or in a public place), defendant's conversation with Alexander in the former's home and in the presence of the codefendants who obviously conducted the preliminary negotiations for defendant, defendant's searching questions of Alexander, the fact that defendant's `connection' called by him immediately came to defendant's home to see Alexander, defendant's disclosure to Alexander that the difference between the $14,400 mentioned by his `connection' and the $18,000 Hirsch quoted him `was for overhead and expenses,' arrangements with Alexander in defendant's presence that he was to call defendant at his home later to set up the final sale and the final communication by Alexander with defendant at his home by telephone the next day in which defendant told him the deal was off compel the conclusion that defendant was in fact `maintaining' the premises for the purpose of selling LSD." (Ibid.)
In the instant case, we find the evidence insufficient to support the verdict on count 4, and reverse. (7) The double jeopardy clause precludes a second trial when a reviewing court has reversed on the basis of insufficiency of the evidence. (Veitch v. Superior Court (1979) 89 Cal. App. 3d 722, 725, 728-729 [152 Cal. Rptr. 822].)
*494 5. PROSECUTORIAL MISCONDUCT
(a) References to Unemployment
(8) Next appellant asserts that it was prosecutorial misconduct requiring reversal for the prosecutor to argue appellant's unemployed status when there was no evidence of this fact in the record. Appellant is correct that this was misconduct (People v. Johnson (1981) 121 Cal. App. 3d 94, 102 [175 Cal. Rptr. 8]) which is not absolved as respondent implies because the prosecutor "inadvertent[ly]" "simply forgot to ask the question as to appellant's unemployment" at trial.
Nevertheless, appellant's failure to object and seek a judicial admonition waives any error unless an admonition would not cure the damage. (People v. Price (1991) 1 Cal. 4th 324, 440 [3 Cal. Rptr. 2d 106, 821 P.2d 610].) In the instant case, appellant's reaction in the trial court was limited to contradicting the prosecutor's claim in his final argument.
Now he asserts that no admonition could have cured the harm. We disagree. Whether or not appellant was employed was a minor point when viewed against the backdrop of the substantial evidence of possession. We are "satisfied beyond a reasonable doubt that the misconduct did not affect the verdict." (People v. Harris (1989) 47 Cal. 3d 1047, 1083 [255 Cal. Rptr. 352, 767 P.2d 619].)
(b) Urging the Jury to Disregard the Defense
(9) Next, appellant complains of the prosecutor's statement in closing argument that "[t]he court has instructed ... that you can't consider that [someone else was in that room]." Appellant claims that "[t]he prosecutor contended that in a prosecution for possession of drugs found by police in a drawer in a motel room, where the circumstantial evidence suggested only a woman and children lived there, the issue of whether a certain woman occupied the motel room was immaterial, or legally unavailable to be considered, in the prosecution of a man who was taking a shower there when the police conducted their surprise raid. This is an absurd notion, one that no prosecutor could advance in good faith."
Respondent points out first that appellant failed to object, and second that "the prosecutor's argument, taken as a whole, was not misconduct."
The prosecutor stated: "There's another thing about Mr. Shoals that we know. He's a liar. Man lies about his name, goes by the name of Chooks, *495 Shoals and what else, Lampley. Take a look at this driver's license.... It looks very similar to Mr. Shoals. Why does a person need all this? Why does a person need to use fake names? Why does a person have to get all these phone calls in the middle of the night? Why does a person have to have a pager? Why does a person have no visible means of support? Why, he's dealing drugs.
"You're going to say, well, wait a minute, someone else was in that room. Miss Levell. Yeah, there was. The court has instructed on, to you, that you can't consider that. What she did is something else. We're here to discuss what the defendant knew, what he did, not what Miss Levell did. The law says two or more people may possess the same substance. It's called joint possession. In this case, there may have been joint possession between Miss Levell and Mr. Shoals, but the prosecution maintains that Mr. Shoals is the one who was at least the possessor or one of the possessors of this ... crack cocaine."
"[A] conviction [for unlawful possession of narcotics] will be sustained if the accused had the immediate right to exercise dominion and control over the known narcotic even though his possession is constructive [citation] or joint with that of another person. [Citations.]" (People v. Sotelo (1971) 18 Cal. App. 3d 9, 20 [95 Cal. Rptr. 486].)
Since Levell was not on trial, the court correctly instructed the jury not to consider why a person other than defendant who may have been involved in the crime was not being prosecuted in appellant's trial. (CALJIC No. 2.11.5.)
It is clear from the context that the prosecutor's remarks were directed to these proper subjects for comment. There was no misstatement of law and no misconduct.
6. THE MARSDEN DENIAL
Next, appellant claims the court erred in denying his motion to dismiss counsel on the second day of trial, the first day of jury selection. Appellant complained that "defense counsel had put too little effort into preparing the case, having not visited him even once to discuss the case, and had advised the co-defendant Jackie Levell not to testify on appellant's behalf." Counsel denied the latter allegation, and asserted that although she had not visited appellant in the jail, they had communicated on numerous occasions "face to face for prolonged periods of time, both in the court house and telephonically."
The court denied the motion and then mentioned that defense counsel "indicated to me that she talked to your witnesses and they said they'd be *496 glad to come in. And then just recently they have indicated that they're only coming in with a subpoena. And that's one of the reasons that we discussed on Friday that perhaps we shouldn't pick a jury on Friday, but perhaps on Monday so she could work on getting the subpoenas out to them." The court offered to order any witnesses who were in custody to be brought to court.
Defense counsel then moved to be relieved as appellant's attorney of record because "his confidence in me has eroded to such a point that he doesn't feel he's able to fully cooperate with me. Because of that, I can't fully prepare his defense and go forward with it. And in that case, he would be denied effective assistance of counsel...."
The court responded: "that motion for you to withdraw is likewise denied." Defense counsel then stated that her process server had "run into difficulty" at the addresses she had for the witnesses, but would continue to attempt service. She then requested the court "to direct Mr. Shoals to provide me with any other information as to the whereabouts of these individuals if he has such information." The court declined, saying: "That's between the two of you.... I'm not going to tell a defendant to do or not do something. Obviously, it's going to help you get witnesses on his behalf if your process server knows how he can serve them."
Appellant then complained of counsel's efforts two months earlier to "persuade me to take [a plea bargain].... [S]he seems to just be persistent about me taking some time." He reasserted that he was not comfortable with her as his attorney, and that she was not diligent in preparing the case. He requested new counsel. The court repeated that the Marsden motion was denied.
(10) Our Supreme Court has "consistently held that the `decision to allow a substitution of attorney is within the discretion of the trial judge "unless there is sufficient showing that the defendant's right to the assistance of counsel would be substantially impaired if his present request was denied...."' [Citation.] In Marsden, supra, 2 Cal.3d at pages 124-125, we held that in ruling on a motion for substitution of counsel, the court must allow defendant an opportunity to enumerate specific examples of inadequate representation. We determined in Marsden that the trial court there had abused its discretion by refusing to listen to the reasons for which defendant had requested substitution of counsel." (People v. Moore (1988) 47 Cal. 3d 63, 76 [252 Cal. Rptr. 494, 762 P.2d 1218].)
(11) The trial court here did not abuse its discretion. First, defense counsel has a duty "to investigate and pursue possible dispositions by way of *497 plea." (People v. Brown (1986) 177 Cal. App. 3d 537, 549 [223 Cal. Rptr. 66].) Therefore, presenting, and even urging, acceptance of the prosecution's settlement offer is an insufficient basis for substitution of counsel. Next, a defendant's complaint that counsel did not consult often enough (People v. Hisquierdo (1975) 45 Cal. App. 3d 397, 403 [119 Cal. Rptr. 378]), a failure to cooperate (People v. Lindsey (1978) 84 Cal. App. 3d 851, 857-860 [149 Cal. Rptr. 47, 2 A.L.R. 4th 485]), and tactical differences (People v. Douglas (1990) 50 Cal. 3d 468, 520-521 [268 Cal. Rptr. 126, 788 P.2d 640]), do not require substitution of counsel unless the disagreement "signal[s] a breakdown in the attorney-client relationship of such magnitude as to jeopardize defendant's right to effective assistance of counsel" (People v. Robles (1970) 2 Cal. 3d 205, 215 [85 Cal. Rptr. 166, 466 P.2d 710]). Appellant's and counsel's mutual complaints did not establish such a breakdown.
Additionally, the motion made during trial was untimely. (People v. Molina (1977) 74 Cal. App. 3d 544, 547-548 [141 Cal. Rptr. 533].) The court had to weigh appellant's request against the state's interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of assembling the witnesses, lawyers, and jurors. (People v. Ortiz (1990) 51 Cal. 3d 975, 983-984 [275 Cal. Rptr. 191, 800 P.2d 547].) There was no error.
7. INSTRUCTIONAL ERROR: ADMISSIONS
Appellant contends that because the motel manager testified that appellant telephoned him on the afternoon of the arrest and "was saying something about that he was renting the room for the lady or something like that," the court should have instructed the jury in the language of CALJIC No. 2.71 that it should view with caution evidence of admissions of defendant.[7]
Respondent counters that appellant's statement was an exculpatory statement, and therefore CALJIC No. 2.71 was inappropriate.
"CALJIC No. 2.71 tells the jury an admission is a statement that tends to prove guilt. It then instructs the jury to determine whether defendant made *498 an admission, i.e., whether the defendant made the statement and whether the statement tends to prove guilt when considered with the rest of the evidence. In light of the definition of `admission,' if the jury determines a statement does not tend to prove guilt when considered with the other evidence, it is not an admission. The cautionary language instructs the jury to view evidence of an admission with caution. By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not." (People v. Vega (1990) 220 Cal. App. 3d 310, 317 [269 Cal. Rptr. 413].)
The court continued, "We recognize it is not uncommon that a single statement may tend to prove guilt or innocence, depending upon the state of the remaining evidence and the issue for which it is being considered. Many times extrajudicial statements of defendants ... have the purpose of asserting innocence. Although a statement when made may not be incriminating, when considered with the rest of the evidence at trial it may nevertheless be viewed as an admission. For example, a defendant's statement denying participating in a crime may create an inference of incredibility or consciousness of guilt when considered along with other evidence connecting the defendant with the crime. That same statement may be purely exculpatory when considered in the absence of that other evidence. [Citation.] Similarly, a statement by a defendant purportedly giving an innocent explanation of the circumstances may be so implausible that it is incredible, thereby tending to prove guilt. Yet the implausible explanation may still be relied upon as a defense." (People v. Vega, supra, 220 Cal. App.3d at pp. 317-318.)
In the instant case, the prosecutor requested the jury to infer guilt. "Why did Mr. Shoals make that call? Well, Mr. Shoals knew he was in deep trouble, that's why he made that call. He made that call because he knew drugs were found in that room. He was in that room, he was going to get caught. And the only way was he could make that phone call and say, hey, it wasn't me there. I wasn't renting that room. [¶] ... Mr. Shoals is kind of a smart guy in some ways.... [H]e's having another woman stay in that room as a front. Mr. Shoals is using that woman as a front, as a narcotic's [sic] dealer, finally staying there occasionally by paying rent."
(12) A court has a sua sponte duty to give CALJIC No. 2.71 where a defendant's admission is used to prove a part of the prosecution's case. (People v. Bunyard (1988) 45 Cal. 3d 1189, 1224 [249 Cal. Rptr. 71, 756 P.2d 795].) "The error, however, was not prejudicial. As we explained in [People v. Beagle (1972) 6 Cal. 3d 441 [99 Cal. Rptr. 313, 492 P.2d 1]], `The omission ... does not constitute reversible error if upon a reweighing of the evidence *499 it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.' (6 Cal.3d at p. 455.) ... [T]here was no issue of conflicting evidence in this case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately. [Citation.]" (Ibid.)
Therefore, we find that appellant was not prejudiced by the failure to give CALJIC No. 2.71 in this case. The content of the statement was consistent with appellant's defense. Appellant did not challenge the fact of the statement or its accuracy. The jury was instructed with CALJIC No. 2.20, credibility of witness, CALJIC No. 2.21.1, discrepancies in testimony, CALJIC No. 2.21.2, witness wilfully false, CALJIC No. 2.22, weighing conflicting testimony, and CALJIC No. 2.27, sufficiency of testimony of one witness. These instructions adequately informed the jury of its duty to determine the believability of the witness and of each part of his testimony and the weight to which the testimony was entitled. We believe that a more favorable result was not reasonably probable absent the error. (People v. Bunyard, supra, 45 Cal.3d at p. 1225.)
8. PROOF OF THE PRIOR CONVICTION
Appellant next contends that the prosecution failed to prove the prior conviction which he contested. He claims that Penal Code section 667.5, subdivision (b), requires the prosecution to prove that he did not remain free for five years from both prison custody and the commission of an offense which resulted in a felony conviction.
Of the 19 allegations of prior felony convictions unhelpfully charged in the information without reference to dates or court numbers, 2 prior prison convictions were alleged pursuant to Penal Code section 667.5, subdivision (b). Appellant admitted one, a 1981 second degree burglary. He did not admit the other, a 1984 second degree burglary.
In a bifurcated court trial on the second prison prior which took place three months after the trial, the prosecution presented evidence consisting of a "prison packet" and an exhibit which contained the booking sheet for the instant case showing the arrest on September 27, 1990, and four others showing arrests in 1981, 1983, and twice in 1987. There was no evidence of the dispositions of those arrests.
Subdivision (d) of Penal Code section 667.5 provides: "For the purposes of this section, the defendant shall be deemed to remain in prison custody for *500 an offense until the official discharge from custody or until release on parole whichever first occurs including any time during which the defendant ... is reimprisoned on revocation of parole...."
The prison packet contained abstracts of judgment on the cases for which appellant was incarcerated and the Department of Corrections record of the dates and places of appellant's imprisonment. That record shows that appellant was admitted on September 17, 1981, to serve sentences on four cases. He was returned to prison from parole for a new offense on February 18, 1984. He was paroled on October 12, 1984, and was discharged from parole on August 20, 1985. The exhibit shows no subsequent return to prison.
Respondent claims that the court had other evidence available to it, namely appellant's "rap sheet" and two prior felony drug convictions.
Appellant had stipulated that the court could consider his rap sheet on the first day of trial during a motion in limine to determine which prior felony convictions could be used to impeach. The rap sheet was not admitted into evidence. Appellant had admitted two prior felony drug convictions (Health & Saf. Code, §§ 11351, 11352)[8] charged pursuant to Health and Safety Code section 11370.2, that same day.
In his reply brief, appellant objects that he did not stipulate that the rap sheet could be utilized as a substitute for proof in the bifurcated trial on the priors. This is an affray we need not enter. (13) Even with the rap sheet, proof of felony convictions and prison custody during the five-year washout period after appellant's discharge from parole is not established.
The booking sheets merely show arrests, not dispositions. The rap sheet attached to the probation report shows no prison commitments after 1984, which penalty was for the prior conviction which was the subject of the court trial. The rap sheet also shows one entry each for Health and Safety Code sections 11351 and 11352, that appellant pled guilty to them and two other counts on December 31, 1987, and that he was placed in the California Rehabilition Center on an involuntary civil commitment. (Welf. & Inst. Code, § 3051; People v. Peoro (1976) 56 Cal. App. 3d 35, 39 [128 Cal. Rptr. 130].)
*501 A period of commitment at CRC is not "confinement imposed `as punishment for commission of an offense[]'" (People v. Lara (1979) 95 Cal. App. 3d 247, 250 [158 Cal. Rptr. 847], fn. omitted), and does not subject appellant to having his present sentence enhanced under the provisions of Penal Code section 667.5 (95 Cal. App.3d at p. 249).
Since the prosecution failed to prove that appellant served a term of prison custody between his discharge from parole in 1985 and the instant offense in 1990, the one-year prior prison enhancement cannot stand.
9. PETITION FOR A WRIT OF HABEAS CORPUS
(14a) In his petition for a writ of habeas corpus, appellant asserts that counsel rendered ineffective assistance in two areas: she failed to proffer into evidence codefendant's guilty plea, and she failed to move to suppress evidence seized in the search of the motel room. (Pen. Code, § 1538.5.) Appellate counsel requested but did not receive a response from trial counsel on these points.
(15) To establish incompetence, petitioner must show that counsel's performance was deficient. Counsel is deficient if he or she fails to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. Petitioner must also show that it is reasonably probable that a determination more favorable to defendant would have resulted in the absence of counsel's failings. (People v. Ledesma (1987) 43 Cal. 3d 171, 215-218 [233 Cal. Rptr. 404, 729 P.2d 839].)
Generally, a reviewing court must affirm the judgment unless petitioner demonstrates that the record affirmatively discloses that counsel's acts or omissions cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Bunyard, supra, 45 Cal.3d at p. 1215.)
This court is deprived of trial counsel's personal explanation of the reasons for her actions. However, appellate counsel attached a declaration to the petition in which he represents that in a telephoned response to his inquiry, trial counsel said "that she had not challenged the legality of the search because she believed there was abundant legal cause for it, and she had not sought to introduce evidence of Levell's guilty plea because she thought it would lead the jury to dislike Mr. Shoals for his having sought to pin the blame on his girlfriend."
(16) In making a claim for relief on habeas corpus, the petition must specify the facts on which appellant bases his claim that he is unlawfully *502 restrained. (Pen. Code, § 1474.) "If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue." (In re Lawler (1979) 23 Cal. 3d 190, 194 [151 Cal. Rptr. 833, 588 P.2d 1257].)
(14b) As to the failure to proffer Levell's guilty plea, petitioner has not shown that this was a deficient performance which was not an informed tactical choice and that it deprived him of a fair trial. (See Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L. Ed. 2d 674, 693, 104 S. Ct. 2052].) Petitioner presents us with no facts to show that the outcome of the trial would have been more favorable if the jury had known of Levell's guilty plea. As previously stated, "a conviction [for unlawful possession of narcotics] will be sustained ... even though his possession is constructive [citation] or joint with that of another person. [Citations.]" (People v. Sotelo, supra, 18 Cal. App.3d at p. 20.)
Additionally, the record is silent on McLellan's knowledge and activity before the search, and petitioner presents no facts to indicate that Parole Officer McLellan did not have probable cause to search the apartment. Appellant "is [not] entitled to relief merely because counsel's inaction deprived him of the opportunity to challenge the legality of the [search]. `Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluded evidence in order to demonstrate actual prejudice.' [Citation.] A contrary rule would be inconsistent with our pronouncements in numerous cases requiring a defendant claiming ineffective assistance of counsel to show prejudice resulting from counsel's acts or omissions. [Citations.]" (People v. Wharton (1991) 53 Cal. 3d 522, 576 [280 Cal. Rptr. 631, 809 P.2d 290], fn. omitted.)
We conclude that appellant fails to present a prima facie case requiring this court to issue an order to show cause.
10. DISPOSITION
The petition for a writ of habeas corpus is denied. The judgment as to count 4, a violation of Health and Safety Code section 11366,[9] is reversed. *503 The finding that appellant suffered a prior prison term pursuant to Penal Code section 667.5, subdivision (b), for the 1984 burglary, is stricken for insufficiency of the evidence. In all other respects, the judgment is affirmed. The clerk of the superior court is ordered to modify the abstract of judgment in accordance with this opinion and to transmit a corrected copy to the Department of Corrections.
Capaccioli, Acting P.J., and Elia, J., concurred.
A petition for a rehearing was denied August 26, 1992, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied November 10, 1992.
NOTES
[1] People v. Marsden (1970) 2 Cal. 3d 118 [84 Cal. Rptr. 156, 465 P.2d 44].
[2] Count 2, vehicle taking (Veh. Code, § 10851, subd. (a)), and count 3, possession of stolen property (Pen. Code, § 496) were dismissed after the jury returned a partial verdict on counts 1 and 4. Count 5, unauthorized possession of a hypodermic needle (Bus. & Prof. Code, § 4149), and count 6, possession of paraphernalia (Health & Saf. Code, § 11364), were dismissed on the second day of trial.
[3] On the first day of trial, Levell pled guilty to count 1, possession of cocaine base for sale. She was sentenced to five years in state prison.
[4] Appellant also asserts that his right to due process of law, that is, "his right adequately to make a proffer of the evidence he sought to bring before the court[,]" requires remand for redecision after Levell's live testimony is heard. Penal Code section 1181, subdivision 8, requires a defendant making a motion for a new trial on the ground of newly discovered evidence to produce at the hearing the affidavits of the witnesses by whom such evidence is expected to be given. This provision has been held to prohibit the trial court from conducting an evidentiary hearing at which witnesses would be permitted to testify. (People v. Pic'l (1981) 114 Cal. App. 3d 824, 878-879 [171 Cal. Rptr. 106], disapproved on other grounds in People v. Kimble (1988) 44 Cal. 3d 480, 486, 498 [244 Cal. Rptr. 148, 749 P.2d 803].) However, the taking of testimony at motions for a new trial in criminal cases has occurred since Pic'l. (See People v. Martinez (1984) 36 Cal. 3d 816, 823, fn. 4 [205 Cal. Rptr. 852, 685 P.2d 1203].) Both procedures exist to inform the trial court of the content of the newly discovered evidence for purposes of deciding the motion for a new trial. Both satisfy due process requirements.
[5] Respondent cites several federal cases agreeing with the holding: "When a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not `newly discovered.' [Citations.]" (United States v. Diggs (9th Cir.1981) 649 F.2d 731, 740.) However, Diggs construed Federal Rule of Criminal Procedure 33, which sets forth a five-part test which differs somewhat from Penal Code section 1181, subdivision 8, requirements in that "newly discovered" is defined as "discovered after the trial...." (Id. at p. 739.) "Newly-available, exculpatory testimony of a co-defendant is not considered newly discovered evidence sufficient to grant a Rule 33 motion unless it satisfies this same five-part test." (U.S. v. DiBernardo (11th Cir.1989) 880 F.2d 1216, 1224.)
[6] The jury may take with them to the jury room the written instructions. (Pen. Code, § 1137.)
[7] CALJIC No. 2.71 provides: "An admission is a statement made by [the] defendant other than at [his] trial which does not by itself acknowledge [his] guilt of the crime(s) for which such defendant is on trial, but which statement tends to prove [his] guilt when considered with the rest of the evidence.
"You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part. If you should find that the defendant did not make the statement, you must reject it. If you find that it is true in whole or in part, you may consider the part which you find to be true.
"[Evidence of an oral admission of [the] defendant should be viewed with caution.]"
[8] The information charged appellant with a prior conviction of transportation of a controlled substance. (Health & Saf. Code, § 11352.) When the court took appellant's admission of that prior, the court informed appellant: "[O]n the next one you're faced with a violation of Health and Safety Code section 11350, also within the meaning of 11370.2, again an enhancement, and the underlying charge in this case was transportation of a controlled substance." Appellant does not complain of the variance between the section number stated by the court and the correct section number of the charge which he admitted.
[9] The Health and Safety Code section number which appears on the abstract of judgment, 11364, is incorrect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277249/ | 6 S.W.3d 419 (1999)
HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Respondent,
v.
John DAVIS, d/b/a Davis Construction, Defendant, and Thomas T. McGuinness and Marianne McGuinness, Defendants-Appellants.
No. 22705.
Missouri Court of Appeals, Southern District, Division One.
October 28, 1999.
Motion for Rehearing and Transfer Denied November 12, 1999.
Application to Transfer Denied December 21, 1999.
*420 Richard L. Schnake, Neale & Newman, L.L.P., Dale L. Davis and Robert D. Lewis, Crouch, Davis, Lewis & Rykowski, Springfield, for appellants.
Arlen L. Tanner, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Kansas City, for respondent.
*421 KENNETH W. SHRUM, Judge.
Hawkeye-Security Insurance Company ("Hawkeye") brought this declaratory judgment action to determine whether a commercial general liability insurance policy it issued to John Davis ("Davis"), a general contractor, covered a claim for damages made by Thomas and Marianne McGuinness ("Appellants") against Davis. Appellants' claim arose because Davis failed to build their house in a workmanlike manner and in accordance with their contract. Hawkeye and Appellants each filed motions for summary judgment. The trial court found that Hawkeye's policy did not cover Appellants' damages and entered summary judgment for Hawkeye. This appeal followed. We affirm.
Hawkeye insured Davis under a standard form liability policy having effective dates of July 30, 1994, to July 30, 1995. The declarations page describes the contract as a "Commercial General Liability Policy." Among other provisions, the declarations page provides:
"IN RETURN FOR THE PAYMENT OF THE RENEWAL PREMIUM AND SUBJECT TO ALL THE TERMS OF THE POLICY, INCLUDING FORMS AND ENDORSEMENTS LISTED BELOW, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS RENEWAL CERTIFICATE FOR THE RENEWAL PERIOD SHOWN ABOVE.
"LIMITS OF INSURANCE
"GENERAL AGGREGATE LIMIT (OTHER THAN PRODUCTS/COMPL OP) $1000,000
"PRODUCTS/COMPLETED OPERATIONS AGGREGATE LIMIT $1000,000
....
"COVERAGES PROVIDE DD PREMIUM
"PRODUCTS/COMPLETED OPERATIONS $1,110 .00
"OTHER THAN PRODUCTS/COMPLETED OPERATIONS $2,320 .00
__________
"TOTAL ESTIMATED RENEWAL PREMIUM $3,430 .00"
In 1994, Davis contracted to build a house for Appellants. Davis hired subcontractors to perform most of the work. The contract specifically provided that Davis would be liable for any acts or omissions of the subcontractors. Davis also warranted that all of the work on the house would be of good quality and free from fault and defects.
When the house neared completion, Appellants discovered defects in the house, both in materials and workmanship, that "arose out of the work or operations" of Davis's subcontractors. On February 10, 1995, Davis "walked off and abandoned" the job site because of a dispute with Appellants about contract payment. At that point, Davis's work under the contract was substantially complete. All that remained to be done was a final walk-through and punch list, plus any work required to correct, repair, or replace inferior materials or remedy defective construction.
On October 4, 1996, Appellants sued Davis for damages, claiming that between September 1994 and February 10, 1995 which was within the policy period Davis's subcontractors performed faulty work and used inferior materials in the house. Appellants' suit was for breach of contract (Count I) and breach of express and implied warranties (Counts II and III).
Hawkeye hired defense lawyers for Davis but did so under a reservation of *422 rights. Later, Davis rejected Hawkeye's tendered defense because of its conditional nature. In January 1998, Appellants obtained a judgment against Davis for $422,210.
In July 1997, Hawkeye brought this action seeking a declaration that its Commercial General Liability ("CGL") policy did not insure Davis against Appellants' claims. The trial court agreed with Hawkeye and found, inter alia:
"[Appellants] ... adroitly argue[ ] that because of the separate limits and separate premiums shown, there must be a separate policy for products-completed hazard coverage.
....
"The products-completed hazard coverage is not a separate policy but a sub-part of the entire Commercial General Liability policy.
....
"There is no language contained in the policy which provides coverage for the business risks of defective construction or breach of contract or breach of warranty.
....
"The CGL policy contemplates coverage for injury to a person or property other than the property ... upon which Davis and his subcontractors worked [for Appellants].
....
"The Court finds that [Appellants] have failed to set forth policy language that establishes insurance coverage under the uncontroverted facts and the policy language."
The court adjudged that "no coverage exists under the insurance policy in question for the allegations of [Appellants] and further that various policy exclusions would further operate to limit or defeat coverage."
In their sole point relied on, Appellants contend the trial court erred in finding that Hawkeye's CGL policy did not cover Davis for their damages and in sustaining Hawkeye's motion for summary judgment. Appellants point to the policy's declarations as clear evidence that Davis bought and paid for two distinct types of coverage, i.e., "PRODUCTS/COMPLETED OPERATIONS" and "OTHER THAN PRODUCTS/COMPLETED OPERATIONS." Continuing, they assert that the policy contains only one coverage form, specifically a "COMMERCIAL GENERAL LIABILITY COVERAGE FORM." Based on this premise, Appellants make a two-pronged argument that Davis is covered for their loss.
In the first prong of their argument, Appellants contend that despite the absence of a "PRODUCTS/COMPLETED OPERATIONS" coverage form in Davis's policy, the policy provides "insight" into the meaning of "PRODUCTS/COMPLETED OPERATIONS" coverage in that the policy defines the term "Products-completed operations hazard." That definition, found in the "COMMERCIAL GENERAL LIABILITY COVERAGE FORM," provides:
"11.a. `Products-completed operations hazard' includes all `bodily injury' and `property damage' occurring away from premises you own or rent and arising out of `your product' or `your work' except:
"(1) Products that are still in your physical possession; or
"(2) Work that has not yet been completed or abandoned.
"b. `Your work' will be deemed completed at the earliest of the following times:
"(1) When all of the work called for in your contract has been completed.
"(2) When all of the work to be done at the site has been completed if your contract calls for work at more than one site.
"(3) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor *423 or subcontractor working on the same project.
"Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed."
Appellants correctly point out that "the definition of `Products-completed operations hazard' is not in itself an insuring agreement" and is not part of the "Insuring Agreement" appearing at the outset of the "Coverages" section of the CGL Coverage Form.[1] According to Appellants, the "Products-completed operations hazard" definition merely establishes the meaning of that phrase as it is used elsewhere in the basic CGL policy. Continuing, Appellants argue that the definition of "Products-completed operations hazard" is not exhaustive and should not be interpreted as describing all damage that might fall under the "PRODUCTS/COMPLETED OPERATIONS" coverage. They argue:
"The definition merely says that the products-completed operations hazard `includes' certain things. In common parlance, to `include' means `to take in or comprise as a part of a larger aggregate or principle.' WEBSTER'S NEW COLLEGIATE DICTIONARY 576 (1981). Thus, a definition that `includes' certain things does not exclude others. Lynch v. Gleaner Combine Harvester Corp., 223 Mo.App. 196, 17 S.W.2d 554, 556 (1929)."
Based on the foregoing, Appellants assert that the definition of "Products-completed operations hazard" encompasses the damage to their house and compels a finding that Hawkeye is contractually obligated to cover Davis for the faulty work and materials he and his subcontractors used in Appellants' house. Appellants' argument continues as follows:
First, they point to uncontradicted evidence that Davis did not own the land but, instead, built the house on land owned by Appellants. Consequently, they argue the damage occurred "away from premises that [Davis] own[ed] or rent[ed]."
Second, they say there is no dispute that Appellants' damages were caused by "your [Davis's] work." They then point to undisputed evidence that (a) Davis warranted that all of the work on the house would be of good quality and would be free from faults and defects; (b) the policy defines "your work" to include work or operations "performed by [Davis] or on [Davis's] behalf" and "[m]aterials, parts or equipment furnished in connection with such work or operations;" and (c) the policy further defines "your work" to include "[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use" of the work.
Third, they aver the undisputed evidence showed that Davis both "completed" and "abandoned" the project. All that remained to be done was "a walk-through and punch list" and "work that needed correction, repair, or replacement."[2]
Based on the foregoing, Appellants say that the definition of "Products-completed operations hazard" in Hawkeye's CGL Coverage Form "suggests" that Hawkeye's *424 "PRODUCTS/COMPLETED OPERATIONS" coverage insures Davis for their damage.
In the second prong of their argument, Appellants contend that charging Davis for "PRODUCTS/COMPLETED OPERATIONS" and then omitting a "coverage part" for that risk is "duplicitous in the truest sense of the word." Consequently, they argue, the policy is ambiguous and the ambiguity must be resolved in favor of coverage. See, e.g., Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993); Behr v. Blue Cross Hosp. Serv., Inc., 715 S.W.2d 251, 256 (Mo.banc 1986); Killian v. Tharp, 919 S.W.2d 19, 21[5] (Mo.App.1996).
We address Appellants' arguments with the following principles in mind. Language in a comprehensive liability policy, as with any other contract, must be given its plain meaning without unduly straining the language. Rice v. Fire Ins. Exch., 946 S.W.2d 40, 42[1] (Mo. App.1997); Luyties Pharmacal Co. v. Frederic Co., Inc., 716 S.W.2d 831, 834[7] (Mo.App.1986). If an insurance policy is unambiguous, it will be enforced according to its terms, but if it is ambiguous, it will be construed against the insurer. American States Ins. Co. v. Broeckelman, 957 S.W.2d 461, 465[3] (Mo.App.1997). If the policy language is ambiguous (if there is duplicity, indistinctness, or uncertainty in its meaning) and is therefore open to different constructions, it will be interpreted in the manner that would ordinarily be understood by the lay person who bought and paid for the policy. Id. at 465[5]. Even so, courts are not authorized to exercise inventive powers to create an ambiguity where none exists. Luyties Pharmacal, 716 S.W.2d at 835.
Appellants' arguments, though innovative, are unavailing for several reasons. First, the basic premise upon which Appellants rely, i.e., that Hawkeye's policy was missing a coverage part for "PRODUCTS/COMPLETED OPERATIONS," is fallacious. The "Insuring Agreement" in the CGL Form used in this policy obligates Hawkeye to "pay those sums that the insured becomes legally obligated to pay as damages because of ... `property damage' to which this insurance applies."[3] (Emphasis added.) Standing alone, this does not explain the scope of the CGL Form coverage. When interpreting an insurance policy, however, we consider the entire policy and not isolated provisions or clauses. Rice, 946 S.W.2d at 42[3]. The "Insuring Agreement" in this CGL Coverage Form directs us to other provisions of the policy when it states, "[t]he amount [Hawkeye] will pay for damages is limited as described in LIMITS OF INSURANCE (SECTION III)." In relevant part, the "SECTION III-LIMITS OF INSURANCE" provides:
"1. The Limits of Insurance shown in the Declarations ... fix the most we will pay regardless of the number of:
"a. Insureds;
"b. Claims made or `suits' brought; or
"c. Persons or organizations making claims or bringing `suits.'"
"2. The General Aggregate Limit is the most we will pay for the sum of:
....
"b. Damages under Coverage A, except damages because of `bodily injury' or `property damage' included in the `products-completed operations hazard;' and
"c. Damages under Coverage B.
"3. The Products-Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of `bodily injury' and `property damage' included in the `products-completed operations hazard.'"
When we read the phrase "`property damage' to which this insurance applies," contained *425 in the CGL Form's insuring agreement, together with the declarations page and the CGL Form provisions quoted above, we find it plain that the CGL Form coverage agreement applies to both "PRODUCTS/COMPLETED OPERATIONS" coverage and "OTHER THAN PRODUCTS/COMPLETED OPERATIONS" coverage. Without "unduly straining" the policy's language, we read the "products-completed operations hazard" as describing a coverage within the CGL Form for the same types of injuries or damages covered by the rest of the CGL policy but for a different period of time or location. Accordingly, the trial court did not err when it concluded that "[t]he products-completed hazard coverage is not a separate policy but a sub-part of the entire Commercial General Liability policy." Because the policy is not missing a coverage part as urged by Appellants, the policy cannot be condemned as ambiguous on the theory that it promised something at one point but took it away at another. See, e.g., Northland Ins. Cos. v. Russo, 929 S.W.2d 930, 933-34 (Mo.App. 1996); Husch v. Nationwide Mut. Fire Ins. Co., 772 S.W.2d 692, 694 (Mo.App. 1989). We reject Appellants' arguments to the contrary.[4]
Having found that Appellants' arguments about a "missing" coverage part are unavailing, we examine the policy to see if the trial court otherwise erred when it found no coverage for Appellants' losses. The policy covers property damage caused by an "occurrence" that takes place in the coverage territory and occurs during the policy period. See note 1. The policy defines the term "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Although not defined by the policy, the term "accident" as used in a CGL policy is defined by its common meaning, which is:
"`An event that takes place without one's foresight or expectation; an undesigned, sudden and unexpected event. Hence, often, an undesigned and unforeseen occurrence of an afflictive or unfortunate character; a mishap resulting in injury to a person or damage to a thing; a casualty; as to die by an accident.'"
American States Ins. Co. v. Mathis, 974 S.W.2d 647, 650[7] (Mo.App.1998) (citations omitted).
Evidence of what Appellants claim as an "occurrence" and "property damage" is found in the transcript of Appellants' case against Davis[5] and in their response to Hawkeye's motion for summary judgment. At the trial of Appellants' case against Davis, Thomas T. McGuinness testified:
"Q. Now, following that initial agreement and during the periodWell, did there come a time in February ... 1995 that Mr. Davis, the defendant, abandoned the job site, walked off the job site?
"A. That's correct.
"Q. And was that on or about February the 10th [1995]?
"A. That's correct.
....
"Q. Mr. McGuinness, are you and your wife ... claiming that property damage occurred to your house that occurred during construction was started, to February 10, 1995?
*426 "A. Yes.
"Q. And that this property damage during this period of time was a result of defective work performed by the subcontractors hired by Mr. Davis?
"A. Yes."
In answering Hawkeye's summary judgment motion, Appellants conceded the following as "uncontroverted facts."
"9. [Appellants] claim that between September ... 1994 and February 10, 1995 the house was defectively constructed and/or inferior materials were used by the subcontractors acting on Davis' behalf.
"10. [Appellants'] claim against ... Davis was for the cost to replace or repair the structural defects of the house and extensive repair or replacement and correction of other defects due to the work and operations performed by the subcontractors."
"11. The defects alleged arose out of the work or operations performed by... Davis' subcontractors and the material they furnished in connection with the work and operations of building the house."
These uncontroverted facts establish that Appellants' losses stem solely from Davis's breach of his contractual obligations, breach of his express warranties, or breach of implied warranties in connection with this construction. However, "breach of a defined contractual duty cannot fall within the term `accident.'" Mathis, 974 S.W.2d at 650. As the Mathis court explained: "Performance of [the] contract according to the terms specified therein was within [the insured contractor's] control and management and its failure to perform cannot be described as an undesigned or unexpected event." Id.
We are persuaded that the Mathis analysis applies here. Davis had sufficient control and management to enable him to fulfill his contractual obligations and build the house for Appellants as warranted. Davis's failure to perform cannot be characterized as "an undesigned or unexpected event." Consequently, Appellants cannot show that there was an "occurrence" within the meaning of the policy. See Mathis, 974 S.W.2d at 650. Without an "occurrence" as defined in the policy, Davis is not covered for Appellants' losses. The trial court did not err in so finding.
Moreover, even if "defective construction and/or inferior material" usage were viewed as causing "property damage" within the meaning of the policya notion we rejectAppellants' evidence was that such property damage occurred during the construction period, i.e., before Davis abandoned the property. Accordingly, the "products-completed operations" coverage would not be implicated. Instead, any coverage would come via the "other than products/completed operations" part of the policy. However, exclusionary provisions of the policy cut off Hawkeye's liability for Appellants' losses under the circumstances here. For instance, the policy provided:
"2.... This insurance does not apply to:
....
"j. `Property damage' to:
....
"(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the `property damage' arises out of those operations.
"(6) That particular part of any property that must be restored, repaired or replaced because `your work' was incorrectly performed on it."
These provisions defeat any coverage that would arguably be available under the "other than products/completed operations" part of the policy. Again, the trial court did not err in so declaring.
Finally, we have not ignored Appellants' claim that Hawkeye's policy was rendered ambiguous by exclusionary language in SECTION I, Coverage A, paragraph *427 2(l) of the CGL Coverage Form. That provision reads:
"2. Exclusions. This insurance does not apply to:
....
"(l) `Property damage' to `your work' arising out of it or any part of it and included in the `products-completed operations hazard.'
"This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor."
After pointing out that virtually all the work done on Appellants' house was performed by subcontractors, Appellants argue:
"[T]he italicized portion of the exception to this exclusion refers to the `damaged work' itself as well as to the `work out of which the damage arises.' Thus, the exception applies if the damage arises out of the work itself and if the `damaged work ... was performed on your behalf by a subcontractor.' That, plainly and simply, is defective subcontractor work. It is wholly inconsistent, then, for the policy also to require an `occurrence' or an `accident' as a condition of coverage for such defective work. That creates yet another ambiguity."
"An exclusion provision in an insurance policy, by definition, excludes risk." Harold S. Schwartz & Assoc., Inc. v. Continental Cas. Co., 705 S.W.2d 494, 498 (Mo.App.1985). Stated otherwise, an exclusion is a policy provision which declares that certain causes of loss, or certain consequences of an insured event are not covered by the policy. Millers Mut. Ins. Ass'n v. Shell Oil Co., 959 S.W.2d 864, 865, n. 1 (Mo.App.1997).
Except for public policy or statutory constraints, an insurer can cut off liability under its policy by using clear language, but it cannot do so with language dulled by ambiguity. Aetna Cas. & Sur. Co. v. Haas, 422 S.W.2d 316, 321[5] (Mo.Sup.1968). However, when an exclusion is not relevant under the facts at hand, an alleged ambiguity therein is also irrelevant. See Empire Fire and Marine Ins. Co. v. Dust, 932 S.W.2d 416, 418 (Mo. App.1996). This follows, at least in part, because an exclusion provision has no function to endow coverage but serves only to limit the obligation of indemnity undertaken by the policy. Id.; Harold S. Schwartz & Assoc. 705 S.W.2d at 498[6].
Here, Appellants urge us to analyze and find ambiguity in the policy because of exclusion 2(l), and, as a consequence, declare there is coverage for their losses. They apparently would have us do this without first considering whether there was an insured event, i.e., an obligation of indemnity undertaken by the policy for this type problem. The foregoing cases teach that such an analysis would be flawed. We have already determined that the evidence before us does not satisfy Appellants' burden of showing an "occurrence" within the meaning of the policy; consequently, Hawkeye need not invoke the paragraph 2(l) exclusion to relieve itself of its insuring agreement.[6] Under the circumstances, it is unnecessary to decide whether the exclusion in paragraph 2(l) is without ambiguity, or whether, as Appellants contend, the exclusion is ambiguous and is, therefore, subject to resolution in favor of coverage. See Dust, 932 S.W.2d at 418. Accordingly, any discussion of this argument would be merely advisory. "Appellate courts do not render advisory opinions or decide nonexistent issues." In re Estate of Looney, 975 S.W.2d 508, 519[29] (Mo.App.1998). See also Air Evac EMS, Inc. v. Goodman, 883 S.W.2d 71, 74[3] (Mo.App.1994); In re Marriage of DuBois, 875 S.W.2d 223, 226[2] (Mo.App.1994). For this reason, we refrain from addressing this issue. Point denied.
The judgment of the trial court is affirmed.
*428 CROW, P.J., CONCURS.
PARRISH, J., CONCURS.
NOTES
[1] The pertinent part of the insuring agreement in the CGL Coverage Form provides:
"1. Insuring Agreement.
"a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ... `property damage' to which this insurance applies.... But:
"(1) The amount we will pay for damages is limited as described in LIMITS OF INSURANCE (SECTION III);
....
"No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTSCOVERAGES A AND B.
"b. This insurance applies to ... `property damage' only if:
"(1) The ... `property damage' is caused by an `occurrence' that takes place in the `coverage territory;' and
"(2) The `bodily injury' or `property damage' occurs during the policy period."
[2] Under the policy, work "that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed."
[3] Refer to note 1 for relevant excerpts of the insuring agreement.
[4] Appellants cite Kidd v. Logan M. Killen, Inc., 640 So. 2d 616 (La.App.1994), and Mike Hooks, Inc. v. JACO Services, Inc., 674 So. 2d 1125 (La.App.1996), for the proposition that Hawkeye's alleged omission of a products/completed operations coverage form created an ambiguity that must be resolved against Hawkeye. However, we read this policy differently than did the Louisiana courts in that we find no omission of a products/ completed operations coverage form. The Louisiana decisions, which did declare that the CGL policies at issue lacked provisions regarding "products/completed operations" and thus were ambiguous, are not binding on this court. To the extent that they cannot be distinguished, we choose not to follow them.
[5] Hawkeye made that transcript a part of its motion for summary judgment by attaching it to the motion and citing it.
[6] Again, refer to note 1 for relevant excerpts of the insuring agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277253/ | 6 S.W.3d 104 (1999)
339 Ark. 467
Sedric Maurice SIMPSON
v.
STATE of Arkansas.
No. CR 98-423.
Supreme Court of Arkansas.
December 16, 1999.
*106 Robert N. Jeffrey, Fordyce, for appellant.
Mark Pryor, Att'y Gen., by: C. Joseph Cordi, Jr., Asst. Att'y Gen., Little Rock, for appellee.
TOM GLAZE, Justice.
Appellant Sedric Maurice Simpson was found guilty of capital murder for the shooting deaths of Wendy Pennington and Lena Sue Garner. Simpson was sentenced to death by lethal injection. He appeals his conviction, raising five points for reversal.
The sufficiency of the evidence is not challenged in this appeal, so a brief summary of the facts will suffice. In the early morning hours of June 20, 1997, the H & H Grocery in Holly Springs was robbed and the two women working there, Pennington and Garner, were shot and killed with a 12-gauge shotgun. About an hour later, Sedric Simpson hurriedly went to see Bernard Gregory and left a 12-gauge and some blood-covered money with him; Gregory later testified that, at this same time, he also saw blood on Simpson's hands. After seeing Gregory, Simpson went to the home of Frederick Wright in Sparkman and told Wright that he had just "offed two bitches." Simpson was later arrested at Wright's house. After being advised of his Miranda rights and taken to jail, Simpson signed a waiver-of-rights form and gave a statement implicating his co-defendant Ezekiel Harrison. The officers taking the statement said that Simpson did not appear to be under the influence of drugs or alcohol at the time. Later, Simpson's mother reported that two guns were missing from the trunk of the car that Simpson had been driving, so the Dallas County officers searched the car and seized evidence from it. Simpson had taken the car, which actually belonged to his sister, from his mother's house without her knowledge or permission.
At the end of a three-day jury trial in May of 1998, Simpson was convicted of two counts of capital murder. The jury found three aggravating factors(1) the murders were committed for the purpose of avoiding or preventing an arrest, (2) the murders were committed for pecuniary gain, and (3) Simpson caused the death of *107 more than a single person in the same criminal episodeand no mitigating factors. Simpson was sentenced to death by lethal injection. On appeal, he raises five points, none of which has merit.
Simpson first argues that the trial court's submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase of his trial was an unconstitutional "double-counting" which violated his Eighth and Fourteenth Amendment rights. He asserts that, because pecuniary gain is both an element of the felony underlying his capital murder conviction and an aggravating circumstance justifying imposition of the death penalty, that element fails to narrow the class of crimes for which the death penalty may be imposed. The Supreme Court, the United States Eighth Circuit Court of Appeals, and this court have all rejected this "double-counting" and narrowing argument in numerous cases. Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959, 107 L. Ed. 2d 363 (1989); Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995), cert denied, 519 U.S. 832, 136 L. Ed. 2d 55 (1996); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913, 111 S. Ct. 1123, 113 L.Ed.2d (1990); Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), cert. denied, 489 U.S. 1100, 109 S. Ct. 1578, 103 L. Ed. 2d 944 (1989); O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), cert. denied, ___ U.S. ___, 119 S. Ct. 1048, 143 L. Ed. 2d 54 (1999). As we stated in Reams, we see no need to revisit or reconsider this issue yet again. Reams, 322 Ark. at 340, 909 S.W.2d at 327.
For his second point on appeal, Simpson asserts that the trial court erred in denying his motion to exclude the death penalty on the basis of an arbitrary exercise of prosecutorial discretion. Simpson argues that there is nothing in the facts of his case to distinguish it from other cases in which the State has not sought the death penalty or has agreed to plea bargain for a sentence of less than death; therefore, he says, his Eighth and Fourteenth Amendment rights have been violated.
We have held that the choice of which charges to file against an accused is a matter entirely within the prosecutor's discretion. State v. Vasquez-Aerreola, 327 Ark. 617, 627, 940 S.W.2d 451, 455 (1997). Moreover, we have specifically concluded that even the decision to seek the death penalty is a matter within the discretion of the prosecutor, and we have held that this discretion does not render Arkansas's death-penalty statutes arbitrary and capricious. Clines, Holmes, Richley, and Orndorff v. State, 280 Ark. 77, 82, 656 S.W.2d 684, 686 (1983). Because this decision rests within the discretion of the prosecutor, an appellant must prove that the exercise of that discretion was arbitrary or capricious. See Lee v. State, 327 Ark. 692, 704, 942 S.W.2d 231, 237 (1997). Here, however, Simpson presented no evidence to this effect to the trial court, nor has he provided this court with anything other than general allegations that the prosecutor's discretion was exercised arbitrarily. Thus, there was no error in denying his motion to exclude the death penalty.
Simpson's third argument for reversal is that the trial court erred in denying his motion to suppress his custodial statement. He asserts that even though he was advised of his Miranda rights, his statement was given in an environment that was hostile, threatening, and coercive. The sheriff had told Simpson at the time of his arrest that he was "going to see [Simpson] fry" for killing the two women, and the uncle of one of the victims was present for part of Simpson's interview. Because of these circumstances, he argues that it was error for the trial court to allow his statement into evidence.
The difficulty with this argument, however, is that the trial court never allowed Simpson's statement to be introduced into *108 evidence. Although Simpson attempted to lay a foundation and introduce the statement during the testimony of the officer who took it, the prosecutor objected on the basis of hearsay. The objection was sustained, and the statement was never admitted into evidence. Because Simpson's statement was never used at trial, he cannot demonstrate prejudice. Hayes v. State, 274 Ark. 440, 447, 625 S.W.2d 498, 502 (1981). In that case, Hayes argued that the court erred in finding that a statement was given voluntarily. However, because the statements were not introduced at trial, the court said, "we fail to perceive nor has appellant demonstrated how he was prejudiced by the non-use of these statements." Id.
Even assuming that Simpson had been able to demonstrate some kind of prejudice, the State has met its burden of showing by a preponderance of the evidence that the statement was voluntarily given. Id. at 445, 625 S.W.2d at 501. This court makes an independent determination based on the totality of circumstances surrounding the statement, and we will not reverse a trial court's finding of voluntariness unless clearly against the preponderance of the evidence. Id. At the hearing on the suppression motion, five Dallas County officers testified that Simpson voluntarily signed the Miranda form and the waiver-of-rights form; several of them also testified that Simpson did not appear to be under the influence of drugs or alcohol at the time. Although Simpson testified that he felt coerced, the trial court found that he knowingly and voluntarily gave the statement. As in Hayes, it was for the trial court to resolve the credibility of the witnesses and any conflict in their testimony, Hayes, 274 Ark. at 446-47, 625 S.W.2d at 501, and that court's finding of voluntariness was not clearly against the preponderance of the evidence.
For his fourth point, Simpson asserts that the trial court erred in denying his motion to suppress evidence seized from the car he was driving the night of the murders. This argument must fail for the simple reason that Simpson had no standing to challenge the vehicle's search. An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature, that is, he must have a legitimate expectation of privacy in the area to be searched. Stanley v. State, 330 Ark. 642, 644, 956 S.W.2d 170, 171 (1997) (citing Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997)). This court has repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. Stanley, 330 Ark. at 644, 956 S.W.2d at 171; see also State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In order to establish a legitimate expectation of privacy in an automobile owned by another person, a defendant must show that he gained possession of the vehicle from the owner or from someone who had authority to grant possession. Stanley, 330 Ark. at 644, 956 S.W.2d at 171; Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993).
As discussed above, the car in this case belonged to Simpson's sister, who had loaned it to her mother at the time of the murders. Not only did Simpson fail to show that he gained possession of the car from the owner, he admitted at trial that his mother did not know that he took the car that evening. Indeed, he did not even so much as ask her permission to take it. Because Simpson had neither a property interest nor a possessory one in the vehicle, he had no legitimate expectation of privacy in it. Accordingly, he failed to establish that he had standing to object to the vehicle's search.
For his final point on appeal, Simpson states that the trial court erred in denying his proffered mitigating circumstances as a jury instruction during the sentencing phase of his trial. During the sentencing phase of his trial, Simpson asked the trial court to submit to the jury verdict forms that included as mitigating circumstances *109 the disposition of the charges of his codefendant, Ezekiel Harrison, who pled guilty to two counts of second-degree murder and robbery and was sentenced to two twenty-year sentences. The trial court refused Simpson's request.
There was no error in the court's refusal for two reasons. First, the proffered verdict forms were misleading and confusing. Simpson stated that Harrison had been sentenced to twenty years for each murder, but failed to indicate whether the sentences were being served consecutively or concurrently, or whether Harrison had also been convicted of and sentenced for robbery. Because the proffered forms could have misled and confused the jury, the trial court did not err by refusing to submit them. See Townsend v. State, 308 Ark. 266, 273, 824 S.W.2d 821, 825 (1992).
Second, the disposition of Harrison's charges was not relevant to Simpson's punishment. Ark.Code Ann. § 5-4-602(4) (Repl.1997) provides in pertinent part:
Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but mitigation evidence must be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant's character, background, history, and mental and physical condition as set forth in § 5-4-605. [Emphasis added.]
Thus, to be admissible, evidence of mitigating circumstances must be relevant to the issue of the defendant's punishment. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).
The disposition of Harrison's charges, which Simpson sought to offer to the jury as a mitigating circumstance, had nothing to do with Simpson's character, record, background, history, condition, or the circumstances of his crime. This information was not relevant to the issue of Simpson's punishment, and the trial court therefore did not err in refusing to submit the proffered forms to the jury.
The record has been examined in accordance with Ark. Sup.Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to Simpson which constituted prejudicial error. Therefore, we affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336798/ | 122 S.E.2d 429 (1961)
STATE of West Virginia
v.
Clenna HIGGINBOTHAM.
No. 12101.
Supreme Court of Appeals of West Virginia.
Submitted September 19, 1961.
Decided November 14, 1961.
*430 D. Boone Dawson, Charleston, for plaintiff in error.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for defendant in error.
HAYMOND, President.
At the April Term, 1960, of the Intermediate Court of Kanawha County, the defendant *431 Clenna Higginbotham was indicted for the crime of attempt to commit statutory rape upon Sharon Kay Whitten, a female child under the age of sixteen years. The indictment charged that the defendant, a male person over the age of sixteen years, in December 1959, in Kanawha County, in and upon one Sharon Kay Whitten, a female child, not his wife, under the age of sixteen years and of previous chaste character, did feloniously make an assault and her, the said Sharon Kay Whitten, then and there did attempt to feloniously and carnally know, against the peace and dignity of the State.
To the indictment the defendant entered his plea of not guilty and upon the trial, the jury, by its verdict rendered May 20, 1960, found the defendant guilty of the offense of attempt to commit rape as charged in the indictment. The defendant moved the intermediate court to set aside the verdict and grant him a new trial because the verdict was contrary to the law and the evidence and was without evidence to support it, and because the State failed to prove that the prosecutrix was of previous chaste character. By order entered June 15, 1960, the intermediate court overruled the foregoing motion and committed the defendant to the Board of Control of this State for pre-sentence examination as provided by Article 6-a, Chapter 27, Code, 1931, as amended by Chapter 43, Acts of the Legislature, 1957, Regular Session, but no judgment sentencing the defendant to confinement in the penitentiary has been entered in the case. The Circuit Court of Kanawha County, by order entered November 17, 1960, denied the petition of the defendant for a writ of error and supersedeas to the judgment of the intermediate court. To that judgment of the circuit court this Court granted this writ of error and supersedeas on March 20, 1961, upon the application of the defendant.
The defendant, a man sixty years of age, owns a house located near Dunbar, in Kanawha County, which he had rented since 1953 to the parents of the prosecutrix, a little girl of nine years of age, who lives there with her parents and her three brothers and her four sisters. The parents became delinquent for several months in the payment of rent and the defendant made frequent visits to the house, usually on Saturday or Sunday, for the purpose of collecting the unpaid rent. The defendant, who lives in Charleston, traveled by bus, and because of the infrequent bus service in that area he usually remained at the house for two or three hours before obtaining a bus to return to Charleston. On such occasions he waited in the basement which, though usable, was not directly connected with the house but was accessible from an outside entrance.
The principal evidence upon which the State relies consists of the testimony of the prosecutrix. She testified, in substance, that during the summer of 1959 her mother told her to go to the basement to bring the other children to their lunch; that after the children left the defendant asked her to remain, locked the door, stood her on a stool, pulled up her dress, pulled down her pants and his pants, and had sexual intercourse with her; that she and the defendant were alone in the basement for about fifteen minutes when one of the children knocked on the basement door; that the defendant told her not to tell her mother what had happened, but that she did tell her mother about two days later; that in December 1959 when she was again alone in the basement with the defendant he had intercourse with her a second time in the same manner; that sometime later she also told a Mrs. St. Clair, who operated a nearby grocery store, of those acts of the defendant.
The prosecutrix also testified that about a year before the defendant had intercourse with her the first time, she had intercourse with a thirteen year old boy in a cabin in which the children played in the neighborhood of her home; and that her younger sister, Debbie, seven years old, had intercourse with a boy sixteen years of age; that she told her mother about their relations with the boys; and that her mother *432 had forbidden the boys to associate with the girls or to come to their home.
On January 30, 1960, the prosecutrix, who at the time had not been in the basement with the defendant but who knew that he was there, went to the grocery store and told Mrs. St. Clair that the defendant was in the basement, as she had previously promised to do. After being informed of the presence of the defendant Mrs. St. Clair called the prosecuting attorney's office by telephone and in answer to her telephone call an assistant prosecuting attorney, an investigator from that office, and a member of the department of public safety came to the store and, after talking to the prosecutrix and Mrs. St. Clair, they went to the home of the prosecutrix, where the member of the department of public safety placed the defendant under arrest.
Following the arrest of the defendant the prosecutrix, by direction of the prosecuting attorney, was given a physical examination by a Charleston physician on February 8, 1960. The physician did not testify as a witness but his written report to the prosecuting attorney of his examination of the prosecutrix was introduced in evidence by stipulation of counsel. The report dated February 8, 1960, contains these statements: "SHARON WHITTENExamination of this nine year old white female child with particular reference to the vaginal area reveals no evidence of tissue damage. The hymenal ring appeared intact. At this time there was no evidence of any tissue irritation. There was no unusual vaginal discharge. Rectal examination was done and revealed normal pelvic structures for a nine year old female child. Impression: Intact hymenal ring with no evidence of vaginal penetration and no evidence of tissue irritation about the vagina at this time."
The only testimony in behalf of the defendant was that given by the defendant himself. Though he admitted his presence on numerous occasions in the basement with the prosecutrix and other children and that he frequently bought candy for some of them, he completely and emphatically denied that he had engaged in any of the sexual acts of which he was accused and as to which the prosecutrix had testified.
Though not presented by the assignments of error or in any of the briefs of counsel, the jurisdictional question whether the order entered by the intermediate court on June 15, 1960, committing the custody of the defendant to the State Board of Control for pre-sentence examination, that court having rendered no judgment sentencing the defendant to confinement in the penitentiary, is an appealable order, was raised in conference by some of the judges of this Court.
The only appeal expressly provided by Article 6-a, Chapter 27, Code, 1931, as amended by Chapter 43, Acts of the Legislature, 1957, Regular Session, is that provided by Section 16 of that statute, which contains this provision: "If under the provisions of this article the court affirms an order of the board of control, the person whose liberty is involved may appeal to the proper appellate court for a reversal or modification of the order." As the record does not disclose any order of the board of control the provision just quoted has no present application.
Section 1, Article 4, Chapter 58, Code, 1931, to the extent here pertinent, provides that an appeal from, or a writ of error or supersedeas to, any judgment, decree or order of any court of record of limited jurisdiction may be awarded by the circuit court in any instance where, if such judgment, decree or order had been rendered in the circuit court, an appeal, a writ of error or supersedeas might be obtained from the supreme court of appeals, under the provisions of Section 1, Article 5, of the same chapter of the code. That section provides, in part, that "A party to a controversy in any circuit court may obtain from the supreme court of appeals, * * *, an appeal from, or a writ of error or supersedeas to, a judgment, decree or order of such circuit court in the following cases: * * * (f) *433 In any case involving freedom or the constitutionality of a law;".
Under the foregoing two sections of the statute the order of the intermediate court committing the custody of the defendant to the board of control, which will necessarily continue until modified or terminated by the court which ordered the commitment, is an order in a case which involves the freedom of the defendant, and for that reason is an appealable order. That being so, the defendant was entitled to seek a writ of error to the circuit court and to this Court, and this case is properly before this Court for decision upon this writ of error.
The grounds in support of the assignments of error of the defendant are (1) that the State failed to prove the essential fact that the prosecutrix was a female of previous chaste character; and (2) that the verdict was contrary to the law and the evidence and was without sufficient evidence to support it.
The law is well settled in this jurisdiction that an essential element of the crime of statutory rape is that the prosecutrix was of previous chaste character at the time of the commission of the offense. In defining the crime of statutory rape, Section 15, Article 2, Chapter 61, Code, 1931, expressly provides that "if any male person over the age of sixteen years carnally know a female person of previous chaste character, not his wife, under that age, he shall be guilty of a felony, * * *." Thus the statute makes the previous chaste character of the female an essential element of that offense.
In State ex rel. Cain v. Skeen, 137 W.Va. 806, 74 S.E.2d 413, a proceeding in habeas corpus, quoting point 2 of the syllabus in State v. Ray, 122 W.Va. 39, 7 S.E.2d 654, this Court held that "An indictment for statutory rape as defined by Code, 61-2-15, which fails to allege that the prosecutrix was of previous chaste character and that the accused is over sixteen years of age, is defective, notwithstanding the same was drawn in conformity with the form set forth in Code, 62-9-7." The opinion in the Cain case contains this language: "The Legislature of this State has very properly exercised its prerogative to create a new crime separate and apart from the common law crime of rape involving sexual relationship between the opposite sexes under certain circumstances, specifically set out in Code, 61-2-15. If the female person is over the age of sixteen years, or, being under that age, is not of previous chaste character, or, if she be the wife of the accused, this offense cannot be chargeable to the male person, though he does have sexual relations with the female. Those certainly are essential elements of the crime."
In State v. Ray, 122 W.Va. 39, 7 S.E.2d 654, this Court said: "That the female is a person of previous chaste character is an element necessary to the offense of statutory rape. The legislature and revisors of the official Code, 1931, so intended; otherwise, these words would not have been incorporated in the statute. If the female is a person not of previous chaste character and consent is given, the act of carnal knowledge does not constitute rape, either at common law or by virtue of the statute. Though it has been held that the chastity of the female is to be presumed and need not be alleged or proved, we believe the contrary rule sound. See Dallas v. State, 76 Fla. 358, 79 So. 690, 3 A.L.R. 1457, and note at 1462."
The previous chaste character of the female under the age of sixteen years, being an essential element of the offense of statutory rape, must be established beyond a reasonable doubt in order to convict the accused of the commission of that offense. See Lowe v. State, 154 Fla. 730, 19 So. 2d 106; and Ward v. State, 149 Fla. 107, 5 So. 2d 59.
In Lowe v. State, 154 Fla. 730, 19 So. 2d 106, considering a criminal statute, relating to the crime of statutory rape, similar to the foregoing statute of this State, the *434 court held that "The essential elements of this statutory crime are, viz.: (1) Carnal intercourse; (2) the person must be unmarried at the time of the intercourse; (3) the person must be of previous chaste character; and (4) the person must be under 18 years of age at the time of the unlawful intercourse." In Ward v. State, 149 Fla. 107, 5 So. 2d 59, the same court held that in a prosecution for having sexual intercourse with an unmarried female under eighteen years of age of previous chaste character, the previous chaste character of the female is a material matter and that the burden is on the state to establish the condition of previous chaste character to the exclusion of every reasonable doubt.
Section 8, Article 11, Chapter 61, Code, 1931, provides, in part, that "Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows: If the offense attempted be punishable with death, the person making such attempt shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than five years." As the crime of statutory rape is punishable with death, an attempt to commit statutory rape, for which the defendant was indicted, is a felony punishable with confinement in the penitentiary for a period of not less than one year nor more than five years. See State v. Tippens and Medley, 91 W.Va. 504, 113 S.E. 751. Under an indictment for statutory rape the defendant may be convicted of an attempt to commit that offense and such attempt is included in, or is a part of the offense of statutory rape. In consequence in a prosecution for the crime of an attempt to commit statutory rape, the previous chaste character of the prosecutrix is an essential element of the offense charged in the indictment and must be alleged and proved beyond a reasonable doubt as must be done in a prosecution for statutory rape. See State v. Collins, 108 W.Va. 98, 150 S.E. 369; State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692.
The requirement is fundamental that to sustain a conviction in a criminal prosecution every essential element of the crime must be established by competent proof beyond a reasonable doubt. See State v. Morris, 142 W.Va. 303, 95 S.E.2d 401. In that case this Court said "When the verdict of a jury is wholly without evidence on a point essential to a finding, or the evidence is plainly insufficient to warrant such finding by the jury, such verdict should be set aside and a new trial should be awarded. State v. Hurst, 93 W.Va. 222, 116 S.E. 248; Vintroux v. Simms, 45 W.Va. 548, 31 S.E. 941." See also State v. Craig, 131 W.Va. 714, 51 S.E.2d 283; State v. Roush, 95 W.Va. 132, 120 S.E. 304.
Though this Court has not defined or interpreted the expression "of previous chaste character," that expression, in statutes relating to rape and seduction, has been dealt with and its meaning declared by the courts in other jurisdictions. In Lowe v. State, 154 Fla. 730, 19 So. 2d 106, the court held that the clause "previous chaste character", as used in a statute making it an offense for a person to have carnal intercourse with an unmarried female of previous chaste character under eighteen years of age, means that the prosecutrix had never sustained illicit relations with any one prior to the alleged offense with the defendant. In State v. Holter, 32 S.D. 43, 142 N.W. 657, 46 L.R.A. (N.S.) 376, in interpreting a statute defining the offense of seduction the court said: "The clause `of previous chaste character' does not mean purity of mind, nor purity of heart, but merely purity of body; i. e., that the prosecutrix has never sustained illicit relations with any one prior to the alleged offense of the defendant." In Butts v. State, 12 Okla. Crim. 391, 157 P. 704, the court said that a female of previous chaste character is one who has not had sexual intercourse unlawfully, *435 out of wedlock, knowingly and voluntarily. In Hatton v. State, 92 Miss. 651, 46 So. 708, the court said that the expression "of previous chaste character," in connection with a charge of seduction, means what a woman really is and not what she is reputed to be; and that it means "actual personal virtue, in distinction from good reputation, and therefore a single act of illicit connection may be shown." The opinion also contains this statement: "The subsequent sexual intercourse between the parties, brought about by the repetition of the same promise, cannot be deemed seduction, where, under the statutory definition of that crime, it is necessary that the female shall be of previous chaste character."
It is difficult, perhaps impossible, to define completely or to express comprehensively and for all purposes the meaning of the phrase "of previous chaste character." It is not necessary to do so in the decision of this case for if the prosecutrix, an unmarried nine year old female, prior to the time of the alleged offense, had engaged in sexual relations with a male person other than the accused she is not a person of previous chaste character and the act of the accused in having or in attempting to have sexual intercourse with her does not constitute the crime of statutory rape or the crime of an attempt to commit statutory rape. The voluntary testimony of the prosecutrix was that several months before the accused had sexual relations with her she had sexual intercourse with a thirteen year old boy. This evidence is not directly denied and can not be ignored or disregarded. The report of the physician who examined the prosecutrix several weeks after her last act of sexual intercourse with the accused relates only to the condition of her sexual organs at the time of the examination. It states that the examination of the physician revealed no evidence of tissue damage, that the hymenal ring appeared to be intact, and that at that time there was no evidence of any tissue irritation and there was no unusual vaginal discharge. Those facts and the "impression" of the physician concerning them do not controvert or disprove the testimony of the prosecutrix relating to her previous act of sexual intercourse for the reason that an act of sexual intercourse sufficient to constitute the crime of rape may occur without penetration of the female genital organ by the male genital organ which causes a rupture of the hymen of the female. In State v. Brady, 104 W.Va. 523, 140 S.E. 546, this Court held in point 8 of the syllabus that "To constitute the crime of rape, there must be some degree of penetration of the female genital organ by the male genital organ, but any penetration, however slight, of the labia or external lips of the vulva of the female is all that is necessary. The hymen need not be ruptured to sustain a conviction for rape." Whether the prosecutrix was, or was not, in fact, a female of previous chaste character at the time of the alleged offense need not be and is not now determined, but however that may be the evidence disclosed by the record in this case does not affirmatively show that she was at the time of the alleged offense a female of previous chaste character.
Inasmuch as the State has failed to satisfy the burden of establishing by competent evidence beyond a reasonable doubt that the prosecutrix at the time of the commission of the alleged offense was a female of previous chaste character, the conviction of the defendant of the crime of an attempt to commit statutory rape can not stand and the verdict of guilty returned by the jury must be set aside.
In view of the failure of the State to prove the previous chaste character of the prosecutrix beyond a reasonable doubt, it is unnecessary to consider the question of the sufficiency of the proof to sustain the contention of the State that the defendant committed, or attempted to commit, the sexual act alleged in the indictment.
The judgment of the Intermediate Court of Kanawha County, rendered June 15, *436 1960, committing the custody of the defendant to the State Board of Control, is reversed, the verdict of the jury is set aside, and this proceeding is remanded to that court for a new trial, which is here awarded the defendant.
Judgment reversed, verdict set aside, new trial awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1643992/ | 994 So.2d 154 (2008)
STATE
v.
ENGLAND.
No. 2008 KA 0817.
Court of Appeal of Louisiana, First Circuit.
October 31, 2008.
WHIPPLE, J.
Decision without published opinion. Convictions and Sentences Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336826/ | 122 S.E.2d 507 (1961)
255 N.C. 703
Edgar DENSON
v.
Edna DENSON.
No. 386.
Supreme Court of North Carolina.
November 22, 1961.
*509 Phillips, Bower & Klass, Lexington, for appellant.
Hayes & Hayes, Winston-Salem, for appellee.
DENNY, Justice.
An examination of the complaint filed in this action reveals that it was not alleged therein that plaintiff was a resident of Davidson County, but instead, "That the plaintiff is now and has been for more than six months a resident of the State of North Carolina * * *."
Therefore, the appropriate issue in light of the pleadings should have read: Has the plaintiff been a resident of the State of North Carolina for more than six months next preceding the commencement of this action? No issue as to whether the plaintiff was or was not a resident of Davidson County was raised by the pleadings.
It clearly appears from the evidence adduced in the hearing below that the plaintiff, Edgar Denson, at the time he instituted this action in Davidson County, North Carolina, was a resident of Forsyth County, North Carolina, and had been a resident thereof for several years immediately prior thereto.
Furthermore, no evidence was introduced in the hearing below tending to show that the plaintiff or any other witness on his behalf, testified at the trial in January 1960 that the plaintiff was a resident of Davidson County.
G.S. § 50-6, in pertinent part, provides: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months." (Emphasis added.)
In Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227, 233, this Court said: "Under this statute (G.S. § 50-6), in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years; and (2) the plaintiff, husband or wife, shall have resided in the State of North Carolina for a period of one year (now six months)."
The jurisdictional requirement as to residence under G.S. § 50-6 is met by allegation and proof of residence within the State of North Carolina for a period of six months next preceding the commencement of the action.
In 27A C.J.S. Divorce § 83 page 284, it is said: "With respect to the place within the state for bringing action, an action for divorce is a transitory, and not a local, action and, therefore, in some jurisdictions *510 it may be instituted in any county of the state, subject to the right of defendant to require the prosecution of the action in a county prescribed by statute," citing Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391.
"As a general rule, statutory provisions with respect to the place for commencing divorce proceedings relate to venue only, * * *." 27A C.J.S. Divorce § 83, page 298.
In the case of Smith v. Smith, supra, the plaintiff, a resident of Hertford County, instituted a divorce action in Martin County. Summons was served on the defendant, a nonresident of North Carolina, by publication. In affirming the lower court's denial of the motion to set aside the judgment of divorce, this Court, speaking through Winborne, J., now C. J., said: "The provision of the statute, G.S. § 50-3, that in all proceedings for divorce the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides, is not jurisdictional, but relates to venue, and may be waived. If an action for divorce be instituted in any other county in the State, the action may be tried therein, unless the defendant before the time of answering expires demands in writing that the trial be had in the proper county. See Davis v. Davis, 179 N.C. 185, 102 S.E. 270." [226 N.C. 506, 39 S.E.2d 393.]
In Davis v. Davis, 179 N.C. 185, 102 S.E. 270, 271, the plaintiff brought an action for divorce in Beaufort County, although he resided elsewhere in North Carolina. The defendant was served with process by publication. This Court held: "The first objection of the defendant to the validity and regularity of the decree of divorce is based on section 1559 of Revisal (now G.S. § 50-3), which provides that, `In all proceedings for divorce the summons shall be returnable to the court of the county in which the applicant resides,' the defendant contending that this is jurisdictional.
"It is evident that the General Assembly did not so intend because it placed the section under the title of venue and not of jurisdiction, and nothing appears to show the purpose to take an action for divorce out of the general principle, which prevails, that any action brought in the wrong county may be removed instead of dismissing it, and that a failure to make the motion for removal is a waiver of the objection to the county in which it is brought."
Likewise, in McLean v. McLean, 233 N. C. 139, 63 S.E.2d 138, 143, we held: "The mere fact of instituting suit for divorce in a county other than that of plaintiff's residence would not be regarded as affecting the jurisdiction of the court over the action on proper service, but rather as affecting only the question of venue."
Defendant Edna Denson, movant here, was personally served with process in the divorce proceeding, and it does not appear from the record before us that she filed an answer to the complaint therein. Neither is it contended that any motion was made for change of venue before the time for answering expired.
The evidence offered in the hearing below in support of the movant's motion establishes unequivocally that the plaintiff had been a resident of North Carolina for more than six months next preceding the institution of his action. Therefore, conceding, as we must in light of the evidence, that the plaintiff had been a resident of North Carolina for the time required by statute prior to the institution of his action for divorce, it is immaterial whether he was a resident of Davidson, Forsyth, or some other county.
We hold that the evidence introduced in the hearing below and the facts found based thereon are insufficient to support a conclusion that the plaintiff perpetrated a fraud on the court with respect to his residence.
The court below committed error in entering the order setting aside the judgment in this action, and the same is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2179246/ | 672 N.W.2d 531 (2003)
258 Mich. App. 538
Lillian HILL, Plaintiff-Appellee,
v.
Donald HOIG and Marge Hoig, Defendants-Appellants.
Docket No. 240553.
Court of Appeals of Michigan.
Submitted September 9, 2003, at Lansing.
Decided September 23, 2003, at 9:10 a.m.
Released for Publication November 26, 2003.
Hohauser Law Firm (by Michael S. Hohauser), Troy, for the plaintiff.
Stertz & Weaver, P.C. (by H. William Stertz, Jr.), Saginaw, for the defendants.
Before: WHITBECK, C.J., and O'CONNELL and COOPER, JJ.
COOPER, J.
Following a jury trial, the trial court awarded plaintiff Lillian Hill $8,000, plus costs, for injuries that she sustained from a poodle dog belonging to defendants Donald and Marge Hoig. Defendant appeals as of right. We affirm. This appeal is being *532 decided without oral argument pursuant to MCR 7.214(E).
Plaintiff was walking on the sidewalk when she witnessed a truck hit defendants' dog. The dog was lying in the middle of the road and plaintiff decided to move him to safety. In the process of moving the dog, plaintiff sustained a bite on her right hand. Defendants asserted that their dog did not have a history of aggressive behavior or running loose. Plaintiff filed a complaint against defendants alleging liability pursuant to the Michigan dog-bite statute, M.C.L. § 287.351, or, in the alternative, common-law negligence.
At trial, defendants requested that the trial court instruct the jury that provocation was a complete defense under both of plaintiff's theories. The trial court denied defendants' request, noting that the case law defendants relied on was decided before Michigan became a comparative negligence state. The trial court concluded that while provocation was clearly an available defense under the dog-bite statute, it would not serve to bar plaintiff's common-law negligence claim. The jury ultimately denied plaintiff's claim under the dog-bite statute because it determined that defendants' dog was provoked. However, the jury granted plaintiff's common-law negligence claim, finding that defendants' negligence was the proximate cause of plaintiff's injuries. The jury did not find any negligence on the part of plaintiff.
On appeal, defendants argue that the trial court erroneously instructed the jury on common-law negligence where the dog-bite statute abrogates such claims. We disagree. Claims of instructional error are reviewed de novo on appeal. Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 8, 651 N.W.2d 356 (2002). However, the trial court's determination that a jury instruction is accurate and applicable to the case is reviewed for an abuse of discretion. Stevens v. Veenstra, 226 Mich.App. 441, 443, 573 N.W.2d 341 (1997). "Jury instructions should include `all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them.'" Cox, supra at 8, 651 N.W.2d 356, quoting Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). To the extent this case presents an issue of statutory construction, our review is de novo. In re RFF, 242 Mich.App. 188, 198, 617 N.W.2d 745 (2000).
Defendants have failed to cite any authority in their appellate brief specifically indicating that the dog-bite statute abrogates recovery under common-law comparative negligence for dog-bite injuries. See Chapdelaine v. Sochocki, 247 Mich.App. 167, 174, 635 N.W.2d 339 (2001). More importantly, when the Supreme Court interpreted the current dog-bite statute in Nicholes v. Lorenz, 396 Mich. 53, 59, 237 N.W.2d 468 (1976), it noted that "[t]o provide redress for dog-bite victims, the Legislature by statute retained the common-law remedy but in addition enacted the [instant dog-bite] statute...." (emphasis added); see also Bradacs v. Jiacobone, 244 Mich.App. 263, 265 n. 1, 625 N.W.2d 108 (2001) (noting that the dog-bite statute did not supersede or extinguish a common-law cause of action against negligent dog owners). Consequently, defendants have failed to establish any error.
Defendants further contend that even if common-law negligence is a viable claim, the trial court erroneously refused to instruct the jury that provocation was a complete defense. Again we disagree.
Defendants' argument at trial revolved around Grummel v. Decker, 294 Mich. 71, 77, 292 N.W. 562 (1940), which held that "[u]nder the common law, contributory negligence upon the part of the plaintiff is a defense" in a dog-bite case. *533 Grummel concluded that any provocation by the plaintiff was therefore a complete defense to a common-law negligence action. Id. Since the Supreme Court decided Grummel, however, Michigan has replaced the doctrine of contributory negligence with the doctrine of comparative negligence. M.C.L. § 600.2959; see also Placek v. Sterling Hts., 405 Mich. 638, 650, 275 N.W.2d 511 (1979). Comparative negligence only serves to reduce the amount of damages a plaintiff may recover to the extent that the plaintiff was negligent, whereas any negligence on the part of the plaintiff would bar recovery under the doctrine of contributory negligence. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 523, 629 N.W.2d 384 (2001); Grummel, supra at 77, 292 N.W. 562. Thus, the trial court properly refused to instruct the jury that a finding of provocation would bar plaintiff's recovery under the common law.
Affirmed.
WHITBECK, C.J., concurred.
O'CONNELL, J. (dissenting).
I respectfully dissent. In Grummel v. Decker, 294 Mich. 71, 77, 292 N.W. 562 (1940), our Supreme Court expressly held that provocation was a complete defense to a common-law dog-bite claim. Our Supreme Court has not overturned Grummel. The majority opinion essentially concludes that our state's adoption of comparative fault extinguished the defense of provocation in common-law dog-bite cases. But this analysis overlooks the fact that contributory negligence and provocation are distinct defenses. VonBehren v. Bradley, 266 Ill.App.3d 446, 449-450, 203 Ill.Dec. 744, 640 N.E.2d 664 (1994). While contributory negligence eliminates a plaintiff's claim because public policy demands that a plaintiff reasonably act to protect his own safety, provocation eliminates a dog owner's duty to prevent the dog from doing damage. Id. at 448-450, 203 Ill.Dec. 744, 640 N.E.2d 664. So the provocation defense resembles the "open and obvious danger" doctrine and other dutybased defenses that remain unaltered by the adoption of comparative fault. Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 403, 491 N.W.2d 208 (1992); see also O'Sullivan v. Shaw, 431 Mass. 201, 206, 726 N.E.2d 951 (2000) (listing the authorities and majority jurisdictions that find accordingly).
I again note that our Supreme Court established the defense, so we should resolve any doubt about its continued viability in favor of deference. Boyd v. W G Wade Shows, 443 Mich. 515, 523, 505 N.W.2d 544 (1993). In my opinion, the trial court erred when it failed to determine initially whether the defense eliminated the common-law claim and later refused to instruct the jury on the defense's applicability. I would vacate the judgment and remand for a new trial on plaintiff's common-law claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336924/ | 122 S.E.2d 363 (1961)
255 N.C. 607
STATE
v.
Dale Junior ROOP.
No. 362.
Supreme Court of North Carolina.
November 8, 1961.
*364 T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.
Bowie, Bowie & Vannoy, West Jefferson, for defendant, appellant.
PARKER, Justice.
Defendant assigns as error the denial by the court of his motion for judgment of involuntary nonsuit made at the close of all the evidence. G.S. § 15-173.
The State's evidence shows the following facts:
About 6:30 p. m. o'clock on 21 November 1959 Mack Spencer, 18 years old, was driving a 1955 Ford automobile north on N. C. Highway 194 in Ashe County at a speed of 40 or 45 miles an hour. Bobby Gene Campbell, 20 or 21 years old, the owner of the automobile, was sitting in the front seat on the right hand side. He had asked Spencer to drive, telling him he had drunk too much wine, and was too high to drive. About four hours previously Spencer had taken a little drink of wine out of Campbell's bottle. Spencer was following an automobile in front of him and driving about 100 to 150 feet in its rear. It was dark, Spencer had his lights on dim, and could see ahead about 75 to 100 feet. The highway is a gravel and tar road, 18 feet wide, with 8 feet shoulders on each side, and has no center line painted on it. At and near the scene of collision, hereafter set forth, the highway is practically level, and has a slight curve. Spencer was driving downgrade, but the grade is not steep. He was intermittently braking his automobile.
