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https://www.courtlistener.com/api/rest/v3/opinions/3433524/ | The indictment in this case charges the defendant with the crime of murder in the first degree. It is the claim of the State that he assaulted, and in some way inflicted severe injuries upon, his wife, and then thrust the trunk of 1. HOMICIDE: her body into the ash pit of the furnace in the corpus basement of his home, and dumped the fire upon delicti: her face and body until it was severely burned. circumstan- Whether viewed from the standpoint of the tial prosecution or of the defendant, the tragedy was evidence. a gruesome one, and the conduct of the defendant repulsive and brutal in the extreme.
The family of the defendant consisted of himself, the deceased, and nine children, — seven sons and two daughters, — all of whom resided at the home at 1308 Court Street, Sioux City. The tragedy occurred sometime in the forenoon of February 3, 1926. Russell and Mary Solomon, aged 14 and 12 years, respectively, testified that they went to school in the morning of the day in question, and returned about 12:30. They attended different schools, and Russell was the first to arrive home for dinner. The lunch was prepared by the defendant, and served in the kitchen. The children inquired for their mother, and were informed by the defendant that she had gone down town. They repeated the inquiry when they returned home from school, and were again informed that their mother had not yet returned. Clarence testified that he talked with his mother about 11:15, requesting her to lay out some clothing for him which he desired to put on when he came home. She complied with his request. Maurice, who was 23 years of age, came home early in the evening, and, discovering the absence of his mother, inquired of the defendant where she was. The defendant told him that she had been burned, and was in the basement. The father and son went immediately to the basement, and found the body lying upon a pile of rags in the fruit room, completely covered up with clothing and other rags. Maurice then immediately, which was approximately 7 o'clock in the evening, telephoned Dr. Keeffe, telling *Page 956
him that his mother was dead, and requesting him to come at once. When Dr. Keeffe arrived, he found the body in the fruit room, covered as above stated. A light was obtained, and he observed the condition of the body above the waistline. He testified that she had been dead eight or ten hours. The coroner and several police officers were called, and the body removed to the undertaking rooms. Subsequent examination of the body by the coroner and others disclosed that the right wrist was fractured; that the skin on one knee was torn loose; that there were blood clots under the scalp in the back part of the head; that there was a depression in the skin on the forehead, which looked as though she might have been struck with some instrument. The hair was burned off the head; the face and breasts and other parts of the body above the navel were charred, and the arms were severely burned; all of the clothing worn by her approximately above the waistline was completely consumed by fire, except that about eight inches of her dress sleeves were discovered in a basket of ashes in the basement. There were also some hairpins and a bundle of false hair in the ashes. The clothing removed from the body consisted of a house dress, a black skirt, and a suit of fleece-lined underclothing, removed, as above stated, and a pair of hose. She had on no shoes. The burned portion of the body was marked by a definite line across her body a little above the navel. Medical experts examined on behalf of the State testified that death was probably due to asphyxiation resulting from the burns.
The explanation offered by the defendant to his family, Dr. Keeffe, and the officers was that he was sleeping, and, awakened around 11 o'clock by the smell of smoke, he went to the basement, and found his wife lying on the floor in front of the furnace, with the furnace door open, her body burned, as described; that he threw water upon her clothing, put the fire out, and carried the body into the fruit room, laid it on some rags, and covered it up as it was when viewed by Maurice and the doctor in the evening. Defendant gave as his reason for not informing the children of the death of their mother when they returned from school at noon that he did not want to worry them, and he stated that he did not call the officers because he did not want to bother them. He said that he did not call his son Maurice, who was manager of a grocery store in Sioux City, as he could *Page 957
not hear well over the telephone. He did not, in any statement made by him, claim to have heard screams or any outcry from the basement. There were no marks upon the back of the deceased. Here hands were burned, but not so badly as her body.
Two propositions upon which a reversal is asked are urged by appellant: (a) That the State failed to prove the corpus delicti;
and (b) that the evidence is insufficient to convict the defendant.
As already appears, the evidence introduced by the State to prove the corpus delicti and the commission of the crime by the defendant was largely circumstantial. That the same may be so proven is well settled in this state. State v. Kelley, 193 Iowa 62; State v. Grba, 196 Iowa 241; State v. Townsend, 191 Iowa 362.
First, as to the corpus delicti. The theory of the defendant that the clothing of the deceased was set on fire by a puff or blaze from the furnace when the door was opened by her is, it seems to us, overcome by every rational fact and hypothesis of the case. An examination of the furnace made on the evening of the tragedy disclosed that strings of soot several inches in length were hanging in front of, and adjacent to, the upper furnace door. A puff of the furnace sufficient to carry a blaze to the clothing of the deceased would probably have blown away these strings of soot. While several hours elapsed after the tragedy and before the clothing was removed by the coroner, it was not damp, nor was there any indication upon the floor of the basement that water had been poured upon the body, as claimed by the defendant. The ashes were all removed from the furnace and dumped into a bucket, in which the pieces of the dress sleeves and the false hair were found. One of the sons requested the doctor, when he arrived, to watch the actions of his father, and said to one of the police officers, in reply to an inquiry, that he "thought Dad did it." The admission of this testimony is not complained of. He further stated that his father and mother had quarreled, a few days before. The removal of the body to the fruit room and its concealment in the manner stated are so utterly inconsistent with every instinct of humanity that it is next to impossible to believe that any husband who was innocent could be so brutal as to thus dispose of the body of his deceased wife immediately after she had met death in the horrible *Page 958
manner indicated. It is unbelievable that he would not have called a physician, or that he would have lied to his children about it and gone about the affairs of the household in a manner not to attract the attention or arouse the suspicion of the children. Mary testified that she went to the basement to feed some kittens, and that she neither saw nor observed anything out of the ordinary, except that she closed a basement window. She did not go into the fruit room. The clothing worn by the deceased at the time would have been consumed quickly, and would not have charred the body. Ashes and cinders were found in the right hand, in the ears, upon the body, and particularly at the elbow of the deceased. The ashes, and particularly the cinders, could not have come from the burned clothing. The portion of the body showing that the burns extended to a well defined line just above the navel is a circumstance entitled to great weight, as tending to show that the body was thrust into the furnace. The clothing below the waistline was not burned.
The further affirmative contention of appellant is that the opening into the ash box of the furnace was not sufficient to admit the body. The deceased was a small, frail woman, 14 inches between the shoulders, 5 feet, 1 inch in height, and weighing about 100 pounds. Measurements taken of the furnace by a nephew of the defendant's disclosed that the door of the ash pit is 19 inches wide by 12 inches in height; that the distance from the floor of the ash pit to the grates was 7 3/4 inches; that it is 17 1/2 inches from the front door to where the ashes are discharged from the fire box, and 34 inches from the front door to the extreme back of the pit. The space between the grates and the bottom of the ash pit is, according to this measurement, very narrow. Other witnesses testified that they observed the size of the door and opening beneath the grates, and that in their opinion the body could easily have been inserted into the ash pit. The jury was permitted to view the furnace, at the request of the defendant and with the consent of the county attorney. None of the theories of appellant can reasonably account for the broken wrist and the injuries upon the knee and the head of the deceased. It is, of course, possible, as testified to by one of the medical witnesses, that a sudden puff from the furnace directly in the face might produce strangulation and cause the injured person to throw her arms in an effort to breathe, and that the *Page 959
deceased might have struck the furnace door, causing the injuries stated. The theory has little to support it, especially in the light of all that the defendant did.
The defendant, according to his naturalization papers, — which is about all that is known about it, — was 73 years of age at the time of the tragedy. His nationality is not disclosed by the record, but it was stated in oral argument that he is a Syrian. He was for 20 or 25 years engaged in the confectionery business at Albert Lea, Minnesota, retiring and moving to Sioux City 5 or 6 years prior to February 3, 1926.
The conduct of the defendant was such as to make it difficult to consider the facts and circumstances with a due appreciation of his claims of innocence. It is impossible to reconcile his conduct with any rational theory or hypothesis of innocence. If a crime was committed, he alone is guilty thereof. Just what the motive may have been, is not disclosed by direct evidence; but proof of motive is not essential to conviction. If the commission of the crime alleged is otherwise established by the requisite proof, that is sufficient.
It is urged by his counsel that the circumstances must be of such a character and the proof thereof so indubitable as to exclude every other rational hypothesis except that of guilt. Accepting this as the rule, it seems to us that the circumstances fully meet its requirements. There is no doubt in the minds of the members of this court that the defendant deliberately took the life of his wife, either by a blow upon her head or by placing the trunk of her body in the furnace and dumping the fire upon it, causing strangulation. The deceased was stunned or unconscious from some other cause when her body was placed in the furnace, as she evidently made no resistance. It is conceded by appellant that proper instructions were given to the jury; and the two propositions above discussed, together 2. CRIMINAL with the contention that there was misconduct on LAW: new the part of the county attorney in argument to trial: the jury, constitute the only matters relied misconduct upon for reversal. The exact point urged is that of the county attorney referred to the failure of prosecutor: the defendant to testify in his own behalf. We argument shall not set out the language complained of, in re but suffice it to say that it did not violate undisputed the statute. It is not improper for the county facts. attorney to call the jury's attention to the fact *Page 960
that certain evidence is not contradicted, although the defendant alone might do so. State v. Hasty, 121 Iowa 507; State v. Riley,177 Iowa 313; State v. Gibson, 199 Iowa 177. The argument complained of, in effect, goes no further than to call attention to certain testimony which was uncontradicted by any witness. Moreover, no proper record of the alleged misconduct appears to have been preserved.
The judgment of the court is affirmed. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433525/ | W.W. McElrath, a resident of Moville in Woodbury County, Iowa, died testate May 6, 1926. He willed all of his property to his sons, Ralph McElrath and Fred McElrath, as trustees. The record does not disclose the provisions of the trust but apparently all of his children were the beneficiaries. Ralph was nominated as executor by the will and was appointed and qualified. The children, in addition to Ralph and Fred, were Roy W. McElrath, Minnie M. Payne, Edith M. Hogue, Maude M. Kusian, Alice H. McElrath, Will McElrath, Eva M. Southwick, and Helen Logan. The last named made a settlement and assigned her interest in the estate to the other children. She has no interest in this litigation. The deceased and the family apparently operated, or were largely interested in, two banks: the Moville State Bank and the Lawton Savings Bank.
The executor, in his inventory as of the date of decedent's death, divided promissory notes of the estate into three classes: *Page 1241
(1) worth face value with accrued interest, aggregating $155,790.46 (2) those worth approximately twenty per cent of their face and interest, $33,828.52 (3) those of no value and uncollectible, $27,724.23. In the first class were notes of several of the children approximating $140,000, some with interest long past due. Some real estate, certificates of deposit, and shares of stock were also listed, including ninety-one shares of stock in the Moville State Bank and seventy-eight shares in the Lawton Savings Bank.
On July 31, 1930, Ralph McElrath, the executor, made his final report. He set out the real estate, consisting of forty acres of farm land and several town lots in Moville. He named the nine children, who were beneficiaries under the will, subject to the trust. He listed the promissory notes, most of which were those of the children. He stated that he had delivered all the property of the estate listed in the final report to himself and Fred McElrath, as trustees, in accord with the direction of the will. He asked for his discharge. Attached to the report was a waiver of notice of hearing on the report, an approval thereof, and consent that it might be presented to the court at its convenience. He was discharged and the estate closed.
On or about November 28, 1930, the trustees made their final report stating that they had received from the executor all personal property belonging to the estate and had taken charge of all real estate of which the decedent died seized; that the only persons interested in the estate are the children of decedent, except Helen Logan; that "said trustees have converted said real estate into cash, and that all personal property and money which came into possession of said trustees, and all money realized from sale of real estate has been divided between beneficiaries under last will and testament of W.W. McElrath, deceased, and heirs at law of Alice L. McElrath [surviving spouse of deceased who took an undivided one third under the will and died intestate May 16, 1929], other than Helen Logan * * * and that hereto attached is instrument signed by Eva M. Southwick [et al., naming all of said children] ratifying and confirming acts of said trustees in sale of said real estate, and acknowledging receipt in full of all their share of the personal *Page 1242
estate of W.W. McElrath, deceased, and acknowledging receipt in full of all sums due them out of the proceeds of sale of real estate, and waiving notice of time and place of hearing on this final report and consenting that the same may be approved at any time which may suit the convenience of the court." The trustees prayed for the approval of their report, and for their discharge. The report was signed and sworn to by Ralph and Fred McElrath, as trustees.
Attached to the final report is the waiver, consent, and receipt referred to therein, signed by all of the nine children on November 28, 1930, which instrument also recites, we "hereby waive any objection to such sale [of real estate] and manner in which same was made, by reason of possibility that it might have been necessary to have such property appraised, and sale approved after notice to interested parties, and also waive all objection which we may or might make on account of said Ralph McElrath and Fred McElrath being joint purchasers and grantees of such real estate, and waive any and all objections of every kind and nature which we may or might make to such sale of such real estate by said trustees." The trustees were discharged on the filing of their report, according to the testimony of Fred McElrath, as a witness for the plaintiff. This discharge was in December 1930.
There was received in evidence the "Notice Of Incorporation of McElrath Estate, Incorporated," bearing date of July 3, 1930, and signed "McElrath Estate, Incorporated, By Ralph McElrath, President, By Edith Hogue, Secretary." It recited the name of the corporation; its place of business at Moville, Iowa; the general nature of its business — the acquiring, selling, dealing in real estate, money, commercial paper, etc,; its capital stock of $180,000, to be issued when paid for; the commencement of its business on June 13, 1930, and its continuation for twenty years; the conduct of its business by a board of directors of nine members, to be constituted of and by the nine children until the next annual meeting; and the limit of its indebtedness and exemption of the private property of its stockholders. The minutes of the first meeting of its board on July 1, 1930, directed the publication of the notice, provided for the corporate seal, form of stock certificate, and bylaws. *Page 1243
Ralph McElrath was chosen president and Edith M. Hogue secretary. Its articles of incorporation were signed and acknowledged by all of the children on June 9, 1930, and filed and recorded on June 25, 1930. The certificate of incorporation was issued by the secretary of state on or about June 13, 1930. Few meetings of the board were ever held, and its minutes, records, and books are missing in large part.
The claim filed by the corporation states that the real estate and personal property of the W.W. McElrath estate, listed in Exhibits A and B, attached to the claim, became the property of the corporation and were received by Ralph McElrath, as its president and manager. The answer and resistance to the claim filed by defendants admits "that the only business transacted by said corporation was that it took title from the beneficiaries under the trust above referred to — to certain real estate, which was * * * conveyed to the receiver of Lawton Savings Bank and Moville State Bank, in full settlement and satisfaction of stock assessment or assessments levied against W.W. McElrath or W.W. McElrath estate * * * and has never carried on any further business of any kind."
After the death of W.W. McElrath the said banks continued in operation by members of his family. Fred McElrath was the cashier of the Moville State Bank and Roy McElrath was its president until both banks were closed because of insolvency by the state banking department in October 1931. One of the disputed questions of fact is the number of shares of stock which W.W. McElrath or his estate owned at and prior to the closing of the banks. The claim of plaintiff states that the value of the property "conveyed to said Banking Department was substantially in excess of the assessments owing on ninety-one shares of stock in the Moville State Bank and seventy-eight shares of stock in the Lawton Savings Bank." The claim also states that certificate No. 49 of the stock book of the Moville State Bank shows that on July 7, 1931, "Ralph McElrath conveyed one hundred seventeen shares of stock to W.W. McElrath Estate. That no estate was in existence at said time * * *." However, the record herein shows that certificate No. 54, for one hundred seventeen shares, was issued on July 7, *Page 1244
1931, by Roy McElrath, president, and Fred McElrath, cashier, and certifies that the "W.W. McElrath Estate, is the owner of 117 shares of one hundred dollars each of the capital stock" of said bank.
Fred McElrath testified that the minutes of the bank meeting held on July 2, 1925, of which he, as cashier, was secretary, state that: "198 shares of stock were transferred that day; 117 shares to Ralph McElrath (Stock Certificate No. 49) and 81 shares to Fred McElrath (Stock Certificate No. 50) which was the complete stock owned by W.W. McElrath before his death; that from 1925 to July 7th, 1931, when Ralph transferred 117 shares W.W. McElrath Estate for [or] the corporation owned no stock in the bank; that Ralph McElrath as executor of the estate of W.W. McElrath did list 91 shares of stock in Exhibit B which is the inventory signed by Ralph McElrath and also in Exhibit A the commission for appraisal signed by Ralph McElrath." On cross-examination Fred testified "that 198 shares of bank stock were transferred to him and to Ralph McElrath, 81 shares to himself, 117 shares to Ralph; that the witness gave his note for the 81 shares. The note was taken up when he transferred the shares to Ralph and Ralph gave his note for $19,800.00 to the father W.W. McElrath." On redirect examination Fred testified that the note he gave for the eighty-one shares of stock had been canceled prior to the time of his father's death. Among the notes received by the trustees from the executor were notes of $58,108.58 owing by Ralph, $12,500 owing by Fred, $16,510 owing by Roy, $23,000 by M.E. Southwick, $5,575 by R.I. Payne, $11,621.13 by Maude Kusian, $4,500 by E.M. Hogue, $11,538.32 (worthless) by William McElrath, all with accrued interest. Possibly Ralph never paid his father the $19,800 note for the one hundred ninety-eight shares of stock, which accounted for the issuance of certificate No. 54 for one hundred seventeen shares to the W.W. McElrath Estate on July 7, 1931.
On September 14, 1932, in Andrew, Superintendent of Banking, v. Moville State Bank, the receivership action pending in the District Court of Woodbury County, Iowa, the plaintiff, as receiver, made application for an order to amend the inventory of stock and stockholders filed therein, alleging that *Page 1245
"through error and neglect of the officers of said bank certain bona fide sales and transfers of stock were not entered in the books of said bank, and that said transfers were all made more than one year prior to the closing of said bank." He asked that the inventory be amended to show the true and correct list of stockholders and the shares of stock held by each to be: "W.W. McElrath Estate 208, Ralph McElrath 60, Fred McElrath 20, Roy McElrath 15, Eva Southwick 25, S.E. Sibley 10, R.J. Anderson 5, S.F. France 5, Julius Pfeiffer 1, George Wilson 1." The district court granted the order, Judge R.A. Oliver, presiding.
On April 24, 1933, in the receivership action of Andrew v. Lawton Savings Bank, pending in Woodbury county, the receiver made application alleging that the McElrath Estate was the owner of seventy-six shares of the capital stock of the Lawton Savings Bank at the time of the receivership, and said estate became liable for stock assessment for $7,600; that said estate is now a corporation holding the assets of W.W. McElrath, deceased, for the benefit of the heirs of said W.W. McElrath, and that "insofar as your Receiver can learn said estate, through its proper corporate officers, has executed to your Receiver deeds to all its real estate [here follows a list of a considerable number of lots in Moville, four in Lawton, and forty acres of land which were appraised in the inventory of the executor at $8,250]. Also the following promissory notes [have been delivered to the receiver] executed by the named makers, and in favor of said estate or said corporation [here follows a list of seven notes in the total amount of $19,104.68 having an estimated value, according to the record before us, of $6,531]"; that said corporation has also assigned to the receiver notes in the Moville State Bank entered as McElrath Estate farm account for $1,750 constituting an indebtedness of the farms to the estate; that the corporation has also assigned a deposit account in the Lawton Savings Bank in the sum of $5,219.69 (the value of this deposit depends upon the percentage of the bank's solvency, which the record does not show); that all of the said conveyances and transfers have been made by the estate as a proposed settlement of the liability of the estate on its stock assessment on seventy-six shares held in the Lawton *Page 1246
Savings Bank and two hundred eight shares held in the Moville State Bank; "That your Receiver is informed and believes that the foregoing property * * * constitutes all the property owned by said corporation * * * your Receiver believes * * * the * * * proposition [should] be accepted"; that in addition to the proposition of compromise and settlement W.W. McElrath and Ralph McElrath signed certain guaranties on April 3, 1924, amounting to the sum of $40,767.75, guaranteeing certain bills receivable as required by the banking department, and that because of the property delivered to the receiver, and the fact that Ralph McElrath, the other signer on the guaranty was released from all liability thereon by a court order in the receivership on August 5, 1932, at which time a settlement was made on his stock assessment, the liability of the McElrath Estate, Inc. under these guaranties be fully eliminated; "That there is pending in this Court a suit against stockholders of said bank on their liability for assessment, and in the event that a compromise is authorized herein, said suit should be dismissed in reference to the McElrath Estate, Inc., Ralph McElrath, Fred McElrath and Roy McElrath, as said suit involves the same liabilities as those referred to herein."
On April 24, 1933, in the receivership suit against the Moville State Bank, the receiver made application for an order settling the liability of various stockholders, alleging that the liability for an assessment of one hundred per cent on the par value of the stock had been settled by full cash payments made by S.E. Sibley, R.J. Anderson, S.R. France, and Julius Pfeiffer, "and in the case of Ralph McElrath by the execution to your Receiver of a first mortgage on real estate for the full value of his assessment under authority of an order of this Court; that the remaining stockholders are W.W. McElrath, now deceased, 208 shares, Fred McElrath, 20 shares, Eva Southwick, 20 shares, Roy McElrath, 15 shares * * * who have each offered settlements of their respective stockholder's liability, which settlements have been recommended for approval by the appraisers * * *."
On May 6, 1933, the applications noted above were heard by Judge Wakefield and the orders were granted as prayed. *Page 1247
On March 30, 1933, two deeds — one a quitclaim and the other a warranty — were executed to L.A. Andrew, as receiver of the two said insolvent banks, conveying to the grantee all of the real estate hereinbefore referred to, by McElrath Estate, Inc., by Ralph McElrath, president, and by Edith Hogue, secretary. In the acknowledgment of execution of each deed is the statement "that said instrument was signed and sealed in behalf of said corporation, by authority of its Board of Directors." Each deed was filed for record on April 11, 1933.
The claim of plaintiff was first filed on July 3, 1944, and an amended and substituted claim was filed on October 19, 1944, and on January 21, 1946, the substituted claim, on which trial was had, was filed. The latter claim states that it was "in substitution of the amended and substituted claim of W.W. McElrath, Inc." It purports to be, and in fact is, the claim only of Fred McElrath, although it is signed "Fred McElrath, Pres." The affidavit is:
"I, Fred McElrath, being first duly sworn, on my oath depose and say: That I am the claimant above named; that I have read the above claim and know the contents thereof and the statements therein contained are true as I verily believe."
The substance of the claim is that the compromise settlement was not authorized by the beneficial owners of the property, and that the issuance of the certificate for one hundred seventeen shares on July 7, 1931, to the W.W. McElrath Estate after it was closed did not make it liable for the stock assessment on said shares.
But whether the claim be treated as his or that of the corporation is quite immaterial, as in either case the judgment must be affirmed.
The court made twelve findings of fact: (1) That Ralph McElrath was discharged as trustee on or about December 1, 1930, and thereafter was never accountable as such trustee of personal property belonging to the estate (2, 3) that he was never trustee of any personal property belonging to the corporation (4) that the real estate owned by W.W. McElrath at his death was conveyed to the corporation prior to March 30, 1930, by the beneficiaries under the will (5) that the real estate was *Page 1248
conveyed by the corporation to the superintendent of banking (6, 7) that the stock assessment liability was as alleged in the answer, and was a proper basis for settlement (8) that the deeds to Andrew were duly recorded on April 12, 1933 (9) that Ralph McElrath resided continuously at Moville from prior to 1932 until his death on December 28, 1943 (10) that Fred McElrath, representing himself as president of the corporation, admits that he knew of the conveyances to Andrew shortly after they were made (11) that Fred McElrath and all other parties interested in said corporation resided in Moville or vicinity during all of the time from March 30, 1933, to December 28, 1943, the date of the death of Ralph McElrath (12) that the grantee in said deeds to the superintendent of banking took possession of the land conveyed on or about March 30, 1933, and was in possession thereafter to December 28, 1943.
As conclusions of law the court found that Ralph McElrath was not the trustee of any personal property which ever belonged to the corporation, and never became accountable to the corporation for any misuse of the same, or use of the same without the authority of the parties interested in the corporation; that the recording of the deeds was constructive notice to all persons claiming any interest in the real estate; that no fraud was alleged or proven; that conveyance of the real estate to Andrew was proper without authority of the parties interested in the corporation, without timely objection, or any claim ever made against Ralph McElrath; that the claim was barred by the statute of limitations and by laches.