Spencer first saw an automobile with its lights on meeting him, when it was passing the automobile in front of him. The grade for this automobile was up. Spencer does not know how far the approaching automobile was from him when he first saw it, nor how much time elapsed from his first seeing it until the collision occurred. The approaching automobile seemed to be coming pretty fast, but Spencer would not attempt to estimate its speed. It was coming straight into Spencer's automobile. Spencer pulled his automobile over as far as he could get to his right without going off the road into a high bank below him. The approaching automobile kept coming on, and hit Spencer's automobile in his right hand lane of travel. It was a head-on collision. In the collision Spencer was seriously injured, and Campbell received injuries resulting in his death en route to a hospital. The approaching automobile was a 1953 Pontiac driven by defendant Roop, 20 years old.
William Valentine, a highway patrolman, arrived at the scene about 7:40 p. m. o'clock. When he arrived the Ford was sitting completely off the highway on the north side headed in a northerly direction toward the edge of the highway. The Pontiac was sitting practically crossways in the highway. The automobiles were 7½ feet apart. Valentine testified: "Officer Burkett and I measured skid marks where the Pontiac was sitting after the point of impact, a distance of 66 feet, headed in a south direction. * * * I did not find any skid marks at or near the scene of the accident on the side of the road the Ford vehicle was proceeding on." He could find no skid marks for the Ford. Most of the mud, grease, and "stuff" he found on the highway were in the right hand lane headed north of the Ford automobile. He saw freshly "chipped places" in the gravel and tar road, "two feet from the center or 11 feet from the side, which would be two feet from the center line," where the front end of one of the automobiles had fallen down and cut out places in the road. The Pontiac automobile had in it the odor of an alcoholic beverage.
Jimmy Sexton, a college student, saw defendant Roop at Marvin Spencer's service station about a mile from the scene of the collision a short time before the collision. *365 Roop was a perfect stranger to him. He had no conversation with him. He was about a foot from him. From observation of Roop's actions he thought Roop had been drinking some intoxicating beverage.
Mack Spencer told the officers investigating the collision several times the deceased Campbell was driving the automobile, and did not tell them he was driving it, until a month after the wreck, when presented with evidence that he, Spencer, was driving it at the time of the collision.
Darwin Walker, a witness for the State, carried Roop, Mack Spencer, and Campbell to the hospital in an ambulance. When Walker was recalled by the defendant, he testified he talked with Roop, and smelt no alcoholic odor on him or his breath.
The defendant's evidence tended to show that Mack Spencer was driving the Ford 70 to 75 miles an hour, travelling behind an automobile travelling at a like speed, that Spencer attempted to pass the automobile in front of him, and that the collision occurred on defendant's side of the road. That defendant was driving about 35 miles an hour. Defendant Roop had drunk no alcoholic beverage that day.
Culpable negligence, from which death proximately ensues, makes the actor guilty of manslaughter, and under some circumstances guilty of murder. State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Wooten, 228 N.C. 628, 46 S.E.2d 868; State v. Norris, 242 N.C. 47, 86 S.E.2d 916; State v. Phelps, 242 N.C. 540, 89 S.E.2d 132.
Culpable negligence in the law of crimes necessarily implies something more than actionable negligence in the law of torts. State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Cope, supra; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; State v. Phelps, supra.
Mere proof of culpable negligence does not establish proximate cause. To culpable negligence must be added that the act was a proximate cause of death to hold a person criminally responsible for manslaughter. State v. Everett, 194 N.C. 442, 140 S.E. 22; State v. Satterfield, 198 N.C. 682, 153 S.E. 155; State v. Lowery, 223 N. C. 598, 27 S.E.2d 638; State v. Phelps, supra.
This Court said in State v. Cope, supra [204 N.C. 28, 167 S.E. 458]: "Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others."
Actionable negligence in the law of torts is a breach of some duty imposed by law or a want of due carecommensurate care under the circumstancesproximately resulting in injury or death to another. It may be a negligent act or omission. Foreseeability of injury is a requisite of proximate cause. Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E.2d 378; State v. Cope, supra.
This Court speaking by Denny, J., said in State v. Hancock, 248 N.C. 432, 103 S.E.2d 491, 494: "The violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional. But, where there is an unintentional or inadvertent violation of the statute, such violation standing alone does not constitute culpable negligence. The inadvertent or unintentional violation of the statute must be accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others."
It is familiar learning that on a motion for judgment of nonsuit the State is entitled to have the evidence considered in its most favorable light, State v. Reeves, 235 N.C. 427, 70 S.E.2d 9, and that defendant's evidence, unless favorable to the State, is not to be considered, except when not in conflict with the State's evidence, it *366 may be used to explain or make clear the State's evidence, State v. Bryant, 235 N.C. 420, 70 S.E.2d 186.
The State's evidence, considered in the light most favorable to it, is that a short time before the fatal collision the defendant Roop by his actions caused a State's witness to form the opinion he had been drinking some intoxicating beverage. But there is no evidence that Roop was intoxicated, or under the influence of intoxicating liquor, or that his ability, either physically or mentally, to operate an automobile was impaired in any way.
The State's evidence, considered in the light most favorable to it, is that Roop was operating his automobile on a gravel and tar road with no center line painted on it some two feet on the wrong side of the road in Mack Spencer's lane of traffic, when the collision occurred, in violation of G.S. § 20-148, and that skid marks extended 66 feet back of Roop's automobile. There is no evidence that the skid marks were on Roop's wrong side of the road. Patrolman Valentine's testimony for the State is: "I did not find any skid marks at or near the scene of the accident on the side of the road the Ford vehicle was proceeding on." Roop's automobile had passed the automobile Spencer was following at a distance of 100 to 150 feet behind it. The State has no evidence how far Roop's automobile was from the Spencer automobile, after it had passed the front automobile, before it came over on the wrong side of the road in Spencer's lane of traffic. There is no evidence that Roop's automobile was being driven at an unlawful rate of speed.
The facts in State v. Stansell, supra, are distinguishable. In that case the defendant was operating his automobile on the wrong side of the road, at an unlawful rate of speed, while intoxicated.
We realize that many head-on collisions of automobiles are caused by one automobile being on its wrong side of the road, and that under such facts the erring motorist is guilty of actionable negligence in a tort action. The State's evidence here, considered in the light most favorable to it, shows actionable negligence on defendant's part sufficient for a tort action, but, in our opinion, and we so hold, it fails to show on his part an intentional, wilful or wanton violation of G.S. § 20-148, or an unintentional violation of the statute accompanied by such recklessness or carelessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting to a thoughtless disregard of consequences or a heedless indifference to the safety of others, as imports criminal responsibility, and it also fails to show culpable negligence on defendant's part, as culpable negligence is defined in numerous decisions of this Court.
The ruling of the trial court on the motion for judgment of nonsuit at the close of all the evidence is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336933/ | 203 Va. 102 (1961)
CITY OF RICHMOND
v.
WILLIAM E. HANES.
Record No. 5298.
Supreme Court of Virginia.
November 27, 1961.
James A. Eichner (J. E. Drinard, on brief), for the plaintiff in error.
Frank C. Maloney, III (George E. Allen; Wilbur C. Allen; Allen, Allen, Allen & Allen, on brief), for the defendant in error.
Present, All the Justices.
1. Hanes, a police officer of the city, was injured while on duty because of the negligence of one Thompson. His attorneys effected a compromise for $25,000, of which the city claimed $13,276 by reason of its payment of hospital bills and injury leave pay. The basis of this claim was a provision in the city's personnel rules that such payments as it had made constituted an assignment to it, for purposes of reimbursement, of the right to recover damages. Thompson paid the sum agreed into court, which ruled against the city's claim. It was held on appeal that Hanes had not expressly or by conduct made any assignment; and furthermore that his cause of action for bodily injuries was incapable of assignment in the absence of validating statute.
2. There is in Virginia no such statute. The provisions of Code 1950, section 8-628.1 providing for the survival of causes of action for injuries to person cannot properly be construed to give assignability to a claim for a tort which was not assignable prior to the statute.
3. The personnel board of the city had no express power under the city charter to adopt the rule as to assignment of causes of action on which its claim was based. Nor could such power be legitimately implied from the powers granted. The rule was accordingly invalid as applied to tort claims based upon bodily injury.
4. The city could not claim subrogation to Hanes' rights, eights, either by agreement or by operation of law. It in effect acted as a volunteer, for there was no showing it had made the payments in question in performance of a legal duty or to protect itself against loss or that it acted in response to a request of Hanes. It could not, moreover, in the absence of statutory authority, be subrogated to a cause of action not assignable to it.
5. But to the extent of the lien granted by Code 1950, section 32-138, to which municipalities are specifically subrogated by section 32-140, the court properly allowed the city's claim, being the sum of $700.
Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Thomas C. Fletcher, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
This case involves the question of whether the city of Richmond is entitled to share in a sum paid into court as damages for personal injuries suffered by William E. Hanes, the appellee.
Hanes had been in the employ of the city as a police officer for eighteen years. On May 1, 1959, while on duty directing traffic on one of the city streets, he was struck and seriously and permanently injured by an automobile being negligently operated by one Roy D. Thompson. He was hospitalized for nearly three months and shortly after August 1, 1959, he employed attorneys for the purpose of recovering damages for his injuries and agreed with them that their fee would be one-third of the amount recovered.
The city of Richmond asserted a claim against Thompson and his insurance carrier for hospital and medical expenses paid by it for Hanes, and wages paid to Hanes during his disability. After some negotiations and correspondence between the city and Hanes' attorneys, the attorneys brought an action on November 10, 1959, for damages against Thompson, who filed his grounds of defense. A settlement of the action was later agreed on in the sum of $25,000, the maximum amount of Thompson's insurance. A disagreement arose between the attorneys and counsel for the city as to the division of this fund, primarily as to the attorneys' fee, its amount and how it should be paid. What seemed originally to be a spirit of accommodation with respect to the controversy developed into a fixed disagreement. *104
Pursuant to | 8-226 of the Code, Thompson, the defendant, paid the $25,000 into court and the court, by order of May 3, 1960, directed the city to appear and state the nature of its claim. The city accordingly filed a petition alleging that Hanes, as a police officer, was subject to the personnel rules of the city and that | 154 of these rules, adopted pursuant to | 9.06 of its charter, provided that payment by the city of medical expenses, hospital expenses, injury leave and Workmen's Compensation "to or on behalf of any employee injured or killed in the line of duty by any act or omission of another shall constitute an assignment to the City of any right to recover damages," and that the city should be reimbursed to the extent of such payments; that the city had paid to or for Hanes $11,307.12 for hospital and medical expenses, and $1,969.83 as injury leave in full of his wages from the time of his injury to the date of his retirement, a total of $13,276.95; that said payments were accepted by or made with the consent of Hanes; that the city claimed to be entitled to reimbursement for said amount, with priority over claims for attorneys' fees or other claims. It prayed that payment be made to it accordingly out of the fund and that the court determine a reasonable fee to be paid out of the fund to Hanes' attorneys.
By order of May 16, 1960, filing the petition, the city was made a party defendant and the plaintiff, Hanes, was directed to reply. Thompson, the original defendant, was discharged from further liability to Hanes or to the city.
Hanes, in his reply, admitted that he was subject to the personnel rules of the city, but denied that said rules constituted any assignment of any part of his claim for personal injuries. He denied that Rule 154 created any assignment of any part of the subject matter of his action. He admitted that the city had paid the amount claimed on account of doctors and hospital bills, but denied that they were paid for or on his behalf, or that they were accepted by him or made with his consent. He asserted that they were paid by the city "pursuant to its own obligations". He denied that the city was entitled to reimbursement from the fund in the sum of $13,276.95, or any other amount, or to any priority. He prayed that the entire fund be paid to him and his attorneys.
The court then heard the evidence offered by the parties, which, except for exhibits of accounts and documents, related almost entirely to the attorneys' fees. At its conclusion the court rendered its opinion that Hanes' action for tort was not assignable and that the personnel board of the city had no statutory power to create such an assignment, *105 and that no subrogation in favor of the city had arisen under the circumstances of the case beyond $700 provided for by | 32-138 ff. of the Code. That sum was ordered paid to the city, the balance paid to Hanes and his attorneys, and the petition of the city was dismissed, but without prejudice to its right "to assert such claim in an action not based upon assignment or subrogation."
Under its assignments of error the city contends that the court erred in holding: (1) That Hanes' cause of action against Thompson, or the proceeds from the settlement of that cause, was not assignable to the extent of the payments made by the city for injury leave and hospital and medical expenses, even in the absence of statutory authority for such assignment; (2) That Rule 154 was ineffective to make such assignment; and (3) That the city was not subrogated to Hanes' cause of action or the proceeds from the settlement of it to the extent of said payments. We deal with the questions in that order.
I. It is not contended that there was any express assignment by Hanes of his cause of action. There were, of course, no proceeds to assign until the money was paid into court. The city's present contention is that Hanes acquiesced in the payment of his wages and medical expenses with constructive and actual knowledge of the assignment provision of the personnel rules, and if his right to recover damages was capable of being assigned, his conduct was sufficient to constitute a valid assignment.
There is no evidence that Hanes intended to assign his cause of action to the city or that he had any actual knowledge of the assignment provision of the personnel rules until a letter was delivered to him on August 20, 1959, by the city's acting chief of police, reciting the assignment provision of the personnel rules and directing him to reimburse the city "for all bills as well as time losses" in connection with his accident. This was more than three weeks after Hanes had been discharged from the hospital and most of the bills had been paid. It is not shown that Hanes knew what bills had then been paid or what were afterwards paid. This personnel rule was adopted in 1958, long after Hanes began his service as a police officer, and there is no evidence that he consented to it or had any actual knowledge of it.
If it be conceded that circumstances existed sufficient to constitute an assignment, that alone does not support the city's claim. Hanes' cause of action against Thompson for bodily injuries, which was the basis of the fund paid into court, was not assignable by him in the absence of a statute permitting such assignment. *106
"The general doctrine, both at law and in equity, is that rights of action for torts causing injuries which are strictly personal and which do not survive are not capable of being assigned, although a right to damages arising ex delicto is recognized as being a chose in action. * * *." 4 Am. Jur., Assignments, | 30, p. 252. Anno., 40 A.L.R. 2d 500, 502; Burks Pl. & Pr., 4 ed., | 234(1), p. 405. The rule was based on principles of public policy to discourage champerty and maintenance. 4 Am. Jur., id., | 22, p. 247.
In Winston Gordon, 115 Va. 899, 915-6, 80 S.E. 756, 763, decided in 1914, this court approved the rule as thus stated in Graves on Pleading, p. 16:
"* * * 'But all actions ex delicto are not assignable, even in equity, for it is sometimes considered against public policy, even in our day, to allow such an action to be made over to an assignee for money. Then what tort actions are assignable? The answer is such only as survive to or against the personal representative, if one of the original parties dies. Then what tort actions survive? The answer is: Those for wrong to property, real or personal, or which grow out of breach of contract, but not for wrongs done to the person or reputation, or any purely personal wrong, apart from property or contract. * * *.'"
That case has been cited many times without any modification of the quoted statement. See Watson Daniel, 165 Va. 564, 568, 183 S.E. 183, 185; Progressive Realty Corp. Meador, 197 Va. 807, 809, 91 S.E.2d 645, 647; Worrie Boze, 198 Va. 533, 536, 95 S.E.2d 192, 195; Carva Food Corp. Dawley, 202 Va. 543, 546, 118 S.E.2d 664, 667.
The rule that actions for purely personal wrongs are not assignable has not been changed by statute.
Acts of Assembly, 1950, ch. 481, p. 948, added to the Code | 8-628.1 providing that no cause of action for injuries to person or property shall be lost because of the death of either the injured or the injuring. It was amended by Acts, 1952, ch. 378, p. 671, to provide that no such action for personal injuries, except of a person under disability at the time of the injury, shall be brought more than one year after the injuries occurred. It was amended again by Acts, 1954, ch. 607, p. 782, to increase the limitation period to two years and to provide that nothing in the section as amended should be construed to extend the time for bringing action for any other tort "nor to give the right to assign a claim for a tort not otherwise assignable."
The 1954 Act repealed | 8-628 of the 1950 Code which had contained a like provision that "Nothing contained in this section shall be *107 construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable." The quoted language was part of | 5790 of the 1919 Code and was discussed at length in In Re Funk, 2 F. Supp. 555, 560, by the late Judge McDowell; who reached the conclusion that it "does not imply that either rights of action or actions for tortious bodily injury have assignability." The Court of Appeals thought that to be the correct conclusion but affirmed the case on another ground. Ruebush Funk, (4 Cir.), 63 F.2d 170. Cf. Herndon Wickham, 198 Va. 824, 97 S.E.2d 5.
While the phrase "a tort not otherwise assignable" in present | 8-628.1 has been criticized as lacking clarity, we think it is clearly sufficient to express a definite legislative intent that the survival rights given by the statute shall not be construed to give assignability to a claim for a tort which was not assignable prior to the statute. Cf. Note, 41 Va. Law Rev., p. 687. Accordingly we hold that Hanes' claim against Thompson for his bodily injuries was not assignable by Hanes either at common law or by virtue of the statute.
II. The city asserts, nevertheless, that its personnel board had power to adopt | 154 of the personnel rules providing that the payments so made by it constituted an assignment to the city of Hanes' right to recover damages. It relies essentially on | 9.06 of its charter, Acts 1948, ch. 116, p. 175, as the source of that power. Section 9.05 (p. 225), Acts 1948, gave the personnel board power to adopt and amend rules to give effect to the provisions of Chapter 9, "Department of Personnel", of the charter. The pertinent part of | 9.06 (p. 226) appears in the margin. [1]
Obviously this section of the charter gave the personnel board no express authority to adopt | 154 of its rules, and if it had such authority it was by implication alone.
"If the [asserted] power has not been expressly granted, or is not *108 necessarily implied, it does not exist. If it be even doubtful, the doubt must be resolved against the existence of the power." Winchester Redmond, 93 Va. 711, 717, 25 S.E. 1001, 1003.
It is firmly settled that a municipality has only the powers (1) granted in express words; (2) necessarily or fairly implied in, or incidental to, the powers expressly granted; (3) essential to its declared objects and purposes, not simply convenient but indispensable. City of Richmond County Board,
199 Va. 679, 684, 101 S.E.2d 641, 645; 13 Mich. Jur., Municipal Corporations, | 25.
We agree with the trial court that the implied powers of the personnel board do not extend to the adoption of a rule abrogating the ancient rule that tort claims based on bodily injury are not assignable.
III. Finally the city contends that it was subrogated to Hanes' cause of action to the extent of the payments made by it. It asserts that it is entitled both to conventional subrogation arising from express or implied agreement, and to legal subrogation arising by operation of law. Federal Land Bank Joynes, 179 Va. 394, 401, 18 S.E.2d 917; 18 Mich. Jur., Subrogation, | 2, pp. 3-4; 83 C.J.S., Subrogation, | 3, p. 583, | 4, p. 586.
Not everybody, of course, who pays the debts of another is entitled to be subrogated to the rights of the creditor. If he does so voluntarily out of a spirit of generosity, a feeling of moral responsibility or a sense of duty, that alone does not entitle him to compel repayment by the debtor, particularly out of a chose in action which was not assignable to him, as in this case.
In Morgan Gollehon, 153 Va. 246, 249, 149 S.E. 485, 486, it was said, citing Pomeroy's Equity Jurisprudence, 2d ed., | 2343, that persons entitled to subrogation may be divided into three classes: (1) Those who act in the performance of a legal duty arising either by express agreement or by operation of law, as in the case of a surety who pays his principal's debt; (2) those not legally bound to pay, but who might suffer loss if the obligation is discharged, and who act under the necessity of self-protection; and (3) strangers who act at the request of a person liable for the debt. See 83 C.J.S., Subrogation, | 38, p. 649 ff.
Here there is no showing that the city acted in the performance of a legal duty or occupied the position of a surety; or that it acted in self-protection against a loss it might suffer if it did not pay; or that it acted in response to a request of Hanes.
On the contrary, the injury leave payment was optional under the city's personnel rules and was paid without any suggestion that it *109 should be refunded. There is no evidence that Hanes had anything to do with selecting the medical or hospital services for which the city paid: or that he knew what the charges were or ever saw any of the bills paid by the city. He made no request to the city to pay these bills nor any promise at any time to refund the amount so paid. It was not until after the obligation had been incurred and Hanes had been released from the hospital that Hanes was informed that the city expected him to refund these payments, and then it relied on the assignment provision of | 154 of the personnel rules as the basis of its claim. In its petition asserting its claim against the fund paid into court it alleged as its basis only that Hanes' cause of action had been assigned to it by virtue of the personnel rule.
Moreover, in the absence of statutory authority, the city should not be subrogated to a chose in action which could not be assigned to it.
It was so held in Fifield Manor Finston, 54 Cal. 2d 632, 354 P.2d 1073. The California statute, like our | 8-628.1, provided for the survival of personal injury causes of action but also provided that nothing in the statute should be construed to make the cause of action assignable. Accordingly the court refused to apply the principles of subrogation in favor of an insurer who had been required to pay the medical expenses of its insured who was negligently injured by a third party, even though the insurance contract expressly granted a right of subrogation. The court said:
"While subrogation and assignment have certain technical differences, each operates to transfer from one person to another a cause of action against a third, and the reasons of policy which make certain causes of action nonassignable would seem to operate as forcefully against the transfer of such causes of action by subrogation. * * *." 54 Cal.2d at 640, 354 P.2d at 1078.
The trial court properly limited the city's right in the fund to the lien granted by | 32-138 of the Code and to which municipalities are specifically subrogated by | 32-140.
The judgment appealed from is therefore
Affirmed.
NOTES
[1] "* * * The rules and amendments thereof so adopted shall have, to the extent that they are consistent with the terms of this charter, the force of law. Among other things they shall provide for the method of holding competitive examinations; the method of certifying eligibles for appointment; the establishment, maintenance, consolidation and cancellation of eligible lists; the administration of the classification plan and pay plan; methods of promotion and the application of service ratings thereto; probationary periods of employment; transfers of employees within the classification plan; hours of work, vacations, sick leaves and other leaves of absence; overtime pay; the order and manner in which layoffs shall be effected; procedure on appeals from orders of suspension or removal or other disciplinary action; and such other matters as may be necessary to provide adequate and systematic handling of the personnel affairs of the city." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336960/ | 122 S.E.2d 70 (1961)
255 N.C. 478
Sue Lee PARKS, By Her Next Friend, Alvaro Garcia
v.
John Wesley WASHINGTON and Mangum Trucking Company, Inc., a Corporation.
William J. FLOWE, By His Next Friend, Mrs. S. A. Flowe
v.
John Wesley WASHINGTON and Mangum Trucking Company, Inc., a Corporation.
No. 249.
Supreme Court of North Carolina.
October 11, 1961.
*72 Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant appellants.
Bailey & Booe, Charlotte, for plaintiff appellees.
RODMAN, Justice.
Defendants' assignments of error are directed to (a) the admission of asserted incompetent and prejudicial evidence, and (b) the asserted insufficiency of the charge directed to the issues of damages.
The asserted incompetent evidence was directed to plaintiffs' allegation that Washington operated his motor vehicle "while under the influence of intoxicating liquor, in direct violation of North Carolina General Statutes, Sec. 20-138." At the time of the collision both motor vehicles were traveling in the direction of Charlotte and away from Monroe. Plaintiffs were, without objection, permitted to testify to physical conditions at the scene of the collision, the speed of their vehicle, the fact that it was struck from the rear and with such force as to cause it to turn over four or five times. Highway Patrolman Thomas investigated the collision. He testified to physical conditions observed by him at the scene of the collision and to statements made by plaintiffs. He was asked if he talked with Washington at the scene of the collision. Defendants objected to statements emanating from Washington. The record does not show that any reason was given for the objection at that time. At their request the court excused the jury. It heard the testimony. The witness said that he did not have a conversation with Washington at the scene of the collision but did in Charlotte. Over defendants' objection the court admitted this evidence: "Q. All right, sir, Officer Thomas, would you state whether or not the defendant, John Wesley Washington, made any statement to you in regard to his condition at the time of his wreck?" "A. He stated to me just prior to the time he left Monroe he drank a pint of Whiskey." Over defendants' objection a police officer of Charlotte was asked to describe the condition of defendant Washington when seen in Charlotte shortly after the collision. Defense counsel said: "The defendant at *73 this point would like to interpose an objection to any further testimony he might give would be irrelevant to the issues involved in view of the stipulation made at the beginning of the case." The objection was overruled and witness answered: "He was passed out drunk * * *"
The record discloses these seemingly contradictory positions taken by defendants during the trial: (1) Having specifically denied the acts of negligence detailed in the complaint, nevertheless: "On the coming on of the trial of these causes, Mr. A. Myles Haynes, counsel for defendants, from the firm of Kennedy, Covington, Lobdell & Hickman, appeared for the defendants, and each of them, and admitted and stipulated in open court that the defendant Washington was negligent on the occasion with reference to which these actions pertain." It is to be noted that the stipulation does not particularize the act of negligence alleged. More important, it does not specifically concede that Washington's negligence was the proximate cause of plaintiffs' injuries, although perhaps subject to that inference. (2) At the conclusion of plaintiffs' evidence and at the close of the evidence, defendants moved for judgment as of nonsuit. Why, if the admission was intended to admit liability for injuries negligently inflicted? Clark v. Emerson, 245 N.C. 387, 95 S.E.2d 880.
(3) The record does not disclose who prepared or tendered the issues. No exception was taken by defendants, however, to the submission of the first issue. If the right to recover was at issue, plaintiffs were entitled to offer evidence to support their allegations. (4) The court charged the jury that the parties had stipulated that the jury might answer the first issue "yes" in each case. No exception was taken to this charge. (5) Notwithstanding the charge, when the verdict was returned "the defendants and each of them move to set it aside as being against the greater weight of the evidence, and for a new trial, motion overruled and the defendants except. The defendants then move to set the verdict aside as being excessive and for a new trial, motion overruled and defendants except." It may well be that the seemingly contradictory positions taken by defendants misled the court and the counsel for plaintiffs with respect to the extent of the admission and that the admission did not comprehend proximate cause so as to make the admitted negligence actionable.
But treating the stipulation as an admission of liability, as portions of the record indicate it should be treated, we must determine whether the evidence was improperly received and hence a new trial should be awarded.
Clearly the evidence was competent on the first issue. If that question was not before the jury and only the question of damages was to be determined, it would have been much better and much simpler to have limited the questions referred to the jury to that single question.
It is elementary that a party is not required to offer evidence to establish that which has been judicially admitted. Chisholm v. Hall, N.C., 121 S.E.2d 726; State v. Powell, 254 N.C. 231, 118 S.E.2d 617; State v. Martin, 191 N.C. 401, 132 S.E. 14. But the mere fact that immaterial evidence is received is not of itself sufficient to warrant a new trial. As said by Faircloth, C. J., in Collins v. Collins, 125 N.C. 98, 34 S.E. 195, 196: "The admission of irrelevant testimony will not authorize a new trial unless it appears that the objecting party was prejudiced thereby." Ray v. French Broad Elec. Membership Corp., 252 N.C. 380, 113 S.E.2d 806; Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; State v. Galloway, 188 N.C. 416, 124 S.E. 745; Deming v. Gainey, 95 N.C. 528; State v. Manly, 95 N.C. 661.
As said by Johnson, J., in Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634, 649: "Verdicts and judgments are not to be set aside for mere error and no more. To accomplish this result it must be made to *74 appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, and that a different result likely would have ensued, with the burden being on the appellant to show this."
We are asked to hold as a matter of law that the evidence directed to the first issue in fact inflamed the jury and caused it to award more than fair compensation for the injuries sustained. What defendants now seek to accomplish could have been done by the trial judge as a matter of discretion, and should have been done if there was a miscarriage of justice. He was not limited to a mere question of legal right. He was expressly requested to exercise his discretion by setting aside the answers to the third issues because of the assertion that the amounts awarded were excessive. He refused to do so. His experience of more than thirty years on the bench eminently qualified him to evaluate the testimony. His service has demonstrated his learning and his desire to have litigation end in justice to all who appear before him.
Plaintiffs testified to painful injuries from which they continued to suffer until the day of the trial (a year after the collision) and from which the jury could infer the injuries were permanent. On the other hand, there was evidence from which the jury could find the injuries were negligible and in no way permanent.
What was fair compensation was, on all the evidence, a question of fact for the jury. We cannot, on this record, conclude as a matter of law that the jury, in disregard of its oath, failed to apply the rule for measuring damages as given by the court.
The rule by which damages are to be measured in cases of this character is stated in Mintz v. Atlantic Coast Line R. R., 233 N.C. 607, 65 S.E.2d 120. The charge conformed to the rule so stated. If defendants wished amplification of any phase, they should have given notice of their desire by proper requests.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336948/ | 104 Ga. App. 576 (1961)
122 S.E.2d 172
HUNTER
v.
THE STATE.
39051.
Court of Appeals of Georgia.
Decided October 4, 1961.
C. B. King, for plaintiff in error.
Rosser Malone, Solicitor, contra.
FRANKUM, Judge.
1. The evidence supports the verdict of guilty, and therefore, the general grounds of the motion for a new trial are without merit.
2. The special ground of the defendant's motion for a new trial complains of the admission of evidence over objection of defendant's counsel. The defendant in her statement to the jury said: "I do not sell any whisky." On the theory of contradiction and impeachment of the above-quoted portion of the defendant's statement, the court allowed for the consideration of the jury, over proper objection of defendant's counsel, the evidence of a witness for the State adduced from the following questions and answers: "Q. You heard the statement that Annie Hunter made that she had never sold any whisky? A. Yes, sir. Q. Is that statement true? A. No, sir. Q. Has she been charged with selling whisky? A. Yes. sir. Q. When was that? A. In 1960. Q. Mr. Stewart, would you *577 examine that docket and see if there is a case against Annie Hunter involving whisky there. A. There is, Sir. Q. What is it? A. There are two cases, Sir, one is docket number 38420 for possessing tax unpaid whisky, the other being docket number 38421. Q. What disposition was made of those cases? A. In case No. 38420 it says, `Nol. prossed on payment of costs of $45 on May 16, 1960.' Case No. 38421, being that of selling beer without a license on Sunday, it says, `Nol. prossed on payment of costs, May 16, 1960.'"
It is a fundamental and elementary principle of our law that one accused of crime is presumed innocent until proved guilty. We assume that the defendant paid the costs on the two cases which were identified by the witness as having been nol. prossed. Such payment of costs adds nothing to make the record of the cases admissible to contradict or impeach the defendant's statement that "I do not sell any whisky". No officer has the right to demand or receive of one accused of crime costs on a criminal case which has been nol. prossed.
"An indictment may be quashed or nolle prosequi entered thereon and the prosecution continue in another indictment which may be preferred. 5 Words & Phrases, 4814, defines it thus: `A nolle prosequi is a voluntary withdrawal by the prosecuting officer of present proceedings on a particular bill. At common law it might be retracted at any time, and was not a bar to subsequent prosecutions on another indictment.'" Price v. Cobb, 60 Ga. App. 59, 61 (3 SE2d 131).
Code § 27-1801 provides: "After an examination of the case in open court, and before it has been submitted to the jury, the solicitor general may enter a nolle prosequi with the consent of the court. After the case has been submitted to the jury, a nolle prosequi shall not be entered except by the consent of the defendant."
A nolle prosequi does not adjudicate either the innocence or guilt of the accused unless the accused has been placed in jeopardy. Doyal v. State, 70 Ga. 134.
Code § 27-2801 provides in part: "The costs of a prosecution, except the fees of his own witnesses, shall not be demanded of a defendant until after conviction on final trial."
*578 "The officer charging costs should always show the authority of the law to exact its payment from the pocket of the citizen." Peters v. State, 9 Ga. 109, 111.
"All officers charging costs, and exacting its payment from the pocket of the citizen, must always show the authority of the law to do so." Stamper v. State, 11 Ga. 643.
The court erred in overruling the special ground of the defendant's motion for a new trial.
Judgment reversed. Townsend, P. J., and Jordan, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336942/ | 104 Ga. App. 769 (1961)
122 S.E.2d 747
BROWN
v.
DOUGLAS.
39115.
Court of Appeals of Georgia.
Decided November 7, 1961.
Pritchard & Thomas, M. C. Pritchard, for plaintiff in error.
Folks Huxford, Garrett & McDonald, Frank B. McDonald, Jr., contra.
CARLISLE, Presiding Judge.
1. The petition in this case alleges the ability of the parties to contract a marriage, a promise and agreement between the plaintiff and defendant to be married, the breach of the contract or promise by the defendant by his ultimate abandonment of the contract and refusal to carry it out, and general damages accruing to the plaintiff therefrom. It thus stated a cause of action and the judge of the superior court erred in dismissing it on general demurrer. Parker v. Forehand, 99 Ga. 743 (28 S.E. 400); Graves v. Rivers, 123 Ga. 224, 227 (51 S.E. 318). Admittedly, the petition contains much that is surplusage and unnecessary to the cause of action, but this has never been known to be cause for dismissing an otherwise good cause of action on general demurrer. It was not necessary that the petition allege the exact terms of the contract as to time or place of performance expected or agreed upon. Spence v. Carter, 33 Ga. App. 279, 290 (2) (125 S.E. 883).
2. While an action for breach of promise to marry is essentially one ex contractu, the measure of damages is classed with actions ex delicto, and where no special damages are alleged or shown "and the injury is confined to the peace, happiness and feelings of the plaintiff, no measure of damages can be prescribed save the enlightened consciences of impartial jurors." Parker v. Forehand, 99 Ga. 743, 746, supra; Morris v. Stanford, 58 Ga. App. 726, 728 (3) (199 S.E. 773). The petition is not duplicitous.
3. "It has been held many times that a demurrer, `being a critic, must itself be free from imperfection.' This is particularly true of a special demurrer, which must point out clearly and specifically the alleged imperfection in the pleading attacked by it. It `must lay its finger, as it were, upon the very point.' Alford v. Davis, 21 Ga. App. 820 (4a) (95 S.E. 313)." Martin v. Gurley, 74 Ga. App. 642, 643 (40 SE2d 787). Accordingly, a demurrer which merely recites that a paragraph of the petition is vague, indefinite and uncertain is itself so vague, indefinite and uncertain as to present no question for decision by the court (Rhyne v. Price, 82 Ga. App. 691, 697 (2) 62 SE2d 420), and a demurrer on the ground that allegations are irrelevant and conclusions of the pleader and not statements *770 of facts, which demurrer does not set forth how or wherein such allegations are thus deficient, is too incomplete to invoke a ruling of the court and is itself subject to the criticisms it seeks to level at the petition. Central of Ga. Ry. Co. v. Sharpe, 83 Ga. App. 12, 22 (3) (62 SE2d 427). In this case all of the special demurrers were subject in some degree to the criticism of incompleteness and imperfection indicated above, and were improperly sustained.
4. Certain allegations of the petition were demurred to on the ground that they plainly showed that the petition was filed as an attempted blackmail under the guise of legal procedure. The allegations of the petition clearly do not show any such fact and to the extent that the demurrers seek to raise this issue they are speaking demurrers. If such matters are proper to be raised in this case, they address themselves to an affirmative defense by the defendant and not to attacks on the allegations of the petition.
5. Under the foregoing rules, none of the special demurrers was meritorious and the trial court erred in sustaining all of the special demurrers.
Judgment reversed. Eberhardt and Custer, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336959/ | 122 S.E.2d 61 (1961)
255 N.C. 489
INDUSTRIAL DISTRIBUTORS, INC.
v.
R. C. MITCHELL and Mrs. R. C. Mitchell.
No. 172.
Supreme Court of North Carolina.
October 11, 1961.
*62 Josey & Clark, Roanoke Rapids, for plaintiff appellee.
Charles M. White, III, and John Kerr, Jr., Warrenton, and Gaither M. Beam, Louisburg, for defendant appellants.
RODMAN, Justice.
Defendants did not offer evidence sufficient to justify the submission of an issue of damages resulting from the asserted breach of warranty.
Defendants' claim of error is based on their plea that the debt evidenced by the note was due and payable more than three years prior to 30 September 1958, the date this action was instituted. Hence the court could not peremptorily instruct the jury to return a verdict in any sum for plaintiff.
The parties are in agreement on these facts: Plaintiff, in the summer of 1955, sold to defendants, farmers, the equipment enumerated in exhibit A for use in irrigating defendants' crops. It was a cash sale. When the equipment was delivered in July, defendants did not have the monies to pay for it. They borrowed from Citizens Bank of Warrenton $1874.35, and as evidence of the debt so created, the defendant R. C. Mitchell executed a note "due on the 23rd day of October, A.D. 1955" and secured payment of that note by a mortgage on the properties described in exhibit A. That note contains this additional provision: "If $624.79 is paid on due date, balance will *63 be carried provided $624.79 is paid on October 23, 1956 and the balance of $624.77 is paid on October 23, 1957." The note also contained this clause: "All the above property is my own, and no other claim thereon." From the monies so borrowed defendants paid to plaintiff the sum of $1750, leaving a balance owing of $899.97. The note in suit was intended to represent that balance. The vice president of plaintiff testified: "The defendant said that was all the bank would lend him so we then took a note for the difference of $899.97." "Mr. Mitchell asked me to put on that note `after said bank,' which I had to do in order to go along with him because he had not paid. * * * It was Mr. Mitchell's intention at that time to pay me after he had paid off the bank * * *."
The evidence shows absence of consideration as between Citizens National Bank and defendants. Had payee brought an action in its name on the note, defendants' plea of want of consideration would, on the evidence, have sufficed to defeat the claim. Mills v. Bonin, 239 N.C. 498, 80 S.E.2d 365; G.S. § 25-33.
Plaintiff, according to its allegation, acquired the note by transfer on 15 July 1958. That date was subsequent to maturity as plaintiff would fix the time for payment. Plaintiff is not the holder of a valid negotiable instrument acquired before maturity. It is not protected by G.S. § 25-63.
The instrument was intended as a contract between plaintiff and defendant (1) to fix the time when plaintiff could require payment of the balance owing for the irrigation equipment, or (2) to create a lien on the equipment securing payment of this balance, or (3) both of these purposes.
The parties used this language to express their agreement: "On demand after bank on said equipment ____ days after date, we Promise to pay * * *." What is the meaning of the phrase "after bank on said equipment"? Does it mean that plaintiff could not demand payment until maturity of the debt to the Citizens Bank of Warrenton? Plaintiff now so contends. Or does it mean that the lien created was subordinate to the lien given the Bank of Warrenton? Defendants so contend. The language was inserted at the request of defendant R. C. Mitchell. Plaintiff's vice president who procured execution of the note testified: "It was Mr. Mitchell's intention at that time to pay me after he had paid off the bank at Warrenton, or after the last payment was due in 1957." He further testified: "We started trying to collect the account as soon as the note was signed. We started right away. We sent the note to a lawyer in Warrenton for collection. According to our original agreement, the note was due and Mr. Mitchell knew it was due. * * * I got Mr. Mitchell to sign a note on September 1, 1955, merely as security for Industrial Distributors inasmuch as he had failed to pay the cash all at one time. He had violated his agreement to pay me the cash for the entire system at one time. So, not knowing Mr. Mitchell's financial status too well, I decided it was best to have some evidence of debt, therefore I tried to collect the note then. I did not agree to carry this as an open account. * * * we asked Mr. Mitchell for the money and thought it was a cash deal, and the note was merely some form that I could take back to my company to justify not having the cash. * * * I was trying to collect the note all the time."
The defendant R. C. Mitchell, a witness in his own behalf, was asked: "What does that mean, `after the bank'?" He replied: "I did not want the mortgage at the bank and him to have another mortgage. I wanted to be sure this man knew the bank had a mortgage at the time." There was additional testimony from defendant which a jury might interpret as meaning defendant used the words "after bank" as meaning demand for payment could not be made until the time for payment of the note given Bank of Warrenton had passed.
*64 The evidence was sufficient for the jury to find: (1) There was no meeting of the minds as to the meaning of the phrase "after bank on said equipment." In that event the writing did not constitute a binding contract. Goeckel v. Stokley, 236 N.C. 604, 73 S.E.2d 618; Dodds v. Trust Co., 205 N.C. 153, 170 S.E. 652. (2) There was recognition of plaintiff's right to forthwith require payment but the lien on the equipment was junior to the lien of Bank of Warrenton. This interpretation accords with plaintiff's conduct immediately following the execution and delivery of the document. An interpretation of a writing made by the parties at a time when no controversy existed is strong evidence of the meaning of the language used. Cole v. Industrial Fibre Co., 200 N.C. 484, 157 S.E. 857. (3) The time fixed for payment had been postponed to the maturity of the note given Bank of Warrenton.
If the jury should find that parties did not make a binding contract on 1 September, defendants' debt was payable on delivery of the equipment. This was in July 1955. Plaintiff's right of action would, in that event, be barred. If the jury should find the parties understood that plaintiff's right to demand payment was not postponed but a lien was given in the hope that forbearance would be extended, plaintiff's cause of action accrued on the date the note was given and hence would be barred. Caldwell v. Rodman, 50 N.C. 139. If the jury should find the right to demand payment was postponed until after maturity of the note to Bank of Warrenton, the cause of action was not barred.
It would have been far simpler and better practice, Baker v. Malan Construction Corp., N.C., 121 S.E.2d 731, to have submitted an appropriate issue addressed to defendants' plea of the statute of limitations rather than a simple issue of debt. The amount of the debt was not in controversy. The peremptory instruction in plaintiffs' favor is necessarily predicated upon the court's assumption that in no event could the jury find facts which would bar plaintiffs' right of action. This assumption was erroneous.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336954/ | 122 S.E.2d 355 (1961)
255 N.C. 571
STATE
v.
Woodrow STEWART.
No. 292.
Supreme Court of North Carolina.
November 1, 1961.
*356 T. W. Bruton, Atty. Gen., and George A. Goodwyn, Staff Atty., Raleigh, for the State.
Woodrow Stewart, pro se.
PER CURIAM.
Petitioner Woodrow Stewart was tried in case No. 38 of the criminal docket of Watauga County Superior Court at the September Term 1945, Gwyn, J., presiding. It is charged in the bill of indictment in that case that Woodrow Stewart and another on 27 July 1945 "unlawfully, wilfully and feloniously, at and in and near the public highway, did commit an assault upon one H. J. Teague, with a deadly weapon, to wit, a club and by means aforesaid and by threats of violence did steal, take and carry away from his person and did rob him, the said H. J. Teague, of the sum of $718, the property of the said H. J. Teague." The court minutes for that term show the following: "No. 38 * * * Highway Robbery. Defendants plead guilty. It appearing to the Court that the defendants robbed the prosecuting witness * * * in the day time on the public highway, by means of a deadly weapon, the defendants being masked; it is ordered and adjudged that the defendants be confined in the State's Prison for not less than 18 nor more than 20 years." Petitioner was committed to serve the sentence thus imposed.
In September 1961 Stewart petitioned for writ of habeas corpus and alleged that the sentence imposed is excessive as a matter of law and requested that he be discharged. The petition was heard by Gambill, J., 13 September 1961 at chambers. Judge Gambill ruled that "the punishment of not less than 18 nor more than 20 years * * * is not excessive * * * within the purview of" G.S. § 14-87.
Highway robbery is a common law offense and is frequently denominated "common law robbery." Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Burke, 73 N.C. 83. It is punishable by imprisonment in the State's prison for a term not to exceed 10 years. G.S. § 14-2. In re Sellers, 234 N.C. 648, 68 S.E.2d 308, 310.
G.S. § 14-87, entitled "Robbery with firearms or other dangerous weapons," creates no new offense. "It does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed." State v. Hare, 243 N.C. 262, 90 S.E.2d 550; In re Sellers, supra; State v. Keller, 214 N.C. 447, 199 S.E. 620; State v. Chase, 231 N.C. 589, 58 S.E.2d 364; State v. Bell, supra. It "superadds to the minimum essentials of common-law robbery the additional requirement that the robbery must be committed `with the use or threatened use of * * * firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened.'" State v. Rogers, 246 N.C. 611, 99 S.E.2d 803, 804. To support a judgment imposing a prison term in excess of ten years the bill of indictment must allege facts sufficient to bring the case within this "additional requirement" and in accord with the tenor and substance of G.S. § 14-87.
*357 The bill of indictment in case No. 38 upon which petitioner was tried is sufficient to support a plea or conviction of highway robbery, for the facts alleged are sufficient to charge robbery by intimidation or violence, which is the gist of common law robbery. State v. Mull, 224 N.C. 574, 31 S.E.2d 764; State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Burke, supra. But it does not allege that the life of a person was endangered or threatened by the use or threatened use of a dangerous weapon, instrument or means. Compare the indictment herein with those in State v. Kerley, 246 N.C. 157, 97 S.E.2d 876, and State v. Mull, supra. It is our opinion that the indictment does not contain the additional allegations required in order to permit the more severe punishment provided for in G.S. § 14-87.
But even if the indictment had charged the offense in accordance with G. S. § 14-87, there is a further reason that the punishment may not exceed a term of 10 years in this case. The court minutes show that petitioner pleaded guilty to highway robbery. And highway robbery is a lesser offense embraced in the charge of robbery with firearms or other dangerous weapon. State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Bell, supra. Upon a plea of highway robbery the court may not change the effect of the plea by finding facts and thereby expose defendant to greater punishment than the plea will support.
In pronouncing judgment the court was bound by the provisions of G.S. § 14-2, which fixes ten years as the maximum which may be imposed for highway robbery.
The order of Gambill, J., finding that "the punishment of not less than 18 nor more than 20 years * * * is not excessive" and denying the petition for habeas corpus, is vacated and set aside. However, the petitioner is not entitled to a discharge. The plea of guilty of highway robbery stands and proper judgment must be entered. State v. Shipman, 203 N.C. 325, 166 S.E. 298. To that end the judgment pronounced in case No. 38, Watauga County Superior Court, September Term 1945, against Woodrow Stewart shall be vacated and the cause remanded to the Superior Court of Watauga County with direction that a proper sentence be imposed, the term thereof not to exceed ten years. The Superior Court of Watauga County in pronouncing sentence should be careful to so condition its judgment as to allow petitioner credit for the time he has served in the execution of the sentence hereby directed to be vacated.
It has come to the attention of this Court that judgments have been entered in other cases imposing prison sentences against petitioner, these sentences to run consecutively, and the first of them to begin at the expiration of the sentence in case No. 38, from Watauga. If the Superior Court of Watauga County finds that petitioner has already served, under the vacated judgment in case No. 38, a term equal to or in excess of that which shall be imposed pursuant to this opinion, petitioner, notwithstanding, shall be recommitted to serve the sentence in the other cases which were pronounced to begin at or after the expiration of the sentence in case No. 38.
In any event the invalidity of the sentence in case No. 38 does not render void for ambiguity or uncertainty as to the time of the beginning of the sentences imposed in other cases, the terms of which begin at or after the expiration of the sentence in case No. 38. In re Sellers, supra.
This cause is remanded to Judge Gambill that he may forthwith enter an appropriate order directing that the procedure herein prescribed be carried out. He shall further order that the proper officials of the State's Prison deliver custody of petitioner to the sheriff of Watauga County prior to the convening of the term of the Superior Court *358 for the trial of criminal cases to be held in Watauga County next after the entry of his order.
Error and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336963/ | 239 S.C. 287 (1961)
122 S.E.2d 648
ALAMANCE INDUSTRIES, Respondent,
v.
CHESTERFIELD HOSIERY MILL, Appellant.
17849
Supreme Court of South Carolina.
November 14, 1961.
*288 Ney B. Steele, Esq., of Chesterfield, for Appellant.
Messrs. H.F. Bell, of Chesterfield, and Eaton, Bell, Hunt & Seltzer, of Charlotte, N.C., for Respondent.
November 14, 1961.
TAYLOR, Chief Justice.
The sole question presented in this appeal is whether the Circuit Judge erred in refusing to allow the defendant to amend its answer by setting up a separate defense or counterclaim for fraud and deceit.
Suit was commenced in November, 1959, alleging a cause of action for debt in the amount of $695.00 allegedly due plaintiff under the terms of a written patent license agreement. Defendant duly filed answer on February 11, 1960, which in substance admitted execution of the written patent license agreement but denied that there was any indebtedness due and owing under the same in that it had not used the invention or method protected by the patent covered in *289 the agreement. The case was placed on the trial roster of Common Pleas Court for Chesterfield County beginning October 24, 1960.
On October 19, 1960, defendant served notice on plaintiff's counsel that it would move for leave to amend its answer and such amendment was served on October 21, 1960. The proposed amended answer restates the answer first served and then adds as a second defense by way of counterclaim that the execution of the written license agreement was obtained through false and fraudulent representation made by plaintiff's agent to one J.B. Kneece, who was at that time, in 1956, the president and majority stockholder of the defendant corporation and who executed the agreement on behalf of the defendant corporation, it being alleged that the agent falsely stated to Kneece that defendant corporation was already infringing upon plaintiff's patent and that unless defendant executed the proposed agreement it would be required to respond in damages for such infringements; and defendant prays for $50,000.00 actual and punitive damages.
Section 10-692, Code of Laws of South Carolina, 1952, reads as follows:
"The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by (a) adding or striking out the name of any party, (b) correcting a mistake in the name of a party or a mistake in any other respect, (c) inserting other allegations material to the case, or (d) when the amendment does not change substantially the claim or defense, conforming the pleading or proceeding to the facts proved."
The proposed amendment clearly does not fall under (a) or (d); therefore, if permissible, must fall within subdivision (b) or (c).
The power of amendment by the Code in the furtherance of justice is so large that its exercise by the Court will rarely be disturbed, because it will seldom *290 happen that the Court will exceed its power or abuse the discretion given it in such matters. This power, however, is not unlimited and it is a mistake to suppose that any and everything that may be proposed by way of amendment is allowable provided it is proposed before trial, Knight, Yancey & Co. v. Aetna Cotton Mills, 80 S.C. 212, 61 S.E. 396.
The original complaint when served had attached thereto a copy of the agreement which was being sued upon. Therefore, defendant was fully informed as to the nature of the cause of action, and it is evident that there was no bona fide mistake contained in the original answer so as to come within subdivision (b), Greenville Community Hotel Corporation v. Alexander Smith, Inc., 230 S.C. 239, 95 S.E. (2d) 262.
The trial Judge concluded that it was unnecessary to pass upon whether or not subdivision (c) is sufficiently broad to encompass the counterclaim sought to be instituted herein in that defendant had not demonstrated the diligence required in proposing the amendment.
The original answer was filed February 11, 1960, and it was not until October 19, 1960, more than eight months after and within five days of the commencement of the term of Court at which the case was to be tried, that defendant attempted to amend. Defendant in justification of its position filed affidavit of Robert A. Troxler, president of the defendant corporation, to the effect that he was not aware of the fraudulent inducement of plaintiff's agent until he discussed the matter with J.B. Kneece on October 19, 1960, Troxler having purchased the stock in the defendant corporation from Kneece. There is no showing that Kneece was unavailable to Troxler prior to October 19, 1960. Troxler was aware of Kneece's key role in the matter, certainly from the time of the service of the complaint in November, 1959, as a copy of the agreement was attached thereto. Yet, according to his contention, he did not approach Kneece concerning this matter until October 19, 1960, or *291 a period of almost one year. Under these circumstances, this Court cannot say the presiding Judge abused his discretion in refusing to permit the amendment. See Charleston & Western Carolina Railway Co. v. Joyce, 231 S.C. 493, 99 S.E. (2d) 187; Monteith v. Harby, 190 S.C. 453, 3 S.E. (2d) 250; Dunbar v. Fant, 174 S.C. 49, 176 S.E. 866; Parker v. Mayes, 85 S.C. 419, 67 S.E. 559; Mack v. Plowden, 217 S.C. 112, 60 S.E. (2d) 57; Lowry v. Atlantic Coast Line R. Co., 92 S.C. 33, 75 S.E. 278.
We are of opinion that the Order appealed from should be affirmed, and it is so ordered. Affirmed.
OXNER, LEGGE, MOSS and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336949/ | 122 S.E.2d 43 (1961)
Wanda Carroll ARMSTEAD, an Infant, etc., Who Sues by Raymond Armstead, Her Next Friend,
v.
Henry H. HOLBERT, Otho Schoolcraft and Conlon Baking Company, a Corporation.
No. 12076.
Supreme Court of Appeals of West Virginia.
Submitted April 19, 1961.
Decided July 3, 1961.
Concurring Opinion September 6, 1961.
*44 Lane & Preiser, John J. Lane, Stanley E. Preiser, Charleston, for plaintiff in error.
Simpson, Sloan & Baughan, Spencer P. Simpson, Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Robert K. Kelly, Charleston, for defendants in error.
BROWNING, Judge.
Plaintiff, Wanda Carroll Armstead, was seriously injured on April 7, 1957, when she was struck by an automobile driven by the defendant, Henry H. Holbert. Plaintiff and a friend were proceeding in a northerly direction along the west side of U. S. Route 119, a two-lane highway, in the Town of Clendenin when they came to the intersection of Elm Street. Traffic was stopped in the west lane of Route 119, the defendant, Otho Schoolcraft, stopping his bread truck, owned by the defendant, Conlon Baking Company, a corporation, approximately five feet from the southwest corner of Elm Street. As plaintiff and her friend reached the corner, their desire to cross Route 119 being apparent, the defendant, Schoolcraft, "looked towards Elk River and I also looked in my rear view mirror" *45 and then made a waving motion with his right hand from right to left. The girls paused 10 to 15 seconds, crossed in front of Schoolcraft's vehicle and into the other lane of traffic where they were struck by Holbert's automobile approaching from the opposite direction. There is a conflict in the evidence as to whether the girls were running or walking. The girls, while admitting that they knew they should have looked in the direction from which the Holbert automobile was coming, after reaching the center of the road, did not remember whether they did so, stating that "we took it for granted that when he motioned the road was clear." The defendant, Schoolcraft, had been delivering bread for his employer, Conlon Baking Company, to Spencer, West Virginia, and was returning to its plant in Charleston along his customary route, and with one more stop or call to make, at the time of the accident. The defendant, Holbert, testified that: The first time he saw the girls was when they came from behind one of the cars stopped in the opposite lane of traffic, when he was twenty or twenty-five feet from them; he was proceeding at approximately twenty miles an hour; the girls ran an additional six or seven feet before he struck them; and, they were struck slightly to the right of the center of his automobile. The Holbert automobile left skid-marks twenty-seven feet in length. Plaintiff and her friend were thirteen years of age at the time of the accident.
The plaintiff instituted her action against Holbert, Schoolcraft and Conlon Baking Company, in the Common Pleas Court of Kanawha County, and a jury returned a verdict in her favor, and against all three defendants, in the amount of $65,000.00. Motions to set aside the verdict in behalf of the defendants were overruled and judgment was entered thereon.
During the course of the trial, plaintiff introduced the testimony of a gynecologist who testified that, due to encroachment of the pelvic canal, plaintiff, in giving birth, "the probability * * * is that she may have to be delivered by Caesarean section." On cross-examination, in response to questions as to the degree of certainty whether such would be the case replied:
"A. We can't say with any certainty because I don't know the structure or the type of man this girl is going to marry. * * * [If she marries a man of large stature] * * * she will have a good size baby and we can state with a pretty good probability if she has a large infant, I will tell you she will have a tough time.
"Q. And of course no one knows whether she will bear large children or not? A. No. We can't prognosticate that.
"Q. That is in the realm of plain speculation? A. Only the Lord knows that."
A motion by the defendants, Schoolcraft and Conlon Baking Company, to strike the doctor's testimony on the ground that it was too speculative was overruled.
On individual petitions therefor, writs of error were granted by the Circuit Court of Kanawha County to the Court of Common Pleas of that county and on March 2, 1960, the circuit court, indicating the reason therefor in a written memorandum filed and made a part of the record in the case, reversed such judgments and remanded the case for a new trial as to all defendants, to which judgment this Court granted a writ of error on October 3, 1960.
Errors assigned in this Court are the actions of the circuit court in holding that: (1) Schoolcraft was not acting within the scope of his employment with the defendant, Conlon Baking Company, in giving the signal to cross the highway and that Conlon Baking Company was entitled to a directed verdict on the evidence; (2) the admission of the testimony of Dr. Seltzer was too speculative and therefore prejudicial error as to Schoolcraft; (3) the defendant, Holbert, was likewise prejudiced *46 by the admission of Dr. Seltzer's testimony, and was entitled to have the judgment as to him reversed on that ground, even though he had not assigned such as error, since his rights were interdependent with those of Schoolcraft; and (4) in indicating, though not passing upon the point directly, that the argument of plaintiff's counsel on the question of damages was improper wherein counsel argued, and placed on a blackboard, figures representing a per diem sum as a basis for an award to the plaintiff of damages for pain and suffering.
Upon the holding of this Court in the case of Crum v. Ward et al., W.Va. 122 S.E.2d 18, the judgment of the Circuit Court of Kanawha County, in its capacity of an intermediate appellate court, reversing the judgment of the Court of Common Pleas of Kanawha County, setting aside the verdict for the plaintiff and granting the defendants a new trial, must be affirmed. The 5th Syllabus Point of that case is controlling. It reads: "In an action for damages for personal injuries, an argument of counsel to the jury based on a mathematical formula, or fixed-time basis, suggesting a money value for pain and suffering, is not based on facts, or reasonable inferences arising from facts, before the jury, and arising from facts, before the jury, and constitutes reversible error." This question was properly raised by motion of counsel for Conlon and Schoolcraft prior to the beginning of final arguments by counsel in which he objected "to the placing on the blackboard of any figures concerning loss of wages, life expectancy, pain and suffering and other attempts to break down pain and suffering into dollars and cents." Counsel for the plaintiff then stated: "I want the court to rule on that." "The court: overruled. [exception]." After the final argument of counsel for the plaintiff, Mr. O'Farrell, counsel for Conlon and Schoolcraft, moved the court "to declare a mistrial" upon that and other grounds and the court overruled his motion, to which action he excepted.
It is not necessary to re-cite the extensive authority cited in the Crum case but reference is here made to the majority opinion by Judge Leslie E. Given and the dissenting opinion for excellent dissertations on both sides of this controversial issue. President Frank C. Haymond wrote the dissenting opinion, in which the writer joined.
Since this case is going back for a new trial, some of the other assignments of error will be briefly discussed. This Court is in agreement with the reasoning of the Circuit Court of Kanawha County that the testimony of Dr. Seltzer, being speculative, was inadmissible and that to permit the jury to hear it was reversible error as to all defendants even though there was no specific objection to it by the defendant Holbert. A majority of the Court is also in agreement with the circuit court, wherein it found, and which finding is cross-assigned as error in this Court, that the statement of counsel for the plaintiff in the presence of the jury that a "fund" had been set up to take care of any verdict that might be returned against Holbert, was not reversible error, inasmuch as such statement was provoked by the argument of counsel for Holbert from which a clear inference could be drawn that Holbert was not covered by insurance. The remarks of both counsel were irrelevant to the issue of liability and it is hoped that this error will not recur when this case is re-tried. It would seem that the time has come when counsel for both plaintiffs and defendants should refrain from bringing this immaterial and prejudicial question into the trials of personal injury and fatal cases resulting from the operation of motor vehicles. See Graham v. Wriston, W.Va., 120 S.E.2d 713.
It has not been considered necessary in this opinion to state in detail the injuries suffered by plaintiff and the conclusions of the medical witnesses as to the permanency thereof and, since there is to be a new trial, perhaps the excessiveness of the verdict should not be a subject of discussion in this opinion. However, a majority of the Judges of this Court are in agreement with the circuit court that while "* * * the *47 verdict was probably too large, * * *", it could not be said to be excessive as a matter of law and would not be set aside upon the ground of excessiveness alone.
It is the view of this Court that the testimony in this case presented jury questions as to the liability of all of the defendants and as to the contributory negligence of the plaintiff. The circuit judge in his opinion found that jury questions were presented as to all of these issues except as to Conlon and he found it was reversible error not to direct a verdict for that defendant. The cases in this jurisdiction as well as elsewhere are multitudinous upon the question of whether the negligence of a servant in the operation of the master's motor vehicle is within or outside the scope of his employment. It is not enough, of course, to show that the act was done during the period covered by the employment. 5A Am.Jur., Automobiles, § 631, et seq.; 60 C.J.S. Motor Vehicles § 437, et seq. However, in Weismantle v. Petros, 124 W.Va. 180, 19 S.E.2d 594, 597, this Court, quoting from Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368, said: "There is a rebuttable presumption that the driver of another's car is acting about the owner's business. * * *."
We find no case in this jurisdiction, nor are we cited to any upon the precise question presented as to the liability of the defendant Conlon. There is little authority elsewhere, but Conlon relies upon Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 P. 718, and Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073. The circuit court cites these two cases as authority for its ruling upon the liability of Conlon. Inherent in any principle of law laid down by an appellate court are the facts in which it was conceived. These were the facts in the Harris case: The single defendant operated streetcars upon the streets of Kansas City, Missouri, under a franchise. The plaintiff was injured at the intersection of Walnut and Twelfth Streets, on both of which defendant maintained double railway tracks. "On the south railway track on Twelfth Street several street cars were standing, headed eastward. One of these cars was projected almost its full length into Walnut street. Behind it a second car was standing so that its front end was in the sidewalk lane where pedestrians should cross on the west side of Walnut. According to plaintiff's testimony, when she failed to locate a traffic policeman she happened to notice the motorman on defendant's second car. He nodded his head and beckoned to her to cross, and she started to do so. She passed the front of this second street car and at the rear of the one ahead of it. The space between these two street cars was about four feet. The moment after she passed between these two street cars and took one step beyond, she was struck by another of defendant's street cars going west. * * *" A city traffic officer was on duty at the intersection, but at the moment plaintiff was injured, according to his testimony, "he was helping to push a stalled motor car off the sidewalk lane." The defendant was charged with negligence because of the acts of both of its motormen, "the motorman who had beckoned her" in that he did not warn her of the approaching streetcar on the west-bound track, and "the failure of the motorman on the west-bound street car to ring a bell or give other warning of his coming, and the operation of the westbound car at a high and dangerous rate of speed." There was a general verdict for the plaintiff and the jury answered at least eight "special questions."
The trial court instructed the jury "that it was the duty of plaintiff to look and listen for the oncoming west-bound street car, and, if she failed to do so she would be guilty of negligence; but that she would not be guilty of contributory negligence if the motorman of the east-bound street car signaled her to proceed across the street and if she relied upon such signal under the belief that there was no danger from an approaching west-bound car, unless such a danger was obvious to a prudent person." *48 The appellate court said the motorman's signal "could mean no more than an assurance that he would not start his car and catch her while she was passing between his car and the one four feet in front of it. Such was plaintiff's own testimony of what she understood by his signal." Upon that point the court was entirely correct for the plaintiff did testify "* * * I looked up and glanced at the motorman to see that he didn't start up and catch me between those street cars and he was motioning to go on." The court said further: "The motorman was in no better position to observe the west-bound traffic than she was. He was standing on the higher level of the floor of the street car while she was on the ground level, but the street car four feet in front cut off his range of vision towards the east just as effectively as it did hers. Therefore some instruction formulated to include that point should have been given as requested." The court then held that it was reversible error not to give such an instruction. It was against that background that the court made the following statement which was relied upon by Conlon and which, in substance, was carried into the 1st Syllabus Point of the case: "His [the signalling motorman] duty was to operate his own street car in a proper way so as not to injure pedestrians or other traffic having the same right to use the street as the defendant corporation. He had no duty to protect her against injury from other street cars on parallel tracks. The defendant company could not confer such authority and responsibility upon its motorman. * * * It would have been a usurpation of the police powers of the city government itself for defendant to have authorized its motorman to undertake that duty. The city had its own traffic officers to perform that function, and while plaintiff could not locate that functionary when she wished to cross the street, he was on duty nevertheless." The court then proceeded to discuss the contributory negligence of the adult pedestrian, apparently as against the primary negligence of the second or nonsignalling motorman, and found as a matter of law that she was guilty of such negligence as contributed proximately to her injury. Actually, the jury had made such a finding, "Special Question No. 9." being: "Did plaintiff at any time before being struck, look for an approaching car from the east? Answer No." It would appear from the views stated in the court's opinion that if the signalling motorman had been a defendant he would not have been found guilty of negligence in the light of the plaintiff's clear understanding of the significance of what he meant by the signalling motion which he gave to her. If the court intended to absolve the defendant from liability on the ground that the act of the signalling motorman was without the scope of his employment it would have been easy to have said so. It would have been unnecessary to determine: (1) That the plaintiff understood from the motorman's signal that he meant only thereby that he would not "start up and catch me between those street cars."; (2) or that "the motorman was in no better position to observe the west-bound traffic than she was."; (3) or that it was reversible error not to give an instruction in behalf of the defendant with regard to the comparative vision of the motorman and the plaintiff, and the fact that the streetcar four feet in front of the motorman "cut off his range of vision towards the east just as effectively as it did hers." The only applicable syllabus point commingles both principles so that it is impossible to determine accurately upon which the case actually turned: "Street RailroadsInjury to PedestrianRight to Rely on Signal from Motorman. The motorman of a street car has neither authority nor duty to direct pedestrian traffic at an intersection of city streets on which are double railway tracks. A signal given by him to a pedestrian that she could safely cross in front of his standing car did not carry with it any assurance upon which she could rely that after passing between the front of his street car and the rear of another street car four feet ahead of *49 it she could safely cross the parallel track upon which another street car was moving in the opposite direction."
In Devine et al. v. Cook and W. S. Hatch Co., Inc., 3 Utah 2d 134, 279 P.2d 1073, 1074, the Devine passenger automobile collided with the Cook passenger automobile in an intersection and actions were instituted by Devine and two female guest passengers against Cook and the Hatch Company, the latter for the alleged negligence of its tank truck driver in allegedly signalling the driver of the Cook car to enter the intersection where it collided with the Devine car. Briefly, these are the facts: Metcalf, the truck driver, and Devine were proceeding north on highway 91, which at the point of collision has four lanes, while Cook was proceeding east on 1500 South Street, a two lane highway running east and west; north-south traffic has the right of way and there are stop signs on 1500 South Street on both sides of highway 91; as Metcalf approached the intersection he gave a signal indicating his intention to make a left-hand turn into 1500 South Street, and brought his vehicle to a complete stop at the intersection; Metcalf's truck, travelling in the inner lane, passed the Devine car, travelling in the outer lane, just before he reached the intersection; noting that the Cook car was stopped at the stop sign on South Street and observing that his truck and another truck following him, and belonging to the same company, could not complete a left-hand turn into South Street until the Cook car had cleared the street, as stated in the opinion "in some manner which is not entirely clear from the evidence, signalled or motioned the Cook car to proceed."; and thereupon the Cook car proceeded east across highway 91, the Devine car continued to proceed north and they collided in the intersection. The three actions were apparently tried to a single jury which returned a verdict against all three plaintiffs and in favor of both defendants. The judgment was reversed and the verdict set aside as to all plaintiffs and a new trial awarded against the defendant Cook upon the ground, among others, that several instructions of the trial court accentuated the duty of the plaintiffs and minimized the duty of the defendants. Apparently the phrase "if any" was used too often in defendants' instructions and not often enough in plaintiffs' instructions.
However, the court held that it was error not to grant the motion of W. S. Hatch Company, Inc., for a directed verdict and the appellate court dismissed the action as to that defendant. The court said: "* * it appears from the record that the plaintiffs by a preponderance of the evidence, or by any evidence, failed to prove that the defendant Hatch committed any act of negligence which caused or contributed to the cause of the accident. It is to be recalled that the only act or omission on the part of Hatch Co. was that the driver of the Hatch vehicle * * * by signal or some motion directed Mrs. Cook to proceed. We do not believe that it is the law, that the giving of such a signal was an act of negligence on the part of the driver. All the signal amounted to, if given, was a manifestation on the part of Metcalf to Mrs. Cook that as far as he was concerned Mrs. Cook could proceed. At the most all he did was to signal to Mrs. Cook and indicate, as far as Metcalf was concerned, he yielded her the right-of-way. She could see that he was on the left side of the cab of his truck and therefore in no position to see, or to give her any assurance, that there was no traffic approaching upon the right of his truck from the rear."
It is apparent from the statement of the case in the opinion that the driver of the Cook car was in a better position to observe the Devine car than was the driver of the truck and, in accord with apparently all of the authority on the subject, Hatch would not be liable. But, the court did not stop there. The opinion continued: "We approve the rule laid down in the case of Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 P. 718, 720, in which the Court states: * * *"; and thereafter quotes from that case the statements that *50 are heretofore contained in this opinion to the effect that there was no duty upon the operator of the streetcar to protect pedestrians from streetcars on parallel tracks, and that it would have been "a usurpation of the police powers of the city government itself for defendant to have authorized its motorman to undertake" the duty of directing streetcar traffic or signalling the plaintiff "that she could cross the street in safety." Since nothing further is said in the opinion or any cases cited with regard to the act of the truck driver being without the scope of his employment, it must be assumed that the Harris case was not cited for that purpose and perhaps not interpreted in that manner. Later in the opinion is this cautious reservation: "In concluding that the Trial Court committed error in not granting the defendant W. S. Hatch Company, Inc. motion for a directed verdict, we do not mean to say nor to be understood as saying, that the decision reached in this case would be or should be applied to all cases involving signals or motions given by drivers of vehicles to others." There is no headnote upon the question of whether the driver was acting outside the scope or course of his employment, and that question is not mentioned in the editorial synopsis of the case preceding the headnotes.
It seems clear from the cases cited in an annotation beginning at page 252 of 48 A.L.R.2d that when the driver of a vehicle negligently signals to a following driver that it is safe to pass and injury results from the driver's negligence the master may be liable for the act of the servant. Haralson v. Jones Truck Lines et al., 223 Ark. 813, 270 S.W.2d 892, 48 A.L.R. 2d 248, the lead case of the annotation; Judt v. Reinhardt Transfer Company, 17 Ohio Supp. 105; Rodi v. Florida Greyhound Lines, Inc., Fla.1952, 62 So. 2d 355. In the Haralson case the action for wrongful death was against Jones Truck Lines, its driver, Jack Fulfer, and Clifton Duvall, the driver of the other truck involved in the accident. The trial court directed a verdict for all three defendants, but the Supreme Court reversed the decision and remanded the case stating that jury questions were presented by the evidence as to all defendants. The 7th Headnote reads [223 Ark. 813, 270 S.W.2d 893]: "One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." In the opinion is this statement: "Hence this defendant and his employer insist that they violated no duty owed to the decedent since their vehicle remained continuously on its own side of the highway. This argument would be highly persuasive were it not for the fact that Fulfer signalled the trailing vehicle to pass him. We think this fact to be of controlling importance in the case."
The case of Sweet v. Ringwelski, Crawford Door Sales Co., and Thompson, 362 Mich. 138, 106 N.W.2d 742, 744, was decided January 9, 1961. The opinion in that case was, of course, not available to the judge of the circuit court when he considered the instant case upon writ of error, nor to counsel when the case was briefed and argued in this Court. These are the facts in the Sweet case: Plaintiff, a ten year old girl, walking east along an eastwest street came to an intersection with a north-south street, started to cross, and reached the center thereof when she saw north bound vehicles approaching from her right and stopped to wait for them to pass. The first such vehicle was a truck, owned by defendant Crawford Door Sales Co., and driven by Thompson, its employee. It was proceeding in the north bound lane nearest the center and when it stopped at the crosswalk other vehicles stopped behind it. "Defendant Thompson waved to plaintiff to cross in front of him. She did so. When she had passed in front of the truck and taken two or three steps beyond it she was struck by the automobile driven by the defendant Ringwelski which was also traveling north in the lane immediately east of the truck which it was undertaking to pass." The trial court directed a verdict for defendant Thompson and his corporate *51 employer, and the jury returned a verdict in favor of the defendant Ringwelski. In a unanimous decision the Supreme Court of Michigan reversed and remanded the case for a new trial as to all defendants. The plaintiff was granted a new trial as to Ringwelski because the trial court committed prejudicial error in giving certain instructions to the jury. The court also held that the evidence presented questions of fact as to the negligence of the defendants Thompson and the Crawford Company. Chief Justice Dethmers, who wrote the opinion for the court, said:
"Defendants Thompson and Crawford Company, for support of their claim of no negligence on their part, rely on Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073. Involved in that case were two adult motorists. The one who was signalled to proceed had as good or better opportunity than the other to observe the approach of a third vehicle. Whatever validity there may have been, under the facts of that case, to the court's view that the defendant's waving motion should, at most, and as a matter of law, be held to amount only to a manifestation that the waver would wait for the other and not an assurance of safety with regard to other vehicles, such are not the facts here. Plaintiff was a 10-year-old girl. Her vision of the Ringwelski car may have been obstructed by the truck when Thompson waved to her. She testified that she proceeded to the point of impact because she had relied on what she considered directions from an adult and that she would not otherwise have gone on until the traffic had cleared. We do not believe that the court should have determined, as a matter of law, the intended meaning of Thompson's waving action and, more important, the thought that it might reasonably have been anticipated would be conveyed thereby to the 10-year-old girl. These, it seems to us, were questions of fact for the jury. The answers would be determinative of the question of Thompson's negligence."
The evidence as to the negligence of Schoolcraft upon which the jury returned its verdict against him and Conlon is much stronger than in the Sweet case. Schoolcraft was facing in the direction from which the Holbert car was approaching and, while he stated on direct examination that the Holbert car was about twenty-five feet away when he "first saw it", he was confronted on cross-examination with a written signed statement which he was alleged to have made, and which he admitted signing on January 1, 1958, about nine months after the accident, which contained this language: "When I first saw the car which hit the girls, it was just making his turn from Rte. 14 into Rte. 119 and starting to go north. He had just come in sight when I first motioned to the girls. I cannot estimate his speed but it seemed to me that he was over the speed limit." It was established by the evidence that the distance from Schoolcraft's truck to the intersection of Routes 14 and 119 was approximately three hundred feet.
In this jurisdiction and elsewhere the rule is almost universal to the effect that the contributory negligence of an infant under fourteen years of age is, except in rare instances, a question of fact for a jury. Pierson v. Liming, 113 W.Va. 145, 167 S.E. 131; Prunty v. Tyler Traction Co., 90 W.Va. 194, 110 S.E. 570; Vol. 1, The Law of Automobiles, Va. and W.Va., § 34. There was no evidence introduced in the trial of this case that would take it out of the general rule.
The judgment of the Circuit Court of Kanawha County reversing the judgment of the Court of Common Pleas of Kanawha County, setting aside the verdict and remanding the case for a new trial, is affirmed in accordance with the principles expressed herein.
Affirmed.
BERRY, Judge (concurring in part and dissenting in part).
*52 I concur in the result of the majority opinion in this case, but dissent to the holdings in the majority opinion that the waving by the defendant, Schoolcraft, to the plaintiff to pass in front of his stopped truck, which was owned by the defendant, Conlon Baking Company, consisted of a question of fact as to whether this act was within the scope of his employment to be considered by the jury; that the verdict was not excessive, although a new trial would be had and the evidence may be different in another trial; and, that there was no evidence introduced in the trial of this case which would take it out of the general rule with regard to contributory negligence on the part of the infant plaintiff.
The defendant, Schoolcraft, was employed by the defendant, Conlon Baking Company, to drive its truck and to sell its products at the time the infant plaintiff was struck by the defendant Holbert's automobile. Schoolcraft was neither driving the truck nor selling any products at the time of the accident. He had stopped the truck on State Highway No. 119 near its intersection with State Highway No. 4 at Clendenin, approximately 300 feet from said intersection. After Schoolcraft motioned to the plaintiff to proceed in front of his truck, it is stated in the majority opinion that she waited about ten or fifteen seconds, then crossed in front of the truck and into the other traffic lane where she was struck by Holbert's automobile which was approaching from the opposite direction. The plaintiff was struck by the right front of Holbert's automobile. Assuming Holbert's automobile was at the intersection of Routes 119 and 4 at the time Schoolcraft waved or signalled the plaintiff to pass in front of his truck, as indicated in the record, there would have been ample time for the plaintiff to have crossed the highway if she had proceeded to cross when Schoolcraft directed her to. However, she waited ten or fifteen seconds, then attempted to cross at a time when the Holbert vehicle had covered the 300 feet, and was struck by it.
The Circuit Court of Kanawha County, upon a writ of error granted by it, held that Schoolcraft was acting outside the scope of his employment when he waived or signalled the plaintiff to pass in front of his truck, and that the Conlon Baking Company was not liable for such action on the part of its employee Schoolcraft. I would affirm the Circuit Court on this point.
There are few cases in this country dealing with similar circumstances such as are involved in the case at bar. In the recent case of Sweet v. Ringwelski, Crawford Door Sales Co., and Thompson, 362 Mich. 138, 106 N.W.2d 742, which involved a ten year old girl crossing a street after having been waved by a driver of a truck to do so, the question of negligence on the part of the truck driver and his employer was submitted to the jury for determination, but apparently the question of scope of employment on the part of the truck driver was not raised.
In the case of Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 P. 718, where a streetcar motorman waved or signalled to an adult plaintiff to walk in front of his streetcar and she was struck by a vehicle coming from the opposite direction, it was clearly indicated that the act on the part of the motorman in directing the plaintiff to pass in front of his streetcar was outside the scope of his employment. It was held that the employer, the streetcar company, could not have conferred such authority and responsibility on its motorman employee, that it would have been a usurpation of the police powers of the municipality for the defendant streetcar company to have authorized its motorman to undertake the duty of directing pedestrial traffic. It was held in the case of Devine et al. v. Cook and W. S. Hatch Co., Inc., 3 Utah 2d 134, 279 P.2d 1073, involving two adult motorists, that the one signalled has as good, if not better, opportunity to have observed the approach of the third vehicle than the one giving the signal, and therefore there was no liability *53 incurred on the part of the defendant by his signalling.
The weight of authority in this country is to the effect that there is ordinarily no liability on the part of an employer incurred in his driver's giving assistance to others. See 51 A.L.R.2d at page 42, § 9. In cases in the minority where an employer was held liable, usually to third parties, most of the liability resulted from the manner in which the driver parked the vehicle or maneuvered it, acts not performed by Schoolcraft.
Under the facts of the case at bar, I am of the opinion that the Conlon Baking Company would not be liable under any circumstances, because the act of the defendant, Schoolcraft, in waving to the plaintiff to pass in front of his truck was outside the scope of his employment. It was tantamount to directing traffic, and he was not employed by the Conlon Baking Company for any such purpose. It is only a matter of degree as to whether he was directing traffic, while standing in a parked truck, or whether he was standing in the middle of the highway, and certainly under no stretch of the imagination could the Conlon Baking Company be held liable for any actions on the part of Schoolcraft had he been standing in the middle of the highway directing traffic or waving pedestrians across the highway.
Then, too, notwithstanding the statements contained in the majority opinion that the plaintiff was thirteen years of age, she was nearly fourteen. The accident occurred in April, 1957, and she was fourteen in July, 1957. She was in the eighth grade at school, made high grades, was an intelligent girl, and had considerable experience walking along and crossing the highways in and around Clendenin. She was familiar with the highway and the flow of traffic at the scene of the accident. She waited ten or fifteen seconds after Schoolcraft waved or signalled her to cross the highway and did not look to ascertain whether or not a vehicle was approaching from the opposite direction. She was asked the question that if she had looked could she have seen the automobile which was driven by the defendant Holbert, and her reply was, "Yes, sir". Although she stated that she did not look to see if a car was approaching, the trial court sustained an objection to the question and answer referred to above, and the jury was not allowed to consider it. Inasmuch as the plaintiff in this case was almost fourteen years of age, had better than average intelligence and training than a fourteen year old girl, she could not have been placed in the same category as the ten year old infant involved in the Sweet case, but, should be treated as the adult involved in the case of Devine v. Cook et al., supra, which was distinguished by the Michigan Court in the Sweet case.
The question of intelligence and the care and caution the plaintiff should have exercised, considering all the facts relative to her age, experience, etc. in the trial of this case, should be considered in connection with the question of contributory negligence. Jones v. Ambrose, 128 W.Va. 715, 38 S.E.2d 263. It was held in the case of Schoonover v. Baltimore & O. Railroad Co., 69 W.Va. 560, 73 S.E. 266, 268, L.R.A. 1917F, 1, that an infant eleven years of age who attempted to cross a railway crossing without looking to ascertain whether or not a train was approaching was guilty of contributory negligence as a matter of law. It was stated in that case that "Numerous decisions declare that in cases of injury occurring upon highways and railroads failure of a child to exercise such care, caution, and foresight as is ordinarily possessed and exercised by children of his age will bar recovery for an injury thereby occasioned." The Court further stated in the Schoonover case, 69 W.Va. at page 568, 73 S.E. at page 269, the following: "We have no doubt the plaintiff knew the danger of going upon a railroad track without looking for trains. His home was in Clay county on the line of a railroad and he was in Huntington, at the time of the injury, attending the spring term of school *54 at Marshall College. His situation and engagement at the time indicate possession of the intelligence and discretion of boys of his age, thousands of whom daily cross railroads, trolley lines, and highways, exercising discretion and prudence requisite to their safety. Hence the trial court properly held him guilty of negligence as matter of law."
I am therefore of the opinion that it was reversible error for the trial court to refuse defendant's instruction number 11, wherein the jury would have been told that the plaintiff was capable of being guilty of contributory negligence as a matter of law under the evidence in the case at bar, and that if they found from a preponderance of the evidence that she was negligent at the time of the accident and that such negligence proximately contributed to her injuries, she could not prevail.
Regardless of whether or not the verdict of $65,000 was excessive, I would express no opinion with regard to this matter at this time, because the evidence may be different in another trial of this case. Cook v. Virginian Railway Co., 97 W.Va. 420, 125 S.E. 106; Leftwich v. Wesco Corp., W.Va., 119 S.E.2d 401.
For the reasons stated herein, I would affirm the Circuit Court of Kanawha County in holding that the Conlon Baking Company was not liable as a matter of law; that the presumption that the plaintiff could not be guilty of contributory negligence has been rebutted; and that no ruling as to whether or not the verdict was excessive should be made at this time.
I am authorized to say that Judge GIVEN joins in this concurring and dissenting opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336968/ | 203 Va. 182 (1961)
JOSEPH V. HANBURY
v.
COMMONWEALTH OF VIRGINIA.
Record Nos. 5310, 5311, 5313.
Supreme Court of Virginia.
November 27, 1961.
Present, All the Justices.
1. Under ordinance of the city of Lynchburg which levied a tax on cigarettes to be paid by wholesaler or dealer, each package sold had to be marked with a stamp or the printed mark of a meter machine. Defendant sold cigarettes through vending machines, and to avoid paying the tax made and used a stamp with which he imitated the meter mark of a particular wholesaler. He was convicted under the relevant statutes for possessing this stamp with intent to forge, for forging the mark on cigarettes found in his home, and for forging and uttering cigarettes in his machines bearing this mark. He argued that since the ordinance defined the offense and fixed a penalty by way of fine he could not be proceeded against under the statutes. But his actions constituted forgery under Code 1950, section 18.1-96, and the city was without power to convert the felony into mere misdemeanor. Its ordinance was invalid insofar as it conflicted with the statute.
2. There was no merit to defendant's argument that the mark made by the stamp was not such a writing as to prejudice another's rights. Within the rules relating to forgery the writing may be made by any means. And the city was by use of the mark deprived of the tax payable to it on the cigarettes defendant sold, its rights being accordingly prejudiced.
3. Since the stamp was an instrument designed for forgery, which defendant admitted making and having in his possession with intent to defraud, defendant was clearly guilty of felonious possession under Code 1950, section 18.1-95.
Error to judgments of the Corporation Court of the city of Lynchburg. Hon. S. DuVal Martin, judge presiding. The opinion states the case.
William Rosenberger, Jr. (Edward A. Marks, Jr.; Robert G. McCullough, on brief), for plaintiff in error, Joseph V. Hanbury.
D. Gardiner Tyler, Assistant Attorney General (Frederick T. Gray, Attorney General, on brief), for the Commonwealth.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
In February, 1961, there were returned in the Corporation Court of Lynchburg twenty-two indictments against the defendant, Joseph V. Hanbury. In one he was charged with having in his possession a rubber stamp with intent to use it in forging and falsely making a certain impression upon packages of cigarettes, stating that the tax thereon due the city of Lynchburg had been paid, when in fact it had not been paid. Two of them charged him with forging on certain packages of cigarettes a stamp purporting to reflect that the tax due the city on each package had been paid when in fact it had not been paid. Nineteen of them charged him with forging and uttering and attempting to employ as true such stamp on packages of cigarettes in nineteen vending machines located at various places in the city.
The defendant entered pleas of not guilty to all the indictments and by agreement they were heard together before a jury. At the conclusion of the Commonwealth's evidence the defendant moved to strike it out on the ground that it was not sufficient to convict. His motion was overruled, he offered no evidence, and the jury returned a verdict of guilty in each case, fixing his punishment at two years in the penitentiary on the possession charge, six months in jail on each of the two indictments charging forgery, and twelve months in jail on each of the nineteen indictments charging forgery and uttering. Defendant's motions to set aside the verdicts were overruled and he was sentenced according to the verdicts. We granted writs of error in all of the cases and it was stipulated that only the records in the three cases numbered above should be printed and the decisions rendered in them would control the decisions of the others.
The defendant assigned error to the refusal of the court to strike the Commonwealth's evidence and to set aside the verdicts on the ground that they were contrary to the law and the evidence. The evidence presented by the Commonwealth was to the following effect: *184
An ordinance of the city of Lynchburg levied a tax of three cents a package on the sale of each package of twenty cigarettes, to be paid by the seller (retailer) if not previously paid by the dealer (wholesaler). The seller was required to buy the necessary stamps at the office of the city collector and affix them to each package of cigarettes before offering them for sale, if that had not previously been done by the dealer; but the seller or dealer was also allowed to use a stamp meter instead of gummed stamps. The stamps, or the printed markings of a meter machine, were required to be placed on each package of cigarettes so as to be readily visible to the purchaser.
The defendant was engaged in the business of selling cigarettes through vending machines in the city. To avoid the payment of this tax he devised and made a rubber stamp in imitation of the stamp made by a meter machine used by Hill City Tobacco Company, a dealer, which carried the serial number 26322 assigned to that company by the city. The stamp impression made by the meter used by that company is indicated at the left below, and the impression made by the rubber stamp devised and used by the defendant is shown at the right.
Graphic Omitted
When the defendant was arrested on July 21, 1960, the police officers found in the basement of his home a rubber stamp which made the impression indicated at the right above, together with ink pads and cans of ink. There they found also 6600 packages of cigarettes bearing the impression of this rubber stamp. They also found 1500 packages similarly marked in the defendant's station wagon. In the nineteen vending machines operated by the defendant in various places in the city the police officers found a total of 13,475 packages of cigarettes bearing the impression of this rubber stamp.
Defendant admitted to the police officers that he had bought the parts for making this rubber stamp and had glued them onto the face of the wooden part of the instrument. He had been using this stamp, he said, for four or five months. In addition to the stamp in question, three others were found in the basement which were incomplete. *185 The defendant said he had previously used these but they had become unglued. He was asked why he had made and used these stamps. He replied, "Competition has been pretty tight with cigarettes."
Subsequent to January 1, 1960, the defendant paid no taxes to the city on the sale of cigarettes, although the Hill City Tobacco Company (dealer) had sold to him approximately $2000 worth of cigarettes each month of the calendar year 1960, upon which in most instances the tax had not been paid by that company, as permitted under the ordinance. In such case, as stated, the seller was required to pay the tax and stamp the package, if sold within the city.
The defendant contends, first, that the city ordinance both created the offense and fixed the punishment, and that the penalty fixed by the ordinance is the only penalty that may be exacted.
The city ordinance, paragraph 10, provides that it shall be unlawful for any person falsely or fraudulently to "make, forge, alter or counterfeit any stamp or the printed markings of any meter machine". Paragraph 15 of the ordinance provides that any person violating any of its provisions shall be punished by a fine of not less than $25 nor more than $500. The ordinance further provides that if any paragraph, sentence or clause of it be invalid, such invalidity shall not affect any other valid provision.
The Commonwealth correctly answers that by the law of the Commonwealth the crime of forgery is a felony, punishable by confinement in the penitentiary; and the city was without power to convert it into a misdemeanor and punish it by a fine.
Section 18.1-96 of the Code of Virginia provides, inter alia, that if any person forge any writing (with exceptions not here material) to the prejudice of another's right, he shall be confined in the penitentiary not less than two nor more than ten years, or in jail not less than six months nor more than twelve months. The crime is therefore state-wide a felony, Code | 18.1-6;
Fletcher Commonwealth, 163 Va. 1007, 175 S.E. 895, and no person may be tried therefor except on an indictment or presentment found by a grand jury, unless waived in writing, Code | 19.1-162.
Section 1-13(17) of the Code provides that "Where the council or authorities of any city * * * are authorized to make ordinances, * * * it shall be understood that the same must not be inconsistent with the Constitution and laws of the United States or of this State."
"An ordinance in conflict with a state law of general character and state-wide application is universally held to be invalid." 37 Am. Jur., Municipal Corporations, | 165, p. 787. Carlton Boudar, 118 Va. *186 521, 88 S.E. 174; Lynchburg Dominion Theatres, 175 Va. 35, 7 S.E.2d 157, 126 A.L.R. 1358; King Arlington County, 195 Va. 1084, 81 S.E.2d 587.
The distinction between the present cases and those in which the legislature has given the municipality authority to deal in the field of misdemeanors is too obvious to require discussion. See Shaw City of Norfolk, 167 Va. 346, 189 S.E. 335; Allen City of Norfolk, 195 Va. 844, 80 S.E.2d 605, 196 Va. 177, 83 S.E.2d 397 (on rehearing).
It is not true that the Lynchburg ordinance created the offense for which this defendant has been prosecuted. It only created a condition out of which the offense arose by levying the tax and requiring the application of the stamp to the packages of cigarettes; but when the defendant committed an act with respect to the requirement of the ordinance which the State law denominates a forgery, prosecution therefor is exclusively a State matter and the penalty prescribed by the ordinance is a nullity. It is not a case where a specific statute takes precedence over a general statute relating to the same offense. It is a case where a general State statute controls as against a later city ordinance in conflict with it.
"* * * It is an elementary rule of statutory construction that, 'The language of a statute may be so broad, and its object to general, as to reach conditions not coming into existence until a long time after its enactment.' * * *." Smith Commonwealth, 190 Va. 10, 17, 55 S.E.2d 427, 430.
City of Cleveland Betts, 168 Ohio State 386, 154 N.E.2d 917, is in point. The Constitution of Ohio gave municipalities authority to exercise all powers of local self-government and to adopt such local police regulations as were not in conflict with general laws. The question was whether the city could enforce an ordinance making the carrying of concealed weapons in the city a misdemeanor in the face of a State statute on the subject which made the same offense a felony. It was held that the ordinance obviously conflicted with the statute and was invalid. The court said:
"If by ordinance a municipality can make the felony of carrying concealed weapons a misdemeanor, what is there to prevent it from treating armed robbery, arson, rape, burglary, grand larceny or even murder in the same way, and finally dispose of such offenses in the Municipal Court." 168 Ohio State at 389-90, 154 N.E.2d at 919.
Defendant contends next that he was not guilty of forgery under | 18.1-96, supra. He argues that the making made by the *187 rubber stamp was not such a writing as to prejudice another's right; that it had no apparent legal efficacy because of the absence of the figure "20" and a difference between the color of the ink on the false stamp and that used on the genuine stamp. The evidence is that this difference was that the ink used on the false stamp had a more bluish cast, or purple color, than that used on the genuine stamp.
The rights of the city of Lynchburg were prejudiced by the use of the forged stamp because it was thereby deprived of the tax payable to it on the cigarettes sold by the defendant, which bore the false stamp and potentially on the several thousand packages which the defendant had imprinted with the false stamp preparatory to selling them. The city is a "person" whose rights may be prejudiced by a forgery. Code | 1-13(19).
The court instructed the jury that "forgery is the false making or material alteration, with the intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy. It makes no difference how the writing may be made, whether by handwriting, printing, steel engraving, lithographing, rubber stamp, or what not. It simply is the making of a writing with intent to defraud, and which writing, if it were genuine, might apparently be of legal efficacy."
The defendant made no objection and took no exception to that instruction and it therefore became the law of the case. Moreover, it was an accurate statement of the law as established in this jurisdiction. Commonwealth Linton, 4 Va. (2 Va.Cas.) 476; Terry Commonwealth, 87 Va. 672, 13 S.E. 104; Gordon Commonwealth, 100 Va. 825, 41 S.E. 746. See also 23 Am. Jur., Forgery, | 31, p. 689.
In the Gordon case we said: "* * * an instrument is one of legal efficacy, within the rules relating to forgery, where by any possibility it may operate to the injury of another." 100 Va. at 829, 41 S.E. at 748.
It is undisputed that the defendant made a false instrument with the intent to defraud the city. It was so made and used that there was not only a possibility that it would operate to the injury of the city, but in reality it did so operate over more than half of the year 1960. The evidence was ample to sustain the verdicts of the jury and the court committed no error in overruling the motion to strike and the motion to set aside the verdicts on the ground that the evidence was inadequate.
The defendant also contends that he was not guilty of uttering, or attempting to employ as true, the forged writing, also denounced as *188 a felony by | 18.1-96 of the Code, of which offense he was also found guilty. He bases this contention, however, only on the ground that he was not guilty of a forgery in making the stamp and therefore could not be guilty of uttering a forged instrument when he used the stamp. Since his premise has fallen his conclusion cannot stand. It was proved that he forged the stamp and that he used it many times with full knowledge and in furtherance of his fraudulent purpose.
Finally he asserts that he was not guilty of the crime of possession of which he was found guilty under | 18.1-95 of the Code. That section provides:
"If any person engrave, stamp, or cast, or otherwise make or mend, any plate, block, press, or other thing, adapted and designed for the forging and false making of any writing or other thing, the forging or false making whereof is punishable by this chapter [Ch. 3 of Title 18.1, which contains | 18.1-96], or if such person have in possession any such plate, block, press, or other thing, with intent to use, or cause or permit it to be used, in forging or false making any such writing or other thing, he shall be confined in the penitentiary not less than two nor more than ten years."
Defendant's argument is that possession is not an offense under the city ordinance and hence is not a crime; and, further, that the rubber stamp was not a forgery under | 18.1-96 and possession of it was not punishable under | 18.1-95. Since we hold that both propositions are untenable and since the rubber stamp was a forged instrument, which the defendant admitted making and having in his possession with the intent to use it, and which he did use on a large scale for the purpose of defrauding the city, he was clearly guilty of possession under | 18.1-95 as found by the jury. "What the statute condemns is either the making or mending or the possession of the instrumentality for an evil or unlawful purpose." Smith Commonwealth, supra, 190 Va. at 15, 55 S.E.2d at 429.
The judgments appealed from are accordingly
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441932/ | 453 S.W.2d 840 (1970)
Marvin Clifford JOHNSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 42678.
Court of Criminal Appeals of Texas.
April 8, 1970.
Rehearing Denied June 2, 1970.
John M. Scanlan, Austin, Jane Brasch, Harlington, for appellant.
*841 Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for burglary of a vessel (boat) under Article 1403, V.A.P.C.; the punishment, two years.
A security officer saw appellant and Billy Joe Pool enter a shrimp boat, the Miss Barbara. Later, when they left the boat, he saw Pool carry a large package and place it in a pickup truck. The security officer and a deputy sheriff stopped the pickup truck and found a case of sea store (tax free) cigarettes and clothing that belonged to the captain of the Miss Barbara.
It was further shown that the boat was entered and the cigarettes and clothing were taken without the consent of the captain.
Appellant complains that he did not have counsel prior to the indictment and as a result he was not advised of his right to, and was not given, an examining trial, and therefore, the indictment should have been dismissed.
Article 16.01, V.A.C.C.P., reads in part:
"The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case."
This Court held in Trussell v. State, Tex.Cr.App., 414 S.W.2d 466, that the failure to grant an examining trial was not grounds to set aside an indictment. See also Ash v. State, Tex.Cr.App., 420 S.W.2d 703.
Appellant next contends that the failure to have counsel might have prevented him from finding witnesses to prove his innocence. The record reflects that appellant was arrested on December 7, 1968, indicted on January 8, 1969, and counsel was appointed to represent him on January 17, 1969. The trial started April 14, 1969. No motion for continuance was filed based on the absence of a witness. There is no showing that any prospective witness would testify that appellant did not commit the crime or how counsel could have assisted him had counsel been appointed prior to the indictment.
The record does not show that a confession was taken or that appellant was placed in a lineup.
No injury or reversible error has been shown.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265185/ | 422 Pa. Super. 215 (1993)
619 A.2d 322
Saul KAPLAN and Harold Kaplan
v.
I. KAPLAN, INC. (Formerly MGS Acquisition Corporation) and Atlantic Veal and Lamb, Inc., Appellant.
Superior Court of Pennsylvania.
Argued November 18, 1992.
Filed January 13, 1993.
*217 Andrew H. Cline, Harrisburg, for appellant.
Walter T. Grabowski, Wilkes-Barre, for appellees.
Before OLSZEWSKI, BECK and KELLY, JJ.
BECK, Judge:
This is an appeal from an Order granting Supplementary Relief in Aid of Execution under Pennsylvania Rule of Civil Procedure 3118. Because we believe that the trial court acted within its discretion in granting the relief sought, we affirm.
In mid-1987, brothers Saul and Harold Kaplan, appellees herein, sold to MGS Acquisition Corporation (MGS) all of their shares in I. Kaplan Inc., a slaughtering and veal processing operation in Olyphant, PA. Each brother owned a 50% share in the company. Following the transfer, MGS changed its name to I. Kaplan, Inc., one of the appellants herein. Appellants' brief explains in detail the financing terms associated with the sale, including the involvement of the Bank of New Zealand (Bank), which made certain loans to MGS in order to facilitate the purchase. In return for their stock, appellees received from I. Kaplan, Inc. a $500,000. note which contained a confession of judgment provision. The note was due on the earliest of: six years from the date of the note, one year after repayment of the debt to the Bank or upon the refinancing of the debt to the Bank. The note also provided that the debt to the Kaplans was subordinate to the debt to the Bank.
In May, 1991, apparently due to business difficulties, I. Kaplan, Inc. defaulted on its payments to the Bank. Pursuant to an agreement between I. Kaplan, Inc. and the Bank, I. *218 Kaplan, Inc. was acquired by Atlantic Veal and Lamb, Inc. (Atlantic). Atlantic paid the purchase price to acquire I. Kaplan, Inc., $590,000, directly to the Bank. I. Kaplan Inc. remained indebted to the Bank for $650,000.[1] On July 2, 1991 appellees filed a Complaint in Confession of Judgment against appellants; the judgment was entered on that date by the Clerk of Judicial Records of Lackawanna County. Thereafter, appellants filed a Petition to Strike Off or Open Judgment Entered by Confession. The Petition to Strike was denied; however, the Petition to Open was still undecided at the time of argument in the instant matter.
In December 1991, in response to Atlantic's removal of equipment from the Olyphant plant, appellees filed a Petition For Supplementary Relief in Aid of Execution under Pa. R.C.P. 3118. The petition was granted on December 31, 1991; as a result, appellants were, inter alia, enjoined from removing any machinery or equipment from the Olyphant plant.[2] Appellants timely filed this appeal from the trial court's order.
In support of its position that the trial court erred in granting relief under Rule 3118, appellants attack the validity of the Judgment entered in this matter and assert that, in order to receive Rule 3118 relief, appellees were required to establish the requirements for a traditional injunction. Atlantic offers several reasons why the underlying judgment is facially invalid, including that Atlantic cannot be subject to the warrant of attorney provision because it was not a signator to the agreement and that, in any event, appellees are not entitled to confess judgment because the agreement requires a default prior to confession, which has not occurred in this case. *219 While these arguments may or may not have substantive merit as to the validity of the judgment, we believe that, procedurally, we are precluded from considering appellants' assertions on this issue.[3]
A grant of relief by a trial court under the authority of Rule 3118 is reviewed for an abuse of discretion. Chadwin v. Krouse, 254 Pa.Super. 445, 386 A.2d 33 (1978). In the instant matter, the parties are in disagreement over what a party is required to establish at a Rule 3118 proceeding. This is not surprising considering the lack of case law addressing the issue and the lack of direction given in the few opinions which have reviewed orders under the rule. Appellants claim that the lower court should have reviewed the validity of the judgment, as well as required appellees to establish the traditional prerequisites for an injunction, specifically, a clear right to relief, great and irreparable harm, and greater injury in denying injunctive relief than in granting it. Appellees, on the other hand, state that relief under Rule 3118 requires no such showing.
"Rule 3118 authorizes summary proceedings in aid of execution for the purpose of maintaining the status quo of the judgment debtor's property and may be used only for that purpose."[4]Greater Valley Terminal Corporation v. Goodman, *220 415 Pa. 1, 8, 202 A.2d 89, 94 (1964). In Greater Valley, a judgment creditor sought to set aside alleged fraudulent transfers of the judgment debtor in a proceeding under Rule 3118. The judgment debtor challenged the court's authority to grant the relief, but the trial court held that full equitable relief was available under Rule 3118 and set aside the conveyances of stock certificates as fraudulent. In holding that the trial court erred, our supreme court stated that the right to supplementary relief under Rule 3118 is given "without the necessity of full dress equity proceedings" and that the rule "envisions something less than a full hearing prior to the granting of relief." Id. at 6, 202 A.2d at 93.
In Chadwin v. Krouse, 254 Pa.Super. 445, 386 A.2d 33 (1978), a panel of this court relied on Greater Valley in holding that the summary nature of Rule 3118 proceedings did not permit the trial court to compel a judgment debtor to bring property into the state when there was no evidence that it was ever removed therefrom. Id. at 451, 386 A.2d at 36. The judgment creditor in Chadwin sought to have the debtor deliver to the sheriff securities which were, at all times, located out of state. The court distinguished relief requested under Rule 3118 from traditional injunctive relief and explained: "It is the streamlined nature of a Rule 3118 proceeding, however, which militates against its use for any purpose other than to maintain the status quo with respect to the debtor's assets." Id. at 452, 386 A.2d at 37 (emphasis supplied).
We are aware that in these cases, the courts' insistence that the Rule 3118 proceeding be narrowly focused was of benefit to the debtor, whereas here, it is the debtor who is requesting that the court consider the underlying issues in a broader context. However, the rule of law we extract from *221 the case law is that the nature of a Rule 3118 proceeding is strictly limited, regardless of which party is assisted thereby. We are convinced by the rationale of Greater Valley and Chadwin that the predicates to Rule 3118 relief in this case are the existence of an underlying judgment and property of the debtor subject to execution. To require the trial court to delve into the validity of the judgment, even where the debtor alleges facial errors, is to require too much. This is particularly true because the grant of relief does nothing more than maintain the status quo of a debtor's property.
For the same reason that the trial court need not review the validity of a judgment, it need not require a showing of the traditional requirements for an injunction; this simply is not required by the rule. Our decision is supported by this court's opinion in Gulf Mortgage and Realty Investments v. Alten, 282 Pa.Super. 230, 422 A.2d 1090 (1980). In Gulf Mortgage, we upheld an order of the trial court compelling the judgment debtor to deliver to the sheriff various stock certificates. In addition to claiming that the certificates were not subject to execution, the debtor claimed that, despite the fact that his counsel had an opportunity to argue orally the merits of the issue, he was denied a hearing as required by Rule 3118. The court held that even though the debtor did not receive a hearing, the lower court's grant of relief was proper because the debtor admitted in his answer the allegations necessary for resolution of the petition:
[A]ppellant's answer admitted every relevant factual allegation in the petition for supplementary relief specifically, the existence of the judgment and appellant's ownership and possession of the shares. . . .
Id. at 237, 422 A.2d at 1094. (emphasis supplied)
In the instant case, appellants do not claim that the underlying confessed judgment does not exist, they challenge its validity. We find that their challenge is misplaced and cannot be considered by this court. It is the existence of the judgment that permitted the trial court to consider and grant relief under Rule 3118. A full hearing on the traditional injunction requirements is not mandated by the rule; therefore, we make *222 no findings with respect to the judgment's propriety and must disregard appellants' arguments based thereon.
The remaining issue for our review is whether the property enjoined from removal is "subject to execution" as required by the rule.[5]See Pa.R.C.P. 3118(a)(2). At the hearing, appellees claimed that the equipment in the plant was part of the Olyphant realty, and therefore subject to execution, under the Industrial Plant Doctrine. The doctrine provides that permanently installed machinery or equipment that is vital to an industrial plant is considered part of the realty; the doctrine long has been used in a variety of circumstances to determine whether property is personalty or realty. See e.g., Gottus v. Allegheny County Redevelopment Authority, 425 Pa. 584, 229 A.2d 869 (1967) (eminent domain); United Laundries v. Board of Property Assessment, 359 Pa. 195, 58 A.2d 833 (1948) (local real estate taxation); Central Lith. Co. v. Eatmor Chocolate Co., 316 Pa. 300, 175 A. 697 (1934) (industrial mortgage ownership). See also Singer v. Redevelopment Authority of Oil City, 437 Pa. 55, 261 A.2d 594 (1970). The doctrine is analogous to fixture law. Fixtures are defined by the Pennsylvania Commercial Code as goods which become so related to particular real estate that an interest in them arises under real estate law. 13 Pa.C.S.A. § 9313. Appellants admit that it is the intention of the parties at the time the items are placed on the property that determines whether the equipment becomes part of the real estate. In re Ginsburg, 255 F.2d 358 (3d Cir.1958).
At the hearing, appellee Saul Kaplan testified to the circumstances surrounding the installation of equipment and machinery at the plant:
Q: Can you estimate for the Court the cost of those improvements?
A: I'd have to give you a very ballpark figure, runs in the millions of dollars.
*223 Q: How is the equipment how is this equipment placed in the plant?
A: What specific type of
Q: Well, I guess my question is was it free standing, was it somehow bolted into the plant or affixed?
A: In the slaughtering facility, we put in moving conveyers which attached to the structure of the plant.
Q: How are they attached?
A: By welds. We put in a very sophisticated calf skinning operation which took place in about 1982, '83. That made it it [sic] number 1 in the country, and that was attached by welds to the superstructure of the plant.
* * * * * *
Q: At the time this equipment was installed, Mr. Kaplan, what was your intent with regard to it's [sic] future use and location?
A: It was to stay there and keep the operation going.
Q: Did you ever intend to remove it?
A: Definitely not.
Based on this testimony, the lower court found that the equipment at issue was an integral part of the plant and, therefore, part of the real estate and subject to execution.
In their brief, appellants rely on Cattie v. Joseph P. Cattie & Brothers, Inc., 403 Pa. 161, 168 A.2d 313 (1961) for the proposition that where a tenant attaches equipment to property for the operation of his business, a presumption arises that the equipment does not become part of the real estate unless there is a clear expression of an agreement between the landlord and tenant. Appellants point out that at the time the Kaplans installed the equipment, the property was owned by another entity, D & T Realty; therefore, under Cattie, absent a clear agreement with the landlord, the equipment installed did not become part of the real estate. However, the Kaplans were the sole owners of D & T Realty, the landlord. We believe their ownership and control of D & T, coupled with Saul Kaplan's testimony of his intent, satisfy the Cattie test.
*224 Appellants also claim that the removal of a single piece of equipment, a cryovac machine, constitutes proof that the equipment had not become part of the realty. However, Mr. Kaplan testified that the cryovac machine was only at the plant for storage purposes and was never used in the operation there. The trial court's acceptance of Saul Kaplan's testimony regarding his intentions was not an abuse of discretion.
The record below supports the order of the trial court in that it reflects the existence of a judgment against appellants and property of the appellants subject to execution; therefore the grant of relief under Rule 3118 was proper.
Order affirmed.
NOTES
[1] At the time of the acquisition, Atlantic agreed to assume all liabilities and obligations of I. Kaplan, Inc. except those with respect to borrowed monies.
[2] The Order appealed from provides, in pertinent part:
ORDERED, in accordance with the provisions of Rule 3118 of the Pennsylvania Rules of Civil Procedure, that
1. The defendants and their agents, servants, workmen and employees are hereby enjoined from the transfer, removal, conveyance, assignment or other disposition of machinery and equipment used or useful in the Defendants' present or previous business operations at Hull Avenue, Olyphant, Pennsylvania. . . .
[3] The validity of the judgment will be addressed by the trial court in the Petition to Open, which has yet to be decided. If the trial court denies the Petition to Open, appellants will be entitled to appeal, at which time the arguments improperly offered in this appeal can be considered by this court.
[4] Pennsylvania Rule of Civil Procedure 3118 provides, in pertinent part:
(a) On petition of the plaintiff, after notice and hearing, the court in which a judgment has been entered may, before or after the issuance of a writ of execution, enter an order against any party or person
(1) enjoining the negotiation, transfer, assignment or other disposition of any security, document of title, pawn ticket instrument, mortgage, or document representing any property interest of the defendant subject to execution;
(2) enjoining the transfer, removal, conveyance, assignment or other disposition of property of the defendant subject to execution;
(3) directing the defendant or any other party or person to take such action as the court may direct to preserve collateral security for property of the defendant levied upon or attached, or any security interest levied upon or attached;
(4) directing the disclosure to the sheriff of the whereabouts of property of the defendant;
(5) directing that property of the defendant which has been removed from the county or concealed for the purpose of avoiding execution shall be delivered to the sheriff or made available for execution; and
(6) granting such other relief as may be deemed necessary and appropriate.
[5] We are cognizant of the fact that Rule 3118 provides for relief "before or after the issuance of the writ of execution," so that, as in this case, there may not be a writ from which the court can determine what property is subject to execution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337019/ | 207 Ga. 30 (1950)
60 S.E.2d 122
CONLEY et al.
v.
BROPHY et al.
17109.
Supreme Court of Georgia.
June 12, 1950.
*32 A. Russell Ross, for plaintiffs in error.
Will Ed Smith, contra.
WYATT, Justice.
1. The motion for new trial having been based upon the general grounds only, the question that the direction of the verdict was erroneous because there were questions of fact that should have been submitted to the jury, is not presented for decision. See Tyson v. Anderson, 164 Ga. 673 (139 S.E. 410); Kerce v. Davis & Co., 168 Ga. 168 (140 S.E. 287); Gilliard v. Johnston & Miller, 161 Ga. 17 (129 S.E. 434).
2. The County Board of Education was authorized to appoint no less than three nor more than five trustees for the school district involved. See Ga. Code (Ann. Supp.), § 32-1104. On July 8, 1947, they appointed three men, J. H. Martin, J. C. Dowdy, J. E. Walker, but attempted to limit their terms of office to one year. No question is presented in so far as J. H. Martin is concerned, since his name is included in all of the various orders of appointment. The question is presented, in so far as the other two are concerned, whether or not the County Board of Education can limit their terms of office to one year.
The Code section above cited expressly provides that the terms of office shall be for four years. "Where the term of an office is fixed by the Constitution, and the appointing power attempts to limit the term to a less time, the limitation will be disregarded as surplusage, and an appointee's acceptance under such an appointment will not estop him from claiming the entire term." 46 C. J. 965, § 101. "It has been declared . . that public policy forbids that the beginning and expiration of terms of officers be left to the discretion of the person holding the office or the body having the appointing power." 43 Am. Jur. 11, *33 § 150. "The tenure by which an office is held does not generally depend upon the commission which the Governor may think proper to issue. . . The statute and not the commission determines the commencement and ending of the term of such officer." Stephenson v. Powell, 169 Ga. 406, 408(3) (150 S.E. 641). See also Motes v. Davis, 188 Ga. 682(1) (4 S.E. 2d, 597, 125 A.L.R. 289).
We therefore hold that a term of office fixed by statute can not be changed by the appointing power. The effort made in the instant case to limit the terms of office of the three men appointed July 8, 1947, to one year was ineffective. When the appointments were made, they were made for a term of four years as required by the statute.
3. It is contended that the finding by the State Board of Education is binding on the court in this case. The Code (Ann. Supp.), § 32-910 constitutes the County Board of Education a "tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law." It is provided in § 32-414 that "The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive."
Membership on a board of education is a public office. See Clarke v. Long, 152 Ga. 619 (111 S.E. 31); Townsend v. Carter, 174 Ga. 759 (164 S.E. 49). "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein." Code § 64-201. Quo warranto, in so far as we know, has always been recognized by the courts of this State as the proper procedure for inquiring into the right to hold public office. We are not unmindful of the modern tendency to clothe boards and bureaus composed of men not trained in the law with judicial functions. This tendency we consider dangerous, and for this reason, the statutes will be strictly construed. We do not believe that the above-cited provision of the school law is intended to, or has the effect of, taking from the courts of this State the power to inquire into the right to hold public office and *34 to confer this important power upon the school boards, composed of men not required to be trained lawyers. We therefore hold that the superior court did have the right and duty to try and determine the quo warranto proceeding in the instant case.
It follows, from what has been said above, that the only valid action of the County Board of Education was the order of July 8, 1947, and the judgment of the trial court was correct.
Judgment affirmed. All the Justices concur. Duckworth, C.J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337007/ | 81 Ga. App. 815 (1950)
60 S.E.2d 263
MERCER
v.
SHIVER.
33039.
Court of Appeals of Georgia.
Decided June 21, 1950.
*818 R. R. Jones, for plaintiff.
W. R. Mixon, McDonald & McDonald, for defendant.
GARDNER, J.
1. There is first presented for determination the question whether the trial judge erred in overruling the plaintiff's demurrer to that portion of the defendant's plea and answer in which he sought recovery of the storage charges on the 134 bales of cotton, which he had permitted the plaintiff to withdraw from his warehouse on the express promise by the plaintiff that he would pay the defendant therefor.
The defendant contends that the plaintiff waived his demurrer to the plea and answer when he filed his amendment to his petition in trover and sought to recover against the defendant for the alleged damage and loss of weight to the cotton stored in the defendant's warehouse. The plaintiff, upon the overruling of this demurrer, properly excepted pendente lite, assigning error thereon in his bill of exceptions to this court. There is no merit in this contention of the defendant. The judgment of the court below overruling the plaintiff's demurrer to that portion of the defendant's cross action in which he sought to recover for the storage charges on the 134 bales of cotton was not such a ruling that had it been adverse to the defendant and a judgment sustaining the demurrer, same would have amounted to a final disposition of the case in the trial court. Even if the court had sustained the plaintiff's demurrer, the case would have been *819 still pending in the trial court. The defendant denied the material allegations of the plaintiff's petition, denying that the plaintiff had title to the 22 bales of cotton. This formed an issue for trial. A direct bill of exceptions to this court from the ruling on this demurrer would have been premature and the question raised improperly before this court. It therefore follows that the plaintiff properly excepted pendente lite to this ruling. The plaintiff's amendment in response to the allegations in the portion of the defendant's cross action which had been demurred to by the plaintiff did not constitute a waiver of the right of the plaintiff to except to the ruling on the demurrer and assign error thereon here. See Code § 81-301, which provides that, "A defendant may either demur, plead or answer to the petition, or may file one or more or all of these defenses at once without waiving the benefit of either." This Code section is applicable here. The plaintiff was not estopped from complaining of this prior ruling of the court on his demurrer to that portion of the defendant's plea and answer setting up a claim ex contractu for the charges on the 134 bales of cotton, which he permitted plaintiff to remove from his warehouse, where the plaintiff duly filed proper exceptions pendente lite and upon the final determination of the case, assigned error thereon in the direct bill of exceptions to this court sued out by him complaining of the denial of his motion for new trial. See Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771 (1-a) (62 S.E. 533); Durrence v. Waters, 140 Ga. 762 (79 S.E. 841); Durrence v. Waters, 140 Ga. 762 (79 S.E. 841); Durrence v. Waters, 143 Ga. 223 (84 S.E. 471).
2. This brings us to consider whether or not the defendant could set up his answer to the plaintiff's petition in trover for the 22 bales of cotton which remained in the defendant's warehouse, and on which he had a warehouseman's lien for the storage charges, the storage charges which he claimed as to the 134 bales of cotton removed by the plaintiff from the defendant's warehouse, and for which the defendant did not at that time seek to assert his lien for storage charges.
The action in trover was ex delicto and the fact that it appears from the petition that the property sought by the trover was identified by the defendant's warehouse receipts therefor and that the plaintiff had offered to pay the defendant the storage *820 charges on this cotton, does not convert the proceeding to an action on the contract, that is on the contract of bailment between the parties, as shown by said receipts. The plaintiff in his petition claims title to the cotton sought by the trover and set up that the defendant was in possession thereof, recognizing in the petition the defendant's right to a warehouseman's lien on this cotton for his storage charges. The defendant answered and denied that the plaintiff was entitled to the cotton. The defendant set up by way of cross action that the plaintiff had originally stored with him 156 bales of cotton and that the plaintiff had withdrawn 134 bales of this cotton, leaving 22 bales thereof yet in the warehouse. The defendant alleges that the plaintiff orally promised to pay to him the warehouse charges on this 134 bales, but he did not seek to assert his lien thereon, permitting the plaintiff to have these bales of cotton, upon his contractual obligation, made by an oral promise at the time. to pay the defendant therefor. The defendant thereby lost his claim of lien for storage charges on these 134 bales of cotton. The defendant's claim for these charges and to assert the same against the 22 bales of cotton yet in his possession was ex contractu, and the pending action in trover was one ex delicto.
"All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff's demand." Code § 3-113. In Bank of Sparta v. Butts, 4 Ga. App. 308 (6) (61 S.E. 298), this court held that "An action of trover against the warehouseman to recover the property represented by the receipt, is an appropriate remedy, where he fails or refuses on demand, to deliver the property to the holder of the receipt." The action is one in tort for conversion of the property by the defendant in trover and the action is not ex contractu on the defendant's warehouse receipts. See Powers v. Wren, 198 Ga. 316, 319 (31 S.E. 2d, 713). These receipts are merely evidence that the cotton was the property of the plaintiff which was being kept for him by the defendant in his warehouse. The action is for the conversion of this property, which occurred when the defendant failed and refused to deliver same to the plaintiff on demand therefor. See Southern *821 Express Co. v. Sinclair, 130 Ga. 372 (60 S.E. 849). When the defendant delivered the 134 bales of cotton to the plaintiff he thereby lost his claim of lien thereon. See Code § 111-431 (Ga. L. 1937-38, Ex. Sess., pp. 390, 402). The defendant's right of action, if any, for the failure of the plaintiff to comply with his oral promise and agreement to pay the defendant the amount of the storage charges on the 134 bales of cotton is an action for breach of contract and not an ex delicto proceeding. The defendant was entitled to his remedy at law to sue for the charges on this cotton. Code § 111-434 (Ga. L. 1937-38, Ex. Sess., pp. 390, 403). However, for the defendant to seek to recover for these charges, unpaid by the plaintiff in accordance with his parol agreement with the defendant at the time he was permitted to remove this cotton from defendant's possession, is to seek to enforce a claim for damages ex contractu in defense to an action ex delicto and no special equitable grounds appear, such as non-residence or insolvency of the plaintiff. Such a claim by the defendant as to the 134 bales of cotton, not in his possession, was not the proper subject-matter for setoff in this trover action. See Barrow v. Mallory Bros., 89 Ga. 76 (14 S.E. 878); Bell v. Ober & Sons, 111 Ga. 668(3) (36 S.E. 904); Youngblood v. Armour Fertilizer Works, 23 Ga. App. 731 (1, 2) (99 S.E. 314); Harden v. Lang, 110 Ga. 392 (2), 398 (36 S.E. 100). In the Harden case, the court said: "The action of trover is, of course, an action sounding in tort, the gist of which is the conversion by one of the goods of another. The damages sought to be pleaded, being for the breach of a contract, had their existence by virtue of the contract." In the case at bar, the parol promise of the plaintiff to pay the defendant the charges on the 134 bales of cotton had not been fulfilled by the plaintiff. This agreement was breached by the plaintiff. There is neither insolvency nor non-residence of the plaintiff involved. There is no such equitable ground as will abrogate the rule laid down by the above decisions and under the Georgia statute "Equity will not aid a defendant in actions at law as to matters of setoff and recoupment when his legal remedies are complete and adequate." Collins v. Clayton, 53 Ga. 650. The fact that the defendant will have to institute a separate action against the plaintiff to recover for the storage charges on the 134 bales of cotton, *822 which he permitted the plaintiff to remove from the warehouse upon his promise to pay defendant therefor, does not entitle the defendant to any equitable accounting. His remedy is on the contract by separate proceeding and not by way of setoff to this trover action.
This case is not like Ford & Co. v. Atlantic Compress Co., 138 Ga. 496 (75 S.E. 609). The action there was ex contractu. The plaintiff here did not elect to sue in assumpsit but to maintain his action in trover for the property. The plaintiff could have maintained an action on the warehouse receipts, that is on the contract embodied therein. However, the plaintiff did not bring this type of action, but claimed title and set up that the defendant was in possession of the cotton and had refused to deliver the same on demand. Nothing to the contrary of what we now hold was held in Crandall v. Shepard, 166 Ga. 396 (143 S.E. 587). There was no equitable setoff involved as in Burns v. Hill, 19 Ga. 22(6), and in Dyson v. Washington Telephone Co., 157 Ga. 67 (121 S.E. 105). The situation here involved does not come within the provisions of Code § 107-102, which in certain instances permits a defendant to plead a setoff or to recoup in damages where the suit to recover personal property is brought by the vendor and he retains title thereto. In the case of Powers v. Wren, 198 Ga. 319 (supra), the Supreme Court ruled that the action being trover was in tort and the cross action being on the contract, the two claims were not of a similar nature. In that case the court held that the trial judge properly sustained the demurrer to so much of the defendant's plea and answer as attempted to set off certain notes claimed by the defendant to be owing him by the plaintiff, even though the two actions or claims grew out of the same transaction. In ruling upon this demurrer to the cross action, the allegations of the plaintiff's amendment, filed after the ruling overruling the demurrer, are not involved. The allegations of the original petition in trover, together with the defendant's answer thereto, are the sole pleadings involved. No facts sufficient to authorize a court of equity to permit a setoff of matters ex contractu in this trover action appear.
It follows that the court below erred in overruling the plaintiff's demurrer to that portion of the defendant's answer as sought to recover the charges on the 134 bales of cotton, for which the *823 defendant's claim was one ex contractu. This being true, the subsequent proceedings in the case, which resulted in a verdict for the storage charges on the entire 156 bales in the defendant's favor, were nugatory, and unless the defendant will write off from the verdict for $900 in his favor the sum of $636, being the amount recovered by the defendant for the storage charges on the 134 bales of cotton removed by the plaintiff from the defendant's warehouse, the judgment of the court below shall be reversed and the case tried over on the issue formed by the plaintiff's petition and the answer of the defendant thereto, with paragraphs 4 through 11 inclusive stricken.
Judgment affirmed with direction that the defendant write off $636, in default of which the judgment shall stand reversed. MacIntyre, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337008/ | 82 Ga. App. 136 (1950)
60 S.E.2d 547
GULF LIFE INSURANCE CO.
v.
MOORE.
33129.
Court of Appeals of Georgia.
Decided June 28, 1950.
Rehearing Denied July 18, 1950.
*139 Finley & Henson, Tindall & Tindall, J. F. Kemp, for plaintiff in error.
C. C. Pittman, contra.
TOWNSEND, J.
(After stating the foregoing facts.) 1. Special ground 2 of the amended motion for a new trial assigns error on the charge of the court that if the jury found certain facts the plaintiff would not be entitled to recover "if you also further find that at the time Jim Baynes was sane." It is contended that the last quoted phrase is inapplicable in that it had the effect of causing the jury to believe that there was any issue as to the sanity or insanity of Baynes, to believe that the defendant would be liable if Baynes was insane, and that it nullified the effect of that part of the charge, which was otherwise correct. This and the general grounds are considered together (special ground 1 being but an amplification of the latter) because the point is made in the briefs of counsel that this accidental death policy differs from most of those recently construed by this court in that it does not exclude bodily injury intentionally inflicted by another person, whether sane or insane. See Gaynor v. Travelers Ins. Co., 12 Ga. App. 603 (77 S.E. 1072). So far as the exception to the charge is concerned, it was not error for the reason that there was some evidence relative to the insanity of the assailant, and it is not error for the court to charge in reference to an issue regarding which there is some evidence even though the great preponderance of evidence tends to show that the state of facts is actually otherwise than as contended. Lyles v. State, 130 Ga. 294 (60 S.E. 578); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641 (3) (122 S.E. 75). To determine whether or not the verdict was authorized by the evidence, however, it is necessary to go farther than this and to determine whether the death was in fact accidental so as to bring it within the terms of the policy, which contained a further exclusionary clause to the effect that the policy shall become null and void if the insured's death results from the intentional act or acts of any person or persons.
To make out a prima facie case, the plaintiff must show proof of the policy, proof of death, and further proof that the death occurred from accident or accidental means as defined in the policy. See Riggins v. Equitable Life Assurance Soc., 64 Ga. *140 App. 834, 835 (14 S.E. 2d, 182), and cases there cited. The burden of proof that the death came about as a result of violent, external and accidental means is on the plaintiff, and remains with her throughout the trial. Schneider v. Metropolitan Life Ins. Co., 62 Ga. App. 148 (7 S.E. 2d, 772); New York Life Insurance Co. v. Ittner, 59 Ga. App. 89 (200 S.E. 522). But this rule is also subject to the provision that where a case has been made out under the terms of the policy, and such policy contains an excepting clause, where the insurance company relies upon the excepting clause, in order to establish its non-liability it must prove this contention by a preponderance of the evidence, and, where the evidence is circumstantial, it must be such as to "preponderate to that theory, rather than to any other reasonable hypothesis." Matthews v. Gulf Life Ins. Co., 64 Ga. App. 112 (2) (12 S.E. 2d, 202).
The plaintiff here made out a prima facie case by facts which authorized the jury to conclude that the deceased and his assailant were unknown to one another; that while the deceased was standing quietly beside his brother the assailant suddenly drew out a gun and shot him; that there was in the same room another person with whom he had quarreled earlier that evening and toward whom he had acted in an irrational manner, and that the assailant then went out into the night and continued to fire the gun. This testimony together with the testimony of Baynes' wife that her husband, two months previously, had asked her to have him locked up because he was going to kill her, his apparent attempt to do so at that time, and his general course of conduct, was sufficient to warrant a conclusion that Baynes was irrational and not responsible for his actions. It was sufficient to indicate, prima facie, that there could have been no reasonable explanation for a desire on his part to injure the deceased. It was sufficient to show violent and external injury from which death resulted.
The burden of proving that the shooting was intentional then shifted to the defendant. It attempted to carry this burden by means of the testimony of the killer himself, but Baynes testified that he shot in self-defense after having been badly beaten and injured by the deceased, which testimony was refuted by two eyewitnesses. Baynes never admitted that he intended to kill *141 Moore. Even had he done so, the jury, under the circumstances, might have discarded his entire testimony as having been discredited. The defendant then introduced two witnesses to prove that two hours after the shooting the assailant did appear in a beaten and bloody condition. The jury might have taken this as corroborative testimony of a fight prior to the shooting, in which case the plaintiff's witnesses would have been impeached, but it is apparent that they reconciled the testimony instead by determining that Baynes in some manner or other sustained the injuries (self-inflicted or otherwise) after he shot the insured and ran away from the dance hall. Thus, the defendant failed to establish its contentions to the satisfaction of the jury by a preponderance of the evidence.
This case closely resembles on its facts the case of Pan-American Life Ins. Co. v. Bagley, 55 Ga. App. 610 (191 S.E. 144), both as to the fact that the accidental death and exclusionary clauses are identical (both omitting the words "sane or insane") and the fact that there also the assailant entered a lunchroom adjacent to a dance hall in which were located a number of persons, and shot and killed one of the men standing by the counter. In passing upon this case the court stated: "To make the defense good [that the injury was intentionally inflicted] it was necessary that the evidence show that the shooting of Bagley was intentional. Whether the jury concluded that the assassin's conduct indicated that he was incapable of forming an intent, or whether they thought that Bagley was attempting to take the gun away from the assassin and was accidentally and unintentionally shot in the scuffle, we can not say. However, we do think that the jury was warranted in concluding from the evidence that the insured's death resulted from `bodily injuries effected solely through external, violent and accidental means' and not from `bodily injury inflicted by the insured himself or intentionally by another person.'" Evidence that the assassin may have been "incapable of forming an intent" in the case of Pan-American Life Ins. Co. v. Bagley, supra, rested entirely upon the circumstances of the shooting. The circumstances in the instant case as to the killing are equally bewildering so far as a rational explanation of the conduct of the assailant is concerned. There is additional evidence of insanity from the testimony *142 of Baynes' wife. Evidence of a state of mind over a reasonable period both before and after the transaction in question is admissible as bearing upon the issue of mental competency. Pantone v. Pantone, 206 Ga. 305, 311 (57 S.E. 2d, 77). Although such testimony would not itself be sufficient to authorize a finding that Baynes was insane, since an unsuccessful attempt to have a person adjudicated insane raises a presumption that such person is not non compose mentis (see Morse v. Caldwell, 55 Ga. App. 804 (1-b) (191 S.E. 479), it was nevertheless a circumstance which the jury was authorized to consider in determining whether the defendant had by a preponderance of the evidence established its defense that the death was the intentional act of another person. It was their conclusion that this burden had not been carried.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337018/ | 191 Va. 119 (1950)
BILLIE DANIEL LESUEUR
v.
DAVID AYRES, ADMINISTRATOR, ETC.
Record No. 3628.
Supreme Court of Virginia.
June 19, 1950.
John B. Boatwright, for the plaintiff in error.
A. Laurie Pitts, Jr. and John P. Flanagan, for the defendant in error.
Present, Hudgins, C.J., and Gregory, Eggleston, Spratley, Buchanan and
1. Plaintiff's decedent, who was employed by defendant, was killed when a truck in which he was riding, owned by defendant and driven by another employee, overturned on a sharp curve after the latter drove off the road to avoid an approaching car. The driver knew that care was required properly to negotiate the curve, yet by his own admission he approached it at 40 miles an hour, in the middle of the road, although he could not see the approaching car until his truck was at the point of the curve within a short distance of it. The occupants of the car testified that they had seen the truck coming, at about 55 or 60 miles an hour, and to get out of its way pulled into the ditch on their side. The jury were fully warranted in finding that decedent's death was caused by the driver's negligence.
2. Under the facts of headnote 1, the driver had been in defendant's employ for about six months, driving one of the trucks and helping to load and unload. Decedent was first employed on the day of the accident to help unload and deliver feed, and was sent by defendant with the driver to deliver feed to a customer. Together they loaded the truck and made the delivery, the accident occurring on the return trip. The driver had nothing to do with employing decedent, had no right to discharge him and gave him no orders. Both were to receive the same wages and received orders from defendant. Defendant testified that the driver had no control or authority over decedent, but on cross-examination answered "Yes" to the question whether the driver had any direction or authority over him. Plaintiff relied on that answer, together with evidence that he had control of the truck and delivery, as sufficient to make the driver a vice-principal of defendant, but the driver was not performing any personal or non-assignable duty of the master; his work was one of mere operation, and the fact that he had charge of the truck and delivery, and authority to tell decedent what to do in the execution of the work in which they were both engaged, did not make him a vice-principal. He and decedent were fellow servants, serving a common master, working under the same control, deriving authority and compensation from the same source and engaged in the same general business. Decedent therefore assumed the risk of the driver's negligence in operating the truck, and defendant was not liable.
3. The fellow servant doctrine as stated and applied in the decisions of the Supreme Court of Appeals is the settled law in Virginia unless changed by the law-making power. Except as to employees of railroads and those covered by the Workmen's Compensation Law it has not been changed.
Error to a judgment of the Circuit Court of Buckingham county. Hon. Joel W. Flood, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
Lorenza Ayres, plaintiff's intestate, was killed when a truck in which he was riding, owned by LeSueur and driven by Thomas, overturned. His administrator brought this action against LeSueur and Thomas, charging that the accident was due to the negligence of Thomas, servant of LeSueur, in operating the truck. He recovered a verdict and judgment against both defendants and this writ of *121 error was granted to LeSueur. Thomas, the driver, did not appeal.
LeSueur operated a feed store in the town of Dillwyn, Buckingham county, and made deliveries to some of his customers by truck. Thomas was employed by him to drive one of his trucks and to help with the loading and unloading. He had worked in that capacity for five or six months. Ayres was first employed on the day of the accident to help unload and deliver feed.
In the afternoon of December 30, 1948, Ayres was sent by LeSueur with Thomas to deliver feed to one of LeSueur's customers who lived a few miles from Dillwyn. Together they loaded the truck from a freight car and Thomas drove it to the home of the customer where they made delivery. On the way back, at a sharp curve in the road, they met an automobile, and in order to avoid a collision Thomas drove off the road and into a ditch, which was soft from recent rain. The truck ran in the ditch 94 feet and struck a stump which caused it to turn over on its side. Ayres fell, or was thrown, under the truck and was killed.
The evidence was clearly sufficient to support the finding that the accident was due to the negligence of Thomas in driving the truck. It was a two and one-half ton truck, eight feet wide and with a high body. The road, State Route No. 622, was 15 or 16 feet wide. The curve was sharp and Thomas was familiar with it. He knew that care was required properly to negotiate it. Yet, by his own admission, he approached it at 40 miles an hour, in the middle of the road, although he could not see the approaching car until his truck was at the point of the curve within about 20 steps of the car. The occupants of the car testified that the truck was running at 55 or 60 miles an hour; that it came around the curve entirely on their side and narrowly missed striking them as it swerved to its right and into the ditch. They had seen the truck coming and to get out of its way they had *122 pulled into the ditch on their side and as far off the hard surface as they could get. The accident happened shortly after five o'clock and both vehicles had lights on. The jury were fully warranted in finding that the death of Ayres was caused by the negligence of Thomas.
The main defense relied on here is that Ayres and Thomas were fellow servants and that hence LeSueur was not responsible for the negligence of Thomas. The court instructed the jury that if Thomas had control over the truck and the deliveries, then he was a vice-principal and LeSueur was liable.
Thomas was twenty-three years old; Ayres was eighteen. Thomas was, as stated, the driver of the truck, while Ayres did not drive. Ayres was employed by LeSueur as a helper and he and Thomas worked together in loading and unloading the truck. Thomas had nothing to do with employing him and had no right to discharge him. Both were to receive the same wages. Thomas gave Ayres no orders but they both received their orders from LeSueur. LeSueur testified that Thomas had no control or authority over Ayres, but on cross-examination he was asked, "Did Thomas have any direction or authority over Ayres, authority to tell Ayres what to do?" He replied, "Yes, sir." Plaintiff relies on that answer, together with evidence that Thomas had control of the truck and of the delivery, as sufficient to make Thomas a vice-principal of LeSueur, and to support the court's instruction.
In Norfolk, etc., R. Co. Nuckols, 91 Va. 193, 21 S.E. 342, Nuckols, who was a track hand, was struck and killed by a passing engine due to the negligence of the engineer in charge of the engine. Judgment for the plaintiff was reversed for refusal of the trial court to instruct that the decedent assumed the risk of injuries caused by the negligence of fellow servants, and that the engineer and Nuckols, the track hand, were fellow servants.
In the opinion Keith, President, speaking for the court, stated the origin and some of the history of the fellow *123 servant doctrine and the principles upon which it is founded. He reviewed former decisions of this court and found that the general doctrine had been fully and broadly accepted. He referred to the fact that the rule had been criticized and efforts made to limit and confine it, stating that "in some States, what is called the doctrine of 'superior and subordinate' has been recognized; in others, the 'separate department' doctrine has been adopted;" but he then quoted from Northern Pacific R. Co. Hambly, 154 U.S. 349, 14 S. Ct. 983, 38 L.ed. 1009, to the effect that the application of those qualifications "would result in frittering away the whole doctrine of fellow-service," and that courts have been reluctant to recognize those distinctions "unless the superiority of the person causing the injury was such as to put him rather in the category of principal than of agent -- as, for example, the superintendent of a factory or railway -- and the employments were so far different that, although paid by the same master, the two servants were brought no further in contact with each other than if they had been employed by different principals." 91 Va. at pp. 204-5, 21 S.E. at p. 346.
Judge Keith goes on to say: "It appears that the case of Norfolk, etc., R. Co. Donnelly, 88 Va. 853, 14 S.E. 692, repudiates the exceptions, and evinces a disposition to return to the simple terms of the rule stated by Chief Justice Shaw. It throws aside the doctrine of 'inferior and superior,' of gradations in employment, and of 'separate departments,' and states forcibly and clearly that 'all serving a common master, working under the same control, deriving authority and compensation from the same source, and engaged in the same general business, although in different grades or departments, are fellow-servants, and take the risk of each other's negligence.'" 91 Va. at p. 206, 21 S.E. at pp. 346-7.
He then states certain propositions as being fully warranted by the great weight of authority in this State and elsewhere, including this: *124
"The liability does not depend upon gradations in employment, unless the superiority of the person causing the injury was such as to put him in the category of principal or vice-principal." 91 Va. at p. 207, 21 S.E. at p. 347.
It clearly appears from the opinion that the words "principal or vice-principal" are meant to apply to those who represent the master in the performance of personal or non-assignable duties that he owes to his servant. This is emphasized and made clearer by the later case of Norfolk, etc., R. Co. Houchins, 95 Va. 398, 28 S.E. 578, 64 Am. St. Rep. 791, 46 L.R.A. 359, holding the brakeman on a train to be a fellow servant of the conductor by whose negligence he was killed. It is there again held that when a person enters employment he assumes the risk of the negligence of another in the same employment; and the mere fact that such other is a leader or boss to see to the execution of the work, "does not of itself place the one so put in authority in the category of principal or vice-principal; but the question remains whether or not the negligent servant was performing some duty which the master owed to the injured servant for his safety, and could not therefore delegate to another, which is a mixed question of law and fact, to be determined by the jury under proper instructions."
The opinion adds that the Nuckols Case, supra, "throws aside the doctrine of 'inferior and superior,' of gradations in employment, and of 'separate departments,'" and that the test in the case being decided was "not whether conductor Miller was, by the rules of the plaintiff in error, given authority over his train and of the employees on it, to direct and order them, but whether his negligent act, which resulted in the death of brakeman Houchins, was an act done when in the performance of a duty which the law devolved upon the plaintiff in error, and so one that is non-assignable, for which the master is still liable, or one of mere operation." 95 Va. at pp. 404-5, 28 S.E. at pp. 580-1.
The opinion states that it might be said that the "superior servant" rule originated in the case of Chicago, etc., R. Co. Ross, *125 112 U.S. 377, 5 S. Ct. 184, 28 L.ed. 787, which had been overturned by the more recent decisions of that court, cited in the opinion, which are in accord with the Donnelly and Nuckols Cases, supra, and including Alaska Min. Co. Whelan, not then officially reported, but since reported in 168 U.S. 86, 18 S. Ct. 40, 42 L.ed. 390. In the later case of New England R. Co. Conroy,
175 U.S. 323, 20 S. Ct. 85, 44 L.ed. 181, the holding in the Ross Case
that a conductor, merely from his position as such, was a vice-principal whose negligence is that of the company, was again disapproved, the opinion stating that it must be deemed to have been overruled in Baltimore, etc., R. Co. Baugh, 149 U.S. 368, 13 S. Ct. 914, 37 L.ed. 772, and adding, "we cannot, as a matter of law, based upon those facts and upon such common knowledge as we, as a court, can be supposed to possess, hold a conductor of a freight train to be a vice principal within any safe definition of that relation." 175 U.S. at p. 347, 44 L.ed. at p. 191.
In Richmond Locomotive, etc., Works Ford, 94 Va. 627, 27 S.E. 509, the plaintiff, about nineteen years old, was employed as one of a group of hands to do the heavy moving and lifting in defendant's shops and was injured by a wheel which got out of control. Fogg was leader, or foreman, of the group and directed them in their work. One of the questions was whether he was the representative or vice-principal of the defendant so as to cast liability upon it for his negligence. In holding that he was not, the court said (94 Va. at pp. 642-3, 27 S.E. at p. 511): "Conceding that the leader or boss of the gang of hands occupies a higher position than the other members of the gang, and that he had control of and power to direct, and did direct, the gang in their work, which had been directed to be done by the foreman of the machine shops, it is clear that he was a fellow servant with the other members of the gang. The mere fact that one servant is superior in authority to another does not have the effect of changing *126 his relation of fellow servant, unless his superiority places him in the category of vice-principal."
The court added that this sort of superiority of service is so essential and so universal that every workman in entering upon a contract of service must contemplate its being made in a proper case, and therefore makes his contract of service in contemplation of the risk of injury from the negligence of a boss or foreman, as well as from the negligence of another fellow workman.
To the same effect is Moore Lime Co. Richardson, 95 Va. 326, 333, 28 S.E. 334, 64 Am. St. Rep. 785.
The holdings in these cases have been approved in the later cases of Norfolk, etc., R. Co. Phillips, 100 Va. 362, 41 S.E. 726; Trigg Co. Lindsay, 101 Va. 193, 43 S.E. 349; Southern Ry. Co. Smith, 107 Va. 553, 59 S.E. 372; Dreyfus & Co. Wooters, 123 Va. 42, 96 S.E. 235; Aronovitch Ayres, 169 Va. 308, 320, 193 S.E. 524.
In Reid Medley, 118 Va. 462, 465, 87 S.E. 616, it was held that an instruction correctly stated the law to be that a foreman placed in authority and control over an injured servant was still his fellow servant unless performing a non-assignable duty of the master.
As stated in the Nuckols Case, supra, the fellow servant doctrine, along with the exceptions and limitations that have been attached to it, is a subject upon which there has been endless diversity of opinion. The volume and variety of the cases are illustrated by extended notes in 50 L.R.A. 417; 51 L.R.A. 513, appended to the case of Stevens Chamberlin, 1 Cir., 40 C.C.A. 421, 100 F. 378, 51 L.R.A. 513, reviewing the Supreme Court cases and applying the doctrine adopted in the Virginia cases; and 54 L.R.A. 33.
See also 56 C.J.S., Master and Servant, secs. 321, 327, 332, 332c, 332e, 333; 35 Am. Jur., Master and Servant, secs. 334, 353, 364, 365, 368, 372; Baruch Sapp, 178 F.(2d) 382, opinion by Judge Dobie, holding, in applying the law of Kansas, that "a foreman is the fellow-servant of *127 the workers under him save when he is performing a nondelegable duty of the master;" and that a mechanic employed to service a plane was a fellow servant of the pilot, and for that reason the owner was relieved of liability for the death of the mechanic in a crash of the plane caused by the negligence of the pilot.
In the case in judgment there was no attempt to show that the truck was not in good order, or that Thomas was not a competent driver. The only negligence asserted and proved was that of Thomas in driving the truck. In that work he was not performing any personal or non-assignable duty of the master; his work was "one of mere operation," and the fact that he had charge of the truck and of the delivery, and authority to tell Ayres what to do in the execution of the work in which they were both engaged, did not, under our decisions, make him a vice-principal. He and Ayres were fellow servants, serving a common master, working under the same control, deriving authority and compensation from the same source and engaged in the same general business. Ayres, therefore, assumed the risk of the negligence of Thomas in driving the truck, and the defendant, their employer, is not liable for that negligence. Norfolk, etc., R. Co. Houchins, supra, 95 Va. at p. 405.
As said in the Houchins Case, the fellow servant doctrine as stated and applied in the former decisions of this court, and sustained by eminent authority, must be regarded as the settled law in this jurisdiction unless changed by the law-making power. It has been changed as to employees of railroads (Va. Const., sec. 162, Code, 1950, secs. 8-641 to 8-646), and those covered by the Workman's Compensation law (Code, 1950, secs. 65-1 ff.), but not otherwise, and as so written, it does not permit the recovery had by the plaintiff in this case.
The judgment below is, therefore, reversed and final judgment entered for the defendant, LeSueur.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337034/ | 82 Ga. App. 197 (1950)
60 S.E.2d 473
FOWLER
v.
THE STATE.
33155.
Court of Appeals of Georgia.
Decided July 13, 1950.
Rehearing Denied July 31, 1950.
*199 D. D. Veal, R. C. Whitman, for plaintiff in error.
C. S. Baldwin Jr., Solicitor-General, contra.
TOWNSEND, J.
(After stating the foregoing facts.) 1. Special ground 1 of the amended motion for a new trial complains of the admission of testimony of Mrs. W. R. Dennis as follows: "From my observation of those facts, in my opinion he was drunk." In Grier v. State, 72 Ga. App. 633 (2) (34 S.E. 2d, 642) it is held as follows: "A witness who satisfactorily shows that he had an opportunity to observe and did observe a person's condition may testify, as a statement of fact actually observed by him, whether such person was under the influence of intoxicating liquor." The admission of the evidence complained of in special ground 1 is not error for any reason assigned.
2. Objection is made to the testimony of Watt Jones as to the collision with an automobile which sideswiped his car shortly before the Dennis wreck, and to the testimony of the State's witness that he had picked up a piece of fender from the road *200 where the first impact took place and found that it matched the piece missing from the defendant's fender, and that based on this information a warrant was taken out against the defendant for hit and run driving. The testimony would have authorized the jury to find that the defendant had been the only person driving the automobile for the past seven or eight hours and that this collision occurred about an hour before the Dennis collision. These circumstances would have authorized the jury to find that the defendant was the driver of the Plymouth car which sideswiped the Jones car.
It is well established that evidence of the commission of one crime is not admissible upon the trial for another where the sole purpose is to show that the defendant is guilty of the other crime, but, if relevant to the issue on trial, this fact does not of itself make such evidence inadmissible. Goodman v. State, 184 Ga. 315 (191 S.E. 117). Where there is some logical connection between the two acts from which it can be said that proof of one tends to establish the other, such evidence is admissible. See Sanders v. State, 54 Ga. App. 238 (1) (187 S.E. 608). As stated in Wilson v. State, 173 Ga. 275 (160 S.E. 319), "In order that a collateral crime may be relevant as evidence, it must be connected with the crime under investigation as part of a general and composite transaction." Such evidence is admissible to show criminal intent. Cox v. State, 165 Ga. 145 (139 S.E. 861); New v. State, 67 Ga. App. 442 (20 S.E. 2d, 617). The defendant here was on trial charged with the offense of assault with intent to murder. The manner in which it was alleged he committed this offense was by the operation of an automobile while under the influence of liquor, which act was one naturally tending to destroy the life of a human being. The intent therefore in a case such as this must be inferred from the condition of the defendant, that is, his drunkenness. The testimony of witnesses as to the defendant's condition at the time or shortly after the collision in which Mr. Dennis was injured was in conflict. His condition shortly before this collision therefore became material to throw light on his condition at the time in question. Evidence that a short time previously, in Jones County, he was driving the automobile in a drunken manner so as to unnecessarily sideswipe another automobile was material upon this point. The *201 reason for the statute making penal the operation of motor vehicles by persons while under the influence of liquor is because this type and character of reckless driving is a natural concomitant thereof. Speaking for the writer only, the introduction of this type of evidence on behalf of the State is somewhat looked upon with disfavor, because it is the writer's opinion that too often evidence of other criminal transactions is introduced for the mere purpose of taking an unfair advantage of the defendant by prejudicing the jury against him, rather than to avail the State of its probative value. However, in the instant case, it appears to be relevant and material. Special ground 2 of the amended motion for a new trial is without merit.
3. The court charged the jury in part as follows: "Assault with intent to murder is an unlawful, felonious and malicious assault and an assault with an instrument that in the manner it is used at the time is a weapon that is likely to kill and under circumstances that if death had resulted from said assault the killing would have been murder, and an assault with an intention also on the part of the assailant at the time of the assault to kill and murder the person assaulted. The intent to kill is a necessary ingredient of the offense of assault with intent to murder. . . If the jury should find from the evidence that the defendant unlawfully used the instrument named in the indictment and the jury further finds that the instrument in the manner in which is was used, if one was used, was an instrument likely to produce death, then the unlawful use of such instrument in such manner would imply malice but it would not imply the intent to kill. . . The intentional use and operation of a dangerous instrumentality in such manner as to show a wanton, wilful and reckless disregard for human life on the part of a person, may under some circumstances be sufficient to authorize the jury to infer the intent to kill on the part of the operator of such instrumentality. I charge you further, if you should find that the defendant, with a wanton, wilful and reckless disregard of human life, ran his automobile on and upon and against the automobile in which W. R. Dennis was riding, thereby seriously injuring him as contended by the State, that it is a question for you to determine whether such wanton and wilful and reckless disregard for human life, if you find it existed, *202 amounted to a specific intent to kill. . . If you believe the assault was made by the defendant with a wanton, wilful and reckless disregard for human life [as to be] in law equivalent to a specific intent to kill, and if death had resulted from such an assault it would have been murder, and you believe all of this beyond a reasonable doubt, then you would be authorized to find the defendant guilty . ."
Special ground 3 complains that the court failed to charge the meaning of the word murder. Special ground 4 complains that the court failed to define malice. Special ground 5 contends that the first italicized sentence in the foregoing quotation amounts to the expression of an opinion as to the weight and effect of the evidence. The rule in regard to charging the offense of assault with intent to murder, as set out in Kirkland v. State, 68 Ga. App. 124 (22 S.E. 2d, 330) is as follows: "It is not necessary to instruct the jury specifically with reference to the law of murder and voluntary manslaughter; but it is necessary that the essentials of an assault with intent to murder should be included in the instructions given." In Wingate v. State, 68 Ga. App. 265 (22 S.E. 2d, 758) it was held that the charge defining assault with intent to murder was incorrect in that no reference was made to malice, but that the charge as a whole was sufficiently comprehensive as not to require reversal. In the case at bar the court instructed that if the jury should find that the instrument (the automobile) was used as charged in the indictment and that, so used, it was an instrument likely to produce death, malice would be implied from such use. As this was the only malice upon which a conviction could be based, there being no actual malice between the parties and no evidence of a general malice on the part of the defendant other than that so implied, the court's charge on this subject was sufficient. Special grounds 3 and 4 are therefore without merit. The excerpt complained of in special ground 5 is not opinionative in character.
Special ground 6 complains of the following excerpt from the charge: "I charge you further, Gentlemen, that the intentional use and operation of a dangerous instrumentality in such a manner as to show a wanton, wilful and reckless disregard for human life on the part of the operator, by which serious injury *203 is inflicted upon a person, may under some circumstances be sufficient to authorize the jury to infer the intent to kill on the part of the operator of such instrumentality" as confusing and misleading, in that the court did not explain what circumstances would be sufficient to authorize a jury to so find. Whether or not the use by the defendant of the dangerous instrumentality in disregard of human life, through which use another person is killed or injured, is such as to authorize a jury to infer-an intent to kill depends upon the circumstances of each case. As stated in Jones v. State, 185 Ga. 68, at page 73 (194 S.E. 216), "It is enough for us to decide, as we do, that the jury may or may not so find, depending upon the facts of each particular case. The degree of intoxication, the rate of the excessive speed, the weather conditions, the density of traffic, the physical character of the roadway, the nearness to a center of population, are among the matters a jury might wish to consider in determining whether the killing was involuntary manslaughter or murder." There are other circumstances (as, in this case, whether the car was being driven on the wrong side of the road), and they necessarily differ with each case. There was no request to charge this principle of law in greater detail. In the absence of request, the charge is not error for any reason assigned.
Special grounds 3, 4, 5, and 6 of the amended motion for a new trial are without merit.
4. The jury was authorized to find that the defendant intentionally became intoxicated and thereafter intentionally operated his automobile while in that condition; that he operated it in an unlawful manner in that he violated Code § 68-303 (c) in failing to turn to the right when meeting another automobile and that he operated his automobile while under the influence of an intoxicant. Code § 26-1009 defining involuntary manslaughter in the commission of an unlawful act, or a lawful act in an unlawful manner, contains the provision, " . . that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being . . the offense shall be deemed and adjudged to be murder." The jury here was authorized to find that the defendant's act was one which in its *204 consequences naturally tends to destroy the life of human beings. In Jones v. State, supra, p. 72, Mr. Justice Grice, speaking for the court, said, " . . we are of the opinion that when an indictment, among other things, alleges that the accused feloniously and with malice aforethought, with an automobile, struck and killed the deceased, a verdict of murder cannot be said to be unauthorized, though the proof shows that the killing was involuntary; provided it further shows that the killing happened in the commission of an unlawful act which in its consequences naturally tended to destroy the life of a human being. In such a case the law will imply malice."
The verdict of guilty of assault with intent to murder is authorized by the evidence, and the trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337026/ | 207 Ga. 229 (1950)
60 S.E.2d 367
CALLAWAY
v.
ARMOUR.
17143.
Supreme Court of Georgia.
July 12, 1950.
Rehearing Denied July 24, 1950.
Colley & Orr, for plaintiff in error.
Clement E. Sutton, contra.
WYATT, J.
The evidence disclosed that James W. Armour and Mrs. Elizabeth R. Callaway are owners of adjoining tracts of land, and that each of the tracts of land came through a common grantor. In 1912 Mrs. Lila M. Richardson died intestate leaving a large tract of land. She was the mother of the plaintiff *230 in error and also of Mrs. Kate Wicker, predecessor in title to James W. Armour. In 1922, the heirs at law of Mrs. Richardson agreed upon a division of the lands belonging to the estate. The different parcels were designated as certain numbered lots. Lot number 1 was conveyed by quitclaim deed from her brothers and sisters to Mrs. John J. Wicker (Kate Wicker). The description of the land was as follows: "A tract or parcel of land in the 168th district, G. M., of Wilkes County, bounded north by lands of Mrs. M. M. Green, A. S. Richardson, E. V. Arnold, H. L. Turner, and the old Washington and Lexington public road, east by lands of Mrs. John Allen Callaway, the same being lot No. 2 in the division of the lands of Mrs. Lila M. Richardson, deceased, south by lands of A. S. Richardson, and west by lands of R. H. Spratlin, the property hereby conveyed contains 301 acres, more or less, as shown by attached plat. . ."
Lot No. 2 was conveyed by quitclaim deed by her brothers and sisters to Mrs. John Allen Callaway (Mrs. Elizabeth R. Callaway). The description of the land conveyed was as follows: "A tract of land in the 168th district, G. M., Wilkes County, Georgia, adjoining lands of A. S. Richardson, R. H. Spratlin, H. L. Turner, Dr. Sale, Danielsville Public Road, and Lexington & Washington Public road, about 12 miles West of Washington, Georgia containing 246 acres more or less . . as shown by plat attached. . . "
No plat was in evidence giving a more definite description of the dividing line between lots Nos. 1 and 2, in so far as natural boundaries are concerned, than is above indicated. On February 23, 1942, Mrs. Wicker conveyed lot No. 1 to her brother, Samuel L. Richardson, and he in turn deeded the property to the defendant in error on June 6, 1944; the description in both deeds being the same as above indicated.
Mrs. Callaway and Mrs. Wicker both testified that in 1923 they went on the premises together, and, since the line between the two tracts of land was uncertain and unascertained, and was not marked, they agreed that the line should follow a described hedgerow, and from there proceed in a straight line back to where the two tracts reached the Willis place. The testimony included photographs identifying the hedgerow. This testimony *231 was not contradicted. Several tenants who worked the land of Mrs. Callaway testified that they cultivated up to this line, and that the tenants of Mrs. Wicker did likewise. This testimony was uncontradicted. Both Mrs. Wicker and Mrs. Callaway testified that this line had been agreed upon and recognized by the owners of the two tracts of land as the dividing line at all times since 1923 until the defendant in error questioned the line after he bought the property. The defendant in error testified that he purchased the timber on the tract of land he now owns from Mr. Richardson, and that he cut the timber up to the line as claimed by the plaintiff in error and stopped. He further testified that the tenant of Mrs. Callaway, Maddox, was working the disputed land when he bought the place in 1944. The only basis for the claim of the defendant in error to title to this 33-acre tract of land was his contention that his deed included the land, and a survey made by a surveyor whose services he alone secured, and that he was not bound by the alleged agreed line.
The establishment of the agreed line contended for by the plaintiff in error, as has been above stated, was not disputed or contradicted. In Farr v. Woolfolk, 118 Ga. 277 (2) (45 S.E. 230), this court said in headnote (2): "Independently of the rule laid down in the Code section, a parol agreement between coterminous proprietors that a certain line is the true dividing line is valid and binding as between them, if the agreement is accompanied by possession to the agreed line or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained, or disputed. Such an agreement is not within the statute of frauds, because it does not operate as a conveyance of land, but merely as an agreement with respect to what has already been conveyed." In the body of the opinion it is said: "It is, however, indispensable that a parol agreement as to a dividing line be accompanied with possession, or that something else should be done by the parties to execute the agreement."
In Hart v. Carter, 150 Ga. 289 (1) (103 S.E. 457), this court said: "Where the dividing line between coterminous owners is indefinite, unascertained, or disputed, the owners may be parol agreement duly executed establish the line, and the line thus established will control their deeds, notwithstanding the statute *232 of frauds." In Osteen v. Wynn, 131 Ga. 209, 215 (62 S.E. 37), this court said: "A parol agreement between adjoining landowners to fix a boundary line between their respective tracts theretofore unascertained, uncertain, or disputed, is not within the operation of the statute of frauds, for the reason that no estate is created. When a boundary line is established by consent, the coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of a parol transfer." See also Bradley v. Shelton, 189 Ga. 696 (7 S.E. 2d, 261); McNeal v. Carter, 191 Ga. 441 (12 S.E. 2d, 332); Robertson v. Abernathy, 192 Ga. 694 (16 S.E. 2d, 584); Shahan v. Watkins, 194 Ga. 164 (21 S.E. 2d, 58); Smith v. Lanier, 199 Ga. 255 (34 S.E. 2d, 91).
In the instant case, all the elements necessary to establish a dividing line by parol agreement were present. The location of the dividing line was uncertain and unascertained according to the testimony, and as will readily appear from a mere reading of the two deeds. The owners of the adjacent property agreed upon a definite and certain line, and the agreement has been executed by the parties by cultivating up to the agreed line. These facts were sufficient to establish a dividing line by parol. The evidence in this case goes further, however, and shows that the defendant in error knew that the agreed line had been respected by his predecessor in title, and that he himself, when he purchased the timber, respected this dividing line. These facts were uncontradicted. We must therefore hold that the plaintiff in error obtained title to this land in dispute by virtue of her deed and not by virtue of an oral agreement, and that the verdict of the jury was, therefore, not authorized by the evidence. This ruling makes unnecessary a ruling upon the other questions raised.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337023/ | 207 Ga. 193 (1950)
60 S.E.2d 339
TOVELL et al.
v.
LEGUM et al.
17128.
Supreme Court of Georgia.
July 12, 1950.
*196 Clifford Walker, J. Benton Evans, J. Ellis Mundy, U. S. Attorney, F. Douglas King, Drennan & Brannon, and Smith, Partridge, Field, Doremus & Ringel, for plaintiffs in error.
Matthews & Long, Lovejoy & Mayer, Young & Hollis, Foley & Chappell, Cleveland Rees, J. R. Sparks, Ben R. Freeman, G. A. Huddleston, and E. O. Dobbs, contra.
ALMAND, Justice.
1. In their cross-action, the defendants alleged: that immediately following the execution of the note sued upon, the plaintiffs got control of the defendants' business and refused to allow the partnership to continue; that such action was pursuant to a fraudulent conspiracy entered into by the plaintiffs "to wreck and destroy the business and bring about a condition that would compel a liquidation and discontinuance" of the business carried on by the partnership; that the plaintiffs refused to allow the partnership to manufacture and deliver 375 houses, from which the partnership would have derived a net profit of $416,669.49; and that the partnership was entitled to recover such amount. It was alleged that the damages claimed resulted "from the difference between the cost of construction and erection of the 375 houses . . and the contract price for which the same had been sold"; and the defendants *197 listed the price for which the same were to be sold, and enumerated several different projects, wherein are set out the places where the projects were located and the amount of total anticipated profits on each job. The plaintiffs demurred to the cross-action seeking damages, on the grounds that the allegations therein made were mere conclusions, that the damages claimed were too speculative and conjectural, and that the defendants did not allege any contracts that they had with anyone. The auditor sustained these demurrers and struck the cross-action.
There was no error in thus disposing of the cross-bill. The damages claimed were in the nature of anticipated profits which the defendants claimed would have been realized if they had been allowed to go forward with the business, by the construction of 375 houses. There is no allegation that there were binding contracts on the part of the defendants as to the construction of these houses, or any information as to how the amount of profits alleged would be arrived at. This claim for damages by reason of loss of anticipated profits was too remote, conjectural, and speculative to afford the basis for a cause of action. See Code, § 105-2008; Clay v. Western Union Telegraph Co., 81 Ga. 285 (6 S.E. 813); Wappoo Mills v. Commercial Guano Co., 91 Ga. 396 (1) (18 S.E. 308); Palmer v. Atlantic Ice & Coal Corp., 178 Ga. 405 (2) (173 S.E. 424). Compare Red v. City Council of Augusta, 25 Ga. 386.
2. Exception 2 complains of the ruling of the auditor excluding all testimony relative to acts or declarations made by one of the plaintiffs, J. R. Legum, who was deceased at the time of the trial. In their exceptions, the defendants assert that the "material portions of the record necessary to a clear understanding of the exceptions made herein is the complete testimony of C. Eugene Tovell and Walter J. Levy; which testimony is incorporated and made a part of Exhibit A, which is attached to these exceptions by designation to be hereinafter made, and the testimony of said two witnesses, as shown by Exhibit A, is incorporated herein and made a part of these exceptions by reference thereto." It is asserted that the ruling excluding the evidence was contrary to law.
In an equity case, where evidence is alleged to have been erroneously *198 admitted or excluded by the auditor, it should be literally or in substance set forth in the exceptions or as a part thereof. Hilton v. Haynes, 147 Ga. 725 (5) (95 S.E. 220). So, where an exception of law complains of error in the admission of certain testimony and does not set forth the evidence complained of, but refers the court to the entire evidence in the record bearing on the subject, such exception is not complete within itself, and the court on review is not required to determine such exception. Faucett v. Rogers, 152 Ga. 168 (3) (108 S.E. 798). The exception here does not set out what evidence was excluded, but refers the court to the complete testimony of two witnesses, which is made a part of Exhibit A. Exhibit A, which is attached to the exceptions, consists of a question and answer transcript of the evidence of four witnesses, containing 175 pages. This exception is not complete within itself, and there was no error in the overruling of this exception.
3. In an equity case, where exceptions to an auditor's report involve a consideration of the evidence, the exceptor must set forth in connection with such exceptions the evidence necessary to be considered, or attach it as an exhibit, or at least point out definitely where the evidence is to be found. Butler, Stevens & Co. v. Georgia and Ala. Ry., 119 Ga. 959 (1) (47 S.E. 320). Such requirement is not satisfied by merely giving the names of the witnesses or specifying the pages of the brief of evidence where their testimony may be found. Such evidence must be embodied in the exception, or attached thereto as an exhibit. Hudson v. Hudson, 119 Ga. 637 (10) (46 S.E. 874). In the last-cited case this court said: "The rule seems to be universal that in this class of cases the exception should be so framed as to relieve the superior court and this court of the burden of going over the entire case, or of performing duties which properly belong to the master and counsel."
The rule as to what exceptions of fact in an equity case should contain applies as well to exceptions of law when they involve a consideration of the evidence on which the auditor based his findings (Perkins v. Castleberry, 122 Ga. 294, 50 S.E. 107), and failure to comply with this rule is sufficient reason for overruling exceptions of law. Butler, Stevens & Co. v. Georgia and Ala. Ry., supra; Linder v. Whitehead, 125 Ga. 115 (53 S.E. 588); *199 Fuqua v. Hadden, 192 Ga. 654 (2) (16 S.E. 2d, 728). In Smith v. Wilkinson, 143 Ga. 741 (2a) (85 S.E. 875), it was held that the court did not err in refusing to approve exceptions of law where the exceptions depended for their determination upon the evidence, and the exceptions of fact referred to the evidence only in the following manner: "Plaintiff attaches hereto a brief of all the testimony material to his exceptions, which brief is referred to as a part of each exception as if the testimony was included in the exception." See also O'Rear v. Lamb, 194 Ga. 455 (22 S.E. 2d, 74), where, in an exception to a finding of fact which was dependent upon a consideration of the evidence, the exception recited that it was necessary to have "all the evidence produced from both sides of the case, and every fact and circumstance involved in the transaction of the plaintiff and defendant," and referred to a brief of the evidence filed by the auditor; and this court held that such exception was properly disapproved by the trial court.