I. Fred McElrath was the only witness for claimant. None of his brothers or sisters, so far as the record shows, has taken any part in pressing the claim. He introduced minutes of a special meeting of the stockholders of McElrath Estate, Inc., in September 1944, to fill the vacancies left by the death of two officers. He was elected president. The annual meeting was held July 7, 1945, at which the election of the officers at the special meeting was approved. The original claim was filed on July 3, 1944, prior to the special meeting. No action by the board or stockholders authorizing the filing of the claim appears in the record. He was active in his father's business. He approved the executor's final report. He was a trustee *Page 1249
under his father's will and active in the performance of his duties, including the closing of the trust. He was an officer of the Moville State Bank from a time prior to his father's death until the bank closed. He and his brother Roy issued the certificate for one hundred seventeen shares of stock to his father's estate. It may be assumed that he thought the stock belonged to his father. His chief complaint is that this was a scheme of Ralph's to shunt the assessment liability therefor from himself to the estate. He concedes in the statement of his claim that his father's estate was the owner of ninety-one shares of stock in the Moville bank and of seventy-eight in the Lawton bank. The minute book of the Moville bank, of July 2, 1931, shows the ownership of ninety-one shares in the estate. The receivership proceedings indicated the ownership of two hundred eight shares in the father's estate. The record sustains the court's finding that the assessment liability was a proper basis for the transfer of the property to the banking department.
The court found that none of the personal property ever was a part of the corporate assets. We seriously question whether the record sustains this finding. It is true that the children approved the final report of the trustees, which stated that they had received all of the personal property and the proceeds of the sale of the realty, but we conclude that they merely meant that they received it through the medium of the incorporation of the estate. The corporation transferred promissory notes and a certificate of deposit to the banking department. It must have possessed them and had the right to convey them. The corporation was organized to take over both the real and personal property for the benefit of the children. They were the beneficiaries of the corporate trust and active in its administration. Their interest was subject to diminution by the enforcement of the assessment liability, which ultimately left no trust property to be administered. However, this finding of the court in no way affects the rightness of the court's judgment.
[1, 2] The conclusion of the court that the claim is barred both by the statutes of limitation and by laches is sound. The court in the bank receivership proceedings approved the compromise *Page 1250
and settlement of the stock assessment liability by the transfer of the real estate and the personal property on May 6, 1933. The deeds had been executed on March 30, 1933, and recorded on April 12, 1933. Over ten years passed before any proceeding on the claim was begun. Plaintiff does not contend that the statutory period of limitation had not passed, but insists that the statute had not run against the claim because of the trust relation which had existed between Ralph McElrath as trustee and the corporation and its stockholders as beneficiaries. Plaintiff argues that Ralph McElrath perpetrated a fraud upon the W.W. McElrath estate and the McElrath Estate, Inc., when, to avoid an anticipated assessment liability thereon to himself, he transferred the one hundred seventeen shares of stock in the Moville State Bank to his father's estate, which eventually resulted in a fraud upon the stockholders or beneficiaries of the corporation. Plaintiff relies upon the principle of law stated in Spring v. Spring,210 Iowa 1124, 1128, 229 N.W. 147, 149, to wit:
"A trustee is presumed to hold his title, as such, in the interest of his beneficiary, and not in hostility thereto. Mere lapse of time, therefore, without more, does not start the statute of limitations."
The rule is well settled but it does not aid plaintiff under the record herein. It has not brought itself within the scope of the rule. It relies upon fraud but it did not plead it, and, in our judgment, fraud on the part of Ralph was not established. The certificate was issued by Roy McElrath and Fred McElrath, as president and cashier, respectively, of the bank. There is no evidence that Ralph ever requested or directed that it be done. If it was fraud, Roy and Fred, two of the beneficiaries of the alleged trust, participated in it, and had knowledge of what was done. The rule or principle of law quoted above states that "mere lapse of time, without more, does not start the statute of limitations." (Italics supplied.) There was something more. It is a well-settled rule that when a trustee violates his trust, or denies it, or repudiates it, to the knowledge of the beneficiary, a cause of action against the trustee *Page 1251
immediately accrues to the beneficiary, thereby causing the statute of limitations to at once begin to run against the cause of action. If the transfer of stock was a fraud upon decedent's estate and the corporation and the beneficiaries of both, and a breach of the trust, two of those beneficiaries, Fred and Roy McElrath, had full knowledge of it when it was done, on July 7, 1931. If the conveyance of the land to the State Banking Department was without authority, and a fraud upon the corporation and its stockholders and a breach of the trust, the evidence in the case warrants a finding that each of the children had actual knowledge of these matters. They constituted the board of directors of the corporation. The acknowledgment of the execution of each deed states that it was executed in behalf of the corporation and by the authority of its board. Not one of the children denied it but Fred, and he testified that he knew of the execution of the deeds shortly after it was done, and talked with Ralph several times about the transfer of the property. Edith M. Hogue, one of the children, executed the deed as secretary of the corporation. The record of the deeds was constructive notice to anyone adversely interested. Fred McElrath testified that notices of suit against the estate of decedent and the corporation were served upon the children. Similar suits were brought against several of the children — Fred, Roy, Will, Mrs. Kusian, Mrs. Southwick. They were all compromised and settled after negotiations. The settlement of the suits against the estate and those against the children were all somewhat tied together. To say that the children had no knowledge of the transfer of the real estate and the personal property in the settlement of the stock assessment liability of the estate, would be disregarding the evidence and all reasonable inferences therefrom. The settlement required the transfer of all the remaining assets of the estate of the deceased. The corporation had no other property. Whatever trust existed became a dry trust, with no benefits thereafter accruing or passing to the beneficiaries. The corporation had no further reason for its existence, and the evidence establishes that it did no further business for over ten years, until the special meeting in September 1944. Such cause of action as the corporation or its stockholders and beneficiaries had against Ralph McElrath *Page 1252
accrued more than ten years before the institution of the proceeding on this claim, notwithstanding a trust may have once existed, because of full knowledge of each beneficiary of just what Ralph McElrath had done as trustee. They knew that trust had been totally destroyed over ten years before.
Numerous decisions sustain our conclusion. See Carr v. Craig,138 Iowa 526, 532, 533, 116 N.W. 720; Zunkel v. Colson, 109 Iowa 695, 698, 81 N.W. 175; Smith v. Smith, 132 Iowa 700, 704, 705, 109 N.W. 194, 119 Am. St. Rep. 581; Peters v. Jones, 35 Iowa 512, 520, 521; Wilson v. Green, Weare Benton, 49 Iowa 251, 253, 254; Blackett v. Ziegler, 147 Iowa 167, 171-174, 125 N.W. 874; In re Estate of Mahin, 161 Iowa 459, 471, 143 N.W. 420; Parmenter v. Parmenter, 157 Iowa 195, 203, 138 N.W. 438; Howes v. Sutton,221 Iowa 1326, 1330, 268 N.W. 164.
[3] II. Courts have uniformly looked with disfavor upon stale claims. The trial court held plaintiff was barred by laches in its prosecution of the claim. All of the children of the decedent lived in Moville or its vicinity during the occurrences complained of and for more than ten years thereafter. No complaint, so far as the record shows, was ever made by any of the children against Ralph. But after his death, and when Ralph could no longer answer the charges or defend his estate, when evidence was no longer procurable or less available, after the lapse of more than ten years, his brother Fred, who was at all times fully informed respecting all matters complained of, started this proceeding. The prosecution of this unduly stale claim is unfair and prejudicial to Ralph's estate. Plaintiff bases his right to now prosecute upon the trust relation — an equitable ground — and the court was justified in holding that it would be inequitable to grant the relief. The judgment of the able and experienced trial court, just recently passed away, is sustained by the evidence and record. It should be, and it is — Affirmed.
OLIVER, C.J., and HALE, GARFIELD, SMITH, MANTZ, MULRONEY, and HAYS, JJ., concur. *Page 1253 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433526/ | W.B. Puckett, age eighty-two, a long-time resident of Woodbine, Iowa, executed the proposed will on July 20, 1946. He died October 5, 1947. His wife died in November 1935. Three children were born to them. One died in infancy. One daughter, Mrs. Clyde Crowder, died at the birth of her only child, Esther Ambrose, the contestant. The deceased's other daughter, Mrs. Roy Crowder, preceded him in death, and was survived by four children, the proponents Beth Clausen, Bertha Redman, and John and Earl Crowder. The proponent Robert Sullivan was named as executor of the will. Deceased owned his residence in Woodbine and farm land in Shelby and Harrison counties, and personal property. Had deceased died intestate, Mrs. Esther Ambrose, the contestant, would have received an undivided one half of decedent's property, and the other four grandchildren would have received the other half.
Under the proposed will, Mrs. Ethel Waddell, who had been the testator's housekeeper from March 1937 until his death, was given his automobile and all the household property in his home. The remainder of his property was given in equal shares to his five grandchildren, subject to the provision that the farms and equipment should be operated under control of the executor for five years after testator's death and the net profits divided annually among the grandchildren. *Page 988
The deceased had made earlier wills which had been deposited in the clerk of court's office and withdrawn, as shown by the signature of W.B. Puckett on the will register. Puckett had done his banking business with Robert Sullivan, but while the latter was in the service Puckett had transferred such business to the First National Bank of Woodbine. Robert Sullivan had operated the office at Panama, Iowa, of the State Bank of Portsmouth, to which office he returned in January 1946 after leaving the service. Sometime in June 1946 Puckett discussed with Earl E. DePue — who apparently had been designated executor in the will of Puckett — the making of a new will, giving his property equally to his grandchildren. He also discussed the same matter with J.E. Roundy, an old friend and business associate. DePue told Puckett that, since Sullivan was back, it might be better to name him as the executor. Puckett talked to Sullivan and the latter told him he would act as executor, but declined to draw the will, and suggested that a lawyer be employed to do so.
On July 15, 1946, Puckett and Mrs. Waddell went to the clerk's office at Logan, Iowa, and withdrew the will there on file, which was in a sealed envelope, and, on July 20, 1946, Puckett took it to a stenographer at the First National Bank of Woodbine. She testified that he asked her to make a copy of the will with but one change — the nature of which change she did not recall. While he waited she made an original and a carbon copy of the will. Except for the change she made an exact copy of the old will, including misspelling, punctuation and other errors. The will, as copied, consisted of two sheets of white legal cap paper. On the first sheet, paragraphed and single spaced, was the will itself and a blank line for the testator's signature, and also three lines of the attestation clause. The month and day of the date stated in the will and in attestation clause were left blank. On the second sheet, which was marked at the top with the numeral "II", were the last two lines of the attestation clause, with two blank lines for the signatures of the witnesses. The typist stapled the two sheets of the original, and the two sheets of the carbon copy, separately. The stapling machine was a common type using a wire staple which by a blow *Page 989
on the compressor forces the ends of the staple through the papers and clinches the staple on the other side. Each set of papers was fastened with two staples. Puckett left the bank with these papers and an envelope and arrived at his home about ten-thirty in the forenoon of July 20, 1946. He read the carbon copy and noticed that the date in the will and in the attestation clause was "1945", as in the old will, and that the address of Robert Sullivan was typed as "Logan" instead of "Panama". He had Mrs. Waddell correct the carbon copy by crossing out "Logan" and by inserting "Panama" just above, and by striking the figure "5" in each date line and inserting instead the figure "6", to make the year appear as "1946" in both places. She also filled in the day and the month in the will and the attestation clause to show the date was the "20 day of July, A.D., 1946." These corrections and changes were made by Mrs. Waddell with an indelible lead pencil which Puckett customarily carried. Shortly afterward, Frank Voss, the groceryman, delivered some groceries in the kitchen, and Mrs. Waddell told him to wait as Mr. Puckett wished to see him. Puckett then came into the room with the carbon copy in his hand and stated that it was his will, and asked Voss and Mrs. Waddell to witness his execution of the will. Puckett then signed his name to the will in the presence of Voss and Mrs. Waddell, and each of them, in the presence of the other and of Puckett, signed the attestation clause as witnesses. Puckett placed the executed will in the envelope and sealed it. Mrs. Waddell wrote the name "W.B. Puckett" on the outside of the envelope. Puckett and Mrs. Waddell then drove to the clerk of court's office at Logan, and the sealed envelope was left for safekeeping with the clerk. The envelope, Exhibit 1, by the rubber stamp of "Laura Leonard, Clerk" on it, shows that it was filed in her office on July 20, 1946.
The clerk of court testified to the filing of the will as noted above, and also that on October 6, 1947, in the presence of Mrs. Waddell, C.D. Erlewine, Mrs. Ambrose, and Mr. Elston (her lawyer) the envelope was opened and the will, Exhibit 1-a, was found therein and was read. The clerk fixed November 3, 1947, at ten a.m. as the time for probate. On November 1, 1947, Esther Ambrose, as contestant, filed written objections to the probate of the will on the following grounds: *Page 990
"* * *. 6. Said instrument shows that it is not subscribed to by two witnesses. That two persons subscribed their names to their certificate following the purported will did not constitute subscribing their names to the purported will. By reason of these facts the execution thereof was insufficient to make a valid will.
"7. Said instrument shows on its face that it was not witnessed by two competent and disinterested witnesses, by reason whereof the execution thereof was insufficient to make it a valid will."
On December 30, 1947, the contestant amended her objections by adding paragraph 8:
"That the said purported will of W.B. Puckett is not in fact his will for that it was not signed by him; that the purported signature of W.B. Puckett appearing thereon is in fact not his signature; that said purported will was not signed by some other person in his presence and by his express direction writing his name thereto."
Proponents, by answer, denied the allegations in the objections.
The trial to court was begun on April 2, 1948, and continued at intervening times until its conclusion on August 13, 1948. Each side, at the close of all testimony, moved for a directed verdict. The court stated that it would pass upon them in ruling on the merits of the case. The court concluded that the motions should be overruled and proceeded to find and hold that the evidence failed to sustain the contestant's objections to the will, but established that the will had been duly executed by the deceased and witnessed by two competent witnesses, all as provided by law.
We agree fully with the trial court's findings, conclusions and judgment.
The attesting clause of the will was as follows:
"We certify that on the 20 day of July 1946 at Woodbine, IowaW.B. Puckett to us personally known did in our presence sign theforegoing instrument and declare it to be his last will *Page 991 and testament, and we at his request and in his presence and in the presence of each other, do hereunto subscribe our names as witnesses.
Ethel Waddell Frank Voss." (Italics added.)
The italicized part of the clause appears on the first sheet of the instrument, Exhibit 1-a, on which the entire will is typed, and the part not italicized, including the signatures of the subscribing witnesses, is typed at the top of the second sheet. Just above the attestation clause, and just above the signature of the testator, and being the last three lines of the will, is the following sentence: "In witness whereof I have to this my last will and testament subscribed my name this 20 day of July 1946 in the presence of the hereinafter subscribed witnesses."
(Italics added.)
The signature of the testator and of each of the subscribing witnesses was made with an indelible lead pencil.
I. After providing (in chapter 633, Code of 1946) for the execution of certain verbal wills and wills of soldiers and sailors in certain situations, section 633.7 provides: "All other wills, to be valid, must be in writing, signed by the testator, or by some person in his presence and by his express direction writing his name thereto, and witnessed by two competent persons."
Code section 633.9 provides: "No subscribing witness to a will can derive any benefit therefrom unless it be signed by two competent and disinterested persons as witnesses thereto, besides himself, * * *."
[1] Ethel Waddell, by said section, was disqualified as a legatee, but not as a witness. See In re Estate of Rehard,163 Iowa 310, 313, 143 N.W. 1106, 1107, where the court said: "The apparent purpose of this statute is to save the competency of a witness to a will even at the expense of the benefit which he might otherwise receive thereunder." See also In re Will of Kenney, 213 Iowa 360, 364, 365, 239 N.W. 44, 78 A.L.R. 1189; In re Estate of Farley, 237 Iowa 1069, 1079, 1080, 24 N.W.2d 453. To avoid the statutory provision, she filed in the estate in the clerk's office on April 2, 1948 a written declination to accept under the will, which stated that she did not *Page 992
waive her right to file a claim against the estate of deceased for her services.
II. Contestant assigns twenty-two errors in support of her demand for reversal. Their similarity makes consideration of but a few of them necessary. Proponents' first witness was Frank Voss, a subscribing witness to the will. After stating his residence, business and long-time acquaintance with the testator, this examination followed:
"Q. I hand you what the reporter has marked Exhibit 1-a, purporting to be the last will and testament of W.B. Puckett, deceased, and I will ask you to state whether or not it bears your name and signature? (Objection "as incompetent, no sufficient foundation has been laid to show the competency of the witness", was overruled by the court.) A. Yes. I have my signature on it here. Q. At whose request did you sign your name to Exhibit 1-a? (Same objection was overruled.) A. Mr. Puckett. Q. And for what purpose did you sign your name to Exhibit 1-a? Mr. Havens: Objected to as calling for a conclusion and opinion of the witness, and incompetent, irrelevant and immaterial; and it does not appear his name is signed to the will or subscribed to it.
"Court: Overruled.
"A. It was to witness his signature. Q. I will ask you to examine Exhibit 1-a, and state whether or not the writing subscribed thereto, Ethel Waddell, was signed in your presence by her? A. It was. Q. State whether or not your signature was made in the presence of Ethel Waddell to Exhibit 1-a? A. Yes.
"Mr. Havens: Objected to as immaterial, irrelevant and incompetent.
"Court: Overruled.
"Q. State whether or not the signature of yours and Ethel Waddell were made in the presence of and at the request of the decedent?
"Mr. Havens: Same objection.
"Court: Overruled.
"A. They were. Q. What, if anything, did the decedent say to you and to the other witness concerning the nature of the instrument, Exhibit 1-a? *Page 993
"Mr. Havens: Objected to as incompetent, irrelevant and immaterial.
"Court: Overruled.
"A. Why, he said it was his will. Q. State whether or not the signature of the decedent, W.B. Puckett, on Exhibit 1-a was made by the decedent in your presence? A. It was. Q. State whether or not it was signed in the presence of Ethel Waddell also? A. We were all three there. Q. All three were present at the time it was signed? A. Yes, sir. Q. He signed in your presence and in her presence? A. That's right. Q. I will ask you to state whether or not you observed W.B. Puckett sign his name to Exhibit 1-a? (Objection of incompetent, irrelevant and immaterial was overruled.) A. I did, yes. Q. And who was present at the time he signed his name to Exhibit 1-a? (Same objection as last stated was overruled.) A. Ethel Waddell and Mr. Puckett and myself. Q. I would like to have you re-examine Exhibit 1-a and state whether or not it is in the same condition as the day you signed Exhibit 1-a as a witness?
"Mr. Havens: Objected to as calling for a conclusion of the witness and no sufficient foundation laid to show the competency of the witness to answer such a question.
"Court: Overruled.
"A. I would say, yes."
The cross-examination simply confirmed the direct examination. On redirect examination this question was asked the witness Voss:
"Q. Identifying Exhibit 1-a as pages 1 and 2, I will ask you to state whether or not pages 1 and 2 are identical and the same pages as were executed in the Puckett home that time you have testified to?
"Mr. Havens: Objected to as incompetent, calling for a conclusion of the witness; no sufficient foundation has been laid to show the competency of the witness on that point.
"Court: Overruled.
"A. I would say, yes."
Mrs. Ethel Waddell testified: *Page 994
"Exhibit 1-a bears my name and signature. I signed it at the request of Mr. Puckett. The signature of Mr. Puckett was made in the presence of Frank Voss. Mr. Puckett asked me to sign his will. When I signed it Mr. Puckett and Mr. Voss and I were present and we all three signed in the presence of each other. * * * Those four sheets of paper which Mr. Puckett had when he came back from the bank consisted of two sets of two sheets each and each set was stapled together. One was an original containing two sheets and the other was the duplicate copy. The duplicate carbon was the one that was actually executed which I have testified about."
The will, Exhibit 1-a, was offered and received in evidence at the close of the testimony of Mr. Voss, and was reoffered and received in evidence after Mrs. Waddell testified. To each offer this objection was made: "The contestant objects to the offer at this time on the ground the instrument has not been sufficiently identified as the last will and testament of W.B. Puckett." Each time the objection was overruled, and rightly overruled.
In argument in this court, contestant states:
"The first question illustrates wherein all of them involved in this division were improper. `I hand you what the reporter has marked Exhibit 1-a, purporting to be the last will and testament of W.B. Puckett, deceased, and I will ask you to state whether or not it bears your name and signature.' Objection being overruled, it produced the answer, in effect, that the witness had subscribed his name to the will. This was an ultimate fact for the court to determine and such answer was incompetent for this reason. And further, the testimony of this witness should have been confined to such foundational matters as were within his actual knowledge, such as that it was his signature on page two of Exhibit 1-a; that when testator signed his name on page one and declared it to be his last will and testament and requested him to witness it the two identical pages now appearing as parts of Exhibit 1-a were fastened together; etc. But without having first shown such foundational matters to be within the actual knowledge of the witness the question as stated simply calls for a conclusion. It is one thing to say that it was *Page 995
his signature on page two of the exhibit. That would be a matter within his own knowledge. But it is quite another thing to say that his signature on one sheet of paper is subscribed to an instrument purporting to be the last will and testament of W.B. Puckett when such will appears complete on another sheet of paper. Unless and until it was made to appear that such statement was based on actual knowledge that the two identical sheets constituted one instrument at the time it was signed it would be only conclusion and speculation.
"What we have said concerning the improper form of the question involved in error I applies generally to the questions involved in the other errors included in this division. Therefore, we consider it unnecessary to discuss each of them separately."
[2, 3] We have set out each question, objection and ruling of the court. We find no merit in the objections or in the supporting argument. Exhibit 1-a was one document consisting of two sheets of paper. On its face it appeared or purported to be the will of W.B. Puckett with an attestation clause for the witnesses to sign. At the top of the first sheet was the statement: "Last Will and Testament of W.B. Puckett." Voss testified that he saw the statement. Witnesses to a will do not ordinarily read its contents. Voss did not read this will. It was not necessary that he do so or know its contents in order to qualify himself as a witness to its execution. See Scott v. Hawk,107 Iowa 723, 725, 77 N.W. 467, 70 Am. St. Rep. 228. Puckett told him that it was his will and that he was going to sign or execute it and he asked Voss if he would witness his signing or execution. That was sufficient for Voss. He signified his willingness. He testified that Puckett signed the will in his presence and in the presence of Mrs. Waddell, to whom he had also announced that it was his will and had requested her to witness its execution. Puckett executed the will in the presence of Voss and Mrs. Waddell, and each of them in the presence of the other and of Puckett signed the attestation clause to evidence their witnessing of the execution of the will. Their testimony sufficiently establishes that the will was executed and witnessed as required by Code section 633.7, supra. Every answer given by Voss was not an opinion or conclusion but was a statement of a fact, to wit: *Page 996
Puckett announced to them that it was his will; he asked them to witness his signing of it; he signed it in the presence of each of them; and Voss and Mrs. Waddell signed in the presence of each other and of Puckett; the will, Exhibit 1-a, when shown to the witness at the trial was in the identical condition that it was when executed by the testator and witnessed by Mrs. Waddell and Voss. The statement in the question that the exhibit purported to be the will of Puckett may have been in the nature of an opinion or conclusion, but that was of no materiality. It was simply an identification for the record of an exhibit. The question would have been sufficient had it merely stated, "Does Exhibit 1-a bear your signature?" The exhibit on its face showed what it purported to be and it was for the court to determine what it was. The two sheets of the document were not only stapled together and identified as one instrument, but the sequence and connection of the words and the clarity and continuity of the thought expressed in the attestation clause showed that the two sheets were proper parts of one instrument — the will of Puckett and the attestation clause evidencing its execution. It is said in Roche v. Nason, 105 A.D. 256, 265, 93 N.Y.S. 565, 572, that: "Where a will consists of two or more pages of typewritten matter fastened together, and this is the physical condition at the testator's death, there is a presumption that the sheets were so bound together at the time of the execution thereof as a will."
[4] It is not essential to the validity of a will consisting of more than one sheet of paper that the sheets be fastened together. It is enough if they reasonably appear to be each a proper part of a completed will. As stated in 57 Am. Jur., Wills, 189, section 225:
"There is no dissent from the rule that a will may be valid although written on separate sheets of paper, if the several sheets are coherent in sense. * * * A persuasive element in favor of a will written on loose unconnected sheets is material sense, the correlation of thought identified and carried through each loose sheet." On page 188, section 224, of the same volume it is stated: "Without question, a valid will may be written on more than *Page 997
one piece of paper where the sheets are stapled together with a mechanical fastening."
In Sellards v. Kirby, 82 Kan. 291, 293, 108 P. 73, 28 L.R.A., N.S., 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214, the court said:
"As the first four pages happened to end with incomplete sentences, the connection of the subject matter made as effective a union of the several parts as could have been accomplished by their physical attachment. `It is a rudimental principle, that a will may be made on distinct papers. * * * It is sufficient that they are connected by their internal sense, by coherence or adaptation of parts.' (Wikoff's Appeal, 15 Pa. St. 281, 290, 53 Am. Dec. 597. See, also, 30 Am. Eng. Ency. of Law 580.) The sequence of the pages was indicated by figures placed at the top of each, as well as by the connection of the language * * *."
In Exhibit 1-a the second page is numbered, the two sheets were firmly stapled and are also clearly connected by the continuity and coherence of the typed statement thereon. The fact that the two sheets of paper constituted the complete and executed will of the testator is evidenced by the direct and competent testimony of two competent, disinterested and unimpeached witnesses.
The testimony objected to by the contestant was neither incompetent, immaterial, irrelevant, opinions or conclusions, and neither Voss nor Mrs. Waddell were incompetent witnesses.
Speaking of the attestation clause of the will, we said in In re Estate of Olson, 239 Iowa 1149, 1154, 34 N.W.2d 207, 210:
"Such a clause, reciting the observance of statutory requirements as to the execution of the will, raises a presumption of the due execution of such will, if proof is made of the genuineness of the signatures of the witnesses and testator. This is the general rule and so held in Iowa. [Citing cases.] And even where there is no attestation clause, the same presumption arises. * * * Also, the rule is that every presumption will be indulged in favor of the due execution of a will." (Citing cases.) *Page 998
[5] III. The testator was afflicted with palsy for ten or twelve years before his death which caused a tremor and shaking of his hands and arms. There is no claim made of any mental or testamentary incapacity of the testator. Any evidence in the record is all to the contrary. Over three hundred fifty of his canceled checks for the years of 1945, 1946 and 1947 show the transaction of much business of various kinds by him. Most of these checks were signed by him, but, because of his difficulty in writing, he customarily had the person to whom the check was given fill out the blanks in the check and then he would sign it.
The evidence on which contestant relies to sustain her contention that the signature of the testator on the will is a forgery is testimony of herself and one or two others that because of his palsy it was impossible for the testator to have signed his name on the will. The record is overwhelmingly to the contrary. She also relies upon the testimony of a self-styled expert on handwriting and questioned documents. This witness had a "photography shop and oil station on the east edge of Logan." He testified that he had "an innumerable bunch of hobbies. I have a great number of hobbies. I make a hobby out of portions of my business especially legal evidence, and things of that kind. For about 24 years I have devoted time and study to the matter of questioned documents. * * * I have never made my principal business that of handwriting expert or an expert on the question of documents. I have testified in court to disputed signatures two or three times anyhow." He particularly specialized in the handwriting of persons having palsy. He testified that in his opinion the signature on the will, Exhibit 1-a, was not that of W.B. Puckett. In surrebuttal he gave opinions respecting the signatures on many exhibits. Some of his answers indicated his opinion that a certain person other than the testator wrote the name of the latter on the will.
Substantially every witness who knew the testator or saw him write or did business with him — and there were many of them — testified that his ability to write varied greatly, depending upon surrounding circumstances, his state of mind, or whether he was tired. Sometimes the tremor of his hand was so great *Page 999
that he could not write at all, or he could not finish his signature, but, after relaxing or composing himself, he wrote or completed his signature. It always took him a minute or more to write his name. He wrote more readily at home or where it was quiet or early in the day, when he was less tired. His housekeeper, Mrs. Waddell, who went with him much and drove his car often signed his checks, usually writing "Ethel" under his name, but sometimes omitting to do so. Her writing did not resemble his. The lines in his writing uniformly showed the tremor of his hand.
Exhibit 138 was a check for $75, which he gave for a war bond. Mrs. Betty Waite filled out the body of the check, but after writing "W.B." he was unable to write "Puckett" and she wrote it for him and so indicated on the check. A number of witnesses testified to similar experiences. John Redfield, cashier of the Woodbine Municipal Light Plant, filled out many checks for Puckett and watched the latter sign them. These checks are Exhibits 19, 56, 80, 89, 36. The witness testified: "It was more difficult at times than others for him to sign his name. Sometimes he could sign good and sometimes it was very difficult for him to sign, and then later he could sign good again."
Many other businessmen, bankers, county officers, assessors, farmers, clerks, garagemen and others gave similar testimony. They referred to numerous checks introduced as exhibits, which they had filled out and then watched the testator sign. Many of these checks and documents were signed by the testator in 1946, both before and after July 20, 1946, the date the will was executed. Others were signed in 1947.
Other witnesses who knew Puckett well and were familiar with his signature testified that in their opinion the signature to the will was his. The will register in the office of the clerk of the district court of Harrison county, in which Puckett had twice signed in receipt of wills, was in evidence; also two farm leases which he signed; also a deed which he acknowledged on March 7, 1947 before Mr. Havens, attorney for contestant, was an exhibit.
A handwriting expert of thirty years' experience as a specialist in handwriting and questioned documents, who had *Page 1000
testified in various federal and state courts, and court martials in Nebraska, Iowa, and the Dakotas, compared the signature on the will with several signatures of the testator conceded to be genuine, and testified that they were all made by the same person.
Contestant stresses these queries: Where did the form and context of this peculiarly constructed will originate? Why was not an attorney employed to draw the will? Why was it not executed in the bank instead of in his home? Why was a beneficiary a witness to the will? Why were all corrections, insertions and signatures made with a lead pencil? Why did Ethel Waddell write the testator's name on the sealed envelope? Why was a carbon copy used? Why did the will dispose of land which he had conveyed on March 7, 1946? Why was it loosely stapled?
Many of these queries are of no substantial significance. The old will which the typist copied was made in 1945 and described the land thereafter conveyed in March 1946. He no doubt overlooked this fact when he told the stenographer to make an exact copy of it. There is nothing strange about the will or its form. The old will was probably drawn by a lawyer or copied from a form book, as it contains legal phrasing found in many wills. Why the carbon copy was used does not appear. But the original copy was preserved, unexecuted and was admitted as an exhibit.
One might also query just why would anybody forge the testator's name to this will? It was an exact copy of his earlier will with respect to the devises. Was his signature to that will also forged? He made the new will simply because he wished Robert Sullivan to look after his farms during the five years following his death. How could the forgery have been effected? The copy was made in the First National Bank in the morning of July 20, 1946. It was taken home at once and executed. He at once took it up to the clerk's office at Logan where the sealed envelope was stamped "filed" by the clerk on July 20, 1946. It remained in the vault of that office until it was opened on October 6, 1947.
[6] This appeal is not a review de novo. We pass only on *Page 1001
the errors assigned. The action being at law and tried to the court, the findings of fact by the court have the effect of a special verdict, and are equivalent to the verdict of a jury. One of the facts found by the court was the execution of the will as required by Code section 633.7, supra. Since these findings of fact and the judgment based thereon are supported by substantial evidence, and are justified, as a matter of law, they will not be disturbed on this appeal. These principles of law have been many times announced by this court. See In re Estate of Early,234 Iowa 570, 573, 576, 13 N.W.2d 328; In re Estate of Olson,239 Iowa 1149, 1154, 34 N.W.2d 207, 210, supra; Davis v. Knight,239 Iowa 1338, 1340, 1341, 35 N.W.2d 23-25, and cases cited.
The order, decree and judgment of the district court is — Affirmed.
All JUSTICES concur except MANTZ, J., not sitting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433527/ | This is an action originally commenced at law, but, during the trial, which by agreement of counsel was to the court, upon motion, was transferred to equity, to compel the appellee Consolidated Independent School District to provide funds therefor and to apply the same to the payment of four warrants of $1,000 each, two warrants of $500 each and one warrant of $890.80 issued by said district to appellant in final settlement of the amount *Page 813
due on a contract had with said district to provide the material and perform the labor necessary for the installation of a power, heating, and ventilating system for a school building already erected, or then in process of erection by said district at Bayard, Iowa. The contract, which was entered into between the said parties on October 25, 1921, obligated the appellant to install the aforesaid system for a consideration of $20,544. The said contract contained the following provision for the payment of said sum:
"Payments on account of the contract to be made on certificates of the Architect in accordance with the terms of the specifications under the heading `Estimates' page 3 of the original specifications. Monthly estimates upon which certificates are to be issued shall cover labor and material placed in the building and materials placed on the building site during the previous month; said certificates to be issued for not more than eighty-five per cent (85%) of such monthly estimate. In payment of these certificates, the Contractor shall accept, and the Owner shall cause to be issued, the warrants of the said School District bearing interest at the rate of 6% per annum from the date of issue, and until paid. Said warrants to be retired as bonds are issued by the Board provided for under Senate File No. 589 as passed by the Thirty-Ninth General Assembly, Final Payment to be made only upon completion and acceptance by the owner."
Prior to the date of said contract and on July 22, 1921, the electors of the appellee district, at a special election called for that purpose, in pursuance of the provisions of Senate File No. 589, chapter 335, Laws of the Thirty-ninth General Assembly, voted in favor of a tax not to exceed 10 mills per year on the taxable property of the district for a period not to exceed ten years for the purpose of building, constructing, and equipping a new schoolhouse within said district. The tax thus authorized to be levied was certified to and levied by the boards of supervisors having jurisdiction and bonds were sold to the amount of $43,000. Out of the proceeds of the sale of said bonds, appellant was paid $14,866.50, leaving the balance due him as evidenced by the warrants in suit. Additional payments were made therefrom to one other contractor and for material used in said building. The balance remaining after the said payments were made, amounting to $5,019.76, was on July 1, 1923, transferred to the schoolhouse fund. It will thus *Page 814
be observed that the warrants in suit were issued subsequent to the final exhaustion of the sum derived from the proceeds of the sale of bonds.
Chapter 335, Laws of the Thirty-ninth General Assembly, enacted as an emergency law, so far as material to this controversy is as follows:
"Section 1. Emergency tax. That the board of directors of any independent school district or consolidated school district in which there is at time of taking effect of this act, under process of construction, or in which because of destruction by fire prior to the taking effect of this act, it is necessary to construct a school building, for the completion of which building the funds of such district now provided by bonds already voted, issued, or by tax receipts for the current year, or funds for which it is possible to provide, are inadequate, may at their regular meeting in July or at a special meeting called for that purpose between the time designated for such regular meeting, and the third (3rd) Monday in August, 1921, if a majority of the votes cast are in favor of the proposition at an election in which the proposition is submitted to the people, certify an amount not exceeding ten (10) mills on the dollar of the taxable property of said district, and for a period of years not exceeding ten (10), to the board of supervisors; and the board of supervisors shall levy the amount so certified and for the years so designated, and the tax so levied shall be placed in a special school house fund and used only for the purpose of paying for the school site, the construction of said school building and the equipment thereof, or for the purpose of paying bonds or certificates issued for the raising of money for said purposes.
"Sec. 2. Anticipation of tax. Any such school district may anticipate the collection of taxes authorized to be levied for such special school house fund as in this act provided, and for that purpose the board of directors of said district may issue certificates or bonds with interest coupons attached, to be respectively denominated special school house fund certificates or bonds of such school district. Said bonds or certificates and interest thereon, shall be secured by said taxes so levied, and shall be payable only out of such special school house fund hereinbefore named, which shall be pledged to the payment of the same, and no bonds or certificates shall be issued in excess of taxes so authorized and levied, to secure the payment of the same. It shall be the duty of the said school *Page 815
district to hold the said fund separate and apart in trust for the payment of said bonds or certificates and interest, and to apply the proceeds of said fund to the payment thereof."
There is no dispute in the evidence as to any of the material facts. The parties are agreed that if the warrants in controversy are, in fact, general obligations of the district, they are void for the reason that the indebtedness of the district exceeded its constitutional limitation at the time the contract was entered into between the district and appellant. The position of appellee is readily deducible from the foregoing implied concession of appellant. Appellant meets the theory of appellee with the contention that the warrants are not general obligations of the appellee district, but that, when properly considered, the contract between the parties provides, in fact, for a special fund which in equity must be deemed a trust fund for the payment of appellant. This contention assumes that appellee, therefore, occupies the position of a trustee for the benefit of appellant. The warrants in controversy are, in form, general orders upon the school treasurer and, upon presentation thereof to said treasurer, were indorsed "not paid for want of funds." Presentation of the warrants was made on the date of issue. So far as the terms and provisions of the contract are concerned, it merely provides for the issuance of certificates to appellant upon estimates of the architect in charge of the work. Appellant further agrees, by the terms of the contract, to accept warrants of the school district bearing interest at the rate of 6 per cent per annum in payment of said certificates. The said warrants to be retired as bonds are issued by the board under the authority conferred by chapter 335; Laws of the Thirty-ninth General Assembly. Although not specifically so provided, it is contended by appellant that it is to be implied from the foregoing provisions of the contract that the warrants issued to appellant were to be paid out of the proceeds of the sale of the bonds authorized to be sold at the special election to which reference has already been made, and that the same are pledged for that purpose. The contract, however, does not in precise or definite language pledge the proceeds derived from the sale of bonds exclusively to the payment of the warrants when issued. It is, however, the contention of appellant that when these provisions of the contract are construed in the light of chapter 335, Laws of the Thirty-ninth General Assembly, the funds must be held to be a special trust fund for the payment *Page 816
thereof. Taxes to accrue from the 10-mill levy upon the taxable property of the appellee district are required by section 1 of the aforesaid act to be placed in a special schoolhouse fund to be used only for the purpose of paying for the schoolhouse site, the construction and equipment of the building, or in payment of bonds or certificates issued for the raising of money for said purposes. The taxes levied and collected in this case could not have been properly placed in a special schoolhouse fund for the purpose of paying the warrants issued to appellant. This is true for the reason that the bonds were, in fact, sold and the taxes, as collected, are required by the act to be placed in a special schoolhouse fund to be used only for the payment of said bonds. The pledge of the funds in the event bonds are sold is for the exclusive purpose of paying such bonds. The bonds by specific provision of the act "shall be secured by said taxes so levied and shall be made payable only out of such school house fund heretofore named." The special fund to be constituted under the act and permissible under proceedings had by the district was available only for the purpose of paying the bonds.
As thus construed, did the proceeds derived by the district from the sale of bonds become a trust fund for the payment of the obligations assumed by the district to appellant? It must be assumed that the appellee district entered into the contract with appellant in good faith and with the belief that it had funds then, or later as such would become available, for the payment of the obligations assumed. To assume otherwise would be to impugn the good faith of the officers of the district. They may or may not have known that the district had already passed its constitutional limit of indebtedness. If, upon the record before us and upon sound legal grounds and equitable principles, the court may conclude that the proceeds of the sale of bonds was intended by the parties to constitute a special trust fund to be used only for the payment of the district's obligations to appellant, then such conclusion, in furtherance of justice, should be reached. The question is: Will the record before us bear a construction that will justify and support a conclusion such as is here suggested? Clearly, there is nothing in the provisions of chapter 335, Laws of the Thirty-ninth General Assembly, authorizing the creation of a trust fund out of which to pay obligations such as are here involved. The act merely provides for the sale of bonds and the payment of warrants issued as *Page 817
provided in the contract before us out of the proceeds of the sale of said bonds. The sum thus arising is not, in terms, or in the contemplation of the framers of the act, to be held as a trust fund to be used exclusively for that specific purpose. It becomes available therefor, but not as a trust fund for the payment of the obligations of the district. The warrants to be issued to appellant under his contract in exchange for certificates are to be retired as bonds are issued by the board under the provisions of Senate File No. 589. In other words, the certificates are to be retired, warrants issued, and paid as authorized by the act.
Chief reliance of appellant, in support of the major proposition urged upon this appeal, is upon Swanson v. City of Ottumwa, 118 Iowa 161, 91 N.W. 1048, 59 L.R.A. 620. The holding in that case is based upon an entirely different legislative enactment and state of facts. The statutes involved in the Swanson case authorized cities of the first class to purchase or erect waterworks and to pledge certain taxes and income from the waterworks to the payment of the cost thereof and provided that no part of the general fund of such cities should be applied upon bonds or mortgages issued in the erection or purchase of such waterworks. The ordinance of the city of Ottumwa authorizing the construction of a system of waterworks required that the cost thereof be paid out of a special fund to be created as therein provided and authorized by law and not otherwise. That is to say, no part of the cost of said improvement should ever be paid out of the general funds of the city or out of any fund or the proceeds of any tax, except as were specifically pledged therefor. This court, under the facts of that case, held that the obligations assumed were not general obligations of the city and that they did not constitute a debt thereof within the meaning of the Constitution. The two cases are wholly dissimilar both in fact and character. In the Swanson case, the fund provided for was authorized by the statute which, in the same connection, imposed strict limitations upon the municipality with reference to the use of the general funds of the city. Chapter 335, Laws of the Thirty-ninth General Assembly, conferred no authority upon school boards to create special funds for the payment of obligations such as are here involved, nor does the act by its terms provide for such a fund when bonds are issued. Indeed, no authority whatever to create a special fund of the character appellant seeks to have established is conferred thereby or to be *Page 818
implied therefrom. Chapter 335 is denominated an emergency act and was designed to enable certain school districts to erect or build a school building and to sell bonds in anticipation of taxes to be levied and collected in the future. The warrants are clearly mere obligations of the district and, if valid, would be collectible. This court would be compelled to go much further in this case to sustain the contention of appellant than was necessary in Swanson v. City of Ottumwa. The court is not inclined to extend the doctrine of that case.
It is the conclusion of the court that the warrants in controversy are, in terms and fact, general obligations of the district and that this court is powerless to grant the relief prayed. The transfer of a portion of the funds by the district to the schoolhouse fund may have been irregular, but appellant, as the holder of void warrants, may not complain thereof.
It is the conclusion of the court that the holding of the trial court is right. — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433528/ | Joe Arends was the owner of a quarter section of Grundy county land. In 1925 he mortgaged 120 acres of this quarter section to the Equitable Life Assurance Society for $12,000, this being referred to as the first mortgage. On January 2, 1931, Joe Arends mortgaged the entire quarter section to the Equitable Life Assurance Society of the U.S. for $3,200. This mortgage was a second mortgage on the 120 acres, being subject to the $12,000 mortgage but was a first mortgage on the 40 acres not covered by the first mortgage, this mortgage will be referred to as the second mortgage.
On January 20, 1931, Joe Arends mortgaged the entire quarter section to Ottilla Bienfang for $4,500. This mortgage was subject to the $12,000 mortgage covering the 120 acres and the $3,200 mortgage covering the 160 acres. This mortgage will be referred to as the third mortgage.
On April 5, 1934, the Equitable Life Assurance Society filed its petition in which it prayed for foreclosure of the $12,000 mortgage, referred to as the first mortgage. This mortgage contained no provision for the appointment of a receiver in the event of foreclosure. On April 6, 1934, the Equitable Life Assurance Society commenced foreclosure of the $3,200 mortgage referred to as the second mortgage. This mortgage contained the usual *Page 824
provision for the appointment of a receiver and pledged the rents and profits of the land.
On April 27, 1934, Joe Arends filed a motion in which he asked that the foreclosure actions be continued under the moratorium act. The orders of continuance and the appointment of conservator were filed in cause No. 6406, which is what is known as the second mortgage foreclosure. Ottilla Bienfang assigned her mortgage referred to as the third mortgage to R.J. Bienfang and on June 19, 1939, he commenced foreclosure of said mortgage. This mortgage provided for the appointment of a receiver and pledged the rents.
On motion the cases were consolidated for the purposes of trial.
On December 22, 1939, the Equitable Life Assurance Society filed a dismissal of its application for the appointment of a receiver without prejudice to renew same at a later date.
On March 8, 1940, the Equitable Life Assurance Society filed a petition of intervention in the Bienfang v. Arends foreclosure referred to as the third mortgage, and being cause No. 7115. In this petition of intervention, it prayed that if a receiver is appointed, he be instructed to disburse the funds collected in payment of taxes, insurance and balance to the Equitable Life Assurance Society.
On November 20, 1940, this matter came on for hearing. The lower court held that the net income after the payment of taxes, insurance and upkeep, totaling $3,670.52 should be applied in the following manner: $3,221.69 on the second mortgage and $448.83 on the first mortgage. The decree provided for foreclosure of the mortgages.
[1] The Equitable Life Assurance Society has appealed and will be referred to as the appellant. Joe Arends has filed a cross appeal and will be referred to as the appellee. We will consider first the appeal of the appellant. The only question involved here is the manner in which the income from this farm collected by the conservator will be applied. It is the contention of the appellant that it should be equally divided, and half applied on the first mortgage and the other half on the second mortgage. This claim is made not under the mortgages involved in this case, but under the moratorium act. It is true that the *Page 825
right to a continuance under the act was an extraordinary right granted by statute because of a declared existing emergency. That the rentals were to be given to the mortgagee to the extent that the same would reasonably compensate it for the property involved.
In the case at bar, however, the order of continuance was made in what is referred to as the foreclosure of the second mortgage No. 6406. It is true that there was a blank space left on the order where another number might have been inserted, and it is the contention of the appellant that the order should also apply in the first mortgage foreclosure. However, no order of continuance was entered in the first mortgage foreclosure, and the lower court was right in ordering that the balance in the hands of the conservator should be applied on the second mortgage.
[2] Now as to the cross appeal of the appellee. It involved two propositions. First, that the court erred in applying $448.83 out of the income upon appellant's first mortgage. While the record is not clear, it appears that this amount was paid directly to the appellant, prior to the entry of the first order of continuance. It was a voluntary payment made to the insurance company and they had a right to apply it on the first mortgage.
[3] The second proposition raised on the cross appeal is, that the balance of the money in the hands of the conservator should be applied on the third mortgage of the appellee; that the appellant had dismissed its application for the appointment of a receiver under its mortgage and had no claim to the money.
It is true that appellant dismissed its application for an appointment of a receiver but its claim is under the moratorium act. As this court has said that in order to get a continuance under the moratorium act the mortgagor was required to pay rent during the continuance, and that is what the order in the case at bar provided, and the lower court was right in ordering that the balance on hand after payment of certain items should be applied on the second mortgage. — Affirmed on both appeals.
CHIEF JUSTICE and all JUSTICES concur. *Page 826 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433529/ | The only question presented on this appeal is whether the plaintiff's employment came within the purview of our Compensation Act. If yea, then the plaintiff was confined to his remedy thereunder. If nay, then the plaintiff was entitled to pursue his common-law remedy for damages. The defendant contends for the affirmative on this question; and the plaintiff, for the negative.
Concededly, the employment was within the purview of the Compensation Act unless it was covered by the specific exceptions *Page 68
thereto. The plaintiff contends that his employment was purely "casual," and therefore within the statutory exception. Such is the question presented.
The defendant is a corporation engaged in the operation of a telephone system. The plaintiff sought and obtained employment as a lineman. Prior to such employment, the plaintiff had already secured another position, which would not be available to him for 30 days or more. He therefore limited the time of his employment to 30 days, subject to a possibility of a later extension. This employment was had and begun about the middle of April, 1922, and the injury to plaintiff occurred about one month later, in the course of his employment, and while engaged in the trade or business of the defendant.
At or about the time of plaintiff's employment, the defendant company was substantially enlarging its force of linemen because of a press of work, caused by a sleet storm just preceding such employment, which greatly damaged the poles and lines of the defendant company. The plaintiff was one of many additional employees employed by the company at or about the same time, in the same general line of work. This was largely to repair and straighten and tighten poles and lines which had been damaged by the storm. Of the extra men then employed, some of them continued their employment for shorter periods, of a few days only, and some for longer periods; while still others continued their employment indefinitely. The foregoing statement of facts follows the testimony of the plaintiff. It is a sufficient statement of the material facts for the purpose of the question before us.
We have just had occasion to construe our Compensation Act in a similar case. See Pfister v. Doon Electric Co., 199 Iowa 548. Our conclusion in that case must be deemed decisive of this, unless a material distinction between the two cases is to be found at one point.
The major premise of the plaintiff is that his employment was temporary, and that he was employed, not as a regular lineman, but as a mere "extra." Therefore he contends that his employment was purely "casual." We have to consider, therefore, whether this distinction is material and controlling.
In the Pfister case, the employer was defending against *Page 69
liability on the ground that its employment of the claimant was purely "casual." We held that he was employed for the purpose of the trade and business of that defendant; that he was subjected thereby to the hazards of the work, and was injured thereby; and that his employment was not "casual," within the meaning of the Compensation Act. The allowance of compensation was, therefore, sustained.
In the case at bar, it is not the employer, but the employee, who seeks to escape the operation of the Compensation Act, and presents substantially the same contention as was presented by the employer in the Pfister case. The question, however, must be disposed of by us precisely the same as if the employee were here asking compensation under the statute. In such event, could we say that he was outside of the scope of the statute and within its exceptions, and therefore not entitled to compensation?
If we accept the contention that the employment of the plaintiff was temporary, what is the effect of such fact upon the question presented? That the temporary character of employment is a circumstance to be considered, is doubtless true. Can we say, however, that, because employment was for a period of only 30 days, it became thereby "casual employment," and was not compensable under the act? To do so would be to add something to the statute. If such were the purpose of the statute, it were easy to have so stated therein. If we should so hold, should we close the door at that point or period of time, or should we leave it open for more extended periods in later cases?