The defendants' exceptions Nos. 3, 4, and 5 complain of findings of fact and law in the auditor's report, set out in findings Nos. 3, 4, and 5. Exception No. 6 is to ruling No. 11, which is a summary of the findings of fact and of law by the auditor. In all these exceptions, error is assigned on the findings of fact as being contrary to the evidence, and without evidence to support such findings; and error is assigned on the findings of law as being contrary to law and contrary to the evidence. Exception No. 3 makes no attempt to set out any evidence. The other exceptions assert that the evidence necessary for consideration of each one of the remaining exceptions "is all of the evidence adduced at the trial of the case before the auditor, oral, documentary, and by depositions," as shown by Exhibit "A" "incorporated herein and made a part of the exceptions." Exhibit "A" consists of 175 pages of testimony unbriefed, and 24 separate documents.
In order to determine whether or not any of the exceptions enumerated above had any substantial merit, it would be necessary for the reviewing court to consider the evidence. The defendants have in none of these exceptions complied with the rules that are set out in the authorities heretofore cited; and in order to determine whether or not these exceptions of fact *200 and of law are meritorious, the court would have to read the entire record of both the oral testimony and documentary evidence in connection with each exception. There was no error in overruling the exceptions enumerated above. In addition to the authorities cited above, see Fricker v. Americus Manufacturing &c. Co., 124 Ga. 165 (4) (52 S.E. 65); Woodward v. Williams Bros. Lumber Co., 176 Ga. 107 (167 S.E. 169).
4. Conclusions of fact and law set forth in an auditor's report, to which no exceptions are taken by either party, are binding upon all parties to the litigation. Carter & Woolfolk v. Jackson, 115 Ga. 676 (1) (42 S.E. 46); Wiley v. City of Sparta, 154 Ga. 1 (114 S.E. 45); Laramore v. Jones, 157 Ga. 366 (1) (121 S.E. 411); Lefkoff v. Sicro, 193 Ga. 292 (1) (18 S.E. 2d, 464). This court will not consider questions raised by a bill of exceptions assigning error on a provision of a decree entered in accordance with the findings of fact of an auditor, where it appears that no exception was filed to the particular provision of the auditor's report. Merchants National Bank of Rome v. Armstrong, 107 Ga. 479 (1) (33 S.E. 473).
The auditor in his report sustained the claims for taxes of the United States and the State of Georgia in their respective interventions, but subordinated these claims to the equitable lien of the plaintiffs upon the assets of Tovell Construction Company in the receiver's possession, and recommended that, in the distribution of funds by the receiver, the claim of the plaintiffs be paid out of these assets ahead of the claims of the United States and the State of Georgia. Neither the defendants, nor the United States, nor the State of Georgia, filed exceptions either of fact or of law to these findings. The court entered a decree based upon these findings of fact and of law in this regard, and the defendants attempt for the first time in the bill of exceptions to assign error on that part of the decree which orders the payment of the plaintiffs' lien prior to the tax claims of the United States and the State of Georgia. Under the above authorities, the findings of fact and of law of the auditor, unexcepted to, became conclusive on all parties, and the defendants cannot be heard now to assert for the first time the invalidity of these particular findings by assigning error on the decree.
Under the preceding rulings, the trial court did not err in *201 treating the adverse findings of the auditor, unexcepted to, as conclusive against the defendants, and in approving the auditor's report and entering a decree in favor of the plaintiffs, which decree is in accord with the auditor's report. Lefkoff v. Sicro, 193 Ga. 292 (supra).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337031/ | 217 S.C. 226 (1950)
60 S.E.2d 311
PLOWDEN
v.
MACK.
16358
Supreme Court of South Carolina.
May 22, 1950.
*227 Messrs. DuRant & DuRant, of Manning, for Appellant.
*228 Mr. James Hugh McFaddin, of Manning, for Respondent.
May 22, 1950.
OXNER, Justice.
This is an action in claim and delivery for possession of two cows and two young bulls over which plaintiff claims to hold a past due mortgage executed by the defendant. It comes before us on an appeal by plaintiff from an order vacating and setting aside a seizure of the property and holding that all proceedings taken were null and void. We shall refer to the parties as they appeared in the Court below.
On Saturday, July 23, 1949, a deputy sheriff served on the defendant a complaint, affidavit and bond and took possession of the cattle. Notice was then given that pursuant to the power contained in the chattel mortgage, the cattle would be sold on Thursday, July 28th. On Wednesday morning July 27th, a summons was served but no additional complaint was filed. That afternoon the defendant filed a petition in said action assailing the validity of the proceedings upon the ground that the affidavit and undertaking were defective and insufficient in certain particulars and upon the further ground that no summons had been issued or served. He asked in this petition that the property be redelivered to him and, meanwhile, that the sheriff be enjoined from disposing of same until the further order of the Court. Upon *229 the filing of this petition, a temporary restraining order was granted by the resident Circuit Judge and the plaintiff was required to show cause before him on July 30th, why the property should not be returned to the defendant and the proceedings dismissed. Later that afternoon plaintiff's attorney served another affidavit and bond on the defendant identical with those which had been served four days previously.
A return to the rule to show cause was duly filed by the plaintiff and the matter was heard on July 30th. At the conclusion of the arguments, the Court announced that the proceedings were invalid and should be dismissed. Counsel for plaintiff thereupon moved to amend the affidavit, bond and other proceedings so as to supply the omissions and remedy the irregularities complained of. This motion was denied. Plaintiff's attorney then gave notice of intention to appeal to this Court and moved that all further proceedings be stayed pending said appeal. Thereafter an order was filed permanently enjoining the plaintiff from selling or otherwise disposing of the cattle but staying all proceedings pending an appeal, upon the filing of a bond by plaintiff in the sum of $1,000.00. It was further adjudged "that the claim and delivery proceedings and process heretofore issued in this case be, and the same are hereby, adjudged null and void and are hereby vacated and dismissed." The bond required by this order was filed by the plaintiff on August 3d.
The statute provides, Section 552 of the 1942 Code, that in an action to recover the possession of personal property, the plaintiff "may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property as provided in this chapter." Sections 553, 554 and 555 prescribe the procedure to be followed in obtaining immediate possession. Certain facts must be shown by affidavit, an undertaking with surety must be furnished by the plaintiff, and a requisition issued to the sheriff to take and deliver the property. These requirements *230 need not be met unless plaintiff desires to obtain immediate possession. The procedure set forth in these sections constitutes solely a subsidiary or ancillary remedy which the plaintiff may at his option pursue. Adeimy v. Dleykan et al., 116 S.C. 159, 107 S.E. 35; Middleton v. Robinson, 202 S.C. 418, 25 S.E. (2d) 474.
Under the terms of Section 552 a proceeding to obtain immediate delivery of the property may not be commenced until the summons has been issued. No summons was issued in the instant case until four days after the property was seized by the sheriff. Did this omission invalidate the seizure? We think it did. The remedy invoked is purely statutory. The provision that the summons must be issued before the proceeding for immediate possession is commenced is mandatory. No action had been commenced when the property was seized. In Pelham v. Edwards, Sheriff, 45 Kan. 547, 26 P. 41, it was held that an order for the delivery of personal property cannot be issued rightfully before the action is commenced.
An analogy will be found in our attachment statute. Section 527 of the 1942 Code provides that in certain named actions "the plaintiff, at the time of issuing the summons, or any time afterwards, may have the property of such defendant or corporation attached." In Stevenson v. Dunlap, 33 S.C. 350, 11 S.E. 1017, 1018, the Court said: "An attachment now under the Code is not an independent action, but only a provisional remedy in aid of an action, which in itself must be legally instituted as an indispensable prerequisite to obtain an attachment." In Smith & Melton v. Walker, 6 S.C. 169, it was impliedly held that an attachment could not be lawfully made before the summons in the main action was issued.
It is argued that by filing a petition in the cause attacking the validity of the proceedings and by obtaining the rule to show cause heretofore mentioned, the defendant voluntarily appeared and waived the necessity of *231 a summons. We agree. The petition was filed without reservation and constituted a general appearance. The Court then acquired jurisdiction of the person of the defendant. But this occurred four days after the property had been seized and did not have the effect, as counsel for plaintiff seem to think, of validating the wrongful seizure. It was held in Lester v. Fox Film Corporation, 114 S.C. 414, 103 S.E. 775, 776, that "the acceptance of service of summons and complaint and appearance by defendant did not waive irregularities in the procurement of the attachment, or destroy his right to move to vacate and discharge the attachment of his property on account of such irregularities." In Leavitt & Milroy Co. v. Rosenberg Bros. & Co., 83 Ohio St. 230, 93 N.E. 904, 906, the Court held that a defective affidavit in an attachment proceeding could not be amended and given nunc pro tunc effect "so as to vivify the void writ."
It further appears that the bond filed by plaintiff did not comply with Section 555 of the Code in that no provision was inserted therein for the payment of "damages suffered on account of depreciation in value of the property pending the determination of the action." Plaintiff concedes that the bond was defective in this respect but contends (1) that the question was not specifically raised in the defendant's petition, and (2) that he should have been permitted at the hearing to amend the bond by supplying the ommission. In view of our conclusion that the seizure of the property was illegal because made prior to the commencement of this action, we need not determine whether a bond may be amended so as to supply an omission of this character and, if so, whether it can be given retroactive effect. It may not be amiss to state that after the decision of the Circuit Court was rendered, a new bond properly conditioned was filed.
The validity of the affidavit is also attacked. We agree that it is defective in some particulars but all the omissions except one were supplied in the verified complaint filed along with the affidavit. It has been held that *232 a verified complaint may be used to augment the affidavit for the purpose of furnishing grounds for issuing a warrant of attachment. M. Ferst's Sons & Co. v. Powers, 58 S.C. 398, 36 S.E. 744; Josey v. Reynolds, 152 S.C. 339, 150 S.E. 67. No good reason appears why this rule should not be applied to proceedings in claim and delivery. The one omission not cured by the verified complaint was of such nature that it could have been remedied by amendment. Adeimy v. Dleykan, supra, 116 S.C. 159, 107 S.E. 35.
It follows that the Court below did not err in holding that the property was wrongfully seized and should be returned to the defendant. It was error, however, to dismiss the action which the Court seems to have done. Plaintiff was entitled to have his action for possession of the property tried even though the seizure was illegal.
The foregoing disposes of all exceptions by plaintiffs to the order of July 30, 1949. We now turn to plaintiff's appeal from the order settling the case. He seeks to incorporate in the record an order issued by the Court on November 2, 1949, and to appeal therefrom. His appendix discloses the following facts:
After the decision of the Court heretofore discussed was made on the morning of July 30, 1949, that afternoon the attorney for defendant gave notice to the sheriff that he excepted to the sufficiency of the surety and form of the undertaking filed by the plaintiff and that the surety would be required to justify. On August 6th a new bond was filed by the plaintiff properly conditioned and signed by a new surety who justified. On October 12, 1949, plaintiff gave notice of a motion for an order adjudging that the notice given on the afternoon of July 30th had the effect of waiving all exceptions and objections to the undertaking filed by the plaintiff. The motion was heard by the resident Judge on November 2, 1949, and denied. He took the view that this matter was not before him when he rendered his decision on July 30th and should not be considered on this appeal.
*233 We seriously doubt whether the question sought to be raised is properly before us. It relates to a separate and distinct order issued several months after the order appealed from. We shall consider it, however, in an effort to expedite the termination of this litigation. Assuming that the notice mentioned had the effect of waiving the right to question the form of plaintiff's bond, it did not validate the unlawful seizure.
The order appealed from is affirmed in part and reversed in part, and the case is remanded for further proceedings in accordance with the views herein expressed.
FISHBURNE and TAYLOR, JJ., and L.D. LIDE, Acting Associate Justice, concur.
BAKER, C.J., and STUKES, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337044/ | 207 Ga. 83 (1950)
60 S.E.2d 125
GENONE
v.
CITIZENS INSURANCE COMPANY OF NEW JERSEY et al.
17105.
Supreme Court of Georgia.
June 14, 1950.
*86 R. A. Whitsett and A. E. Wilson, for plaintiff in error.
MacDougald, Troutman, Sams & Schroder, Dan MacDougald Jr., and Gilmer A. MacDougald, contra.
ALMAND, Justice.
1. Insurance contracts are governed by the same rules of construction or interpretation, for the purpose of ascertaining the intention of the parties, as apply to other contracts. Code § 56-815; Golden v. National Life & Accident Insurance Co., 189 Ga. 79 (2), 87 (5 S.E. 2d, 198, 125 A.L.R. 838). Where the terms and conditions of an insurance policy are unambiguous, the court must declare the contract as made by the parties. Penn Mutual Life Insurance Co. v. Marshall, 49 Ga. App. 287 (1) (175 S.E. 412). Where the meaning is plain and obvious, it should be treated as literally provided therein. Daniel v. Jefferson Standard Life Insurance Co., 52 Ga. App. 620 (2) (184 S.E. 366).
2. Condition 22 of the policy, under the heading of "Cancellation," is clear and unambiguous. There is no statutory provision in this State which requires that notice of cancellation of an insurance policy must be given in any particular manner. Here each party reserved the right to cancel the policy by mailing a written notice to the other party. As to the insured, he could effect cancellation by mailing a written notice to the companies, stating the time when cancellation would be effective. As to the insurers, they could cancel by mailing a written notice to the insured, stating the time, not less than five days thereafter, when cancellation would be effective. It was agreed that the mailing of the notice would constitute sufficient proof of notice, and that the effective date and hour stated in the notice would constitute the end of the policy period. The parties made the act of mailing the written notice, *87 and not the actual receipt of the notice, the essential requirement to cancel the policy.
There has been no case before this court involving the question as to whether receipt of the notice must be shown, where the policy under consideration contained a similar provision as to giving notice of cancellation. However, the Court of Appeals, in the case of Saint Paul Fire & Marine Insurance Co. v. C. I. T. Corp., 55 Ga. App. 101 (189 S.E. 390), had before it a policy of fire insurance which contained the following provision as to giving notice: "Notice of cancellation mailed to the address of the assured stated in this policy shall be a sufficient notice." It was held that under such provision, where proof of mailing of the written notice was shown, it was not necessary to effect cancellation to show that the insured received the notice. This ruling is in accord with the weight of outside authority, where, as here, the policy provided that notice of cancellation mailed to the address of the insured stated in the policy or on the records of the company should be sufficient notice. Seaboard Mutual Casualty Co. v. Profit, 108 Fed. (2) 597; General Accident Fire & Life Assurance Corporation v. Schero, 151 Fed. (2) 825; Sorenson v. Farmers Mutual Hail Insurance Co. of Des Moines 226 Iowa 1316 (286 N.W. 494); Trinity Universal Insurance Co. v. Willrich 13 Wash. 2d, 263 (124 P. 2d, 950); McBride v. New Amsterdam Casualty Co. 12 N. J. Misc. 617 (173 A. 346); Dent v. Monarch Life Insurance Co. (Mo.) 98 S.W. 2d. 123.
We are of the opinion that the method prescribed in the policy provides a reasonable way to terminate the policy, and that it was unnecessary for the insurers, in proving notice of cancellation, to show, in addition to proof of mailing the written notice in the manner provided in the policy, that the insured actually received the notice. The undisputed facts in the instant case show that the written notice provided for in the policy was mailed by the insurers to the address of the insured as stated in the policy.
The cases relied on by the insured, which hold that, where notice of cancellation is attempted to be effected by mail, there must be proof that the insured received the notice before cancellation can be effected (Bankers Mutual Casualty Co. v. Peoples *88 Bank of Talbotton, 127 Ga. 326 (1), 56 S.E. 429; Puryear v. Farmers Mutual Insurance Assn., 137 Ga. 579 (2), 73 S.E. 851; Hodges v. Planters & Peoples Mutual Fire Ins. Assn., of Georgia, 37 Ga. App. 203 (2), 139 S.E. 362; Farmers Mutual Fire Insurance Co. of Georgia v. Harris, 50 Ga. App. 75 (1), 177 S.E. 2d, 65), are not contrary to our ruling above, for the reason that in each of those cases the policy did not prescribe a method or manner in which notice of cancellation could be given.
3. The reported cases are plentiful and conflicting on the question as to whether or not the insurers, in the exercise of the reserved power to cancel a policy of insurance, in the absence of a statutory requirement, can effectively cancel a policy without first paying or tendering payment of the unearned premium. See texts and citation of authorities in 6 Couch on Insurance, § 1436 et seq., and annotation on this subject in 127 A. L. R., 1341. The rulings in these authorities were each dependent upon the wording of the cancellation clause in the respective policy under consideration. These rulings may be grouped into five categories: First, where the wording of the policy makes a return of the unearned premium a condition precedent to cancellation; second, where the policy construed was a standard fire policy; third, where the cancellation clause was silent as to return of the unearned premium; fourth, where the provision for return of the unearned premium was ambiguous; and fifth, where the obligation to return the unearned premium was, by the terms of the contract, plainly made a consequence and not a condition of cancellation. The weight of authority is that, if the terms of the cancellation clause fall within any one of the first four groups, a tender or return of the unearned premium is necessary to effect cancellation. The weight of authority as to group 5 is that return or an offer to return the unearned premium is not essential to cancel a policy where the condition as to notice has been complied with.
The case of Hollingsworth v. Germania, Niagara, Hanover & Republic Fire Insurance Co., 45 Ga. 294 (12 Am. R. 579), falls within the first group. There the policy provided: "The insurance may also be at any time terminated at the option of the companies, on giving notice to that effect, and refunding a *89 ratable proportion of the premium for the unexpired term of the policy." It is plainly seen that, in order to effect a cancellation of this policy, there was a dual condition precedent, to wit, giving of a notice and refunding the unearned premium. The cases of Globe & Rutgers Fire Insurance Co. v. Walker, 150 Ga. 163 (2) (103 S.E. 407), Alliance Insurance Co. v. Poss, 40 Ga. App. 322 (1) (149 S.E. 433), Union Fire Insurance Co. of Paris, France, v. Stone, 41 Ga. App. 49 (1) (152 S.E. 146), fall in the second group. These cases each involved the construction of a cancellation clause in a standard fire-insurance policy, where the clause as to cancellation provided: "If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium." It will thus be seen that the parties tied together the acts of giving the notice and surrendering the policy as conditions precedent to the cancellation of the insurance, and by its terms did not make the payment or tendering of the unearned premium a consequence of the surrender of the policy. The case of Saint Paul Fire & Marine Insurance Co. v. C. I. T. Corp., 55 Ga. App. 101 (189 S.E. 2d, 390), falls within the fifth category. In that case the policy provided: "This policy may be canceled at any time by this company by giving the assured five-days written notice of cancellation, with or without tender of the excess of paid premium above the pro-rata premium for the unexpired term, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium if not tendered, will be refunded on demand." The court in its opinion, after distinguishing the Hollingsworth, Alliance, and Farmers Mutual cases, supra, said that the parties having plainly stipulated the conditions as to cancellation, there was no necessity that the unearned premium be tendered or paid before the cancellation became effective. In General Accident Fire & Life Assurance Corporation v. Schero, 151 Fed. (2) 825, supra, the court had before it a policy of insurance which contained a clause as to cancellation which, after prescribing how notice could be given *90 by mail, provided: "When thereafter such cancellation shall be effective, in which case the corporation upon demand shall refund the excess of premium paid by the assured above the pro rata premium for the expired term." It was held that such clause did not require, as a condition to cancellation, return of the unearned premium to the assured. In Summers v. Travelers Insurance Co., 109 Fed. (2) 845, the court had before it a policy of insurance in which the cancellation clause provided: "This policy may be canceled by the company by mailing written notice to the named insured at the address shown in this policy stating when, not less than five days thereafter, such cancellation shall be effective, and upon demand the company shall refund the excess of premium." It was held that return of the unearned premium was a consequence and not a condition precedent to cancellation. In its opinion, the court said: "The equitable rule with reference to rescission or cancellation of contracts, requiring a restoration of the status quo as a condition precedent to such rescission or cancellation, is not here applicable because the parties have a right by contract to determine the conditions upon which a cancellation may be had. Here, the parties have, by unambiguous language, stipulated how such cancellation shall be effected. The right to the unearned premium upon cancellation is a matter of concern only to the insured and in the absence of a statute providing otherwise the insured has a right to agree that such unearned premium shall be payable to him upon demand . . The unearned premium is to be returned to the insured as a consequence of cancellation and not as a condition precedent to such cancellation." P. 847.
In addition to the cases of Parks v. Lumbermens Mutual Casualty Co. 327 Ill. App. 356 (64 N.E. 2d, 210), and Leslie v. Standard Accident Insurance Co. 327 Ill. 343 (64 N.E. 2d, 391), cited by counsel for the insurers, we have found only one other case, Wallace v. State Farm Mutual Automobile Insurance Co. 187 Tenn. 692 (216 S.W. 2d, 697), where the policy of insurance contained the exact provision as to return of unearned premium on cancellation as is contained in the policy now under consideration, and in each of those cases it was held that cancellation was effective without returning or tendering the unearned premium to the insured. See also Phoenix Mutual Fire *91 Insurance Co. of Cincinnati v. Brecheisen, 50 Ohio 542 (35 N.E. 53); Davidson v. German Insurance Co. of Freeport, Illinois, 74 N. J. L. 487 (65 A. 996); Webb v. Granite State Fire Insurance Co., 164 Mich. 139 (129 N.W. 19); Mangrum v. Law Union & Rock Insurance Co., 172 Cal. 497 (157 P. 239).
The parties having agreed that the unearned premium should be returned after the effective date of the cancellation, failure of the insurers to return the unearned premium to the insured did not prevent the cancellation in this case from becoming effective.
Counsel for the insured contend that, when the insurers' agent attached to the notice of cancellation the following: "Note: Any return premium due under this policy, if not tendered herewith, will be refunded upon demand," they sought to impose a condition to the right of the insured to collect the unearned premium which was not in the policy. We do not agree with this contention. This note appears at the bottom of the notice of cancellation, under the signature of the agent giving the notice, and is a matter of information to the insured of his right to a return of the unearned premium, and limits in no way the right of the insured or obligation of the insurers as to return of the unearned premium.
The court did not err in entering the decree complained of.
Judgment affirmed. All the Justices concur, except Head, J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337130/ | 81 Ga. App. 856 (1950)
60 S.E.2d 390
ROZENBERG
v.
SUND.
33018.
Court of Appeals of Georgia.
Decided May 19, 1950.
Rehearing Denied July 7, 1950.
*857 Smith & Stephens, for plaintiff in error.
Sam S. Harben, contra.
FELTON, J.
H. F. Fuller testified for the defendant. His relevant testimony was as follows: "I work at the Gainesville Hide & Metal Company. I have been with them since 1942, have worked continuously there since that time. I'm manager down there. I have bought some things from James Roberts, quite a few times. I don't know the exact date I started buying things from him, because at that time we were buying quite a bit of stuff and it had been going on for six or eight months, I think, before this particular time in question. We bought general scrap from him; automobile parts or backs ends, farm machinery at time, or just a general line of scrap iron. He first started bringing the scrap with a little mule and a sled, when he first began to come. Then he got him a little wagon and a mule, and then finally bought him a truck. I understand his father bought him a truck. He hauled things to our place in the truck quite a few times. I would say we purchased metals and scrap from him for a period of six or eight months. . . I never had the slightest doubt about the boy at all. He had an open face and he seemed to be very reliable, and he had been there at different times. His father had been there with him really. I think it was about June, 1948, when he came to me and said he had bought a tractor, was trying to buy a tractor at first. He was trying to buy a tractor from somebody. I don't believe he told me who, and it was too heavy for him to handle. And I told him to go ahead and see if he could make the deal and if he could, come back and talk to me about it, I'd be interested in buying it. So I think that was all that was said at that time. Maybe three or four days . . he came back and told me he had bought this tractor and said he couldn't handle it, and asked me if I would help him handle it. I told him no, I couldn't didn't have the time then to fool with it, but I would rent him my cutter and let him do the hauling himself. I'd just rent him my cutter at so much an hour and let him do *858 the hauling himself, that I didn't have time to fool with it. I told him I'd pay him $1.25 a hundred for the scrap and charge him $3 an hour for a cutter, and I agreed to pay him $1 a hundred for the iron as it came in, and at the end of the period, when it was cleaned up, we'd have a settlement and then I figured the 25 cents on the hundred would take care of our cutter and we'd have a final settlement at that time when he completed the job. The $1 per hundred was to be paid him at the time of delivery, but the actual price we were to pay him was $1.25. At the final settlement he was to pay me $3 an hour for the cutter. That was agreed on, was satisfactory to him, and we went to work the next day under that agreement. I did not know where he had purchased the machinery, I didn't go out and look at those things because we had quite a few heavy jobs coming in at that time, and I'd just get the location and send the men on with the work. I did not know whose machinery it was until after I had received the materials I have at this time. Not until the day after he brought that first load in there, I believe the morning after, Mr. E. Eston Eads came to the shop that morning and asked me if I had bought that equipment and I told him I had, and he said he thought there was some doubt as to the ownership of it and asked me to put it to one side and wait till they had it settled, so I had it put to one side and it's still there. Still there on one side of the lot. . . I stopped my cutter immediately upon learning that the tractor was not James Roberts.' Mr. Eads was the first notice I had of anything being wrong. I did not tell Mr. Art Sund that when I saw the condition of the pieces of metal brought in there, that I thought something was wrong. I never did see them until after Mr. Eads came down. He and I went and looked at it after that, that's the first time when I saw the stuff. I stopped the cutting before that, the evening before, about three or four o'clock, I believe, they quit. They ran out of oxygen or something and came in about three-thirty, four o'clock in the afternoon the day before this, then Mr. Eads came down the next morning and that's the first time that I went out and looked at the tractor parts that had come on. I just weighed them. The scales is on the outside and I weigh on the inside and don't have any chance to see it unless I walk out and inspect it. And where *859 our own cutter is doing the cutting. I know there's no use to look at it and I never examine it, just weigh it and go ahead. Nothing was ever done under my direction after Eston Eads mentioned it to me. They never did go back out there at all. Up until that time I had no inkling of anything being wrong. I told Mr. Harben when he came down there, I said, `There's your stuff. You can have it if you want it.' I offered to restore it to them. Mr. Sund was present. . . Ed O'Kelly runs the cutter. He is the man who operated the acetylene torch and cut it. He worked for Mr. K. Rozenberg. . . We did pay him for cutting this up, and we simply deducted 25 cents on each 100 that we were going to charge the Roberts boy for his time. . . I sent the truck with the cutting equipment that carried the crane with the cutting equipment, and then later I sent a truck with some acetylene down. The crane is used to pick up the stuff cut off. It was our crane. I never had given this boy's age a thought. I never questioned him about his age. I didn't ask him from whom he got this tractor and I never did ask him to exhibit to me any evidence of ownership, or a bill of sale or anything. I just accepted his word that he had bought a tractor. I didn't go to look at it myself. It wasn't customary with us to see if it belonged to this boy or not. When we had an offer to buy junk, we usually bought it by the hundred-weight and we wouldn't have time to go out and look at all those little things. I'd been in the habit of seeing him around with his father and knew he was hauling around and not only for me but other people, I'd consider him in business for himself. . . After he said he had bought the equipment I think that was the end of it. . . I imagine Mr. O'Kelly should know something about a tractor when he looks at it, should know whether it is junk or good or not. I imagine he could tell pretty well, with fourteen years experience behind him he should be able to tell. He is a grown man and a man of normal intelligence. He might have given it a thought but it wasn't brought to my attention. If Mr. O'Kelley, when he got there, asked this boy if that wasn't Art Sund's tractor, that was enough to excite his suspicion. I did not get the statement though, I heard Art make it on the stand, but I never did remember his making that particular statement. We were all talking and if he made that statement *860 it slipped by me. I don't know if I would have known if it was junk if I had looked at it, but I did not go out and look at it.. . All of this was hauled to my place on Mr. Roberts' truck and none of it on our trucks. Mr. Roberts or his boy wouldn't operate the cutting torch, Mr. O'Kelly wouldn't permit that. I had not heard anything about the Roberts boy before this having been in trouble about stealing knives from a hardware store." James Roberts testified as follows: "My name is James Roberts, and I am seventeen years of age. . . I sold Mr. Fuller metal and other scrap about six or seven months. . . I have been in court all through this session and heard the testimony concerning this tractor that Mr. Sund refers to. I sold some scrap from that to Mr. Fuller, but I talked to him about it first before I actually traded with him. I mentioned it to him about three or four days before I actually sold it to him. I told him that I had found one that I was planning on getting if I could and asked him if he would take it. This tractor was down near the golf course, near the rock quarry. I later bought this tractor. I found out whose tractor it was by asking the man who lived up on the hill, across the road in front of it. He said it was Art Sund's but it sounded like he said Sundred. I attempted to find Mr. Sund and did find someone I understood was Mr. Sund. It was not the gentleman here (indicating Mr. Art Sund), I bought the tractor and paid fifty dollars for it. I was to pay for it after I sold it. . . I do not know where the man lived. I was to pay him down at the Produce Row because I stayed down there a good bit and I hauled produce for a man down there, so he was to come there and get his money. I thought it was his tractor when I bought it. I told Mr. Fuller that I had bought it. He was to pay me $1.25 for it and take out 25 cents for cutting. After the cutting was done we were to settle then for the difference. The cutting was $3 an hour. On the day I went down to cut this I went down in my truck, and I hauled the scrap to the Gainesville Hide & Metal Company in my truck. It was cut up by Mr. Kelley and an assistant. I thought the person I bought the tractor from was authorized or had the right to sell it. I was paid for the scrap that I carried down there. I was paid one dollar per hundred pounds. I believe it was the next day that I first learned that this tractor *861 did not belong to the man from whom I bought it. The Chief of Police told me about it. He picked me up over here in the government section and carried me down to City Hall. . . I first saw this tractor when I was just riding around. I rode all over the town and Hall County. It was after I saw the tractor that I went to see Mr. Fuller. . . The day I went down there to try to find out who owned it, I went up to Mr. Paul Plaginos' house, right across from where the tractor was, and asked who owned the tractor. They said Art Sund, but it sounded like he said Sundred. Later that was the man I inquired for, Mr. Sundry. They said I might find him out on the Cleveland road somewhere and that is where I went. The first place I stopped when I went to look for the man who owned the tractor was at a filling station, right in front of Mr. Lawson's house. I asked if they knew a man by the name of Sundry and he said he didn't know whether he was there or not. . . He did go see and a man came out. I didn't ask who he was but asked him if he owned the tractor. He said he did. I asked if he wanted to sell it and he said he didn't but he would. I bought it from him for $50.00 on credit, to pay for it after I had sold it. I had never seen the man before. I was to pay him down at the Produce Row. We were to meet down there. I don't know whether the man had ever seen me before or not. That was all that happened and with that I went back and told Mr. Fuller that I had bought the tractor. . . I was sixteen years old at that time. I had already had some trouble before that about stealing some knives over here at Palmer Hardware, I did that. I didn't steal my father's car and go over to Tennessee and wreck it. . . The boy I bought the tractor from said it wasn't in running shape. He didn't say where it was, I asked him if it was down at the rock quarry and he said it was. . . I was down there when they were fixing to cut up the tractor when Mr. Plaginos came down there. Mr. O'Kelly was the man doing the cutting. I wasn't over there where they were talking when Mr. Plaginos asked what we were fixing to do. I heard him say something but I didn't know what it was, I wasn't paying any attention to what he said. The other man just told him that I had bought it." The plaintiff testified in part as follows: "I made an investigation to see who had cut up my *862 tractor and obtained information that led me to the place of business of Mr. K. Rozenberg at the Gainesville Hide & Metal Company. When I went there I talked to Mr. Fuller. Mr. Fuller said he had bought these parts from a boy and that he did not go out and look at the stuff; but when it begin to come in, he thought there was something wrong. Mr. Harben and I went together down to Mr. Rozenberg's and talked to Mr. Fuller, we also talked to Mr. Ed O'Kelley there. Mr. O'Kelley told me that he asked the boy if it wasn't Art Sund's tractor. That was the morning they went down there to start cutting it up, and the boy told him no, it wasn't, that he had bought it, and he says, `I wouldn't have cut if up for anything in the world,' he says, `if I'd known it was your tractor, but,' he says, `I was under orders of the boss to go ahead and do it.' Mr. O'Kelley stated that he did cut it up with a cutting torch. That was at Mr. Rozenberg's place when Mr. Harben and I went down there and talked to Mr. Fuller and Mr. O'Kelley together, he said it there that morning, we were all present, that is, Mr. Fuller, O'Kelley, Mr. Harben and me. There was another man there that I didn't know." Mr. Fuller denied telling Mr. Sund that he thought there was something wrong when the junk began to come in.
1. It is well settled that this court will not reverse the grant of a new trial unless the evidence demanded the verdict rendered. We think that the evidence in this case demanded a verdict for the defendant and that, under the principle of the proposition just stated, the court erred in granting a new trial to the plaintiff. If the plaintiff had lost the case, the grant of a new trial would have been error. We can see no difference in principle where the defendant suffers a small verdict against him and elects to pay it rather than move for a new trial. It would be an idle gesture to grant a new trial on the plaintiff's motion when he could not as a matter of law prevail. Black v. Lewis, 30 Ga. 958; Camp & Kemp v. Mayer, 47 Ga. 414, 427; Mumford v. Solomon, 8 Ga. App. 286 (1) (68 S.E. 1075). The ruling in Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Magid of Tallulah Inc., 54 Ga. App. 881 (2) (189 S.E. 552), is not contrary to the ruling herein made.
2. There is no evidence in this case which would authorize the finding that the defendant converted the tractor. His agent *863 did not undertake to purchase the tractor as a whole or to exercise any authority or dominion over it. The agreement was to accept and pay for parts of the tractor as junk as delivered to the defendant. If Roberts had owned the tractor and the sale had been in good faith, the facts show that the intention of the parties was that the title to the entire tractor did not pass to the defendant at any time, but that the title to the junked parts was to pass upon delivery of the junked parts and payment therefor. The converse of the ruling in Seagraves v. Newbern, 56 Ga. App. 437 (192 S.E. 834), applies here. The defendant exercised no dominion or control over the tractor and no conversion was shown. The demand and refusal to deliver the whole tractor did not constitute a conversion because the defendant never had possession of the tractor. The evidence shows that Mr. O'Kelley was the servant of Roberts. It is true that he was the general servant of the defendant, but the effect of the arrangement was that he was paid by Roberts and Roberts alone had authority to direct the cutting up of the tractor and he could have stopped O'Kelley at any time. Greenberg & Bond Co. v. Yarbrough, 26 Ga. App. 544 (1) (106 S.E. 624); Bibb Mfg. Co. v. Souther, 52 Ga. App. 722 (184 S.E. 421), and cases cited. There is no evidence which shows a direct conversion of the tractor by the defendant, or facts showing a subterfuge on the part of the defendant to effect a conversion of the tractor indirectly. Even if the defendant did tell the plaintiff that when the junk first started to come in he felt that there was something wrong, the defendant testified that on the very first suspicion he ordered the cutting up of the tractor stopped. The evidence demanded the finding that the defendant bought the junk parts in good faith and that he did not convert the tractor. If the jury intended to award a money verdict of $200 for the junk delivered to the defendant, it was not authorized, because the action was to recover the tractor as a whole. The fact that one of the grounds of the motion for a new trial is based on the alleged newly discovered evidence that Roberts had been convicted of stealing the tractor is immaterial. If it had been shown on this trial that such was the fact, it would not have altered the fact that the defendant did not convert the tractor overtly or by indirection. Code § 20-202 precludes the plaintiff from relying on the infancy of Roberts as a ground of recovery.
*864 The court erred in granting a new trial to the plaintiff.
Judgment reversed. Sutton, C. J., and Worrill, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337153/ | 252 Ga. 389 (1984)
313 S.E.2d 689
SHOEMAKE et al.
v.
WOODLAND EQUITIES, INC. et al. (two cases). WRIGHT
v.
WOODLAND EQUITIES, INC. et al.
40369, 40370, 40371.
Supreme Court of Georgia.
Decided March 14, 1984.
Rehearing Denied April 5, 1984.
Wall & Noonan, Alford Wall, Vanderhoff & Jordan, Lynwood D. Jordan, Jr., for appellants (case nos. 40369, 40370).
Edward Wright, pro se (case no. 40371).
Troutman, Sanders, Lockerman & Ashmore, William G. Vance, Richard A. Newton, Norman L. Underwood, Herbert D. Shellhouse, for appellees.
Kilpatrick & Cody, William B. Gunter, D. Scott Stenhouse, Thomas C. Shelton, amicus curiae.
SMITH, Justice.
This case raises the question of whether it was error for county zoning authorities to deny appellees' application for a building *390 permit. Summary judgment was granted by the trial court in favor of the landowner, Woodland Equities, Inc., and its lessee, Martin Marietta Corporation, who sought mandamus to require the Forsyth County Commissioners and its planning director to issue a permit allowing them to construct an office building at a rock quarry site. The Commissioners appeal in Case Nos. 40369 and 40370. A neighbor, who was denied intervention in the case, appeals that denial in Case No. 40371. We affirm.
Appellee Woodland Equities, Inc. (Woodland) was formed by Emory Lipscomb, its president and attorney, for the sole purpose of purchasing suitable land and developing a stone crushing operation in southern Forsyth County. In a series of transactions beginning in July 1979, Woodland acquired approximately 833 acres of undeveloped land in southern Forsyth County which it planned to lease for development as a quarry. When purchased, the land carried an "agricultural" designation under the applicable Forsyth County zoning ordinance, and mining was specifically designated as a permitted use in districts zoned agricultural under the ordinance. Prior to buying the land, attorney Lipscomb in the spring and early summer of 1979 conferred with two Forsyth County officials to be certain that the land was suited for the intended development as a rock quarry. Lipscomb, himself a former county attorney for Forsyth County, testified that in the spring of 1979 he checked county records in the courthouse, then telephoned and wrote to Edsel Martin, the county zoning coordinator, to inquire about the present zoning of the land he proposed to buy. He visited Martin at the county zoning offices, and the two of them carefully reviewed the status of the lots in question, referring to county zoning maps and files. Lipscomb further testified that he did this because "I wanted to make sure and get assurances from officials in a position to tell me what the zoning for this tract was," and that Woodland would never have purchased the land without first confirming that mining was an approved use. In a letter dated July 26, 1979, Martin referred to the specific lots in question and confirming that the land was presently zoned "agricultural." (Both Lipscomb, the former county attorney who helped write the zoning ordinance, and Martin, the present zoning administrator, unquestionably knew that this meant that mining was a permitted use of the land under the then-existing ordinance.) Lipscomb also consulted with John Shinall, the Forsyth County county attorney, during this period. By letter dated May 25, 1979, Shinall assured Lipscomb that mining was indeed a permitted use of land zoned "agricultural" in Forsyth County.
Relying on these assurances, as well as the existing zoning, Woodland spent over $1 million to purchase the land, buying the last *391 parcel on July 31, 1981. Negotiations were begun with appellee Martin Marietta Corporation (Martin Marietta) in August 1979, and in September 1980, Woodland granted Martin Marietta a long-term lease of the land for purposes of development as a rock quarry. Martin Marietta paid Woodland $50,000 when the lease was executed, and has since incurred costs in excess of $90,000 for testing, drilling and engineering work done in preparation for developing the land as a quarry. In addition, Woodland has since 1979 spent some $66,000, above and beyond the purchase price, for engineering studies, surveys, maps, aerial photography, and other quarry-related matters.
In July 1981, after appellees' intentions to develop a quarry in southern Forsyth County became publicly known, the Forsyth County Commission by resolution enacted Ordinance No. 9, the so-called "environmental review" ordinance. This measure conditioned the issuance of permits for new industrial and commercial developments in the county on a review, by an ad hoc citizens committee, of the potential adverse environmental effect of the proposed development and the committee's approval of the proposed use. Less than a month later, the ordinance was again adopted by unanimous vote of the five-member Forsyth County Commission, this time as a formal amendment to the existing zoning ordinance. At trial three of the members of the county commission testified that their purpose in passing Ordinance No. 9 was "to stop the rock quarry" from being built. In November 1981, the commission adopted an ordinance which for the first time removed mining operations from the uses permitted in agriculturally zoned districts.
An interesting sidelight to the legislative activities of the county during this period was its treatment of the Georgia Marble Company (Georgia Marble), the operator of the only existing quarry in Forsyth County. In November 1981, subsequent to adoption of the two environmental ordinances and only five days before mining was withdrawn as a permitted use in agriculturally zoned districts, the county issued Georgia Marble a certificate of zoning compliance which allowed it to continue and, in some cases, to expand its quarry operations.
In October 1982, Woodland and Martin Marietta applied to the appropriate county officials for a permit to construct an office building as part of its proposed mining operations on the quarry site. The planning director of Forsyth County reviewed the application and refused to issue a permit because (1) as a result of the 1981 ordinance, mining was no longer a permitted use on land zoned as an agricultural district, and (2) Woodland and Martin Marietta had failed to obtain a county environmental development permit.
*392 Woodland and Martin Marietta then filed this mandamus action to compel issuance of the building permit. The case proceeded to trial where, at the conclusion of the plaintiffs' evidence, the trial judge granted summary judgment for Woodland and Martin Marietta, ordering that the requested building permit be issued to them. The commissioners and planning director of Forsyth County bring this appeal.
1. The trial court properly granted summary judgment for Woodland and Martin Marietta and found that the challenged zoning ordinances were void because they were arbitrarily enacted and discriminatory applied to appellees.
Our cases establish a two-part analysis of claims of discriminatory application of local zoning laws: first, the challenged ordinances must on their face be reasonable and non-discriminatory, Snow v. Johnston, 197 Ga. 146 (28 SE2d 270) (1943); and second, they must be applied in a non-discriminatory manner, Matthews v. Fayette County, 233 Ga. 220 (210 SE2d 758) (1974). These Forsyth County ordinances fail on both counts.
Appellants assert that since neither the environmental review ordinance nor the mining classification on their face prohibits quarrying, no discriminatory intent can be attributed to the county commissioners in enacting them. But this assessment of the events leading to the denial of appellees' building permit flies in the face of all the known facts, including the uncontradicted testimony of three of the county commissioners (a voting majority) to the effect that both the mining classification change and the environmental review ordinance were adopted for one reason "to stop the quarry." It is true that the amended ordinance did not "on its face" ban quarrying on appellees' land; however, the November 1981 ordinance which removed "mining operations" as a permissible use in agriculturally zoned districts did set up a separate classification designated as a "mining operations district," and it went on to define "mining" as "any type of operation, whether strip, surface, or subsurface, in which sand, rock or any other mineral or element is removed from the earth." Clearly appellees' proposed quarry operation fell within this broad definition, and consequently their intended use was arbitrarily barred by the amended ordinances. The content of the ordinances, the circumstances surrounding their hasty adoption, and the county's flat denial of appellees' application for a building permit made out a case of discriminatory enactment as a matter of law.[1]
*393 With respect to unequal enforcement, the trial court found that the issuance of a certificate of zoning compliance to Georgia Marble, the only other quarry operator in Forsyth County, under the circumstances present here, was sufficient proof of discriminatory enforcement of the ordinance to demand summary judgment for appellees, and we agree. The certificate issued to Georgia Marble went well beyond protecting mere existing uses and authorized both expansion and relocation of the company's existing operation. Given all the circumstances surrounding the denial of appellees' application for a permit, summary judgment on Count II of appellees' complaint was proper.
2. In light of our disposition of appellees' claim of discrimination in the enactment and application of the challenged zoning ordinances, we do not reach their argument that the right to a building permit became vested because of substantial expenditures made in reliance on assurances by county officials. See Barker v. County of Forsyth, 248 Ga. 73 (281 SE2d 549) (1981).
3. In Case No. 40371, a neighbor appeals the refusal of the trial court to allow intervention. The neighbor assigns as error the appointment of a senior judge from outside the administrative district by the administrative judge of the district which includes Forsyth County, following disqualification of the Forsyth County superior court judge assigned to hear this case. The neighbor urges that this appointment process violates Ferry v. State, 245 Ga. 698 (267 SE2d 1) (1980), and OCGA § 15-5-5 (Code Ann. § 24-3306a).
In Ferry, we questioned the propriety of a disqualified judge naming the successor judge, and urged the administrative districts to promulgate rules for the impartial assignment of judges to preside in cases of disqualification. Here, the disqualified judge did not appoint his successor; he notified the district administrative judge of his disqualification and the administrative judge appointed the successor. Ferry was therefore not violated.
The neighbor argues that the administrative judge was required by OCGA § 15-5-5 (2) (Code Ann. § 24-3306a) to appoint a superior court judge "within the district" to serve. OCGA § 15-5-5 (Code Ann. § 24-3306a) provides in pertinent part as follows: "The duties and authority of each district administrative judge shall be as follows:... (2) To authorize and assign any superior court judge within the *394 district to sit on any type of case or to handle other administrative or judicial matters within the district; provided, however, that the assignment shall be made with the consent of the assigned judge and with the consent of the majority of the judges of the circuit to which the assignment is made and that the assignment shall be made subject to rules promulgated by the district council by a majority vote of the superior court judges within the district." This provision constitutes a grant of authority to the administrative judge over active superior court judges within the district. Except as to the requirement of consent, etc., it is not a limitation on the authority of the administrative judge. This provision does not prevent an administrative judge from procuring the services of a senior judge from outside the administrative district, because superior court judges, including senior judges, have jurisdiction to act in any circuit other than their own when the resident judge is disqualified. OCGA § 15-6-12 (Code Ann. § 24-2617). Senior superior court judges are not ineligible to serve in place of a disqualified judge simply because, under Ferry, supra, the disqualified judge is not to request the service of a designated senior judge as otherwise provided in OCGA § 47-8-64 (a) (Code Ann. § 24-2605a.2 et seq.) We find no error in this enumeration.
The neighbor assigns as error the denial of his motion to intervene. See OCGA § 9-11-24 (Code Ann. § 81A-124). He complains that the operation of the quarry will violate various laws (not involved here) and will constitute a nuisance, and that no permit should have been issued by the Department of Natural Resources. Regarding intervention as a matter of right, it is doubtful that the disposition of this mandamus action will impair or impede the neighbor's ability to protect the interests he seeks to assert. In any event, the neighbor has not shown that his interests, to the extent they are involved in this litigation, are not being adequately represented by the defendants. DeKalb County v. Post Properties, 245 Ga. 214, 219 (263 SE2d 905) (1980). Regarding permissive intervention, this is a matter which addresses itself to the discretion of the trial court, OCGA § 9-11-24 (b) (Code Ann. § 81A-124), and no abuse of that discretion has been shown here. Allgood v. Georgia Marble Co., 239 Ga. 858 (239 SE2d 31) (1977). As was noted in Allgood, where the county denied a permit necessary to authorize quarrying operations and where, as here, the trial court ordered that the permit be issued, the neighbors are not bound by that decision and are free to pursue other remedies for any legal wrong inflicted upon them. Allgood, supra, 239 Ga. at 859-860.
For the reasons stated in Division 1 of this opinion, the grant of summary judgment in favor of plaintiffs is affirmed. The denial of *395 intervention is likewise affirmed.
Judgment affirmed. All the Justices concur.
NOTES
[1] The facial validity of the "environmental review" ordinance is, at best, questionable. Many of the standards set out for assessment of a planned project, such as whether a project would create "objectionable or unhealthy pollution" or be "unsightly or otherwise in disharmony with existing land uses," as well as the committee's consideration of "any other criteria deemed relevant," are so vague and bereft of objective criteria as to be patently unreasonable and, therefore, unenforceable. See Levendis v. Cobb County, 242 Ga. 592 (250 SE2d 460) (1978); Arnold v. State, 236 Ga. 534 (224 SE2d 386) (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337653/ | 94 Ga. App. 110 (1956)
93 S.E.2d 820
BLOUNT, Coexecutrix,
v.
FREEMAN et al.
36196.
Court of Appeals of Georgia.
Decided June 26, 1956.
*111 O. J. Tolnas, for plaintiff in error.
Dorsey Davis, Fred A. Gillen, contra.
QUILLIAN, J.
The plaintiffs insist that the action was not predicated upon the written contract which was introduced in evidence, but was based upon an oral agreement between the parties to sell the property which was made prior to the execution of the written contract. Parol negotiations and stipulations preceding the making *112 of a written contract are merged in the written contract. Logan v. Bond, 13 Ga. 192 (3); Freeman v. Bass, 34 Ga. 355 (4); Sims v. Crawford, 56 Ga. 31. The written contract governs the rights, obligations and remedies of the parties. In the present case R. S. Freeman testified that the oral agreement was merged into the written contract. The contract provided for payment "on the date formal transfer is made." In Kiser Real Estate Co. v. Shippen &c. Co., 34 Ga. App. 308 (1) (129 S.E. 294) appears a pronouncement of principles applicable to this case: "But where by the terms of the contract of listment it is expressly agreed that the broker's right to commission is conditioned upon an actual transfer of the property, the contract providing that he shall be paid `on the date formal transfer is made,' such a provision is binding, and the broker is not entitled to his commission until the sale is actually effected, unless it be shown that he has fully complied with his undertaking by producing a purchaser ready, willing, and able to buy, and who actually offers to buy on the agreed terms, and that the sale fails of consummation only because the owner in bad faith fails and refused to effectuate the same. See Rowland & Rowland v. Kraft, 31 Ga. App. 593, 595 (121 S.E. 526); Nutting & Co. v. Kennedy, 16 Ga. App. 569 (85 S.E. 767). In other words, it is possible for the owner and the broker to so contract as to change the general rule, and by their special agreement to provide that commission shall not be earned unless or until the sale becomes actually effectuated. In such a case, where the offer of the purchaser does not absolutely obligate him to buy, but limits the proposal to his approval of title, and where the sale fails to become effected on account of defective title, and not on account of the owner's refusal to sell, the owner, under such special contract of listment, does not become liable for commission."
The oral agreement having been incorporated into the written contract, the evidence demanded a verdict for the defendant. The trial judge erred in denying the motion for new trial.
Judgment reversed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263847/ | 25 Md. App. 717 (1975)
336 A.2d 790
ROBERT WAYNE CARTER, INFANT, ETC. ET AL.
v.
BALTIMORE GAS AND ELECTRIC COMPANY.
No. 260, September Term, 1974.
Court of Special Appeals of Maryland.
Decided May 2, 1975.
*718 The cause was argued before THOMPSON, POWERS and MENCHINE, JJ.
Frank B. Cahn, II, with whom was E. Thomas W. Stahl on the brief, for appellants.
James H. Cook, with whom were Robert A. Amos and James A. Biddison, Jr., on the brief, for appellee.
POWERS, J., delivered the opinion of the Court.
The ultimate question to be decided in this case is whether on the facts properly before it, the lower court erred in granting defendant's motion for summary judgment. To answer the ultimate question we must determine what facts were properly before the court.
Suit was brought in the Circuit Court for Baltimore County on 14 August 1972 on behalf of Robert Wayne Carter, an infant, by his parents, Lance Carter and Marie Carter, as next friends, and by the parents individually, asserting a derivative claim. Baltimore Gas and Electric Company, appellee here, was named as the sole defendant. The declaration sought compensatory damages for injuries sustained by Robert, then 13, on 24 June 1972, on the Gas and Electric Company's property. The claim of the parents was for medical expenses incurred as a result of Robert's injuries, and for loss of his services.
In summary, the declaration alleged that the Company operated a power transformer plant at Eastern Boulevard in the Essex area of Baltimore County; that for about a year prior to the injury, neighborhood children habitually rode *719 their motor bikes onto the Company's property without objection; that the Company, its agents, servants and/or employees were aware and had knowledge of such activity; that about four months before the injury a cable and wood post fence was erected on the property, leaving open and unobstructed for ingress and egress a driveway entrance approximately 15 feet wide; that about four days before Robert's injury a 3/8 inch wire cable was strung across this opening at a height of 36 inches from the ground, for the purpose of impeding the ingress and egress of anyone using the driveway.
The declaration further alleged that the Company was negligent in causing the cable to be placed across the driveway "in that they gave no warning of its construction, nor did they provide for its proper visibility, and did not extend any signs or signals of any nature to indicate the presence of said cable to those known to depend on said open driveway." It further charged that the act of the Company "was a willful and wanton act in that the purpose of erecting such cable, the nature of which is that of a tripwire, without providing signals or a warning of any nature was to entrap persons known to use Defendant's property for purposes other than the conduct of the Defendant's business".
Following these allegations describing the condition of the Company's property, the declaration went on to allege that at about 3:00 P.M. on 24 June 1972 the infant plaintiff, while driving his motor bike along the trail on the Company's property, "exercising due care and being given no warning of the danger of said cable, drove through [the] driveway which he was accustomed to being free of obstruction and was caught under the chin by said cable and knocked off of his motor bike", and sustained serious injuries.
After a demurrer to the declaration was overruled, pleas in bar were filed, and the case was at issue on 5 January 1973. Thereafter various proceedings, consisting of interrogatories, answers, motions for production of documents, notices to take depositions, and the like, followed. All appear to relate in one way or another to preparation by the use of discovery procedures. The docket *720 does not reflect that depositions actually were taken, nor does the record contain a transcript of any deposition.
On 1 March 1974 the Company filed a motion for summary judgment, which referred, as support for the motion, "to the attached Affidavit, Points and Authorities, and to Answers of the Plaintiff to Interrogatories". The Carters filed an answer to the motion, asserting that "there is a genuine dispute as to material facts in this matter". Filed with the answer was a memorandum of points and authorities, signed by counsel, but lacking the requirements of evidentiary quality.
Maryland Rule 610 prescribes the summary judgment procedure. It provides, in § d 1 in part:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The latest of the many cases in which the Court of Appeals has discussed and explained this procedure is Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A.2d 502 (1974). There the Court said, at 7:
"The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly. Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972); Broadwater v. Arch, 267 Md. 329, 297 A.2d 671 (1972); Greenwell v. American Guaranty Corp., 262 Md. 102, 277 A.2d 70 (1971); Trustees of Broadfording Church of the Brethren v. Western Maryland Ry. Co., 262 Md. 84, 277 A.2d 276 (1971). At the trial level, the purpose of the hearing on the motion is to decide whether a real dispute as to material facts does exist; if the pleadings, *721 depositions, admissions and affidavits (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 300 A.2d 367 (1973); Brewer v. Mele, supra; Brown v. Suburban Cadillac, Inc., 260 Md. 251, 272 A.2d 42 (1971)."
The Court said further, at 8:
"In connection with a ruling to be made on a motion for summary judgment the function of the trial court is much the same as that which it performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require a decision as to whether an issue requires resolution by a jury or is to be decided by the court as a matter of law."
How facts are to be put before the court was stated by the Court of Appeals in Guerassio v. American Bankers, 236 Md. 500, 204 A.2d 568 (1964). It said, at 503:
"Appellee's pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee's averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants' pleadings and affidavits do not discredit appellee's averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit or deposition in support of the answer to the motion stating a fact or facts which would negative the appellee's right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A.2d 100."
*722 In discussing and applying these authorities we said in Knisley v. Keller, 11 Md. App. 269, 273 A.2d 624, cert. denied, 261 Md. 726 (1971), at 272:
"The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties. The dispute must be material to the outcome. Parties are required to raise whatever issues they desire to interpose to the motion at or before the time of hearing in the trial court by affidavit or deposition * * *."
We said further, in Vanhook v. Merchants Mutual Ins. Co., 22 Md. App. 22, 321 A.2d 540 (1974) at 26-27:
"But a court cannot rule summarily as a matter of law until the parties have supported their respective contentions by placing before the court facts which would be admissible in evidence. Brown v. Suburban Cadillac, Inc., [260 Md. 251, 272 A.2d 42 (1971)]. Each opposing party is given ample opportunity to place before the court facts which, on the one hand, show that he is entitled as a matter of law to the ruling he seeks, or, on the other hand, show that a fact, material to the opponent's position, is disputed. How the facts are to be placed before the court is explained in the Rule and in the cases applying the Rule."
* * *
"It is true that Maryland Rule 610 d 1 includes `pleadings' among the matters before the court upon which the court determines whether there is a genuine dispute as to any material fact. But it is clear that facts alleged in pleadings are not, by that means alone, before the court as facts for summary judgment purposes. Ordinarily, mere allegations neither establish facts, nor show a genuine dispute of fact. Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971); Wyand v. Patterson Agency, Inc., *723 [266 Md. 456, 295 A.2d 773 (1972)]; Davis v. Montgomery County, [267 Md. 456, 298 A.2d 178 (1972)]."
We observed that the function of pleadings in summary judgment cases is to frame the issues, so the court may determine materiality, and perhaps to supply, by presumption or admission, the equivalent of evidence.
The evidence specified in this case by the Company to support its contentions on the motion for summary judgment is found in the affidavit of F.J. Meehan, an employee of the Gas and Electric Company, and in answers on behalf of the infant plaintiff to interrogatories, disclaiming any contention that Robert had permission to operate his motor bike on the Company's property, or that the Company was actually aware of his presence there on the day, date and hour of the incident.
In their memorandum of Points and Authorities filed below in opposition to the motion for summary judgment, appellants concede, for the purpose of the motion, that the infant plaintiff was a trespasser or a bare licensee on the Company's property. They refer to depositions of other minors which they say indicate that for at least a year the infant plaintiff and others rode motor bikes on the property of the Company. As we have noted, there is no deposition in the record. One of the briefs states that the filing of depositions was waived. Whatever the reason, none was before the judge below, and none is before us. The memorandum then substantially repeats the allegations of the declaration. It asserts that the Company erected a fence but left the driveway open, and that the boys continued to ride on the property and that the Company was aware that they did so.
Appellants proceed to say that two or three days before the accident the Company placed a cable across the driveway, "for the sole purpose of impeding ingress and egress of known and unknown trespassers to the property", that there were no warning signs on the cable, and that it was virtually invisible. The declaration alleges that the *724 placing of the cable was a willful and wanton act, and constituted an entrapment. Appellants agree in their memorandum that the owner of land owes no duty to a trespasser or bare licensee, "except to abstain from willfully and wantonly injuring or entrapping" him.
Nowhere did the appellants specify to the court any fact, in the form of evidence or its equivalent, which showed or permitted an inference that the act of the Company in erecting the cable across the driveway was motivated by a willful or wanton purpose to injure or entrap the infant plaintiff. The allegation amounts to no more than an unsupported conclusion. Indeed, they affirmatively asserted that the sole purpose of the barrier was to impede the ingress and egress of known and unknown trespassers. They agreed that the Company was not aware of the infant plaintiff's presence on the property at the time of the injury.
In sum, appellants' opposition to the motion is founded entirely upon unsworn allegations, and upon their view of the law. They cannot succeed upon either, even if the mere alleging of facts were taken as a proper way, on a motion for summary judgment, to show an issue of material fact.
The affidavit filed with the Company's motion supplies these material facts, which stand uncontroverted:
The Company's property, about 200 feet wide, has transformers, known as the Eastport Substation, enclosed by a fence, located on the west side. Also erected on the property are towers which support high tension transmission wires. Along the east side is a railroad spur, at a higher elevation. The main entrance, at Eastern Avenue, was and is marked with signs reading, "No Trespassing, Private Property, Baltimore Gas and Electric Company". A macadam road 12 feet wide and 800 feet long extends from the entrance to the locked gate leading into the area of the transformers. The Substation is unmanned, although employees routinely perform inspection and general maintenance work. There were no Company *725 personnel on duty at the time of the incident alleged.
It was ascertained that trash and junk were being dumped on the property, and it was necessary to erect a fence to barricade the property to prevent it from becoming a public dump. On 31 January and 1 February 1972 a fence was erected, about 130 feet long, from the railroad track to a wooded area on the west. The fence consisted of wooden posts and two strands of cable. Over a dirt pathway a cable gate was installed, between posts about 15 feet apart. This cable was secured at one end and attached with a lock at the other end. "No Trespassing" signs were installed on the gate, and on the fence at each side of the gate.
On 15 June 1972 it was found that the lock and the "No Trespassing" sign on the cable gate were missing, and the cable was down. They were restored on the same day.
The law of Maryland has been stated so explicitly and so frequently that no comprehensive review of the authorities is called for, nor would it serve any purpose. We shall refer to a few of the cases.
A very recent statement of the rule is found in Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972), where Judge Digges said for the Court of Appeals, at 521:
"A bare licensee takes the property as he finds it and, like a trespasser, he is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known."
In Carroll v. Spencer, 204 Md. 387, 104 A.2d 628 (1954), the Court said, at 395:
"The peril of a trespasser which requires the owner of property, if he is to avoid liability, to refrain from wilful injury, must be actual and immediate. It is not the mere possibility that harm will ensue *726 from the act, or failure to act, of a trespasser who has the natural faculties and the opportunity in time and environment to avoid such harm, which will impose liability on the owner."
The Court also said in that case, which involved a claim for injuries sustained by a boy while playing on a house under construction:
"The status of the children would not change to that of invitees because the appellees, through their foreman, knew that intruders were on the property and in a position of potential danger by virtue of the unfinished condition of the house, and did not drive them off. Acquiescence is not invitation, and at most, changes the status of the trespasser to that of bare licensee, to whom the owner owes no greater duty than to a trespasser." At p. 393.
We quote here a part of what Judge Smith, in writing for the Court of Appeals in Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 265 A.2d 897 (1970), quoted from State v. Machen, 164 Md. 579, 165 A. 695 (1933), where Chief Judge Bond wrote, at 582:
"And the decisions in those cases have declared the familiar principle that permission or license gives leave only to take the property as the visitors find it, and that the owner or occupant undertakes no duty to those visitors who come for their own pleasure or convenience, and not at his invitation or upon inducement, express or implied, from a common advantage, except that, being aware of their presence he must not injure them wilfully or entrap them."
See also Fitzgerald v. Montgomery County Board of Education, 25 Md. App. 709, and cases cited therein.
It is clear from the few decisions we have referred to, and the many others cited in them, that there were no facts before the court below in this case which even raised as an *727 issue, whether the Company had breached any duty it had to Robert Carter. By their own showing, the appellants negatived any malicious intent on the part of the Company to inflict an injury willfully or wantonly upon Robert, or to entrap him. On the contrary, they showed that the barricade was erected for a perfectly proper business reason. If they showed that it was done negligently it was not enough the law would permit no recovery without a showing of intentional harm. The facts did not meet the test.
The summary judgment was properly granted.
Judgment affirmed.
Appellants to pay costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263659/ | 24 Cal.App.4th 1730 (1994)
30 Cal. Rptr.2d 228
APARTMENT ASSOCIATION OF GREATER LOS ANGELES et al., Plaintiffs and Respondents,
v.
SANTA MONICA RENT CONTROL BOARD, Defendant and Appellant.
Docket No. B076439.
Court of Appeals of California, Second District, Division Two.
May 19, 1994.
*1732 COUNSEL
Anthony A. Trendacosta and Ralph H. Goldsen for Defendant and Appellant.
Lawrence & Harding, Christopher M. Harding, Kenneth L. Kutcher and Kevin V. Kozal for Plaintiffs and Respondents.
OPINION
NOTT, J.
In this case, we consider the facial validity of a Santa Monica Rent Control Board regulation which prohibits landlords who purchased rental property after the inception of rent control from seeking an adjustment in base rents. Appellant Santa Monica Rent Control Board (the Board) contends that the regulation draws a rational distinction between those who *1733 purchased before and those who purchased after rent control, based on their differing investment-backed expectations. Respondents counter that landlords are constitutionally entitled to have base rents that are substantially below market adjusted to base date market levels.[1] While we do not accept respondent's position, we conclude that the regulation as written is constitutionally infirm. We therefore affirm the grant of summary judgment in favor of respondents.
BACKGROUND
(1) Rent control is a proper exercise of a city's police power if the regulation is "reasonably calculated to eliminate excessive rents and at the same time provide landlords with a just and reasonable return on their property." (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 165 [130 Cal. Rptr. 465, 550 P.2d 1001], hereinafter Birkenfeld.)
The stated purpose of the Santa Monica Rent Control Law (RCL) is to "regulate rentals so that rents will not be increased unreasonably and so that landlords will receive no more than a fair return." (RCL, § 1800.) To accomplish this purpose, the Board is directed to require landlords to justify any rents in excess of the base rent ceiling. (Ibid.)[2] The base rent ceiling is defined in section 1804, subdivision (b) as the rent that was in effect on the date one year prior to the adoption of rent control, that is, the rent in effect on April 10, 1978. Pursuant to section 1804, subdivision (b), landlords of controlled rental units are prohibited from charging rent in an amount greater than the base rent ceiling. In considering rent adjustments, the Board may adopt as its fair return standard "any lawful formula, including but not limited to one based on investment or net operating income." (RCL, § 1805, subd. (e).)
Board Regulation No. 4102 provides, "[I]t shall be presumed that the Net Operating Income produced by a property during the base year provided a fair return on property."[3] That presumption may be rebutted, as is pertinent here, by a showing that rent on the base date was disproportionate because the rent on the base date was substantially lower than at other times of the *1734 year due to seasonal demand or seasonal variations in rent, or because the rent on the base date was lower than other months due to rebates given for reasons unique to the unit or limited to the period determining the base rent. (Reg. No. 4103, subd. (b)(2) & (3).)
Like the rent control law at issue in this case, the Berkeley ordinance which was before the Supreme Court in Birkenfeld also had provisions for setting base rents and adjusting the rent ceilings. Birkenfeld noted that the Berkeley law was criticized because its list of relevant factors for consideration in reviewing petitions for rent adjustment "might have prevented the base rent from reflecting general market conditions such as a seasonal fluctuation in the demand for the kind of housing involved or the existence of a special relationship between landlord and tenant resulting in an undercharging of rent." (17 Cal.3d at p. 168.) Birkenfeld went on to hold that the Berkeley rent control law was constitutionally deficient because it "drastically and unnecessarily" restricted the rent control board's ability to adjust rents. "[A]n adjustment mechanism is constitutionally necessary to provide for changes in circumstances and also provide for the previously mentioned situations in which the base rent cannot reasonably be deemed to reflect general market conditions." (Id. at p. 169.)
That factual situation was presented in Vega v. City of West Hollywood (1990) 223 Cal. App.3d 1342 [273 Cal. Rptr. 243], review denied (hereinafter Vega). During the base year of the West Hollywood rent control ordinance, Mary Simonson's apartment house was inhabited, for the most part, by long-term, elderly tenants who were responsible for maintaining their units in exchange for low rents. For several of the units, the rent had not been increased for 15 to 20 years. Ms. Simonson's health began to fail, and she hired a manager for the property. At that point, she was in need of additional income for medical expenses and for increased property costs. A rent increase was sought. Ms. Simonson argued that she was entitled to an increase in the base date rent because her "historically low rents constituted `peculiar circumstances,' within the meaning of the Ordinance." (223 Cal. App.3d at p. 1345.) She further argued that she was denied a "`just and reasonable return'" within the meaning of the ordinance. (Ibid.) When her increase was denied, she sought a writ from the superior court, which remanded the matter to the rent control commission. The court ruled, among other things, that evidence of comparable rents was not to be treated as irrelevant by the commission.
Further procedural complications ensued, including the commission's adoption of a new regulation which established criteria for determining *1735 whether rental units are comparable. The commission eventually determined that peculiar circumstances caused Ms. Simonson's base rents to be disproportionately low. (223 Cal. App.3d at p. 1347.) In fixing the increased rent, however, the commission rejected her evidence of comparable rents on the ground that the evidence was incomplete. The commission ruled that Ms. Simonson should have presented evidence of the actual expenses of buildings, the amount of return generated by other buildings, and the relationship of the expenses and return to Ms. Simonson's expenses and return. The commission proceeded to simply set a new base rent date, one which reflected the increased rents set by Ms. Simonson's manager. (Ibid.)
Following that ruling, the matter was brought on appeal. The Vega court stated the issue before it as follows: "[W]hether the City's Ordinance and the Commission's regulations provide for the establishment of base rents which reflect the requisite market conditions and which thus `establish an effective mechanism to assure proper implementation of its policy decisions.' [Citation.]" (223 Cal. App.3d at p. 1349.)
Vega found that the West Hollywood ordinance lacked guidelines for determining how to adjust base date rents. The method chosen by the commission to make the determination, the court found, was "potentially unreasonably burdensome and costly" which could create "`a substantially greater incidence and degree of delay than is practically necessary,'" a result condemned by Birkenfeld. (223 Cal. App.3d at p. 1350.) The court then quoted Birkenfeld (17 Cal.3d at p. 169) in its statement that the critical question is "whether the base date rents can `reasonably be deemed to reflect general market conditions.'" (223 Cal. App.3d at p. 1351.)
Subsequent to the publication of Vega, the Board commissioners received a memo from staff recommending adoption of proposed Regulation No. 4005, subdivision (a)(8), to prohibit owners who purchased rental property after the adoption of rent control from seeking base rent adjustments.[4] The memo explained that Vega spawned an increase in the number of petitions from landlords seeking upward adjustments of base rents; that two such petitions were denied in part on the ground that the owners had purchased after rent control was adopted by the city on April 10, 1979; and that the denials were affirmed by the Board, which thereby adopted as a matter of policy that "post-rent control purchasers are not entitled to a Vega increase." *1736 The staff reasoned that Vega and Birkenfeld permit base rent adjustments upon a showing that the owner's situation led to the charging of rents that did not reflect market conditions. Those who purchased after 1979 were not involved in the decisions that led to the setting of rents in 1978. They bought properties that had a known schedule of regulated rents that could not be increased without permission. Moreover, debt service is not a factor in fair return calculations under Board Regulation No. 4101, subdivision (c)(2)(ii).[5] Therefore, the memo continued, since post-1979 purchasers negotiated price in a context that restricted them to the same percentage of net operating income obtained in 1978, those owners no doubt paid no more than the situation justified.[6]
In September 1992, the Board adopted Regulation No. 4005, subdivision (a)(8).
On October 8, 1992, respondents challenged the regulation by filing a complaint for declaratory and injunctive relief against the Board.
On April 8, 1993, the trial court granted respondents' summary judgment motion. The Board's motion for reconsideration was denied, and on May 28, 1993, judgment was granted, permanently enjoining the Board from enforcing Regulation No. 4005, subdivision (a)(8). The trial court concluded that the regulation "cannot be reconciled with the constitutional standard articulated in [Birkenfeld] and [Vega]."
DISCUSSION
1. There Is No General Constitutional Entitlement to Base Date Rents Adjusted to Market Levels
(2) Respondents maintain that Birkenfeld and Vega hold that owners of properties with base rents substantially below market rate are constitutionally entitled to have their base rents adjusted upward to base date market levels. That is a very broad reading of those cases. As stated in Birkenfeld, "Rent control enactments typically use the rent charged on a prior date as a starting point for the fixing of maximum rents on the theory that it approximates the rent that would be paid in an open market.... [Citations.]" (17 Cal.3d at p. 166; see Vega, supra, 223 Cal. App.3d 1342, 1349.) Though both opinions stated that the base date rents should reflect general market conditions, in both cases the landlord's entitlement to an increase in the base rent *1737 depended on the existence of circumstances that prevented the base rent from reflecting market conditions. The ordinance at issue in Birkenfeld did not provide for an increase on that ground, which was one of the reasons why the court held the ordinance was unconstitutional. The court suggested that the conditions for base date increase include seasonal fluctuation in demand, and a special relationship between the landlord and the tenant. Vega involved such a special relationship and an ordinance which provided (1) a presumption that the net operating income produced by the property during the base year provided a fair return, and (2) an opportunity to rebut the presumption by establishing, inter alia, that the rent on the base date was disproportionately low because it was not established in an arm's-length transaction or other peculiar circumstances. (223 Cal. App.3d at p. 1345 and fn. 1.) Neither case held that all landlords have the right to have their base rent adjusted merely by showing that the base rent was below market.[7] Respondents' position that "Birkenfeld and Vega establish a constitutional standard of general application to all historically low base rent properties without exception" is not supported by the opinions in those cases, and we hold that there is no general entitlement to an increase in base date rents predicated on market conditions.
(3) Respondents contend that the regulation is based on an unconstitutional premise, i.e., that the Board may consider a landlord's fair return on investment in determining whether to adjust base date rents. They argue that Birkenfeld and Vega require that base rents be established on a market base rather than on an investment base. Respondents cite to language in both cases which seems to support their position. Once again, however, respondents are reading more into Birkenfeld and Vega than is warranted by the opinions. Moreover, respondents are ignoring other cases that address the issue of a landlord's fair return in a rent control context. The Constitution requires that rent control schemes provide landlords with a just and reasonable return on property. (Birkenfeld, supra, 17 Cal.3d at p. 165.) A fair return on the value of a landlord's property is not constitutionally mandated; fair return on investment is constitutionally valid. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 686 [209 Cal. Rptr. 682, 693 P.2d 261] affirmed on another ground (1986) 475 U.S. 260 [89 L.Ed.2d 206, 106 S.Ct. 1045]; see also Searle v. City of Berkeley Rent Stabilization Bd. (1988) 197 Cal. App.3d 1251, 1256-1257 [243 Cal. Rptr. 449], review den.)
Respondents argue that Regulation No. 4005, subdivision (a)(8) discriminates against post-rent-control purchasers, implying that the RCL allows *1738 pre-rent-control owners to adjust their base date rents upward to base date market levels. That, however, would be a mischaracterization of the RCL. Pre-rent-control owners are given an opportunity to challenge in very limited ways the presumption that rents on a given date were providing the landlord with a just and reasonable return on their investment. As noted, the RCL regulates rents for the purpose of avoiding unreasonable increases while providing landlords with a fair return. Regulations Nos. 4100-4111 establish the "maintenance of net operating income" formula for determining whether a landlord is entitled to a rent increase. Those regulations have been found to establish "essentially a return on investment standard." (Baker v. City of Santa Monica (1986) 181 Cal. App.3d 972, 988 [226 Cal. Rptr. 755], review den.) The return on investment standard has survived facial challenges brought on constitutional grounds. (See, e.g., Fisher v. City of Berkeley, supra, 37 Cal.3d at pp. 679-682, and fn. 33, and p. 686; Cotati Alliance for Better Housing v. City of Cotati (1983) 148 Cal. App.3d 280, 287-296 [195 Cal. Rptr. 825].) We therefore find no basis for adopting respondents' position that Regulation No. 4005, subdivision (a)(8) is unconstitutional because its underlying premise is that landlords are entitled to fair return on investment.
2. Because the Regulation Might Be Confiscatory in a Given Case, It Is Unenforceable
(4) The Board's position is that the adjustment mechanism of Regulation 4103 should be available only to those owners upon whom the regulatory scheme was initially imposed, whose reasonable expectations would have been violated had rents been frozen at levels not negotiated in an arms-length transaction. The Board contends that post-rent-control purchasers should not have an opportunity to rebut the fair return presumption of Regulation No. 4102 because those purchasers bought their properties well-aware of the existing controlled schedule of rents and the rent control program. The Board argues that if the post-rent-control buyers can have the base rent increased, they will be receiving a greater than expected return on their properties.
While we agree in general with the arguments presented by the Board, we are concerned that Regulation No. 4005, subdivision (a)(8) is too broad in that it does not allow any post-rent-control purchaser to petition for a base rent increase on any ground. Because this is a facial challenge to the regulation, respondents have not presented a factual scenario which would lead us to conclude that a post-rent-control owner would be entitled to a base rent adjustment. The Board's arguments focus on those post-rent-control *1739 owners who will seek adjustments only on the basis of market levels. We have already held that there is no constitutional entitlement to have base rents reflect market conditions, and owners in Santa Monica have limited ways of challenging the presumption that rents on the base date were providing the landlord with a just and reasonable return on their investment. (Reg. No. 4103, subds. (b)(2), (3).) In light of that, there is no reason to preclude a post-rent-control owner in an unusual situation who might be entitled to a base rent increase under the RCL from seeking such an increase. Rent control regulations can have a confiscatory effect if no rent adjustment mechanism is provided, and a regulation may be invalid on its face when its terms will not permit those who administer it to avoid confiscatory results in its application to the complaining parties. (Birkenfeld, supra, 17 Cal.3d at pp. 165, 169.) We therefore hold that because Regulation No. 4005, subdivision (a)(8) could have unconstitutional results in particular cases, the trial court was correct in staying its enforcement.
DISPOSITION
The summary judgment is affirmed. Respondents are awarded costs on appeal.
Boren, P.J., and Fukuto, J., concurred.
A petition for a rehearing was denied June 13, 1994, and respondents' petition for review by the Supreme Court was denied August 11, 1994. Baxter, J., was of the opinion that the petition should be granted.
NOTES
[1] The complaint identifies the three respondents as follows: The Apartment Association of Greater Los Angeles is a nonprofit corporation of apartment owners with 27,000 members of whom approximately 2,000 own properties in Santa Monica. The Santa Monica Housing Council is also a nonprofit corporation comprised of Santa Monica rental property owners. Robert Sullivan is a Santa Monica resident.
[2] That requirement notwithstanding, RCL section 1805 empowers the Board to make a general adjustment of rent ceilings (subd. (a)), and to annually adjust rents in response to utility and tax increases or tax decreases, and for maintenance expense increases (subd. (b)).
[3] All regulation references are to the Board Regulations unless otherwise stated.
[4] Regulation No. 4005, subdivision (a)(8) provides: "(a) The Board shall not accept a petition for individual rent increase in any of the following circumstances: ... (8) Where the individual increase petition is filed by a landlord who purchased the property subsequent to April 10, 1979, seeking an adjustment to the base rent due to a claim that the base rent did not reflect market conditions or a claim pursuant to subsection 4103(b) of these regulations."
[5] Regulation No. 4101 is entitled "Definitions." Subdivision (c)(2)(ii) states that operating expenses shall not include mortgage principal and interest.
[6] The memo emphasized that the proposed regulation, limited to purchasers, would not extend to owners who take title through gift or inheritance.
[7] Indeed, the Vega opinion begins, "The issue in this case is how, under a particular municipal rent control ordinance and peculiar circumstances, rental rates must be determined." (223 Cal. App.3d at p. 1344, italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204136/ | 888 N.E.2d 1287 (2008)
PRIEST
v.
STATE.
No. 45A03-0712-CR-585.
Court of Appeals of Indiana.
June 18, 2008.
CRONE, J.
Disposition of case by unpublished memorandum decision. Dismissed.
BARNES, J. Concurs.
BRADFORD, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204138/ | 888 N.E.2d 873 (2008)
GUFFEY
v.
STATE.
No. 33A01-0801-CR-14.
Court of Appeals of Indiana.
June 9, 2008.
BAKER, C.J.
Disposition of case by unpublished memorandum decision. Affirmed, Reversed and Remanded.
RILEY, J. Concurs.
ROBB, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263843/ | 479 F.Supp. 850 (1978)
FALSTAFF BREWING CORPORATION, Plaintiff,
v.
LOCAL NO. 153, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Defendant.
LOCAL UNION NO. 153, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, an unincorporated labor union, Plaintiff,
v.
FALSTAFF BREWING CORPORATION, a corporation of the State of Delaware and authorized to do business in the State of New Jersey, Defendant.
Civ. A. Nos. 76-1383, 78-1483.
United States District Court, D. New Jersey.
November 3, 1978.
*851 *852 Pachman, Aron & Till by Peter W. Till, Jersey City, N. J., and Blank, Rome, Klaus & Comisky by Robert D. Kaplan and Michael A. Davis, Philadelphia, Pa., for Falstaff Brewing Corp.
Schneider, Cohen & Solomon by Edward A. Cohen, Jersey City, N. J., for Local No. 153, etc.
OPINION
MEANOR, District Judge.
Local No. 153, International Brotherhood of Teamsters (hereinafter "Union") has moved to enforce an arbitration award against Falstaff Brewing Corporation (hereinafter "Falstaff"). Falstaff has filed a cross-motion seeking to reopen Civil No. 76-1383 and consolidate that matter with Civil No. 78-1483 (the Union's enforcement action). Falstaff also seeks to vacate the arbitration award. At a hearing on these motions held October 10, 1978, this court granted Falstaff's motion to reopen Civil No. 76-1383 and to consolidate it with Civil No. 78-1483. At that hearing, Falstaff was also granted leave to file an amended complaint in Civil No. 76-1383. After oral argument, I indicated to counsel that I would reserve decision on whether to enforce or vacate the arbitration award. I also stated that my then present intention was to enforce the award and announced that a formal opinion would be filed on November 3, 1978.
I
In April 1972, Falstaff purchased the right to brew beer under the Ballantine label. As part of this purchase, Falstaff took over Ballantine's retail customer lists and delivery routes, including 15,000 to 17,000 retail customer accounts. As a result of the purchase, the old Ballantine brewery in Newark, New Jersey was closed. After some deliveries from the warehouse in Newark, Falstaff established a retail distribution depot in North Bergen, New Jersey.
When the North Bergen Depot opened in May 1972, some 240 members of either Local 153, International Brotherhood of Teamsters or Local 843, International Brotherhood of Teamsters were employed as warehousemen, route drivers or trailer drivers at the Depot. In November 1972, following a Teamster decision to award all of the work of the Depot to Local 153, a Collective Bargaining Agreement (hereinafter "CBA") was executed and made effective from June 1, 1973 and to terminate May 31, 1976.