Is there a controlling force in the suggestion that the plaintiff was working as an "extra?" He was an "extra" only in the sense that many other men newly hired were "extras." They were "extras" in the sense that the corporation was working a larger number of linemen than usual. If the increase of force of men operates to withhold from the workmen the compensation of the statute, then it would become material to inquire, in all cases of employment, whether the employer was exceeding his quota of employees. This also would add something to the statute. If such were the purpose of the statute, it could and ought to have been so stated therein. *Page 70
It is said by the plaintiff that some of these "extras" worked but a few days, and some for longer periods; while some of them continued indefinitely. They were all employed under the same circumstances. If the employment of the plaintiff was "casual," for the same reason the employment of the others was "casual." If we apply such a rule to those employees who continued indefinitely, did they continue under "casual employment?" If not, when and how was the transformation made? Is the character of the employment, whether casual or noncasual, to be deemed to be undergoing transformation by reason of the later continuity of the work? Perhaps it could be said that re-employment might be implied by continuity of work. But this only introduces artificial complications into the construction of the statute. The statute is couched in simple terms, and its simplicity ought to be preserved, as far as possible. In the Pfister case we have held that the "extra" work created by weather conditions is not to be deemed a controlling fact on the question here presented.
Our previous cases on the question presented are considered in the Pfister case, and we shall not unduly repeat here what we have said there. There is little help to be had from a consideration of the decisions from other states, because of the variation of terms employed in the respective statutes of other states.
The mother statute of all the Compensation Acts is that of England. This statute has had a uniform construction by the English courts for many years. But though that statute has been the pattern, many of our states have not adhered to it literally, but have qualified it by changing some clauses and adding others. The rule of construction adopted by the English courts has always been that the character of the work evidences the character of the employment. Some of the state courts of this country have held that the character of the employment, and not the character of the work, is the true test. This holding, however, is predicated upon the peculiar provisions of the particular state statute. It does not purport to run counter to English decisions. For instance, an authority specially relied on by the plaintiff is the case of Western Union Telegraph Co. v. Hickman, 161 C.C.A. 17 (248 Fed. 899). In that case a *Page 71
lineman was hired by a telephone company to work for a period of five days. On the fourth day he was injured while at his work. He was held to be a "casual" employee. The case arose in West Virginia. We cannot do better, to illustrate the divergence of decision which must arise in different jurisdictions, than to quote the following from the opinion in the cited case:
"The English Compensation Act, which some of our states have closely followed, excepts `a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.' Construing this act, the English courts have held that the kind of work done by the employee, rather than duration of service, is the determining factor. If the work pertain to the business of the employer, and be within the scope of its purpose, the employment is not `of a casual nature,' although the hiring be only for a short period of time. The Connecticut statute (Pub. Acts, 1913, c. 138) is practically the same as the English, and accordingly the Supreme Court of that state has held (Thompson v. Twiss, 90 Conn. 444,97 A. 328, L.R.A. 1916E, 506) that the nature of the employment was measured, not by tenure of service, but `by the character of the work.' The New Jersey statute likewise exempts those `whose employment is of a casual nature.' But the West Virginia act, in defining exceptions, uses the terms `casual employment' and `persons casually employed.' The equivalent exemption of persons `whose employment is but casual' appears in the Compensation Laws of Massachusetts (prior to the amendment of 1914 [St. 1911, c. 751, as amended by St. 1912, c. 571]), Illinois (Laws 1911, p. 315, as amended by Laws 1913, p. 335), Michigan (Pub. Acts [Ex. Sess.] 1912, No. 10), and Minnesota (Gen. St. 1913, §§ 8195-8230). This noticeable departure from the language of the English statute indicates a legislative intent to broaden the exception and place it on a different basis. Its apparent effect is to make exemption depend, not on the nature of the work performed, but on the nature of the contract of employment. If the hiring be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business, the employment is `casual,' and covered by the exception."
It will be noted that that decision was predicated upon a *Page 72
particular clause in the West Virginia Act wherein the exception was made to include, not only "casual employment," but also "persons casually employed." A similar clause is included in the act of Massachusetts and some other states. The clause which appears to have been the turning point of decision, and which appears to have called for a construction different from that of the English decisions, is not contained in our statute. Indeed, in that respect our statute follows closely the original English pattern. Moreover, we are impressed that the distinction between the two clauses in the West Virginia Act is not readily observable, and might well be deemed to have been nonexistent. We note further that, under our statute, the "casual" is expressly reduced and restricted to the "purely casual."
We are of the opinion, also, that the distinction made as to whether, on the one hand, the character of the employment shall be the test, or whether, on the other, the character of the work
be the test, is somewhat strained, if not fanciful. The one is the complement of the other. The character of the work is forecast in the employment, and the character of the employment is reflected in the work. The one evidences the other. Moreover, work for an employer with his knowledge and consent becomes employment, without preceding formality. We touched upon this question in the Pfister case, and we will not pursue it here. It should always be borne in mind as the polestar of construction of any statute that the rule is broader than the exception; that the exception is specific, rather than general; and that, therefore, doubts and implications should be solved in favor of the rule, rather than of the exception.
The clear objective of the Compensation Act is to protect the employee against the hazards of the employer's trade or business. When the relation of employer and employee is established, and when the employee is subjected to the hazards of his employer's trade or business, and suffers injury therefrom while so engaged in the due course of his employment, the excepting proviso of the statute ought not to be enlarged by difficult or doubtful construction, so as to render such an injury noncompensable.
We are of the opinion, therefore, that the fact that this employment was only for 30 days was not inconsistent with the *Page 73
main objective of the statute, and that the excepting proviso of the statute should not be enlarged so as to include it as a "casual" employment. We are of the same opinion as to the "extra" character of the employment, and as to the fact that the employee was one of many who were then employed, not all of whom would be retained indefinitely in the employment of the company. Substantially all employment is indefinite in its tenure, and the hazard of its work for the day is neither greater nor less because of the future tenure.
Inasmuch as we find that the plaintiff's employment came under the operation of the Compensation Act, it necessarily follows that his remedy thereunder is exclusive, and that he is not entitled to pursue a common-law remedy for damages. The plaintiff's case presents a strong appeal, in that his injuries were serious, and in that statutory compensation may prove quite inadequate. But we must construe the statute precisely as we would if he were here claiming compensation under it. To sustain his contention now would be to emasculate the statute greatly, to the detriment of all employees in the future. For a review, pro and con, of the cases on this subject, see 33 A.L.R. 14, 23, 67.
The motion of the defendant in the lower court for a directed verdict should have been sustained, not for want of jurisdiction in the court, but for want of right to this remedy by the plaintiff.
The judgment below will be reversed, and the cause remanded, with direction to dismiss. — Reversed and remanded.
FAVILLE, C.J., and ARTHUR and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433531/ | The appellant is the receiver of a canning company located at Dexter. We shall refer to said company as the appellant. Appellant was engaged in the business of canning *Page 890
corn. For the purpose of carrying on its 1. CARRIERS: business, appellant purchased cans in carload delay: lots of the Continental Can Company of Chicago. special Appellant seeks to recover special damages for damages. injury to corn that appellant was unable to pack because of the delay in transporting certain carloads of cans which were shipped over appellee's railroad from Chicago to Dexter. Motion for directed verdict was based upon several grounds. It was sustained generally.
I. It is contended that the appellee was negligent in failing to transport certain of the cars in question and deliver them to the appellant within the ordinary and usual time required for transportation. The appellee seeks to excuse the delay in shipment by reason of the necessity to make certain repairs upon said cars. A fact question was here involved, for the determination of the jury, as to whether or not the appellee was negligent in the shipment of said cars. If there were no other question in the case, it would have been one for the consideration of the jury. However, in view of our conclusion upon the question of special damages, which we shall discuss hereafter, the question as to whether or not the appellee was negligent becomes immaterial in the final determination of the case.
II. At the outset, it is to be noticed that the action is not to recover damages for any injury to the shipment itself. The cans arrived in good condition, so far as shown by the record. Neither is the case of the class where, although the property shipped did not depreciate in quality, there was a loss of a favorable market by reason of the delay in shipment. The claim is solely for special damages for injury to corn which was in condition for packing, and which appellant claims could not be packed because of the failure to transport and deliver the cans in question promptly. The right, under proper circumstances, to recover for special damages caused by reason of delay in the transportation or delivery of a shipment is well recognized. The leading case on the subject is Hadley v. Baxendale, 9 Exch. 341, decided in 1854. This case has been cited by text-writers generally, and by many courts, both in England and in this country.
The general rule is that, in order that there may be recovery for special damages of the character herein considered, notice to the carrier of the purpose for which the shipment is intended and the necessity of prompt shipment and delivery must be given *Page 891
before or at the time the shipment is accepted by the carrier. InElzy v. Adams Exp. Co., 141 Iowa 407, we thus announced the rule:
"The present weight of authority is that, where defendant has notice, at the time of shipment, of the existing facts out of which special damages would naturally arise to plaintiff by negligent delay in delivery, the defendant may be held liable for such special damages. The general rule in torts is that all damages naturally and proximately resulting from the injury are recoverable. This rule is construed to include special damages, such as are involved in this case, where the carrier has notice of the fact that delay in the delivery of goods will result in special damage to the shipper."
See, also, 3 Hutchinson on Carriers (3d Ed.), Sections 1367, 1368, 1369, and cases cited.
The record fails to show that any notice was given to the appellee, at or before the time of the shipment, of the use to which said cans were to be put, or the possibility of resulting damages by reason of delay in the shipment. The cans were consigned by the Continental Can Company to itself, as consignee. The purpose for which the cans were to be used was not disclosed to the appellee, at or before the time the shipment was made. It is argued that the appellee was charged with notice that the cans were intended to be used by the appellant in its business of canning corn, and that it knew that the canning season was short, and that the cans would be needed by the appellant promptly, and that delay would necessarily result in injury to the corn that was to be canned. The difficulty with this contention of the appellant's is obvious. There was nothing shown of record to apprise the appellee of the purpose for which the cans were to be used. Appellee merely accepted a shipment of cans from the Continental Can Company, as consignor, to the Continental Can Company, as consignee. The delay complained of was a delay of two or, at most, three days. Whether the cans which were being shipped by the Continental Can Company to itself, as consignee, were being shipped for resale or for storage or for inspection or for some other purpose, was in no way disclosed or made known to the appellee. Under the circumstances shown of record, the appellee cannot be charged with notice at or *Page 892
before the time of the shipment that the cans were to be delivered to the appellant for the purpose of canning corn that was then ready for the pack. There is not a syllable of evidence in the record to disclose any knowledge or information imparted to appellee at the time of shipment, with regard to the use that was to be made of the cans. Even if it is to be inferred that the appellee was chargeable with notice that the cans were to be used for the purpose of canning corn, there is nothing in the record to show that the appellee was notified or informed in any way, at or before the shipment, that the appellant did not have an ample and sufficient supply of cans on hand to meet all contingencies. There is likewise an utter want of any evidence to show that the appellee was informed at that time of the amount of corn that the appellant intended to pack, or the condition of the corn, or any other facts or circumstances charging it with notice of peculiar conditions under which the cars were accepted for shipment. The case is clearly distinguishable from the line of authorities where the carrier is charged with notice of peculiar facts and circumstances under which a shipment is accepted, and which render a carrier liable to special damages for delay in shipment. The case of Illinois Cent. R. Co. v. Hopkinsville Can. Co.,132 Ky. 578 (116 S.W. 758), is illustrative at this point. In that case, suit was brought to recover special damages for delay in the shipment of a carload of cans to a canning company, which cans were to be used for the purpose of packing tomatoes. The car of cans was delayed in shipment, and special damages were sought to be recovered, including the value of the tomatoes that were spoiled by reason of the delay. The court, after reviewing the cases, said:
"* * * there can be no recovery here of the special damages sustained by the canning company by reason of the tomatoes spoiling or the factory being suspended for want of cans, unless notice was given the carrier, at the time the shipment was made, of facts sufficient to apprise a person of ordinary prudence that such losses were to be anticipated from the delay of the cans on the journey."
In reviewing the evidence on the question of whether the carrier was notified of sufficient facts to apprise a person of ordinary prudence that losses of the character for which recovery was sought might be anticipated, the court said: *Page 893
"A notice to rush all shipments is not a notice that special damages may be anticipated from the delay in a particular shipment. * * * The fact that the car was shipped in the packing season was not notice to the railroad companies that the cans were needed immediately, to prevent a factory from standing idle, or tomatoes from spoiling. The shipment was made to the order of the American Can Company, and for what purpose the American Can Company was shipping its own cans to its own order at Hopkinsville the shipment apprised nobody. To say that all cars must be rushed through in the packing season, and that the railroad company must anticipate during the packing season such damages as are here sued for, would be to presume that the business of packing is run without ordinary provision for such delays as may be often anticipated in the shipment of freight by railroads."
As sustaining this general rule, and as bearing on the subject of the sufficiency of notice to the carrier to charge it with special damages, see the following cases: Chapman v. Fargo,223 N.Y. 32 (119 N.E. 76); Yazoo M.V.R. Co. v. Jacobson, 112 Miss. 158
(72 So. 889); Louisville N.R. Co. v. Mink, 126 Ky. 337
(103 S.W. 294); Illinois Cent. R. Co. v. Brothers, 12 Ala. App. 351
(67 So. 628); Pacific Exp. Co. v. Redman (Tex. Civ. App.), 60 S.W. 677; Swift River Co. v. Fitchburg R. Co., 169 Mass. 326
(47 N.E. 1015); Florida East Coast R. Co. v. Peters, 72 Fla. 311
(73 So. 151), 77 Fla. 411 (83 So. 559); Illinois Cent. R. Co. v.Johnson Fleming, 116 Tenn. 624 (94 S.W. 600); Delaney v. U.S.Exp. Co., 70 W. Va. 502 (74 S.E. 512); Traywick v. SouthernRailway, 71 S.C. 82 (50 S.E. 549).
From an examination of the record, we reach the conclusion that there was no notice to appellee, at or before the time of the shipment, that could be made the basis of the special damages for injury to the corn of the appellant for which relief is sought in this action.
III. Appellant contends that, after the shipment had been accepted by the carrier, and was in process of movement, the carrier was notified of the necessity of expeditious delivery of the cars of cans in question, and that delay resulted thereafter, and that because of such delay special damages resulted to appellant. The greater weight of authority is in accord with the rule announced in Elzy v. Adams Exp. Co., supra, to the effect *Page 894
that the notice of facts out of which special damage would naturally arise by negligent delay in transportation must be given at or before the time of the shipment. The reason for this is apparent, and that is that, in such event, the parties contract in view of the then known conditions, and act accordingly. It seems to be the general rule that a notice given after the carrier has accepted the goods for transportation of the circumstances rendering prompt transportation necessary, is not sufficient to fasten upon the carrier a liability for special damage growing out of delay. Cases supra; and Chicago, R.I. P.R. Co. v. King, 104 Ark. 215 (148 S.W. 1035); 3 Hutchinson on Carriers (3d Ed.), Section 1367; 4 Elliott on Railroads (2d Ed.), Section 1731; Bradley v. Chicago, M. St. P.R. Co., 94 Wis. 44
(68 N.W. 410); Gulf, C. S.F.R. Co. v. Cherry (Tex. Civ. App.), 129 S.W. 152; Southern Exp. Co. v. Couch, 143 Ark. 513
(220 S.W. 823); New Orleans N.E.R. Co. v.Miner Saw Mfg. Co., 117 Miss. 646
(78 So. 577).
The above rule with regard to notice after shipment has been made and is in transit, is to be distinguished from the rule which recognizes a liability under proper circumstances for failure to deliver after the shipment has reached its destination. There is no claim in this case of liability for failure to deliver promptly after the shipment had reached its destination at Dexter.
IV. The appellant also seeks to recover on the theory of a misrepresentation on the part of the agent of the appellee company. It is the contention of the appellant at this point that an officer of the appellant called upon the 2. CARRIERS: appellee's agent at Dexter, and made inquiry in delay: regard to the cars in question, and received a misrepresen- message from said agent stating, in effect, that tation. he had been advised that two cars of cans were at Valley Junction, about forty miles distant from Dexter, on a certain Wednesday night. This information was given on Thursday morning. As we understand the record, one of said cars did arrive on Thursday; the other did not. Appellant contends that it relied on the statement of the agent of appellee that both of the cars were at Valley Junction, and expected that, in the ordinary course of transportation, both cars would arrive within a day, and procured corn for packing, in reliance thereon. The officer of the appellant expected that, if both of said cars were at Valley Junction on Wednesday *Page 895
night, they would arrive on a local freight on Thursday. The agent made no representations as to when the cars would arrive. One of said cars did arrive. The other did not. The record, however, fails to show any false representation by the agent of the appellee that could be made the basis of recovery, or that any new contract was entered into with regard to delivery of said car, or any act or thing done by the appellee that could be made the basis of liability for special damages because of the said representation by the agent of the appellee that said two cars were at Valley Junction at the time stated.
While there is some apparent conflict in the authorities upon the general propositions of law herein discussed, the greater weight of the adjudicated cases is clearly in support of the conclusions herein announced. The order of the district court in sustaining appellee's motion for a directed verdict must be, and it is, — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433532/ | It is undisputed that Charles E. Robeson, city treasurer; F.A. Hass, city clerk; John C. Witt, city attorney; Harry Ward, chief of police, (or their successors in office) are trustees of the Policemen's Pension Fund of the City of Davenport; and that the first three, with Richard Kelley, chief of the fire department, (or their successors in office) are trustees of the Firemen's Pension Fund of said city, all under chapter 322, section 6310 et seq., and as trustees made the deposits hereinafter referred to.
The Union Savings Bank Trust Company of Davenport, Iowa, closed its doors, and a receiver was appointed on December 28, 1932. At that time there was on deposit in said bank (including interest) $14,095.14 in the Policemen's Pension Fund, and $1,476.91 in the Firemen's Pension Fund, aggregating $15,572.05. These two accounts were treated as one fund and one claim in the receivership. No question as to this or the propriety of the proceedings to establish the claim has been raised by anyone.
For convenience we will speak of these two funds as the "Policemen's Fund" and the "Firemen's Fund". *Page 883
After appointment of the receiver for the bank, claims were filed to compel the classification of these two accounts as preferred, and entitled to priority in payment, upon the ground that the money held in trust was deposited in a savings account by the trustees; that the bank had the right to require sixty days' notice in writing of its withdrawal, thus making it an illegal investment. The receiver denied that the claims were entitled to preference. An appeal was taken to the district court, which allowed the claims as preferred claims. The receiver, being dissatisfied, has appealed to this court.
It is stipulated that prior to the closing of the Union Savings Bank Trust Company it had negotiated a loan from the Reconstruction Finance Corporation of an amount to pay forty per cent of its general deposit liabilities, and an additional sum of approximately $800,000, to be used for the payment of preferred claims which might be determined to be payable in full. The receiver classified all claims and filed a report, then made application for instructions and an order of court as to payment of claims. The decree, among other things, found that there were sufficient funds to cover all claims for preference which might be subsequently allowed and which included the claims in the case at bar. Therefore, we are not confronted with the question of whether there was sufficient money to pay these claims, it being admitted that there was.
When these two accounts were opened in the Union Bank they were both designated by certain numbers, and from that date to the date of the closing of the bank they continued to be known by these same numbers. At the time that the accounts were opened, pass books were issued by the Union Bank. The original pass books do not seem to be in evidence, but those of the Policemen's Fund covering the period from 1920 to the closing of the bank, were introduced in evidence. The first four of these pass books show that they were designated as being in the "savings" department, and in them were printed rules and regulations, Rule No. 9 being as follows:
"* * * This Bank reserves the right to withhold the payment of deposits until the expiration of sixty days' notice given in writing by the depositor of his or her intention to withdraw his or her deposit. The Bank may, so far as it is found advisable, pay without notice any depositors who wish to withdraw *Page 884
their deposits. Payments made from time to time by the Bank without notice shall not constitute a waiver of notice."
This record shows that there was no change in the account known as the Policemen's Fund from the time that it was first opened in 1910 until the Union Bank closed. It was designated by the same number and the bank book showed it was a continuous account. In addition to this there is the testimony of the city officials who had charge of the making of the deposits that there had been no change.
As to the Firemen's Fund, pass books were also issued, but the original ones were not introduced in evidence. However, those showing deposits starting in 1920 and continuing thereafter, were produced. These pass books, until 1922, also contained a sixty-day withdrawal clause, being identical with the clause contained in the books covering the Policemen's Fund that is set out in this opinion. There was no change in this account. It was designated by the same number and was a continuous account from the first deposit to the closing of the bank.
In the case of Andrew v. Iowa Savings Bank, 214 Iowa 105, 241 N.W. 412, 413, this court had before it a similar question, namely, whether or not a deposit made by the trustees of a pension fund in a bank is entitled to preference. Justice Albert, speaking for the court, said at pages 109, 110:
"The turning point therefore in the determination of this case, under the doctrine we have approved in the Wisconsin case [State v. McFetridge, 84 Wis. 473, 54 N.W. 1, 998, 20 L.R.A. 223], is whether or not these trustees were at all times in position to immediately withdraw this fund from the bank; or whether they had lost control of it for any length of time. If the latter be true, then under the holdings, this must be held to be an investment or a loan, and not a deposit.
"Turning to the record we find that the condition under which this money was turned over to the bank was that the bank was to pay four per cent interest semiannually, but it `expressly reserved the right to have, as a condition precedent to the payment of any of the savings deposit, a sixty days' notice in writing from the depositor of his or her intention to withdraw his or her savings deposits, and no such deposits shall be payable either in whole or in part, prior to the expiration of the sixty days' period of notice, unless at the option of the bank. * * * Payments *Page 885
from time to time by the bank without notice shall not constitute a waiver of notice in any other case, or at any other times when notice is not expressly waived.'
"It is apparent, therefore, from this condition in the agreement that the control of this fund so left with the bank wholly passed out of the control of the trustees. True, they could draw all or any part thereof with the permission of the bank, but if the bank failed to give such permission they could not draw the same until they had given notice and sixty days had fully expired.
"In Baitinger v. Elmore, 208 Iowa 1342, 1344, 277 N.W. 344, 346, we had a fund in the hands of a savings bank placed there by a guardian under the same sixty-day restriction as existed in the case at bar. We there said:
"`* * * the guardian, in effect, and without authority, invested the money of his ward in a savings deposit, and precluded himself from withdrawing it except on sixty days' notice. Thus far the case is not one of a mere temporary deposit of money payable on demand in the exercise of ordinary care. The deposit was without authority of the court, and therefore, was wrongful.' (Citing Andrew v. Sac County State Bank, 205 Iowa 1248, 218 N.W. 24; Andrew v. Farmers Savings Bank of Goldfield,207 Iowa 394, 223 N.W. 249; Garner v. Hendry, 95 Iowa 44, 63 N.W. 359.)
"While the control of this fund passed out of the hands of the trustees because they lost the right to immediately withdraw the same, the title to such fund never left them and the bank, under the law, was bound to know that it could not acquire legal title to said funds, and therefore, it must be held that it held such fund in trust for the actual owner. Leach v. Stockport Savings Bank, 207 Iowa 478, 223 N.W. 171, and cases therein cited; also Andrew v. Farmers Savings Bank of Goldfield, 207 Iowa 394, 223 N.W. 249."
[1] In the case at bar we find that these accounts were opened in the Union Bank by the trustees of these funds; that pass books showing deposits were duly issued and that they contained the provision that withdrawals could not be made except upon sixty-days' notice if the bank desired. This is the same identical provision referred to in the case of Andrew v. Iowa Savings Bank, supra. The bank paid interest upon these accounts. *Page 886
Each one was numbered and was carried in the savings department of the Union Bank as a savings account. Nowhere, and at no time, does a change in the character of these accounts appear. Even the ledger sheets used by the bank are the same and no change is noted on them. The fact that the bank did permit checks to be drawn upon these accounts does not in any way change the nature of the accounts, as the bank reserved that right, under the rules and regulations printed in the pass books. If the bank failed to give such permission, then the trustees could not draw money until they had given notice and sixty days had fully expired. Under these facts it must be held that this was an investment or a loan and not a deposit, and the trustees of these pension funds had no authority to so invest the money.
[2] Appellant strenuously argues that, under section 9178 of the 1931 Code, which is as follows:
"9178. Regulations — posting. Said regulations shall be printed and conspicuously exposed in the business office of the bank, in some place accessible and visible to all; and no alteration which may at any time be made in such rules and regulations shall affect the rights of depositors acquired previously thereto in respect to deposits or interest thereon."
there is no evidence that the board of directors of the Union Savings Bank ever adopted any regulations requiring notice of withdrawal of savings deposits, and that the printing of such regulations in the pass book cannot make the regulation effective; in order to comply with section 9178 it was necessary for the bank to post notice conspicuously in its business office. However, it is to be noted there is nothing in the statute to preclude the giving of a binding notice to a depositor of those rules and regulations in some manner other than by posting, or to preclude the bank and a depositor from attaching conditions to their deposit agreement. To hold otherwise would be to hold that actual notice of such rules and regulations would mean nothing.
In Brooke v. White, 219 Iowa 624, 258 N.W. 766, 768, Justice Powers, speaking for this court, said at page 629:
"The interpretation finds support also in the decisions of this court. In Andrew v. Iowa Savings Bank, 214 Iowa 105, 241 N.W. 412, we held that the bank could demand a sixty-day *Page 887
notice, but not because of the provision of the statute, but because the bank had adopted such a regulation which was a part of the contract between the bank and the depositor."
In the case at bar there was an agreement between the bank and the depositor that gave the bank the right to demand a sixty-days' notice if it desired.
Section 9178 can mean no more than to say that posting of the rules and regulations is necessary to bind the bank and depositor if no other notice is given to the depositor. But actual knowledge on his part of the rules and regulations will bind the depositor just as effectively as if posted. The pass books were issued by the bank itself. The rules and regulations printed in them are designated as such. Entries in them were made by the officers and employees of the bank. Claimants had actual knowledge of the rules and regulations. They were bound by these rules, and likewise the bank was bound. The trustees had no authority to place the money in a savings account in the Union Bank. It was therefore an illegal investment, and the claimants were entitled to preference.
It therefore follows that the lower court was right in entering the order, adjudging and decreeing these to be preferred claims.
Judgment is hereby affirmed. — Affirmed.
PARSONS, C.J., and all Justices, concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433533/ | In December 1932, Farmers Savings Bank of Colwell, Iowa, closed its doors and in January 1933, was placed in the hands of a receiver. Taxes for the years 1932 and 1933 were levied against the various stockholders for their respective shares of the capital stock, surplus and undivided profits of the bank. Thereafter, in 1935, the 46th General Assembly adopted an act (chapter 78) now contained in Code of Iowa, 1935, as follows:
"7004-g1. Stock of insolvent bank — remission. Whenever a bank operated within the state has been heretofore or shall hereafter be closed and placed in the hands of a receiver, the board of supervisors shall remit all unpaid taxes on the capital stock of said bank."
The board of supervisors of Floyd county having failed to remit said unpaid taxes this action in equity was instituted against Floyd county, the board of supervisors and the members of said board for a writ of mandamus requiring such action. The decree of the trial court ordered defendants to remit said taxes and the defendants have appealed therefrom.
[1] I. Appellants contend that Code section 7004-g1, which requires the remission of such taxes, is unconstitutional as in violation of section 6, Article I, of the Constitution of Iowa, and section 1, 14th Amendment to the Constitution of the United States. In Charles Hewitt Sons Company v. Keller, 223 Iowa 1372,275 N.W. 94, this court held that a county auditor or board of supervisors as ministerial officers may not challenge the competence of the legislature to enact the very statutes under which these officers so act. Appellants seek to differentiate the Hewitt case from the case at bar for the reason that no claim was made in the Hewitt case that the statute in question violated the Federal Constitution, and also upon the ground that the county was not a party defendant in the Hewitt *Page 585
case. The holding in that case, 223 Iowa, loc. cit. 1377,275 N.W., loc. cit. 97, disposes of both these contentions:
"Counties and other municipal corporations are, of course, the creatures of the legislature; they exist by reason of statutes enacted within the power of the legislature, and we see no sound basis upon which a ministerial (or, for that matter, any other) office may question the laws of its being. The creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities."
This prohibition against the creature questioning the power of its creator must apply with equal force whether the claimed lack of power of the legislature is based upon an alleged contravention of the Constitution of Iowa, or of the Constitution of the United States. Therefore, the trial court did not err in refusing to consider the contention of appellants that the statute in question was unconstitutional.
[2] II. The original petition prayed for mandamus to compel refund of taxes already paid as well as the remission of the unpaid taxes and complaint is made that this constituted a misjoinder of causes of action. No attack upon this misjoinder was made by motion. Furthermore, the decree recites that appellee, with permission of the court, withdrew the portion of the prayer asking for refund of taxes already paid. Therefore, no error could properly be predicated upon this point.
[3] III. Nor would the fact that the stockholders petitioned the board of supervisors for a refund of taxes already paid, in addition to the remission of unpaid taxes, warrant the board in failing to act. Its duty in this respect was positive and it was required to comply with the statute irrespective of notice or demand. That the parties also claimed refunds not contemplated by the statute would not excuse the failure of the board to remit such taxes as came within the purview of the statute since the performance of this duty was enjoined upon it by law.
The trial court properly granted the writ of mandamus and the decree is affirmed. — Affirmed.
All JUSTICES concur. *Page 586 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433534/ | The Muscatine Lighting Company, the plaintiff and appellee, is a public service corporation furnishing gas to the city of Muscatine. In the year 1927 the appellee owned certain real estate which was subject to assessment and taxation. Accordingly in 1927 the assessor called upon the manager of the appellee company for the purpose of listing and valuing the real estate for assessment purposes. After an interview with the manager, the assessor listed and described the real estate for taxation and valued the same at $8,000. This property was assessed under, and the case is controlled by, the Code of 1927. All parties agree to this.
Complying with Sections 7106 and 7115 of that Code, the assessor entered the property and the valuation thereof upon the assessment rolls furnished him by the county auditor for that purpose. When so doing, the assessor, as required by Sections 7111 and 7115 of the 1927 Code, delivered to the appellee's manager a copy of the aforesaid listing and valuation for assessment purposes. Later, and in due time, the assessor, complying with Section 7121 of the 1927 Code, attached his oath to the assessment roll, including the listing and valuation on appellee's property. Then, as required by Section 7122 of that Code, the assessor laid the assessment roll before the local board of review for the correction and adjustment of assessments.
It is required by Section 7130 of the 1927 Code that the assessor be present at the meetings of the board of review and "make upon the assessment rolls all corrections or additions directed by the board." That was done by the assessor in the case at bar. Upon the occasion under consideration, the assessor presented to the board of review, according to the requirements of the statute, the assessment roll in question containing the valuation and assessment of appellee's property. The valuation and assessment of such property was approved by the local board of review as made by the assessor and as shown by the copy of the aforesaid listing and valuation delivered by the latter to appellee's manager. As was his duty under Section 7123 of the 1927 Code, the assessor, after the approval of the assessment roll by the local board of review, made "up the assessor's books in duplicate from such assessment rolls" and returned the same "to the county auditor, together with the assessment rolls, plat *Page 954
book, and all statements which have been furnished to him in connection with the assessment."
Throughout all those proceedings, the valuation of appellee's property for assessment purposes remained at $8,000, as originally fixed by the assessor. After the books were thus delivered to the county auditor, the assessments were submitted to the county board of review, as required by Section 7137. No action was taken by that body which affected appellee's property. Thereafter the assessment was submitted to the state executive council. This body raised the assessment value on appellee's and other property in the county four per cent. Consequently the assessed value of appellee's property was changed from $8,000 to $8,320. Subsequently the taxes in Muscatine County for the year 1928 were levied on the foregoing valuation, and the county auditor, as required by Section 7145 of the 1927 Code, prepared the tax lists accordingly. When the tax lists were thus prepared, the county auditor, as required by Section 7147 of the 1927 Code, delivered the same to the county treasurer in order that such official might collect the taxes due in the year 1928. At the time the tax lists were thus delivered to the county treasurer by the county auditor, appellee's property was valued, as before explained, at $8,320. The taxable value, being one-fourth thereof, was $2,080.
Apparently on March 24, 1928, C.H. Pitchforth, the auditor of Muscatine County, a defendant and appellant, felt for the first time that the valuation on appellee's property was not high enough. So this appellant conferred with the assessor, and, according to the record, the assessor declared that he intended to make the valuation $80,000. By way of explanation, the assessor said that he left a cipher off the figures. No fraud is claimed, and it is not contended that the appellee or its manager in any way induced the assessor to make the valuation of the real estate at $8,000 instead of $80,000. As before explained, the assessor was present before the board of review and there presented to that body, and with them considered, the assessment roll. It was not discovered, however, by either the assessor or the board of review, that appellee's property should have been assessed at $80,000 instead of $8,000. $80,000, it is explained, was the previous valuation on this real estate. Concerning whether there has been a recent change in property values in the *Page 955
community does not clearly appear in the record. In any event, the appellant auditor did not attempt himself to correct the assessment, as authorized by Section 7149 of the 1927 Code, but rather he wrote a letter to Frances B. Rosenbaum, the treasurer of Muscatine County, a defendant and appellant, and suggested that she make the correction. Hence the appellant treasurer changed the value of appellee's property on the assessment books from $8,320 to $83,200. Likewise the appellant treasurer changed the taxable value of appellee's property from $2,080 to $20,800. Thereupon the appellee tendered the amount of taxes due under the original assessment and applied to the district court of Muscatine County for a writ of certiorari, on the theory that the appellants acted without power or authority when making the change.
The writ was issued and the appellants were thereby commanded to make return of their actions in the premises. Complying with the mandate of the writ, appellants made the required return and the case was tried in the district court. That tribunal found that the appellants acted without authority or jurisdiction, and therefore it set aside the added valuation and assessment. From that action, the appellants appeal.
There are two questions involved in the controversy:
First: Did the auditor change the valuation and assessment or was the alteration made by the county treasurer?
Second: If the change was made by the county treasurer, was her action in the premises the assessment of omitted property?
A county auditor, under Section 7149 of the 1927 Code, may do two things in reference to correcting assessments: First, This official may correct an error in the assessment; and, second, he may assess omitted property. Section 7149 reads as follows:
"The auditor may correct any error in the assessment or tax list, and may assess and list for taxation any omitted property."
And Section 7152 declares:
"If such correction or assessment is made after the books have passed into the hands of the treasurer he shall be charged or credited therefor as the case may be." *Page 956
Thus it is seen, as before explained, that the auditor, generally speaking, can do two things, according to that section of the statute. On the other hand, the county treasurer does not have so much authority in the premises. Section 7155 of the 1927 Code authorizes this officer as follows:
"When property subject to taxation is withheld, overlooked, orfrom any other cause is not listed and assessed, the county treasurer shall, when apprised thereof, at any time within five years from the date at which such assessment should have been made, demand of the person, firm, corporation, or other party by whom the same should have been listed, or to whom it should have been assessed, or of the administrator thereof, the amount the property should have been taxed in each year the same was sowithheld or overlooked and not listed and assessed, together with six per cent interest thereon from the time the taxes would have become due and payable had such property been listed and assessed." (The italics are ours.)
[1] Obviously, then, the power and authority of the county treasurer under Section 7155 of the statute is not as broad as that of the county auditor under Sections 7149 and 7152. Therefore, it is important to determine here whether the change of the valuation and assessment in the case at bar was made by the county treasurer or by the county auditor. According to the record, there was no change whatever made by the county auditor on the assessment books. He did not even attempt to make a change himself. Rather than so doing, the county auditor wrote a letter asking the county treasurer to make the change. When that letter was written, the books, it is to be remembered, were in the possession of the county treasurer. Acting upon the written suggestion of the county auditor, the county treasurer did in fact change the valuation and assessment. About this there cannot be a serious controversy, for the evidence on the subject is clear and undisputed. It is plain that the auditor could not delegate his power and authority under the statute to the treasurer. See Thede v. Thornburg, 207 Iowa 639. If the treasurer, then, had the power to change the valuation and assessment, it was because the legislature conferred it upon him, and not due to the fact that the auditor transferred any of his power to the first-named official. In view of the fact that the *Page 957
auditor did not change or correct the valuation and assessment, it is not necessary to determine whether that official had the power or authority to correct the alleged error of the assessor. Hence, we do not determine that question. This case, therefore, will not be a bar to the authority and power of the auditor, if he has such, to correct the alleged error in the assessment and valuation, if any exists.
[2] So, it is essential now to decide whether the county treasurer had the power or authority to change the valuation and assessment under the circumstances. Such power and authority, if any existed, must be found in Section 7155 of the 1927 Code above quoted. There is but one matter upon which the county treasurer can act under Section 7155, and that is "omitted property." While three propositions are named in the section, upon final analysis the provision relates in fact to omitted property. When property is withheld from taxation it is omitted therefrom. Likewise, when property is overlooked for taxation purposes, it is omitted from taxation. Again, when property for any cause is not listed and assessed, it is omitted, generally speaking, from taxation. At least, for all practical purposes under the record in the case at bar that is true.
The assessor and appellee in the case at bar did not withhold property from taxation. As a matter of fact the property in question was valued and assessed at a substantial sum. Neither did the assessor nor the appellee overlook any property, for the real estate under consideration was properly recognized, accounted for, listed, valued, and assessed. Appellants as a matter of fact concede in their argument that the property was not omitted from assessment. Not having been omitted from valuation and assessment, the property under section 7155 of the 1927 Code was not withheld, overlooked, or from any other cause not listed and assessed. This valuation and assessment being for a substantial sum, therefore, it cannot be said that the property was omitted.
"Plainly enough by taxable property withheld is meant property held or kept from being entered on the assessment roll." Tally v. Brown, 146 Iowa 360 (local citation 374).
To the same effect see Woodbury County v. Talley, 153 Iowa 28. *Page 958
In Smith v. McQuiston, 108 Iowa 363, cited by appellants, a clerical error occurred in copying the assessment roll. Consequently it is said that there never had been an assessment. That was true under the Smith case because the assessor's valuation did not become a part of the official records. Here, however, the assessor made a valuation and solemnly placed the same upon the assessment roll, gave a copy thereof, as required by law, to the appellee, and then appeared with his official action before the local board of review, where he and the board both reviewed the valuation and ratified and approved the same. As thus approved, that official valuation was considered by the county board of review, and then by the executive council. The executive council acted upon the official valuation of the assessor and increased the same four per cent. Then, as thus increased, the county auditor made up his books and turned the same over to the county treasurer in order that the taxes therein listed might be collected. Clearly, then, the Smith case (108 Iowa 363), above cited, does not apply to the case at bar. See Polk County v. Sherman, 99 Iowa 60. Repeatedly it has been said by this court that the treasurer has no power to correct error. His authority is limited to the assessment of omitted properties. Security Savings Bank v. Carroll, 128 Iowa 230; German Savings Bank v. Trowbridge, 124 Iowa 514; Gibson v. Clark, 131 Iowa 325; Brainard v. Harlan, 158 Iowa 436; Langhout v. First National Bank of Remsen, 191 Iowa 957; First National Bank v. Weber, 196 Iowa, 1155; Ft. Madison Security Co. v. Maxwell, 202 Iowa 1346.
Quoted excerpts from some of the foregoing authorities will explain to the reader how this court has applied the principle in other cases. It is said in Security Savings Bank v. Carroll (128 Iowa 230), supra, reading on page 231:
"The statutes authorizing the treasurer to assess property `withheld, overlooked or from any other cause not listed or assessed,' was not intended to confer on him appellate jurisdiction to correct the errors or mistakes of assessors or boards of review in estimating values of property actually assessed. If the particular thing has been listed and a value fixed by the proper officers, their action, in the absence of an appeal to the district court, is final." *Page 959
This court used similar language in Brainard v. Harlan (158 Iowa 436), supra, reading on page 440:
"Under previous holdings of this court, the county treasurer is not authorized by section 1374 (of the 1897 Code, now 7155 of the 1927 Code) or any other section, to enter an assessment against property already assessed by the assessor and the board of equalization and returned to the county officials."
Again it was declared by this court in Langhout v. First National Bank (191 Iowa 957), supra, reading on pages 960 and 961:
"Therefore, unless the power conferred upon the county treasurer by the provisions of Code Section 1374 (of the 1897 Code; now section 7155 of the 1927 Code) is a warrant for his listing and assessing of the shares of stock of the defendant bank as omitted property, then such power does not exist. The purpose of this statute, and the sole purpose thereof, is to provide the means whereby property that has escaped the attention of the assessor, or has been withheld from his knowledge, and which may have escaped correction by the county auditor for the current year, may be added to the assessment roll and made to bear its proper and proportionate share of public taxation. * * * To give this statute any other construction would be to create and constitute the county treasurer a reviewing officer in assessments required to be made by the assessor, and clearly this is not the legislative intent."
Therefore, it is apparent that Section 7155 of the 1927 Code merely authorizes the county treasurer to assess, for taxation, property which has been "withheld, overlooked, or from any other cause not listed." When the property has not been omitted from the assessment roll, but placed thereon and a value fixed therefor, the treasurer cannot assess it under Section 7155 of the aforesaid Code. All the cases above cited clearly support this conclusion.
Wherefore the county treasurer had no jurisdiction or authority in the premises, and the district court properly sustained *Page 960
the writ of certiorari. Its judgment, then, should be, and hereby is, affirmed. — Affirmed.
WAGNER, C.J., and EVANS, STEVENS, ALBERT, De GRAFF, MORLING, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433535/ | [1] Defendant is a widow who owns one of the better homes in Des Moines, built on a lot 200 feet wide by 400 feet deep. Plaintiff, who is 65, has done various kinds of manual labor. As a boy he did farm work in Sweden. In this country he worked in coal mines for about 25 years, was a hospital janitor about four years, and worked on different construction projects. For a number of years he has done odd jobs. On April 2, 1940, defendant hired plaintiff to rake leaves. He had not worked for defendant before. He was furnished a rake and basket and told to start by cleaning the leaves off a flower bed between the house and a driveway.
Defendant had a "burner" in which to burn leaves, built like a two-wheel cart. It consisted of a large wire-mesh basket mounted on an iron axle which was supported at each end by an iron wheel. It had metal handles connected by a bar in front, with a leg underneath each handle. The wires in the basket were 1 3/8 to 2 inches apart with square openings between the wires. From pictures of the burner and evidence describing it, we judge the top of the basket was about 3 feet wide and 4 *Page 707
feet long, the bottom about 2 feet wide and 3 feet long. The basket was about 2 1/2 feet deep. Underneath the basket was an ashpan 6 to 8 inches deep, somewhat larger than the bottom of the basket. The pan was suspended from the basket by wires at the four corners. The burner was 3 1/2 to 4 feet high. When plaintiff started work the burner was standing back of the house. Defendant told him to get the burner, take it with him and burn the leaves in the driveway. Plaintiff had never before seen such a burner.
Plaintiff worked about two hours the first afternoon raking leaves from the flower bed, putting them in the burner with the basket furnished him and burning them. The next day plaintiff continued raking but carried most of the leaves to a ravine which ran across defendant's lot from northeast to southwest, without using the burner. Plaintiff testified, however, that he used the burner a little the second day. On the third day, plaintiff resumed his raking and burned some of the leaves in the burner during the morning. In the afternoon he carried the leaves to the ravine.
On the fourth day Ralph Lowe was employed to assist plaintiff. About four in the afternoon the ashpan of the burner was full and the two men decided to move the burner to an ash bed about 20 feet away where they could empty the pan. They moved the burner by pulling on the handle, walking backward, facing the burner, which was well filled with burning leaves. When the men had pulled the burner about 10 feet, the wheels struck a little ditch or depression 4 to 8 inches deep, causing some sparks of burning leaves to fall to the ground and set fire to grass and leaves which had not been raked. Plaintiff testified the burning leaves fell on the ground out of the front of the bottom of the basket. Lowe testified that burning ashes overflowed from the ashpan to cause the fire. The men continued to pull the burner the remaining 10 feet to the ash bed, left it, and went back to put out the blaze. After attempting to put out the flames for three to five minutes, plaintiff's trousers and long woolen underwear caught fire and he was very severely and permanently injured. Plaintiff first knew his clothing was on fire when he felt the pain from the burns. *Page 708
In this suit plaintiff claims that defendant was negligent in not furnishing him a reasonably safe place to work and proper equipment, and in not warning of the danger involved. The principal contention is that the burner was not reasonably safe equipment for use under the existing circumstances. At the close of plaintiff's evidence the trial court directed a verdict for defendant and plaintiff has appealed from the judgment thereon. The ground of the motion most relied upon is that the evidence is insufficient to prove the alleged negligence.
[2] I. Appellant first complains of the sustaining of an objection to a question put by his counsel to the witness Barker, fire marshal of Des Moines. He was asked to assume certain stated facts and express an opinion whether the burner would be a safe and proper instrument. One of the facts assumed was that the ashpan was the size of the bottom of the burner. The evidence did not support this statement of an important assumed fact. Appellant himself testified that the ashpan was larger than the bottom of the basket, "* * * the edges of the pan extended beyond the bottom edges of the wire basket of the burner." We conclude, therefore, that the trial court properly sustained the objection. Hypothetical questions must assume only facts that are supported by evidence. 32 C.J.S. 359, section 552; 20 Am. Jur. 662, section 788; Hall v. Chicago, R.I. P.R. Co., 199 Iowa 607, 620, 199 N.W. 491; Stickling v. Chicago, R.I. P.R. Co., 212 Iowa 149, 158, 232 N.W. 677.
[3] II. The remaining assignments of error challenge the ruling on the motion to direct. The vital question presented is whether there was sufficient evidence to warrant a finding that appellee was negligent.
It is well settled that a master must exercise reasonable care to furnish his servant safe and suitable tools and appliances for his work. This duty is similar to the employer's obligation to furnish the servant a reasonably safe place to work. The master is not an insurer of the servant's safety but he must exercise reasonable care to eliminate those dangers which are not the usual or ordinary incidents of the service when the employer has exercised ordinary care.
[4] The servant assumes the risks that naturally pertain to his work but is under no obligation to assume any risk caused *Page 709
by the master's failure of duty. Swaim v. Chicago, R.I. P.R. Co., 187 Iowa 466, 477, 478, 174 N.W. 384, certiorari denied252 U.S. 577, 40 S. Ct. 344, 64 L. Ed. 725; Rehard v. Miles, 227 Iowa 1290, 1295, 290 N.W. 702; 35 Am. Jur. 604, 605, sections 175, 176.
[5] Appellant contends that the burner was defective, first, because the bottom of the basket sagged somewhat, leaving a gap or opening between the front part of the bottom and the upright front end. This gap appears to be about 3 inches in width at the widest point. Appellant estimated the normal openings between the wires at from 1 3/8 to 2 inches and the witness Lowe at 1 3/4 inches. At each side the front of the bottom of the basket was flush with the upright front end. Appellant testified that the burning leaves which caused the fire fell through this gap in the bottom of the basket. A second complaint against the burner is that the ashpan was not stationary but would swing out from underneath the basket when the burner was moved over rough ground, causing burning leaves or ashes to fall to the ground. A third claim is that the pan was too shallow and without a protecting rim around the sides of the basket to prevent the escape of fire when the burner was moved on rough ground. The ashpan was 6 to 8 inches deep, with its top edges 1 to 3 inches below the basket and extending beyond its bottom edges. Appellant also complains that appellee did not instruct him how to use the burner nor warn him of any danger therefrom.
It appears that appellant had used the burner a portion of the time during the nearly three and one-half days he worked for appellee before his injury. Appellant emphasizes the fact that before the day of his injury he had worked mainly on parts of the lawn which were smooth and had not moved the burner over the rougher ground back of the house. Appellant testified that on either the second or third day he removed the ashpan by unhooking the wires by which the pan was suspended from the basket. He then emptied the ashes from the pan and hooked it back on as close as he could to the bottom of the basket, so that the edges of the pan were 1 to 3 inches below the basket.
Lowe testified, and his evidence is plain, that before he and appellant moved the burner shortly prior to appellant's injury, *Page 710
he told appellant the pan was so full it started a fire every time the burner was moved, and suggested that they empty the pan. Appellant then agreed that the pan should be emptied and went to help Lowe move the burner to the ash bed for that purpose. For some time up to then Lowe had been moving the burner himself. The fair inference is that appellant assisted in moving it on this occasion because the basket was about full of burning leaves, the pan full of ashes, and the ground was rough and covered with leaves. Appellant testified that when they started to move the burner he knew the ground was rough and lots of leaves were there. The pan had not previously been emptied on that day, although the burner was in use much of the time. The leaves had not been raked from the ground over which the two men moved the burner. Appellant testified that the little ditch that the wheels of the burner struck was not as deep as some of the holes he had stepped in earlier that afternoon.
Lowe testified that at about one o'clock in the afternoon on the day of the injury some fire had fallen out of the burner and was burning some leaves on the ground; that appellee noticed this and directed Lowe to put out the fire.
We conclude that the evidence was insufficient to warrant a finding of negligence on appellee's part in any of the respects claimed. It may be conceded that the burner, like most incinerators and stoves, was not an absolutely safe appliance. However, an employer is not obliged to furnish the latest, best, and safest devices that will eliminate all possibility of danger. He is required only to furnish equipment that is reasonably safe and suitable. 35 Am. Jur. 604, 605, sections 175, 176; 39 C.J. 329, section 449. We think appellee did not violate her legal duty by furnishing appellant the burner.
[6] Neither was appellee under the duty to warn appellant of danger in the use of the burner. Any danger in using this device was as evident to appellant as to appellee. There is no duty to warn of open and obvious dangers, matters of common knowledge, or the operation of natural forces, in the performance of simple tasks. Meyers v. Bennett Auto Supply Co., 169 Iowa 383, 151 N.W. 444; Haskell v. Kurtz Co., 181 Iowa 30, 39, 162 N.W. 598, L.R.A. 1917F 881, and cases cited; 35 Am. Jur. 580, section 148; 39 C.J. 499, 500, section 612. *Page 711
Certain dangers naturally inhered in the work appellant was doing. These were risks ordinarily and normally incident to that kind of work. Appellant must be held to have assumed all such risks not resulting from appellee's negligence. Laws v. Richards,210 Iowa 608, 611, 231 N.W. 321, and cases cited; Swaim v. Chicago, R.I. P.R. Co., supra; 35 Am. Jur. 722, section 299; 39 C.J. 705, section 908.