During the 28-month period from June 1973 until October 1975, the Depot employed approximately 140 Union members and serviced the North Jersey and Metropolitan New York, Staten Island and Western Long Island area. The work of the Depot involved deliveries from the North Bergen facility to the 15,000-17,000 retail customers which Falstaff acquired from Ballantine, and who were located in the above defined area. The deliveries were made with 33 retail delivery trucks in New York and 16 in New Jersey. One truck was used for each of Falstaff's 49 routes. Additionally, the work consisted of the warehousing for distribution to these customers of the Ballantine labeled product. This was the same work performed by the bargaining unit employees since the beginning of the Depot in 1972, and was similarly performed by these identical employees as prior employees of Ballantine at the distribution center located at the former Ballantine brewery in Newark.
In 1974 and 1975, Falstaff faced a critical financial crisis. This crisis motivated a decision to curtail the operations of the North Bergen Depot starting on October 3, 1975 eight months prior to the termination date of the CBA. A meeting of Falstaff and Union representatives was called and the Union was advised of the curtailment. Within several days after the layoffs at the *853 Depot began, Falstaff made arrangements with two independent distributors, Fatato in New York and Piccirillo in New Jersey, to distribute the company products in their respective states encompassing the territorial jurisdiction of the North Bergen Depot as set forth in the CBA. These distributors acquired the trucks from the Depot emblazoned with the Ballantine logo, hired some of the laid off route drivers and gained access to the Depot's customer lists. Additionally, the distributors were granted credit considerations by Falstaff toward the purchase of beer from Falstaff's Cranston, Rhode Island brewery.
The Union filed the following grievance: A dispute has arisen between the parties concerning the Company [Falstaff] contracting out of its delivery operations in violation of the various provisions of the Collective Bargaining Agreement.
On October 17, 1975, arbitration was commenced. The initial hearing was held before Arbitrator Paul W. Hardy on February 27, 1976 under the Rules and Regulations for Arbitration of the New Jersey State Board of Mediation. At this hearing the parties entered into a submission agreement:
We the undersigned hereby agree to submit the following controversy to Arbitration: (No. persons involved 140)
Has the Company violated the applicable provisions of the collective bargaining agreement set forth on page 30 of the collective bargaining agreement? If so, what shall be the remedy?
* * * * * *
We hereby agree to submit such controversy for decision to PAUL W. HARDY.
We further agree that we will faithfully abide by and perform any award made pursuant to this agreement and that such award shall be binding and conclusive upon us.
This submission agreement was signed by counsel for the parties.
The parties thereafter agreed to bifurcate the hearing and to first present evidence and argument relating to the issue of liability on February 27, 1976. On April 21, 1976, the arbitrator issued an "Opinion and Award" confined to the question of whether Falstaff had violated the pertinent provisions of the CBA as set forth in Article XVI at page 30. These provisions state:
ANTI-DISCRIMINATION.
* * * * * *
Except as otherwise may be agreed upon between the Depot and the Union, the bargaining unit work shall continue to be performed by the employees in the bargaining unit except that the washing of vehicles may be sub-contracted to an independent agency.
* * * * * *
The delivery of products coming within the Falstaff local retail delivery operation in North Bergen, New Jersey, shall be the jurisdiction of Local 153.
It shall be the Depot's policy to use available Depot equipment in preference to available outside equipment unless otherwise agreed upon by the Depot and the Union.
The arbitrator ruled for the Union, finding that Falstaff had failed to abide by the provisions of the CBA.
On July 16, 1976, Falstaff filed Civil No. 76-1383 in this court to vacate and set aside the arbitrator's "Opinion and Award". On September 2, 1976, this court stayed further proceedings in the action pending final conclusion of the continuing arbitration hearings. The case was "administratively terminated" on September 17, 1976, because of the ongoing arbitration. The termination Order was entered without prejudice to reopen at a later date.
The arbitration hearings resumed in August 1976, at which time various issues relating to remedy were heard. On January 20, 1977, the arbitrator issued an "Interim Award" which held, inter alia, that the CBA was still in effect and would remain so until May 31, 1977. Because of the finding that the CBA was extended for a year beyond the termination date set in Article XXII of the CBA, the arbitrator ordered *854 that "the Company should cease and desist continuing to use distributors to distribute its Ballantine Falstaff labeled products in the New Jersey-New York metropolitan area previously serviced from its North Bergen depot." Interim Award, ¶ 1. Falstaff never complied with the cease and desist order.
The "Interim Award" further held that all employees laid off in October 1975 were entitled to monetary damages because they lost their employment due to Falstaff's violation of the CBA by converting to the use of independent distributors. Interim Award, ¶ 2. The arbitrator determined the method of calculating damages, Interim Award, ¶ 3, and made findings concerning health and welfare insurance coverage as well as pension credits due under the CBA. Interim Award, ¶ 4. Finally, the arbitrator held that the "[i]nterim Award shall guide the parties in the computation of damages . . .." Interim Award, ¶ 5.
After the filing of the "Interim Award", the arbitrator conducted hearings on the damages aspect of the case on various days from December 2, 1977 to April 18, 1978. On June 23, 1978, the arbitrator issued his "Final Opinion and Award" which reiterated the finding of the April 21, 1976 "Opinion and Award" that Falstaff violated the CBA, reaffirmed the contract extension finding of the "Interim Award", and fixed damages for back pay losses and loss of medical-insurance coverage suffered by the employees through May 31, 1977 in the amount of $1,560,189.31. The arbitrator further directed that Falstaff pay interest on that amount retroactive to June 1, 1977, at the rate of 7½% per year (.625% per month) and until payment of the damages is actually made to counsel for the Union. "Final Opinion and Award" at 15.
The contractual provisions authorizing and limiting arbitration are contained in Article XI of the CBA:
A grievance within the meaning of the grievance procedure shall be defined as any difference between the Depot and the employees covered by this Agreement or between the Depot and the Union as to: (a) any matter relating to wages, hours of work or working conditions covered by this Agreement, and (b) any matter involving the interpretation, application or claimed violation of this Agreement.
* * * * * *
STEP 4
* * * * * *
The decision of the arbitrator which shall not be in violation of any applicable law or regulation shall be final and conclusive on the Depot, the Union, the Grievant and all employees. The arbitrator shall have no power to add to or subtract from or modify any of the terms of this Agreement or any Agreement made supplemental thereto.
Falstaff submits that rulings of the arbitrator in the "Opinion and Award", the "Interim Award" and the "Final Opinion and Award" are either contrary to law or in excess of his authority under the CBA, the submission agreement, or both. As a result, Falstaff urges this court to vacate the arbitration award. At issue are damages of $1,560,189.31 to be paid to the Union plus interest at 7½% per year until payment is actually made. To date, there has been no payment. The Union contends that the awards are within the law as well as within the arbitrator's authority, and should be enforced.
Falstaff presents the following issues for determination by this court:
A. Does the Arbitrator's award fail to draw its essence from the collective bargaining agreement in that it directly obstructs the Company's Cranston, Rhode Island, operations which are not covered by that agreement?
B. Does the Arbitrator's interpretation and application of the collective bargaining agreement violate federal antitrust and labor law in that it prohibits the Company from doing business with independent distributors at its Cranston, Rhode Island, facility?
*855 C. Did the Arbitrator exceed his authority by ruling that the Company violated the collective bargaining agreement by permitting independent distributors to purchase beer at its Cranston, Rhode Island, facility?
D. Does the Court rather than the Arbitrator have jurisdiction to determine whether the Union terminated the collective bargaining agreement as of May 31, 1976?
E. Did the collective bargaining agreement terminate on May 31, 1976, in accordance with its own terms and based on the actions of the parties?
F. Assuming arguendo that the Arbitrator had jurisdiction to decide the contract extension issue, did he act arbitrarily and unreasonably in ruling that the agreement continued an additional year beyond its stated term?
G. Did the Arbitrator exceed his authority by failing to measure back pay by the amount of work actually performed by the distributors?
H. Did the Arbitrator err in imposing interest?
After consideration of and reflection upon the arguments of counsel and the voluminous documents and memoranda submitted in support thereof, it is the decision of this court that the "Final Opinion and Award" of the arbitrator shall be enforced in its entirety.
II
Before reaching any of the issues framed by Falstaff, this court must examine the threshold question of its own scope of review of arbitration awards in light of the law and public policy behind arbitration proceedings.
In United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the third case decided in the landmark "Steelworkers Trilogy", the Supreme Court outlined the role of the judiciary in reviewing an arbitrator's interpretation of a collective bargaining agreement as follows:
[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. Id. at 599, 80 S.Ct. at 1362.
* * * * * *
Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. Id. at 597, 80 S.Ct. at 1361.
See generally, St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at "Enterprise Wheel" and Its Progeny, 75 Mich.L.Rev. 1137 (1977).
Enterprise enunciated a basic philosophy that was to apply to all other labor arbitration cases. It elevated the arbitrator to an exalted statusemphasizing that there would be no interference with his award simply because a reviewing court differed with him in its interpretation of the provisions of the contract. At the same time it held a checkrein on himconfining his zone of action to the four corners of the collective bargaining agreement. Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1126 (3d Cir. 1969).
In Honold, the Court of Appeals formulated the standard that this Circuit now applies in translating the "essence" test into the appropriate extent or limitation of judicial review of the arbitrator's interpretation. The Honold panel held:
that a labor arbitrator's award does "draw its essence from the collective bargaining agreement" if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties' intention; only where *856 there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award.
Id. at 1128.
The Honold court stressed the Circuit's awareness of and concern for the strong public policy of encouraging the peaceful settlement of industrial disputes by means of the arbitration device. That court concluded that the Supreme Court's philosophy of restricted review at the very least means that the interpretation of labor arbitrators must not be disturbed so long as they are not in manifest disregard of the law, and that "whether the arbitrators misconstrued a contract" does not open the award to judicial review. Id. The Court of Appeals recently reaffirmed the Honold standard in International Brotherhood of Teamsters, Etc. v. Western Pennsylvania Motor Carriers Assoc., 574 F.2d 783 (3d Cir. 1978).
Here, Falstaff and the Union entered into the CBA in June 1973. The submission agreement signed by the attorneys for the parties stated:
We further agree that we will faithfully abide by and perform any award made pursuant to this agreement and that such award shall be binding and conclusive upon us.
Thus, there can be no doubt that Falstaff agreed to submit the controversy to the arbitrator and further agreed to be bound by his findings and remedies. Where parties to a collective bargaining agreement have provided that arbitration shall be the final and binding method for settling grievances, the arbitration award is generally nonreviewable by a court. This serves the legislative policy of allowing the parties to a collective bargaining agreement to determine in advance the desired method of grievance resolution. Westinghouse Elevators of Puerto Rico, Inc. v. S.I.U. de Puerto Rico, 583 F.2d 1184, 1185-1186 (1st Cir. 1978).
The essence of the arbitration process is that an arbitral award shall put the dispute to rest. Finality is the ideal that Congress has endorsed:
Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.
Labor-Management Relations Act § 203(d), 29 U.S.C. § 173(d) (1970) (emphasis added). Accordingly, when the losing party in arbitration asks a court not to give effect to an award, it is asking that the conclusiveness which is at the heart of the process be withheld. The core considerations seem clear. First, the parties have contracted for a final and binding award; the party who resists adherence to it is therefore seeking to be relieved of his bargain. Second, whether judicial intercession results in enforcement or vacation of the award, expediency in the resolution of the dispute is lost. Comment, Judicial Deference to Arbitral Determinations: Continuing Problems of Power and Finality, 23 U.C.L.A.L.Rev. 936, 949 (1976). The "binding and conclusive" provision of the submission agreement between Falstaff and the Union could not be clearer in evidencing their intent to put this dispute to rest through the arbitral process.
In its complaint filed in Civil No. 76-1383, Falstaff invokes this court's jurisdiction under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, as well as other statutes (including the Federal Arbitration Act, The Sherman Act and the diversity statutes). The Supreme Court has defined the scope of judicial inquiry under § 301 of the LMRA as follows:
[T]o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made.
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Citing *857 the above statement from Warrior & Gulf, this court through Judge Fisher in Local 701 v. Needham's Motor Service, Inc., 82 LRRM 2412 (D.N.J.1972), held that a submission agreement submitting a dispute to arbitration for a final and binding decision constituted a waiver of the right of the parties to have the dispute settled by any tribunal other than the arbitrator upon whom jurisdiction was granted through the submission agreement. An agreement that an arbitration award shall itself be final and binding upon the parties generally precludes judicial review. Monte v. Southern Delaware County Authority, 335 F.2d 855, 857 (3d Cir. 1964).
An eminently practical approach for any respondent in arbitration who believes the arbitrator lacks jurisdiction, is to preserve explicitly his challenge to jurisdiction and to declare that his challenge will be presented to a court if there is an adverse decision on the merits. St. Antoine, Judicial Review of Labor Arbitration Awards, supra, 75 Mich.L.Rev. at 1151. Courts respect such reservations and do not accord the resulting awards the usual presumption of legitimacy. Local 719, American Bakery Workers v. National Biscuit Co., 378 F.2d 918 (3d Cir. 1967). The record before this court reveals no such challenge to the arbitrator's jurisdiction coupled with any statement preserving such a challenge for review by a court.
Falstaff contends that the arbitrator has exceeded his authority under the contract and that his award fails to draw its essence from the CBA. In NF&M Corporation v. United Steelworkers of America, the Court of Appeals for the Third Circuit noted:
An arbitrator is not required to list his reasons for the award, nor should an ambiguity in his opinion be seized upon to support an inference that he exceeded his authority. Enterprise, supra. Further, a court is precluded from overturning an award for errors in assessing the credibility of witnesses, in the weight accorded their testimony, or in the determination of factual issues.
524 F.2d 756, 759 (3d Cir. 1975). Accordingly, in order for this court to determine whether the arbitrator's award draws its essence from the CBA, it may look to the Agreement itself and the arbitrator's award, but it may not give de novo review to the merits of the arbitrator's construction of the CBA. To accept a view that the courts could, under the standard arbitration clause, review the merits of every construction of the contract would make meaningless the provisions that the arbitrator's decision is final, for in reality it would almost never be final. Enterprise Wheel and Car Corp., supra, 363 U.S. at 598-599, 80 S.Ct. 1358. Constrained by the narrow scope of review permitted under the Honold standard, this court may now proceed to examine the issues as presented by Falstaff.
III
In issues A, B and C (pages 854-855 of this opinion), Falstaff raises for consideration the effect of the CBA on the company brewery at Cranston, Rhode Island. Falstaff urges that the arbitrator's award directly obstructs the Cranston operations which are not covered by the CBA. Falstaff additionally contends that the arbitrator's interpretation and application of the CBA violates Section 1 of the Sherman Act, 15 U.S.C. § 1 (Supp.1978), and Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1973), in that it prohibits Falstaff from selling beer for resale to independent distributors at the Cranston facility.
It is significant that never before, throughout the liability phase of the arbitration proceedings, had Falstaff ever raised the issue of the CBA's effect on the Cranston brewery. In Mogge v. District 8, International Ass'n of Machinists, 454 F.2d 510 (7th Cir. 1971), a panel of the Court of Appeals for the Seventh Circuit (which included the now Mr. Justice Stevens) held that where a party to an arbitration proceeding fails to bring certain matters to the arbitrator's attention, that party when seeking to vacate the award may not supplement the record before the court. That *858 court noted in language most applicable in the case at bar:
The national labor policy of encouraging private arbitration of labor disputes, because of its potential for expeditious disposition of these matters without resort to the courts, has been thwarted in this protracted case. To allow [defendant], after arbitration, to have the court supplement the record with information that was available at the time of arbitration would further undermine the very purpose of private arbitration. We have concluded that these matters were never properly preserved for appeal.
Id. at 513.
Falstaff contends that the CBA, as interpreted by the arbitrator, forecloses the independent distributors from the market and constitutes an unlawful concerted boycott. Additionally, Falstaff contends that the resale by independent distributors of beer produced at the Cranston plant is not work "fairly claimable" by the bargaining unit, and that Section 8(e) of the National Labor Relations Act makes illegal the Falstaff-Union contractual provision, interpreted by the arbitrator to require Falstaff to refuse to deal with independent distributors. In response, the Union contends that the provisions on page 30 of the CBA which were the subject of the arbitration proceedings, were primary work preservation provisions, and that such a provision in a collective bargaining agreement has never been held violative of the Sherman Act.
Following both the arbitrator's "Opinion and Award" of April 21, 1976, and the "Interim Award" of January 20, 1977, Falstaff filed charges with the National Labor Relations Board advancing the contention that the arbitrator's interpretation of these provisions made them lose their status as primary work preservation provisions. Additionally, Falstaff urged that the arbitrator's ruling that all employees were entitled to damages from the conversion to independent distributors was "evidence" that they were not still primary work preservation provisions. Following investigation by the Regional Director of the N.L.R.B., each charge was dismissed.
In International Brotherhood of Teamsters, Local No. 153 (Falstaff Brewing Corp.), NLRB Case No. 22-CE-36, the dismissal letter of November 11, 1976 stated:
In this regard, it was noted that the contractual provisions, set out on page 30 of the collective bargaining agreement, are lawful on their face and that nothing in Arbitrator Hardy's decision warrants a different conclusion. It was also noted that Local 153 had both during the arbitration hearing of August 23, 1976 and in subsequent correspondence to the arbitrator specifically disclaimed any intent of work acquisition and limited its position in the pending damage portion of the arbitration matter to that of merely preserving the unit work of the North Bergen depot employees. As the Board has held that Section 8(e) of the Act does not bar contractual provisions which merely seek to preserve for employees traditional bargaining unit work the agreement was deemed to be lawful in this regard.
(Citations omitted.) On January 24, 1977, an appeal taken by Falstaff from this decision was denied by the Office of Appeals for the reasons stated by the Regional Director.
Falstaff filed the same charge after the arbitrator's January 20, 1977 "Interim Award" in which he found that all depot employees terminated after October 3, 1975 were entitled to back pay and that the measure of damages was based upon their prior average earnings. The N.L.R.B. Regional Director's dismissal letter in this case, NLRB Case No. 22-CE-37, under the same caption, issued March 8, 1977, stated:
In Case No. 22-CE-36 involving the instant parties, I determined that the same contract as interpreted by Arbitrator Hardy's decision of April 21, 1976 determining the merits of the parties' dispute was not violative of Section 8(e) of the Act but rather was merely a construction limited to preserving the unit work of the North Bergen depot employees. At that time I noted that Local 153 had specifically disclaimed any intent of *859 work acquisition and limited its position before Arbitrator Hardy to that of seeking merely to preserve unit work. Subsequent to his decision of January 20, 1977, Local 153 has reaffirmed their positions. In light of this and noting that Local 153 has not taken any action inconsistent with that position, I have determined that the contract as interpreted by the January 20, 1977 decision is a lawful unit work preservation agreement.
(Citations omitted.)
You also contended that the arbitrator, in finding that all 140 employees, employed at the time Falstaff used independent distributors exclusively, are entitled to back pay, thereby disclosed that Local 153 is seeking more than the preservation of unit work. In this connection, you have noted as relevant that the present volume of work done by the independent distributors is only approximately one-half of the amount which had been done at the North Bergen facility, when it was operative. I find no merit to this contention as the arbitrator's award is clearly limited to damages incurred by Falstaff's converting to the use of independent distributors and as Local 153 has clearly limited the award to unit work lost.
(Emphasis in original.)
On April 12, 1977, an appeal taken from this second decision by Falstaff was denied by the Office of Appeals for the reasons stated by the Regional Director. This concluded the N.L.R.B. proceedings in this case.
It is obvious that the N.L.R.B. has concluded that the page 30 provisions are lawful unit work preserving agreements. Such a work preservation provision of a collective bargaining agreement, protected by Section 8(e) as a proper negotiated condition of employment, cannot be a violation of the Sherman Act. In Federal Maritime Commission v. Pacific Maritime Assn., 435 U.S. 40, 57, 98 S.Ct. 927, 937, 55 L.Ed.2d 96 (1978), the Supreme Court set forth the general status of the interaction of the Sherman Act and the labor exemption to that Act:
[Ordinary collective bargaining agreements establishing wages, hours, and working conditions in a bargaining unit] are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints.
In holding that legitimate working conditions set forth in collective bargaining agreements do not violate the Sherman Act, the Supreme Court has repeatedly stated that "[C]ongressionally permitted union activities may restrain trade in and of themselves," but remain lawful. Ramsey v. United Mine Workers, 401 U.S. 302, 313, 91 S.Ct. 658, 665, 28 L.Ed.2d 64 (1971); Allen Bradley Co. v. Local Union No. 3, IBEW, 325 U.S. 797, 811, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945).
In the instant case, we are dealing with the normal collective bargaining relationship, a CBA between one union and one employer covering actual employees working out of a single job site (the North Bergen Depot), and a primary job preservation provision which the N.L.R.B. has already found to be lawful both as written and as applied by the arbitrator here. Cf. Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975).
Falstaff's attempt to vacate the arbitration award based upon its view that the arbitrator's interpretation of the page 30 provisions constitutes a violation of Section 1 of the Sherman Act and Section 8(e) of the National Labor Relations Act is without merit. The argument advanced by Falstaff that the arbitrator's "Interim Award" finding that the company "should cease and desist continuing to use distributors to distribute its Ballantine Falstaff labeled products *860 in the New Jersey-New York metropolitan area previously serviced from its North Bergen depot", exceeded his authority under the CBA is, at best, transparent. Examination of the language of the "Interim Award" reveals that the "cease and desist" finding is in the context of determining that the CBA was effective until a certain date, May 31, 1977. It is obvious that the arbitrator's prohibition of independent beer distribution was limited to the effective dates of the CBA. There is simply no way to construe the language of the arbitrator as extending the prohibition beyond May 31, 1977. Thus, the prohibition was derived from the very essence of the CBAfrom the page 30 work preservation provisions and from the termination provision of Article XXII. Moreover, the "cease and desist" finding was in the "Interim Award" which Falstaff ignored. There is no "cease and desist" language included in the "Final Opinion and Award". In this last award, the arbitrator directed Falstaff to pay back pay and damages, and to supply lost pension credits to employees; that is all. Falstaff's contention that the arbitrator's interpretation of the CBA interfered with the operations of the Cranston brewery may have been an issue earlier in the arbitration proceedings. However, the issue was never raised in the liability phase, Falstaff never complied and thus was not prejudiced, and the CBA has now expired rendering the issue moot.
Issues C, D and E advanced by Falstaff (page 855 of this opinion) pertain to the arbitrator's finding that the contract was extended an additional year, to May 31, 1977 by the terms of Article XXII. This termination clause states:
TERMINATION
This Agreement shall be in full force and effect from June 1, 1973 to and including May 31, 1976, and shall automatically continue from year to year until either party serves written notice on the other party sixty (60) days prior to any annual expiration date that changes are desired herein and that the desired changes will be submitted thirty (30) days prior to the expiration. During the term of this Agreement, the employees represented by the Union and its members will continue to work without strike.
Here, Falstaff contends that the arbitrator never had jurisdiction to arbitrate the issue of contract extension, and that such an issue could only be properly before a court. On the assumption that this court accepts that proposition, Falstaff then argues the merits of whether the CBA expired on May 31, 1976, in accordance with its own terms, based upon the actions of the parties. Falstaff then concludes by asserting that, if the arbitrator did have jurisdiction, he decided the issue in an arbitrary and unreasonable manner.
Falstaff's assertion that the arbitrator lacked jurisdiction to arbitrate the issue is unsupportable. Although Falstaff vigorously claimed throughout the damages phase of the proceedings that the CBA expired on May 31, 1976 as a matter of law, it never raised the question of arbitrability in any of its extensive memoranda nor in the testimony before the arbitrator. The record demonstrates that the merits of the issue of contract termination or extension was, by express stipulation of both Falstaff and the Union, submitted to the arbitrator for decision without reservation or qualification. Additionally, the record indicates that Falstaff (along with the Union) strongly urged the arbitrator to decide the merits in his arbitration award of the issue because such a decision was vital to damage calculations that would have to be made. The transcript of the August 23, 1976 hearing before the arbitrator includes the following statement by Kenneth F. Kahn, Esq. of the Philadelphia firm Blank, Rome, Klaus & Comisky representing Falstaff:
Mr. Kahn: I think Ed [Cohen, the attorney for the Union] and I both have certain stipulations which we can present to you on matters which we need some guidance on in terms of a preliminary award on the damages so that we can, therefore, proceed and calculate what would be due. I think *861 the first question is whether the Collective Bargaining Agreement terminated on May 31, 1976 or whether it still continues in full force and effect. Number two would be. . .
Transcript at 56-57.
In its post-hearing memorandum, Falstaff urged the arbitrator to decide the issue and specifically refers him to the arguments on the merits submitted in Falstaff's pre-hearing memorandum. Posthearing Memorandum at 2. Thus, the issue of whether or not the CBA had actually expired, or continued beyond May 31, 1976, was the first stipulated issue presented to the arbitrator at the hearing on the damages phase of the case. The issue of arbitrability was never posed at all. Even on the final day of hearing, April 18, 1978, when Falstaff moved to reargue to the arbitrator his prior rulings on several issues, including the CBA termination issue, there was no claim of lack of jurisdiction or want of arbitrability. Accordingly, Falstaff's argument to this court that the termination issue was not arbitrable must fail. Both parties clearly submitted the issue to the arbitrator.
The merits of the contract extension issue do not bear more than cursory examination by this court once it has been determined that the arbitrator did, indeed, have the power and authority to decide the issue. See Part II of this opinion on this court's scope of review of an arbitration award involving contract interpretation. The "Final Opinion and Award" sets forth the arbitrator's findings and rationale behind construing the Termination clause to extend the CBA until May 31, 1977. Appendix at 6-7. In light of the arbitrator's analysis of the facts presented to him, this court concludes that it is logically possible to interpret Article XXII the way the arbitrator did. My subjective opinion as to the proper construction or application of the clause is of no moment here. General Teamsters, Chauffeurs and Helpers, Local Union No. 249 v. Potter-McCune Company, 412 F.Supp. 8, 11 (W.D.Pa.1976). Certainly, the arbitrator had grounds upon which to base his interpretation. Cf. H. K. Porter Co., Inc. v. United Saw, File and Steel Products Workers of America, 333 F.2d 596, 602 (3d Cir. 1964). Whether such an interpretation is the best interpretation is not a matter for this court. Enterprise Wheel and Car Corp., supra, 363 U.S. at 599, 80 S.Ct. 1358.
Issues G and H presented for consideration by Falstaff (page 855 of this opinion), raise the damages and interest award for this court's scrutiny. Falstaff contends that the arbitrator exceeded his authority by failing to measure back pay by the amount of work actually performed by the independent distributors who replaced the laid off members of the bargaining unit. Falstaff also asserts that the arbitrator erred in imposing interest.
The appropriate measure of damages was also an issue that was stipulated to at the August 23, 1976 hearing. Each side outlined its various theories of how to measure the damages both at the hearing and in subsequently submitted memoranda. (Falstaff's memo on damages runs a remarkable 133 pages). Falstaff now contends that the "arbitrator applied a faulty method to determine loss of wages and back pay." Falstaff Brief at 80. This is very simply a situation where the arbitrator did not accept any of the various damages theories put forth by Falstaff. The arbitrator found, in the "Final Opinion and Award" that:
The proper measure of monetary damages in this type of case is based upon lost earnings, if any, and damages for loss of medical insurance coverage, if any, to all employees laid off as a result of the Company's wrongful conversion to the use of independent distributors. The hearings between December, 1977 and April, 1978 supplies the evidence necessary for the calculations. I find that all of the employees being given relief are entitled to relief for the Company's violation of the Agreement.
Final Opinion and Award at 8-9.
The argument that Falstaff advances here, that the measure of damages should *862 be based upon the amount of product distributed through the independent distributors, is the same argument made before the N.L.R.B. in the claim that the "Interim Award" violated Section 8(e) of the National Labor Relations Act. The Regional Director Disagreed on March 8, 1977 and dismissed Falstaff's complaint, holding:
I find no merit to this contention as the arbitrator's award is clearly limited to damages incurred by Falstaff's converting to the use of independent distributors and as Local 153 has clearly limited the award to unit work lost.
(Emphasis in original.)
The facts here indicate that Falstaff had contractually agreed that the unit employees would continue, for the duration of the CBA, to distribute the beer to Falstaff's 15,000-17,000 retail customers of the Depot, and that Falstaff would use its own trucks for that purpose, as distinguished from having independent distributors do so, using their employees and trucks. This is what Falstaff promised the employees in agreeing to the work preservation provisions on page 30 of the CBA. The arbitrator found in his awards that this promise was breached when Falstaff began distributing its products to those same retail customers of the Depot through independent distributors. Falstaff had agreed with the Union and the employees that, if it was going to distribute Ballantine beer at all to those retail customers, its own employees would do so and they need not fear losing their jobs by a company conversion to independent distributors.
The arbitrator limited the damages to the unit work lost. This measure of damages was arbitrated in a series of hearings with the positions of the parties supported by lengthy pre-hearing and post-hearing memoranda. The submission agreement requested the arbitrator to determine the appropriate remedy. Both arbitration awards and N.L.R.B. decisions have used the same measure of damages as applied here. See, e. g., Sidele Fashions, Inc., 36 LA 1364, 1384 (1961); Winchester Electronics, Inc., 128 N.L.R.B. No. 110, 46 LRRM 2013 (1960), modified, N.L.R.B. v. Winchester Electronics, Inc. 295 F.2d 288 (2d Cir. 1961).
Here, the CBA is silent on matters of remedy and does not explicitly limit the arbitrator in this regard. In Enterprise Wheel and Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361, the Supreme Court addressed the issue:
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency.
This court has no doubt that the arbitrator was well within the bounds of his authority to fashion the remedy of the "Final Opinion and Award". See, Newark Wire Cloth Co. v. United Steelworkers, 339 F.Supp. 1207 (D.N.J.1972); Shahmoon Ind., Inc. v. United Steelworkers of America, 263 F.Supp. 10 (D.N.J.1966).
On the issue of interest, Falstaff contends that since the CBA is silent on the imposition of interest in a damages award, the award of interest is barred. Falstaff also urges that the imposition of interest is punitive and unwarranted. These contentions are specious; the language of the "Final Opinion and Award" is most clear and dispositive:
The parties empowered the Arbitrator in the arbitration submission agreement to determine the proper remedy for the violation. Interest is not a penalty against the Company. Its function is to make the employees reasonably whole, and that is the proper remedy. I am also mindful of the long time that has passed since the layoff of the employees.
Final Opinion and Award at 14. Interest is within the traditional inherent powers of an arbitrator to award in order to make an employee whose rights have been violated reasonably whole.
*863 For the foregoing reasons, the Union's motion to enforce the arbitrator's "Final Opinion and Award" is granted in its entirety. The court will enter its own Order and Final Judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337114/ | 82 Ga. App. 97 (1950)
60 S.E.2d 631
CONAWAY
v.
McCRORY STORES CORPORATION.
32869.
Court of Appeals of Georgia.
Decided July 7, 1950.
*99 Francis G. Jones Jr., for plaintiff in error.
Haas & Hurt, contra.
MacINTYRE, P.J.
"It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly *100 against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (1) (96 S.E. 867). . .
"It is an established rule of pleading that conclusions in conflict with the pleaded facts are to be disregarded (Flynt v. Southern Railway Co., 7 Ga. App. 313 (1), 316, 66 S.E. 957), and general allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer, to the particular facts shown where inferences from the facts are necessarily to be drawn contradictory of the conclusions. Wood v. Pynetree Paper Co., 29 Ga. App. 81 (114 S.E. 83 (4)). . .
"Every case of this character must stand largely upon its own facts, and questions of negligence are questions of fact, and therefore come within the peculiar province of the jury; but, nevertheless, where facts are considered on demurrer and any rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary care on the part of the plaintiff . . the demurrer should be sustained and the case ended without requiring the defendant to resist a possible recovery not authorized under the facts as alleged. Southern Railway Co. v. Young, 20 Ga. App. 362, 367 (93 S.E. 51); Hill v. Louisville & Nashville R. Co., 124 Ga. 243 (2) (52 S.E. 651, 3 L. R. A. (N.S.) 432)." Moore v. Seaboard Air-Line R. Co., 30 Ga. App. 466 (118 S.E. 471).
The question involved is not one of dangerous construction, but one of negligent maintenance. McCrory Stores Corporation v. Ahern, 65 Ga. App. 334 (15 S.E. 2d, 797). There are many conclusions drawn in the petition which state that the floor was slippery and dangerous and that the plaintiff fell as a result of the failure of the defendant to remove the water and mud from the floor at the entrance to its store. However, the specific facts alleged in the petition upon which those various conclusions are based are that when it rained customers brought rainwater and mud into the entrance on their shoes and that this caused the floor at the entrance to become slippery and dangerous. *101 Where the defendant was aware of the presence of the substance upon the floor which produced a slippery condition and fails to remove it, the jury may be warranted in inferring negligence from his nonaction if the substance is not discernible to the invitees by the exercise of reasonable alertness. If the owner of a store invites the public to enter, he is required to exercise ordinary care to maintain his floors in a condition reasonably safe for the purposes of the invitation. Ordinarily, if the floor is without structural defects, he is not required to place mats at the entrance ways on rainy days nor to mop up rainwater tracked in by customers provided the condition of dampness is readily discernible to those who enter. S. S. Kresge v. Fader, 116 Ohio St. 718 (158 N.E. 174, 58 A. L. R. 132); Murray v. Bedell Co., 256 Ill. App. 247.
A finding of negligence of the proprietor of a city store is not warranted by evidence merely that, on a day when it has rained, a customer slips and falls in a recessed entrance to the store where it is wet and there is a coating of mud. Grace v. Jordan Marsh Co., 317 Mass. 632 (59 N.E. 2d, 283). Before an owner can be held liable for the slippery condition of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care. Lyons v. Lich, 145 Ore. 606 (28 P. 2d, 872).
We now come to the application of these rules to the present case. The petition, in effect, alleges only implied knowledge on the part of the defendant of the presence of the water and debris on the floor and of its slippery condition. There is no question of the light being dim or that shadows or anything else obscured the view of the plaintiff of the place or entrance in question as she approached. The question of visibility is not here involved for it is obvious that had the plaintiff looked she could have seen the condition of the floor. The question then appears to be whether or not, under the evidentiary facts alleged in the petition, the defendant was liable to the plaintiff, an invitee upon such premises, where such invitee is caused to slip and fall by reason of such rainwater and mud upon the floor of the entrance. From the allegations of fact it is apparent that the danger, if any, was as clearly evident to the plaintiff as to the *102 defendant and that she was aware of the condition of the floor and of the possibility of sustaining a fall before she undertook to pass over or along the floor of the entrance in question. The condition described in the petition is one that is not unusual, but is customarily to be found on such days, as the day described in the petition, in entrances of this character and on the sidewalks and entrances to public places.
It is the rule in this State that the plaintiff cannot recover unless the defendant's negligence exceeds that of the plaintiff. In the instant case the plaintiff was as well apprised of the condition existing in the entrance as the defendant and should be held to as high a degree of care for her own safety as the defendant. Murray v. Bell, supra; Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 S.E. 2d, 680).
For the foregoing reasons the judgment of the superior court sustaining the general demurrer was not erroneous.
Judgment affirmed. Gardner and Townsend, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337104/ | 60 S.E.2d 280 (1950)
HALL
v.
McLUCKEY et al.
No. 10230.
Supreme Court of Appeals of West Virginia.
Submitted April 25, 1950.
Decided June 27, 1950.
*282 J. W. Maxwell, Beckley, Kermit A. Locke, Beckley, for appellants.
Scherer, Bowers & File, Beckley, Clay S. Crouse, Beckley, for appellee.
*281 LOVINS, President.
This suit instituted in the Circuit Court of Raleigh County by Earl A. Hall against Colin McLuckey and Beckley Music and Electric Company, a corporation, has for its purposes the appointment of a special receiver of the property and records of the corporation, the award of an injunction inhibiting McLuckey from managing the business of the corporation, an audit of the books of the corporation, and ultimately its dissolution, a sale of its assets and distribution of the proceeds of such sale.
Having overruled a demurrer to the bill of complaint, the trial court entered a decree appointing a special receiver of the property and records of the corporation, awarding an injunction, without bond, inhibiting McLuckey from managing the business of the corporation, and appointing a person to audit the books of the corporation under the supervision of the court This Court granted an appeal.
No proof was offered, unless two affidavits filed by plaintiff in support of his motion for the appointment of a special receiver and the award of an injunction be so characterized. Therefore, we must rely, in the main, on the bill of complaint and the joint and separate answer of defendants. The allegations disclosed by those pleadings may be classified as those admitted and those denied. For the purposes of this opinion the events narrated in the two affidavits may be treated as having been shown by prima facie proof.
The bill of complaint alleges that prior to October 5, 1944, plaintiff was engaged in the business of selling merchandise through a corporation known as the Beckley Music Store, located at No. 110 South Fayette Street, Beckley. Plaintiff being ill, it became necessary for him to discontinue the management of the business. Having such object in view, he made an agreement with McLuckey, whereby McLuckey assumed the active management of the business; and a new corporation was organized known as the Beckley Music and Electric Company, hereinafter referred to as the "corporation". It was also agreed that plaintiff and McLuckey *283 would invest equal amounts of money, or the equivalent in the business of the corporation. A corporate charter was obtained, a copy of which is filed with the bill of complaint as an exhibit. The charter conferred wide powers on the corporation, many of which are unnecessary to notice in this opinion. Among these powers conferred was the power "to purchase, hold, sell and transfer shares of its own capital stock, bonds and other obligations of this corporation from time to time to such extent and in such manner and upon such terms as its board of directors may determine."
The authorized capital of the corporation is $50,000, divided into five hundred shares of the par value of $100 each. The corporation commenced business with a subscription of fifteen shares of its capital stock, the plaintiff holding seven shares, McLuckey seven shares, and L. L. Scherer one share. The one share subscribed by L. L. Scherer was never issued, or if issued was endorsed and returned to the corporation. After the issuance of the charter the new corporation commenced business under the management of McLuckey, who, as its president, issued and delivered to plaintiff a certificate for one hundred four shares of its capital stock. Since October 5, 1944, McLuckey has been the active manager of the corporation. However, he has recently become ill, and probably has not engaged in its active management during the pendency of this suit.
Plaintiff made demand on McLuckey on June 14, 1949, for permission to examine the records and papers of the corporation, including the bylaws and minutes of all meetings of stockholders and directors, the stock certificate book, stock transfer ledger, annual audit for each year during its existence, copies of Federal income tax returns for each year, the open accounts of plaintiff and defendant with said corporation, and all other records necessary to a determination of its financial status.
McLuckey not having complied with the demand, on June 23, 1949, plaintiff's attorney advised McLuckey that such action as was necessary would be taken. This suit followed.
Momentarily disregarding the effect of defendants' demurrer to the bill of complaint, the following allegations of the bill of complaint are effectively denied by defendants' joint and separate answer: That plaintiff and defendant at the time of or prior to the formation of the corporation agreed to acquire, hold and continue to hold the capital stock of the corporation in equal shares, subject to the issuance of one share to a third person to meet the legal requirement relative to the minimum number of stockholders; that the one share so issued should be reassigned to the corporation after its formation; that the business would be carried on at the same location as the old business had been conducted; that McLuckey would be paid a salary of $300 a month as manager; that the net profits of the corporation would be paid out in dividends in equal amounts to plaintiff and McLuckey; that McLuckey refused plaintiff's request to call stockholders' meetings to organize the corporation and elect officers; that McLuckey has refused to meet with plaintiff for the purpose of holding stockholders' meetings and considering the business of the corporation; and that McLuckey has refused to furnish plaintiff with copies of the audits or to give information with reference to the corporation's business.
Plaintiff avers that he has not been paid any of the net profits of the business, and upon information and belief charges that McLuckey has managed the business of the corporation for his own benefit and converted the profits thereof to his own use to the prejudice of plaintiff's rights, which averments are denied. Defendants admit in their answer that no dividends have been paid, and assert that the net income from the corporation's business has been used for the benefit of the corporation and the extension of its business.
Plaintiff further charges, all of such charges being denied by defendants, that McLuckey has possession of the books and records of the corporation, and has refused to allow plaintiff to inspect the same; that plaintiff is in danger of losing his rightful interest; that McLuckey has exceeded his *284 authority as manager; and that he has acted contrary to the law of West Virginia.
Plaintiff further avers that McLuckey has refused to enter into a voluntary dissolution of the corporation, and upon information and belief plaintiff alleges that in order to maintain the issues on his part properly it is necessary for him to have discovery of the following: (a) If the defendant corporation has adopted by-laws, and if so the provisions thereof; (b) if any meetings of stockholders and directors of said corporation have been held, the actions taken at said meetings; (c) the amount of capital stock issued and to whom; (d) a disclosure of the annual audits of the corporation's business, since its incorporation and the present status of such business; (e) an itemized statement of the purchases from said corporation made by McLuckey; (f) the dates, amounts and purposes of all withdrawals from the funds of said corporation by the defendant McLuckey; and (g) such other information as may be necessary with reference to the affairs of the corporation.
Plaintiff prays that defendant McLuckey be enjoined from managing the business of the corporation and from applying funds of the corporation to his own use; that a special receiver of the property and records of the corporation be appointed to operate the business under the direction of the court; that an audit be made of the business of the corporation; and for a decretal judgment against McLuckey, if any sum should appear to be due from him; and that the corporation be dissolved and its assets sold and proper disposition thereof be made.
The defendants demurred to the bill of complaint upon the grounds that the allegations of the bill were insufficient to warrant a court of equity taking jurisdiction of the cause; that its allegations of facts are too indefinite and uncertain; that plaintiff had an adequate and complete remedy at law for the vindication of his rights; that the bill of complaint disclosed that necessary persons were not made parties to the suit; and that a court of equity had no jurisdiction to appoint a special receiver nor to compel discovery as prayed. The demurrer was overruled.
In addition to traversing the allegations of plaintiff's bill, as hereinabove noted, defendants in their joint and separate answer allege that the assets of the Beckley Music Store transferred to the corporation were greatly depleted at the time of the transfer; that the only valuable asset acquired by the corporation was the location of the business; that McLuckey paid plaintiff $5,000 for a one-half interest in the business; that it was the distinct understanding that McLuckey should have a "free hand" in the management of the business; and that it was contemplated that the stock of the corporation was to be sold as business necessities required in order to raise capital to continue the business; and emphatically denies that there was any agreement relative to the acquisition and holding of the stock in equal share by plaintiff and McLuckey, or any agreement relative to the salary to be paid to McLuckey. On the contrary the answer alleges that McLuckey's salary would be commensurate with the value of his services and the success of the business. Defendants further aver that the shares of capital stock of the corporation were to be sold to such persons as McLuckey and the board of directors might deem proper, and that some of the capital stock of the corporation had been disposed of to other persons for cash. It appears from said answer that McLuckey has been elected president of the corporation by the board of directors.
The defendants also allege that plaintiff has been requested to purchase additional shares of the capital stock of the corporation, but that he has refused to do so or to lend aid to the corporation; that plaintiff insisted that he be put upon a salary; that McLuckey had offered to employ plaintiff in the business of the corporation, but plaintiff had refused such employment and insisted upon a salary as a "gratuity or bonus".
The joint and separate answer further avers that the corporation had been legally organized; that the business was actively and successfully managed by McLuckey; that valuable assets had been accumulated; that stockholders' meetings had been held from time to time; that plaintiff had refused *285 to attend meetings of the stockholders, although he knew the same were being held and was present at the corporation's place of business when such meetings were to be held; that notwithstanding such opportunity and knowledge plaintiff has absented himself from said meetings and refused to participate therein. It is also alleged by defendant that plaintiff has had complete access to the records of the corporation; that defendant McLuckey had discussed with plaintiff the affairs of the corporation, and had requested plaintiff actively to engage in its management, but in each instance plaintiff had refused to do so.
McLuckey explains his failure to comply with the notice served on him on June 14, 1949, by alleging that he was ill, and that because of said illness he had requested plaintiff to manage the business of the corporation during his illness. The answer of the defendants further states that it was unnecessary to make formal demand upon them for information concerning the affairs of the corporation, and points out that the corporate records and other papers pertaining to its business are in the possession of the corporation's secretary, Cecil W. Lovell.
The answer denies the right of the plaintiff to an injunction and the appointment of a special receiver, it being alleged that the corporation is solvent and that its business is being conducted in a legal and successful manner.
After the demurrer had been overruled, plaintiff moved for the appointment of a special receiver and an injunction, filing in support of such motion two affidavits. The substance of the two affidavits is that the capital stock of the corporation has been issued as follows: Cecil W. Lovell 10 shares; Edith Gamble Basham 10 shares; Colin McLuckey 164 shares; Earl A. Hall 104 shares; and that 10 shares of the capital stock of the corporation have been issued to L. L. Scherer, but have not been delivered. It is also shown by said affidavit that bylaws have been adopted, excerpts from said bylaws relative to the board of directors, their duties, and time of meetings being set out in the affidavit. Excerpts from the minutes of meetings of stockholders held on July 6, 1945, and July 8, 1948, and a meeting of the board of directors of the corporation held on July 8, 1946, disclose that McLuckey's salary was to be $416.47 a month "until such time as increased business warrants an increase in salary"; that McLuckey was commended and his salary increased to $6,200 a year, effective July 1, 1947; and that on July 5, 1948, McLuckey's salary was increased to $10,000 a year, conditioned upon an anticipated gross business of $200,000 for the ensuing year. The salary of the acting secretary and treasurer was fixed at $300 a year.
The affidavits state, upon information and belief, that McLuckey is ill, that such illness and the treatment attendant thereon have disabled him from managing the business of the corporation and that McLuckey has refused to call stockholders' and directors' meetings.
Upon the foregoing record, which has been stated in detail, the trial court appointed John McLuckey, hereinafter designated "receiver", special receiver of the business and records of the corporation; authorized said receiver to operate the business and required him to give bond in the sum of $5,000. In the same decree defendant McLuckey was enjoined "from further managing said corporation or taking any part in the management thereof from and after the time the said receiver takes charge of said business until the further order of this court." No injunction bond was required nor was any finding made that it was improper to require such bond. It was also decreed that an audit of the books of the corporation from its organization to the date the receiver took charge should be made by a person named in the decree. The auditor so designated was required to ascertain practically the same facts, the discovery of which was prayed for in plaintiff's bill of complaint.
Defendants assign a number of errors. However, we think the following are sufficient to dispose of all questions herein presented: (1) Does plaintiff have the right to maintain this suit; (2) is the bill of complaint sufficient; (3) is proof sufficient to warrant (a) the appointment of a receiver, *286 (b) the award of an injunction, and (c) an audit of the books of the corporation under the supervision of the court; and (4) was it error to grant the injunction without requiring bond?
The relief granted by the trial court, as well as the ultimate relief prayed for in the bill of complaint are drastic in nature. This Court in considering similar questions in all instances has safeguarded the rights of management and disposition of private property, and except in plain cases has refused to interfere with such management and disposition. See Ruffner v. Mairs, 33 W.Va. 655, 11 S.E. 5. The general tenor and effect of pertinent statutes seem to have the same purpose.
Under statutory provisions the plaintiff has the right to maintain a suit for dissolution of the corporation for sufficient cause, since he owns more than one-fifth of the authorized capital stock. "If not less than one-fifth in interest of the stockholders of a corporation desire to wind up its affairs, they may apply by bill in chancery to the circuit court of the county in which the principal office or place of business of such corporation is situated * * * setting forth in the bill the grounds of their application, and the court may thereupon proceed according to the [practices] and usages of equity to hear the matter, and, if sufficient cause therefor be shown, to decree a dissolution of the corporation and make such orders and decrees and award such injunctions in the cause as justice and equity may require." Code, 31-1-81. Hurst v. Coe, 30 W.Va. 148, 3 S.E. 564; Williams v. Croft Notion Co., 82 W.Va. 549, 96 S.E. 929. It is further provided in Code, 31-1-81, that in such suit defendants who hold a majority of the shares of the outstanding stock of the corporation shall have the right to avoid the appointment of a receiver or the dissolution of such corporation "by purchasing the shares of stock owned by the plaintiffs at their fair cash value." Other provisions follow in the same statute relative to the method of ascertaining such value. We do not pass on the question whether it was necessary at the present stage of this suit that the court accord defendants such right since the dissolution of the corporation has not been decreed. We conclude that plaintiff had the right to maintain this suit.
In this case the prayer for the appointment of a receiver furnishes an additional ground of equity jurisdiction. It seems to be the rule in other jurisdictions that a court of equity has inherent authority to appoint receivers of corporations in a proper case independent of statute. 4 Pomeroy's Equity Jurisprudence, 4th Ed., Section 1537; 16 Fletcher Cyclopedia Corporations, Permanent Edition, Section 7714. But the rule in this State is otherwise. Code, 53-6-1, provides that "A court of equity may, in any proper case, pending therein, in which funds or property of a corporation, firm or person are involved, and there is danger of the loss or misappropriation of the same or a material part thereof, appoint a special receiver of such funds or property, or of the rents, issues and profits thereof or both, * * *." It has been held that "In order to give a court of equity jurisdiction for the appointment of a special receiver under * * * [Code, 53-6-1], there must be a suit pending in such court involving the property of a corporation, firm, or person, and it must be made to appear in the case that there is danger of loss or misappropriation of the property, or a material part thereof. Such suit cannot be maintained where the basis of equity jurisdiction alone is the appointment of such receiver, but there must be equity jurisdiction, independent of the application therefor." Rainey v. Freeport Smokeless Coal & Coke Co., 58 W.Va. 424, 429, 52 S.E. 528; Baltimore Bargain House v. St. Clair, 58 W.Va. 565, 571, 52 S.E. 660; Meyers Bros. v. Harman Bros., 78 W.Va. 460, 89 S.E. 146; Nolan v. Coal & Oil Co., 119 W.Va. 545, 194 S.E. 347.
The instant case, however, is distinguishable from the Baltimore Bargain House, Meyers Bros., and Nolan cases, above cited, in that the Baltimore Bargain House and Meyers Bros. cases were not brought by a stockholder or a creditor of a corporation. In the Nolan case the suit was brought by an alleged director, not required *287 to be a stockholder, and by an alleged stockholder. Moreover the dissolution of a corporation was not contemplated in the Nolan case, the object therein being to preserve the status quo pending litigation. But this is a suit by a stockholder praying for the appointment of a receiver of the assets of a corporation, and its eventual dissolution. The instant suit is based upon Code, 31-1-82, which authorizes a suit by a creditor, stockholder or member for the appointment of a receiver "to take charge of and administer [the] assets [of the corporation]." The Rainey case holds that a stockholder or creditor, under Code, 31-1-82, may apply for the appointment of a receiver. Waggy v. Jane Lew Lumber Co., 69 W.Va. 666, 72 S.E. 778. See Lamp v. Building Association, 62 W.Va. 56, 62, 57 S.E. 249. Plaintiff being a stockholder of the corporation, praying for a receiver of its assets and its dissolution, comes within Code, 31-1-82, and has the right to maintain a suit by virtue of that statute.
Though under Code, 31-1-82, a court of equity has jurisdiction of a suit by a stockholder for the appointment of a receiver, it must be alleged and proved that sufficient cause for the appointment of a special receiver exists. Rainey v. Freeport Smokeless Coal & Coke Co., supra; Waggy v. Lumber Co., supra.
We observe that if the right to inspect and examine the books and records of the corporation accorded by Code, 31-1-74, were the only right asserted in this suit, equity would not have jurisdiction. Mandamus is the proper remedy for vindication of that right. Nolan v. Coal & Oil Co., supra; 4 M.J., Corporations, Section 130. See Brown v. Crystal Ice Co., 122 Tenn. 239, 122 S.W. 84; 19 Ann.Cas. 308.
Is plaintiff's bill of complaint sufficient to authorize the relief granted by the court? "A bill filed by a minority stockholder of a corporation seeking relief against the managing officers upon the grounds of mismanagement and misappropriation must allege the particular things done by such managing officers constituting mismanagement, and the particular acts of misappropriation. It is not sufficient to charge that such managing officers have been guilty of mismanagement and have misappropriated the corporate funds, but the facts justifying these conclusions must be stated." Moore v. Railway Co., 80 W.Va. 653, 93 S.E. 762, 763, L.R.A.1918A, 1028; Robinson v. Weimer-Warren Company, 110 W.Va. 143, 157 S.E. 85. See Ward v. Hotel Randolph Co., 65 W.Va. 721, 63 S.E. 613; Wilson v. Maddox, 46 W.Va. 641, 33 S.E. 775. Measuring the bill of complaint in this case by the principles enunciated in the Moore case, and other cases above cited, the bill is wholly deficient. The bill of complaint pleads generalities, and conclusions. The specific acts of mismanagement and fraud on the part of McLuckey, supporting such conclusions, are not alleged. It is true that the affidavits herein mentioned filed by plaintiff in support of his motion may indicate irregularities in stockholders' and directors' meetings; but we do not think such irregularities, if they exist, are fatal to the interest of the plaintiff or so seriously detrimental to the interests of the corporation as to call for the relief here sought. The affidavits show increases in McLuckey's salary in one instance, and a contingent increase in another. However, the present state of the record does not establish irregularities, nor is it shown that the increases in his salary were unauthorized. Even treating the affidavits as prima facie evidence of such irregularities, they are not specifically pleaded, and upon no theory can the affidavits be treated as supplementing the bill of complaint.
Plaintiff does specifically allege the oral agreement relative to ownership of the capital stock. From such allegations it may be assumed that the agreement was made prior to or contemporaneously with the issuance of the charter. Defendants contend that the oral agreement can neither be pleaded nor proved, if in fact it was made, as it violates the parol evidence rule, and have cited many authorities as upholding that contention. The quoted provision of the charter is pertinent in that it *288 is at least arguable that such agreement contradicts the written provision of the charter hereinabove quoted.
The language of the provision of the charter with reference to holding of the stock is equivocal, in that it may relate to the right of the corporation to purchase, hold, sell and transfer its capital stock, or the right of the corporation, through its board of directors, to control the issuance of its capital stock to stockholders or prospective stockholders. We do not think it is necessary to construe its meaning. Even if the oral agreement were alleged and established by proof, such agreement would present a controversy primarily between Hall and McLuckey, though it is indirectly involved in this suit. We do not pass upon the respective contentions of the litigants in this regard.
Plaintiff contends in his brief that he has the preemptive right to purchase additional capital stock of the corporation. That right has been defined and enforced in some jurisdictions as giving a stockholder the right to purchase the capital stock of a corporation in instances where there is an increase of capital stock over that originally authorized. In other jurisdictions it has been held that the preemptive right to purchase capital stock applies to sales of stock originally authorized but unissued. See annotation 52 A.L.R. 220, 234, and 11 Fletcher Cyclopedia Corporations, Section 5160. In this State we are committed to the principle that the preemptive right of stockholders to purchase the capital stock of a corporation is applicable to stock originally authorized and unissued. Thurmond v. Paragon Oil & Gas Co., 82 W.Va. 49, 95 S.E. 816.
Conceding that plaintiff has the preemptive right to purchase additional capital stock of the corporation, it is neither pleaded nor proved that such right has been denied him. On the contrary, the answer of the defendants alleges that plaintiff was solicited to purchase additional stock of the corporation but declined to do so.
At this point it is well to note that defendants contend that plaintiff has assumed inconsistent positions, with reference to the oral agreement and the preemptive right of plaintiff to purchase additional stock. Cases in this jurisdiction are cited for the proposition that a party to a litigation may not assume inconsistent positions in a suit or a series of suits. Such principle is well established. But we do not think this record calls for a discussion or application of that principle. We perceive no inconsistency in plaintiff's assertion of a preemptive right to purchase additional capital stock of the corporation and the oral agreement alleged by him.
For discussions of reasonable restrictions on the sale and transfer of corporate stock authorized by general law or the charter of a corporation, see Lawson v. Household Finance Corp., 17 Del. Ch. 343, 152 A. 723; Brown v. Little, Brown & Co., 269 Mass. 102, 168 N.E. 521, 525, 66 A.L.R. 1284.
The facts well pleaded in the bill of complaint, being treated as true for the purpose of the demurrer, and considering them with utmost liberality, we are of opinion that said allegations are insufficient, and that the demurrer to the bill should have been sustained.
The proof, or rather the lack thereof, disclosed by this record presents a situation which does not authorize the appointment of a special receiver, and it is unnecessary to repeat what has been said with reference thereto. However, it may be added that the appointment of a special receiver of the property and records of a corporation calls for the taking of private property from the control and management of persons who presumably have been duly authorized to manage and control it, and placing it in the hands of an officer appointed by a court.
The sufficiency of the bill has hereinabove been discussed, and that discussion will not be repeated here. But disregarding such insufficiency for the moment, the allegations therein contained are denied and not proved. In this state of the record it was the duty of the trial court to deny the appointment of a receiver. *289 High on Receivers, 4th Edition, Section 24; Wilson v. Maddox, supra; Smiley v. New River Co., 72 W.Va. 221, 237, 77 S.E. 976.
The same principle is applicable to the award of the injunction. The allegations of the bill being denied by a sworn answer and insufficient proof being offered by plaintiff, the injunctive relief should have been denied.
The audit of the books of the corporation under the supervision of the court calls for interference in the management of a private corporation and the disclosure of confidential matters. No emergency or danger of immediate loss, in the absence of an audit was alleged. The action of the trial court in decreeing such audit without proof of the issues of fact raised by the pleadings was error.
The trial court in awarding the injunction herein disregarded a plain statutory mandate. Code, 53-5-9, provides: "An injunction (except in the case of any personal representative, or other person from whom, in the opinion of the court or judge awarding the same, it may be improper to require bond) shall not take effect until bond be given in such penalty as the court or judge awarding it may direct." This Court in construing and applying the above statute has held that: "An order or injunction is of no legal effect under * * * [Code, 53-5-9] unless the court requires a bond, or recites in the order that no bond is required for good cause, or unless the movant is a personal representative." Meyers v. Land Co., 107 W.Va. 632, 149 S.E. 819. In the instant case no bond was required, nor was there any recital made in the order to that effect, nor was there any showing of good cause for not so requiring. Clearly, the injunction awarded herein is of no legal effect, and it was error to grant it.
We observe that plaintiff does not plead that he has applied to the stockholders or the board of directors of the corporation for relief, in accordance with the rule relative to intra vires corporate acts as laid down in the cases of Rathbone v. Parkersburg Gas Co., 31 W.Va. 798, 8 S.E. 570; Ward v. Hotel Randolph Co., supra; Smiley v. New River Co., 72 W.Va. 221, 77 S.E. 976; Parriott v. Coal Co., 91 W.Va. 44, 50, 112 S.E. 191. This omission to plead an important element of plaintiff's case is significant when it is considered that: "* * * Any number of stockholders owning in the aggregate at least one-tenth of the number of shares outstanding" may call a meeting. Code, 31-1-21, as amended by Chapter 29, Acts of the Legislature, 1945.
The bill of complaint and the answer herein disclose that no corporate acts ultra vires are involved. We find nothing in this record showing that plaintiff has applied to the stockholders or the board of directors of the corporation for relief. On the contrary, plaintiff alleges that he made application to McLuckey. It is true that under the decisions of this Court in instances where it would be useless to apply to the stockholders or board of directors a dissenting minority stockholder is not required to apply to the directors or stockholders, but may go directly to a court of equity. Crumlish's Adm'r v. Shenandoah Val. Railroad Co., 28 W.Va. 623, 632; Rathbone v. Gas Co., supra. We do not think that plaintiff has shown any effort on his part to obtain relief from the stockholders or directors, or that his application to them would have been useless. It may be that he can allege and prove that application to the stockholders or board of directors would be unavailing upon further development of this cause.
We note that Cecil W. Lovell and Edith Gamble Basham have not been made parties to this suit, although it is alleged in the bill of complaint that stock has been sold to certain unnamed parties, and the affidavits filed by plaintiff disclose that said Lovell and Basham at least have some rights in the corporation. If the affairs of the corporation are to be wound up and the corporation dissolved, said Lovell and Basham would be necessary parties. Styles v. Laurel Fork Oil & Coal Co., 45 W.Va. 374, 32 S.E. 227.
The Circuit Court of Raleigh County erred in overruling the demurrer to the *290 bill of complaint; in appointing a special receiver on insufficient pleadings and proof; in directing an audit of the business of the corporation under the supervision of the court; and in awarding an injunction against the defendant McLuckey, without requiring bond.
Therefore, the decree of said court is reversed and this cause is remanded with directions to sustain the demurrer to the bill of complaint, with leave to amend, and in the event of sufficient amendment of the bill, that this cause be further proceeded with in accordance with the principles enunciated in this opinion.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337115/ | 60 S.E.2d 217 (1950)
HINERMAN
v.
MARSHALL COUNTY BANK et al. (two cases).
Nos. 10222, 10242.
Supreme Court of Appeals of West Virginia.
Submitted April 11, 1950.
Decided June 6, 1950.
Rehearing Denied August 4, 1950.
*218 Chauncey D. Hinerman, Cameron, pro se.
Martin Brown, Moundsville, Marshall County Bank, etc., and others.
FOX, Judge.
These proceedings are heard together in this Court, and their purpose is to compel the Marshall County Bank and its officials to issue to the relator, Chauncey D. Hinerman, a total of 151 shares of the capital stock of the Marshall County Bank, of the par value of $50 per share, which stock is now registered on the books of the bank in the names of Martin Brown and W. Foss Curtis, trustees. The proceeding here on writ of error was instituted in the Circuit Court of Marshall County, and later transferred to the Circuit Court of Ohio County, in which judgment was entered in favor of the relator, with certain conditions attached, by order dated October 7, 1949, to which judgment we granted a writ of error on December 12, 1949. There is involved rights appertaining to 73 shares of stock in the Marshall County Bank as that bank was organized prior to November 5, 1935, the par value of which was $100 per share, and formerly owned by one J. M. Sanders. The second proceeding, by which the original jurisdiction of this Court is invoked, involves 43 shares of the same character of stock, formerly owned by Mary K. Crowther, and 35 shares, formerly owned by Mary A. Compton, as to which relator, on October 24, 1949, filed his petition in this Court, and on which a rule in mandamus was awarded returnable January 11, 1950. By reason of an agreed continuance, the proceedings were not submitted until the present term. The questions involved in the two proceedings are identical, and the cases were argued and submitted together.
A proper understanding of the questions involved requires a detailed statement of the history of the Marshall County Bank leading up to the institution of these proceedings. The Marshall County Bank was organized in the year 1881, with a capital stock of $25,000. Later, by amendments of its charter, the bank increased its authorized capital stock to $100,000, and, in the year 1918, to $150,000, represented by 1,500 fully paid-in shares of the par value of $100 per share. Due to the depression, which is usually understood as beginning in the year 1929, said bank became involved in financial difficulties. We need not go into detail as to the steps that were taken in restricting payments to depositors, and otherwise; but, in the month of April, 1933, at the request of the Commissioner of Banking, its affairs were taken over by him for the purposes of endeavoring to rehabilitate the institution and place it upon a sound financial basis, and from that time on the affairs of the bank were in the hands of said Commissioner of Banking. On September 7, 1933, E. A. Rinehart was appointed receiver for said bank, and continued as such, until the 5th day of November, 1935, when the bank was permitted to reclaim its assets in order to carry out a plan of reorganization, which we are led to believe had already been agreed upon, but subject to the approval of the Commissioner of Banking of this State, the Reconstruction Finance Corporation and the Federal Deposit Insurance Corporation, and which plan contemplated securing a loan from the Reconstruction Finance Corporation, *219 The contemplated reorganization of the bank was on the basis of a reduction of the authorized capital stock of said bank to $75,000, to be effected by reducing the par value of the 1,500 shares outstanding from $100 to $50 per share, and an assessment of $50 on each new share, par value $50, to make up the entire capital stock of the bank as it would be reorganized.
Further details as to the said plan of reorganization, which in its entirety is part of Exhibits Nos. 1 and 6, filed without objection with the answer of the respondents to the petition on which the rule was awarded herein, are as follows: It was provided therein that the Reconstruction Finance Corporation would become interested in providing new capital for the reorganized bank, in the amount of $50,000, in the form of interest bearing debentures. No dividends on stock might be declared before the payment of interest on such debentures. A mandatory stock assessment was to be levied under the laws of the State of West Virginia, in the amount of $50 per share on each of the 1,500 shares then outstanding; and under the assessment new capital to be raised from old stockholders and friends of the bank in the amounts of $50,000 and $25,000, in additional capital likewise to be raised from the same source, or from the trust created pursuant to the plan, by sale to the trustees of stock upon which the assessment was not paid, so that the capital structure of the reorganized bank would be as follows: Debentures in the sum of $50,000 to be sold to the Reconstruction Finance Corporation, and capital stock, $75,000. It was then provided that upon the reorganization of the bank and reopening for business, sixty-five per cent of all net balances due depositors and creditors at the close of business on May 22, 1933, would be paid in full and made available to such depositors, and entitled to preferred payment; that all unrestricted, segregated, deposits would be made available in full, and all restricted claims of depositors and creditors, which represent the net balances of not more than $5, would be made available in full. It was then provided that in the reorganization of the bank, it would retain $50,000 cash from the sale of the aforementioned debentures, $75,000 in cash to be realized from the assessment or sale of its capital stock, and in addition thereto would retain acceptable assets of the bank being reorganized to an amount equal to the amount of all deposits and other liabilities made available for immediate payment by the bank on completing its reorganization. Following this, it was provided that all remaining assets or interests therein, not retained by the bank, would be transferred to Lula Turner, W. Foss Curtis and Martin Brown, as trustees, in trust, to be liquidated for the benefit of the waiving depositors and creditors of the bank, and that certificates of beneficial interest would be issued to depositors and creditors representing their respective interests in such trusteed assets; and that after the payment in full to said waiving depositors and creditors, the balance of the money or assets in the trust should be transferred to said bank as reorganized for its own use, and that the trustees of the trust, upon a proper accounting, should be discharged from future duties or obligations under said trust. A trust agreement was executed at the time, under which the assets of the bank, not employed in the reorganized institution, and understood to mean frozen assets of the old bank, were turned over to said trustees for a term of five years, to be used in carrying out the plan of reorganization aforesaid. There is nothing in the record indicating the amount of these assets so turned over to the trustees, or what part thereof have been liquidated, or the disposition thereof, although it is understood and stated that all of the claims of the waiving depositors and creditors have been paid in full under the trust agreement.
After the bank was permitted to reclaim its assets on November 5, 1935, it proceeded to effect a reorganization of its affairs according to the plan outlined above. The par value of the 1,500 shares of the stock in the bank outstanding was reduced from $100 to $50 per share, and an assessment on each share of $50 was made. The owners of 1104 shares of the original $100 par value stock voluntarily paid the said assessment, and the owners of 396 of such shares failed or refused to do so. On January 18, 1936, *220 presumably acting under Code, 31-8-14, the said 396 shares were sold by the bank at public auction and purchased by it at the price of $1 per share. Such shares were then immediately sold by the bank to Martin Brown, W. Foss Curtis and Lula E. Turner, trustees, at $50 per share, thus making up part of the bank's new capital. For reasons which will hereinafter appear, the manner of conducting the said sale is not important to the decision on the validity thereof, and will not be discussed. Subsequent to this sale, the owners of 83 shares of said original stock paid the assessment thereon, and received a corresponding number of the $50 par value stock. The said trustees who purchased the 396 shares aforesaid are now registered on the books of the bank as the owners of 313 shares of the new stock.
Among the stockholders, who refused or failed to pay the $50 per share assessment aforesaid, were Mary K. Crowther, the owner of 86 shares of the original stock, Mary A. Compton, the owner of 35 shares thereof, and J. M. Sanders, 73 shares. Of said shares, the relator in these proceedings is the present owner of the J. M. Sanders 73 shares, 43 of the Mary K. Crowther shares and the 35 shares formerly owned by Mary A. Compton, which shares have been presented to the reorganized bank with the request that a corresponding number of new shares of the par value of $50 be issued to the relator in lieu thereof, without the payment of the assessment made on said new shares.
After the sale of the 396 shares of stock, par value $50, aforesaid, to the Marshall County Bank, there was a deficiency in the payment of said assessment of $49 for each share. Separate actions at law, by way of notice of motion for judgment, were instituted in the Circuit Court of Marshall County against the Wheeling Dollar Savings & Trust Company, executor of J. M. Sanders, and against Mary K. Crowther and Mary A. Compton for the respective amounts allegedly due from them on account of such deficiency. In said actions, judgments were entered against the defendants for the full amount of such deficiency with interest. Writs of error to the said judgments against Mary K. Crowther and the Trust Company as executor, were granted by this Court, and said judgments were reversed on November 9, 1937. Marshall County Bank v. Wheeling Dollar Savings & Trust Co., and Marshall County Bank v. Crowther, 119 W.Va. 383, 193 S.E. 915. As we construe the decision in said cases, the assessment so made by the Marshall County Bank on the 1,500 shares of its capital stock, issued in carrying out the plan of reorganization aforesaid, including the 396 shares aforesaid, was held to be void, which necessarily carried with it the holding that the sale made under such assessment was likewise void. The decision in the cases contained an intimation that the cases might be further developed, and they were remanded to the Circuit Court of Marshall County for further proceedings. Upon the remand of the cases, there was a new trial of the Crowther case, resulting in a directed verdict for the defendant. An application for a writ of error to said judgment was refused by this Court, and certiorari to the Supreme Court of the United States therefrom was denied, 303 U.S. 653, 58 S. Ct. 751, 82 L. Ed. 1113. Thereupon, the bank dismissed its action against the Wheeling Dollar Savings & Trust Company. In the action against Mary A. Compton judgment was entered against her for the full amount of the bank's claim on account of such deficiency as to the assessment on her stock. There was no application for writ of error in that case, and the said Mary A. Compton later died insolvent. As indicated above, subsequent to these proceedings, relator became the purchaser of the J. M. Sanders and Mary A. Compton shares, and 43 of the 86 shares owned by Mary K. Crowther, the shares purchased by him being shares in the said bank of the par value of $100 per share, and not the $50 par value shares issued under the reorganization plan, and on which an assessment was made.
In 1941, the Wheeling Dollar Savings & Trust Company, executor of J. M. Sanders, deceased, instituted its suit in the Circuit Court of Marshall County against the Marshall County Bank, as an insolvent institution. This suit was instituted by the plaintiff *221 for itself and for the use of the stockholders of the old bank who held shares of stock of the par value of $100 each, as of September, 1933, when the receiver for said bank was appointed, and who did not pay the assessment on the new stock, aforesaid, and was based on the claim that the plaintiff and others similarly situated were entitled to priority as to the trusteed assets of the bank, after waiving depositors and creditors and administrative costs were paid. There was a decree in that case in which the relief prayed for was granted, subject to the provisions therein contained in respect to the distribution of the surplus to be derived from the trusteed assets aforesaid after the payment of waiving depositors and other creditors, and costs of administration, which reads as follows: "Any part of the surplus properly distributable to stockholders of the bank whether heretofore or hereafter made shall be first applied to the reimbursement of those stockholders who have paid all or any of the assessments mentioned in the bill pro rata up to the respective amounts paid by each of them * * *. If anything shall remain thereafter, or thereafter accrue to the capital fund including payments made and to hereafter be made, by the defendant trustees from trusteed accounts in their hands, it shall be apportioned to the stockholders in proportion to the number of shares owned by them respectively of the stock of the bank as reorganized according to the plan of reorganization, and the number of shares in the hands of the executor shall be qualified to participate in the disbursements to the extent that the number of shares so held by the executor shall be reduced, to the comparable extent, that the shares of other stockholders have been, or may be, reduced in the process of reorganizing the bank, and it is adjudged, ordered and decreed that the defendant bank account to and pay the plaintiff such sums as he may, from time to time, be entitled according to the principles of the formula aforesaid, and he hereinbefore decreed, for the nonperformance of which duty the plaintiff has leave to take appropriate action hereafter."
It will be observed that said suit was not instituted for the purpose of securing the issuance of any stock to the plaintiff, as representative of the estate of J. M. Sanders, but only to obtain for said estate, and others similarly situated, a distribution of the assets in the hands of said trustees, after the obligations of the old bank, which it was contemplated should be paid out of such assets in the hands of such trustees, had been met in full. As indicated above, plaintiff was, in effect, denied the relief prayed for except to the extent of any interest which might develop after the obligations of the old bank had been provided for, and the stockholders who had paid assessments on the new stock had been reimbursed for the amount so paid, to the end that all of the stockholders under the old organization would be placed on exactly the same level with respect to the total assets of the old institution. We have discussed the holding of the court in the equity suit of the Wheeling Dollar Savings & Trust Company as a matter of background, and not because of any binding force of the decision in that case on the questions here involved. It may be well to say, however, that in that suit there was a clear holding that the assessment and sale of the $50 par value shares of stock was void, and the decree entered therein was not appealed from.
We will not overrule, modify, or in anywise disturb, the decision of this Court in the two notices of motion for judgment actions of the Marshall County Bank v. Wheeling Dollar Savings & Trust Co., and Marshall County Bank v. Crowther, supra, and we consider ourselves bound thereby. Strictly speaking, the decision in those cases may not be "the law of the case" nor "res adjudicata", because, in the first instance, they were different cases from those now before us; and, second, the parties and privies are not the same, and thus not clearly within the principles of res adjudicata. However, the questions presented in those cases, so far as the validity of the assessment and sale of the stock is concerned, are identical with those here involved, and must be treated as such, and the holdings made thereon by this Court must be followed, particularly in view of the fact that transfers of stock have been made since the date that decision was written. We must, *222 therefore, proceed upon the premise that there was no legal or valid sale of the 396 shares of new stock sold by the Marshall County Bank and purchased by it, and afterwards sold to the trustees, under the assessment laid under the plan of reorganization adopted. This being true, the owners of the 396 shares of stock who refused to pay such assessment never acquired an interest in the new organization; but in lieu of such an interest which they could have obtained by voluntarily paying their assessment, they retained all rights which had accrued to them as stockholders in the original bank, and a right to participate in any surplus which might develop from the trusteed assets after the payment of the cost of administering the trust, and the amount necessary to pay the waiving depositors and other creditors under the reorganization plan aforesaid.
Applying these principles to relator's claims in these proceedings, we are impelled to the conclusion that at this time relator stands in exactly the same position as his predecessors in the ownership of the stock here involved stood at the date the said attempted sales of the new shares of stock were made. In other words, he is the owner of the 151 shares of capital stock of the Marshall County Bank, of the par value of $100 per share, which gives him the right to participate, in some form, in all of the assets of the Marshall County Bank at the date the said bank reclaimed its assets from the receiver on November 5, 1935. The action of the bank, under the proposed reorganization, in laying the assessment, and in making sale of the stock as aforesaid, has not deprived the relator of any right which his predecessors in title possessed at the date when the receivership ended, and before the reorganization was made. All of this is based on what we understand to be the ruling of this Court that such assessment and sale was void, since the assessment was not made to restore impaired capital of a going concern, or to meet creditor demands after insolvency, but was made to create new capital in a situation where stockholders of the old bank, or new stockholders, were required to furnish new capital for a reorganized institution under its original charter, and required the raising in its entirety of the capital necessary to permit the reorganized bank to be opened as a going institution. This Court held that such an assessment went beyond the contractual obligations of the stockholder of the bank before its reorganization when he subscribed for his shares of stock; that the same could not be enforced; and, necessarily, that the sale made thereunder was void.
There cannot, in our opinion, be any question but that the whole plan of reorganization contemplated an entirely new capital structure for the reorganized institution. We have before us the record in the law action of the Marshall County Bank v. Crowther, and the equity suit of the Wheeling Dollar Savings & Trust Co. Marshall County Bank, aforesaid, which are filed without objection with the answer of the respondents herein, as Exhibits Nos. 1 and 6, respectively. From Exhibit No. 1 aforesaid, we find a statement of the condition of the Marshall County Bank as of November 5, 1935, the date when it was permitted to reclaim its assets from the receiver. At that time the bank was the owner of assets of the book value of $1,152,132.24. Its liabilities to depositors and creditors, including a $71.42 item, referred to as account payable, the residue being deposits, was the sum of $883,985.38. Its capital accounts were made up of capital stock of $150,000; surplus, $50,000; undivided profits, $60,160.30; and rents received, $7,986.56; making a total of liailities, including capital, of $1,152,132.24. In this statement, however, the assets of the bank, estimated on the basis of sound value, amount to the sum of $884,560.39, which, it will be observed, is within less than $1,000 of the amount due depositors. It is quite clear, therefore, that there would be neither capital stock, surplus nor undivided profits in existence on that date. Furthermore, we find that after the reorganization of the bank, and its reopening on February 15, 1936, and in its first statement made to the banking commissioner on March 4, 1936, the assets of the bank were stated to be $702,108.16, and the liabilities, including capital, were, of course, the same total, and were composed of capital stock paid in $75,000; debentures class A, $50,000; undivided *223 profits, $1,709.87; demand deposits, $393,505.89; and time deposits, $181,892.40. It is perfectly clear, therefore, that in the reorganization the amount borrowed from the Reconstruction Finance Corporation, and the proceeds of the $50 assessment on the new shares issued, constituted the capital structure of the new organization. All of the other assets of the bank, not included in those reported in the statement of March 4, 1936, necessarily went into the hands of the trustees under the general plan of reorganization and the trust agreement aforesaid.
As indicated above, we are unable to determine the amount of assets of the old organization which went into the hands of the trustees for the benefit of the waiving depositors and other creditors, and, as we think it necessarily follows, for the benefit of the stockholders of the old organization. Since the reorganization of the bank in 1936, there has been a marked change in the financial setup of the bank. The report of the bank to the commissioner of banking, as of June 30, 1949, which was made only a few days prior to the institution of the first of these proceedings, the assets of the bank are stated to be $1,704,157.70. The liabilities of the bank, not including capital, surplus and undivided profits, was on that date $1,560,875.97. The capital stock on that date was $75,000; surplus, $60,000; and undivided profits, $8,281.73; a total net worth of $143,281.73, making the total liabilities and capital accounts balance the assets. This is a rather remarkable achievement, because as it will be readily observed, instead of owing $50,000 to the Reconstruction Finance Corporation, on which interest was required to be paid, the bank now has a surplus of $60,000, and undivided profits of $8281.73, so that aside from any amount paid as dividends during the thirteen year period, the gains of the new bank, as a practical matter, amount to approximately $118,281.73. It may be that some of these gains represent money which was paid to the bank out of the trusteed assets, but there is nothing in the record before us upon which we would be justified in making a holding to that effect.
What the relator is seeking to do in these cases is to have issued to him 151 shares of capital stock of the reorganized Marshall County Bank, of the par value of $50 per share, and which, according to the latest statement mentioned above, now have a value almost double the par value thereof. He seeks this relief without being willing to make any contribution to the newly organized institution in order to place him on an equality with those who have elected to pay the assessment on such stock made in January, 1936. His first position is that the assessment and sale of the said stock was void as to all parties, including the owners of the shares of stock he now owns as successor in title. But, on the other hand, he is asking to have issued to him shares of stock provided for in the plan of reorganization, based on the assessment aforesaid, which he has repudiated and refused to be bound by. He will not be permitted to take these inconsistent positions. He must accept the full implication and results of the failure of his predecessors in the ownership of his stock to accept the plan of reorganization and to pay the assessment made thereunder. As this Court has held, the assessment was void and none of the stockholders in the old bank was legally bound to pay the assessment made. However, up to this date, the owners of the 1,187 shares of the 1,500 shares issued have voluntarily elected to pay their assessment and have paid the same. Those who owned the shares of stock, now in the ownership of the relator, could have done the same thing, although they were not required to do so. But, they were not, at the time of their refusal to pay such assessment, entitled to have such stock issued to them without the payment of the assessment, and neither is the relator, as their successor, entitled to have such shares issued to him without the payment of such assessment with proper interest, with due adjustments as to dividends which may have been paid on such stock. Again we say that this does not mean that relator is under any legal obligation to pay the assessment. With the consent of the respondents, and purely as a matter of election and contract, he may do *224 so, and thus be placed upon an equality with the owners of the 1,187 shares who have paid their assessment. To require that said shares be issued to the relator without the payment of the assessment would be to unjustly enrich him at the expense of the other stockholders. There would be no equity in such a procedure, and courts do not sit to impose on the stockholders who paid their assessments the inequitable burden of sharing their investment with someone who has not directly contributed anything to the institution in which they hold their stock. Indirectly the reorganized bank may have profited from a distribution of the trusteed assets, but the record before us does not so show.
The judgment of the Circuit Court of Ohio County, in the proceeding lately pending in that court, apparently attempted to follow, in principle, the decree entered in the case of the Marshall County Bank v. Wheeling Dollar Savings & Trust Co. and others, mentioned above, in that it awarded a writ of mandamus requiring the issuance to relator of certificates for 73 shares of the $50 par value stock here involved, with the condition that he should not be entitled to dividends on such stock until those who have paid the assessment thereon, aforesaid, should have been reimbursed for the full amount of such assessment. It was a laudable attempt to do equity in the matter; but the order is based upon a recognition of the plan of reorganization, and the assessment and sale of stock which assessment and sale this Court has heretofore held to have been void from the beginning. The assessment and sale of the stock, made in January, 1936, cannot be relied upon for anything, because in the eyes of the law there was no sale. The fact that a great majority of the stockholders of the old bank elected to pay an assessment thereunder does not make legal what this Court has declared to be void. Of course, in so electing to pay the assessment, there are now bound by the same even though, in the first instance, they were not required to pay the same. The fact that relator or his predecessors in title did not join in the reorganization plan and could only do so by paying the assessment made thereunder, coupled with the holding of this Court that said sale and assessment was void, requires us to reverse the order of the Circuit Court of Ohio County in awarding the writ of mandamus, even with the condition attached thereto, which would have served to do equity in the case as between relator and other stockholders. It follows that if we reverse the judgment of the Circuit Court of Ohio County in awarding the said writ in the proceeding before it, we must refuse to award the writ in the case wherein the original jurisdiction of this Court is invoked. The order of this Court will be to reverse the judgment of the Circuit Court of Ohio County, and enter an order here denying the writ of mandamus in that proceeding; and in the proceeding before us on original jurisdiction, the writ will be denied.
While relator will be denied the relief he seeks in these proceedings, our order should not be construed as in anywise holding that relator is wholly without rights in the situation here presented. Of course, we cannot pass upon such rights in these proceedings, even if the facts which might enable us to do so had been fully developed. As we have endeavored to make clear in this opinion, there are two fundamental propositions involved. The first is that the owners of the 396 shares of stock who failed and refused to conform to the new plan of reorganization, and refused to pay the assessment, which such reorganization involved, in proportion to their stock interests, did not deprive themselves of their equitable share of the assets of the Marshall County Bank as it existed at the date its assets were reclaimed, on November 5, 1935, or of their equitable rights in the trusteed assets of what we have called the old bank. The refusal of these shareholders to pay said assessment has been held legally justified by this Court, and certainly that refusal did not in anywise affect their interest in the assets of the institution as it then existed. A part of those assets was used in the reorganization of the bank, and used to pay existing creditors who had waived immediate payment. A part of such assets was turned over to the trustees to be used to pay waiving depositors and other creditors, and thereafter any surplus of such assets was *225 required to be turned over to the newly organized banking institution. Relator, as the owner of a part of said original stock, has not, unless barred by laches or other circumstances of which we have no knowledge, or by the decree in the case of Marshall County Bank v. Wheeling Dollar Savings & Trust Co., aforesaid, questions we do not decide, lost his right to have paid to him his proportionate share of any surplus in the hands of the said trustees after the payment of the bank's obligations therefrom. Subject to the reservations stated above, he stands in exactly the same position as if there had been a liquidation instead of a reorganization of the bank, and after the payment of all creditors had been made, and there was a fund out of which stockholders could be paid a part or all of the par value of the shares of stock held by them.
The other proposition is that by agreement between the relator and the bank, or the trustees who claim to own the shares of the new stock acquired by them from the bank, and on which no assessment has been paid by relator's predecessors in title, the relator could obtain the issuance of new shares of stock upon the payment of the assessment with interest, subject, to an adjustment of dividends paid on the stock held by the trustees who purchased the same from the reorganized bank, and thus place himself in a situation of exact equality with those who paid the assessment. We do not wish to be understood as limiting the rights of the relator in respect to the stock he owns, but merely to indicate that the proceedings thus far have not affected his right to an equitable share of any surplus derived from the assets of what we call the old Marshall County Bank, as that share was represented by the stock now owned by the relator. No doubt the ascertainment of the value of that share will require a full accounting on the part of the trustees to whom part of the assets of the old bank was transferred. Of course, if relator should pay the assessment by agreement with the bank and the trustees, he would automatically become entitled to an interest in such assets, because in the plan of reorganization, and the trust agreement, it is provided that any surplus in such assets, after the payment of the bank's obligations, would pass into the hands of the reorganized bank.
The judgment of the Circuit Court of Ohio County awarding to relator the writ of mandamus in respect to 73 shares of stock is reversed, and an order will be entered here denying such writ. In the mandamus proceeding, affecting 43 shares and 35 shares, pending in this Court an original jurisdiction, the writ prayed for is denied.
In Case No. 10222, original jurisdiction, writ of mandamus denied.
In Case No. 10242, judgment reversed, writ of mandamus denied.
HAYMOND, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337112/ | 60 S.E.2d 290 (1950)
GHIZ et al.
v.
SAVAS et al.
No. 10208.
Supreme Court of Appeals of West Virginia.
Submitted April 18, 1950.
Decided June 20, 1950.
Rehearing Denied August 7, 1950.
*291 Pauley & Andrews, E. Franklin Pauley, Larry W. Andrews, Hodges, Revercomb & Price, W. Chapman Revercomb, Arthur B. Hodges, Leslie D. Price, all of Charleston, W. L. Fugate, Washington, D. C., for appellants.
Estep & Chambers, Logan, Casto & Wilson, Logan, for appellees.
RILEY, Judge.
Edward Harvey Ghiz, Gabriel Harvey Ghiz, and Michael Harvey Ghiz brought this suit in equity in the Circuit Court of Logan County against Nick Savas, O. M. Ayash, and Albert Klele, as individuals, and as partners trading and doing business as Mallory Mercantile Company and as Union Trading Company, and S. A. Ammar, K. A. Ammar, and N. A. Ammar, praying (1) that seven certain deeds, filed as exhibits with plaintiffs' bill of complaint, though absolute conveyances on their faces, be declared mortgages; (2) that the deeds be cancelled, or that the defendants be compelled to reconvey the property embraced therein; (3) that four other deeds and that part of a deed filed as Exhibit 18 with plaintiffs' bill of complaint, as may concern plaintiffs' title, be cancelled as a cloud upon plaintiffs' title; (4) that a decree be entered, compelling the defendants to account for income and proceeds from the property conveyed by said deeds, and pay to the plaintiffs the income derived therefrom from the dates of the deeds to the present time; and (5) that defendants be restrained from disposing of the property, and further that the court appoint *292 a receiver to take charge of the income of the property and hold the same pending the outcome of this suit. From a final decree adjudicating (1) the deeds under attack to be in all respects legal and valid absolute conveyances of the property described therein; (2) denying the relief prayed for in plaintiffs' bill of complaint; and (3) dismissing plaintiffs' bill of complaint, the plaintiffs prosecute this appeal.
The plaintiffs are three of the sons of Harvey (Habib) Ghiz, designated in the record, and in this opinion, as "Habib Ghiz". The latter died intestate in Logan County in 1924, leaving surviving his widow, Ady Ghiz, and eight sons, the three plaintiffs herein, and Luther, Alexander, Michael, Harvey, Jr., and Theodore Ghiz, all of whom at the time of decedent's death were infants. The decedent's widow died in 1932, leaving surviving said eight sons, four of whom were then under twenty-one years of age. Harvey Ghiz, Jr., died intestate unmarried, and without issue in 1935, survived by his seven brothers as his heirs at law and next of kin.
Habib Ghiz's estate was initially appraised at $176,545.66, consisting of real estate in the amount of $135,650.00, and personal property, including $27,000.00 of life insurance payable to his estate appraised at $40,895.66. From the appraisement it appears that the real estate was encumbered by a deed of trust, bearing date, October 8, 1923, in which Habib Ghiz and wife were grantors, to secure notes in the amount of $40,000.00. The real estate consisted of the Aracoma Hotel property in Logan valued in the appraisement at $100,000.00; decedent's home property in Logan, together with house situated on the side thereof, valued at $10,000.00; a right of way across the adjoining property used in connection with the last-mentioned houses, valued at $50.00; decedent's store property in Logan valued at $20,000.00; lot with house thereon adjoining the last-mentioned residence property valued at $2,500.00; lot on hill in Logan valued at $500.00; five lots in Section 5, Oak Hill Addition to the City of Logan, $2,500.00; and two lots in the village of Gilbert, Mingo County, valued at $100.00. This appraisal included a stock of goods, comprised of men's furnishings, etc., valued at $10,929.42, carried in a general store owned and operated by Habib Ghiz at the time of his death. Other personal property in addition to life insurance in the amount of $27,000.00, mentioned above, consisted of an automobile, a cow, household furniture in the amount of $1,030.00; collectible debts at the store, $897.27; and cash in the amount of $1,038.97.
In 1929, Ady Ghiz Corey, widow of Habib Ghiz, deceased, Luther Ghiz, Gabriel Ghiz, Michael Ghiz, and five minor sons, by L. G. Burns, their guardian, executed a deed of trust to Harris and Jenkins, trustees, to secure a $24,000.00 loan from the Life Insurance Company of Virginia, evidenced by fifteen principal notes, payable to bearer, at the State Planters Bank & Trust Company, said loan hereafter being referred to as "Planter's Bank Loan". Five of said notes, totaling $12,000.00. were signed by Ady Ghiz Corey; five totaling $7,000.00 by Luther Ghiz, and five totaling $5,000.00 by Michael Ghiz. The first in each of the three series of five fell due October 15, 1930, and the fifth. October 15, 1934. The real estate involved was business property in the City of Logan. And in 1934 another deed of trust, covering personal property in the Aracoma Hotel, was executed as additional security. Both deeds of trust were released May 2, 1939, the indebtedness having been paid off.
During the years from 1934 to 1937 plaintiffs each executed one or more deeds, the legal effect of which is involved in this litigation. These deeds purport to convey certain interests of each of the above-named plaintiffs in the estate of their deceased father, Habib Ghiz, as well as several one-sevenths interests in the estate of their deceased brother, Harvey Ghiz, Jr.
The purported conveyances, which plaintiffs seek to have declared mortgages, or cancelled on the ground of fraud are: (1) Deed dated March 28, 1935, from Edward Ghiz to O. M. Ayash, Nick Savas, and Albert Klele, partners as Mallory Mercantile *293 Company, purporting to convey a full one-eighth undivided interest, subject to the life estate of grantor's mother, Ady Ghiz (Corey), in the real estate of which Habib Ghiz died seized; (2) a deed dated January 4, 1934, from Gabriel Ghiz to Union Trading Company, a partnership (consisting of Savas, Ayash and Klele), purporting to convey a full one-eighth undivided interest, subject to the life estate of Ady Ghiz (Corey) in the real estate of which Habib Ghiz died seized; (3) a quitclaim deed from Gabriel Ghiz to Albert Klele, dated August 26, 1937, purporting to convey all right, title and interest, being a one-eighth undivided interest in certain named real estate, including the Aracoma Hotel, which was inherited by the grantor from his deceased father, Habib Ghiz; (4) a deed from M. H. (Michael) Ghiz to Albert Klele, dated September 16, 1935, purporting to convey a full one-eighth undivided interest in and to all the real estate of which his father, Habib Ghiz, and his mother, Ady Ghiz, had died seized and possessed, the latter property being the home property of Ady Ghiz, situate in Huntington, Cabell County; (5) a deed from Edward Ghiz, dated October 15, 1936, to Savas, Ayash and Klele, purporting to convey the grantor's one-seventh interest of one-eighth of the estate, real and personal, of Habib Ghiz, of which his brother Harvey Ghiz, Jr., died seized; (6) a certain deed dated June 18, 1936, from Gabriel Ghiz to Savas, Ayash and Klele, partners as Mallory Mercantile Company, purporting to convey all of grantor's interest in the estate of his deceased brother, Harvey Ghiz, Jr., being a one-seventh of a one-eighth undivided interest in the estate, both real and personal of which Habib Ghiz died seized and possessed; and (7) a deed from Mike (Michael) Ghiz, dated September 9, 1936, to Savas, Ayash and Klele, partners as Mallory Mercantile Company, purporting to convey one-seventh of a one-eighth interest in the estate of Habib Ghiz, of which grantor's deceased brother, Harvey Ghiz, Jr., died seized and possessed.
The conveyances which the plaintiffs seek to have cancelled as a cloud upon their title are: (1) A deed, dated August 14, 1934, from Savas and wife, Ayash and Klele and wife, the three men being partners and doing business under firm name Union Trading Company, to Georgia Lee D'Armon, purporting to convey a full one-eighth undivided interest (Gabriel's) in and to all the real estate of which Habib Ghiz died seized and possessed, as well as an undivided one-eighth interest in the home property of the decedent, Ady Ghiz, situate in Huntington; (2) a deed from Georgia Lee D'Armon, dated August 15, 1934, to Albert Klele and Anna Klele, his wife, purporting to transfer the property conveyed to Georgia Lee D'Armon by said deed of August 14, 1934; (3) a deed dated May 12, 1937, by Klele and wife to Savas and Ayash, which, after reciting the dissolution of the partnership of Savas. Ayash and Klele, styled Mallory Mercantile Company, transfers Klele's interest in four several and individual transfers to said partnership from Mike, Edward (two) and Gabriel, the same bearing dates, September 9, 1936, March 28, 1935, October 15, 1936, and June 18, 1936, respectively: (4) a deed dated September 22, 1936, between Albert Klele and wife to S. A. Ammar, purporting to convey a one-fourth undivided interest in all of the real estate of which Habib Ghiz died seized and possessed, and being an undivided one-eighth interest in said real estate conveyed to Albert Klele by Michael Ghiz by the aforesaid deed dated September 16, 1935, and the other undivided one-eighth interest (Gabriel's one-eighth) is the same which was conveyed to Albert Klele by Georgia Lee D'Armon, by the aforesaid deed dated August 15, 1935; and (5) a deed dated July 15, 1940, from S. A. Ammar and wife to K. A. Ammar, S. A. Ammar, and N. A. Ammar, purporting to convey their undivided 82.1% interest in and to the real estate known as the Habib Ghiz estate, purporting to be the same that was conveyed to said S. A. Ammar by the following deeds of conveyance: (a) from Alexander Ghiz and wife, dated March 1, 1939; (b) from Luther Ghiz, et al., dated March 20, 1939; (c) from Louis Ghiz and wife, dated November 20, 1938; (d) *294 from Luther Ghiz and wife, dated May 1, 1937; (e) from Luther Ghiz and wife, dated July 20, 1937; and (f) from Albert Klele and wife, dated September 22, 1936, which deed of July 15, 1940 recites that the parties of the first part convey all their undivided interest in and to the property specified in the aforesaid five deeds of conveyance.
In their bill of complaint, the plaintiffs charge that the several transfers from them to certain of the defendants were made for grossly inadequate considerations, and in circumstances of actual or constructive fraud; that each of the deeds, though absolute on its face, was, in fact, a mortgage; that the several amounts defendants paid to the several grantees were to be repaid out of plaintiffs' respective shares from the income of their father's estate; and that the property so transferred was to be reconveyed to them after the advancements had been satisfied from the said estate. It is further charged in the bill of complaint that the income from the estate of plaintiffs' father's estate was sufficient to pay the said advancements; that defendants, Savas, Ayash and Klele, have refused to reconvey to plaintiffs their 24/56 interests in their father's estate, and that they have attempted to transfer to the defendants the greater portion of such interest to defendants, S. A. Ammar, K. A. Ammar, and N. A. Ammar.
The bill of complaint further charges that Edward and Gabriel Ghiz relied upon the promise of Albert Klele, who was their mother's brother, to reconvey the property until the year 1937, when Klele is alleged to have repudiated his promise; that Edward Ghiz joined the armed forces of the United States in 1940, and Gabriel Ghiz in 1941. Michael Ghiz relied upon Klele's promise, it is alleged, and later on the promise of S. A. Ammar to reconvey and awaited the return of his brothers from World War II before bringing this suit.
After the death of Habib Ghiz, the estate was administered by L. G. Burns from 1924 to 1930, as administrator of the estate of Habib Ghiz and as guardian of the infant children. On October 1, 1930, Burns was succeeded by Sam Ghiz, decedent's brother, who resigned on July 25, 1932. On August 10, 1932, defendant, Albert Klele, was appointed guardian of the then four infant children of Habib Ghiz, and by an instrument, dated August 15, 1932, was constituted agent to look after the interests of the three plaintiffs, and Luther, all four being of age at that time.
The settlement of the accounts of Albert Klele, as agent for Michael Ghiz, Luther Ghiz, Gabriel Ghiz, Edward Ghiz, and Alexander Ghiz, and the management of the estates of their father and mother submitted to the commissioner of accounts on July 13, 1934, covering the period July 1, 1933, to June 30, 1934, shows a balance of net income on June 30, 1934, of $7,110.64. On that date the account showed an overdraft against Michael Ghiz in the amount of $2,768.00; against Luther Ghiz, $1,818.23; against Gabriel Ghiz, $879.80; against Edward Ghiz, $1,682.70; and as to Alexander Ghiz there was a balance on hand of $1,995.63.
The first of the documents sought to be set aside or declared a mortgage was the deed of Gabriel Ghiz to Union Trading Company, dated January 4, 1934, denominated "This Deed". It recited a consideration of $3,250.00, of which $800.00 was "cash in hand paid, the receipt whereof is hereby acknowledged", an installment of $200.00, being payable on August 15, 1934, and four installments of $562.50 each, payable in one, two, three and four years, respectively, after date, evidenced by four nonnegotiable, noninterest bearing promissory notes. Gabriel Ghiz testified that he had received only $500.00 of the aboverecited cash consideration; that Savas, one of the partners in Union Trading Company, retained $300.00 thereof for interest; and that when he attempted to collect money some time later on the four $562.50 notes, he was unable to get the full value thereof. He testified that he went to Savas on Klele's advice; that witness thought he was executing a mortgage on his one-eighth interest; and that he executed the instrument only on Klele's assertion that the property was security for the amount received. *295 Savas, on the contrary, testified that Gabriel Ghiz's one-eighth share was purchased for $1,500.00, and the assumption of an overdraft in the amount of $879.89. When Klele was notified of the conveyance, he, according to Savas, stated he did not like to see the boys sell their interests, and the property was bought back by Klele by deeds from Union Trading Company to Georgia Lee D'Armon and Georgia Lee D'Armon to Klele. Savas testified that the consideration for the sale to Klele involved the assumption of witness' notes held by Gabriel Ghiz, though he said he "charged a little more".
The deed of Edward Ghiz to Savas, Ayash and Klele, partners as Mallory Mercantile Company dated March 28, 1935, is also denominated as a "deed". This deed recites a consideration of $1.00 in cash, the payment of $500.00 on or before January 1, 1936, as evidenced by a nonnegotiable note, bearing date March 28, 1935, executed by Mallory Mercantile Company, payable to Edward Ghiz on or before January 1, 1936; and the further consideration of payment on the part of Savas, Ayash and Klele of the sum of $3,000.00 within five years, being money owed by Edward Ghiz to the estate of Habib Ghiz.
The deed of Edward Ghiz to Savas, Ayash and Klele, dated October 15, 1936, of his one-seventh interest in Harvey Ghiz, Jr.'s interest in the estate of his father, recites a cash consideration of $350.00.
Savas testified that he paid Edward Ghiz $1,500.00 in cash and assumed his share of the debt in the amount of $19,000.00 owed on the Planters Bank Loan. Savas testified that he discharged the indebtedness due on the Planters Bank Loan when the notes became due about 1938 or 1939; that Sam Ammar paid the balance of the notes, in the amount of $9,000.00, and witness reimbursed Ammar.
The deed of M. H. (Michael) Ghiz to Albert Klele, dated September 16, 1935, conveying a full one-eighth undivided interest in all the real estate of which his father died seized and a like interest in the Huntington property of which his mother died seized, recites a consideration of $1,000.00 in cash, a negotiable promissory note in the amount of $100.00, executed by Klele, and payable to M. H. Ghiz; and the further consideration of the assumption of payment by Klele of three certain negotiable promissory notes: (1) A note dated September 16, 1935, in the amount of $3,970.12, executed by M. H. Ghiz, and payable to the order of Albert Klele, guardian of Louis, Harvey, Jr., and Theodore Ghiz, at the National Bank of Logan ninety days after date, with interest at six per cent from date; (2) a note in the amount of $1,500.00, dated May 4, 1934, made by M. H. Ghiz, and payable to the order of Ammar Brothers at the National Bank of Logan without interest; and (3) a note in the amount of $3,500.00, dated October 15, 1934, made by M. H. Ghiz, payable to the order of the Virginia Life Insurance Company of Richmond, Virginia, with interest at six per cent in semi-annual payments between October 15, 1935, and April 15, 1939.
According to Michael Ghiz, Klele sent him to Sam Ammar about the middle of 1934, who in turn sent witness to James E. Greever, an attorney practicing in Logan County, to procure what witness terms a mortgage. Michael testified that he was to receive $1,500.00, but Ammar required a $350.00 bonus and $60.00 in payment of interest in advance, so the witness actually received a check for $1,090.00, which he cashed, kept the $90.00, and left $1,000.00 with Klele, with instructions that it be held for him; but later, according to Michael Ghiz, Klele gave him $900.00 and kept $100.00 for helping get a lawyer for witness.
Michael Ghiz testified that Klele was to sell the Huntington property for $10,000.00 and apply the money to the indebtedness against the property, but he testified that he did not receive any share from this sale. Since witness' mother, Ady Ghiz, had executed a deed of trust on the Huntington property in the amount of $12,000.00, which was unsatisfied at the time of the sale, Michael was not entitled to receive anything, but he testified that Klele said he would give him $300.00.
Edward Ghiz was married in 1933, and, in order to obtain employment, he asked *296 Klele to give him some money to go to Canton, Ohio. On another occasion he sought to obtain from Klele $1,500.00, to enable him to go into business. Evidently acting on Klele's advice he went to Savas, who advanced $500.00, which witness said was to be paid out of the income.
In 1937 Michael Ghiz obtained employment in Cincinnati, and had gone to Mallory Mercantile Company to get $250.00 to make a down payment on an automobile. On that occasion Klele said that Michael Ghiz transferred his one-seventh of a one-eighth interest in the estate to Sam Ammar, and turned his furniture in Logan over to the latter. At Cincinnati he worked in a defense plant, but stopped work there in 1944, and returned to Logan in order to discuss his affairs with Sam Ammar. It was then, according to this witness, that he first learned that the Ammars did not intend to return the property to him. He testified that after that time he considered trying to get the property back. In furtherance of this purpose a lawyer from Baltimore was temporarily employed, who went to Logan, spent a few days there, and then advised that the matter be allowed to rest until the return of Edward, who had joined the armed forces of the United States in 1940, and Gabriel, who had joined in 1941.
At the time this suit was pending, the plaintiff Michael Ghiz was forty-four; Gabriel was forty-one; and Edward was thirty-nine, so that when Michael executed the deed to Albert Klele in September, 1935, he was thirty years old; when Gabriel made his deed to the Union Trading Company on January 4, 1934, he was twenty-six; when Gabriel made his second deed to Albert Klele on August 26, 1937, he was twenty-nine; and when Edward Ghiz made his deed to Mallory Mercantile Company on March 28, 1935, he was twenty-five years of age. When the transactions here under attack were made the plaintiffs were men of mature years, and sui juris in every sense of the term. In addition counsel for the defendants stress the fact that plaintiffs were persons of at least ordinary, native intelligence, and had the advantage of good educations. Edward Ghiz testified that he had been graduated from Greenbrier Military School at Lewisburg, West Virginia; that he had attended that institution eight years; and that he then entered Marshall College, at Huntington, West Virginia, when he was twenty years of age, but failed his scholastic work in his first year. He also testified that Michael attended Logan High School, and then spent one year at West Virginia University, and three years at Marshall College. Gabriel testified that he had attended Greenbrier Military School for six years; and that he completed three years of the high school course.
From a careful review of this record it seems that the plaintiffs were not frugal in their habits. The many vouchers contained in this record exhibiting payments out of their father's estate to the plaintiffs, including at least as to one of the plaintiffs, the redemption of bad checks, together with the constant importuning of all the plaintiffs for money from the estate of Habib Ghiz, including borrowing from the funds of the guardian of their infant brothers, indicate that plaintiffs were the aggressors in the transactions between them and Klele, and the partnerships of Savas, Ayash and Klele, known as Union Trading Company and Mallory Mercantile Company. In fact, under date of February 17, 1937, Michael Ghiz wrote a lengthy letter to his uncle, Albert Klele, importuning him to lend him five hundred dollars with the former's share of the furniture in the Aracoma Hotel as security for the purpose of enabling him to go to South America to "seek a new life and try and forget my old life." He wrote: "I have called upon you time and again to loan me money to establish myself, you have given me the money thinking I mean what I say. As soon as I received the money I gambled it away. Again the same thing happened again and again. I made repetition of gambling. So on until I borrowed from Ammar and again I gambled it away until finally I sold you my share and the money went the same way and the same with Harvey's interest, * * *. I know it is futile to ask you for money because if you would give it to me, you know as well as I do I will gamble it away."
*297 Under date of November 15, 1937, Edward Ghiz wrote to Nick Savas, in regard to the conveyances which he made to Savas. He said: "I have heard reports that there would be trouble about my share of the estate because my wife did not sign the bill of sale. Nick, I want to remove all doubt about this matter. I sold you the part that I owned outright because I wanted to sell it and not to be bothered any more with it. * * * I was not influenced by anyone, that I sold my share impartially and without fear."
The plaintiffs testified as to various conveyances which they severally made to Savas, Ayash and Klele, either individually or as partners. According to their testimony the conveyances, though absolute in their terms, were understood to be mortgages to secure money borrowed from the various defendants, or through Klele from the guardianship funds of the infants. On the other hand, both Klele and Savas testified that at the time the conveyances were made they were intended to be absolute; that there was no understanding that they were to be mortgages; and that there was no agreement or representation that they would be reconveyed, except that Klele during the course of his testimony made several statements to the effect that he had retrieved from Union Trading Company Gabriel's interest in Habib Ghiz's estate, because he wanted to hold it for him, and, further, that he told Michael that he would let him have his interest back if he (Michael) ever obtained money to repay the witness. He also testified that he was forced to convey Gabriel's and Michael's one-eighth interests by deed, dated September 22, 1936, to S. A. Ammar in order to pay fifteen hundred dollars, which Michael owed to Ammar, and $6,200.00 to replace overdrafts in his (Klele's) guardianship account, prior to final settlement (1937) and resignation. He testified that as each infant became of age he was paid, either from witness's personal funds or by borrowing.
We are impressed with the fact that, at the time plaintiffs made the conveyances under attack, there was, as this record discloses, a severe depreciation and deflation of property values in the City of Logan; money was scarce and hard to obtain; the Logan property was incumbered by the deeds of trust securing the Planter's Bank Loan, which was reduced from time to time until the balance was assumed and paid off by Ammar. As the able trial chancellor remarked in his opinion, at the time the conveyances were made, "There was no sale for anything to speak of except at a sacrifice price." Though the Aracoma Hotel was appraised in the Habib Ghiz estate at $100,000.00, Mr. L. G. Burns, the first administrator of the estate and guardian of the infant children, testified that about the time the transactions in question were consummated, the hotel was worth $40,000.00 notwithstanding it was heavily encumbered. This record likewise discloses that during the precarious times in the City of Logan, as well as elsewhere in the country, great difficulty was experienced in the profitable management of the Aracoma Hotel. One person in charge of the management, the testimony reveals, was relieved therefrom after he had acquired an accumulated indebtedness of $9,000.00. Michael Ghiz, who for a time acted as bookkeeper for the hotel under the previous management, leased the hotel from the estate, but after a few months he defaulted in his rent and lost the lease.
In the appraisement of this case the status of Albert Klele is important. On August 15, 1932, at which time he was the legal guardian of the four then infant children of Habib Ghiz, deceased, he entered into a contract with Michael, Edward, Gabriel and Luther Ghiz, who at that time had achieved their majority, whereby he was appointed the latter's agent "with full power in the premises to handle all of said improved real estate, collect the rentals thereon, and lease the same, do all necessary repairs, keep the property insured, pay the taxes thereon, and do any and all other things necessary to properly preserve said estate and derive therefrom the most revenue possible." It is important to note (1) that this agreement does not provide for power to sell; (2) that, in entering into it, Klele was dealing with persons sui juris; and (3) that *298 Albert Klele's status under this agreement was that of a mere agent to manage and lease the property of the four adult children of Habib Ghiz.
The following questions are presented by this record: (1) Are the conveyances from the plaintiffs to Klele and his partners absolute conveyances or mortgages; (2) if the conveyances are not mortgages, were the grantees under any duty to reconvey the interests conveyed to them under express or implied promises to do so; (3) were the defendants, Savas, Ayash and Klele, guilty of actual fraud in connection with the conveyances from the plaintiffs to them; and (4) was the status of Klele and his partners such that, in the absence of actual fraud, the conveyances from the plaintiffs are per se or constructively fraudulent? If the answers to all of the foregoing questions were properly decided by the trial chancellor in the negative, the question whether the Ammars are purchasers for value without notice does not arise.
The first question presented to us on this record is: Are the conveyances from the three plaintiffs to Savas, Ayash and Klele, as partners and individually, absolute conveyances, or, as contended for by plaintiffs, are they mortgages?
The deeds executed by the plaintiffs are absolute on their faces, but they may be established as mortgages by parol. Hoffman v. Ryan, 21 W.Va. 415; Ross v. Midelburg, 129 W.Va. 851, 867, 42 S.E.2d 185. And, where a debt is due at the time of the conveyances, a court of equity will always lean in favor of regarding the conveyances as mortgages rather than conditional sales. Thacker v. Morris, 52 W.Va. 220, 43 S.E. 141, 94 Am. St. Rep. 928; Davis v. Demming, 12 W.Va. 246.
If plaintiffs' evidence be taken as true, that at the time of each conveyance there was a debt due from the grantor to the grantee, or grantees, and both grantors and grantees understood that the deeds in question were mortgages, plaintiffs would be entitled to have the conveyances so declared. Undoubtedly, there were debts due from the plaintiffs to the grantees in their respective deeds at the time of the execution thereof, or were created simultaneously with the transfer of the interests. As to Klele, as the agent for the adult sons of Habib Ghiz, and as guardian for the infant children, the plaintiffs had created by their constant borrowing an overdraft which resulted in money properly belonging to the guardian's account being withdrawn and turned over to these plaintiffs. It is difficult for us to hold that these overdrafts were not debts. Even as to the conveyances to Klele individually, who as guardian was liable on his accounts to the infant defendants, and advanced money from the guardian funds, these overdrafts were debts. As all of the transfers from the plaintiffs were made upon the payment of money or at the time there was a pre-existing debt an essential element of a mortgage is present. As this Court said in the recent case of Ross v. Midelburg, supra, 129 W.Va. at page 871, 42 S.E.2d at page 196: "If the purpose and the intention of the parties to a transaction are to create a loan and by so doing establish the relation of creditor and debtor between them, and the title to the property conveyed with an agreement to reconvey or an option to repurchase is held by the lender as security for the payment of the debt, the deed is in fact a mortgage, and the maxim `Once a mortgage, always a mortage', applies." So a debt being present and underlying all of the conveyances from plaintiffs, and there being no defeasance clauses in the respective deeds, and no outstanding supplemental agreement as existed in the Midelburg case, the question arises, can parol evidence be used to establish the conveyances as mortgages, notwithstanding they are absolute on their faces? This Court in the early case of Lawrence v. Du Bois, 16 W.Va. 443, pt. 1 syl., held: "Though a deed be absolute on its face, the real nature of the transaction can be proven by parol evidence or surrounding circumstances, and the deed be held to be a mortgage." In the body of the opinion this Court said in 16 W.Va. at page 459: "* * * But it is perfectly well settled almost everywhere, and especially in Virginia and West Virginia, that such an absolute sale may be converted into a conditional *299 sale or a mortgage by proving that the real intention of the parties was that it should not be an absolute sale, and that such intention may be proven by the surrounding circumstances and by parol proof. It is unnecessary to cite authorities to establish this position, which is, so far as I know, almost universally admitted; but the cases of Klinck v. Price, 4 W.Va. 4, 6 Am.Rep. 268 and Davis, Committee v. Demming, 12 W.Va. 246, establish this to be the law in this State." In point 2 of the syllabus in that case, the Court gives three indicia, which have great weight in determining whether a deed absolute on its face is nevertheless a mortgage: "* * * First, Where the parties admit that the grantor owes after the execution of the deed the consideration of the land to the grantee as a debt. Second, If this alleged consideration is grossly inadequate. Third, If the vendor remains in possession of the land for many years without the payment of any rent."
Perhaps the leading early West Virginia case involving the question whether a deed absolute on its face is, in fact, a mortgage, is the case of Davis v. Demming, supra, in which Judge Green, in 12 W.Va. at page 282, uses the following language: "Parol evidence, the declarations and conduct of the parties at the time of the transaction or subsequently, as well as all the circumstances attending or surrounding the same are received to show, whether the transaction was a conditional sale, or mortgage; and this is done though the deed, or bill of sale be absolute on its face."
With the well established rules set forth in the Lawrence, Davis and Midelburg cases, let us at this time turn our attention to the record to see whether these plaintiffs by sufficient evidence have established that their conveyances were, in fact, mortgages. The record discloses the presence of one of the circumstances having great weight in determining that a deed absolute on its face is a mortgage, that is, at the time the conveyances were made the grantors became indebted to the grantees, or there was a preexisting debt, as in the case of the overdrafts due and owing from the grantors to the grantees.
We, however, do not find the other two circumstances, enumerated in the Lawrence case as having weight on the question whether a deed absolute on its face is a mortgage, presented in this record. In the first place, no change of possession of the property was effectuated by the transfers, for under the guardianship of the infant children, as well as the agency agreement providing for management of the property which the plaintiffs executed, they were never in possession of the property. The agreement as to the management of the property contemplated that the possession be in Klele during the duration of the agreement. In fact, the three plaintiffs, together with their brother, Luther Ghiz, who at the time the agreement was entered into on August 15, 1932, were the four adult children of Habib Ghiz, expressly covenanted in the agreement "that they will not interfere with the said second party [Klele] in the management of said real estate or any part thereof." Though technically the possession of the agent is that of the principal, nevertheless, in the final analysis, the burden of proving that a deed absolute on its face is in fact a mortgage rests on the grantor of the deed. Therefore, it is the grantors' duty in the instant case to prove that their conveyances to Savas, Ayash and Klele, as partners and individually, were intended to be mortgages by whatever indicia that may be available to them, one of which, under the rule in the Lawrence case, is that the grantor after the conveyance retains possession of the property conveyed as against the grantee. In the instant case, the grantors had no possession to retain or transfer because, as heretofore indicated, prior to the conveyances, under the agency agreement, Klele had the exclusive right to mortgage and lease the property without any right on the part of the other parties to the agency agreement, namely, Michael, Gabriel, Luther and Edward Ghiz to interfere with such management. So that the rule prescribed in the Lawrence case that a retention of property by a grantor or grantors conveyed by a purportedly absolute conveyance is an indicum of a mortgage has not been met. The rule in that case contemplates a retention of *300 possession by the grantor in a deed absolute on its face, alleged to be a mortgage, as against the grantee, a situation not portrayed in this record.
Nor can we say from this record that the consideration was grossly inadequate. Though the Aracoma Hotel, which was the main item of real estate of which their father died seized and possessed, was appraised in decedent's estate at $100,000.00, L. G. Burns, the first administrator, testified that about the time the conveyances were made, the Aracoma Hotel was worth about $40,000.00. As heretofore indicated, during the precarious times of 1934, 1935, and 1936, real estate values, as appears from evidence concerning other properties, were greatly deflated in the City of Logan. The real estate in which the plaintiffs conveyed their interests was heavily encumbered under Planters Bank Loan, no part of which indebtedness was ever paid by these plaintiffs; but was liquidated by plaintiffs' grantees and the Ammars, the purchasers from said grantees. The hotel property, which at the time of the death of Habib Ghiz had substantial value, was difficult of successful and profitable management because of the financial stress of that time. One of the hotel managers gave up the management with a $9,000.00 indebtedness. Even the plaintiff, Michael Ghiz, who leased the hotel property, after a few months defaulted in the payment of rent and lost the lease. Plaintiffs' interests in their father's estate were greatly encumbered. The Huntington house, which belonged to plaintiffs' mother, notwithstanding it had cost $33,000.00, was sold for $10,000.00, which was $2,000.00 less than sufficient to satisfy the existing deed of trust. These plaintiffs, as the trial chancellor indicated in his opinion, seemed bound to dispense with their inheritance, and the trial chancellor, in our opinion, was entirely justified in deciding that in order to obtain money quickly, they were willing, and did, sell their interests at prices which were consonant with the then deflated values of property. If the property has increased in value since their conveyances, due to a change in the financial conditions in the City of Logan and the country generally, as this record discloses, so that the prices at which plaintiffs conveyed the property would be inadequate at the time of the trial of this case, they nevertheless were not at liberty to gamble with their father's estate, and sell their interests on the basis of the then deflated values, and now, as late as 1947, when this suit was brought, and there has been a change in the circumstances surrounding the property, which originally belonged to their father's estate, try to retrieve their interests on the basis of mortgages, unless they clearly establish that position. The letters of Edward and Michael Ghiz indicated that they were straitened in their circumstances, and weaken greatly the position of these two plaintiffs that their conveyances were not absolute but were mortgages.
The plaintiffs' testimony is the only evidence tending to establish that the conveyances were, in fact, mortgages. Their testimony, in our opinion, is no more credible than that of Savas and Klele, who testified that there was no understanding that the conveyances were mortgages. As all of the plaintiffs and these two defendants were interested parties to this suit, we cannot weigh their testimony as the trial chancellor had the right to do, and we do not. Most convincing is the testimony of Judge C. C. Chambers, now Judge of the Circuit Court of Logan County, who disqualified himself in this case, and the testimony of Ira P. Hager, a prominent attorney in Logan, to the effect that when they took the plaintiffs' acknowledgments to various deeds there was no understanding effectuated, that the conveyances were, in fact, mortgages. Both of these gentlemen at the time the conveyances were made were skillful and ethical lawyers practicing at the Bar of Logan County, and had no interest in the outcome of this case. The trial chancellor was at liberty to give the testimony of these disinterested witnesses great weight, and, in doing so, in view of the conflict in the evidence, we will not disturb his finding to the effect that there was no understanding that by their absolute conveyances, these plaintiffs intended a mortgage. Many times this Court has held that it will not disturb a trial chancellor's *301 finding upon an appeal, unless it is plainly wrong or against the preponderance of the evidence. Bennett v. Neff, 130 W. Va. 121, pt. 6 syl., 42 S.E.2d 793; Sutton v. Sutton, 128 W.Va. 290, 36 S.E.2d 608; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355. So we hold, as we believe we are bound to do, in view of the finding of the trial chancellor, that these conveyances were not, in fact, mortgages.
Likewise the evidence conflicts on the question whether the grantees in the deeds executed by plaintiffs and now under attack are under any duty to reconvey under a promise, either express or implied. Aside from the unsupported testimony of each plaintiff, as to his own deeds, there is no evidence in this record tending to show that such an agreement existed at the time these deeds were executed, except that Klele stated during the course of his examination that he intended to reconvey the property deeded to him upon payment of the indebtednesses but upon default of the payment of the indebtedness he was compelled to convey the property to Ammar to satisfy plaintiffs' overdrafts so that he could make settlement of his accounts as guardian of the infant brothers of plaintiffs as they became of age. Moreover, as counsel for defendants assert in their brief, the fact that the grantees executed notes to the plaintiffs, assumed over-drafts made by them, and assumed payment of Planter's Bank Loan against their interests, is not consonant with the oral and unsupported testimony of plaintiffs given at the trial of this case in 1949, many years after the conveyances were made. In regard to this question of fact, we apply the rule heretofore stated, which precludes this Court from disturbing the finding of the trial chancellor.
The last of the factual questions bearing on the conveyances by plaintiffs, is whether the conveyances from plaintiffs were tainted with actual fraud on the part of the grantee-defendants.
The plaintiffs were mature men at the time the conveyances were made, the youngest then being twenty-five years of age. They had more than ordinary educations. Living in the City of Logan during most of their lives, naturally they were familiar with the properties belonging to their father. They were persistent in their efforts to obtain money from their father's and deceased brother's estate, including the interest of their infant brothers, on the basis of which they conveyed their own interests in the property. In this jurisdiction fraud not only must be alleged, but it must be clearly and distinctly proved. Zogg v. Hedges, 126 W.Va. 523, 530, 29 S.E.2d 871, 152 A.L.R. 991, and the many cases cited in that opinion. This record is devoid of any evidence of concealment, or lack of knowledge on the part of these plaintiffs. These conveyances were made because of the importunities on plaintiffs' part, and not because of any effort on the part of the defendants to defraud or deceive the plaintiffs. True, there was some mismanagement on the part of one of the administrators of the estate, and on the part of Klele in using the infants' funds for the accommodation of these plaintiffs, but that mismanagement, so far as this record is concerned, is not disclosed to have worked to plaintiffs' detriment.
The last of the questions before us involving the immediate transaction between the plaintiffs and their grantees, Savas, Ayash and Klele, presents the legal question whether the relationship between these parties and Klele, as the agent employed by plaintiffs and their brother Luther, to manage their father's estate, and Klele, as guardian of the then infant children of Habib Ghiz, was such that the transactions between the plaintiffs and their grantees were fraudulent per se, that is, tainted with constructive fraud. The fact that Klele was acting as guardian of the infant children has no bearing on this case. So far as these plaintiffs are concerned, this case does not involve any of the following fiduciary or quasi fiduciary relationships: (1) A personal representative and beneficiary; (2) guardian and ward; (3) committee and incompetent; (4) trustee and cestui que trust; (5) attorney and client; and (6) an agent with express or implied authority to sell his principal's property. Savas and Ayash *302 bear no relationship to these plaintiffs by consanguinity or affinity: they were strangers as to plaintiffs, in the sense that as to conveyances to them the parties were dealing at arm's length. But it is said that because Klele is an uncle of these plaintiffs, and the agency agreement gave Klele full power to manage and lease the property, he held a fiduciary or quasi fiduciary relation to plaintiffs so that the conveyances to him, even in the absence of actual fraud, were fraudulent per se, or constructively fraudulent, and are, therefore, vulnerable in this suit at the instance of the plaintiffs. With this position we do not agree. As we have said, Klele had no knowledge concerning this property not available to plaintiffs. There was no withholding of knowledge by him, and no actual concealment. The properties were there in the Cities of Logan and Huntington and plaintiffs from time to time lived in part of the property and in the vicinity where it was located. One of the plaintiffs even leased the hotel and served as bookkeeper thereof under a prior lessee or manager. There is a clear distinction in the cases between an agent, who has power to sell the principal's property, and who, either directly or by mediary obtains title to the property for himself, and an agent, having no such power of sale and having no knowledge peculiar to himself, who deals with a sui juris principal for the transfer of the property. No rule of law would be more far afield from abstract justice between parties if a mere agent, in the absence of fraud or concealment, cannot deal for the acquisition of the property with his principal.
As to the sale of plaintiffs' interests to Savas, Ayash and Klele, as partners, the plaintiffs were persons sui juris dealing with purchasers at arms' length.
In Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 287, 62 A.L.R. 858, in which the Court had under consideration the qualification of agents for the management and operation of property belonging to a public charitable trust to purchase from the trustees thereof named as agents to sell, held that a mere agency for management does not disqualify an agent from dealing with his principal, namely, the trustees, outside the subject of the agency. The Court said: "Their duties [those of managing agents] were limited to management and operation. The agency does not fall within the rule applicable to guardians and wards, trustees and cestui que trust, agents to sell, and similar relationships, * * *". In Douglass v. Lougee, 147 Iowa 406, 123 N.W. 967, cited with approval in the Dickey case, the court said: "Where an agent has no power to sell property, but is to lease it or collect the rents, and the agent enters into independent negotiations with the principal to purchase the land, no suspicion of fraud arises from that fact alone, and the agent is not bound to assist the principal to obtain the highest possible price, since, from the moment he attempts to buy, the parties as to that transaction are dealing at arm's length." In the decision of this case, we need not go as far as the Iowa Court went in its decision, when it said that "* * * the agent is not bound to assist the principal to obtain the highest possible price," because, as shown by this record, Klele, as agent for the plaintiffs, could have been under no duty to obtain the highest possible price for plaintiffs' interests in the properties, there being at the time of the conveyances no available market for property in the City of Logan. We are constrained to adopt the statement of this Court in the case of Sperry v. Sperry, 80 W.Va. 142, 154, 92 S.E. 574, 578, that: "The principle of law applicable to transactions between principal and agent is simple and well understood, and we find it nowhere better or more clearly stated than in 2 C.J., pages 706, 707, where it is said: `As a general rule an agent is not permitted to enter into any transaction with his principal on his own behalf respecting the subject matter of the agency, unless he acts with entire good faith and without any undue influence or imposition, and makes a full disclosure of all the facts and circumstances attending the transaction. The existence of the relation does not of itself forbid transactions between the principal and agent; and, since the above rule exists to protect the principal, *303 it has no application to cases in which the agent openly and fairly deals with the principal, without any concealment or deception, as in such cases an agent is as competent to deal with the principal as another.'" In one of the two companionate cases, involved in the Sperry case, this Court cancelled deeds from a principal to an agent, together with power of attorney from the principal to the agent, "with the most ample powers of sale and distribution" of valuable property. The agent acting under his power of attorney sold the property, and attained the title thereto at only a fraction of its value. The record in that case shows a material misrepresentation with reference to the dissolution of an injunction which the principal's wife had obtained against him as to the disposition of the property; and the record discloses that the agent was an experienced older man, the sheriff of McDowell County, and the principal was a man of dissolute habits and doubtful business acumen. In setting aside the deeds and power of attorney, this Court in syllabus 2 of the case said: "* * * and where the principal is infirm or of doubtful business capacity, very slight circumstances will suffice to cause the court to set aside the dealings between principal and agent." The Sperry case, though the opinion in that case recognized the principle contended for by plaintiffs herein, is not in point with this case. Unlike Klele, the agent in the Sperry case had almost unlimited powers of sale, there were material misrepresentations and the principal in that case, owing to the circumstances portrayed by the record, was dealing with his agent upon decidedly unequal terms.
The case of Harrison v. Miller, 124 W. Va. 550, 21 S.E.2d 674, cited by counsel for plaintiffs, in support of the proposition that the mere relationship between parties, plaintiff and defendant, renders the transactions in question fraudulent per se, has no bearing upon the question immediately under consideration. The record in that case discloses the shocking situation of an executor of an estate, in which the plaintiffs therein owned interests, which executor was also guardian of the infant owners of the estate, and a creditor of the estate, who as such creditor caused a sale of the property under the deed of trust securing the notes held by him, and bought the property at the trustee's sale. Though the case involved no actual fraud, it concerned a fiduciary, actively working against the interest of the estate which he represented to obtain the corpus thereof as against the beneficiaries under the will in which he was named executor, and against the wards of whom he was the guardian.
In resolving the question whether, because of the relationship between the parties, the transaction was fraudulent per se, we need not rely upon the case of Brown v. McGraw, 98 W.Va. 607, 128 W.Va. 124. That case did not involve a sale between a sui juris principal and a mere agent to manage property, but because the sale in the Brown case was by virtue of judicial decree, this Court, in the absence of actual fraud, sustained the transaction. In the recent case of Bank of Mill Creek v. Elkhorn Coal Corporation, W.Va., 57 S.E.2d 736, doubt was expressed as to the soundness of the doctrine enunciated in the Brown case. Nor is the case of Spriggs v. McCreery, 87 W.Va. 204, 104 S.E. 479, cited by counsel for defendants, applicable to the question under consideration. That case involved (1) active fraud on the part of an agent amply vested with power as to his principals' property, situated in Raleigh County, who, by the manipulation of the property in a partition suit in which the agent was one of the commissioners, and (2) a representation to the owners, who were nonresidents of the State that there was a cloud on the principals' property. which necessitated conveyance of a part of the property to the agent, McCreery. This Court stated in that case that the agent had obtained 1,500 acres of his principals' land by his inequitable conduct "for nothing".
In their supplemental brief, counsel for plaintiffs, after referring to cases thereinbefore cited, say that these cases "concern only agents in one capacity or another, *304 where the relation is strictly of a fiduciary nature." After a consideration of the cases, we agree with counsels' statement.
Counsel for plaintiffs in their supplemental brief, also rely upon the case of Carleton Mining & Power Co. v. West Virginia Northern Railroad Co., 113 W.Va. 20, 166 S.E. 536, as one in which a constructive trust was held to be created, though there was no express fiduciary relationship. This case, however, concerned the wrongful blending of accounts belonging to a plaintiff with the accounts from other properties under defendant's control.
No case decided by this Court holds that where an agent deals with a sui juris principal, in the absence of fraud, and concealment of pertinent knowledge within the peculiar knowledge of the agent, with reference to the principal's property, the relationship of principal and agent of itself renders a sale from the principal to the agent fraudulent per se. From a careful consideration of this question, and an examination of the authorities, bearing in mind that no fiduciary relationship exists between the parties, we hold that the transactions in question between the plaintiffs and the defendants, as partners and as individuals, were not fraudulent per se.
From the foregoing it appears that the sale of plaintiffs' interests in the estates of their father and deceased brother to Savas, Ayash and Klele, as partners and as individuals, gave to the grantees such title as the grantors had at the time of the conveyances. It follows that the question whether the Ammars were purchasers for value without notice is moot.
Accordingly, the decree of the Circuit Court of Logan County is affirmed.
Affirmed.
LOVINS, P., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337221/ | 313 S.E.2d 245 (1984)
Carolyn Denise PIPPINS and Shirley Pippins
v.
William Charles GARNER.
No. 833SC421.
Court of Appeals of North Carolina.
April 3, 1984.
*246 Jeffrey L. Miller, Greenville, for plaintiffs-appellants.
Battle, Winslow, Scott & Wiley, P.A. by Marshall A. Gallop, Jr., Rocky Mount, for defendant-appellee.
HILL, Judge.
The sole issue is whether the trial court erred in refusing to submit the issue of last clear chance to the jury. We find that the court properly declined to submit the issue of last clear chance.
In order to submit the issue of last clear chance to the jury, the evidence must tend to establish the following:
(1) that plaintiff, by his own negligence, placed himself in a position of peril (or a position of peril to which he was inadvertent); (2) that defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of plaintiff; (3) that he should have so seen or discovered plaintiff's perilous condition in time to have avoided injuring him; (4) that notwithstanding such notice defendant failed or refused to use every reasonable means at his command to avoid the impending injury; and (5) that as a result of such failure or refusal plaintiff was in fact injured.
Wray v. Hughes, 44 N.C.App. 678, 681-82, 262 S.E.2d 307, 309-10, disc. rev. denied, 300 N.C. 203, 269 S.E.2d 628 (1980). Last clear chance "contemplates that if liability is to be imposed the defendant must have a last `clear' chance, not a last `possible' chance to avoid injury." Grant v. Greene, 11 N.C.App. 537, 541, 181 S.E.2d 770, 772 (1971). Accord Battle v. Chavis, 266 N.C. 778, 781, 147 S.E.2d 387, 390 (1966). The burden is on the plaintiff to establish that the doctrine applies. Vernon v. Crist, 291 N.C. 646, 654, 231 S.E.2d 591, 596 (1977).
In the case under review plaintiffs have failed to carry their burden of establishing the doctrine's applicability. The evidence shows that the collision occurred within the intersection of a three lane road. Some question exists as to the right of way at the time of the collision, each party contending the traffic light gave such right to her or him. Carolyn Denise Pippins testified she first saw the defendant's car stopped across Dickinson Street a little way behind the pedestrian walkway. She noticed his left turn signal was activated. She was turning her vehicle toward the lane nearest the curb and did not know of defendant's attempt to turn left until defendant's car struck the car she was driving. The evidence further shows that plaintiff's car was moving 30 to 35 miles per hour or 44 to 51.33 feet per second. There is evidence that defendant's car was moving at a speed of 20 miles per hour or 27.33 feet per second. Such evidence indicates that the matter occurred within a very few seconds and is a case of negligence and contributory negligence rather than last clear chance. While the defendant may have had the last possible chance to avoid the injury, defendant had not the time nor the means to have the last clear chance to entitle the submission of the question to the jury.
Affirmed.
VAUGHN, C.J., concurs.
PHILLIPS, J., dissents.
PHILLIPS, Judge, dissenting.
Even though the time that defendant had within which to avoid the accident was very *247 brief, indeed, and the distance between the two vehicles was rather short, the evidence nevertheless raised the issue of last clear chance, in my opinion, and the jury should have been so instructed.
The evidence as to virtually every circumstance leading to the accident was in conflict, and how these conflicts were resolved by the jury, we do not know. They could have found, however, as one evidentiary combination indicates, that instead of traveling 20 miles per hour, the defendant was just getting his car in motion, after stopping for the red light, when he could have seen that plaintiff, traveling 30 to 35 miles per hour, was not going to stop for the changing traffic light. Whether the defendant could and should have stopped his car, rather than increase his speed and travel on, was a question that the jury should have decided, rather than the court. That a car just leaving a stationary position requires very little time and space within which to stop is certain, and in determining that under the circumstances described that defendant had no reasonable opportunity to stop his car and that the chance that defendant undoubtedly had to avoid the accident was only a "last possible chance," rather than a last clear chance, the majority decided a factual, rather than a legal, question in my judgment. While this is a weak last clear chance case, to be sure, based on circumstances drastically different from those involved in most of the reported cases that have dealt with this doctrine, it is still a case for the jury, in my view. Too, despite the refinements that judges have engrafted upon this simple, humane, common sense doctrine, it should be remembered that it is but an extension of the rule of proximate cause, which jurors, rather than judges, usually apply; and, if defendant could and should have avoided the accident in the brief time available after plaintiff's peril was or should have been noted, his failure to do so was the proximate cause of plaintiff's damage. If the jury had been so instructed, the verdict might have been different. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337223/ | 313 S.E.2d 554 (1984)
310 N.C. 613
STATE of North Carolina
v.
Zolta Antoine HOWIE.
No. 311PA83.
Supreme Court of North Carolina.
April 3, 1984.
*555 Rufus L. Edmisten, Atty. Gen. by Grayson G. Kelley, Asst. Atty. Gen., Raleigh, for the State.
Steven A. Grossman, Kannapolis, Atty., for defendant-appellant.
MEYER, Justice.
At trial the State's evidence tended to show that on 8 November 1978, the victim, Raleigh Winfield Combs, was working as a service station attendant at what was then the Davis Oil Company in Kannapolis. At approximately 7:30 p.m. a black man wearing a ski mask entered the station and stated, "This is a robbery." He shot Mr. Combs five times, saying as he did so, "You die, you damn yellow son of a bitch." Mr. Combs suffered gunshot wounds to his throat, mouth, and abdomen. Mr. Combs was unable to identify his assailant. In addition to an undetermined amount of money taken from Mr. Combs, $492.00 was taken from the station.
Alfred Jerome Elliot testified that on the evening of 8 November 1978, the defendant came to his home, told Elliot he "had something he wanted to do," and asked to borrow Elliot's .22-caliber pistol. Elliot accompanied the defendant to his car and he, the defendant and codefendant Wilkes drove to within a block of the service station. Defendant parked the car, walked toward the service station, and returned approximately fifteen minutes later holding Elliot's gun in one hand and money with blood on it in his other hand. The defendant gave Elliot $90.00 and returned the gun to him the next day.
Defendant offered no evidence. Following his conviction for armed robbery, he was sentenced to life imprisonment.
Defendant first contends that the trial judge's comments during the trial constituted an impermissible expression of opinion. The court's questions and comments to which exception has been taken included inter alia: cautioning a witness to speak more slowly; clarifying the name of the oil company for which the witness worked; determining whether a witness could draw; clarifying the testimony of the witness with respect to the dimensions of the service station; and determining whether statements made by the defendant were made in the presence of codefendant Wilkes for purposes of hearsay exceptions. Our reading of the record discloses that in every instance the trial judge was acting well within his discretion. State v. Jackson, 306 N.C. 642, 295 S.E.2d 383 (1982).
Defendant next contends that he was denied his right to fully cross-examine and confront State's witness Elliot. In an effort to impeach Elliot on cross-examination, defense counsel attempted to elicit information concerning Elliot's having been charged in the very case before the court and his prior criminal activities. Elliot testified before the jury that he had been charged in the case before the court. Upon being questioned about prior convictions, defendant answered that he had been convicted of two armed robberies. A voir dire disclosed that defendant had not been convicted but had been indicted in one case (in North Carolina) and was under investigation for another robbery in South Carolina. The trial judge excluded evidence of Elliot's indictment for the unrelated robbery and the South Carolina investigation.
It is the State's position that evidence of the witness Elliot's possible involvement in unrelated robberies for which he had not been convicted was properly excluded under the authority of State v. Williams, 279 N.C. 663, 672, 185 S.E.2d 174, 180 (1971). In Williams we stated that:
for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense.
*556 It is defendant's position that the rule enunciated in Williams applies only to character impeachment and that, where the purpose of the cross-examination is impeachment by showing bias or prejudice, a different rule obtains.
Assuming arguendo that defendant's argument has merit, and the indictment on the unrelated robbery charge should have been admitted to show bias, he has failed to show prejudice by the exclusion of that evidence. The jury had been apprised that the witness had been charged in the present armed robbery case. The excluded evidence would have been merely cumulative. The thrust of the attempted cross-examination was to place before the jury the possibility that Elliot was to receive preferential treatment or concessions in the form of a plea on reduced charges in return for his testimony. This aspect of the witness's potential bias was fully explored. He stated unequivocally that he was testifying truthfully and no promises of preferential treatment, including any offer of a plea to a lesser charge, had been made in return for his testimony.
Defendant's final assignment of error concerns an allegation of ineffective assistance of counsel during sentencing. Defense counsel, in his statement prior to sentencing, pointed out that defendant had never been convicted of a serious crime; that his preacher "thought of him as basically as a good young man" and was "shocked" to hear of defendant's involvement in this robbery; and that because of defendant's youth, he might yet "develop into a productive member of society in the years to come." Defendant argues that his "trial counsel's statement on behalf of the defendant was the product of little if any preparation and, it is submitted, neglect." This argument is based partially on the fact that at sentencing defense counsel relied, in part, on the State to produce evidence of defendant's prior criminal record. Defendant further argues that a well-prepared trial attorney would certainly have had not only his record of convictions but "some evidence as to his environment, his childhood, his upbringing, his schooling, his employment, sentencing alternatives, etc." The test for effective representation of counsel, as enunciated in State v. Weaver, 306 N.C. 629, 641, 295 S.E.2d 375, 382 (1982), is "whether counsel's performance was `within the range of competence demanded of attorneys in criminal cases.'"
We believe that defense counsel's representation of the defendant at sentencing was fully adequate. Defendant has not demonstrated, and there is absolutely nothing in the record to indicate, that defense counsel did or did not make a background investigation or that a further search into defendant's background would have uncovered information tending to mitigate his sentence.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725176/ | 675 So. 2d 1080 (1996)
Emile Anthony BARROW, Jr.
v.
Jennifer Martin BARROW.
No. 96-C-1057.
Supreme Court of Louisiana.
June 21, 1996.
Denied.
BLEICH, J., would grant the writ.
CALOGERO, C.J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1087185/ | Case: 13-40571 Document: 00512419931 Page: 1 Date Filed: 10/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2013
No. 13-40571
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANGEL DOMINGUEZ-NAVARRO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-1074-1
Before JOLLY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Appealing the judgment in a criminal case, Juan Angel Dominguez-
Navarro raises an argument that he concedes is foreclosed by United States v.
Rodriguez, 711 F.3d 541, 562 & n.28 (5th Cir. 2013) (en banc), petition for cert.
filed (June 6, 2013) (No. 12-10695), in which this court concluded that the
generic, contemporary definition of “sexual abuse of a minor” does not require
that the age of consent be lower than 17 years old and does not include an
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 13-40571 Document: 00512419931 Page: 2 Date Filed: 10/25/2013
No. 13-40571
age-differential requirement. The appellant’s motion for summary disposition
is GRANTED, and the judgment of the district court is AFFIRMED.
2 | 01-03-2023 | 10-26-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632560/ | 103 P.3d 200 (2004)
152 Wash.2d 1028-1036
GUNSTONE v. JEFFERSON COUNTY
No. 75406-3
Supreme Court of Washington, Department I
November 30, 2004.
Disposition of petition for review denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743597/ | 710 N.W.2d 258 (2005)
WALKER v. STATE.
No. 03-1625.
Court of Appeals of Iowa.
December 7, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312895/ | THOMAS O. RICE, Chief United States District Judge
BEFORE THE COURT is Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF No. 4 ) and Plaintiff's Motion to Expedite Hearing (ECF No. 5). These matters were heard with oral argument on May 7, 2019. Clayton Cook-Mowery appeared on behalf of Plaintiff. Jeffrey S. Robins and Rudolf J. Verschoor appeared on behalf of Defendants. The Court has reviewed the record and files herein and considered the parties' oral arguments, and is fully informed. For reasons discussed below, the Court DENIES Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF No. 4 ) and GRANTS Plaintiff's Motion to Expedite Hearing (ECF No. 5 ).
FACTS
This case arises from the termination of Plaintiff Christian Garcia Herrera's deferred action status under Deferred Action for Childhood Arrivals ("DACA").
The following facts are drawn from Plaintiff's Complaint and are essentially undisputed as relevant and material to resolution of the instant motion. Plaintiff is 21 years old and currently resides in Tonasket, Washington. ECF No. 1 at 6, ¶ 27. According to his Complaint, Plaintiff was brought to this country from Mexico in 1998 when he was 1 year old. Id. Plaintiff completed junior high school, where he excelled academically, and graduated from high school in Tonasket in June 2016. Id. at 10, ¶ 43. Following graduation, Plaintiff began working as a firefighter for Washington's Department of Natural Resources ("DNR"). Id. at ¶ 44. Plaintiff hopes to one day work in law enforcement. Id. at 2, ¶ 3.
Plaintiff has been granted deferred action status under DACA for the past six years. Plaintiff first received deferred status under DACA in January 2013, and his subsequent renewal applications were approved in 2015 and 2017. Id. at 11, ¶ 50. Plaintiff also applied for and received work authorization in conjunction with the grants of deferred action. Plaintiff's most recently approved renewal application extended his deferred action status and work authorization through February 13, 2019. Id.
On October 29, 2018, Plaintiff applied to renew his deferred action status and work authorization. Id. at 12, ¶ 51. Though *1146Plaintiff's circumstances regarding his eligibility for DACA remained unchanged, as he continued to satisfy the program's educational and residency requirements and has no criminal history whatsoever, USCIS denied Plaintiff's renewal application on November 30, 2018. Id. at 4, ¶ 19; 12, ¶ 51. The November 2018 denial letter did not identify the factors USCIS considered or provide a detailed account of the reasons for USCIS's decision, aside from stating: "You have not established that you warrant a favorable exercise of prosecutorial discretion." ECF No. 4-20.
On January 14, 2019, Plaintiff submitted another renewal application to USCIS, which included additional evidence regarding Plaintiff's success in school and his work as a firefighter. ECF No. 1 at 12, ¶ 52. However, on February 5, 2019, Plaintiff's renewal application was again denied by USCIS. Id. According to Plaintiff, mirroring the November 2018 denial letter, the February 2019 denial letter simply stated that Plaintiff did not establish that he warranted a favorable exercise of prosecutorial discretion, without noting any positive or negative factors considered in the decision-making process. See ECF No. 4-23. Following the denial of his renewal application, Plaintiff's grants of deferred action status and employment authorization officially expired on February 13, 2019.
On March 25, 2019, Plaintiff initiated this action for declaratory and injunctive relief against the following Defendants: Loren Miller, in his official capacity as Director of USCIS, Nebraska Service Center; L. Francis Cissna, in his official capacity as Director of USCIS; Thomas D. Homan, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement ("ICE"); Chrysta Stock, in her official capacity as Spokane Field Office Director, USCIS; and Kevin K. McAleenan1 , in his official capacity as Acting Secretary of the Department of Homeland Security ("DHS"). ECF No. 1. Plaintiff contends that "[t]he government's decisions to deny the renewal of Mr. Garcia Herrera's DACA status, without meaningful explanation or process, and in violation of the program's enumerated eligibility criteria, violate the [APA] ... as well as the Due Process Clause of the Fifth Amendment to the U.S. Constitution." Id. at 5, ¶ 22. As stated in his Complaint, Plaintiff specifically asks this Court to (1) "declare the government's actions unlawful," (2) "order that the government re-adjudicate his application for DACA under the program's existing eligibility criteria using a fair procedure," and (3) "comply with its own rules and restore his DACA, pending the outcome of the government's decisions." Id. at ¶ 23.
On April 18, 2019, Plaintiff filed a Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF No. 4 ), which is presently before the Court. In the instant motion, Plaintiff seeks an order from this Court that temporarily enjoins the revocation of his deferred action status under the DACA program pending an eligibility determination that comports with the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), and the Due Process Clause of the Fifth Amendment. ECF No. 4. On May 2, 2019, Defendants collectively filed a response opposing Plaintiff's motion (ECF No. 9 ), and Plaintiff timely replied (ECF No. 11 ).
DISCUSSION
A. The DACA Program
On June 15, 2012, former Secretary of Homeland Security Janet Napolitano announced *1147the creation of the DACA program. ECF No. 4-4 ("Napolitano Memo"). In her memorandum, Ms. Napolitano provided DHS with guidelines regarding the exercise of its prosecutorial discretion in the enforcement of "the Nation's immigration laws against certain young people who came to this country as children and know only this country as a home." Id. at 1. The Napolitano Memo lists the following five criteria that "should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum":
• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• is not above the age of thirty.
Id. Individuals must also pass a criminal background check to be eligible for DACA. Id. at 2. If a DACA applicant satisfies these eligibility criteria, USCIS may grant the applicant deferred action "on a case-by-case basis." See ECF No. 4-8 at 3 ("DACA FAQs"). Under the DACA program, deferred action is provided for a renewable period of two years, and DACA recipients are eligible to apply for work authorization during periods of deferred action. Id. at 3.
The National Standard Operating Procedures ("SOP") issued by DHS describe the procedures to be followed in adjudicating DACA requests and terminating DACA status. See ECF No. 4-24 at 2. The SOP is applicable to all personnel performing adjudicative functions that relate to DACA processing. Id. Particularly relevant here are the SOP procedures that apply to the adjudication of DACA renewal requests. Chapter 8 of the SOP, entitled "Adjudication of The DACA Request," provides the following guidelines for adjudicators:
Officers will NOT deny a DACA request solely because the DACA requestor failed to submit sufficient evidence with the request (unless there is sufficient evidence in our records to support a denial). As a matter of policy, officers will issue an RFE or a Notice of Intent to Deny (NOID).
If additional evidence is needed, issue an RFE whenever possible.
When an RFE is issued, the response time given shall be 87 days.
***
When a NOID is issued, the response time given shall be 33 days.
ECF No. 4-24 at 3. Currently, the DACA SOP applies to all requests to renew deferred action status under DACA.2
*1148Plaintiff contends that Chapter 8 of the SOP requires adjudicators to always issue an RFE or NOIP before denying a DACA renewal request. ECF No. 11 at 8. Plaintiff also asserts, and Defendants concede, that USCIS denied his renewal applications in November 2018 and February 2019 without first sending Plaintiff an RFE or NOID. Defendants, on the other hand, argue that these provisions only require "RFE or NOID issuance, rather than denial, where the requestor has generally failed to submit sufficient evidence, or additional evidence is needed." ECF No. 9 at 9. Defendant maintains that the SOP guidelines do not require "RFE or NOID issuance in the case of a requestor who establishes that the guidelines are met but who may not warrant a favorable exercise of discretion." Id. at 10.
B. Motion for TRO and/or Preliminary Injunction
In the pending motion, Plaintiff requests "a temporary restraining order and/or preliminary injunction temporarily enjoining Defendants' denial of Plaintiff's renewal application under [DACA]." ECF No. 4 at 1. Pursuant to Federal Rule of Civil Procedure 65, a court may (1) "issue a preliminary injunction only on notice to the adverse party" or (2) "issue a temporary restraining order without written or oral notice to the adverse party or its attorney." Fed. R. Civ. P. 65(a)-(b). Because Defendants received notice of this motion, submitted responsive pleadings, and participated in the motion hearing, the Court interprets Plaintiff's motion as a request for a preliminary injunction, rather than a request for a TRO.
A preliminary injunction is an "extraordinary and drastic remedy." Munaf v. Geren , 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). To obtain injunctive relief under Rule 65, a plaintiff must make a "clear showing" of: (1) a likelihood of success on the merits; (2) likelihood of irreparable injury in the absence of preliminary relief; (3) that a balancing of the hardships weighs in plaintiff's favor; and (4) that a preliminary injunction will advance the public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; M.R. v. Dreyfus , 697 F.3d 706, 725 (9th Cir. 2012). Under the Winter test, a plaintiff must satisfy each element for injunctive relief. Alternatively, the Ninth Circuit also permits a "sliding scale" approach under which an injunction may be issued if there are "serious questions going to the merits" and "the balance of hardships tips sharply in the plaintiff's favor," assuming the plaintiff also satisfies the two other Winter factors. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011) ("[A] stronger showing of one element may offset a weaker showing of another."); see also Farris v. Seabrook , 677 F.3d 858, 864 (9th Cir. 2012) (internal quotation marks and citation omitted).
1. Subject Matter Jurisdiction
As a threshold matter, Defendants challenge this Court's ability to review the revocation of Plaintiff's deferred action status based on both the Immigration and Nationality Act ("INA"), as amended by the REAL ID Act, 8 U.S.C. § 1252(g), and *1149the APA, 5 U.S.C. § 701(a)(2). ECF No. 9 at 13-18.
Section 1252(g) of the INA, as amended by the REAL ID Act, provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g). The Supreme Court has explained that § 1252(g) is "directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion." Reno v. American-Arab Anti-Discriminatory Committee , 525 U.S. 471, 487 n.9, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Accordingly, Defendants argue that Plaintiff's claims are precluded by § 1252(g) because the decision to grant or deny DACA status is an exercise of the Government's prosecutorial discretion. ECF No. 9 at 13-14.
The Court agrees with Defendants that, if Plaintiff was asking for review of the government's ultimate discretionary decision to terminate his DACA status, § 1252(g) would strip this Court of jurisdiction to review that determination. See Reno , 525 U.S. at 485, 119 S.Ct. 936 (" Section 1252(g) seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations ...."). However, the Court ultimately finds that § 1252(g) does not deprive the Court of jurisdiction to consider the narrower issue presented in this case; specifically, whether Defendants followed their own procedures in adjudicating Plaintiff's DACA renewal application and terminating Plaintiff's DACA status.
In Reno , the Supreme Court explicitly held that § 1252(g) "applies only to three discrete actions that the [Secretary] may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders.' " 525 U.S. at 482, 119 S.Ct. 936 (emphasis in original). Moreover, in so holding, the Supreme Court specifically rejected a broad reading of the three discrete actions listed in § 1252(g), clarifying that "many other decisions or actions that may be part of the deportation process," including "the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order," are not included in § 1252(g)'s jurisdictional bar. Id. ; see also Regents of University of California v. United States Department of Homeland Security , 908 F.3d 476, 503-04 (9th Cir. 2018). In short, contrary to Defendants' contentions, section 1252(g) does not apply to the entire universe of deportation-related claims.
Here, removal proceedings have not been commenced against Plaintiff and, more significantly, Plaintiff is not challenging the USCIS's individual "no deferred action" decisions. Rather, Plaintiff's claim relates to the process by which his DACA status was terminated. Because Plaintiff's claim does not implicate any of the three specific discretionary actions mentioned in § 1252(g), the Court finds that § 1252(g) does not deprive the Court of jurisdiction to consider whether Defendants followed their own procedures in denying Plaintiff's DACA renewal application and terminating Plaintiff's DACA status.
Likewise, the Court rejects Defendants' argument that § 701(a)(2) of the APA bars this Court from reviewing USCIS's decision to revoke Plaintiff's deferred action status. ECF No. 9 at 14-18. While the APA permits judicial review of agency actions where "there is no other adequate remedy in a court," 5 U.S.C. § 704, the APA expressly precludes review of agency decisions that are "committed to agency discretion by law,"
*11505 U.S.C. § 701(a)(2). Because "individual DACA decisions fall squarely within the category of agency discretion for which judicial review is improper," Defendants contend that the APA specifically precludes judicial review of the agency action that Plaintiff challenges here. ECF No. 9 at 17.
The Court disagrees. Again, the flaw in Defendants' argument is their failure to acknowledge the distinct difference between challenges to an agency's ultimate discretionary decision and challenges to an agency's alleged failure to follow its own administrative procedures; unlike the former, the latter does not implicate agency discretion. To put it simply, the fact that USCIS has the ultimate discretionary authority to grant or deny an application for deferred action under DACA does not mean that every determination made by USCIS regarding the application, including the steps taken to review it, are necessarily discretionary and not subject to judicial review.
In this case, Defendants' alleged failure to follow the procedures detailed in the SOP does not implicate agency discretion. Therefore, the jurisdiction-stripping provisions of 8 U.S.C. § 1252(g) and 5 U.S.C. § 701(a) are not applicable to prevent this Court from determining whether Defendants complied with their non-discretionary procedures. Because the Court concludes that it has jurisdiction over this action, it now turns to the merits of Plaintiff's claims.
2. Likelihood of Success on the Merits
To obtain injunctive relief, Plaintiff must show that there are "serious questions going to the merits" of his claim, and that he is likely to succeed on those questions of merit. Cottrell , 632 F.3d at 1131 ; Farris , 677 F.3d at 865. Plaintiff advances three claims in his Complaint: first, Plaintiff alleges that the revocation of his DACA status and employment authorization without any explanation violated § 706(a) of APA because the revocation did not comport with established procedures, and was therefore arbitrary and capricious; second, Plaintiff contends that, to the extent the revocation of his DACA status reflects a change in DACA eligibility criteria, such a change failed to satisfy the notice and comment requirements of the APA; and third, Plaintiff asserts that the revocation of his DACA status and employment authorization without notice or an opportunity to respond violated his rights under the Due Process Clause of the Fifth Amendment. ECF No. 1 at 13-14. The Court considers the merits of each claim in turn.
Regarding Plaintiff's first claim, Plaintiff contends that he is likely to succeed on the merits of his APA claim because the decision to deny his renewal application violated DHS's own procedures and, therefore, were arbitrary, capricious, and an abuse of discretion. ECF No. 4-1 at 12-13. According to Plaintiff, the DACA SOP specifically details the procedures by which a person's DACA renewal application can be denied, including issuing an RFE and NOID before a denial is issued, and Defendants failed to follow the DACA SOP in their adjudication of Plaintiff's renewal applications. Defendants respond that there is no guidance in the DACA SOP that requires issuance of an RFE or NOID where an adjudicator establishes that the applicant satisfies the guidelines but may not warrant a favorable exercise of discretion. ECF No. 9 at 10.
Under the APA, "agency action must be based on non-arbitrary, 'relevant factors.' " Judulang v. Holder , 565 U.S. 42, 55, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). "When reviewing an *1151agency action, we must assess, among other matters, 'whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Id. (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ).
Based on the record before it, the Court is simply unable to conclude at this time that Plaintiff is likely to succeed on the merits of his first APA claim. During the hearing on Plaintiff's motion, Plaintiff's counsel conceded that there is no proof in the record that adjudicators did not give case-by-case consideration to Plaintiff's renewal application, as required by the DACA SOP and related policy documents. Counsel explained that he speculated they did not given the lack of RFE and NOID and the quick decision that was issued. The record in this case supports this concession, as it is devoid of any evidence to sustain Plaintiff's allegation that Defendants deficiently processed Plaintiff's renewal applications. When asked to explain how Defendants processed Plaintiff's application, Counsel for Defendants stated that adjudicators considered the relevant eligibility factors, determined that more information was not needed to supplement Plaintiff's applications, and ultimately decided to exercise their discretion to deny the renewal requests on that basis. Considering the record and briefing in this case, the Court concludes that Plaintiff cannot succeed on the merits of his APA claim.
Turning to Plaintiff's second APA claim, Plaintiff made no argument in the motion papers or during the motion hearing that he is likely to succeed on the merits of this claim. Plaintiff has not advanced his APA notice and comment arguments, at least for purposes of the pending motion. According, Plaintiff cannot succeed on the merits of this claim.
Finally, regarding Plaintiff's third claim, Plaintiff contends that the denial of his renewal application violates his due process rights under the Fifth Amendment because Plaintiff "has a protected property interest in his DACA status ... and therefore he has a right to a fair procedure to establish his continued eligibility to for the program." ECF No. 4-1 at 13. "A threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution." Wedges/Ledges of Cal., Inc. v. City of Phoenix , 24 F.3d 56, 62 (9th Cir. 1994). Thus, to succeed on his due process claim, Plaintiff must establish that he has "a legitimate claim of entitlement" in the renewal of deferred action status under DACA.
The Court finds that Plaintiff cannot make this showing. As the Ninth Circuit has recognized, Plaintiff's argument is undercut by the Napolitano Memo and the DACA FAQs. See Regents , 908 F.3d at 515. The Napolitano Memo expressly states that deferred action "confers no substantive right, immigration status or pathway to citizenship." ECF No. 4-4 at 3. The FAQs clarify that "USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met," and an individual's "deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS's discretion." ECF No. 4-8 at 7, 16. Accordingly, the Court finds that Plaintiff cannot succeed on the merits of his Due Process claim.
In sum, after thoroughly reviewing the parties' briefing and the record, the Court is unable to conclude that Plaintiff is likely to succeed on the merits of his APA or Due Process claims. Because Plaintiff has not shown likely success on the merits of his claims, the Court does not address the remaining Winter factors. Accordingly, the Court denies Plaintiff's Motion for Temporary *1152Restraining Order and/or Preliminary Injunction (ECF No. 4 ).
ACCORDINGLY, IT IS ORDERED:
1. Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF No. 4 ) is DENIED.
2. Plaintiff's Motion to Expedite Hearing (ECF No. 5 ) is GRANTED .
3. The Clerk of Court shall amend the docket to substitute Acting Secretary of DHS, Kevin K. McAleenan, for his predecessor, former Secretary of DHS, Kristjen M. Nielsen.
4. The District Court Clerk is directed to enter this Order and provide copies to the parties.
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Acting Secretary of DHS, Kevin K. McAleenan, for his predecessor, former Secretary of DHS, Kristjen M. Nielsen.
In September 2017, former Attorney General Jeff Sessions rescinded DACA based on his determination that the program was an unconstitutional exercise of authority by the Executive Branch. A wave of litigation followed, resulting in several nationwide preliminary injunctions issued by district courts around the country, including the Northern District of California. See Regents of University of California v. United States Dept. of Homeland Security , 279 F.Supp.3d 1011 (N.D. Cal. 2018). The Ninth Circuit affirmed the preliminary injunction issued in the Northern District of California on November 8, 2018. See Regents of the University of California v. United States Dept. of Homeland Security , 908 F.3d 476 (9th Cir. 2018). Pursuant to the injunction, USCIS must "maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments ...." Regents , 279 F.Supp.3d at 1048-49. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2263891/ | 33 Cal.App.4th 489 (1995)
39 Cal. Rptr.2d 348
KENNETH L. CAMPBELL, Plaintiff and Appellant,
v.
FRANK S. ZOLIN, as Director, etc., Defendant and Respondent.
Docket No. H012143.
Court of Appeals of California, Sixth District.
March 24, 1995.
*490 COUNSEL
Kenneth L. Campbell, in pro. per., for Plaintiff and Appellant.
*491 Daniel E. Lungren, Attorney General, Henry G. Ullerich, Assistant Attorney General, Jose R. Guerrero and Robert R. Buell, Deputy Attorneys General, for Defendant and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
MIHARA, J.
Introduction
Kenneth Campbell appeals from a judgment denying a petition for mandamus following the Department of Motor Vehicle's suspension of his driving license for failure to comply with the financial responsibility laws. We affirm.
Facts
On December 29, 1992, while driving an automobile owned by his mother, Lee Campbell, appellant was involved in a traffic accident with a car owned and operated by Teawood Kung. The accident occurred in the parking lot of the apartment complex where appellant resided.
On January 9, 1993, Kung prepared and signed a "Report of Traffic Accident" (Department of Motor Vehicles form SR 1A) notifying the Department of Motor Vehicles (DMV) of the accident, providing information concerning his insurance coverage, and estimating the cost of repairs to his vehicle to be $550.[1] Kung stated that the accident did not result in any injuries.
Lee Campbell signed a similar report on February 17, 1993, wherein she estimated the cost of repairs to her vehicle to be $1,200 and asserted that Kung's car suffered only $100 in damages. Campbell admitted that her car was not insured at the time of the accident. As had Kung, Campbell reported no injuries resulting from the collision.
On March 12, 1993, the DMV sent appellant notice of its intent to suspend his driving privilege for failure to comply with the financial responsibility laws. (See Veh. Code,[2] § 16070.) Following appellant's timely request, the suspension was stayed pending an administrative hearing. (§ 16075, subd. (b).)
*492 At the administrative hearing conducted on June 9, 1993, appellant submitted a written demurrer to the order of suspension in which he contested the jurisdiction of the DMV on the ground that the accident had occurred on private property. In the demurrer, appellant admitted that on the date in question, he was operating a motor vehicle and was involved in a collision with a second vehicle driven by Teawood Kung.
During questioning by the hearing officer, appellant reiterated that he was the driver of the vehicle involved in the accident and also conceded that he did not have any "financial responsibility insurance in effect" at the time of the incident. Appellant testified that the cost of repairs to his mother's vehicle was between $1,000 and $1,200, and introduced a copy of a check in the amount of $618.47 issued to him by Kung's insurance company as payment for the damages. The hearing officer introduced into evidence as a departmental exhibit a repair estimate of $542.66 for Kung's vehicle. Additional estimates of $684.40 and $699.49 were also submitted.[3]
It was uncontroverted that there were no deaths or injuries resulting from the accident. The only contested issue at the hearing was whether the accident, having occurred on private property, fell within the scope of the financial responsibility laws.
Following the hearing, the DMV issued a decision suspending appellant's license for a one-year period effective June 13, 1993.[4] The decision was based on the hearing officer's findings that (1) appellant was the driver or owner of a vehicle involved in an accident on December 29, 1992;[5] (2) the accident resulted in property damage over $500; and (3) appellant had not established that financial responsibility covered the driver of the vehicle involved in the accident. On July 30, 1993, the decision was sustained upon departmental review. (§ 14105.5.)
Thereafter appellant filed a petition seeking a peremptory writ of mandate directing the DMV to set aside its order of suspension. On December 17, 1993, the superior court heard the matter and issued an order sustaining the suspension. Appellant appealed from the order on January 18, 1994. A formal judgment denying the writ of mandate was entered on February 14, 1994.
*493 Discussion
I. Premature Filing of the Notice of Appeal[*]
.... .... .... .... .... .... .... .
II. Standard of Review
(1) "When an administrative agency initiates an action to suspend or revoke a [driver's] license, the burden of proving the facts necessary to support the action rests with the agency making the allegation. Until the agency has met its burden of going forward with the evidence necessary to sustain a finding, the licensee has no duty to rebut the allegations or otherwise respond. [Citations.]" (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536 [189 Cal. Rptr. 512, 658 P.2d 1313].)