The judgment is — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433537/ | The plaintiff and appellant, the First National Bank of Tama, is the holder of an unsatisfied judgment against W.W. Lynch, who is the owner of 80 acres of land in Poweshiek County. On November 9, 1923, W.W. Lynch executed a note for $8,864, payable to the appellee, J.M. Lynch, his brother, and secured the same by a second mortgage on the land. The action is to set aside this mortgage as having been executed in fraud of creditors.
The controlling principles of law are well settled. A creditor, acting in good faith, may take security from his debtor, or secure payment of his debt, although he knows that there are other creditors whose claims will thereby be defeated. Even knowledge on his part that the debtor is actuated by a fraudulent purpose is not sufficient to avoid the conveyance to him, if he acted in good faith and for the purpose of obtaining security for his debt, and not for the purpose of aiding the fraud. Rosenheimv. Flanders, 114 Iowa 291; Steinfort v. Langhout, 170 Iowa 422;Ford v. Ott, 182 Iowa 671; Halloran v. Halloran, 195 Iowa 484;Grant v. Cherry, 199 Iowa 164. Fraud will not be presumed from the mere showing of a tie of blood between the parties, although such relationship is a proper subject for consideration in the examination of such a transaction. Farmers L. Tr. Co. v.Scheetz, 196 Iowa 692.
The question presented is one of fact. It is the claim of appellee that the mortgage was given to secure an existing indebtedness. The determination of the case turns, ultimately, upon whether such indebtedness in fact existed at that time. If the claimed indebtedness existed, there can, under the record, be no question but that the mortgage was not fraudulent. If, on the other hand, there was no such indebtedness, it is clear that there was a fraudulent purpose on the part of both the mortgagor and the appellee. The latter admits that he had knowledge of the claim of the appellant, and testified that he was moved to take the mortgage by knowledge of efforts on the part of appellant to obtain security for, or payment of, its claim.
The testimony of W.W. Lynch was offered by the appellant. Both he and the appellee testified, in substance, that, from a time prior to 1916, W.W. Lynch had borrowed money in various amounts from the appellee, and had executed notes therefor; that new notes were at times taken for a portion of the *Page 797
indebtedness, and the old notes surrendered; that none of the notes provided for interest; that, at the time of the execution of the mortgage in question, such indebtedness amounted to $10,464, and was evidenced by five notes in various amounts aggregating that sum; that, at that time, in addition to the note and mortgage in question, $1,000 of the indebtedness was secured by a mortgage on other property, and appellee took a threshing machine for $600. The transaction with reference to the latter mortgage and the threshing machine is not here involved, further than as it may bear upon the good faith of the parties. The five prior notes are in evidence.
W.W. Lynch testified that he had been engaged in farming and stock feeding, and had lost $10,000 or $12,000 in feeding cattle and hogs, and had expended $3,000 in improvements on the farm. The appellee testified that, during the years when he made the claimed loans, he had an income of from $2,500 to $5,500 a year from his occupation as traveling salesman; that his wife was divorced in 1918, and after that he had no family. The testimony as to making of the loans was, to a limited extent, corroborated by the wife of W.W. Lynch.
Neither the appellee nor W.W. Lynch was able to give the amounts or dates or circumstances of any but a few of the claimed loans, nor were any of the notes claimed to have been given therefor, except the five referred to, produced on the trial. Some of the loans were claimed to have been made by check, but no checks were produced.
There was no direct contradiction of the testimony of the Lynches. Its force must be overcome, if at all, by the inherent improbability of the story told and the appearance of the surrendered notes.
It is not incredible that W.W. Lynch suffered such losses in his business and made such improvements on his farm during the years when it is claimed he borrowed money of his brother, or that he required assistance to the extent claimed. Neither can it be said that the failure of the witnesses to recall the details of all the loans, or what, in particular instances, the money was used for, renders their uncontradicted story unworthy of belief. Nor does it appear that appellee was not financially able to have made the loans claimed.
The strongest circumstance tending to discredit the testimony *Page 798
of the appellee and his brother is that the notes surrendered on the execution of the mortgage, which have been certified to this court, although purporting on their face, and claimed by the Lynches, to have been executed at different times during a period of five years, are all upon the same printed form, with the blanks filled and changes made in typewriting which appears to have been done on the same machine and with the type and ribbon in the same condition. The form is one evidently designed for use by agents in the sale of vehicles for the Spaulding Manufacturing Company. The appellee testified that, prior to 1916, he had been employed by that concern, and had kept a number of its blank notes, and that he prepared the notes in question on his own typewriter, the ribbon on which had not been changed since 1910. The signatures on the second and fourth notes in point of time appear to have been made with a black, and on the others with an indelible, pencil.
There was testimony from two witnesses who were bankers, and familiar with signatures, and professed some familiarity with typewriting, that, in their opinion, the signatures on the notes were made at the same time, and that the blanks were filled and the changes made in the notes on the same typewriter at the same time, and that a typewriter ribbon would become dry in time, and make a dimmer impression.
We think it cannot be said, however, that the appearance of the notes and the expert testimony with respect thereto are sufficient to overcome the positive and otherwise uncontradicted testimony that the notes were executed at the different times claimed.
The burden was on appellant to establish the fraudulent character of the mortgage, and, under the facts and the claim made, that there was no existing indebtedness, and therefore no consideration for the mortgage. This burden it clearly has not sustained by the claimed improbability of the testimony of the parties to the mortgage with respect to the indebtedness. If it be conceded that the appearance of the notes raises a suspicion that they were all written at the same time, and that this affects the credibility of the testimony of the parties that they were made at different times and evidenced an indebtedness then existing, this does not, under all the circumstances shown, in our opinion, establish that no such indebtedness existed, as against *Page 799
the uncontradicted and not unreasonable testimony of the parties to the transaction that it did exist.
A conveyance is not set aside at the suit of a creditor on a mere suspicion of fraud, but the evidence thereof must be clear and satisfactory. Ray v. Teabout, 65 Iowa 157; Cathcart v.Grieve, 104 Iowa 330; Urdangen v. Doner, 122 Iowa 533; Smyth v.Hall, 126 Iowa 627; Corn Belt Sav. Bank v. Burnett, 203 Iowa ___.
We agree with the conclusion reached by the trial court, and the judgment is — Affirmed.
De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433538/ | This is an action in mandamus brought by Frank Lanphier against the Tracy Consolidated School District, its officers and directors. All the facts, for the purpose of this case, appear in the petition and amendment thereto, which allege that the Tracy Consolidated School District is duly organized under the laws of the State of Iowa, located in Marion and Mahaska Counties; that Frank Lanphier resides in said school district, and has five children of school age who are entitled to attend school in that district; that his residence is situated more than a mile from said school and is located upon a public highway and is not within the limits of any city, town, or village; that under the provisions of section 4179 of the Code of 1935 it is mandatory upon the school board of every school district to provide suitable transportation for every child of school age living within said corporation; that the Tracy Consolidated School District, thru its officers and directors, has failed and refused to provide transportation for the Lanphier children; that demand has been made of the school district and its officers that transportation be furnished.
To the petition was filed a motion to dismiss, on the grounds: (1) That the plaintiff has a plain, speedy, and adequate remedy at law and there is no showing that he has used or attempted to use said remedy of appealing to the county superintendent from the decision of the school board; (2) that the school board does not have a mandatory duty under section 4179 of the Code, as alleged in plaintiff's petition. That it has the right under section 4180 of the Code to suspend the transportation of any route when in its judgment it would be a hardship *Page 1037
on the children and when the roads to be traveled are unfit or impassable. That the school board also has the discretion under section 4181 of the Code to require children living an unreasonable distance from school to be transported by the parents or guardian a distance of not more than two miles to connect with any vehicle of transportation to and from school. That, in determining what an unreasonable distance is, consideration shall be given to the number and age of the children and the condition of the roads and the number of miles to be traveled in going to and from school. That the district has a bus traveling within three-fourths of a mile of plaintiff's home. That mandamus is not the proper procedure when a board of directors, in carrying out the terms of the statute, have power of exercising their judgment and discretion, and the remedy for one aggrieved is to appeal to the county superintendent of the schools and not mandamus.
The court sustained the motion to dismiss. Plaintiff refused to plead further, and judgment was entered against him, dismissing the case and assessing the costs. Being dissatisfied with the ruling of the lower court, plaintiff has appealed.
Realizing the importance of education and desiring that every child have the opportunity of attending school, the legislature of this state passed certain statutes relative to the transportation to and from school of children living in the country.
The appellant in this case bases his entire right of recovery upon section 4179 of the 1935 Code and ignores sections 4180 and 4181, limiting section 4179 and giving the school board the privilege of discretion in the matter of transportation.
Section 4179 is as follows:
"4179. Transportation. The board of every consolidated school corporation shall provide suitable transportation to and from school for every child of school age living within said corporation and more than a mile from such school, but the board shall not be required to cause the vehicle of transportation to leave any public highway to receive or discharge pupils, or to provide transportation for any pupil residing within the limits of any city, town, or village within which said school is situated."
This is followed immediately by section 4180, which reads as follows: *Page 1038
"4180. Transportation routes — suspension of service. The board shall designate the routes to be traveled by each conveyance in transporting children to and from school. The board shall have the right on account of inclemency of the weather to suspend the transportation on any route upon any day or days when in its judgment it would be a hardship on the children, or when the roads to be traveled are unfit or impassable."
Then follows section 4181, which reads:
"4181. By parent — instruction in another school. The school board may require that children living an unreasonable distance from school shall be transported by the parent or guardian a distance of not more than two miles to connect with any vehicle of transportation to and from school or may contract with an adjoining school corporation for the instruction of any child living an unreasonable distance from school. It shall allow a reasonable compensation for the transportation of children to and from their homes to connect with such vehicle of transportation, or for transporting them to an adjoining district. In determining what an unreasonable distance would be, consideration shall be given to the number and age of the children, the condition of the roads, and the number of miles to be traveled in going to and from school."
[1] A reading of the last two sections shows that a patron of the school district cannot require the school board to transport children from their homes to the school when they live an unreasonable distance from the school and where the roads to be traveled are unfit or impassable. In such a case the board may require the parents to transport their children a distance not exceeding two miles, to connect with the regular school bus route. Certainly, no one can say that this is an unreasonable requirement. If the bus was required to travel unfit or impassable roads it might delay arrival on time at the school, it might work an unnecessary hardship on other children, and the cost might be prohibitive. In the case at bar the pleadings show that the regular school bus route passed within three-fourths of a mile from appellant's home. Under this condition he is obliged to transport his children that distance, and the school board is obliged to allow him reasonable compensation for so transporting them. *Page 1039
[2] Where a school board has a positive duty to perform and it is given no discretion, then of course mandamus will lie to compel it to act. However, where the school board is given a discretion, as it was in this case, as shown by sections 4180 and 4181 of the Code, the appellant has an adequate remedy by appeal, first, to the county superintendent, and then, if he is aggrieved by the decision of the county superintendent, to the state superintendent of public instruction, as provided by chapter 219 of the Code. Having that right of appeal, his remedy at law is adequate, and mandamus cannot be brought against the school board.
In the case of Templer v. School Twp., 160 Iowa 398, at page 401, 141 N.W. 1054, 1055, this court said:
"The different grounds stated in the demurrer present the ultimate question of plaintiff's right to proceed by mandamus in this action. It is so well settled by our statutes and decisions as to be almost axiomatic that the courts may not review the actions of school officers which are based upon the exercise of discretion and which are within their powers. The methods provided by statute, first by hearing before the board of directors, then by appeal to the county superintendent and from thence to the state superintendent (Code, sections 2818, 2820), are complete, and must be exhausted before the courts will take cognizance of a complaint. Even after all means in that direction have been used, the courts will yet refrain from assuming jurisdiction except by proper proceedings to enforce the mandate of the trial officer, should there be disobedience to his order. The statutes vest in the board of directors full discretionary powers to determine what schools shall be taught, and to designate where the pupils shall attend. They may provide for the attendance of pupils in another district, and may, when necessary, provide a school when there are ten or more children without school accommodations. Code, section 2774. In the exercise of the powers thus granted the decision of the board can be reviewed only by appeal. That mandamus is not, in such cases, the proper method of presenting the question, see Aananson v. Anderson, 70 Iowa 102, 30 N.W. 38; Kinzer v. Ind. School Dist.,129 Iowa 441, 105 N.W. 686, 3 L.R.A. (N.S.) 496, 6 Ann. Cas. 996; State v. Thomas, 152 Iowa 500, 132 N.W. 842. The above are but a few of a large number of our cases which establish the rule." *Page 1040
In the case of Hein v. Luther, 197 Wis. 88, 221 N.W. 386, at page 387, that court said:
"However, it does not follow that the plaintiff may maintain mandamus in the event that the school board does not provide transportation. The statute provides what shall be done in that event. It shall be furnished by the parents at the expense of the district. It may well be that the school board elected that the parents should provide transportation, and that the district should pay therefor at the statutory rate, rather than attempt to provide transportation itself. Where a statute prescribes a procedure, the procedure so prescribed is exclusive of any other remedy. State ex rel. Langen v. Bodden, 165 Wis. 243,161 N.W. 767."
The appellant cites and relies greatly upon the case of Benjamin v. District Township of Malaka, 50 Iowa 648. We set out the quotation contained in appellant's brief:
"It is urged that the remedy of the plaintiff was to appeal from the refusal of the board of directors to the county superintendent, and that this action will not lie because there was another plain, speedy, and adequate remedy. In support of this position, Marshall v. Sloan et al., 35 Iowa 445, is cited. That case is not in point, because under the statute governing that decision the thing to be done was, to some extent at least, discretionary. It was not the positive duty of the board to take the action desired by the plaintiff in that case. Here, as we have seen, there is a plain official duty to be performed. An appeal would not afford either a speedy or adequate remedy, for the school officers have no power to enforce their decisions, and therefore the plaintiff might be compelled to come into the courts at last. Where a positive official duty is enjoined by law upon any officer, and as to the mode or manner of performance he has no discretion, the only adequate remedy ordinarily is that ofmandamus."
We have no fault to find with the rule of law set out in the above cited case. The court simply held that after the election the board had no discretion except to follow out the mandate of the electors, and of course mandamus was the proper remedy. However, in the case at bar, under the statutes covering the question of transportation of children to and from school, the *Page 1041
school board is given the discretion to suspend the transportation on account of the weather or when the roads to be traveled are unfit and impassable, and to require that children living an unreasonable distance from the school shall be transported by the parent or guardian a distance of not more than two miles to connect with any vehicle of transportation to and from school, allowing reasonable compensation to those transporting the children.
Judgment of the lower court must be, and it is hereby, affirmed. — Affirmed.
STIGER, C.J., and ANDERSON, KINTZINGER, DONEGAN, HAMILTON, SAGER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433539/ | Patrick Lane, through the will of his father, Edmund Lane, acquired a life estate in the 160-acre farm in controversy with the right to mortgage it for not more than $2,400. What is conceded to be a contingent remainder was devised to the legal heirs of Patrick at the time of his death. The plaintiffs are the five daughters and one son of the life tenant, two of whom were still minors when this suit was started.
In 1896, one year after his father's death, Patrick mortgaged the land for $2,400. This mortgage was paid off and satisfied in 1917. In 1906, Patrick mortgaged this and other land for $6,775. Foreclosure of this mortgage was instituted and the land went to sheriff's deed in 1910. The grantee of the sheriff's deed, a few days after acquiring the same, conveyed the land to one Nora Kinney who, in 1913, quitclaimed to Margaret Lane, wife of Patrick, the life tenant.
In January 1923, an action to quiet title was instituted in the name of Margaret Lane, naming as defendants her husband, Patrick, and her six children (plaintiffs in the present suit). The trial court, in the present suit, found that notice of the *Page 975
title quieting action was served upon all defendants to that action. A guardian ad litem was appointed in the 1923 suit, who filed answer alleging, among other matters, that Patrick Lane never mortgaged the real estate for $2,400, but did mortgage it for $6,775. On February 10, 1923, a decree was entered quieting the title in Margaret Lane. The decree appears to have been largely based on the false allegation in the answer of the guardian ad litem that no mortgage for $2,400 covering this land had been executed; that therefore the $6,775 mortgage was valid at least to the extent of $2,400, and that since it covered other land and no attempt at redemption from the foreclosure sale had been made, title should be quieted in Margaret.
In April 1926, Margaret and her husband, Patrick, mortgaged the 160 acres to defendant-appellant, Travelers Life Insurance Co., for $12,000. This mortgage was foreclosed and a sheriff's deed issued to appellant on February 3, 1938, when it took possession. The amount of the debt when this deed issued was approximately $16,000.
On the same day the sheriff's deed was issued to appellant, this suit was instituted. The trial court found that plaintiffs living at the time of the death of Patrick Lane would be entitled to the real estate, unless they had been divested of their rights by the title quieting decree of February 10, 1923. We quote from the decision of the trial court:
"Plaintiffs claim that such decree is voidable because the proceedings were fraudulent. The guardian ad litem in that case said in his answer, among other things, that Patrick M. Lane never gave the $2,400 mortgage which he was authorized to give. The record shows that he did give such a mortgage. The decree quieting title appears to have been largely based upon the thought that such mortgage had not been given. Even a cursory examination of the record would have disclosed the fact that such mortgage had been given. This allegation in the answer of the guardian ad litem constituted a constructive fraud entitling the wards on timely application to have the decree set aside. The four adult plaintiffs, however, have not made timely application. They have slept on their rights while the statute has run and no relief can be given them. The two *Page 976
minor plaintiffs are in a different situation. The statute has not run against them. They are entitled to have their interest established as prayed, contingent, of course, upon their surviving Patrick M. Lane."
[1] The principal contention urged upon us by appellant is that the rights of the two minor plaintiffs are barred by Code section 11024, which, so far as material, reads as follows:
"No action based upon any claim arising or existing prior to January 1, 1920, shall be maintained, * * * in any court to recover any real estate * * * or to recover or establish any interest therein or claim thereto, * * * against the holder of the record title * * * in possession, when such holder of the record title and his grantors * * * are shown by the record to have held chain of title * * * since January 1, 1920, unless such claimant, by himself, or by his attorney or agent, or if he be a minor or under legal disability, by his guardian, trustee, or either parent shall within one year from and after July 4, 1931, file in the office of the recorder of deeds * * * a statement in writing, * * * definitely describing the real estate involved, the nature and extent of the right or interest claimed, and stating the facts upon which the same is based.
"* * * any person who holds title * * * under any * * * sheriff's deed, shall be deemed to hold chain of title the same as though holding by direct conveyance."
It was stipulated that Patrick and Margaret Lane, together with their children who were living in the home, occupied the land in question for twenty years up to March 1, 1936, when a tenant occupied it until appellant acquired sheriff's deed on February 3, 1938. It is conceded that no written statement contemplated by the above statute was ever filed on plaintiffs' behalf.
The general statute of limitations fixes ten years as the time for bringing actions to recover real property and to set aside a decree quieting title. Section 11007 (Pars. 6 and 8). Section 11015 extends the time in favor of minors and insane persons until one year after the termination of such disability. Accordingly, the rights of the two minor plaintiffs are not *Page 977
barred by the general statute, section 11007. However, by section 11026, "The provisions of section 11015 as to the rights of minors and insane persons shall not be applicable against the provisions of section(s) 11024," above quoted, upon which appellant relies. Further, section 11024 is by its very terms made applicable to the claims of minors or those under legal disability. It is well settled that a statute of limitations runs against the claims of infants in the absence of a contrary statutory provision. 34 Am. Jur. 158, section 197; Boyle v. Boyle, 126 Iowa 167, 101 N.W. 748, 3 Ann. Cas. 575.
[2] What now appears as Code section 11024 was first enacted in 1919 to apply to claims "arising or existing" prior to 1900. Ch. 270, Acts 38th G.A. By Chapter 189, Acts 41st G.A., the year 1915 was substituted for 1900. By Chapter 219, Acts 44th G.A., this date was changed to 1920. Even though this law first appeared in 1919, it seems never to have been construed by this court. No attack upon the validity of this statute is made by appellees.
Appellant and its grantor, Margaret Lane, held record chain of title since January 1, 1920, in fact since the deed from Nora Kinney in 1913. Appellant was in possession. It is to be noticed that section 11024 does not require that possession be for any definite period. Appellees have a claim to or interest in the land in question, even though contingent. Did their claim arise or exist prior to January 1, 1920? It is only such claims that are barred by the statute. The will of their grandfather, under which plaintiffs claim, was probated in 1895. The deeds purporting to convey the fee, executed prior to their birth, were inconsistent with their claims as was, of course, appellant's mortgage made in 1926. The two minors were born November 11, 1917, and June 10, 1919, respectively.
The word "arising," according to the dictionaries, means "originating" or "coming into being." See, too, 6 C.J.S. 334 et seq. While the term has sometimes been used in the sense of "accruing," it is more frequently distinguished therefrom. See Moran v. Moran, 144 Iowa 451, 461, 123 N.W. 202, 30 L.R.A., N.S., 898; 4 Words and Phrases, Perm. Ed., 10.
[3] This court has repeatedly recognized that contingent *Page 978
remaindermen have such an interest as a court of equity will protect and that title can be acquired against them by adverse possession, prior to the termination of the life estate. Ward v. Meredith, 186 Iowa 1108, 173 N.W. 246, and cases cited; Skelton v. Cross, 222 Iowa 262, 271, 272, 268 N.W. 499, 109 A.L.R. 129. The rule of these cases is largely based on Code section 12285 providing that "An action to determine and quiet the title of real property may be brought by anyone, whether in or out of possession, having or claiming an interest therein * * *."
It might be contended that plaintiffs' claim would not arise or exist until the death of Patrick Lane, since it is only upon the termination of the life estate that their interests would vest or become certain; that no one can be heir to the living. We believe such conclusion would be inconsistent with the rule to which we are definitely committed of Ward v. Meredith, Skelton v. Cross, supra, and the earlier cases cited in those decisions. If plaintiffs' claim has not yet arisen or is not now in existence, what right do they have to maintain this action? If they have a claim to the land in question (which can hardly be denied), when did it arise or come into existence, if not prior to 1920?
This court has held that a contingent remainder is such an interest as may be conveyed by deed or mortgage. McDonald v. Bayard Sav. Bk., 123 Iowa 413, 416, 98 N.W. 1025, 1026; Bogenrief v. Law, 222 Iowa 1303, 1311, 271 N.W. 229; John Hancock M.L. Ins. Co. v. Dower, 222 Iowa 1377, 1384, 271 N.W. 193.
[4] We see no escape from the conclusion that the claim of the minor plaintiffs arose or existed prior to January 1, 1920, and that it is barred by the plain provisions of Code section 11024. It may be that the legislature did not intend this provision to apply to such a case as the present. However, as we view it, the language of the statute is plain and unambiguous. Nor are we concerned with the policy of the law-makers in enacting this measure. We may observe, however, that there can be little doubt of the desirability of statutes giving *Page 979
greater effect and stability to record titles. We believe it our duty to enforce this statute as written. The trial court should have dismissed plaintiffs' petition. — Reversed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433540/ | The plaintiffs-appellees claim that Chapter 129 of the 1927 Code, as amended (Acts Forty-third General Assembly, Chapter 75), is unconstitutional and void. This legislation was enacted by the state for the purpose of controlling and eradicating bovine tuberculosis. Section 2 of the amendment declares:
"The state of Iowa is hereby declared to be and is hereby established as an accredited area for the eradication of bovine tuberculosis from the dairy and breeding cattle of the state."
Quarantine is authorized, and tubercular cattle may be destroyed or otherwise disposed of by the department of agriculture. Inspectors or testers are arranged for in the legislation, and these agents may apply the tuberculin or other tests, to determine the existence or nonexistence of tuberculosis in the cattle. Various phases of this legislation have been before us at different times. See Peverill v. Board ofSupervisors, 201 Iowa 1050; Fevold v. Board of Supervisors,202 Iowa 1019; Lausen v. Board of Supervisors, 204 Iowa 30; Peverillv. Board of Supervisors, 208 Iowa 94.
Appellees are the owners of dairy and breeding cattle in Mitchell County. Defendants-appellants include the state department of agriculture, its secretary, and other state and county officers who are commanded by law to enforce the Bovine Tuberculosis Statute aforesaid. It was stipulated in the district court that, unless the injunction was granted by that tribunal, the defendants *Page 569
would proceed under the law to apply the tuberculin test to appellees' cattle. Also, it was stipulated that the department of agriculture had claimed to locate tuberculosis in certain animals in appellees' herds. So, too, it was stipulated that, unless prevented by injunction, the department of agriculture would order the slaughter of those animals which reacted to the tuberculin test. Hence, appellees bring this action to obtain an injunction, in order that the Bovine Tuberculosis Statute aforesaid will not be enforced. Foundation for the action, as before said, is that the legislative act in question is unconstitutional. Basis for this contention is that the legislation under attack does not provide due process of law, and permits an unreasonable exercise of the police power, allows arbitrary action by the enforcing officers, authorizes the administrative department to unlawfully enact and enforce rules and regulations, is not uniform in its operation, combines in one testing agent the duties of administrative and judicial officers, and otherwise is repugnant to the state and Federal Constitutions. Hence, it is urged, the legislation is in conflict with Articles 1, 3, 4, and 5 of the Iowa Constitution and theFourteenth Amendment to the United States Constitution.