Since the retention of a driver's license constitutes a fundamental vested right, the trial court must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision reached by the DMV. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394-397 [188 Cal. Rptr. 891, 657 P.2d 383].)
(2) "`In reviewing the trial court's ruling on a writ of mandate, the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial, credible and competent evidence.'" (McNabb v. Department of Motor Vehicles (1993) 20 Cal. App.4th 832, 837 [24 Cal. Rptr.2d 641], quoting Rodriguez v. Solis (1991) 1 Cal. App.4th 495, 502 [2 Cal. Rptr.2d 50].) This limitation, however, is inapplicable to the construction of a statute, an issue which constitutes a question of law. (20 Cal. App.4th at p. 837.) "In such cases ... the appellate court is not bound by the trial court's decision, but may make its own determination." (Ibid.)
III. Was Appellant Involved in a Reportable Traffic Accident Within the Meaning of Sections 16000 and 16000.1?
In one form or another, California has required its drivers to be financially responsible for driving-related injuries since 1929. (King v. Meese (1987) 43 Cal.3d 1217, 1220 [240 Cal. Rptr. 829, 743 P.2d 889].) Generally, this obligation is satisfied by means of insurance. (Ibid.) Until 1990, only those accidents which occurred on a public street or highway qualified as a "reportable accident" triggering a driver's duty to establish compliance with *494 the state's financial responsibility laws. (See former § 16000; Stats. 1984, ch. 1324, § 2, p. 4556.) Effective in 1989, however, the Legislature amended section 16000 and added section 16000.1 to the Vehicle Code for the express purpose of expanding the financial responsibility laws to include specified "off-highway accidents."
Findings and declarations accompanying the legislation explain the public policy considerations supporting these measures: "The Legislature finds and declares as follows: [¶] (a) The current provisions of the Financial Responsibility Laws inadvertently do not permit the Department of Motor Vehicles to exercise its authority to suspend the driving privilege of an uninsured motorist who inflicts bodily injury or death upon individuals or who damages vehicles, buildings, or other property located on public and private property off the streets and highways. The Legislature further finds and declares that untold numbers of Californians are victims involved in these accidents. [¶] (b) It is the intent of the Legislature in amending the Financial Responsibility Laws to strengthen enforcement actions against uninsured motorists and to provide additional remedies for the victims of uninsured motorist accidents occurring off the streets and highways as soon as the department can reasonably implement the changes in Section 16000 of the Vehicle Code made by this act." (Stats. 1989, ch. 808, § 1, p. 2674.)
Section 16000, subdivision (a)[6] now defines a motorist's reporting duty as follows: "The driver of every motor vehicle who is in any manner involved in an accident originating from the operation of a motor vehicle on any street or highway or any reportable off-highway accident defined in Section 16000.1 ... shall, within 10 days after the accident, report the accident" on a form approved by the DMV.
Section 16000.1(a) defines a "reportable off-highway accident" as one which: (1) occurs off the street or highway; (2) involves a vehicle subject to registration under the Vehicle Code; and (3) results in damage to the property of any one person in excess of $500 or in bodily injury or death.
Section 16000.1(b) excludes from the financial responsibility laws any accident which "occurs off-highway in which damage occurs only to the property of the driver or owner of the motor vehicle and no bodily injury or death of a person occurs."
In the instant case, appellant contends that the accident which is the subject of this action does not qualify as a "reportable off-highway accident," as that term is defined in section 16000.1(b), because the accident did *495 not involve physical injury or death. Stated another way, he contends that off-highway accidents which involve only property damage are not reportable.
In contrast, the trial court found, and the DMV agrees, that the accident was reportable because the exclusion contained in section 16000.1 applies only where the accident does not involve personal injury or death and where all of the property damage is sustained by the driver or owner whose compliance with the financial responsibility laws is in question.
Though we concur with the trial court's ultimate conclusion that appellant's accident qualified as a reportable off-highway accident under section 16000.1, the exclusionary provision is not reasonably susceptible to either of the foregoing interpretations.
"[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal. Rptr. 67, 743 P.2d 1323].) A statute must be construed so as to avoid an unjust and absurd result. (McNabb v. Department of Motor, supra, 20 Cal. App.4th 832, 837.)
(3a) Appellant's construction of section 16000.1(b) would exclude from coverage all off-highway accidents involving only property damage. This construction is unsupportable. First, such an interpretation would render as mere surplusage that portion of section 16000.1(a)(3) defining a reportable off-highway accident as one which results in property damage exceeding $500. Had the Legislature intended to exclude from the reporting requirements all off-highway accidents involving only property damage, it would not have included property damage as a component of the general definition of a reportable off-highway accident.
Second, the legislative declaration of findings and purpose demonstrates an explicit intent to broaden the scope of the financial responsibility laws to *496 include off-highway accidents resulting in damage to "vehicles, buildings, or other property located on public and private property off the streets and highways." (Stats. 1989, ch. 808, § 1, p. 2675, italics added.) Appellant's construction would completely frustrate this objective.
Read in context with section 16000.1(a)(3), and in light of the purpose of section 16000.1, the exclusionary provision must be construed as providing a narrow exception which may be invoked only when an otherwise reportable off-highway accident results in property damage of a limited and specific nature.[7] Though the parameters of this exception are difficult to ascertain due to the ambiguous language of section 16000.1(b), we believe that the exception was intended to apply only where there is a single-car accident in which all of the damage occurs to the property of the driver or owner of the single vehicle involved. We find support for our construction in the language of the relevant statutes, public policy considerations, and the consequences which would flow from an interpretation permitting the exclusion of off-highway accidents involving multiple vehicles.
First, were we to adopt a construction permitting application of the exception to multiple-car accidents, it is conceivable that the reportability of an accident might vary depending upon the perspective of each driver involved. In such cases, it is possible that the exception could act as a shield insulating the conduct of the uninsured motorist by permitting him to escape the reporting requirements and avoid suspension.[8] Such a scenario would contravene both the language of the pertinent statutes and the legislative intent to deter uninsured motorists and protect the state's drivers from suffering uncompensated damages. Our limited construction of section 16000.1(b), on the other hand, is entirely consistent with the statutory language and the legislative purpose in that it ensures application of the exclusion only where there can be no question that the uninsured motorist has not harmed anyone else as a result of his unlawful conduct.
Examining section 16000(a), we see that the reporting duty is framed in language which indicates that the duty to report is not dependent upon a *497 particular driver's perspective but is conditioned upon the occurrence of a triggering event, i.e., a reportable accident, as that term is defined in sections 16000(a) and 16000.1(a). When such an accident occurs, the statute imposes a duty to report upon "[t]he driver of every motor vehicle who is in any manner involved" in such an accident.
A comparison of the general definitions of reportable accidents found in sections 16000(a) and 16000.1(a)(3) with the language describing the exclusionary provision of section 16000.1(b) lends further support to our interpretation.
The Legislature painted with a broad brush when it set forth the elements of a reportable accident. The language of sections 16000(a) and 16000.1(a)(3) encompasses the possibility of multiple vehicles, and multiple instances of injury, death or significant property damage. Thus, any accident whether it occurs on public or private property is reportable whenever it results in significant "damage to the property of any one person ... or in bodily injury or in the death of any person...." (§§ 16000(a); 16000.1(a)(3).) In contrast, the exception delineated in section 16000.1(b) speaks narrowly of "the property of the driver or owner of the motor vehicle," language which conveys the involvement of a single vehicle, a single driver, and a single instance of property damage to the owner or driver of that vehicle.
(4) Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 507 [247 Cal. Rptr. 362, 754 P.2d 708].) (3b) In the instant case, the restrictive terminology of section 16000.1(b) compared with the expansive language used in the related provisions of sections 16000(a) and 16000.1(a)(3) supports our conclusion that the Legislature intended the exception to apply only in limited circumstances we have described.
For the foregoing reasons, we hold that the exception in section 16000.1(b) may be invoked only when a single car is involved in an accident and that accident results in property damage to no one but the driver or owner of that vehicle.[9]
*498 IV., V.[*]
.... .... .... .... .... .... .... .
Disposition
The judgment is affirmed.
Cottle, P.J., and Wunderlich, J., concurred.
A petition for a rehearing was denied April 19, 1995, and appellant's petition for review by the Supreme Court was denied June 1, 1995.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, IV, and V of the Discussion.
[1] Vehicle Code section 16000, subdivision (a), requires the filing of such a report within 10 days after the accident.
[2] All unspecified section references are to the Vehicle Code.
[3] At oral argument, we granted appellant's request to augment the record on appeal to include these additional repair estimates. (Evid. Code, § 459.)
[4] The suspension order permits appellant restricted driving privileges for work purposes upon payment of a penalty fee and proof of financial responsibility.
[5] The notice states that the accident occurred on December 29, 1993. Based on the record on appeal, however, it is clear that the accident actually occurred the previous year, on December 29, 1992. Appellant does not argue otherwise.
[*] See footnote, ante, page 489.
[6] The word "subdivision" shall be deleted from all further statutory references.
[7] The parties effectively concede that an accident resulting in bodily injury or death will not fall within the exception. Our discussion thus focuses only on the construction of the property damage exception specified in section 16000.1(b).
[8] Consider the following scenario: Driver A is uninsured and sustains property damage to his vehicle exceeding $500; Driver B is insured and sustains no property damage. Since Driver A's vehicle sustained all of the damage, it is conceivable that he could avoid the reporting requirements specified in section 16000 and escape suspension since the "damage occur[red] only to the property of the driver or owner of the motor vehicle." (§ 16000.1(b).) At the same time, Driver B would conceivably be required to file a report and show proof of insurance.
[9] We are aware that the government vehicle exception in section 16000(b) contains language similar to that found in section 16000.1(b). That provision exempts from the reporting requirements vehicles owned, leased, or under the direction of federal, state or local governments and provides: "A report is not required pursuant to subdivision (a) if the motor vehicle involved in the accident was owned or leased by, or under the direction of, the United States, this state, another state, or a local agency." This provision could result in a situation where one driver is statutorily obligated to comply with the reporting requirements while a government driver involved in the accident is exempted. However, section 16000(b) is sui generis. Obviously, the statutory purpose of ensuring financial responsibility for driving-related injuries or property damage is not at issue where the full force and power of a government agency stands behind the vehicle in question. Accordingly, the government exclusion outlined in section 16000(b) does not undermine our construction of section 16000.1(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263896/ | 33 Cal.App.4th 499 (1995)
39 Cal. Rptr.2d 422
THE PEOPLE, Plaintiff and Respondent,
v.
JOHN A. SWAIN, Defendant and Appellant.
Docket No. E012800.
Court of Appeals of California, Fourth District, Division Two.
March 24, 1995.
*500 COUNSEL
Carmela F. Simoncini, 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, Barry J.T. Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
HOLLENHORST, Acting P.J.
I
Defendant, John Swain, appeals his conviction of second degree murder and raises the following issues: (1) his trial before a municipal court judge violated articles II, section 1, and VI, section 4 of the state Constitution, as well as the separation of powers doctrine; (2) the denial of his motion to represent himself violated his constitutional right to self-representation; (3) it was reversible error to fail to instruct the jury with CALJIC No. 2.83 (5th *501 ed. 1988[1]); (4) it was prejudicial error to refuse to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter; and (5) it was reversible error to give CALJIC No. 2.03. Finding each of these issues without merit, we affirm.
II
Facts
Karen Haywood's body was discovered in Silverwood Lake on October 4, 1991. She died as a result of 14 intentional blows to her skull with some sort of tool such as a hammer, tire iron, or other metal object having a circular edge. The investigation of Karen's death led the San Bernardino Sheriff's Department to suspect defendant was the assailant.
A witness had seen Karen with a man, who looked like defendant, on the afternoon of September 28, 1991, driving Karen around in a pickup truck. Defendant drove an old Chevy pickup truck. On that same afternoon, defendant had told his family that he was going on a picnic with a woman named Karen. He lived with his mother and stepfather.
Around 3 a.m., September 29, 1991, defendant's stepfather awoke to the sound of defendant taking a shower. Later that morning, defendant had washed the clothes he had been wearing on September 28 and left his sneakers in the planter. Defendant further washed the pickup truck, hosing down the interior floor. On the next day, defendant left a note for his parents that informed them that things just did not work out and thus he had to leave. He did not return until the end of the week.
When defendant learned that he was a suspect in Karen's death, he told his mother that he was being framed and that he had to leave town. His mother gave him some money and took him to the bus station. Finding the bus station closed, defendant returned home. There, he commented, "What if I hit her and I hit her and after the second hit I could tell she was dead? ... What if I got so mad I beat her to death.... I had four years of anger built up inside me that I beat her to death. You see, no one saw me."
III
Were Defendant's Constitutional Rights Violated by Having His Felony Charges Tried Before a Municipal Court Judge Sitting as Judge of the Superior Court?
On December 29, 1992, the Chief Justice of the California Supreme Court issued a blanket assignment appointing Judge Roberta McPeters, along with *502 23 other municipal court judges, to sit as superior court judges of San Bernardino County from January 1, 1993, to December 31, 1993, and until completion and disposition of all causes and matters heard pursuant to the assignment. Accordingly, trial of defendant's case was assigned to Judge McPeters and defendant moved to have his case transferred to the superior court. Judge McPeters denied defendant's request explaining, "The Supreme Court [C]hief [J]ustice of this state has the authority and has exercised that authority for quite some[]time to appoint judges to sit in Superior Court and act accordingly...."
Defendant appeals from the denial of his motion to transfer claiming that (1) the blanket assignment by the Chief Justice violated our state Constitution and the separation of powers doctrine, and (2) any assignment of Judge McPeters pursuant to the trial court coordination plan (Gov. Code, §§ 68112 and 69753) was invalid because it was without defendant's consent.
Trial commenced on January 5, 1993. The Attorney General contends, and we agree, that Judge McPeters was acting pursuant to the blanket assignment of December 29, 1992, and not any trial court coordination plan. (1) Thus, the only issue to be decided in this appeal is whether the blanket assignment violates our state Constitution and the separation of powers doctrine.[2] For the reasons stated below, we find that it does not.
Defendant argues that the blanket assignment violates article II, section 1[3] and article VI, section 4[4] of our state Constitution. In addition to these sections, he points to article VI, section 5 which authorizes only the Legislature to "prescribe" the jurisdiction of the municipal and justice courts, article VI, section 10 which vests in the superior courts original jurisdiction in all causes except those given by statute to other trial courts, and Penal Code section 1462 which grants municipal and justice courts jurisdiction over misdemeanors.
*503 While acknowledging that article VI, section 15 empowers the Chief Justice to provide for the assignment of any judge to another court, he argues that the language of that section is not susceptible to an interpretation that the Chief Justice is empowered to authorize all the judges of the municipal court to sit as superior court judges "until completion of all causes and matters." Instead, defendant suggests that this provision is limited to the assignment of "any" particular "judge" to hear a particular case. Any other interpretation "circumvents the need for the Legislature to `prescribe' the number of judges, as well as the power of the people to elect superior court judges based upon the appropriate qualifications and experience." We disagree.
This same issue was addressed by our colleagues in the Second District in People v. Najera (1979) 88 Cal. App.3d 930 [152 Cal. Rptr. 124]. In Najera, the defendant challenged the Chief Justice's authority to make a "blanket" assignment of all the judges of the municipal court, asserting that such authority was limited to individual judges by name. The appellate court rejected defendant's challenge citing to article VI, sections 6 and 15 of the California Constitution. Section 6 provides that "[t]he Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction." Section 15 states that "[a] judge eligible for municipal court service may be assigned by the Chief Justice to serve on any court."
We agree with the Second District's finding that "[t]he forerunner of article VI, section 6, was flexibly construed to effectuate its purposes to expedite judicial business and equalize the work of judges. [Citations.] [¶] ... Flexibility in administration on a day-to-day basis is needed and permitted by the constitutional provision. [Citations.] The express language of the provision is not limited as urged by [defendant] but rather is broad: the Chief Justice `may provide for' the assignment of any judge to another court." (People v. Najera, supra, 88 Cal. App.3d 930, 933-934; cf. People v. Edwards, supra, 17 Cal. App.4th 1248, 1256 and Mosk v. Superior Court (1979) 25 Cal.3d 474, 481-482 [159 Cal. Rptr. 494, 601 P.2d 1030].)
In this case, the language in the blanket assignment exemplifies the flexibility found in California Constitution, article VI, section 6. In addition to identifying each of the municipal court judges to be assigned to sit in the superior court, the assignment limits the period of time in which it will be effective. Although defendant has attempted to characterize the blanket *504 assignment as an indefinite blanket assignment, we find such characterization to be incorrect. The assignment states that it is effective for the calendar year of 1993 "and until completion and disposition of all causes and matters heard pursuant to this assignment." Such language takes into account the fact that some causes may continue past December 31, 1993. Thus, for those causes in progress, the municipal court judge may continue to hear the matter until its completion. Contrary to defendant's interpretation of this language, we find that the blanket assignment was for a limited duration.[5]
We also find that the blanket assignment accomplishes the purpose of expediting judicial business and equalizing the work of judges. The court, counsel, litigants, and the public (who pay for the justice system) have an interest in cost effective and expeditious process of court matters. Today's superior courts are faced with heavy case loads and the judges are chronically overburdened. Thus, litigants, defendants, and the public are prejudiced by delays in bringing criminal cases to trial. For example, delays causing a defendant to remain in custody affect his liberty interests, while the public unnecessarily may have to pay the added cost of incarceration. As time goes by, memories of witnesses fade. Therefore, Penal Code section 1050, subdivision (a) provides that "criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings." This leads to a frustration of the expeditious handling of civil cases. Accordingly, there is great need for flexibility in administration of the court system on a day-to-day basis. In our view, the blanket assignment is one tool which has and can be used to keep the system "running on time" by making additional judicial resources available to an overtaxed system.[6] Moreover, it facilitates a defendant's right to a speedy trial.
For the above reasons, we find that the use of the blanket assignment by the Chief Justice does not violate our state Constitution.
IV-VII[*]
.... .... .... .... .... .... .... .
*505 VIII
Disposition
The judgment is affirmed.[10]
McKinster, J., and Richli, J., concurred.
Appellant's petition for review by the Supreme Court was denied June 15, 1995. Lucas, C.J., did not participate therein.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IV through VII.
[1] All CALJIC instructions referred to are from the fifth edition unless otherwise noted.
[2] Even if we were to consider whether an assignment pursuant to the trial court coordination plan is invalid, we note that Government Code section 68112 permits the use of blanket cross-assignments of judges to hear criminal cases within the jurisdiction of another court and section 69753 and California Rules of Court, rule 245.5(b) allows superior court criminal actions to be held at municipal and justice court locations upon the consent of the parties. Contrary to defendant's assertion, we do not find that these statutes or the rules of court contemplate the need for a defendant's consent to validate the judicial assignment, except for a change in location under rule 245.5(b). (People v. Edwards (1993) 17 Cal. App.4th 1248 [22 Cal. Rptr.2d 3].)
[3] This section provides that "All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require."
[4] This section provides, in relevant part, that, "In each county there is a superior court of one or more judges. The Legislature shall prescribe the number of judges...."
[5] At oral argument, defendant requested that we take judicial notice of another blanket assignment issued by the Chief Justice for the 1994 calendar year. Such request is denied.
[6] We further note that retired municipal court judges have been assigned for years to hear serious and complicated superior court matters.
[*] See footnote, ante, page 499.
[10] After the United States Supreme Court granted certiorari in Sandoval v. California (1993) ___ U.S. ___ [125 L.Ed.2d 789, 114 S.Ct. 40] this court issued Misc. Order No. 93-1 in which we deemed criminal defendants who appealed convictions which resulted from a trial to have challenged the constitutionality of the definition of reasonable doubt contained in CALJIC No. 2.90. We reject that challenge in light of the Supreme Court's decision in Victor v. Nebraska (1994) 511 U.S. ___ [127 L.Ed.2d 583 114 S.Ct. 1239]. (See also People v. Freeman (1994) 8 Cal.4th 450, 503 [34 Cal. Rptr.2d 558, 882 P.2d 249].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337409/ | 348 S.C. 264 (2002)
559 S.E.2d 847
The STATE, Respondent,
v.
Angelo MULDROW, Petitioner.
No. 25414.
Supreme Court of South Carolina.
Heard November 15, 2001.
Decided February 11, 2002.
*266 Chief Attorney Daniel T. Stacey and Assistant Appellate Defender Katherine Carruth Link, both of S.C. Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Cecil Kelly Jackson, of Sumter, for respondent.
MOORE, Acting Chief Justice.
Petitioner was indicted for the armed robbery of a convenience store. The trial judge denied his motion for a directed verdict. Both armed robbery and the lesser included offense of common law, or strong arm, robbery were submitted to the *267 jury. Petitioner was convicted of armed robbery and sentenced to thirty years. The Court of Appeals affirmed. State v. Muldrow, 340 S.C. 450, 531 S.E.2d 541 (Ct.App.2000). We reverse and remand for resentencing.
FACTS
At trial, the State produced evidence that petitioner entered the store, asked the clerk for a pack of cigarettes, then handed her a note that read: "Give me all your cash or I'll shoot you." When the clerk asked if he was serious, petitioner responded "yes" and told her to hurry up before he shot her.
On appeal, petitioner argued his motion for a directed verdict should have been granted because there was no evidence he was armed with a deadly weapon or that he used a representation of a deadly weapon as required under S.C.Code Ann. § 16-1-330(A) (Supp.2000). This section provides:
(A) A person who commits robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either by action or words, he was armed while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon, is guilty of a felony....
(emphasis added).
The Court of Appeals's majority construed the underscored portion of the statute and held that the phrase "representation of a deadly weapon" includes "words that convey to a victim the thought that a robber possesses a deadly weapon." Accordingly, it concluded the note saying "I'll shoot you" was sufficient evidence to submit the charge of armed robbery to the jury.
DISCUSSION
Under § 16-11-330(A), the State may prove armed robbery by establishing the commission of a robbery and either one of two additional elements: (1) that the robber was armed with a deadly weapon or (2) that the robber alleged he was armed with a deadly weapon, either by action or words, while using a representation of a deadly weapon or any object *268 which a person present during the commission of the robbery reasonably believed to be a deadly weapon. See State v. Jones, 342 S.C. 248, 536 S.E.2d 396 (Ct.App.2000). The second prong of this statute was added by amendment in 1996.[1]
Under the first prong of § 16-11-330(A), the presence of a weapon may be inferred from circumstantial evidence. See State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976). We have never had occasion, however, to consider whether words alone are sufficient to establish the element of a deadly weapon. Other courts have held words unaccompanied by any corroborating action are not sufficient. See, e.g., People v. Parker, 417 Mich. 556, 339 N.W.2d 455 (1983); People v. Jenkins, 118 Misc. 2d 530, 461 N.Y.S.2d 699 (1983); State v. Scherz, 107 Wash.App. 427, 27 P.3d 252 (2001). We concur with this general rule and hold words alone are not sufficient under the first prong of the statute.
The question then becomes whether words alone are sufficient under the recently added second prong of § 16-11-330(A) as held by the Court of Appeals. The resolution of this issue turns on the meaning of the phrase "while using a representation of a deadly weapon."
Under our general rules of construction, the words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. State v. Grooms, 343 S.C. 248, 540 S.E.2d 99 (2000). Further, we are bound to construe a penal statute strictly against the State and in favor of the defendant. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001).
If the phrase "representation of a deadly weapon" includes the use of words, as the Court of Appeals held, this portion of the statute would read: "while alleging, either by action or words, he was armed while using words conveying the thought that he has a deadly weapon." This construction creates a redundancy which essentially eliminates the additional element of a "representation" of a weapon, thus improperly expanding the statute's operation to embrace conduct not *269 clearly within its terms. Had the legislature intended armed robbery to include simply an allegation of being armed, it would have stopped after the phrase "while alleging, either by action or words, he was armed."[2]A plain reading of the statute indicates words alone are not sufficient under the second prong to support a conviction for armed robbery.
Further, we find it was not the intent of the legislature in adding the second prong of § 16-11-330(A) to preclude the need for evidence corroborating the allegation of being armed. Before the second prong was added, evidence the object used in a robbery was in actuality not a deadly weapon created a jury issue and entitled the defendant to a charge on the lesser included offense of strong arm robbery. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996); see also State v. Tosco, 292 S.C. 270, 356 S.E.2d 117 (1987). The legislature's amendment to § 16-11-330(A) simply ensures that the use of a object which is in fact not a deadly weapon will support a conviction for armed robbery. Under this prong, the State must still show evidence corroborating the allegation of being armed i.e., the use of a physical representation of a deadly weapon, to establish armed robbery.
In conclusion, the Court of Appeals erred in finding the evidence in this case meets all the elements of armed robbery under § 16-11-330(A) since there is no evidence of a deadly weapon or a physical representation of a deadly weapon. Accordingly, the Court of Appeals's decision affirming petitioner's conviction for armed robbery is reversed.
We find the evidence is legally sufficient, however, to sustain a conviction on the lesser offense of strong arm robbery. Armed robbery includes all the elements of strong arm robbery. State v. Keith, 283 S.C. 597, 325 S.E.2d 325 (1985) (armed robbery is commission of common law robbery while armed with a deadly weapon). Our finding that the evidence is insufficient in this case goes only to the element *270 requiring the use of a deadly weapon, an element not relevant to the lesser offense of strong arm robbery. Where the evidence is insufficient to sustain a conviction on the greater offense but is legally sufficient to support a conviction on the lesser, the Court on appeal may direct the entry of judgment on the lesser offense. See, e.g., Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Till v. People, 196 Colo. 126, 581 P.2d 299 (Colo.1978); State v. Scielzo, 190 Conn. 191, 460 A.2d 951 (Conn.1983); People v. Jones, 63 A.D.2d 582, 404 N.Y.S.2d 622 (1978); State v. Nulph, 31 Or.App. 1155, 572 P.2d 642 (1977); State v. Janisch, 290 N.W.2d 473 (S.D.1980); State v. Tutton, 875 S.W.2d 295 (Tenn.Crim.App.1993).
Accordingly, the case is remanded to the trial court for entry of judgment on the charge of strong arm robbery and sentencing on that charge.
REVERSED AND REMANDED.
WALLER, BURNETT, PLEICONES, JJ., and GEORGE T. GREGORY, Jr., Acting J., concur.
NOTES
[1] 1996 S.C. Act No. 362, § 1, effective May 29, 1996.
[2] Cf. Ala.Code § 13A-8-41 (1975) ("any verbal or other representation by the defendant that he is then and there so armed is prima facie evidence" of first degree robbery); Colo. R.S.A. § 18-4-302 (1999) (possesses an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or represents verbally or otherwise that he is then and there so armed). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337430/ | 559 S.E.2d 106 (2002)
253 Ga. App. 373
PITTS
v.
The STATE.
No. A01A1824.
Court of Appeals of Georgia.
January 18, 2002.
*107 Teddy L. Henley, for appellant.
James R. Osborne, Dist. Atty., Laura L. Herrin, Asst. Dist. Atty., for appellee.
POPE, Presiding Judge.
James William Pitts, Jr. appeals his conviction and sentence on two counts of vehicular homicide, three counts of reckless driving, and one count each of driving under the influence, attempting to elude an officer, speeding, driving with a suspended license, and driving with an expired license tag. He contends the evidence was not sufficient to support the verdict.
Construing the evidence in favor of the verdict shows that Georgia State Patrol Officer Warren clocked Pitts with a radar gun driving 76 mph, which exceeded the posted speed limit, through an intersection on Georgia Highway 120 in Paulding County. Warren pursued Pitts and activated his blue lights and wig-wag headlights in an effort to initiate a traffic stop. When he did, the videocamera in his patrol car also turned on, and the entire sequence was recorded and later played for the jury at trial.
Warren first turned around at the intersection and then had to catch up to Pitts. He was "closing in" on Pitts just prior to another intersection at Bobo Road, a two-lane road. Pitts turned right onto Bobo Road. After Warren made the turn in pursuit, he caught up to Pitts and turned on his siren. Pitts did not stop, but instead accelerated to pass another car even though there was a double yellow line. Pitts briefly tapped his brakes then accelerated as he ran through a four-way stop intersection even though another car was stopped there. Pitts then turned right at another intersection onto Tabor Road. At the first sharp curve in that road, Pitts drove almost completely in the wrong lane.
In the following straight section of the road, with which Warren was well familiar, Warren decided to use the Pursuit Intervention Technique (PIT) in an attempt to stop Pitts before he reached upcoming intersections. Warren had been trained to make the PIT maneuver, he chose to use it to protect the public on the roadway, and he performed the maneuver in accordance with his training. He pulled alongside of Pitts intending to tap Pitts' truck on the right rear quarter causing it to spin out of control. At that moment, Pitts' truck actually moved toward Warren's patrol car thereby inadvertently initiating the PIT maneuver. Pitts' truck flipped and wrecked, and Warren stopped and returned to the site. The entire chase took only one minute and forty-nine seconds.
*108 Tragically, unbeknownst to Warren until that time, Pitts' eight-week-old daughter was a passenger in the truck. She was seriously injured in the accident and later died.
Analysis of Pitts' urine indicated the presence of both methamphetamine and marijuana. Evidence was also presented that Pitts' driver's license was suspended and that his license tag had expired.
1. Pitts contends that the evidence was insufficient to support a conviction of vehicular homicide because it showed that Warren caused the child's death by executing the PIT maneuver.
In order to be convicted of vehicular homicide under OCGA § 40-6-393, the conduct of the defendant must have caused the death. See Williams v. State, 165 Ga.App. 831, 832, 302 S.E.2d 736 (1983). See also Hill v. State, 250 Ga.App. 9, 12-13(2), 550 S.E.2d 422 (2001). This requires showing that "the defendant's conduct was the `legal' or `proximate' cause, as well as the cause in fact, of the death." Miller v. State, 236 Ga.App. 825, 828(2), 513 S.E.2d 27 (1999).
An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.
(Punctuation omitted.) Johnson v. State, 170 Ga.App. 433, 434(1), 317 S.E.2d 213 (1984). It is not sufficient to show that the defendant only contributed to the cause of the injury. See, e.g., Edmonds v. State, 98 Ga.App. 827(1), 107 S.E.2d 286 (1959).
The trial court clearly charged the jury that in order to convict, they had to find that Pitts' actions were the "direct and proximate cause of the death ..." and that they were obligated to acquit Pitts if they found that Warren's actions and not Pitts' caused the victim's death. The jury resolved this factual question against Pitts. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Pitts' actions of eluding an officer at high speed in a reckless manner with a baby in his truck played a substantial part in bringing about the child's death and that the death was a reasonably probable consequence of Pitts' actions.
2. Pitts also asserts that he was innocent because he was speeding to get medical attention for his child and that he did not see Warren trying to pull him over. But Pitts gave conflicting testimony about where he was going, why he was in a hurry, and why he was driving fast and recklessly. The jury also saw the tape of the chase, which reveals how much opportunity Pitts had to see Warren behind him and to stop. The jury determines credibility and resolves conflicts in the evidence; this Court does not weigh the evidence but only determines its legal sufficiency. Battles v. State, 205 Ga. App. 510, 511-512, 422 S.E.2d 672 (1992). We find no error.
3. Pitts asserts that because tests of his blood did not reveal the presence of any controlled substance, he cannot be convicted of driving under the influence of drugs under OCGA § 40-6-391(a)(6). However, that Code section prohibits driving with any amount of marijuana or controlled substance in the blood or urine, and Pitts had both marijuana and methamphetamine, a controlled substance, in his urine.
The evidence was sufficient to support all the charges for which Pitts was convicted.
Judgment affirmed.
BLACKBURN, C.J., and MIKELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337432/ | 559 S.E.2d 230 (2002)
CENTRAL CAROLINA DEVELOPERS, INC., Plaintiff,
v.
MOORE WATER AND SEWER AUTHORITY, and Moore County, Defendants, Third-Party Plaintiff,
v.
Van Camp Group, Inc. as successor to and f/k/a Regional Investments of Moore, Inc., Pinehurst Water & Sanitary Company, Inc., John Karscig, Robert W. Van Camp, James R. Van Camp and Donald Huffman, Third-Party Defendants.
No. COA01-102.
Court of Appeals of North Carolina.
February 5, 2002.
Gill & Tobias, LLP, by Douglas R. Gill, Southern Pines, for plaintiff-appellant.
Lesley F. Moxley, Moore County Attorney, and Paul A. Raaf, Assistant Moore County Attorney, for defendant-appellee Moore County.
Cranfill, Sumner & Hartzog, L.L.P., by William W. Pollock, Raleigh, for defendant-appellee and third-party plaintiff Moore Water and Sewer Authority; and Van Camp, Meacham & Newman, PLLC, by Michael J. *231 Newman, Pinehurst, for third-party defendant-appellee Van Camp Group.
WALKER, Judge.
In August of 1994, plaintiff entered into a contract for the purchase of Lot 253 in a development known as Fairwoods on 7 from Pinehurst Acquisition Corporation. In an addendum to the contract signed 3 August 1994, the parties agreed "[t]hat purchaser accepts subject lot in its present condition and purchaser will be solely responsible for the payment of any expenses that may be incurred in preparing the lot for the construction of a residence thereon."
In May of 1995, prior to the sale, the general contractor for the plaintiff hired Emmett Shelton Raynor, a professional land surveyor, to survey Lot 253. He observed a sewer pipe "clearly visible, and ... above the water line of the creek," crossing the creek on Lot 253. On 11 May 1995, he informed the plaintiff's contractor of the existence of the sewer pipe. He also informed Moore Water and Sewer Authority (MOWASA) and it was determined that the sewer pipe was active and belonged to MOWASA. Plaintiff claimed it did not receive notice from its general contractor of the existence of this sewer pipe. On 21 July 1995, plaintiff purchased Lot 253. At the time of the purchase, there were no easements, restrictions, or reservations on record other than those contained in the deed.
In mid-May 1997, plaintiff was proceeding to build a residence on Lot 253 when he contends he first discovered the sewer pipe running through the lot. Because the sewer pipe was located on Lot 253, plaintiff could not build. On 16 April 1998, plaintiff filed suit against Pinehurst Acquisition Corporation and MOWASA alleging breach of implied warranty by Pinehurst Acquisition Corporation and claims of trespass and inverse condemnation against MOWASA. MOWASA filed a third-party complaint against Van Camp Group, Inc., as successor to and f/k/a Regional Investments of Moore, Inc., Pinehurst Water and Sanitary Company, Inc., John Karscip, Robert W. Van Camp, James R. Van Camp, and Donald Huffman (Van Camp Group) claiming that if MOWASA were liable to plaintiff, then the Van Camp Group would be liable to MOWASA for contribution. The Van Camp Group had sold its water company to MOWASA in 1991. While the present suit was pending, MOWASA sold the water company to Moore County which was joined as a defendant. Plaintiff voluntarily dismissed the suit against Pinehurst Acquisition Corporation.
MOWASA and Van Camp Group filed motions for summary judgment and Moore County filed a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6)(1999). The basis for all motions was that the plaintiff's complaint was time barred based on the statute of limitations created in N.C. Gen. Stat. § 40A-5(a).
At the hearing, MOWASA and Van Camp Group submitted affidavits stating that the sewer pipe in question was installed through Lot 253 prior to 1989. Plaintiff submitted an affidavit in opposition to the motions which did not contradict the affidavits of MOWASA and Van Camp Group as to the 1989 date of installation of the sewer pipe. Plaintiff's affidavit did not contain any information regarding the date of the sewer pipe installation. The trial court granted the motions for summary judgment in favor of MOWASA and the Van Camp Group and granted Moore County's motion to dismiss under Rule 12(b)(6).
Plaintiff first claims the inverse condemnation action against MOWASA should not have been dismissed. "Inverse condemnation is simply a device to force a governmental body to exercise its power of condemnation, even though it may have no desire to do so." Smith v. City of Charlotte, 79 N.C.App. 517, 521, 339 S.E.2d 844, 847 (1986). The remedy for inverse condemnation lies under N.C. Gen.Stat. § 40A-51(a) which states:
If property has been taken by an act or omission of a condemnor listed in G.S. 40A-3(b) or (c) and no complaint containing a declaration of taking has been filed the owner of the property, may initiate an action to seek compensation for the taking. The action may be initiated within 24 months of the date of the taking of the *232 affected property or the completion of the project involving the taking, whichever shall occur later.
Plaintiff contends that the "taking" or condemning of the easement across Lot 253 could not have occurred until 29 September 1997 when plaintiff "notified MOWASA that it would not accept the continued use of its property for MOWASA's sewer system." Plaintiff bases this assertion on the holding in Charlotte Construction Co. v. Charlotte, 208 N.C. 309, 180 S.E. 573 (1935).
In Construction Co., the evidence showed that possession of a water main by the city "was with the permission of [the land owner], and was at no time adverse to [the land owner]; and that such possession was pursuant to agreements with respect to said water mains by and between [the land owner] and the superintendent of the [city's] municipal water system." 208 N.C. at 312, 180 S.E. at 574-75. Thus, the Court concluded that the taking by the city did not begin until the city refused to recognize the land owner as the rightful owner of the water mains. Id. at 312, 180 S.E. at 575.
The facts and circumstances of the present case are distinguishable from those presented in Construction Co. Here, plaintiff did not allege nor did it present any evidence which would show that, prior to 29 September 1997, the sewer pipe was running through Lot 253 pursuant to some agreement between MOWASA and the plaintiff or the plaintiff's predecessor-in-interest. The only evidence is that MOWASA's sewer pipe has been located in Lot 253 since 1989. Thus, Construction Co. is not applicable to the present case in determining the date of the "taking." Because there is no allegation that MOWASA was in possession of the land pursuant to an agreement or with permission of the plaintiff, a "taking" could only have occurred when the sewer pipe was installed across Lot 253.
Plaintiff has the burden of proving that the inverse condemnation action was filed within two years of the date of the "taking." McAdoo v. City of Greensboro, 91 N.C.App. 570, 572, 372 S.E.2d 742, 743 (1988). Plaintiff presented no evidence nor did it allege the date of the "taking." However, MOWASA presented uncontroverted evidence, through the affidavit of Wayne Haddock, that the pipe located on plaintiff's property was installed prior to early 1989. Mr. Haddock oversaw the installation of sewer pipes in the area of the plaintiff's property. He stated that the sewer pipe in question "was in existence and already in place prior to our commencement of the sewer project at Fairwoods on 7 in or about June 1987." His project had ended by early 1989.
Therefore, any "taking" would have occurred when the sewer pipe was installed across Lot 253. Because there is undisputed evidence that the sewer pipe was installed by 1989, plaintiff must have filed suit by 1991. As the present suit was filed 16 April 1998, the claim against MOWASA for inverse condemnation was time barred.
Plaintiff also claims that, notwithstanding the inverse condemnation claim, it has a viable claim for trespass against MOWASA. "The exclusive remedy for failure to compensate for a `taking' is inverse condemnation under G.S. 40A-51.... An owner has no common-law right to bring a trespass action against a city." McAdoo, 91 N.C.App. at 573, 372 S.E.2d at 744. Plaintiff has no claim for trespass against MOWASA because it is a public utility with the power of eminent domain just as a municipality.
The trial court properly granted summary judgment in favor of MOWASA and the Van Camp Group. Plaintiff admits that Moore County "should share whatever outcome is appropriate for its predecessor, Moore Water and Sewer Authority." Because summary judgment was proper in favor of MOWASA and the Van Camp Group, the granting of Moore County's motion to dismiss was likewise proper.
Affirmed.
Judges WYNN and THOMAS concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337444/ | 559 S.E.2d 528 (2002)
253 Ga. App. 510
JORDAN
v.
The STATE.
No. A01A1708.
Court of Appeals of Georgia.
January 29, 2002.
*529 James Jordan, pro se.
Patrick H. Head, Dist. Atty., Amelia G. Pray, Asst. Dist. Atty., for appellee.
BARNES, Judge.
James Jordan, proceeding pro se, appeals from the trial court's denial of his motion to correct an illegal sentence based on newly discovered evidence and ineffective assistance of counsel. Finding no error to review within the jurisdiction of this court, we dismiss.
This appeal marks the third time this case has come before this court. The facts are set forth in Jordan's first appeal in which we upheld his convictions. See Graham v. State, 171 Ga.App. 242, 319 S.E.2d 484 (1984) ("Jordan I"). In his second appeal, Jordan appealed the denial of his motion to correct a void sentence, and we reversed one of his kidnapping convictions because of a lack of venue in the trial court, but affirmed the trial court on the remaining convictions. See Jordan v. State, 242 Ga.App. 408, 530 S.E.2d 42 (2000) ("Jordan II"). Jordan now appeals the trial court's denial of a second motion to correct a void sentence ("Jordan III").
In Jordan III, he contends his defense counsel was ineffective for failing to challenge the improper venue that caused his kidnapping conviction to be reversed in Jordan II. He also contends that his defense counsel's deficiency is established by our reversal of that kidnapping conviction. Finally, he maintains that his sentences for the kidnapping, aggravated assault and attempted armed robbery should have been merged.
1. Jordan first enumerates as error ineffective assistance of counsel stemming from counsel's failure to challenge the venue in his conviction for the kidnapping in Jordan I. As we have reversed this kidnapping conviction (see Jordan II), this claim is moot. Moore v. State, 212 Ga.App. 497(1), 442 S.E.2d 311 (1994).
More significantly, however, even if the issue were not moot, Jordan is not authorized to raise this issue in this appeal. Although a trial court has jurisdiction to resentence defendants at any time when their sentences are void (Crumbley v. State, 261 Ga. at 611, 409 S.E.2d 517 (1991); Gonzalez v. State, 201 Ga.App. 437, 438, 411 S.E.2d 345 (1991)), and a direct appeal lies from the denial of a motion attacking a void sentence (Williams v. State, 271 Ga. 686, 689(1), 523 S.E.2d 857 (1999)), a sentence is only void when the trial court imposes a punishment that the law does not allow. Crumbley v. State, supra, 261 Ga. at 611, 409 S.E.2d 517. As this allegation goes only to challenge Jordan's conviction, however, it cannot be considered in this appeal because he "may not raise in this appeal issues which go to the validity of his conviction rather than the validity of his sentence." Daniels v. State, 244 Ga.App. 522, 523, 536 S.E.2d 206 (2000).
2. Jordan also contends that his sentences for the kidnapping, aggravated assault and attempted armed robbery should have been merged. This issue, however, was decided adversely to Jordan in Jordan II. See Jordan II, supra, 242 Ga.App. at 409-410(3) and n. 2.
It is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds. Our determination in the earlier appeal is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.
Echols v. State, 243 Ga.App. 775, 776, 534 S.E.2d 464 (2000).
Accordingly, as this appeal presents no issue for appellate review, it must be dismissed.
Appeal dismissed.
SMITH, P.J., and PHIPPS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337433/ | 559 S.E.2d 472 (2002)
274 Ga. 713
PATTERSON
v.
The STATE.
No. S01A1327.
Supreme Court of Georgia.
February 4, 2002.
*473 Teddy R. Price, Decatur, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Alvera Angelica Wheeler, Asst. Dist. Attys., for appellee.
BENHAM, Justice.
Because he had done some yard work for Gladys Windsor, Jerry Patterson was questioned about her murder. Based on Patterson's admission during that interview that he had gone to the mobile home park where the murder occurred after being warned to stay away, on a statement by a maintenance man at the mobile home park that he was present when Patterson was given a criminal trespass warning, and on a police report memorializing that warning, a detective arrested Patterson for criminal trespass. The next day, another police officer explained Patterson's Miranda rights and attempted to question him. Although Patterson asked for counsel, the interview continued. The State has stipulated that the statements made by Patterson in that second interview are inadmissible pursuant to Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). On the following day, detectives initiated a third interview with Patterson, ostensibly to inform him he was being charged with murder, and explained his Miranda *474 rights again. When Patterson invoked his right to counsel again, he was asked, "You don't want to hear what new stuff we got?" In the ensuing conversation, Patterson was told that since he had invoked his right to counsel, he could not be told what evidence existed against him, and was repeatedly asked whether he would talk to the officers without counsel. When Patterson exclaimed, "Come on and let me hear what you got to say," the response was to ask whether he wanted to talk without a lawyer. After one officer twice told Patterson he should have talked to them, Patterson agreed, saying, "Come on then." The officer responded by telling Patterson, "you'll have to talk to me later ... if you want to talk to me, holler." One officer then accompanied Patterson to the door of the jail, required him to enter, and closed the door. Patterson immediately called the officer's name, in response to which he was released and returned to the interrogation room for what the State has called a fourth interview. The total time elapsed between the beginning of the third interview, which the State concedes is tainted by an Edwards v. Arizona violation, and the beginning of what the State calls the fourth interview, was 12 minutes. In that last interview, Patterson confessed to the killing. Indicted for murder, felony murder, armed robbery, and aggravated assault, he filed a motion to suppress his statements and tangible evidence seized in the case. The trial court denied the motion, but issued a certificate of immediate review. This Court granted Patterson's application for interlocutory appeal and posed the following question: "Whether the trial court erred by denying Patterson's motions to suppress his statements and tangible evidence."
1. "[O]nce an accused has `expressed his desire to deal with the police only through counsel, (he) is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.' [Cit.]" Cook v. State, 270 Ga. 820(2), 514 S.E.2d 657 (1999). Patterson contends that his confession is inadmissible because it was the product of an interrogation initiated by the State after he had requested counsel. The State concedes that any statements Patterson made immediately after being informed of the murder charge against him in the third interview were inadmissible for that reason, but asserts that the interrogation during which Patterson confessed was a separate interrogation initiated by Patterson. The trial court found that Patterson had initiated the final interview and that the confession was admissible.
A trial court's application of the law to undisputed facts is subject to de novo appellate review. State v. Ray, 272 Ga. 450(2), 531 S.E.2d 705 (2000). The undisputed facts here are that the interrogating officers reacted to Patterson's repeated invocation of his right to counsel by attempting to persuade him to talk without counsel. However, when Patterson agreed to talk, they insisted on ending that interview, returning him to the jail long enough for the door to close behind him, letting him back out immediately when he asked, and beginning another interview in which he agreed to talk to them without counsel.
The undisputed facts set forth above lead us to conclude that there were not two interviews on that day, but only one. The termination of the third interview and the beginning of what the State insists was the fourth was no more than a pretense. Patterson had already agreed, as a result of the tactics employed in the third interview, to answer questions without counsel being present. The facts that the third interview, in which Patterson gave in to the pressure to waive his right to counsel, was conducted in violation of Edwards v. Arizona, supra; that the interrogating officers did not purport to end the third interview until Patterson agreed to talk without counsel; and that Patterson was not actually returned to his cell, but was only required to step past the jail door and then call for the officer who had accompanied him, persuades us that the so-called fourth interview was merely an extension of the third interview and was, therefore, tainted by the same violation of Edwards v. Arizona which the State concedes occurred in the third interview. Accordingly, we conclude that the confession was obtained in violation of Edwards v. Arizona and must be suppressed. The trial court's contrary conclusion was error.
*475 2. Patterson also sought suppression of tangible evidence seized pursuant to a search warrant issued after his arrest for criminal trespass. His contention is that the search was tainted by an illegal arrest, and that the arrest was illegal because the offense was not committed in the officer's presence and the officer had not ascertained whether the victim of the criminal trespass, i.e., the person who warned Patterson to stay away from the mobile home park, wanted Patterson arrested.
A warrantless arrest is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense, and probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense. Johnson v. State, 258 Ga. 506(2), 371 S.E.2d 396 (1988). In the present case, the record shows that the arresting officer was told by Patterson himself that Patterson went to the mobile home park after he had been warned off the property, was told by an employee of the mobile home park that the manager had warned Patterson not to return, and found a police report memorializing the criminal trespass warning Patterson had been given. Those facts constituted probable cause to believe Patterson had committed criminal trespass. See Holmes v. Achor Center, Inc., 249 Ga.App. 184(2)(a), 547 S.E.2d 332 (2001). Contrary to Patterson's argument, when the arresting officer obtained that information in Patterson's presence and outside Patterson's home, there was a sufficient exigent circumstance to justify a warrantless arrest. Durden v. State, 250 Ga. 325(1), 297 S.E.2d 237 (1982). Accordingly, the trial court was correct in ruling the arrest legal and refusing to suppress the fruits of the subsequent search.
Judgment affirmed in part and reversed in part.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337435/ | 348 S.C. 436 (2002)
559 S.E.2d 370
Charles OLMSTEAD, Appellant,
v.
SHAKESPEARE, Respondent.
Joanna Olmstead, Appellant,
v.
Shakespeare, Respondent.
No. 3437.
Court of Appeals of South Carolina.
Heard December 5, 2001.
Decided January 22, 2002.
Rehearing Denied February 22, 2002.
Certiorari Granted May 30, 2002.
*437 Daniel E. Henderson, of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Ridgeland, for appellants.
Gray T. Culbreath and Clayton B. McCullough, of Collins & Lacy, of Columbia, for respondents.
STILWELL, J.
Charles and Joanna Olmstead appeal the order of the circuit court dismissing their tort actions against Shakespeare. The circuit court held that Olmstead was Shakespeare's statutory employee and thus barred by the exclusive remedy provision of the Workers' Compensation Act. We reverse and remand.
*438 FACTS/PROCEDURAL HISTORY
Olmstead is the owner-operator of a truck-trailer combination used for long distance hauling of goods and materials. He leased his equipment to Hot Shot Express, which provided his tags, ICC licensing, and placards. He was paid by Hot Shot based on the miles he drove. Hot Shot dispatched Olmstead to Shakespeare's Newberry plant to pick up a load of utility poles. Olmstead's truck was loaded by Shakespeare employees, and Olmstead strapped the load down. After the load was strapped, Olmstead was asked to unstrap the poles because of a quality control problem. He was injured when some of the poles fell during unstrapping.
Olmstead filed suit against Shakespeare for negligence, and his wife filed suit for loss of consortium. Shakespeare answered and alleged, as an affirmative defense, that Olmstead was a statutory employee and thus the exclusive remedy was under the South Carolina Workers' Compensation Act. After the period for filing a workers' compensation claim had expired, Shakespeare filed a motion to dismiss on the same basis. The circuit court granted the motion.
STANDARD OF REVIEW
In workers' compensation cases, the "existence of the employer-employee relationship is a jurisdictional question." Lake v. Reeder Constr. Co., 330 S.C. 242, 247, 498 S.E.2d 650, 653 (Ct.App.1998). Subject matter jurisdiction is a question of law for decision by the court and includes findings of fact which relate to jurisdiction. Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 7, 132 S.E.2d 18, 21 (1963). "[T]his court may reverse where the decision is affected by an error of law." Lake at 247, 498 S.E.2d at 653.
LAW/ANALYSIS
Olmstead argues the trial court erred in holding that he was a statutory employee of Shakespeare. We agree.
The recent supreme court case of Abbott v. The Limited, Inc., 338 S.C. 161, 526 S.E.2d 513 (2000) is controlling. Abbott was employed by a common carrier which had a contract with The Limited Distribution Services to deliver goods to its *439 retail stores. Abbott was injured while unloading boxes on the retailer's premises. The Abbott court cited the three established tests used to determine
whether an employee is engaged in an activity that is part of the owner's trade, business, or occupation as required under [S.C.Code Ann.] § 42-1-400 (1985) ...:(1) is the activity an important part of the owner's business or trade; (2) is the activity a necessary, essential, and integral part of the owner's business; or (3) has the activity previously been performed by the owner's employees? ... "[T]he guidepost is whether or not that which is being done is or is not a part of the general trade, business, or occupation of the owner."
Abbott at 163, 526 S.E.2d at 514. In finding Abbott was not a statutory employee of The Limited, our supreme court stated, "`[t]he mere fact that transportation of goods to one's place of business is essential for the conduct of the business does not mean that the transportation of the goods is a part or process of the business.' We conclude that the mere recipient of goods delivered by a common carrier is not the statutory employer of the common carrier's employee." Abbott at 163-64, 526 S.E.2d at 514 (quoting Caton v. Winslow Bros. & Smith Co., 309 Mass. 150, 34 N.E.2d 638, 641 (1941)). In so holding, the court stated in a footnote: "To the extent Neese v. Michelin Tire Corp., 324 S.C. 465, 478 S.E.2d 91 (Ct.App. 1996), and Hairston v. Re: Leasing, Inc., 286 S.C. 493, 334 S.E.2d 825 (Ct.App.1985), may be read to hold otherwise, they are hereby overruled."
In this case, the trial court stated it was influenced primarily by two factors in finding Olmstead was a statutory employee. First, the supreme court could easily have broadened the reach of Abbott to all transportation cases but chose not to, specifically limiting its holding to receipt of goods. Second, Abbott did not overrule Revels v. Hoechst Celanese Corp., 301 S.C. 316, 391 S.E.2d 731 (Ct.App.1990). We find the court's reliance on these factors misplaced. We do not agree with the overly narrow reading of Abbott, as we find that its holding is not limited to situations involving a retailer's receipt of goods. The facts of Abbott involved receipt of goods, so it was unnecessary for the court to address the delivery of goods from a manufacturer to a customer because that issue was not presented.
*440 A review of the overruled cases provides further evidence that the holding of Abbott is not limited to receipt of goods. In Hairston, the recipients determined the delivery dates and drop-off points for vehicles being transported by the common carrier. Hairston at 496, 334 S.E.2d at 826. The court did not emphasize or even address the delivery aspect of the case, but rather found that the preponderance of the evidence indicated the driver was performing services which were part of the trade or business. Hairston at 498, 334 S.E.2d at 827.
In Neese, an employee of a common carrier was injured while unloading a truck. In a footnote, the court noted the parties were not in agreement as to when the injury occurred. Neese at 470 n. 1, 478 S.E.2d at 93-94 n. 1. Neese contended he was injured while transporting the goods from the Michelin plant to another location. Michelin contended he was injured while transporting materials back to the Michelin plant. The court stated, "Whether Neese was injured at AVRC or the Sandy Springs [Michelin] plant is not relevant to the issues involved in this appeal." Id. This language indicates the court did not make a distinction, nor would it have made a difference if Neese were delivering or receiving the goods. The court held that "[c]learly, the packaging and transportation of these semi-finished products ... is an integral part of Michelin's business." Neese, 324 S.C. at 473, 478 S.E.2d at 95. Because this case did not specifically involve delivery or receipt, Abbott cannot be read to have been overruling a receipt case when it overruled Neese. Rather, we find that Abbott focused on the transportation aspect to determine if the individual is a statutory employee, not whether the purported statutory employer was a shipper or a recipient of goods.
Additionally, the trial court's reliance on the fact that the supreme court did not overrule Revels was error. Revels was employed by a common carrier to transport liquid organic chemicals. Revels at 317, 391 S.E.2d at 731. The Revels court found "no difficulty in deciding that Revels was Celanese' `statutory employee' when he was injured. The work then being performed by Revels, i.e., checking the levels of the chemicals being loaded into the tanker, was a part of Celanese' general business." Revels at 318, 391 S.E.2d at 732. Unlike the employees in Abbott, Neese, and Hairston, who were merely transporting goods, Revels was more involved in the *441 business process, since he monitored the levels of chemicals being pumped into the tanker. Additionally, this court in Revels specifically found that distribution, and therefore transportation, was an integral part of Celanese's business. Since Revels involved more than transportation alone and is easily distinguished on its facts, the supreme court had no reason to expressly overrule it.
We find the facts in the present case do not support the ruling that Olmstead was a statutory employee of Shakespeare. Olmstead was transporting a finished product away from Shakespeare's manufacturing plant to a customer. Shakespeare does not own or operate any receiving or delivery trucks. All of the raw material that arrives at its plant and all of the finished product that leaves its plant does so by common carrier. We find that Olmstead, as an employee of a common carrier involved only in the transportation of goods, was not part of the general trade, business, or occupation of Shakespeare. We thus hold he was not a statutory employee.
While generally workers' compensation should be construed broadly in favor of coverage to further its purpose, the underlying rationale is not as pertinent where the statutory employee definition and exclusive remedy provision are used as a shield to prevent recovery under another theory. See Peay v. U.S. Silica Co., 313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993) ("[W]orkers' compensation statutes are construed liberally in favor of coverage. It follows that any exception to workers' compensation coverage must be narrowly construed."); Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788 (1948) (definitions in compensation acts should be broadly or liberally construed to effect legislative purpose); Pelfrey v. Oconee County, 207 S.C. 433, 440, 36 S.E.2d 297, 300 (1945) ("`Common sense indicates that a compensation law passed to increase workers' rights (because their common law rights were too narrow) should not thereafter be narrowly construed.' "); Ham v. Mullins Lumber Co., 193 S.C. 66, 75, 7 S.E.2d 712, 716 (1940) ("[T]he general and well established rule in construction of compensation acts is that they are intended to be for the benefit of employees and must be construed liberally in their favor."); but see Gentry v. Milliken & Co., 307 S.C. 235, 414 S.E.2d 180 (Ct.App.1992).
*442 Because we hold that Olmstead was not a statutory employee of Shakespeare, we need not address his estoppel argument. The decision of the trial court is reversed, and these cases are remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
CURETON and SHULER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337453/ | 559 S.E.2d 468 (2002)
274 Ga. 711
MELCHER
v.
MELCHER.
No. S01A1325.
Supreme Court of Georgia.
February 4, 2002.
Dietrick, Evans, Scholz & Williams, Eric B. Ripper, Atlanta, Beverly L. Cohen, Roswell, for appellant.
Thomas R. Campbell, Jr., William A. Wall, Jeff C. Hamling, Patrick J. Gibbs, Roswell, for appellant.
SEARS, Presiding Justice.
We granted an application for discretionary appeal in this case to consider the extent of a trial court's discretion to grant a new trial when a final divorce decree is entered without notice to and in the absence of the defendant. We conclude that, under the circumstances of this case, the trial court did not err in granting a new trial.
In the present case, Ms. Melcher filed the divorce action in June 2000. Although Mr. Melcher did not file an answer, his attorney maintained contact with Ms. Melcher's attorney, *469 and engaged in settlement negotiations during the fall of that year. Ms. Melcher's attorney scheduled the final hearing on the divorce action, without notice to Mr. Melcher, for December 18, 2000, even though she had previously filed for a leave of absence for a two-week period that included December 18. On December 14, 2000, Ms. Melcher's attorney wrote Mr. Melcher's attorney a letter discussing the parties' settlement negotiations and stating that Ms. Melcher's settlement proposal to Mr. Melcher remained open. At the time of the December 14 letter, Ms. Melcher's attorney had already scheduled the case for trial on December 18, yet her letter made no mention of the trial date. Ms. Melcher and her counsel appeared for the final hearing, but Mr. Melcher and his attorney did not have notice of the hearing and did not appear. Shortly after the hearing, the trial court entered a final judgment. Mr. Melcher, however, timely filed a motion for new trial, which the trial court granted based upon the conduct of Ms. Melcher's attorney in scheduling the final hearing for a date on which she had obtained a leave of absence and in sending a letter continuing the parties' negotiations after she had already scheduled the case for a final hearing.
OCGA § 5-5-25 provides that "[i]n all motions for a new trial on other grounds, not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts." Moreover, it has been held that the "non-appearance of a party or his counsel for good cause may be raised in a motion for new trial and the grant of such a motion will not be controlled unless manifestly abused."[1] In cases in which a party is absent from trial and then seeks the grant of a new trial, the Court of Appeals has held that there is no "fixed rule by which to determine questions of this character,"[2] that wide "`discretionary power ... is vested in the [trial courts] in matters of this kind,'"[3] that "[t]he determination as to whether the absent party should be granted a new trial is a matter peculiarly within the discretion of the trial court,"[4] and that "[c]ourts of review will not control the judgment of the trial judge, unless it is shown that he manifestly and flagrantly abused his discretion."[5]
Generally, the failure of a party such as Mr. Melcher to file an answer in a divorce case waives the party's right to notice of the final hearing.[6] Here, however, we conclude that the unusual facts of this case demonstrate that Mr. Melcher had good cause for not attending the final hearing, and that the trial court therefore did not abuse its discretion in granting him a new trial. First, the parties had engaged in settlement negotiations for several months before Ms. Melcher's attorney sent the letter of December 14, and that letter clearly communicated that Ms. Melcher was ready for negotiations to continue. Second, contrary to the meaning conveyed in the letter that negotiations would continue, Ms. Melcher's attorney, before sending the letter, had scheduled the case for a final hearing that was to be held four days after the letter was sent. Third, Ms. Melcher's attorney scheduled the case for a final hearing on a date for which she had already obtained a leave of absence. Because these circumstances would have led a reasonable person to conclude that no final hearing on the divorce action was imminent, and because Ms. Melcher's attorney's actions created this misunderstanding, we conclude that the trial court was authorized to conclude that Mr. Melcher demonstrated good cause for not attending the December 18 hearing. Accordingly, the trial court did not abuse its broad discretion in granting Mr. Melcher a new trial.[7]
Judgment affirmed.
All the Justices concur.
NOTES
[1] Vaughan v. Car Tapes, 135 Ga.App. 178, 180, 217 S.E.2d 436 (1975).
[2] Tri-State Systems v. Village Outlet Stores, 135 Ga.App. 81, 82-83, 217 S.E.2d 399 (1975).
[3] Tri-State, 135 Ga.App. at 83, 217 S.E.2d 399, quoting Sherman v. Stephens, 30 Ga.App. 509, 517, 118 S.E. 567 (1923).
[4] Id. at 83, 217 S.E.2d 399.
[5] Id.
[6] See Lucas v. Lucas, 273 Ga. 240, 539 S.E.2d 807 (2000).
[7] OCGA § 5-5-25. Because we decide this case based upon a trial court's discretion to grant a new trial, we need not decide whether the rationale of Green v. Green, 263 Ga. 551, 437 S.E.2d 457 (1993), required Ms. Melcher's attorney's to notify Mr. Melcher's counsel of the trial date and whether the failure to do so required the trial court to set aside the judgment under OCGA § 9-11-60(d). See also Lucas v. Lucas, 273 Ga. 240-241, 539 S.E.2d 807. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337459/ | 559 S.E.2d 108 (2002)
253 Ga. App. 357
BARRETT
v.
The STATE.
No. A01A1677.
Court of Appeals of Georgia.
January 18, 2002.
*109 Albert C. Palmour, Jr., Summerville, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., Michael J. Moeller, Asst. Dist. Atty., for appellee.
POPE, Presiding Judge.
Mickey Barrett was tried by a jury and convicted on multiple counts of child molestation, aggravated child molestation, and aggravated *110 sodomy. He enumerates three errors.
Evidence at trial showed that for several years, Barrett engaged in numerous sexual acts with his then wife's young son (his stepson), including fondling, masturbation, oral sex, and one episode of anal sex. The State also introduced his ex-wife's testimony that Barrett repeatedly requested that she engage in anal intercourse with him, which with one exception she refused to do. He made these requests at least twice weekly for several years during the same period of time that he was molesting the boy.
1. Barrett contends the court erred by admitting his ex-wife's testimony. We begin by noting that "[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." OCGA § 24-2-2. The exception to this rule argued by the State is that the testimony tends to prove Barrett's state of mind or motive.
Before such evidence may be admitted as a "similar transaction," the State must make three affirmative showings: (1) that the evidence is being used for a permissible purpose, (2) that sufficient evidence shows the accused to have been the perpetrator of the similar transaction, and (3) that sufficient similarity exists between the transaction and the crime for which the accused is on trial, such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). This exception to the general rule "has been most liberally extended in the area of sexual offenses, but even where sexual offenses are involved, the evidence should not be admitted unless the prejudice it creates is outweighed by its relevancy." (Citation and punctuation omitted.) Holmes v. State, 216 Ga.App. 874, 875(1), 456 S.E.2d 236 (1995).
The State argued that Barrett's ex-wife's continued refusals motivated the defendant to act out sexually against her son. State of mind and motive are permissible purposes. See, e.g., Dumas v. State, 239 Ga.App. 210, 215(3), 521 S.E.2d 108 (1999). And, the ex-wife's testimony was sufficient to show that Barrett was the perpetrator of the purported similar transaction.
The more significant issue is whether the evidence is sufficiently similar to a charged crime such that it tends to prove that Barrett committed that crime. In Count 2 of the indictment, Barrett was charged with aggravated child molestation arising out of the one incident of anal intercourse. A person commits aggravated child molestation if he or she engages in sodomy while committing child molestation. OCGA § 16-6-4(c). Child molestation requires proof that the defendant performed the immoral or indecent act with the intent to arouse or satisfy either his or the child's sexual desires. OCGA § 16-6-4(a).
There is an obvious similarity between the act of anal sex Barrett requested and had with his wife and the anal sex that Barrett requested and had with the boy. And the ex-wife's testimony is relevant because it tends to show that Barrett desired anal sex to satisfy his own sexual desires as required by OCGA § 16-6-4(a). See Thomas v. State, 239 Ga. 734, 737 738(5), 238 S.E.2d 888 (1977) (the incident must be relevant to the particular case on trial and the testimony must be needed; for instance, when there is no direct way for the State to prove the defendant's beliefs, motives, or state of mind). Cf. Simpson v. State, 271 Ga. 772, 773-774(1), 523 S.E.2d 320 (1999) (defendant's sexual paraphernalia is "inadmissible unless it shows defendant's lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity").
The fact that none of the ex-wife's testimony involves sexual acts with a child is not determinative because there is no "per se rule whereby evidence of a sexual offense involving an adult victim is always inadmissible in cases in which the sexual offense was perpetrated on a minor." Tucker v. State, 191 Ga.App. 648, 382 S.E.2d 425 (1989). Compare Bloodworth v. State, 173 Ga.App. 688, 327 S.E.2d 756 (1985) (prior incident of making a pass at an adult woman is not an admissible similar transaction on a charge of molesting a six-year-old child).
*111 The prior acts are dissimilar, however, in a significant way. None of the ex-wife's testimony involves nonconsensual behavior. (This distinguishes child molestation cases involving nonconsensual behavior toward an adult in a prior transaction.) See, e.g., Satterwhite v. State, 250 Ga.App. 313, 316(2)(a), 551 S.E.2d 428 (2001) (rape of co-worker sufficiently similar to nonconsensual sexual activity with child to allow evidence of former crime); Thompson v. State, 241 Ga.App. 295, 526 S.E.2d 434 (1999); Yelverton v. State, 199 Ga.App. 41, 42-43(1), 403 S.E.2d 816 (1991). Compare Smith v. State, 249 Ga.App. 39, 40-41(1), 547 S.E.2d 598 (2001) (court should sever trial of rape of an adult and child molestation because rape of an adult does not show lustful disposition toward children, and molestation of child would not show bent of mind to rape adult).
But, given that the similar transaction rule has been most liberally extended in the area of sexual offenses, and because the prior transaction in this case tends to shed light on what would arouse Barrett's sexual desire, we conclude that the evidence here was admissible and that its probative value outweighed any prejudicial impact.
Barrett argues that because the similar transaction involves sodomy conducted in private between consenting adults, we should consider the Supreme Court of Georgia's holding that that activity is protected by the Georgia Constitution's right to privacy. See Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998). But Barrett did not raise any argument regarding this constitutional right in the trial court, and therefore it is not before us. Rahman v. Dalkon Shield Claimants Trust, 243 Ga.App. 623, 625(1), 532 S.E.2d 699 (2000).
2. Barrett contends his trial counsel provided ineffective assistance to his defense. In order to prevail on his claim of ineffective assistance of counsel, Barrett must show that his attorney's performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for counsel's errors, the outcome at trial would have been different. Mobley v. State, 271 Ga. 577, 523 S.E.2d 9 (1999), citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Barrett asserts that his counsel (1) failed to interview one witness until after the trial began, (2) failed to investigate before trial one of the State's proposed similar transactions, (3) failed to familiarize himself with the child's videotaped statement, and (4) failed to thoroughly cross-examine the State's witnesses. However, even assuming that these assertions are true, Barrett has failed to even argue that a reasonable probability exists that, but for counsel's errors, the outcome at trial would have been different. Accordingly, this enumeration is without merit.
3. Barrett failed to cite or argue authority on appeal for his third enumeration of error, and therefore it is deemed abandoned. Whatley v. State, 197 Ga.App. 489, 398 S.E.2d 807 (1990).
Judgment affirmed.
BLACKBURN, C.J., and MIKELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441933/ | 6 A.3d 567 (2010)
OAK GROVE PARTNERS
v.
RHAUDA.
No. 1545 MDA 2009.
Superior Court of Pennsylvania.
July 20, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1975756/ | 768 A.2d 1286 (2001)
Stephen A. IRVING, et al.
v.
AGENCY OF TRANSPORTATION, Champlain Valley Aviation, Inc., Charles Boyer and Wayne Eels.
No. 99-393.
Supreme Court of Vermont.
February 13, 2001.
*1287 Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
ENTRY ORDER
Plaintiff Stephen A. Irving appeals the judgment of the Franklin Superior Court denying his motion for judgment as a matter of law or, alternatively, a new trial following a jury verdict for defendants. Irving brought suit individually, as the administrator of the estates of Sandra and Andrew Irving and as next friend to Adam Irving against the Vermont Agency of Transportation, Champlain Valley Aviation, Charles Boyer, and Wayne Eels following a mid-air collision in which his wife and son were killed. Irving argues on appeal that liability was proved as a matter of law or, alternatively, the verdict was against the weight of substantial evidence. *1288 Furthermore, Irving argues that the trial court erred when it failed to exclude expert testimony from lay witnesses and when it instructed the jury on the standard of care. We affirm.
When reviewing a trial court's refusal to grant a post-trial motion for judgment as a matter of law or a new trial, the evidence must be viewed in the light most favorable to the nonmoving party. Brueckner v. Norwich Univ., 169 Vt. 118, 120-21, 730 A.2d 1086, 1089 (1999).
Viewed in this light, the facts are as follows: On June 10, 1995, the Irving family went to the Franklin County Airport to meet Todd Taylor, an individual they knew through their church. Taylor had offered to take the family on a sight-seeing tour in a Cessna 172, a small plane rented by Champlain Valley Aviation, the fixed base operator at the airport. Because of the size of the plane, only two passengers could fly at a time. Sandra and Andrew Irving went first, while Stephen and Adam Irving watched from the ground.
The 172 took off from the runway and, in the course of its climb, collided with a Cessna 150, another small plane, piloted by Charles Boyer. The tail of the 172 was severed from the plane in the collision, causing the aircraft to fall immediately to the ground. All three occupants were killed in the crash. The 150, however, was able to make an emergency landing, and Boyer survived.
Boyer had also rented the 150 from Champlain Valley Aviation. He was a student pilot. The evening before the accident, Boyer had received permission from his instructor, Wayne Eels, to fly solo and had completed his first supervised solo flight. He had returned to the airport by himself the morning of the accident to log more practice hours flying. At the time of the accident, Boyer was attempting to reenter the traffic pattern in order to land. Boyer did not see the 172 until seconds before the planes collided. The 172 was not maneuvering in a way that would indicate that Taylor, the pilot, had seen the 150 either, and the Irvings' expert opined that Taylor never saw the 150 approaching.
On appeal, Irving argues first that the trial court erred when it viewed the evidence in the light most favorable to the defendants in its analysis of both the motion for judgment as a matter of law and the motion for a new trial. Relying on federal case law interpreting Fed.R.Civ.P. 59(a), he contends that, when analyzing a motion for a new trial brought under V.R.C.P. 59(a), a trial court should not view the evidence in the light most favorable to the jury's verdict, but should instead undertake an independent review.
Although V.R.C.P. 59 is based on Fed. R.Civ.P. 59 in general, Brault v. Flynn, 166 Vt. 585, 586, 690 A.2d 1365, 1366 (1996) (mem.), the text of the two rules differs. Compare Fed.R.Civ.P. 59 with V.R.C.P. 59. Furthermore, we have previously addressed the very argument that Irving raises here and have explicitly determined that "[c]ontrary to the federal decisions cited by plaintiff, Vermont law requires a judge, who is asked to grant a new trial, to weigh the evidence in the light most favorable to the verdict." Hardy v. Berisha, 144 Vt. 130, 133, 474 A.2d 93, 95 (1984); see also Brueckner, 169 Vt. at 121, 730 A.2d at 1089 (viewing the evidence in the light most favorable to the verdict when reviewing the denial of a motion for a new trial). Irving has offered no reason to revisit our decision in Hardy; therefore, we will not do so. Accordingly, we find no error in the trial court's approach to the evidence.
Turning to the merits of the trial court's decision denying Irving's request for judgment as a matter of law pursuant to V.R.C.P. 50(b) and his request for a new trial pursuant to V.R.C.P. 59(a), we note that although we do not defer to a trial court's decision regarding whether to grant judgment as a matter of law, see Brueckner, 169 Vt. at 122, 730 A.2d at 1090; Hardy, 144 Vt. at 133, 474 A.2d at *1289 95, the decision to grant or deny a motion for a new trial is committed to the sound discretion of the trial court, Brueckner, 169 Vt. at 132-33, 730 A.2d at 1097. If evidence exists that may fairly and reasonably support the jury's verdict, judgment as a matter of law is improper. Id. at 122, 730 A.2d at 1090. In contrast, while we still view the evidence in the light most favorable to the jury verdict when reviewing a trial court's decision on a motion for a new trial, we will reverse that decision only when the trial court has abused its discretion. Id. at 132-33, 730 A.2d at 1097. We afford the decision of the trial court "`all possible presumptive support, similar to the support the trial court owes to a jury verdict.'" Id. at 133, 730 A.2d at 1097 (quoting Gregory v. Vermont Traveler, Inc., 140 Vt. 119, 121, 435 A.2d 955, 956 (1981)).
We cannot say that the trial court erred by denying Irving's motion for judgment as a matter of law nor, a fortiori, that the trial court abused its discretion by denying Irving a new trial. Although the pilots both had a duty to see and avoid one another, Boyer testified that at the time of the collision he was in fact "dipping" his wings in order to clear his blind spots before entering the traffic pattern. One of the eye witnesses to the accident, as well as Boyer's expert, testified that the 172 was executing an unusual, nonstandard take-off. And there was extensive testimony about Taylor's failure to radio his intentions in the course of his take-off, which, although not required, was recommended procedure. From these facts, and others, the jury could have concluded that Boyer did not breach his duty of care by failing to see the other plane earlier and avoid it. Therefore, the trial court did not err by denying Irving either judgment as a matter of law or a new trial.
Irving also argues that, despite the court sustaining objections to the testimony of several lay witnesses, inadmissible expert testimony was elicited from them. Specifically, although limiting their testimony, the trial court permitted several of the eye witnesses to testify regarding Boyer's manner of approach to the traffic pattern based on their observations just prior to the collision. All three witnesses were pilots who used the Franklin County Airport. After testifying to his observations regarding how aircraft normally enter the traffic pattern at the airport, one witness testified that relative to those observations, he observed the 150 enter the traffic pattern at what "looked appropriate altitude-wise and angle-wise." Another witness, after describing the angle and direction of the approach by the 150 as he observed it, stated "[n]ormally, when you approach the airport, you come in as he was doing." Finally, a third witness described Boyer's approach as a "regular 45-degree entry to the downwind [leg of the traffic pattern]." Irving's objections to the remainder of the witnesses' testimony were sustained by the court.
While experts may testify to opinions based on facts of which they have no firsthand knowledge, opinions from lay witnesses are limited to matters which they have perceived directly. Compare V.R.E. 701 with V.R.E. 702. Irving argues that, because the witnesses above only observed the planes for a short period of time, their opinions were not based on firsthand knowledge and were therefore expert opinions. He concludes that because the witnesses were not disclosed as expert witnesses, nor were they qualified as experts at trial, all of their testimony regarding the manner of Boyer's approach to the traffic pattern should have been excluded. The duration of the witnesses' observations, however (elicited in the course of their testimony), goes to the weight their opinions are to be accorded, not whether their conclusions are admissible as lay opinion. 1 J.W. Strong, McCormick on Evidence § 10, at 39 (4th ed. 1992) ("If under the circumstances proved, reasonable men could differ as to whether the witness did or did not have adequate opportunity to observe, then the testimony *1290 of the witness should come in, and the jury will appraise his opportunity to know in evaluating the testimony."). Therefore, the trial court did not err by allowing the eye witnesses to characterize Boyer's attempted manner of entry into the traffic pattern based on their observations prior to the collision.
Finally, Irving argues that the following jury instruction confused and misled the jury regarding the relevance of Boyer's experience as a pilot to their overall determination regarding negligence:
[E]xperience or the lack of it and how many flight hours a pilot has says nothing about his duty of care. All pilots, whether high-time, low-time, or student pilots must exercise the same degree of care in flying an airplane. The same duty of care applies to each of them. They are expected to be familiar with and able to exercise the required duty of care when they are signed off to fly an airplane.
When reviewing jury instructions, we look at the instructions as a whole to determine whether they capture "the true spirit and doctrine of the law." Harris v. Carbonneau, 165 Vt. 433, 438, 685 A.2d 296, 300 (1996). The court's statement was made in the context of its instructions specifically on the duty of care, not on the issue of breach, and the instructions accurately state that an inexperienced pilot is not held to a lesser standard of care because of that lack of experience. As we have stated previously with regard to claims of erroneous jury instructions, "[w]e will assign error only where the instructions undermine our confidence in the verdict." State v. Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667 (1999). We cannot say that our confidence has been undermined by the above instruction and, therefore, we find no error.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337485/ | 212 Ga. 446 (1956)
93 S.E.2d 731
MOORE
v.
WELLS et al.
19287.
Supreme Court of Georgia.
Argued March 12, 1956.
Decided June 11, 1956.
Rehearing Denied July 11, 1956.
*449 Frank M. Gleason, for plaintiff in error.
W. A. McClure, Maddox J. Hale, contra.
HEAD, Justice.
1. Primarily, the rights of the parties in the present case are controlled by the conveyance to the school district. A construction of this conveyance is essential to a determination of the cause. "In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, it should be given effect . . ." Keith v. Chastain, 157 Ga. 1 (1) (121 S. E. 233); Mayor &c. of Savannah v. Barnes, 148 Ga. 317, 319 (96 S. E. 625); Guess v. Morgan, 196 Ga. 265, 269 (26 S. E. 2d 424); Jackson v. Rogers, 205 Ga. 581 (54 S. E. 2d 132); Danielsville & Comer Telephone Co. v. Sanders, 209 Ga. 144 (71 S. E. 2d 226); Floyd v. Carswell, 211 Ga. 36, 40 (83 S. E. 2d 586); Code § 29-109.
"An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or be defeated." Code § 85-901. A grantee is bound by the conditions in a deed which he accepts and under which he claims, although the deed has not been signed by him. Code § 29-102; Lawson v. Lewis, 205 Ga. 227 (1) (52 S. E. 2d 859), and citations.
In the act of Congress providing for the conveyance, without consideration, to the New Salem School District, the Secretary of *450 the Interior was authorized to make the conveyance on such "terms and conditions" as he might deem advisable. U. S. Stat., Vol. 53, part 2, p. 1275. The word "terms" is defined as "propositions, limitations, or provisions, stated or offered, as in contracts, for the acceptance of another and determining the nature and scope of the agreement." Webster's Int. Dictionary, 2d ed., p. 2604.
The terms of the grant made in 1940 to the New Salem School District, pursuant to the act of Congress, impose a limitation upon the estate conveyed. Immediately following the description of the property it is stipulated: "Provided always, that this conveyance is made upon the express condition and limitation that the above-described premises shall be limited to the retention and use for public school purposes only." (Italics ours.) The words "limitation" and "limited to" are sufficient within themselves to impose a limitation on the existence of the estate conveyed. Apparently, however, in order to eliminate any doubt as to the interest conveyed, the deed further recites that, "upon such cessation of such retention and use [the premises] shall revert to the United States of America its successors or assigns, without notice, demand or action brought." (Italics ours.) By the words "without notice, demand or action brought," the grantor clearly intended a limitation on the estate conveyed, since only by a limitation would the estate revert to the grantor without notice, demand, or action brought.
In Norris v. Milner, 20 Ga. 563, it was said that the action was brought to recover a lot which had been conveyed to the plaintiffs as trustess for a school lot, with the provision "that whenever it should cease to be used for that purpose, the land should revert to the grantors, and the grantees should be authorized to remove such buildings as they might have erected." In the Norris case this court said that the interest conveyed was a conditional estate, but in reaching this conclusion the court defined the distinction between a condition and a limitation as follows: "A condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs. And conditions can only be reserved for the benefit of the grantor and his heirs. And this constitutes the distinction between a condition and a limitation. By the latter, the estate is determined when the period of limitation arrives *451 without entry or claim. And no act is requisite to vest the right in him who has the next expectant interest."
In Mayor &c. of Macon v. East Tennessee &c. Ry. Co., 82 Ga. 501, 509 (9 S. E. 1127), it was held: "There can be no doubt that if the Macon & Brunswick company accepted the grant on the terms fixed by the city council of Macon (and it could accept on no other), it was with the limitation that the estate acquired was to exist only so long as the property was used for the purposes specified in the act. Such a limitation is distinguished from an ordinary condition subsequent, inasmuch as it marks the limit or boundary beyond which the estate conveyed could not continue to exist." See also Atlanta Consolidated Street Ry. Co. v. Jackson, 108 Ga. 634 (1) (34 S. E. 184); Lawson v. Georgia Southern &c. Ry. Co., 142 Ga. 14, 17 (82 S. E. 233). In the latter case this court quoted with approval from Norris v. Milner, supra, the distinction between a limitation and a condition, as follows: "A limitation in a deed determines the estate when the period of limitation arrives, without entry or claim. But a condition does not defeat the estate, although it be broken, until entry of the grantor or his heirs." The court then said: "Where a deed contains a limitation, the estate determines upon the happening of the event upon which it is limited, and, if the limitation is not to another, goes over to the grantor or his heirs by reverter without necessity of re-entry."
The distinction between a condition and a limitation as stated in Lawson v. Georgia Southern &c. Ry. Co., supra, is in accord with the general rule. See 31 C. J. S. 30-34, § 20; Thompson on Real Property, vol. 4, pp. 699-704, §§ 2156-2158; Restatement of the Law of Real Property, American Law Institute, vol. 1, p. 55, §§ 23-24; 19 Am. Jur. 530, § 67.
Under the authorities cited, the conveyance to the New Salem School District was of an estate upon a limitation, and the contention that the conveyance created a trust can not be sustained. While educational purposes are proper matters of charity (Code § 108-203), and while no formal words are necessary to create a trust estate, there must be a manifest intention to do so. Code § 108-102; 54 Am. Jur. 64, § 53.
The plaintiff relies strongly on the decisions of this court in Dominy v. Stanley, 162 Ga. 211 (133 S. E. 245); and Duffee v. *452 Jones, 208 Ga. 639 (68 S. E. 2d 699). In the Dominy and Duffee cases the conveyances were to trustees, and their successors in office, and the conveyances clearly evidenced the intention of the grantors that the trustees should not hold the property for their own benefit, but that the property should be held by the trustees, and their successors in office, for school purposes.
In the deed to the New Salem School District no trustees are named; no trust is declared; no beneficiaries are named; and the requisites of a trust are not otherwise indicated. In Andrews v. Atlanta Real Estate Co., 92 Ga. 260 (18 S. E. 548), it was said: "Where the vendees in a deed of conveyance, founded upon a valuable consideration paid by them, were described as trustees, no trust being declared and no beneficiary named, the word `trustees' is mere surplusage, and the vendees took the title for their own use, free from any trust whatsoever." See also Brenner v. Wright, 185 Ga. 280 (1) (194 S. E. 553).
In Kennedy v. Kennedy, 183 Ga. 432, 439 (188 S. E. 722, 109 A. L. R. 1143), it was said that a grantor "gave the one acre of land to the trustees during the time it was used for school purposes, thus creating a conditional limitation." (Italics ours.) In Rustin v. Butler, 195 Ga. 389, 391 (24 S. E. 2d 318), it was said: "Not only did he [the grantor] require as a condition to the grant that a schoolhouse should be erected, but, in expressly providing for a forfeiture, wrote into the instrument that a forfeiture would result `should the same not be used for school purposes.' It has been held, that, even without an express forfeiture clause in a conveyance for certain named purposes only and for the time that it might be so used, the property would revert upon the termination of such specified use."
Allegations of the petition to the effect that residents of the New Salem School District started the construction of a schoolhouse, subsequently to the execution and delivery of the grant to the school district, are insufficient to change the character of the conveyance. An express trust can not be engrafted upon a deed by parol (Beecher v. Carter, 189 Ga. 234, 241, 5 S. E. 2d 648), and proof that lands are being put to the uses limited by the grant will not extend the limitation therein expressed. Rustin v. Butler, supra.
2. In count three of the petition it is alleged that, because the *453 deed from the County Board of Education was procured by fraud, both deeds should be canceled and set aside. In this count the allegations of count one are adopted by reference. In paragraph 14 of count one it is alleged that the conveyance by the board of education to the Haygoods "is a part of a fraudulent scheme and plan whereby Dade County School District and the New Salem School District have been induced by fraudulent representations made by Roy Moore, the County School Superintendent, and by virtue of his office, the Secretary of the Dade County Board of Education, to attempt to part with the title of valuable property for a shockingly inadequate consideration," and the board of education adopted the resolution providing for the transfer of property "only because of their reliance and faith in the County School Superintendent, Roy Moore, and without any knowledge on their part that they were being duped into a scheme whereby Roy Moore's sister was acquiring highly valuable property worth at least $2,000 for an acre and a half of land north of the schoolhouse site and a short distance from the main highway worth not more than $200 . . ." And in count three of the petition it is alleged: "That the deed from the Board of Education of Dade County to defendants, Haygood and wife, was procured by fraud perpetrated on the county board of education by the defendant, Roy Moore, and the consideration for such deed was, and is, shockingly inadequate. That the transaction between defendant, Roy Moore, and his sister, Beatrice Haygood, is one between near relatives, and is detrimental to the interests of the citizens and taxpayers of the New Salem School District, and was made as a result of a scheme and plan on the part of the defendant, Roy Moore, with the defendants, Haygood and wife, to procure said property for them to the damage and detriment of the school. Because said deed was procured by fraud, it should be canceled and set aside . . ."
"It is well settled that a general allegation of fraud, in a bill, amounts to nothing it is necessary that the complainant show, by specifications, wherein the fraud consists. Issuable facts must be charged. The demurrer confesses only what is well pleaded." Carter v. Anderson, 4 Ga. 516, 519; Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746 (28 S. E. 991); Miller v. Butler, 121 Ga. 758 (3) (49 S. E. 754); Anderson v. Goodwin, 125 Ga. 663, 669 *454 (54 S. E. 679); Jones v. Robinson, 172 Ga. 746, 747 (3c) (158 S. E. 752); Robertson v. Panlos, 208 Ga. 116, 118 (65 S. E. 2d 400).
"`It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties.' Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867)." Hardin v. Baynes, 198 Ga. 683, 684 (2a) (32 S. E. 2d 384); Lee v. City of Atlanta, 197 Ga. 518, 520 (29 S. E. 2d 774).
"Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract." Code § 37-710. In the present case no great disparity of mental ability between the county board of education and the Haygoods is alleged. Generally this section of the Code is applied in those instances where great mental disparity is relied upon by one of the parties to the contract. In the present case the plaintiff is not a party to the contract, and he does not allege any facts that would entitle him to relief under this section of the Code.
"Inadequacy of price is no ground for rescission of a contract of sale, unless it is so gross as combined with other circumstances to amount to a fraud." Code § 96-105; Robinson v. Schly & Cooper, 6 Ga. 515; Parker v. Glenn, 72 Ga. 637; Palmour v. Roper, 119 Ga. 10 (45 S. E. 790); Hardin v. Baynes, supra; Hutchinson v. King, 192 Ga. 402 (15 S. E. 2d 523); Smith v. Tippins, 207 Ga. 262, 269 (61 S. E. 2d 138). Conceding, but not deciding, that a great inadequacy of consideration has been sufficiently alleged (see Hutchinson v. King, supra) in the present case, the allegations otherwise are subject to the rule that conclusions of the pleader are insufficient to establish a fraud.
Allegations of the petition to the effect that "the transaction between defendant, Roy Moore, and his sister, Beatrice Haygood, is one between near relatives," and that a confidential relationship existed between Roy Moore and the Haygoods, are wholly insufficient to establish any violation of duty as between the county school superintendent and the county board of education. The *455 petition alleges that Roy Moore failed to disclose to the board of education the fact that Mrs. Haygood was his sister. The petition nowhere alleges that this fact was not known to the board of education; nor is it alleged that it was concealed by the defendant, Roy Moore; nor is it alleged that the board of education would have acted differently in the premises if Roy Moore had revealed the relationship; and there is no averment of fact to show either that the conveyance by the board resulted from any fraud perpetrated on the board by Roy Moore, or that the discretion vested by law under Code § 32-909 in the county board of education in the management and disposition of school property was in any way avoided and superseded because of the relationship between the defendants, Moore and Haygood.
The court did not err in sustaining the general demurrer to this count of the petition.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Hawkins, J., who dissent from the ruling in the second division of the opinion and from the judgment of affirmance.
HAWKINS, Justice, dissenting. I cannot concur in the opinion of the majority. Under Code (Ann.) § 32-909 the title to school property in the various counties is vested in the county boards of education. Duffee v. Jones, 208 Ga. 639, 643 (3) (68 S. E. 2d 699). County boards of education are public officials, and under the Constitution (Code, Ann., § 2-101) all public officers are trustees and servants of the people, and in holding the title to, controlling its use, and in disposing of school property, the boards of education are acting as fiduciaries or trustees for the taxpayers and citizens of the county. Malcom v. Webb, 211 Ga. 449, 456 (86 S. E. 2d 489). Under numerous decisions of this court, a citizen and taxpayer of a county has such an interest in county property as will authorize him to seek to prevent an illegal disposition thereof. Morris v. City Council of Augusta, 201 Ga. 666, 669 (40 S. E. 2d 710), and cases there cited; Barge v. Camp, 209 Ga. 38, 43 (70 S. E. 2d 360). While the administration of the public schools is entrusted by law to the various county boards of education, who are vested with a broad discretion in the administration thereof, and will not be interfered with by the courts unless they act in violation of the law or grossly abuse their discretion (Pass v. Pickens, 204 Ga. 629, 51 S. E. 2d 405; McKenzie *456 v. Walker, 210 Ga. 189, 78 S. E. 2d 486), where, as here, the petition alleges that the county board of education is exchanging a parcel of real estate worth $2,000 for another tract of land worth only $200, which allegation must be taken as true on demurrer, such allegations are sufficient to charge a gross abuse of discretion and an illegal disposition of public property. Malcom v. Webb, 211 Ga. 449 (supra). The petition therefore stated a cause of action and the demurrer thereto should have been overruled.
I am authorized to say that Mr. Chief Justice Duckworth concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338759/ | 204 Ga. App. 441 (1992)
419 S.E.2d 517
RICKS
v.
THE STATE.
A92A0735.
Court of Appeals of Georgia.
Decided June 3, 1992.
Tyson Blue, for appellant.
Ralph M. Walke, District Attorney, for appellee.
BEASLEY, Judge.
Appellant was convicted of possession of cocaine, OCGA § 16-13-30 (a), possession of marijuana with intent to distribute, OCGA § 16-13-30 (b), and possession of a firearm by a convicted felon, OCGA § *442 XX-XX-XXX (b). His motion for new trial was denied.
An undercover drug task force officer and a confidential informant met with appellant, the target of a drug investigation, in an attempt to effect an undercover purchase of marijuana. Appellant agreed to sell them one pound of marijuana but stated that a 30-minute drive from Soperton to Metter would be necessary to procure it. The officer had been fitted with a body transmitter, enabling other officers to monitor the conversation. Appellant left in his car and, while returning from Metter, he was intercepted by sheriffs of Treutlen and Laurens Counties. He was alone in his car and was arrested when a grocery bag containing 13.8 ounces of marijuana was found on the front floorboard. The officers then executed a search warrant on his residence and confiscated a quantity of cocaine, marijuana and drug paraphernalia.
1. Appellant contends that the trial court erred in denying his motion to dismiss the prosecution based on alleged insufficiencies in the arrest warrants.
After a jury was sworn, appellant moved to dismiss the prosecution. Relying on Garmon v. Lumpkin County, 878 F2d 1406 (11th Cir. 1989), an action under 42 USCA § 1983 for damages for illegal arrest, he claims that the warrants were improperly issued solely on the basis of the supporting affidavits which provide merely that the accused committed the stated offenses. He submits that, "[s]uch a conclusory assertion clearly is insufficient to establish probable cause." Garmon, supra at 1408 (1).
"Even assuming for purpose of decision (but without deciding that issue) that the arrest warrants were invalid, a new trial is not required.... [T]he sanction for an unconstitutional arrest is exclusion of the evidence obtained as a result of that arrest [cits.].... [T]he sanction ... is not suppression of the prosecution. [Cits.].... `[Appellant] cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction ... [Appellant] is not himself a suppressible "fruit," and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.' [Cit.]" Lackey v. State, 246 Ga. 331, 333 (2) (271 SE2d 478) (1980). As in Lackey, appellant has not sought to suppress the physical evidence. The distinction is discussed in State v. Brown, 198 Ga. App. 239 (401 SE2d 295) (1990): an unlawful arrest properly resulted in suppression of contraband but did not bar criminal prosecution.
To the extent that appellant challenges the constitutionality of OCGA §§ 17-4-41 and 17-4-45, that issue was neither raised nor ruled *443 on below. It has not been preserved for review. Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991).
2. Appellant contends that the trial court erred in denying his motion to dismiss for failure to bring him to trial within the time limit set by Article III of the Interstate Agreement on Detainers Act, OCGA § 42-6-20 et seq.
OCGA § 42-6-20 (a) provides: "Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, ... on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, ... , provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner."
Appellant was a federal probationer at the time of his arrest on the present charges. As a result, probation was revoked and he was remanded to the custody of federal prison authorities in Minnesota. Beginning in November of 1990, appellant unsuccessfully attempted to comply with the statutory procedure for requesting final disposition of the pending Georgia indictment. A proper request, in compliance with OCGA § 42-6-20 (a), was finally received by Georgia authorities on January 7, 1991. Appellant was delivered to Georgia on June 20; the time for trial under Article III would expire on July 7, On July 2, the State moved to extend the trial date, which was heard on July 3. At that hearing, appellant's counsel sought dismissal of the indictment for failure to bring him to trial within 180 days of his demand. The court granted the State's request and trial was held on August 26.
Article III "does not say that the untried indictment shall be dismissed if [a defendant] is not brought to trial within 180 days after he has served his request for final disposition upon the proper Georgia authorities." Price v. State, 237 Ga. 352 (1) (227 SE2d 368) (1976). "The Interstate Agreement does not contemplate that the 180 day provision is inflexible." Duchac v. State, 151 Ga. App. 374, 376 (259 *444 SE2d 740) (1979). In Duchac, no continuances were sought and no circumstances were shown to justify tolling the 180 days, so dismissal of the indictment was authorized. In Ricks' case, the State demonstrated a good faith effort to timely comply with appellant's request for disposition of the Georgia indictment and sought a continuance on that basis prior to the expiration of the statutory time limit. The court did not abuse its discretion in granting a continuance and denying appellant's motion to dismiss the indictment.
3. The final inquiry is into the sufficiency of the evidence. Even assuming, as appellant submits, that the evidence against him was entirely circumstantial (the jury was instructed on circumstantial evidence), the facts as proved were sufficient to exclude every reasonable hypothesis save appellant's guilt and any rational trier of fact could have found him guilty beyond a reasonable doubt of the offenses for which he was convicted. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Castillo v. State, 166 Ga. App. 817, 821 (1) (305 SE2d 629) (1983).
Judgment affirmed. Birdsong, P. J., and Andrews, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337469/ | 348 S.C. 215 (2002)
559 S.E.2d 581
Harold Fitzgerald WILSON, Petitioner,
v.
STATE of South Carolina, Respondent.
No. 25399.
Supreme Court of South Carolina.
Submitted November 28, 2001.
Decided January 28, 2002.
*216 Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General B. Allen Bullard, Jr., and Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for respondent.
Chief Justice TOAL.
Harold Fitzgerald Wilson ("Wilson") filed for post-conviction relief ("PCR") arguing he had ineffective assistance of counsel, the evidence against him was insufficient to secure an indictment, and the trial judge was not impartial. The PCR court dismissed Wilson's claim on summary judgment, ruling that he failed to timely file his application.
FACTUAL/PROCEDURAL BACKGROUND
On July 26, 1995, a grand jury in Georgetown County indicted Wilson on one count of armed robbery. On October 18, 1995, a jury convicted Wilson of the charge, and the trial court sentenced Wilson to thirty (30) years confinement in the Department of Corrections. Wilson claims he instructed his attorney to appeal his conviction; however, no appeal was filed.
On September 30, 1997, Wilson filed an application for PCR alleging ineffective assistance of counsel, the evidence against *217 him was insufficient to secure an indictment, and the trial judge was not impartial. The State moved to dismiss Wilson's claim arguing the claim was untimely under the applicable statute of limitations set forth in S.C.Code Ann. § 17-27-45(A) (Supp.2000).[1] On November 24, 1998, the PCR court granted the State's motion to dismiss. Wilson now appeals. The sole issue before this Court is:
Does the statute of limitations for PCR applications, S.C.Code Ann. § 17-27-45(A), apply to an applicant who alleges that he did not knowingly and intelligently waive his right to a direct appeal from his criminal conviction?
LAW/ANALYSIS
Wilson argues that the PCR judge erred by summarily dismissing his PCR application based on his failure to file within the applicable statute of limitations as set forth in S.C.Code Ann. § 17-27-45(A). We agree.
When considering the State's motion for summary dismissal of an application for PCR, a judge must assume facts presented by an applicant are true and view those facts in the light most favorable to the applicant. AlShabazz v. State, 338 S.C. 354, 363, 527 S.E.2d 742, 747 (2000).
To waive a direct appeal, a defendant must make a knowing and intelligent decision not to pursue the appeal. Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986); White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). Wilson alleges that he requested an appeal from his original conviction, but his lawyer failed to timely file the appeal. Viewed in the light most favorable to Wilson, the evidence suggests that Wilson did not voluntarily waive his direct appeal.
This Court has ruled, in Odom v. State, 337 S.C. 256, 523 S.E.2d 753 (1999), that the one year statute of limitations required by S.C.Code Ann. § 17-27-45(A), does not apply to *218 Austin[2] appeals. Austin appeals do not have to be filed within the one year statute of limitations because they are belated appeals intended to correct unjust procedural defects. A petitioner is entitled to an Austin appeal if the PCR judge affirmatively finds either that (1) the applicant requested and was denied an opportunity to seek appellate review, or (2) the right to appellate review of a previous PCR order was not knowingly and intelligently waived. Odom, 337 S.C. at 262, 523 S.E.2d at 756.
We extend our reasoning in Odom and Austin to the instant situation. A defendant has the procedural right to one fair bite at the apple. That is, every defendant has a right to file a direct appeal[3] and one PCR application. In this case, Wilson has not had "one bite of the apple" since he has not received either a direct appeal from his conviction or a PCR hearing. See Poston v. State, 339 S.C. 37, 528 S.E.2d 422 (2000); Odom.
Just as it was in Odom, Austin's policy would be frustrated if the one year statute of limitations for PCR claims applied where the applicant was denied his direct appeal due to ineffective assistance of counsel, and then was denied his right to a PCR application because of the one year statute of limitations.
CONCLUSION
For the foregoing reasons, we REVERSE the PCR court's ruling that Wilson's PCR application was barred by the one year statute of limitations and REMAND to the PCR court to *219 conduct an evidentiary hearing to determine if Wilson knowingly and intelligently waived his right to direct appeal.
MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
NOTES
[1] Section 17-27-45(A) provides: "An application for relief filed pursuant to this chapter must be filed within one year after the entry of judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal of the filing of the final decision upon an appeal, whichever is later."
[2] Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). In Austin, petitioner's counsel failed to file a timely appeal following the denial of a PCR application. The petitioner then filed a subsequent PCR application claiming ineffective assistance of counsel during his first application for PCR. This Court ruled that petitioner's case must be remanded for an evidentiary hearing to determine whether petitioner requested and was denied the right to appeal.
[3] After the client is convicted and sentenced, trial counsel in all cases has a duty to make certain that the client is fully aware of the right to appeal, and if the client is indigent, assist the client in filing an appeal. In re Anonymous Member of the Bar, 303 S.C. 306, 307, 400 S.E.2d 483 (1991); see also Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337471/ | 559 S.E.2d 713 (2001)
210 W.Va. 740
Antonio FELICIANO, Plaintiff,
v.
7-ELEVEN, INC., a Corporation, Defendant.
No. 29564.
Supreme Court of Appeals of West Virginia.
Submitted October 2, 2001.
Decided November 30, 2001.
Dissenting Opinion of Justice Maynard December 11, 2001.
*716 Paul G. Taylor, Martinsburg, for the Plaintiff.
Charles F. Printz, Jr., Brian M. Peterson, Bowles Rice McDavid Graff & Love, PLLC, Martinsburg, for the Defendant. *714
*715 DAVIS, Justice:
The United States District Court for the Northern District of West Virginia presents, for resolution by this Court, the following certified question: "Whether the right of self-defense is a `substantial public policy' exception to the at-will employment doctrine, which provides the basis for a wrongful discharge action?" Following a review of the parties' arguments, the record presented for our consideration, and the pertinent authorities, we answer the certified question in the affirmative. In this regard, we find that the State of West Virginia recognizes a substantial public policy exception to the at will employment doctrine whereby an employee may defend him/herself against lethal imminent danger. However, an employer may rebut the presumption of a wrongful discharge based upon an employee's exercise of his/her right to self-defense by demonstrating that it based the termination upon a plausible and legitimate business reason.
I.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff, Antonio Feliciano [hereinafter referred to as "Feliciano"], was employed as a retail sales clerk by the defendant, 7-Eleven, Inc. [hereinafter referred to as "7-Eleven"], at its Baker Heights store, located in Berkeley County, West Virginia. At approximately 4:00 a.m. on July 14, 2000, a woman, wearing a mask and pointing a firearm, demanded that store employees, including Feliciano, give her the store's money. During this incident, certain employees emptied the cash register and, while the woman was focused upon another employee, Feliciano grabbed and disarmed her. Feliciano continued to restrain the would-be robber until local law enforcement authorities arrived on the scene and apprehended her.[1]
Following this incident, 7-Eleven terminated Feliciano, who was an at will employee, for failure to comply with its company policy which prohibits employees from subduing or otherwise interfering with a store robbery. Feliciano then filed a civil action against 7-Eleven in the Circuit Court of Berkeley County alleging that he had been wrongfully discharged, in contravention of West Virginia public policy, for exercising his right to selfdefense. The defendant removed the suit to the United States District Court for the Northern District of West Virginia, Martinsburg Division, based upon diversity of citizenship[2] and moved to dismiss Feliciano's claim, contending that he had failed to state a claim upon which relief could be granted.[3] In considering this motion, the district court encountered a legal conundrum which it has certified to this Court.[4] Applying West Virginia substantive law, the court ruled, by order entered February 28, 2001, that, "unless *717 the West Virginia Supreme Court of Appeals holds otherwise, the Court concludes that self-defense is not a substantial public policy in West Virginia," which ruling, if upheld, would result in the dismissal of Feliciano's complaint for failure to state a meritorious claim for wrongful discharge. Pursuant to this decision, the district court certifies its question of law to this Court.
II.
STANDARD OF REVIEW
When considering a certified question, we generally accord the original court's determination thereof plenary review. "`A de novo standard is applied by this [C]ourt in addressing the legal issues presented by a certified question from a federal district or appellate court.' Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syl. pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Accord Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) ("This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court."). In the case presently before us, the specific question at issue for our determination has been established to be a question of law: "A determination of the existence of public policy in West Virginia is a question of law, rather than a question of fact for a jury." Syl. pt. 1, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984). During our consideration of questions of law, be they presented by certification or otherwise, we employ a de novo standard of review. "To the extent that we are asked to interpret a statute or address a question of law, our review is de novo." State v. Paynter, 206 W.Va. 521, 526, 526 S.E.2d 43, 48 (1999). Accord Syl. pt. 2, Coordinating Council for Indep. Living, Inc. v. Palmer, 209 W.Va. 274, 546 S.E.2d 454 (2001) (" `Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)."). Having established the appropriate standard of review for the case sub judice, we proceed to consider the parties' arguments.
III.
DISCUSSION
The single issue presented for resolution by this Court is the certified question posed by the United States District Court for the Northern District of West Virginia: "Whether the right of self-defense is a `substantial public policy' exception to the at-will employment doctrine, which provides the basis for a wrongful discharge action?" In rendering its decision, the district court opined that the right of self-defense did not constitute a "substantial public policy" exception to the at will employment doctrine, and thus Feliciano had failed to state a valid claim for wrongful discharge. On certification to this Court, Feliciano maintains that such a substantial public policy does exist, while 7-Eleven agrees with the district court's ruling effectively precluding the assertion of Feliciano's claim for wrongful discharge.
Before definitively deciding the question certified for our determination, it is helpful to briefly review basic concepts of employment law applicable to the case sub judice. In the State of West Virginia, employers and employees alike are generally governed by the at will employment doctrine.[5] Pursuant to this body of law, "[w]hen a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract." Syl. pt. 2, Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955). The practical effect of this doctrine, then, is *718 that "an at-will employee serves at the will and pleasure of his or her employer and can be discharged at any time, with or without cause." Kanagy v. Fiesta Salons, Inc., 208 W.Va. 526, 529, 541 S.E.2d 616, 619 (2000) (citation omitted). Nevertheless, "`the employer is not so absolute a sovereign of the job that there are not limits to his prerogative.'" Id., 208 W.Va. at 533, 541 S.E.2d at 623 (quoting Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 178, 164 Cal. Rptr. 839, 845, 610 P.2d 1330, 1336 (1980)).
The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.
Syl., Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). This exception to the at will employment doctrine recognizes that, in spite of the right of employers to terminate their employees, " `[o]ne of the fundamental rights of an employee is the right not to be the victim of a "retaliatory discharge," that is, a discharge from employment where the employer's motivation for the discharge is in contravention of a substantial public policy[.]'" Kanagy, 208 W.Va. at 530, 541 S.E.2d at 620 (quoting McClung v. Marion County Comm'n, 178 W.Va. 444, 450, 360 S.E.2d 221, 227 (1987) (quotation and citation omitted)).
Accordingly, a cause of action for wrongful discharge exists when an aggrieved employee can demonstrate that his/her employer acted contrary to substantial public policy in effectuating the termination.
"`"[P]ublic policy" is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against public good even though no actual injury may have resulted therefrom in a particular case to the public.'" Cordle v. General Hugh Mercer Corp., 174 W.Va. at 325, 325 S.E.2d at 114 (quoting Allen v. Commercial Cas. Ins. Co., 131 N.J.L. 475, 477-78, 37 A.2d 37, 39 (1944) (internal quotations and citations omitted)). Whether a particular factor motivating a discharge from employment is a matter of public policy is dictated by reference to various authorities: "[t]o identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." Syl. pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992). E.g., Syl. pt. 3, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 506 S.E.2d 578 (1998) (discussing procedure for basing substantial public policy on constitutional provision). However, in order to sustain a cause of action for wrongful discharge, the public policy relied upon must not just exist; it must be substantial. "Inherent in the term `substantial public policy' is the concept that the policy will provide specific guidance to a reasonable person." Syl. pt. 3, Birthisel, 188 W.Va. 371, 424 S.E.2d 606. Moreover,
[t]he term "substantial public policy" implies that the policy principle will be clearly recognized simply because it is substantial. An employer should not be exposed to liability where a public policy standard is too general to provide any specific guidance or is so vague that it is subject to different interpretations.
Id., 188 W.Va. at 377, 424 S.E.2d at 612. Thus, to be substantial, a public policy must not just be recognizable as such but must be so widely regarded as to be evident to employers and employees alike.
Turning now to the issue presently before us, we must decide whether self-defense is a substantial public policy exception so as to support a cause of action for wrongful discharge. In our prior decision of Birthisel, we observed that the sources of public policy include constitutional authority, statutory and regulatory provisions, and principles of common law. Syl. pt. 2, Birthisel, 188 W.Va. 371, 424 S.E.2d 606. An examination of the West Virginia Constitution and the legislation of this State, however, suggest that while both bodies of law briefly mention an individual's right to defend him/herself, neither clearly expresses this view as a definite statement of public policy. See, e.g., W. Va. Const. art. III, § 22 (securing an individual's *719 "right to keep and bear arms for the defense of self"); W. Va.Code § 61-7-1 (1989) (Repl. Vol.2000) (acknowledging the right to bear arms for self-defense). See also W. Va.Code § 61-6-21(e) (1987) (Repl.Vol.2000) (permitting the teaching of self-defense techniques in civil rights context).
The jurisprudential history of this State, however, clearly demonstrates the existence of a public policy favoring an individual's right to defend him/herself. From the earliest reported cases to present day decisions, this Court has repeatedly recognized and safeguarded an individual's right to defend him/herself against an unprovoked assailant. In the course of these opinions, we have defined the nature of the right to selfdefense, holding that
[w]hen one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
Syl. pt. 7, State v. Cain, 20 W.Va. 679 (1882). More recently, we have similarly observed that
[s]elf-defense is generally defined as follows:
[A] defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself.
State v. Hughes, 197 W.Va. 518, 524, 476 S.E.2d 189, 195 (1996) (quoting State v. W.J.B., 166 W.Va. 602, 606, 276 S.E.2d 550, 553 (1981) (citations omitted)).[6] In the course of rendering these rulings, we have also clarified the essential elements of this offense.[7]
*720 Similarly, we have refined the circumstances under which a defendant may avail him/herself of a self-defense argument[8]*721 and crafted various procedural rules to govern the assertion of this affirmative defense.[9]
*722 In fact, the right to self-defense is so entrenched in the common law of this State that, some eighty years ago, this Court, while considering a defendant's plea of self-defense, obviated the need for meaningful discussion thereof by remarking that "[t]he law of self-defense is so well understood and has been so many times laid down by prior decisions as to need no additional affirmation in this case." State v. Miller, 85 W.Va. 326, 329, 102 S.E. 303, 304 (1919). See also State v. Cook, 204 W.Va. 591, 598, 515 S.E.2d 127, 134 (1999) ("Our cases have succinctly articulated the development and scope of the doctrine of self-defense and the use of deadly force under it."). Furthermore, we previously have recognized that the right to selfdefense extends to one's place of employment:
[i]n defending himself, his family or his property from the assault of an intruder, one is not limited to his immediate home or castle; his right to stand his ground in defense thereof without retreating extends to his place of business also and where it is necessary he may take the life of his assailant or intruder.
Syl. pt. 7, State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923). Hence, it goes without saying that an individual's right to self-defense in West Virginia has been sufficiently established in and clarified by our State's common law so as to render it a substantial public policy.
While we recognize this substantial public policy of an employee's right to defend him/herself against bodily injury, we nevertheless must also be mindful of an employer's corresponding duty to safeguard its employees and patrons. See generally 12B Michie's Jurisprudence Master and Servant §§ 13-15 (Repl.Vol.1992). Thus, while a particular employee may assert his/her right to self-defense, an employer also has an interest in protecting its staff and customers from harm that may befall them as a result of the employee's actions in defending him/herself. For example, in the case sub judice, it is quite possible that someone, be it Feliciano, his coworker, or an innocent bystander, could have been injured in the course of Feliciano's attempts to defend himself. While it is indeed quite fortunate that no such injuries resulted, we must still account for this very real possibility. Accordingly, we find that while an employee has a right to self-defense, such right must necessarily be limited in its scope and available in only the most dangerous of circumstances. Therefore, we hold that when an at will employee has been *723 discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at will employment doctrine and will sustain a cause of action for wrongful discharge.[10] Consistent with our prior precedent,[11] we hold further that an employer may rebut an employee's prima facie case of wrongful discharge resulting from the employee's use of self-defense in response to lethal imminent danger by demonstrating that it had a plausible and legitimate business reason to justify the discharge.
As this case is presently before the Court upon certification of a question of law, we are not at liberty to decide whether the facts support Feliciano's cause of action for wrongful discharge. However, as guidance for future cases, we find the following elements of the tort of wrongful discharge, as enumerated by the United States Court of Appeals for the Sixth Circuit in Godfredson v. Hess & Clark, Inc., 173 F.3d 365 (6th Cir.1999), to be particularly instructive to a determination of whether an employee has successfully presented a claim of relief for wrongful discharge in contravention of substantial public policy:
1. [Whether a] clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
2. [Whether] dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).
3. [Whether t]he plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
4. [Whether t]he employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).
173 F.3d at 375 (quoting Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134, 151, 677 N.E.2d 308, 321 (1997) (internal quotations and citations omitted)). This succinct summation merely reiterates the procedures we previously have delineated in the foregoing discussion and decision of this case.
IV.
CONCLUSION
In conclusion, we answer the question certified by the United States District Court for the Northern District of West Virginia in the affirmative, but with limitation. Thus, the *724 right of self-defense in response to lethal imminent danger is a substantial public policy exception to the at will employment doctrine and will support a cause of action for wrongful discharge. An aggrieved employer may then rebut the presumption of a wrongful discharge by demonstrating that it had a plausible and legitimate business reason for terminating its employee.
Certified Question Answered.
Justice MAYNARD dissents and files a dissenting opinion.
MAYNARD, Justice, dissenting.
(Filed Dec. 11, 2001)
I do not believe that the right of selfdefense should constitute a substantial public policy exception to the employment at will doctrine so as to sustain a cause of action for wrongful discharge.
The basic rule that an employer has an absolute right to discharge an at-will employee has been subjected to several exceptions by this Court, one of which is that where an employer's motivation for the discharge is to contravene a substantial public policy, then the employer may be liable to the employee for damages. A review of these exceptions indicates that generally they were created to protect the public from threats to its health, financial well-being, or constitutional rights, or to guarantee the effective operation of the legal system. The rationale underlying each exception is that protecting the employee from discharge is necessary to uphold a substantial public interest. I fear that the new exception to the employment at will doctrine will have the opposite effect and actually result in an increased risk of harm to the public.
The 7-Eleven Corporation prohibits employees from subduing or otherwise interfering with a store robbery out of recognition of the fact that employees who interfere with robbers are not only much more likely to suffer injuries to themselves but also to cause harm to innocent bystanders such as customers. By discouraging store policies like the one at issue here, I believe that the majority unintentionally encourages irresponsible and even dangerous conduct among employees which will result in increased numbers of injuries.
This in turn will cause more lawsuits against 7-Eleven by both employees and customers who are injured when employee attempts to stop robberies erupt into violence. In Blake v. John Skidmore Truck Stop, Inc., 201 W.Va. 126, 493 S.E.2d 887 (1997), to which I dissented, this Court ruled that an employee of a truck stop who sustained injuries at work as the result of criminal acts of a third party could bring a deliberate intention cause of action against her employer. As evidence of deliberate intention, the Court pointed to the testimony of plaintiff's expert who opined that the store where the plaintiff worked constituted a specific unsafe working condition because it did not have adequate security safeguards. In the case at hand, the majority opinion actually renders unenforceable one of 7-Eleven's safeguards to protect workers in case of robbery. Nevertheless, the absence of this policy would probably cause this Court to uphold a deliberate intention action against 7-Eleven arising from an injury to an employee caused when he or she attempted to subdue a robber.
Moreover, the new substantial public policy exception to the employment at will doctrine renders no-fighting policies unenforceable as well. Now every time an employee is discharged for fighting, he or she will sue his or her employer and claim self-defense. The majority opinion will have the unfortunate result of taking disciplinary decisions out of the hands of private employers and placing these decisions in the courts.
Finally, the majority's new exception to the employment at will doctrine simply is not necessary. It cannot honestly be believed that in those rare instances when an employee is faced with the imminent threat of serious physical harm or death, that he or she would forego defending himself or herself for fear of losing a job as a result.
It is clear to me that recognizing selfdefense as a substantial public policy exception *725 to the employment at will doctrine is not only unnecessary but will do more harm than good. It is likely to increase the chance of physical altercations between employees and robbers, which, in turn, will result in injuries to employees and customers, and more law-suits against 7-Eleven and similar businesses. For these reasons, I dissent.
NOTES
[1] The parties represent that the woman subsequently pled guilty to possession of a firearm during the commission of a crime of violence.
[2] See generally 28 U.S.C. § 1441, et seq.
[3] See Fed.R.Civ.P. 12(b)(6).
[4] W. Va.Code § 51-1A-3 (1996) (Repl.Vol.2000) governs certified questions from federal courts:
The supreme court of appeals of West Virginia may answer a question of law certified to it by any court of the United States . . . if the answer may be determinative of an issue in a pending cause in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state.
For the complete text of the certified question at issue in the present case, see infra Section III.
[5] It goes without saying, however, that where an employment contract specifically addresses the term or duration of employment, the employment most likely is not at will. Cf. Syl. pt. 3, Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955) ("`An employment upon a monthly or annual salary, if no definite period is otherwise stated or proved for its continuance, is presumed to be a hiring at will, which either party may at any time determine at his pleasure without liability for breach of contract.' Point 1, syllabus, Resener v. Watts, Ritter and Company, 73 W.Va. 342[, 80 S.E. 839 (1913)].").
[6] Accord State v. Miller, 178 W.Va. 618, 622, 363 S.E.2d 504, 508 (1987) ("[T]he concept of selfdefense. . . provides a justification or excuse for a killing, and is a complete defense to criminal liability." (citations omitted)); State v. W.J.B., 166 W.Va. 602, 608, 276 S.E.2d 550, 554 (1981) ("[A] person has the right to repel force by force in the defense of his person, his family or his habitation, and if in so doing he uses only so much force as the necessity, or apparent necessity, of the case requires, he is not guilty of any offense, though he kill his adversary in so doing." (internal quotations and citations omitted)); Syl. pt. 4, State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945) ("Where, in a trial for murder, there is competent evidence tending to show that the accused believed, and had reasonable grounds to believe, that he was in danger of losing his life or suffering great bodily harm at the hands of several assailants acting together, he may defend against any or all of said assailants, and it is reversible error for the trial court to refuse to instruct the jury to that effect."); Syl. pt. 6, State v. Cain, 20 W.Va. 679 (1882) ("Where there is a quarrel between two persons, and both are in fault, and a combat as the result of such quarrel takes place, and death ensues, in order to reduce the offense to killing in self defense, two things must appear from the evidence and the circumstances of the case, first that before the mortal blow was given, the prisoner declined further combat and retreated, as far as he could with safety; and secondly, that he necessarily killed the deceased in order to preserve his own life, or to protect himself from great bodily harm.").
[7] See, e.g., State v. Plumley, 184 W.Va. 536, 540, 401 S.E.2d 469, 473 (1990) (per curiam) ("In addressing the standard by which the reasonableness of an individual's beliefs and actions in self-defense must be judged, we have recognized that the reasonableness of such beliefs and actions must be viewed `in [the] light of the circumstances in which he acted at the time and not measured by subsequently developed facts.'") (quoting State v. Reppert, 132 W.Va. 675, 691, 52 S.E.2d 820, 830 (1949) (citations omitted)); Syl. pt. 1, State v. Baker, 177 W.Va. 769, 356 S.E.2d 862 (1987) ("The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return."); Syl. pt. 3, State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935) ("Self-defense as a justification for homicide is not necessarily based upon actual necessity; if the circumstances were such as to cause a reasonably prudent person to believe, and if the accused did believe, that the killing was necessary then, the other elements thereof being present, the defense is valid."); Syl. pt. 1, in part, State v. Miller, 85 W.Va. 326, 102 S.E. 303 (1919) ("One assaulted by another is not bound to retreat, but if he is the aggressor, or unnecessarily pursues his assailant after the latter has declined the combat and inflicts upon him bodily injury, he is guilty of assault and battery."); State v. Hamrick, 74 W.Va. 145, 149, 81 S.E. 703, 705 (1914) ("Our decisions say that in order to justify the killing the accused must have had reasonable grounds to believe, and did believe the danger was imminent, and that the killing was necessary to preserve his own life, or to protect him from great bodily harm, before he is excusable for using a deadly weapon in his defense." (citations omitted)); Syl. pt. 8, Shires v. Boggess, 72 W.Va. 109, 77 S.E. 542 (1913) ("One in his own house need not stand and take without resisting with force even slight assaults of an intruder or trespasser, and until he believes or has reason to believe that he is about to sustain some great bodily harm. But he must not use force disproportioned to that used against him, and may not use a deadly weapon unless his own life is imperiled or it is necessary to ward off great bodily harm."); Syl. pt. 4, State v. Hood, 63 W.Va. 182, 59 S.E. 971 (1907) ("In case of affray, where retreat is necessary before taking the adversary's life in self defence, that retreat must be in good faith, not as a cover to execute a fixed design to kill."); Syl. pt. 8, State v. Cain, 20 W.Va. 679 ("In such a case as to the imminency of the danger, which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; but he acts at his peril, as the jury must pass upon his action in the premises, viewing said actions from the prisoner's stand-point at the time of the killing; and if the jury believe from all the facts and circumstances in the case, that the prisoner had reasonable grounds to believe, and did believe, the danger imminent, and that the killing was necessary to preserve his own life or to protect him from great bodily harm, he is excusable for using a deadly weapon in his defense, otherwise he is not."); Syl. pt. 10, State v. Abbott, 8 W.Va. 741 (1875) ("To excuse the slayer, he must act under an honest belief that it is necessary, at the time, to take the life of his adversary in order to save his own; and it must appear that there was reasonable cause to excite this apprehension.").
[8] See, e.g., Syl. pt. 2, State v. Wade, 200 W.Va. 637, 490 S.E.2d 724 (1997) ("Self-defense and provocation instructions are not available in response to a charge of felony-murder where the predicate felony is the delivery of a controlled substance."); Syl. pt. 2, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978) ("Where a defendant is the victim of an unprovoked assault and in a sudden heat of passion uses a deadly weapon and kills the aggressor, he cannot be found guilty of murder where there is no proof of malice except the use of a deadly weapon."); State v. Cowan, 156 W.Va. 827, 832, 197 S.E.2d 641, 644 (1973) ("While it is not inconceivable in a given factual situation that there could be a proper defense of self-defense to a prosecution for armed robbery, such a possibility strains the imagination."); Syl. pt. 7, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966) ("Where a defendant relies on self-defense and stated that she believed she was in danger of great bodily harm and was attempting to protect herself from apparent danger and fires a shotgun charge through a window and no one is attempting to enter her home at the time, she assumes the risk in so doing."); Syl. pt. 4, State v. Preece, 116 W.Va. 176, 179 S.E. 524 ("A man attached in his own home by an intruder may invoke the law of self-defense without retreating."); Syl. pt. 4, State v. Donahue, 79 W.Va. 260, 90 S.E. 834 (1916) ("One without fault, assaulted by another in a public road, where he has the right to be, is not bound to retreat, but may lawfully stand upon his rights and repel the assault and if necessary to protect his own life or save himself from great bodily harm, may even take the life of his assailant."); Syl. pt. 17, in part, State v. Clark, 64 W.Va. 625, 63 S.E. 402 (1908) ("In exercising one's right to resist an illegal arrest he has no right, in order to retain or regain his liberty, to take the life of the officer, unless he has reason to believe and does believe he is in imminent danger, and that it is necessary to do so in order to save his own life, or to save himself from some great bodily harm[.]"); Syl. pt. 10, State v. Prater, 52 W.Va. 132, 43 S.E. 230 (1903) ("The principle of self defense extends to the right of a person to defend a near relative when in immediate danger of death or great bodily harm, and will excuse homicide in such case, when the killing is upon necessity or apparent necessity and the designation of it as self defense in instructions which clearly explain the applicability of it to the case on trial, does not render the instruction improper."); Syl. pt. 15, State v. Greer, 22 W.Va. 800 (1883) ("The right of selfdefence may be exercised in behalf of a brother or a stranger."). But see, e.g., Syl., State v. Curry, 112 W.Va. 549, 165 S.E. 810 (1932) ("One in no imminent danger from a minatory foe may not purposely confront him and then invoke selfdefense for an immediate homicide."); Syl. pt. 7, in part, State v. Snider, 81 W.Va. 522, 94 S.E. 981 (1918) ("Mere words or threats unaccompanied by an overt act do not constitute ground of justification or excuse of a homicide, under the law of self-defense[.]"); Syl. pt. 1, Smith v. Fahey, 63 W.Va. 346, 60 S.E. 250 (1908) ("In an action for damages for injuries resulting from a beating, the doctrine of self-defense cannot be successfully invoked where defendant was the aggressor, where he used more force than was reasonably necessary for his protection, or where, after the assault had terminated and all danger past, he struck or beat the aggressor by way of revenge."); Syl. pt. 14, State v. Greer, 22 W.Va. 800 ("An instruction is correct, which informs the jury that the prisoner cannot shield himself under the plea of self-defence, if he had reason to believe and did believe, that the assaulting party only intended to commit a trespass, and did not intend to take life or inflict great bodily harm."); Syl. pt. 9, State v. Abbott, 8 W.Va. 741 ("Previous threats or acts of hostility, however relevant they may be, will not justify a person in seeking and slaying his adversary.").
[9] See, e.g., Syl. pt. 3, Dietz v. Legursky, 188 W.Va. 526, 425 S.E.2d 202 (1992) ("In a homicide case, malicious wounding, or assault where the defendant relies on self-defense or provocation, under Rule 404(a)(2) and Rule 405(a) of the West Virginia Rules of Evidence, character evidence in the form of opinion testimony may be admitted to show that the victim was the aggressor if the probative value of such evidence is not outweighed by the concerns set forth in the balancing test of Rule 403."); Syl. pt. 3, State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989) ("Under 405(b) of the West Virginia Rules of Evidence, a defendant in a criminal case who relies on self-defense or provocation may introduce specific acts of violence or threats made against him by the victim, and if the defendant has knowledge of specific acts of violence against third parties by the victim, the defendant may offer such evidence."); Syl. pt. 6, State v. McKinney, 178 W.Va. 200, 358 S.E.2d 596 (1987) ("Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of selfdefense beyond a reasonable doubt."); Syl. pt. 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 ("Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense."); Syl. pt. 1, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971) ("When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation."); State v. Perkins, 130 W.Va. 708, 712, 45 S.E.2d 17, 19 (1947) ("Mere words, unaccompanied by an overt act, are not sufficient to justify an instruction to the jury on the theory of self-defense." (citation omitted)); Syl. pt. 2, State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942) ("It is prejudicial error for a trial court to refuse to give instructions which correctly enunciate the law of self-defense, where such instructions are warranted under the evidence adduced."); Syl. pt. 2, State v. Stanley, 112 W.Va. 310, 164 S.E. 254 (1932) ("In a prosecution for murder where there is substantial evidence to establish a plea of self-defense, it is competent for defendant to prove prior attacks made upon him by the deceased."); Syl. pt. 6, State v. Hamrick, 112 W.Va. 157, 163 S.E. 868 (1932) ("It is peculiarly within the province of the jury to weigh the evidence upon the question of self defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence."); Syl. pt. 6, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927) ("Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant. No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot."); Syl. pt. 3, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927) ("An instruction on the right of self-defense is erroneous, which makes the accused the sole judge of the emergency.");
Syl. pts. 1 & 2, State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923) (Syl. pt. 1: "In the trial of one accused of homicide, when self defense is relied on, the prior bad conduct of the deceased so closely connected in time and place as to show the state of mind and characterize the conduct of the deceased towards the defendant or his wife, home or place of business, is admissible in evidence for that purpose."; Syl. pt. 2: "And the evidence of previous threats of the deceased against the accused and his property communicated to him and calculated to shed light upon the mental attitude of the deceased towards the prisoner, are admissible in evidence for that purpose.");
Syl. pts. 1 & 3, State v. Arrington, 88 W.Va. 152, 106 S.E. 445 (1921) (Syl. pt. 1: "In a trial for homicide, where one of the issues is self defense, it is competent for the accused to testify concerning his belief and feelings as to the conduct of the deceased at the time of the killing, and to state the motive or purpose which prompted him to fire the fatal shot."; Syl. pt. 3: "Where self defense is an issue in a trial for homicide, evidence that the deceased was unarmed at the time of the killing is admissible."); Syl. pt. 9, State v. McCausland, 82 W.Va. 525, 96 S.E. 938 (1918) ("Where one charged with murder admits the killing and attempts to justify his act upon the ground of self defense, it is proper for him to prove that the deceased was a violent and dangerous man, not only at or about the time of the killing, but that he had been such continuously for many years prior thereto."); Syl. pts. 1 & 2, Pendleton v. Norfolk & Western Ry. Co., 82 W.Va. 270, 95 S.E. 941 (1918) (Syl. pt. 1: "In a civil action to recover damages for an assault and battery, the defendant cannot justify upon the ground of self-defense, unless such matter of justification be specially pleaded."; Syl. pt. 2: "In such case, however, evidence tending to show that the assault was committed by the defendant in self-defense may be introduced under the plea of not guilty, in mitigation of damages, but not in justification of the assault."); Syl. pt. 4, Teel v. Coal & Coke Ry. Co., 66 W.Va. 315, 66 S.E. 470 (1909) ("The law of self-defense does not vary in the application thereof to felony, misdemeanor and civil cases."); Syl., State v. Roberts, 64 W.Va. 498, 63 S.E. 282 (1908) ("When, upon a conviction for malicious shooting, the only question is whether the accused acted in self-defence, and the evidence as to it is materially conflicting, the supreme court will not grant a new trial."); Syl. pts. 1, 2, & 5, State v. Dillard, 59 W.Va. 197, 53 S.E. 117 (1906) (Syl. pt. 1: "Upon a trial for murder, where the killing is admitted, and the defendant relies upon selfdefense, the burden is upon him to establish such defense to the satisfaction of the jury."; Syl. pt. 2: "Where, upon a trial for murder, the evidence introduced by the state to establish the homicide, tends to show extenuating circumstances, this does not relieve the defendant of the burden of establishing self-defense, if it is relied o@n, to the satisfaction of the jury; but the circumstances so shown are proper to be considered by the jury in arriving at their verdict."; Syl. pt. 5: "It is peculiarly within the province of the jury to weigh the evidence upon the question of self defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence."); Syl. pt. 1, State v. Newman, 49 W.Va. 724, 39 S.E. 655 (1901) ("A question of self-defense is peculiarly a jury question, and an appellate court will not set aside a verdict against that defense except in rare cases, where it is very manifestly and plainly against the evidence."); Syl. pt. 4, State v. Dickey, 48 W.Va. 325, 37 S.E. 695 (1900) ("Whether a homicide is voluntary manslaughter or homicide in self-defense is a question of fact for the jury upon the evidence."); Syl. pt. 19, State v. Greer, 22 W.Va. 800 ("Upon a trial for murder the use of a deadly weapon being proved, and the prisoner relying on self-defence to excuse him for the use of the weapon, the burden of showing such excuse is on the prisoner, and to avail him, such defence must be proven by a preponderance of the evidence.").
[10] Other jurisdictions considering this issue have reached varying outcomes. Some states have found, as we have, the right to self-defense constitutes a substantial public policy. See, e.g., Babick v. Oregon Arena Corp., 160 Or.App. 140, 980 P.2d 1147, review allowed, 329 Or. 357, 994 P.2d 123 (1999) (unpublished table decision) (finding claim of imminent danger renders wrongful discharge claim justiciable); Ellis v. City of Seattle, 142 Wash.2d 450, 13 P.3d 1065 (2000) (en banc) (upholding employee's claim of wrongful discharge against employer who fired him after he refused to disable fire alarm system that interfered with quality of arena's sound system); Gardner v. Loomis Armored Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (en banc) (answering, in the affirmative, certified question inquiring "whether an employer contravenes public policy when it terminates an at-will employee who violated a company rule in order to go to the assistance of a citizen who was in danger of serious physical injury or death?"). However, other courts have declined to adopt this position. See, e.g., Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md.App. 470, 665 A.2d 297 (1995) (following McLaughlin, below, and declining to recognize substantial public policy of self-defense); McLaughlin v. Barclays American Corp., 95 N.C.App. 301, 382 S.E.2d 836 (1989) (concluding, where supervising employee exercising self-defense against subordinate employee was discharged, that public policy argument was not convincing); Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 545 A.2d 334 (1988) (rejecting discharged employee's characterization of selfdefense as public policy in favor of employer's legitimate interest in discharging disruptive employees).
[11] See, e.g., Syl. pt. 8, Page v. Columbia Natural Res., Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996) ("Once the plaintiff in an action for wrongful discharge based upon the contravention of a substantial public policy has established the existence of such policy and established by a preponderance of the evidence that an employment discharge was motivated by an unlawful factor contravening that policy, liability will then be imposed on a defendant unless the defendant proves by a preponderance of the evidence that the same result would have occurred even in the absence of the unlawful motive."). Accord Syl. pt. 2, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337473/ | 559 S.E.2d 195 (2002)
Barbara Ann CULLER, Plaintiff,
v.
Stacey Poteat HAMLETT, Houston Gwynn Hamlett, Jr., and Anthony Dale Green, Defendants.
No. COA00-1110.
Court of Appeals of North Carolina.
February 5, 2002.
*197 George B. Daniel, P.A. by John M. Thomas, Yanceyville, for plaintiff-appellant.
Burton & Sue, L.L.P. by Walter K. Burton, Greensboro, for defendants-appellee Hamlett.
Teague, Rotenstrich and Stanaland, L.L.P. by Stephen G. Teague, Greensboro, for defendant-appellee Green.
BIGGS, Judge.
Plaintiff appeals the trial court's order granting directed verdict in favor of defendants, Stacy and Houston Hamlett, in an action for personal injuries. In addition to the Hamletts, plaintiff sued a third defendant, Anthony Dale Green. The trial against defendant, Green, was severed from the trial against the Hamletts and reported in a separate opinion. For the reasons herein, we affirm the trial court's grant of directed verdict in favor of the Hamletts.
The evidence at trial tended to show the following: On 30 June 1993, at approximately 3:00 a.m., plaintiff left work in Greensboro, North Carolina and started driving home to Providence, North Carolina. Plaintiff described the traveling conditions as slightly foggy and dark. She was driving a 1984 Ford Escort that she planned to purchase from a relative of co-defendant, Anthony Green. Plaintiff explained that she had not had any past mechanical problems with the vehicle; however, while driving easterly on the highway, plaintiff began to experience problems when the vehicle's stick shift kept "popping out of gear". After crossing Highway 86 onto Park Springs Road, the vehicle became disabled forcing her to stop on the side of the two-lane road.
Shortly thereafter, plaintiff saw a vehicle approaching from the opposite direction and recognized the vehicle as belonging to Anthony Green. Green, who was traveling westerly on the highway, slowed down, pulled his vehicle onto the shoulder of the roadway and parked it partially on the roadway in the lane opposite of plaintiff's disabled vehicle. Plaintiff emerged from her car and walked across the roadway to Green's car, while he remained seated with the driver's door open and his engine running.
While engaged in conversation with Green, plaintiff saw the headlights of defendants' vehicle from approximately "300 yards away". The defendants, like Green, were traveling in a westerly direction on the roadway; Stacey Hamlett was driving. After telling Green that a car was approaching, plaintiff then turned away and began to walk back across the roadway towards her vehicle. Defendants' vehicle collided first with Green's vehicle, then struck and injured plaintiff, before colliding with plaintiff's vehicle. Plaintiff sustained a fractured left femur which required surgery.
Plaintiff filed an action on 30 October 1998, against defendants and Green for the injuries she suffered when she was struck while crossing the roadway. More specifically, plaintiff alleges that defendant, Stacey Hamlett, *198 was negligent in the operation of her vehicle. Defendants filed a reply denying any negligence and alleged contributory negligence of plaintiff. Plaintiff then filed a reply alleging last clear chance. The trial involving defendants was conducted before a jury.
On 8 March 2000, after plaintiff rested her case, the trial court entered an order granting a directed verdict in favor of defendants, finding that the plaintiff was contributorily negligent as a matter of law and further finding the doctrine of last clear chance inapplicable. From the entry of the directed verdict and dismissal of her action, plaintiff gave notice of appeal to this Court.
The sole issue for appellate review is whether the trial court erred in directing a verdict in favor of defendants.
Our standard of review on the grant of a motion for directed verdict is "whether, upon examination of all the evidence in the light most favorable to the nonmoving party [with this] party be[ing] given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury." Fulk v. Piedmont Music Center, 138 N.C.App. 425, 429, 531 S.E.2d 476, 479 (2000) (citing Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). A directed verdict should be granted in favor of the moving party only where "`the evidence so clearly establishes that fact in issue that no reasonable inferences to the contrary can be drawn,' and `if the credibility of the movant's evidence is manifest as a matter of law.'" Law Offices of Mark C. Kirby, P.A. v. Industrial Contractors, Inc. and Buddy Harrington, 130 N.C.App. 119, 123, 501 S.E.2d 710, 713 (1998) (quoting Lassiter v. English, 126 N.C.App. 489, 493, 485 S.E.2d 840, 842-43, disc. review denied, 347 N.C. 137, 492 S.E.2d 22 (1997)) (citation omitted).
I.
Plaintiff first assigns error to the trial court's grant of defendants' motion for directed verdict contending that defendant did not establish plaintiff's contributory negligence as a matter of law. We disagree.
In Wolfe v. Burke, 101 N.C.App. 181, 185, 398 S.E.2d 913, 915 (1990), this Court outlined the common law and statutory duty of a pedestrian in crossing a road:
In North Carolina, a pedestrian has `a common law duty to exercise reasonable care for his own safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway'. Further, N.C. Gen.Stat. § 20-174(a) (1989) provides that a pedestrian `crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.' (internal citations omitted).
Wolfe, 101 N.C.App. at 185, 398 S.E.2d at 915.
This Court noted in Wolfe that a plaintiff's failure to yield a right-of-way in violation of N.C.G.S. § 20-174(a) is not contributory negligence per se, but that such failure is "`evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury.'" Wolfe at 186, 398 S.E.2d at 916 (quoting Dendy v. Watkins, 288 N.C. 447, 456, 219 S.E.2d 214, 220 (1975)). "Even though failing to yield the right-of-way to an automobile is not contributory negligence per se, it may be contributory negligence as a matter of law." Id. at 186, 398 S.E.2d at 916 (citing Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47 (1985), aff'd, 315 N.C. 383, 337 S.E.2d 851 (1986)). The trial court must direct a verdict for the defendants "when all the evidence so clearly establishes [plaintiff's] failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible." Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980) (quoting Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964)); see also, e.g. Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982) (judgment as a matter of law proper where uncontroverted evidence shows that plaintiff's failure to use due care *199 was at least one proximate cause of plaintiff's injuries).
In Meadows v. Lawrence, this Court held that the plaintiff was contributorily negligent as a matter of law where the evidence showed that the plaintiff's negligence in crossing a highway was at least one proximate cause of the accident. 75 N.C.App. at 90, 330 S.E.2d at 50. In that case, the evidence in the light most favorable to the plaintiff revealed the following: that plaintiff was standing in the defendant's highway lane of travel; that the defendant, with his vehicle headlights burning, turned onto the highway at a distance at least 100 feet from the plaintiff; and that the road was straight and visibility unobstructed. Id.
This Court in Meadows found significant that "between the time [defendants'] car turned onto the highway and the time of the collision, [plaintiff] took one or two steps towards the center of the road." Id. Noting that it was the "plaintiff's duty to look for approaching traffic before she attempted to cross the highway," this Court stated:
The courts of this State have, on numerous occasions, applied the foregoing standard of due care when the plaintiff was struck by a vehicle while crossing a road at night outside a crosswalk. If the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff's failure to see and avoid defendant's vehicle will consistently be deemed contributory negligence as a matter of law.
Id. at 89-90, 330 S.E.2d at 50.
In Price v. Miller, 271 N.C. 690, 696, 157 S.E.2d 347, 351-352 (1967), our Supreme Court held that the plaintiff's intestate was contributorily negligent as a matter of law where the evidence showed that the decedent was crossing the road at night and without the benefit of a crosswalk. The defendant's vehicle was approaching the decedent at a rate of 60 miles per hour in a 55 mile per hour zone, on a straight stretch of road, and with the vehicle headlights shining. Price, 271 N.C. at 696, 157 S.E.2d at 350. In holding that any liability for defendant's negligence was precluded by the plaintiff's own negligence, our Supreme Court stated in Price:
If defendant were negligent in not seeing plaintiff's intestate, who was dressed in dark clothes, in whatever length of time he might have been in the vision of her headlights, then plaintiff's intestate must certainly have been negligent in not seeing defendant's vehicle as it approached, with lights burning, along the straight and unobstructed highway. We must conclude that plaintiff's intestate saw defendant's automobile approaching and decided to take a chance of getting across the road ahead of it, or in the alternative, that he not only failed to yield the right of way to defendant's automobile, but by complete inattention started across the highway without looking. In any event ... plaintiff's intestate's negligence was at least a proximate cause of his death.
Id.
In the case sub judice, we hold that the evidence establishes that plaintiff's own negligence was at least one proximate cause of her injuries. The plaintiff's own testimony reveals the following: while talking with defendant Green, plaintiff saw headlights from defendant Hamletts' car approaching from approximately 300 yards away; that even though she knew she was in an unsafe position standing in the roadway, she walked back across the road to her car; that nothing prevented her from running or stepping quickly to her car nor did anything prevent her from moving to the other side of Green's car away from the roadway; there was nothing to prevent her from keeping a continuous lookout as she crossed the roadway but she failed to do so; she knew her car and defendant Green's car were blocking part of their respective lanes of travel; and that visibility was poor in that it was dark and foggy. Our Supreme Court in Anderson v. Carter, stated the following rule regarding pedestrians:
Ordinary care surely requires a ... man, under no disability, who observes that he is in the path of an automobile approaching... to do more for his own protection than merely walk at the same pace across the path of the automobile ... ordinary care requires the man to jump or run from the *200 path of danger, even though there may be some risk or loss of dignity in that process.
272 N.C. 426, 431, 158 S.E.2d 607, 611 (1968).
Plaintiff contends that she assumed that Mrs. Hamlett was going to stop and not collide with the automobile and that she assumed that Mrs. Hamlett was not going to cross over the center line of the highway and attempt to drive between the two automobiles. This Court has held that "the existence of contributory negligence does not depend on the injured party's subjective appreciation of the danger; rather the standard of ordinary care is an objective onethe care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury." Williams v. Odell, 90 N.C.App. 699, 702, 370 S.E.2d 62, 64 (1988). Moreover, we need not discuss whether any or all of the defendants were negligent in that, under the law of this state, if plaintiff's own negligence is one proximate cause of her own injury, she is precluded from recovery irrespective of the acts of others.
We conclude as did the trial court that "the record is replete with mostly uncontradicted evidence of plaintiff's own contributory negligence." Accordingly, we hold that plaintiff was contributorily negligent as a matter of law and the trial court did not err in directing a verdict in favor of defendant on that issue.
II.
Next, the plaintiff assigns error to the trial court's grant of defendant's motion for directed verdict on grounds that plaintiff presented sufficient evidence of last clear chance to submit that issue to the jury, notwithstanding plaintiff's contributory negligence. We disagree.
In Vancamp v. Burgner, 328 N.C. 495, 402 S.E.2d 375, reh'g denied, 329 N.C. 277, 407 S.E.2d 854 (1991), our Supreme Court enumerated the elements that a plaintiff must establish to invoke the doctrine of last clear chance:
When an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1)[t]hat the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him. [Citing 26 cases as authority].
Id. at 498, 402 S.E.2d at 376-77 (quoting Clodfelter v. Carroll, 261 N.C. 630, 634-35, 135 S.E.2d 636, 638-39 (1964)).
The issue of last clear chance, "[m]ust be submitted to the jury if the evidence, when viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine." Kenan v. Bass, 132 N.C.App. 30, 32-33, 511 S.E.2d 6, 7 (1999) (quoting Trantham v. Estate of Sorrells, 121 N.C.App. 611, 468 S.E.2d 401, disc. review denied, 343 N.C. 311, 471 S.E.2d 82 (1996)).
Moreover, unless all the necessary elements of the doctrine of last clear chance are present, the case is governed by the ordinary rules of negligence and contributory negligence. Clodfelter v. Carroll, 261 N.C. at 634, 135 S.E.2d at 638. The doctrine contemplates a last "clear" chance, not a last "possible" chance, to avoid the injury; it must have been such as would have enabled a reasonably prudent man in like position to have acted effectively. Grant v. Greene, 11 N.C.App. 537, 541, 181 S.E.2d 770, 772 (1971); accord, Battle v. Chavis, 266 N.C. 778, 781, 147 S.E.2d 387, 390 (1966).
In situations where this doctrine applies, the focus is not on the preceding negligence *201 of the defendant or the contributory negligence of the plaintiff which would ordinarily defeat recovery. See generally, Clodfelter, 261 N.C. 630, 135 S.E.2d 636 (1964) (citation omitted). Rather, the doctrine, as discussed above, "contemplates that if liability is to be imposed the defendant must have a last `clear' chance to avoid injury." Grant, 11 N.C.App. at 541, 181 S.E.2d at 772.
The first element is satisfied by a showing that "plaintiff's contributory negligence ha[d] placed [her] in a position from which [she was] powerless to extricate [her]self." Nealy v. Green, 139 N.C.App. 500, 505, 534 S.E.2d 240, 243 (quoting Williams v. Odell, 90 N.C.App. 699, 704, 370 S.E.2d 62, 66, disc. review denied, 323 N.C. 370, 373 S.E.2d 557 (1988)).
In Vancamp v. Burgner, we noted that a pedestrian who is attempting to walk across a street, and is about to walk in front of an oncoming vehicle, is "obviously in peril before she steps directly in front of the car." 99 N.C.App. 102, 104, 392 S.E.2d 453, 455 (1990), aff'd, 328 N.C. 495, 402 S.E.2d 375 (1991). To invoke the doctrine of last clear chance such peril must be helpless or inadvertent. Williams, 90 N.C.App. at 704, 370 S.E.2d at 65 (1988). Helpless peril arises when a person's prior contributory negligence has placed her in a position from which she is powerless to extricate herself; while inadvertent peril focuses on failure to focus on one's surroundings and discover her own peril. Id. The doctrine is, however, "inapplicable where the injured party is at all times in control of the danger and simply chooses to take the risk." Id.
In the case sub judice, plaintiff's evidence fails to establish that she was either in helpless or inadvertent peril. Quite to the contrary, in spite of her knowledge that defendants' vehicle was steadily approaching, plaintiff chose to ignore the dangers from which she had the power to extricate herself. When asked during the deposition if there was anything that prevented her from running or stepping quickly to her car, she responded, "No, other than I didn't think I needed to run to my car."
Moreover, while the defendants may have had the last possible chance to avoid the injury, defendant had neither the time nor the means to have the last clear chance to entitle the submission of the question to the jury. Plaintiff's evidence tended to show that the weather was foggy and dark; defendant had just round a curve before approaching the point of the accident and her vision would have been obstructed by the curve itself; plaintiff's vehicle and the vehicle driven by co-defendant Green were blocking portions of the roadway such that there was no place for another car to pull over; and the plaintiff's headlights were shining in the direction of defendants' approach. We find the doctrine of last clear chance inapplicable on the facts before us.
The trial court did not error in granting directed verdict in favor of the defendants in that plaintiff was contributorily negligent as a matter of law and further the doctrine of last clear chance was inapplicable on the facts of this case.
Affirmed.
Judges McGEE and TIMMONSGOODSON, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337524/ | 93 S.E.2d 537 (1956)
142 W.Va. 1
STATE of West Virginia
v.
Harry JARANKO.
No. 10765.
Supreme Court of Appeals of West Virginia.
Submitted April 24, 1956.
Decided June 26, 1956.
*538 Clifford, Jones & White, Clarksburg, for plaintiff in error.
John G. Fox, Atty. Gen., Arch W. Riley, Asst. Atty. Gen., for defendant in error.
GIVEN, Judge.
Defendant, Harry Jaranko, was indicted by a grand jury in the Criminal Court of Harrison County on November 13, 1953. The indictment charges that defendant "did unlawfully, without a state license and without authorization under the Liquor Control Act, possess for sale a quantity of alcoholic liquor * * *". Defendant filed his motion to quash the indictment, and two pleas in abatement. The motion to quash was overruled, and demurrers to the pleas were sustained. A jury returned a verdict of guilty and the trial court overruled the motion of defendant to set the verdict aside. The Circuit Court of Harrison County having refused to grant a writ of error to the final judgment of the criminal court of that county, a writ of error and supersedeas was granted by this Court.
The allegations of the first plea in abatement are to the effect that the indictment is invalid, for the reason that the grand jury list from which the grand jury returning the indictment was drawn, was not properly made up or constituted and returned by the jury commissioners. The indictment against defendant was returned at the regular November, 1953, term of the Criminal Court of Harrison County. No grand jury list was made up at the levy term of the County Court of Harrison County for the year 1953 until after the return of the indictment. No grand jury list was made up for the year 1952 at the levy term of the county court, but a list containing two hundred nineteen names was made up and properly filed seventy eight days after the adjournment of the levy term for 1952. The names of sixteen persons were drawn from the grand jury box, containing the two hundred nineteen names, for service on the grand jury. Fourteen of such persons, and two persons who were selected by special jury commissioners, comprised the grand jury which indicted defendant.
Defendant's other plea in abatement alleges facts intended to show that Section 2, Article 1, Chapter 4 of the Liquor Control Act, Chapter 4 of the 1935 Acts of the Legislature, Michie's 1955 Code, Chapter 60-1-2, does not create the crime attempted to be charged in the indictment.
Defendant, at the time of the selection of the jury which tried the case, challenged for cause a number of veniremen, on the ground that they were present in court and heard all or a part of the evidence in one or more of a number of cases very similar to the instant case, tried at the same term at which defendant was tried, and in which cases the principal State's witnesses against defendant testified. The challenges were not sustained and some, at least, of the challenged jurors served on the jury which convicted defendant.
The questions raised in the instant case, relating to the constitution of the grand jury which returned the indictment against defendant, and the questions relating to the qualifications and the challenges of petit jurors who were drawn on the panel from which the jurors who tried defendant were drawn, have been fully considered and decided at the present term of this Court, in State v. Carduff, W.Va., 93 S.E.2d 502. See also the opinions in State v. Gory, W.Va., 93 S.E.2d 494; State v. Curotz, *539 W.Va., 93 S.E.2d 519 and State v. Cirullo, W.Va., 93 S.E.2d 526.
Defendant, by his second plea in abatement, raised a question as to whether Section 2 of Article 1 of Chapter 4 of the 1935 Acts of the Legislature, Michie's 1955 Code, 60-1-2, creates the offense attempted to be charged in the indictment returned against defendant, "possess for sale a quantity of alcoholic liquor". The section reads: "A person shall not sell, possess for sale, transport, or distribute alcoholic liquors in this State except in accordance with the provisions of this chapter."
We find no substantial basis for saying that the section creates no such crime. The language clearly says that a person shall not "possess for sale" alcoholic liquors. True, the language used in the section does not specifically say that the possession of alcoholic liquors shall constitute a crime, nor does it fix any penalty for the violation thereof, but Section 15 of Article 6 of Chapter 4 of the Liquor Control Act provides that "A person who violates * * * any provision of this chapter for which punishment has not been specifically provided, shall be guilty of a misdemeanor and upon conviction shall be fined not less than ten nor more than five hundred dollars or confined in jail not less than five days nor more than six months, or by both such fine and imprisonment". In State v. Melanakis, 129 W.Va. 317, 40 S.E.2d 314, though the precise question seems not to have been considered, a conviction on an indictment based on Section 2 of Article 1 of Chapter 4 of the Liquor Control Act was sustained.
Defendant contends that the trial court erred in not sustaining his motion to quash the search warrant and in admitting certain evidence relating to the seizure made under the warrant. The only substantial objections made to the sufficiency of the warrant are that the complaint did not sufficiently describe the premises to be searched, and did not set out sufficient facts to warrant the belief that there was probable cause for the issuance of the warrant, as required by Chapter 4 of the Liquor Control Act, Michie's 1955 Code, 60-6-18. The complaint alleges, as basis for the belief, that affiant "purchased two drinks of Seagram's Seven Crown whiskey at fifty (50) cents a drink in said premises". The place to be searched was described in the complaint as "that particular street floor of a three story brick and wood building, at 118½ South Second Street, in the Gore Hotel Apartment Building, in the City of Clarksburg, Clark District, Harrison County, West Virginia, commonly known as the `Red Man's Club'". We are of the view that the complaint fully satisfies the requirements of the statute in both respects. The purchase of two drinks of liquor at the place of business affords ample basis for the belief that liquor was possessed at that place for the purpose of sale, and the description of the place to be searched fully satisfies the requirements of the statute. See State v. Rigsby, 124 W.Va. 344, 20 S.E.2d 906; State v. Lacy, 118 W.Va. 343, 190 S.E. 344. The complaint and warrant issued pursuant thereto being sufficient, the evidence relating to the seizure made thereunder was admissible.
We have carefully examined other questions raised by defendant in his points of error relied upon for reversal, including the questions raised by the motion to quash the indictment and by the motion to set aside the verdict, and believe them sufficiently considered in one or more of the cases referred to above as having been decided at this term of this Court; or to be without substantial merit.
The judgment of the Circuit Court of Harrison County, refusing a writ of error from the Criminal Court of Harrison County, and the judgment of the Criminal Court of Harrison County, are affirmed.
Affirmed.
RILEY, J, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337541/ | 212 Ga. 456 (1956)
93 S.E.2d 712
SIMONTON CONSTRUCTION CO. et al.
v.
POPE et al.
19323.
Supreme Court of Georgia.
Argued May 14, 1956.
Decided July 9, 1956.
William J. Wiggins, Robert D. Tisinger, for plaintiff in error.
Shirley C. Boykin, Boykin & Boykin, D. B. Howe, Guy Parker, Harry S. McCowen, A. B. Parker, contra.
DUCKWORTH, Chief Justice.
We transferred this case to the Court of Appeals upon the ground that it contained no equity and, it being a case at law, that court had jurisdiction. But the defendants in error complained strongly in a motion for rehearing and asserted that it was an equity case; and being caused by the motion to doubt the soundness of our ruling, we granted the motion, vacated our judgment, and withdrew the opinion.
The suit was by a subcontractor against the contractor to recover an amount stated to the exact cent. The answer set up a setoff in the amount alleged to have been spent in completing the buildings after the plaintiff quit before finishing them, and tendered into court the difference in this expense and the amount covered by the contract. Thus was stated a plain simple suit, which by simple mathematics and law could have been decided without difficulty; and there is ample statutory provision intervention for by sureties and other claimants in a plain suit at law. Code § 23-1708; Whitley v. Bryant. 59 Ga. App. 58, 61 (200 *457 S. E. 317), and cases cited therein. But there were amendments
and amendments seeking to make new parties, and praying for injunctions until the case was tried. The trial judge ordered everything asked for, required the new parties to intervene, and granted the restraining orders. None of such orders were excepted to and they are now the law of the case in so far as these parties are concerned. The orders to intervene in a law case could have been but were not challenged. The intervenors must therefore be treated as volunteer intervenors, as they had the plain legal right to be under the law cited above. They can not complain to this court for deciding that the case was a law case simply because they obeyed a court order they chose to obey rather than challenge. Law cases can not be thus converted into equity cases. The grant of the injunction is unexpected to, and thus has finally settled and taken out of the case all equity involved therein, and this was the status of the case when the auditor made his findings. The only questions brought under review by this writ of error are rulings and findings of the auditor. Neither the judge's orders to intervene nor his restraining orders are involved. Thus is plainly demonstrated that the case here is one of law; all matters that could have been equity were eliminated from the case before the auditor made his rulings. Repeated decisions of this court require in such cases a ruling that this court is without jurisdiction. Martin v. Home Owners Loan Corp., 198 Ga. 288 291 (31 S.E.2d 407); Jackson Elec. Membership Corp. v. Echols, 207 Ga. 707 (63 S.E.2d 900); Miller v. Ray, 208 Ga. 27 (64 S.E.2d 449); Tribble v. Smith, 208 Ga. 632 (68 S.E.2d 567), and other cases cited in the above cases.
The allegations repeatedly made that there should be an equitable accounting, that equity should decree complete justice, and that a multiplicity of suits will be avoided if equity takes jurisdiction, with a total absence of any prayers for equitable accounting, fail to convert this simple suit at law into one in equity. Whether this is an equity case or one at law is vitally important on the matter of who decides exceptions of fact. If at law, they must be decided by a jury, but in equity the judge may decide them. Doubtless the legislature had this vital difference in mind when it enacted Code § 23-1708, and thereby eliminated any cause for going to equity to make parties not essential to a judgment *458 in the main case to deprive parties of this right of jury trial of issues of fact.
Therefore, having carefully considered the entire case, we conclude that the only just and lawful judgment the Supreme Court can render is one transferring the writ of error to the Court of Appeals.
Transferred to the Court of Appeals. All the Justices concur, except Wyatt, P. J., disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337529/ | 212 Ga. 423 (1956)
93 S.E.2d 563
ERIKSON
v.
HEWLETT et al.
19332.
Supreme Court of Georgia.
Submitted May 16, 1956.
Decided June 13, 1956.
*426 Robert E. Coll, Powell, Goldstein, Frazer & Murphy, for plaintiff in error.
Joseph B. Kilbride, contra.
HAWKINS, Justice.
On September 27, 1955, Mrs. D. C. Manly filed her answer to an equitable petition in Case No. 51250 in Fulton Superior Court, in which she was named as a defendant, and in paragraphs 8 and 9 of the answer she alleged that she was the owner of two described parcels of land, and that parcel No. 2 was subject to a first loan in favor of Southern Federal Savings and Loan Association and to a second loan in favor of J. R. Erikson, and in which she prayed that they be made parties to the proceedings, and for the appointment of a receiver for her properties, upon which answer a rule nisi was issued calling upon Erikson to show cause on October 1, 1955, why the prayers of the answer and motion to make parties should not be granted. On that date counsel for Erikson appeared in response to the rule and presented various objections to the answer. No further order was entered, but the hearing *424 was, by oral announcement, continued until October 3, 1955, and on that date counsel for Erikson in that proceeding again appeared, at which time George Starr Peck presented a petition by Hewlett, Dennis, Bowden & Barton, and by Peck, as petitioners, against Mrs. D. C. Manly, J. R. Erikson, and others, being Case No. 51726 in Fulton Superior Court, said petition praying, among other things, that Erikson be restrained and enjoined from proceeding with the sale of the property therein described as being located at 8346 Roberts Drive on October 4, 1955, under the power of sale contained in the security deed from Mrs. Manly to Erikson, and for the appointment of a receiver for the properties of Mrs. Manly, on which petition an order bearing date of October 1, 1955, was entered, setting a hearing thereon for October 3, 1955, in which order it was provided that "In the meantime and until the hearing each of the defendants are restrained as prayed." On October 3, 1955, counsel for Erikson was present, representing him in the case first above referred to, but it is insisted by this counsel that he did not then represent Erikson in Case No. 51726, Peck et al. v. Manly, Erikson, et al. On October 3, 1955, and in the presence and hearing of counsel for Erikson, the court announced and entered a further order in that case as follows: "It is further ordered that W. Pat Roberts be appointed temporary receiver of all properties of the defendant Mrs. D. C. Manly," and the petition and order was filed in the office of the clerk on that date, but neither Erikson nor his counsel acknowledged service on that petition, and it was not served on Erikson until October 13, 1955. On October 3, 1955, the trial judge announced orally that further hearing would be held on October 14, 1955, without specifying on which of the petitions the hearing was to be held, and orally announced that in the meantime Erikson was enjoined from selling the property. On October 4, 1955, no other restraining order having been entered, and notwithstanding the appointment of the receiver for the property of Mrs. Manly, counsel for Erikson proceeded to sell the property described in the second loan deed of Mrs. Manly to Erikson, he being the purchaser at the sale, and a deed was accordingly executed to him. On October 14, 1955, the plaintiffs in Case No. 51726 filed an additional petition praying that rule nisi issue, requiring Erikson to show cause why he should not be adjudged in contempt of court for having proceeded with the sale on October 4, 1955, on which the judge entered an order directing Erikson to show cause on October 29, 1955, the hearing on the petition filed October 3, 1955, by these plaintiffs being continued to the same date. Erikson filed timely demurrers and answers to both these petitions. The hearing scheduled for October 29, 1955, was continued from time to time, and on February 8, 1956, the plaintiffs in Case No. 51726 filed a petition praying that the order entered on October 3, 1955, appointing a temporary receiver, be amended nunc pro tune to conform to oral announcement made by the judge at the hearing on October 3, 1955, by adding thereto the following: "and it is further ordered that the defendant, J. R. Erikson, be enjoined from proceeding with the foreclosure under the power of sale of the loan deed held by said J. R. Erikson on the property of the defendant, Mrs. D. C. Manly, located at 8246 Roberts Drive until further order of this court and that this interlocutory hearing *425 be continued until 10 a. m., October 14, 1955." The hearing on this petition was held on February 13, 1956, and an order was entered amending the previous order nunc pro tune as prayed. On the same date a hearing was held on the petition seeking to have Erikson adjudged in contempt for proceeding with the sale on October 4, 1955, and at the conclusion of the hearing an order was entered adjudging Erikson in contempt, but providing that he might purge himself by executing and delivering a quitclaim deed conveying the property described as 8246 Roberts Drive for the purpose of nullifying the foreclosure deed recorded in Deed Book 3066, page 625, Fulton County records, but without affecting the security deed executed by Mrs. Manly to Erikson, and upon his failure to do so within thirty days, that he be remanded to the custody of the sheriff.
To the order of the court entering nunc pro tune the order announced on October 3, 1955, and to the order and judgment adjudging Erikson in contempt he excepts. Held:
1. A person who has, by the order of a court of competent jurisdiction, been appointed receiver of designated property becomes an executive officer of the court which appointed him, and the property received by him is in custodia legis. Tindall v. Nisbet, 113 Ga. 1114 (39 S.E. 450, 55 L. R. A. 225). It is the duty of the court to protect from interference the property in its possession through its receiver, an officer of the court (Marshall v. Lockett, 76 Ga. 289, 290), and property held in custodia legis by virtue of a duty appointed receiver cannot be sold so as to interfere with the possession of the receiver (McKoy v. Bush, 200 Ga. 759, 760 (2), 38 S.E.2d 669), and such an attempted sale without leave of the court is void. Coker v. Norman, 162 Ga. 238 (133 S.E. 243). One who by such a sale undertakes to interfere with the possession of the court may be punished for contempt. Wikle v. Silva, 70 Ga. 717. See also Vestel v. Tasker, 123 Ga. 213 (51 S.E. 300); Hall v. Stulb, 126 Ga. 521, 522 (55 S.E. 172).
(a) Since the evidence in this case shows that the first loan on the property at 8246 Roberts Drive amounted to $13,250, and the second loan held by Erikson amounted to $4,032.92, making a total of both loans of $17,282.92, and the property was valued at $25,000, the contention of the plaintiff in error that, at the time of the appointment of a receiver for the properties of Mrs. Manly, she had no interest in the property, and that the receiver therefore took no interest in this property, is without merit. See Owens v. Keeney, 146 Ga. 257, 259 (91 S.E. 65).
2. Irrespective of the question of whether the court had authority at a subsequent term to amend its order of October 3, 1955, nunc pro tune so as to include therein a temporary restraining order previously orally announced, it was not an abuse of discretion for the trial judge to adjudge the plaintiff in error in contempt for interference with property in the hands of its receiver by an attempted sale thereof without leave of the court. Warner v. Martin, 124 Ga. 387 (2) (52 S.E. 446); Carroll v. Celanese Corporation of America, 205 Ga. 493 (4) (54 S.E.2d 221).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
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