There is presented, then, the problem of determining the merits of appellees' contentions aforesaid. Unconstitutionality, if any exists, arises because the state legislature exceeded its powers when enacting the particular laws now being considered.
Under our system of government, the law-making power is vested in the legislature. Such power was originally in the people. Likewise, in our civil government, the administrative and judicial authority originated with the people 1. CONSTITU- themselves. These three fundamental prerogatives TIONAL LAW: were granted by the people, through appropriate construc- constitutional and legislative provisions, to tion: the legislative, administrative, and judicial statutes: departments of the state government. Each doubtful department of government is an agency of the constitu- people. No department can exercise any power or tionality: authority not granted to it by the people. By necessary conferring a particular power or authority upon holding. one department, the people thereby indicated that they withheld such power or authority from the other departments. Power to legislate was significantly and intentionally conferred upon the legislative *Page 570
department. Consequently, the courts cannot interfere with the exercise of that power and authority by the legislature. It is only when the legislature attempts to exercise a power which it does not possess, because of state or Federal constitutional prohibitions, that the duty devolves upon the court to declare the act unconstitutional. Through such declaration, the court, as an agency of the people, reports back to them that another agency — the legislature — has thus exceeded its power. Unless the legislature has usurped powers prohibited by said Constitutions, the courts will not interfere. The unconstitutionality must "plainly, clearly, and palpably appear." Even if the constitutionality of a legislative act is doubtful, the courts will resolve the benefit of the doubt in favor of the legislature's power. As said in City of Des Moines v. ManhattanOil Co., 193 Iowa 1096, on page 1117:
"There is no presumption against the validity of an act of the legislature. On the contrary, all presumptions are in its favor, and a statute will not be held unconstitutional unless its contravention of constitutional guaranties is so clear, plain, and palpable as to leave no reasonable doubt on the subject * * *."
For authorities announcing the same doctrine, see State v.Hutchinson Ice Cream Co., 168 Iowa 1 (local citation 10); Statev. Fairmont Cream. Co., 153 Iowa 702 (local citation 706);Hubbell v. Higgins, 148 Iowa 36 (local citation 47); McGuire v.Chicago, B. Q.R. Co., 131 Iowa 340 (local citation 348);Stewart v. Board of Supervisors, 30 Iowa 9 (local citations 11, 19). See, also, Kimball v. Board of Supervisors, 190 Iowa 783
(local citation 792). When the constitutionality of a legislative act is challenged by a litigant, the burden is upon him to show why the legislation thus should be overthrown and rejected.People v. Teuscher, 129 Misc. Rep. 94 (221 N.Y. Supp. 20, 25). See the other cases above cited.
Have the appellees met this burden in the case at bar? That is the question. Convenience suggests that appellees' attack on the Bovine Tuberculosis Statute be discussed in the order named.
I. Is the legislation under consideration within the police power of the state? If so, is there provided due process of law in the enforcement thereof? *Page 571
Police power is constantly exercised by the state; yet a 2. CONSTITU- definition of such power has never been TIONAL LAW: definitely and precisely formulated. In fact, police public policy rather demands that there be no power: specific definition. See Stettler v. O'Hara, 69 Bovine Ore. 519 (139 P. 743). Each case as it arises Tuberculosis must be determined according to its own facts. Act: State v. Schlenker, 112 Iowa 642. During its eradication discussion in the case of Jacobson v.
through Massachusetts, 197 U.S. 11, the United States tuberculin Supreme Court said: test.
"The authority of the state to enact this [vaccination] statute is to be referred to what is commonly called the police power, — a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and `health laws of every description;' indeed, all laws that relate to matters completely within its territory, and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace at least such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."
Again, the Supreme Court of the United States said in Lawton v.Steele, 152 U.S. 133:
"The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power, it has been held that the state may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory *Page 572
vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular, a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier v.Connolly, 113 U.S. 27; Kidd v. Pearson, 128 U.S. 1. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."
Health measures, generally speaking, are within the police power. Consideration of whether a particular legislative enactment is within the police power involves the substance of the law, as distinguished from the mere name given it. Labeling an act a health measure does not make it such if, in fact, the subject-matter thereof does not relate to health in the way required for due process of law. Lawton v. Steele (152 U.S. 133), supra. So, too, the method prescribed for enforcing a given statute may be so arbitrary and unreasonable as to subject such legislative enactment to judicial interference, and thereby bring upon it the condemnation that it does not afford due process.Peverill v. Board of Supervisors (208 Iowa 94), supra; Durand v.Dyson, 271 Ill. 382 (111 N.E. 143); Atlantic Coast Line R. Co. v.City of Goldsboro, 232 U.S. 548. During the discussion in theGoldsboro case, the Supreme Court of the United States suggested:
"Of course, if it appear that the regulation under criticism is not in any way designed to promote the health, comfort, *Page 573
safety, or welfare of the community, or that the means employed have no real and substantial relation to the avowed or ostensible purpose, or that there is wanton or arbitrary interference with private rights, the question arises whether the law-making body has exceeded the legitimate bounds of the police power."
Everything depends, therefore, upon the nature of the legislation and the method prescribed for its enforcement. Tested by those standards, is the present legislation so within the police power that it affords due process of law?
We are constrained to hold that it is. Bovine tuberculosis is very generally recognized as injurious to cattle, hogs, and poultry. This disease will spread from the cattle to the hogs and poultry. Cattle, hogs, and poultry are so associated with domestic use that the tubercular germ in the live stock and poultry jeopardizes human beings. Transmissibility of the bovine type of tuberculosis to human beings is generally conceded by medical experts. Such bovine tuberculosis, generally speaking, occurs in the human being not so much in the pulmonary as in the bone and other types. Milk from the cows contains the tubercular germ, and children and other users of the milk become infected. It appears that every state in the Union has recognized this evil, and enacted laws to control and stamp out bovine tuberculosis. Moreover, the United States government likewise has recognized the danger, by enacting co-operative legislative measures. Voluminous evidence upon this subject was taken, pro and con, in the case at bar. While there is a conflict, it appears certain from the preponderance of the testimony that the bovine tubercular germ is an active and effective enemy of the human being. All people within the state are in danger. Consequently, the public interest generally demands that the destructive tubercular germ be controlled and eliminated.
Courts have frequently upheld the constitutionality of statutes which control and regulate bovine tuberculosis. That is done upon the theory that the legislation is within the police power.Fevold v. Board of Supervisors (202 Iowa 1019), supra; Peverillv. Board of Supervisors (208 Iowa 94), supra; Lausen v. Board ofSupervisors (204 Iowa 30), supra; People v. Teuscher (129 Misc Rep. 94 [221 N.Y. Supp. 20]), supra; State ex rel. Spillman v.Heldt, 115 Neb. 435 (213 N.W. 578); State ex *Page 574 rel. Spillman v. Splittgerber, 119 Neb. 436 (229 N.W. 332);Kroplin v. Truax, 119 Ohio St. 610 (165 N.E. 498); Schulte v.Fitch, 162 Minn. 184 (202 N.W. 719); People v. Teuscher, 248 N.Y. 454; Hawkins v. Hoye, 108 Miss. 282 (66 So. 741); Adams v. Cityof Milwaukee, 228 U.S. 572; Village of Herkimer v. Potter,124 Misc. Rep. 57 (207 N.Y. Supp. 35); Patrick v. Riley, 209 Cal. 350
(287 P. 455). Benefits from the control and eradication of bovine tuberculosis accrue to all the people. Thus it is a health measure, protecting all mankind. Hence the subject-matter of the legislation meets the final police power test above required by the United States Supreme Court.
Regardless of this, however, appellees maintain that, while the general subject-matter is within the police power, yet the specific provision of the statute aforesaid authorizing the tuberculin test is not within such power. Following is a description of the tuberculin test given by the Supreme Court of Wisconsin in Adams v. City of Milwaukee, 144 Wis. 371
(129 N.W. 518):
"This test is made by an hypodermic injection of a toxic product of the tubercle bacilli which causes a described and recognized rise of temperature in the animal afflicted with tuberculosis, but has no effect, or a different effect, upon cattle not so afflicted."
This definition was followed by this court in Fevold v. Boardof Supervisors (202 Iowa 1019), supra. Appellees contend that the tuberculin test in fact is not a test. Accuracy and dependability are lacking, they assert: for instance, appellees explain that well cows, according to the test, will indicate tuberculosis; while diseased cattle, when the test is applied, appear to be well. Much testimony concerning this proposition was introduced into the record.
On the other hand, however, there is an abundance of evidence to the effect that the test, although not perfect, is reliable and dependable. The evidence being thus in dispute, it is not for the courts to say that the legislature did not have the constitutional power to pass the act. State v. Layton,160 Mo. 474 (61 S.W. 171); Adams v. City of Milwaukee (228 U.S. 572), supra.
However that may be, a careful reading of the evidence produced convinces us that the test is reliable, useful, and advantageous. Frequently the courts have held that a statute authorizing *Page 575
this tuberculin test is within the police power. Fevold v. Boardof Supervisors, 202 Iowa 1019, supra; Peverill v. Board ofSupervisors (201 Iowa 1050), supra; Schulte v. Fitch, 162 Minn. 184
(202 N.W. 719), supra; People v. Teuscher (248 N.Y. 454), supra; Lausen v. Board of Supervisors (204 Iowa 30), supra; Adamsv. City of Milwaukee, 144 Wis. 371 (129 N.W. 518), supra; City ofNew Orleans v. Charouleau, 121 La. 890 (46 So. 911); State exrel. Spillman v. Heldt (115 Neb. 435 [213 N.W. 578]), supra;State ex rel. Spillman v. Splittgerber (119 Neb. 436
[229 N.W. 332]), supra. As expressed in State ex rel. Spillman v.Splittgerber, supra:
"The legislature may, in the exercise of the police power, require that the owners of breeding cattle submit such animals to the tuberculin test, and may adopt reasonable measures for carrying out the requirement."
During the discussion in Adams v. City of Milwaukee
(144 Wis. 371 [129 N.W. 518]), supra, the Wisconsin court suggested:
"The tuberculin test, while not infallible, is the only reliable and useful means for testing cattle for tuberculosis."
Speaking of the tuberculin test, we said, in Peverill v. Boardof Supervisors, 208 Iowa 94, on page 116:
"Turning now to the instant case, we find nothing to sustain the contention that the exercise of the police power of this state, by reason of the enactments herein referred to [the bovine tuberculosis statute allowing the tuberculin test], is arbitrary or unreasonable. Since we hold that the state of Iowa properly exercised its police power in enacting these statutes, it necessarily follows that the due-process clause of theFourteenth Amendment of the Constitution of the United States does not restrict or limit the right of the state to exercise its police power as it did."
Manifestly, from all that has been said and cited, it is evident that a statute permitting the tuberculin test for dairy and beef cattle is within the police power of the state. Such test is *Page 576
not so arbitrary or unreasonable as to permit 3. CONSTITU- the courts, under the circumstances, to TIONAL LAW: interfere with the legislature's prerogative in due process: that regard. Under those circumstances, the Bovine legislation cannot be declared unconstitutional Tuberculosis unless the enforcement of the act is so Act: arbitrary and unreasonable as to deny the justifiable appellees due process of law. Claim is made by and appellees that the machinery of the law does unjustifi- deny due process. Basis for this assertion is able founded upon the thought that there is no appeal destruction. from the finding of the tester, who, representing the state department, goes among the herds and applies the tuberculin test. Without an appeal from the conclusion of this agent to what appellees term "an impartial or judicial tribunal," appellees say due process of law has been denied them.
Obviously they are not correct in this. If the animal in fact is tubercular, and therefore, under the Iowa statutes, a nuisance, it may be quarantined or summarily slaughtered. Protection to the health of mankind cannot be accomplished otherwise. Long delayed court or other procedures would furnish an opportunity for the tubercular germ to infect children and others. Summary action in the premises is essential. Otherwise the government cannot be effective enough to protect its inhabitants against tuberculosis or other plagues. It being assumed that appellees' cattle are infected with tuberculosis, due process of law is not denied by a summary quarantine, or even destruction of the animals. In Jacobson v. Massachusetts
(197 U.S. 11), supra, the United States Supreme Court explained as follows:
"Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that `persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.'" *Page 577
So, here, the appellees have no right to complain that the state, for the protection of its inhabitants, quarantines or destroys cattle if, in fact, they are tubercular. Ex-parte determination may be made of the cattle's condition. Fevold v.Board of Supervisors (202 Iowa 1019), supra; Peverill v. Board ofSupervisors (208 Iowa 94), supra; Kroplin v. Truax, 119 Ohio St. 610
(165 N.E. 498); People v. Teuscher (129 Misc. Rep. 94
[221 N Y Supp. 20]), supra; Arbuckle v. Pflaeging, 20 Wyo. 351
(123 P. 918). It was suggested in North American C.S. Co. v. City ofChicago, 211 U.S. 306:
"We are of opinion * * * that provision for a hearing before seizure and condemnation and destruction of food which is unwholesome and unfit for use, is not necessary. The right to so seize is based upon the right and duty of the state to protect and guard, as far as possible, the lives and health of its inhabitants, and that it is proper to provide that food which is unfit for human consumption should be summarily seized and destroyed, to prevent the danger which would arise from eating it. The right to so seize and destroy is, of course, based upon the fact that the food is not fit to be eaten. Food that is in such a condition, if kept for sale or in danger of being sold, is in itself a nuisance, and a nuisance of the most dangerous kind, involving, as it does, the health, if not the lives, of persons who may eat it."
Also, we find in Kroplin v. Truax (119 Ohio St. 610
[165 N.E. 498]), supra, on page 621, the following excerpt:
"In providing measures for the protection of public health, the destruction or summary abatement of public nuisances inimical to the public health may be ordered. Unwholesome food may be destroyed; diseased cattle may be slaughtered."
To the same effect is the statement found in Peverill v. Boardof Supervisors (208 Iowa 94), supra. Reference is made to the following:
"If the legislature, in enacting this law, was exercising its rights under the police power, then it could, if it so elected, authorize the testing of these cattle and the destruction of those *Page 578
found infected, without notice and hearing, and without even providing compensation therefor."
It being assumed, then, that the cattle have tuberculosis, the right to accomplish their destruction is within the police power, and in such event, the owner is not denied due process of law. That is true for the reason that the state, under such circumstances, is acting within the scope of the police power, and no other legal process is due the owner. Appellees' rights, as owners, to something further in the way of legal process can only arise in the event that the state, through its agents, usurps some authority not within the police power. Confusion, under the facts in this case, is not to be made between an exercise of the police power and due process of law. If the act is within the police power, the due-process guaranty is not violated. Principles underlying police power and due process of law are not in conflict. The boundaries of the one end where the limits of the other begin. Here it is argued that the state, through the statute under consideration, is about to go beyond the field of its police power, and, in that outside realm, usurp ungranted authority. Such usurpation takes place, it is claimed, when an animal which does not in fact have tuberculosis is condemned and slaughtered. Usurpation and use of such ungranted power, appellees contend, would not be an action within the police power. Basis for appellees' contention in this regard is that they are entitled to notice and an opportunity to be heard on the question of whether the state's action in a given case is within the police power. Putting the thought differently, appellees maintain that the cattle in question are not tubercular, and that the truth of the fact must be determined after notice to them and an opportunity to be heard in the matter. Thus appellees assert that, before the state can exercise the aforesaid police power, it must be determined, after notice and hearing, that the cattle are in fact tubercular. So appellees conclude that the legislation in question is unconstitutional because it does not provide for such notice and hearing. Are appellees without a remedy? Does the law deny them the right to a hearing after notice? No provision is contained in the tuberculosis law under consideration which denies the appellees a hearing on the question of whether the cattle are infected. It is true that *Page 579
such hearing, through the necessity of the case, may, and sometimes must, be after the condemnation and destruction. Nevertheless, due process is provided in the event that animals not diseased are destroyed. At this point, the owner, after condemnation and destruction, may sue the destroying agent at common law for damages. This is essential for due process of law. (That does not prevent the owner, under such circumstances, from seeking and obtaining injunctive or some other suitable relief before condemnation and destruction.) Such due process, under certain conditions, as before indicated, does not demand a judicial hearing before the cattle are quarantined or destroyed. That is so because of the danger to health involved. Delay under such circumstances would probably cause injury to, or even the death of, human beings. Nevertheless, the owner of cattle is entitled to a hearing on the question of whether the animal in fact has tuberculosis. Said hearing is demanded by the due-process guaranty. Miller v. Horton, 152 Mass. 540
(26 N.E. 100); Lowe v. Conroy, 120 Wis. 151 (97 N.W. 942); Pearson v.Zehr, 138 Ill. 48 (29 N.E. 854). During its discussion in thePearson case, the Illinois court said:
"To permit the commissioners to determine ex parte that some of the horses had the glanders, and that the others had been exposed thereto, and to hold that determination a justification for slaughtering the horses, without imposing upon appellants [the destroying agents] the burden of establishing affirmatively the actual existence of such disease and such exposure, would not bea valid exercise of the police power of the state, but would bea palpable violation of the constitutional provision that noperson shall be deprived of property without due process of law."
(The italics are ours.)
Likewise, the Supreme Court of Wisconsin, in the Lowe case, declared:
"While such a determination [the one made by the health officer] has been held to be a full protection to all persons acting under it in carrying out the purposes of the law, — that is, to abate, and, if necessary, destroy, that which is in fact a nuisance or source of danger to health, — yet it is no protection for destroying private property which in fact is no such nuisance or *Page 580
source of danger. This is upon the ground that due process of law
[italics are ours] requires that the owner be given an opportunity to be heard at a trial before his private property can be adjudged forfeited for his misconduct, or for the protection of the public health. He cannot be deprived of the right, either before or after such taking of his property, to have * * * [an] inquiry whether in fact he has forfeited the right to his property by coming within the condemnation of the law."
As previously said, however, such hearing need not be before, but can be after, the animals are quarantined or destroyed. InNorth American C.S. Co. v. City of Chicago (211 U.S. 306), supra, the foregoing idea is expressed by the Supreme Court of the United States in the following language:
"A determination on the part of the seizing officers * * * is not a decision which concludes the owner. The ex parte finding of the health officers as to the fact [that the subject seized is injurious to health and therefore subject to condemnation] is not in any way binding upon those who own or claim the right to sell the food. If a party cannot get his hearing in advance of the seizure and destruction, he has the right to have it afterward, which right may be claimed upon the trial in an action brought for the destruction of his property; and in that action, those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness, as claimed by them."
Also, the Supreme Court of Massachusetts, in Miller v. Horton
(152 Mass. 540 [26 N.E. 100]), supra, declared:
"Of course there cannot be a trial * * * before killing of animal supposed to have a contagious disease, and we assume that the legislature may authorize its destruction in such emergencies without a hearing beforehand. But it does not follow that it can throw the loss on the owner without a hearing. If he cannot be heard beforehand, he may be heard afterwards. The statute may provide for paying him in case it should appear that his property was not what the legislature has declared to be a nuisance, and may give him his hearing in that way. If it does not do so, the statute may leave those who act under it to proceed at their peril, and the owner gets his hearing in an action against them." *Page 581
The same thought is expressed in Fevold v. Board of Supervisors
(202 Iowa 1019), supra:
"Many of the cases above referred to [during the discussion in that case], as well as cases cited by appellants, recognize the doctrine that an ex-parte determination that animals are suffering from a contagious or infectious disease is not conclusive on the owner, and that the question whether they were in fact so afflicted may be determined in an action by the owner for the destruction of his property. But this goes to the remedy of the owner in case his property was destroyed without his agreement, and when, in fact, it was not subject to destruction, and not to the validity of statutes requiring cattle to be tested."
To the same effect, see Adams v. City of Milwaukee
(228 U.S. 572), supra; Waud v. Crawford, 160 Iowa 432; Durand v. Dyson,271 Ill. 382 (111 N.E. 143). Wherefore, the owner of cattle is guaranteed a hearing to determine whether the animals are infected with tuberculosis. Events may demand that such hearing be after, rather than before, the condemnation and destruction. Yet the remedy is present all the time. Consequently, due process of law is guaranteed even though the state agents may, perchance, step beyond the realm of the police power; for, if such state representatives destroy healthy cattle, the owner may recover damages for the loss thereof.
Of course, if the owner consents to the destruction of his cattle, he is not denied due process of law when they are destroyed by state representatives. Not only is the foregoing true, but, in addition thereto, the statute specifically provides for the appraisement of the animals, and at least partial compensation to the owner for the loss thereof in case they are destroyed. With said compensation and the aforesaid permissive right to sue the destroyer for wrongful destruction, the owner is protected, as previously suggested. Therefore the statute under consideration is not arbitrary or unreasonable, and it does not deny appellees due process of law in this regard.
Continuing their attack, however, on the statute, appellees claim that the serum injures the cattle, in that it causes abortion, and stringy and unhealthful milk, and even frequently introduces the disease into the bodies of healthy animals, and sometimes causes their death. Testimony is introduced concerning *Page 582
this contention. At this juncture it is asserted that the statute fails to provide due process of law because there is no remedy in such instance; for, if the tester is not negligent, he cannot be liable, because the statute authorizes his use of the tuberculin test. Whether, in the event that the tuberculin test had such injurious or fatal effect upon the cattle, there would be due process of law under the statute, we do not now decide, because the evidence in the record demands a finding contrary to appellees' allegations against the tuberculin test. Much of appellees' evidence in said regard amounts to the mere conclusions of non-experts, while other portions thereof consist of what a certain somewhat prejudiced expert has heard or read, rather than the results of his own experience and practice. At least, it does not satisfactorily appear that the aforesaid evil result will occur if the test is carefully made, with the correct amount of the proper serum.
Appellants, on the other hand, have furnished expert evidence to prove that the serum is not harmful to the animals. If, then, the tuberculin test, when rightly applied, does not materially injure the cattle, we cannot say that the appellees are denied due process of law, under this particular proposition.
From the foregoing discussion, it is apparent that the act does 4. CONSTITU- not vest in the state enforcing agents arbitrary TIONAL LAW: or unreasonable power. Neither arbitrariness nor police unreasonableness is contemplated by the act. power: These testing agents are required to pass nonarbitrary adequate examinations, and to qualify for the exercise of positions. We cannot presume that they will not power under perform their duties according to the law. There Bovine is no reason in this respect to hold that the Tuberculosis act is unconstitutional. Act.
II. An attack is made upon the statute because it is not uniform in its operation. Reason for this 5. STATUTES: complaint asserted by appellees is that the general, provision for compensation is not uniform. special, or Section 12, Chapter 75, Acts of the Forty-third local laws: General Assembly, provides: constitu- tional "No compensation shall be paid to any person uniformity. for an animal condemned for tuberculosis unless said animal, if produced in, or imported *Page 583
into, the state has been owned by such owner for at least six months prior to condemnation or was raised by such person."
The right to compensation for diseased animals is not absolute. They, being nuisances, may be destroyed without compensation.Fevold v. Board of Supervisors (202 Iowa 1019), supra; Kroplin v. Truax (119 Ohio St. 610 [165N.E. 498]), supra; 6. CONSTITU- Peverill v. Board of Supervisors (208 Iowa 94), TIONAL LAW: supra. Such provision for compensation contained construc- in the aforesaid statute is a mere gratuity to tion, the owner. Patrick v. Riley (209 Cal. 350 [287 operation, Pac. 455]), supra. It being such, the recipient and cannot complain concerning the limitations upon enforcement: his right to receive it. Moreover, the law does statutory apply equally to all of the class named in the gratuity: statute. Clearly, the purpose of the legislation unallowable was to stamp out tuberculosis and prevent complaint. speculators from buying up diseased cattle for sale to the state. No reason appears, because of this particular objection, why the act should be declared unconstitutional.
III. Complaint is made by the appellant that the statute in question combines in one testing agent the duties of administrative and judicial officers.
Provisions made in the statute for the testing officer are a part of the police power. Discretion is frequently lodged in ministerial officers. Thus lodging discretion does not necessarily violate any constitutional 7. CONSTITU- prohibition. O'Brien v. Barr, 83 Iowa 51; Brady
TIONAL LAW: v. Mattern, 125 Iowa 158; McSurely v. McGrew,
distribution 140 Iowa 163; State v. Mason City F.D.R. Co.,
of 85 Iowa 516; Hunter v. Colfax Cons. Coal Co.,
governmental 175 Iowa 245. Administrative officers may, powers and within proper limitations, exercise discretion, functions: find facts, and exercise judgment. Hunter v.
combining Colfax Cons. Coal Co. (175 Iowa 245), supra; 6 administra- Ruling Case Law 174 to 181, inclusive. See, tive and also, Chehock v. Independent Sch. Dist., 210 judicial Iowa 258; Schulte v. Fitch (162 Minn. 184 [202 powers. N.W. 719]) supra. Boards exercising administrative functions may promulgate and adopt rules and regulations. Piercev. Doolittle, 130 Iowa 333. Upon the general subject, see, also,Ferguson v. Starkey, 192 Ala. 471 (68 So. 348); Reims v. State,17 Ala. App. 128 (82 So. 576); Kansas *Page 584 City Southern R. Co. v. State, 90 Ark. 343 (119 S.W. 288); Peoplev. Lange, 48 Colo. 428 (110 P. 68); Whitaker v. Parsons,80 Fla. 352 (86 So. 247); Schulte v. Fitch, 162 Minn. 184
(202 N.W. 719); Abbott v. State, 106 Miss. 340 (63 So. 667); In reApplication of Goddard, 44 Nev. 128 (190 P. 916); State v.Railroad, 141 N.C. 846 (54 S.E. 294); Neer v. State L.S. San.Board, 40 N.D. 340 (168 N.W. 601); Bishop v. State, 122 Tenn. 729
(127 S.W. 698); Smith v. State, 74 Tex. Cr. 232 (168 S.W. 522);Serres v. Hammond (Tex.Civ.App.), 214 S.W. 596; Richter v.State, 16 Wyo. 437 (95 P. 51); Arbuckle v. Pflaeging, 20 Wyo. 351
(123 P. 918).
Nothing appears under this proposition, therefore, to warrant the holding that the law is unconstitutional. Other matters are presented by appellees in their argument, but their contentions are all overruled in the Iowa cases above cited. Therefore, a restatement of the principles is not necessary at this time.
Because the Bovine Tuberculosis Law is not unconstitutional, the judgment and decree of the district court should be, and hereby is, reversed. — Reversed.
MORLING, C.J., and EVANS, STEVENS, De GRAFF, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433541/ | I. The plaintiff and defendant F. Marion Pray were married in 1907, and divorced on the 4th of November, 1911. As a result of this marriage, one child was born. Prior to the divorce proceedings, but in anticipation thereof, the plaintiff and her husband had a conference as to alimony and the division of the property. The result of this conference was a written stipulation providing that the defendant was to pay plaintiff $85 per month for the support of the child until such child reached the age of 18 years, and was to pay the wife $5,000 on March 1, 1920. Upon the entry of the decree, the husband made to the wife a note for $5,000, due March 1, 1920. The decree provided nothing as to the note, but simply recited that there was to be $85 a month paid for the support of the child. When the note matured, the ex-husband was unable to pay the same, and a renewal note was made therefor, which was signed by F. Marion Pray and L.A. Pray, his brother. This note was not paid in September, 1921, and suit was brought thereon by the plaintiff against the signers. This case was compromised or settled by the payment of $500 and interest, the same being paid by L.A. Pray, and by a renewal of the remainder in three notes: one for $500 and two others for $1,000 and $3,000 respectively. The plaintiff insisted on security, and these notes were also signed by L.A. Pray and Hattie C. Pray. The $500 and $1,000 notes were paid by L.A. Pray, but the $3,000 note was not paid, and the present action was brought thereon. *Page 697
It is to be noted that, in the making of the last three notes above specified, aside from the extension of time, the interest therein provided was increased from 6 to 7 per cent.
In answer to plaintiff's petition herein, F. Marion Pray filed a separate answer, in which he pleads, in substance, that the original notes were given without consideration, and that the settlement which gave rise to that note was made under a mistake of fact, in that he and his wife thought, at that time, that his financial worth was somewhere between $20,000 and $40,000; but that in truth and in fact he has since discovered that he was insolvent at the very time of the making of said settlement.
L.A. and Hattie C. Pray filed separate answers, in which, in a general way, they denied indebtedness, and alleged want of consideration, and further alleged that L.A. Pray made the second note, of which this was a renewal, under a mistake as to his financial situation; and they make the answer of F. Marion Pray a part of their answer. Under these issues the jury was waived, and the case was tried to the court, which found judgment in favor of the plaintiff against the defendant F. Marion Pray for the amount due on the note, but dismissed plaintiff's petition against L.A. and Hattie C. Pray.
We labor under some disadvantage in passing on this case, due to the fact that we have not been favored with any brief and argument on the part of the appellees, and the case is argued on behalf of the appellant by an attorney who took no part in the trial. There is no finding by the trial judge, and the judgment entry gives very little light on the grounds that moved the judge to enter the judgment he did. The judgment entry does find that, as against F. Marion Pray, there was a consideration for the note. As to the grounds on which the plaintiff's petition against L.A. and Hattie C. Pray was dismissed, we are left to speculate. It is apparent from the pleadings that, at most, there could be but two questions considered thereunder: first, want of consideration; and second, the claim of mutual mistake between plaintiff and her then husband as to his financial condition at the time their settlement was made. We will give attention to the latter proposition first.
F. Marion Pray, in testifying in the case, says that, at the time this settlement was made, he had an interest in the Hughes, *Page 698
Dorman, and Bracewell farms, and an interest in a partnership engaged in handling and raising fancy stock, aside from his household furniture and automobile. He said that at that time he was of the opinion that his interest in the Bracewell farm alone was worth between $15,000 and $20,000. It is fairly deducible from the record that he was engaged in speculation by way of buying and selling farms. The evidence shows that he, like many others, was overtaken by the deflation and depression that shortly followed the time of making of this settlement with his wife, and that he was unable to realize from his transactions; and at the time of this trial he was probably bankrupt.
In 1922, he made application to the district court to modify the judgment and reduce the alimony allowed therein, on the ground that he had then practically become insolvent; and the court reduced the alimony allowance in favor of the child from $85 to $15 per month.
The sum total of this claimed defense is that, at the time the settlement was made with the plaintiff, defendant believed that he was worth somewhere between $20,000 and $40,000, and that he subsequently discovered that, as a matter of 1. BILLS AND fact, he was insolvent at the time the NOTES: settlement was made. If this is a permissible validity: defense, — a question which we do not pass mutual upon, — the evidence in the case given by the mistake as defendant F. Marion Pray and his witnesses does to maker's not in any way tend to support it. Taking his financial own language, he owned equities in these various worth. farms, which seem to have disappeared by reason of a deflation of the boom. This is the most that can be said for his testimony, and it in no way tends to show that his original estimate of his worth was not approximately correct at the time of the settlement with his wife. We therefore hold against the appellees on this contention, they having pleaded this as a part of their defense against this note.
II. We have ever recognized the right of a husband and wife, in anticipation of separation, to make contracts for the division of their property, and these contracts have always been *Page 699
2. HUSBAND AND enforced by the courts. See Martin v. Martin, 65 WIFE: Iowa 255, and cases therein cited. It must contracts: follow, therefore, that the note given by F. division of Marion Pray to his wife, in the first instance, property was a valid and binding note, and therefore had pending a valid consideration. As heretofore stated, it divorce. was renewed, and the second note was signed by L.A. Pray as surety. When that note matured, and was not paid, suit was brought thereon; the matter was adjusted, as hereinbefore explained; and the note in suit 3. BILLS AND herein was then made, signed by F. Marion Pray NOTES: and L.A. Pray and Hattie C. Pray. Hattie C. Pray conside- signed the same because the plaintiff herein ration: insisted on security, and the lawsuit was thus sureties. settled and dismissed. Under this situation, how can it be said, as to L.A. and Hattie C. Pray, that there was no consideration for the note?
It is pleaded that L.A. and Hattie C. Pray were sureties on the note, — at least they were lending their names to F. Marion Pray, — and the fact that no consideration passed to them for such signature is not available to them as a defense. More than this, L.A. Pray was a signer of the previous note, of which this note was a renewal. This proposition seems to be settled in the Code of 1924, Section 9489, and in Klemm v. Weil, 194 Iowa 1073. We therefore are unable to find any defense, under the pleadings and evidence in this case, for L.A. and Hattie C. Pray, and we are unable to determine why judgment was not entered against them on the note. — Reversed.
FAVILLE, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433543/ | Plaintiff-appellee is the duly qualified and acting executor of the estate of one John Frederick, deceased. The defendant-appellant classifies as an executrix de son tort under the common law and also under the statute. 11 Ruling Case Law 456, Section 562; Section 12059, Code of 1924.
This action was commenced in equity and is in the nature of an accounting. It is apparent that the trial court turned the case on the technical legal right of the plaintiff to the possession of the property of the estate of the testator, John Frederick. As a naked legal principle, this proposition may be conceded, but under the facts presently recited, it is not a controlling proposition. The facts are not in dispute.
It appears that the testator, John Frederick, at the time of his death, January 30, 1925, was 93 years of age. During the last 18 years of his life he was blind, and was cared 1. EXECUTORS for by his daughter, Lucy Sandeman, defendant, AND in her own home, and during this period she had ADMINISTRA- supervised and transacted his business affairs. TORS: His estate had been converted into moneys and executors credits during his life, and aggregated the sum de son of $8,250 at the time of his death. In February, tort: 1924, Lucy bought a farm, at a price slightly in liability. excess of $10,000, and in making payment for the same, she used $6,800 of her father's money, with his consent and approval. In 1909 the will in question was executed, and D. Davenport was named therein as executor. This will was duly admitted to probate, and D. Davenport was appointed thereunder. Subsequently to the filing of the will for probate (February 5, 1925), and prior to the order of probate (May 5, 1925), the beneficiaries named in the will filed a petition, *Page 929
alleging that the estate of the deceased consisted wholly of personal property, and that, by mutual agreement, the estate had been fully settled; that each of the legatees had received the amounts named in the will; that there are no debts owed by the estate, and no necessity for the appointment of an executor; and that, if one is appointed, he should take only that portion of the estate sufficient to meet any claims, if any, which should be filed and allowed against the estate. This petition on hearing was dismissed by the court, and the executor named in the will was appointed, without any limitation upon his statutory authority.
It further appears that, in March, 1925, the legatees filed in the probate cause receipts for their respective legacies, and also disclaimers. Subsequent to the qualification of the executor, the defendant, Lucy Sandeman, was ordered to respond to notice in a proceeding for the discovery of assets; and upon the hearing, the court held that there was not sufficient evidence to justify an order on defendant to deliver to the executor any specific property of the estate, but reserved to the executor the right to commence an action for the recovery of any such property, or for an accounting. The instant action was the result.
The will bequeathed nine legacies of $500 each, and two legacies of $1,200 each, respectively, to Lucy Sandeman and Charles Frederick, her brother. The residue of the estate was bequeathed in equal parts to Lucy and her brother Frank.
One item of the will stressed by appellee involves the bequest to the son Charles Frederick. It reads as follows:
"To my son, Charles Frederick (to be invested in a home in Orient, Iowa) twelve hundred ($1,200) dollars."
The clause of the will nominating the executor provided:
"* * * and I hereby authorize him to convert all my estate into money as soon after my death as practicable, and — first to pay the indebtedness of my estate and the expenses of administration; second, to pay the bequests set forth in Article two of this will and to see that the bequest to Charles Frederick is invested in a home at Orient, Iowa."
At a conference of the beneficiaries immediately following the funeral of the testator, Lucy agreed with the beneficiaries to pay all the legacies in full. She performed her promise, and she also paid the funeral expenses, amounting to $700, and at all *Page 930
times has offered to pay the cost of administration in full. She asserts and testified that there are no debts. No claims were ever filed against the estate, although, at the date of the trial (April 28, 1926), one year had not fully expired since the appointment of the executor.
Lucy Sandeman has made full disclosure of all assets that came into her possession, and there is no claim on the part of the plaintiff to the contrary. It cannot be questioned that she has accounted for the assets at all times in utmost good faith. No one has suffered any injury by reason of what has been done by her. The effect of the ruling of the trial court is that the executor had absolute right to the possession of this property, regardless of the pecuniary interests or agreements of the beneficiaries, and it results in compelling Lucy Sandeman to turn over the assets of the estate to the executor, unless the executor and Lucy Sandeman can agree otherwise, and in the event that they cannot agree, the court will decide the dispute.
We discover no legal reason for a postponement of this decision. She has fully accounted. Why should the decree say to the litigants, "Agree, if you can, and if you cannot, come back to me?" We discover no legal reason why these beneficiaries cannot settle between themselves their beneficial interests in the estate. The executor named has neither interest nor duty requiring him to go through the idle and expensive formality of collecting the full amount of the estate from Lucy, in order to distribute it to the very parties who have already received and receipted for it, and then turn over the balance to her (Lucy), as residuary legatee and sole owner of the residue. This procedure would not only be expensive, but it would be oppressive. It would necessitate a forced sale of the farm, in order to obtain the $6,800 which she used in its purchase with the consent of her father, the testator. It is plain that, after turning these funds over to the executor, she would be entitled to the return thereof in the settlement of the estate.
We may now revert to one of the primary claims of the 2. WILLS: plaintiff, that the will created a trust, in so construc- far as the bequest (heretofore recited) to the tion: son Charles Frederick is concerned. If we assume precatory the affirmative on this question of trust, then words. the utmost, for which Lucy should be liable is the sum of $1,200, — but did the testator *Page 931
create a trust? The bequest was made directly to Charles. It is obvious that, if Charles had invested this money in a home at Orient, Iowa, there was no restraint on alienation. There is no suggestion that the title should be taken in the name of another, or that the home should be controlled by another. The title should be in him, with no restrictions as to its alienation. The executor was not authorized to take title in his name, in a representative or fiduciary capacity. Although Charles lived at Orient at the time the will was executed, he moved away, many years before the date of probating the will, and was not desirous of resuming his home at that place. We view this provision of the will as entirely precatory, and that the testator did not otherwise intend. Charles was under no disability, and by paying him the money direct, as Lucy did, no wrong was inflicted upon anybody, especially so where all legacies and all debts had been paid and all costs of administration tendered. We may concede that the defendant, Lucy Sandeman, did what she did without technical legal authority; but no one was injured in any respect, and the acts which she did do could be ratified by the court, and should have been ratified in the first instance.
We recognize the limitation that the beneficiaries of a will cannot destroy a trust. Farwell v. Carpenter, 161 Iowa 257. We recognize the limitation that a widow and the heirs cannot divide estate property among themselves without taking into account the creditors of the estate. Madison v. Shockley, 41 Iowa 451. Nor do we overlook the fact that the executor has rights and duties defined and prescribed by statute. Nevertheless, he is but an officer of the court, and an aid to the court in the proper settlement of the estate. He exists by virtue of the appointment by the court, and not by virtue of his nomination in the will. The court may disregard the nomination if the best interests of the estate so require. Under the provisions of the will in question, Lucy Sandeman and her co-legatees are the owners of the estate, and that ownership was subject only to the superior rights of creditors and the expense of administration. In reEstate of Wells, 142 Iowa 255.
Lucy Sandeman was the trusted agent of her father during his lifetime. She was the lawful custodian of the property for a period of three months after his death, and before an administrator was appointed. It was during this interim that she *Page 932
acted to the full satisfaction of every owner of the estate. She justified her actions later by an accounting that has not been impeached.
The beneficiaries of a will can, by agreement, renounce the will and permit the entire estate to pass by the law of descent.In re Estate of Stone, 132 Iowa 136. In Douglas v. Albrecht,130 Iowa 132, it is held that the beneficiaries of an estate which was not indebted could agree to a settlement and distribution among themselves, and that an administrator subsequently appointed could not recover the property from the distributees. See, also, Christe v. Chicago, R.I. P.R. Co., 104 Iowa 707;Molendorp v. First Nat. Bank, 183 Iowa 174; 23 Corpus Juris 1194.
The appellee argues that all that is asked of the defendant is an accounting; that she must account; and that, when she makes an accounting, she will be allowed all proper credits, etc. If we accept this proposition, for the moment, as a correct interpretation of the issues and of the decree entered, the answer is, the defendant has accounted, not only once, but several times. No item of her accounting has been challenged. Upon the commencement of this suit, she answered with a complete accounting. Upon the trial of this cause, she testified to a complete accounting. It stands unchallenged. The picture presented by Lucy is a picture of fidelity, not only to her father, but to her co-legatees. Many a daughter would have filed a claim against the father's estate for the long years of service performed by her on his behalf; but she has claimed nothing, and, in fact, has added interest to the principal sum which she managed for her father, and for both principal and interest she has charged herself.
The decree entered calls for an accounting, provided that the executor and Lucy cannot agree as to the credits that should be allowed her. There was no reason for the trial court to hesitate in this matter. The intimation and the implication are that, when she makes her accounting again, the executor will probably allow her credits for the legacies which she has paid to others, and perhaps for the amount which she herself claims, and to which she is entitled. The primary objective of the plaintiff-executor is the recovery of the possession of the property. This, as pointed out, would necessitate the sale of the farm. She has *Page 933
already mortgaged it, for the purpose of obtaining the money to pay the legacies named in the will. It is obvious that the proposed course of the executor would be financially ruinous to the defendant, and would also involve the estate in costs which would not be to the interest of anyone.
We reach the conclusion that the court should have accepted the tender of the defendant to pay the costs of administration, and that, with the payment of such costs, the agreement entered into among the beneficiaries should have been ratified, and the estate closed. The petition of plaintiff should have been dismissed, upon the performance of the tender of the defendant to pay the costs of administration. It is ordered that a decree shall be entered in conformity to the conclusions announced herein. Wherefore, the decree entered is — Reversed.
EVANS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433544/ | In this suit plaintiff sought an injunction against defendants restraining them from practicing optometry without a license. Plaintiff alleged in its petition that defendants through employees professed to be optometrists, skilled in the ocular science, and, through the employees, practiced optometry in contravention of the provisions of chapters 116 and 122, sections 2538 et seq., 2574 et seq., Code of Iowa, 1935, and that defendants are not licensed to practice optometry in the state of Iowa.
Defendants specifically denied that they held themselves out to be optometrists; that they were engaged in the practice of optometry; that they employed a physician for the purpose of making ocular examinations and that the business conducted by defendants does not constitute the business of optometry. Defendants admit that they are not licensed to practice optometry *Page 72
and affirmatively allege that their business consists of selling eyeglasses or spectacles by filling prescriptions which prescriptions are prescribed by persons authorized under the laws of the state of Iowa and that the business carried on by defendants does not constitute the practice of optometry.
The trial court found for plaintiff and a decree was entered restraining and permanently enjoining defendants from the practice of optometry without a license in the state of Iowa, either directly or indirectly, either by themselves, agents, or employees.
Code section 2439 provides that no person shall engage in the practice of optometry unless he shall have obtained from the state department of health a license for that purpose.
Optometry is defined by statute as follows:
"2574. Optometry defined. For the purpose of this title the following classes of persons shall be deemed to be engaged in the practice of optometry:
"1. Persons who employ any means other than drugs for the measurement of the powers of vision of the human eyes, and adapt lenses for aiding the same.
"2. Persons who allow the public to use any mechanical device for such purpose.
"3. Persons who publicly profess to be optometrists and to assume the duties incident to said profession."
Licensed physicians and surgeons may practice optometry without a license. Code section 2575.
The sole question presented on this appeal is whether defendants were engaged in the practice of optometry as defined by section 2574.
Plaintiff seeks to sustain the decree on the ground that the arrangement entered into between appellants and the physicians constitutes an employment agreement and that the employment of one legally authorized to practice optometry in the state of Iowa by an unlicensed person or corporation is prohibited by statute. It is conceded that all persons with whom defendants had an arrangement or contract for the practice of optometry were licensed physicians and surgeons.
We shall first consider plaintiff's contention that the arrangement between defendants and the physicians constituted the relation of employer and employee. The record discloses *Page 73
the following arrangement between defendants and the physicians: The business of defendants consisted of selling eyeglasses or spectacles by filling prescriptions prescribed by authorized persons and selling optical merchandise. Defendants were opticians. In Des Moines, they carried on their business in the Insurance Exchange building. Their practice was to rent an office consisting of one or more rooms adjacent to the rooms in which they carried on their business and to arrange with a licensed physician to occupy such rooms and practice optometry. Defendants paid the rent, light, heat and telephone bills, and furnished all the equipment used by optometrists in examining and testing eyes. The examination fees charged by the physician, which ranged from $1 to $2, belonged to him. None of the earnings of the doctor belonged to or was paid to the defendants. Defendants, however, guaranteed the physician that his earnings would be $40 a week. If the earnings were under $40 a week they would pay him the difference. While there is some testimony to the effect that the physician was not obligated to send patients with the prescription to defendants, we are convinced that the real arrangement was that defendants would send all persons who came to their establishment without a prescription, and who desired glasses, to the physician and the physician was to direct his patient to the defendants for the purpose of having his prescription filled.
Dr. Hamilton, one of the physicians who had such an arrangement with the defendants, testified for the plaintiff. He testified:
"My name was on the door of my office as `Dr. S.M. Hamilton'. My time was my own. I had no particular office hours. I had full charge, supervision and direction of my office. I had full charge and direction of my patients that came to me. Nobody interfered with my prescriptions. No member of the National Optical Stores Company, neither manager, agent or any other employee told me what to prescribe for my patients. They had no supervision or control of the operation of my business. I charged my patients fees for examining their eyes and prescribing for them. I did not share or divide those fees with anyone. Some weeks I took in as much as $63.00. I had a key to my office. I did not have a key to the offices of the National *Page 74
Optical Stores. All during the arrangement with defendants I was practicing medicine, surgery and optometry."
Dr. Payne, another licensed physician who had the financial arrangement with the defendants heretofore described for a period of 10 days, testified:
"I had more than 40 patients each week the weeks I worked there. Mr. Tostesen told me what to do. He gave me instructions in regard to fitting the eyes. He said to rush them up as fast as I possibly could and get through with them as soon as I possibly could. I was told by Tostesen to be in my office from nine in the morning until as long as work lasted in the evening. Mr. Tostesen helped in the examination himself. He was there (at the Des Moines' office) about 5 days. I think he came in when I was rushed to try to rush things up a bit thinking I was a little slow."
We are satisfied Tostesen did not have the right to control and did not control the examinations or prescriptions, and did not influence Dr. Payne.
Dr. Payne testified:
"I made all of the examinations. I wouldn't pay any attention to him. I wrote the prescriptions on whatever tests he made."
Tostesen was a salesman employed by defendants to sell glasses and manage its business. He knew nothing of optometry. He testified he never attempted to examine the eyes of anyone, that as manager of the business of the defendants he would refer all persons to the physicians for examinations.
Dr. Gasson, a licensed physician, who had the same arrangement with defendants in Sioux City as Payne and Hamilton had in Des Moines, also testified for the State. The witness testified that on one occasion he tested the eyes of a patient and found his glasses did not need changing and he was criticized for not changing the glasses. He also testified that one of defendants' salesmen suggested to him that, after he had refracted a patient, he place on the prescription a bogus prescription indicated by drawing a light line around it "so that I can see it and use it as a talking point to get more money out of the patients, more money for the glasses". The witness replied, "I never did *Page 75
anything of that kind and I am not doing it now." The State especially relies on the above testimony in its effort to establish its theory that defendants controlled the physician in making examinations. On cross-examination this witness testified:
"I placed a bogus prescription on there with the understanding with the salesman that he would use that as a talking point to sell glasses but the patient got the glass I prescribed. However, as far as the prescription was concerned, the glasses were the glasses required as per my prescription. I could quit the arrangement any time, any day, any week, any month."
By this statement on cross-examination, the witness admitted the defendants did not attempt to influence the prescription from which the glasses were ground, and that the only purpose of the bogus prescription was to enable defendants to get more money from the patients.
The testimony of this witness shows that he had an unfriendly feeling towards the defendants. He had been absent from the office for an appreciable length of time on account of sickness and upon his recovery defendants refused to continue the arrangement. He testified on cross-examination:
"I came here yesterday of my own free will and accord. I was not sent for. I went to the authorities myself. I went to Mr. Carlson. I did not necessarily tell him that I wanted to testify against the National Optical Stores Company. I did go last week to Mr. Geldon, the Sioux City manager for the National Optical Stores Company, and asked him if they had any use for me and they said they didn't have any more use for me. That is why I went down to tell the authorities and Mr. Carlson. If they had told me that they wanted to resume the arrangement I would not have come to Mr. Carlson and told him all about this at this time, but I would sometime."
We do not believe this physician and surgeon, a member of one of the most respected, ethical and learned professions, would have sought to continue the arrangement if defendants had been guilty of the unethical and reprehensible conduct he ascribes to them. If his testimony is true, he was a willing party to the fraud. But, in any event, the prescription filled was the prescription of the witness and not of the defendants.
[1] Plaintiff failed to establish its contention that the relationship *Page 76
of employer and employee existed between the defendants and the physicians. No witness testified for the plaintiff that the defendants under the arrangement had the right to control or influence a physician in making the examination. Dr. Hamilton testified that there was nothing in the arrangement that gave defendants control of the operation of his business. Dr. Payne testified that he paid no attention to suggestions made by employees of defendants. Three managers of the business of defendants testified that neither the defendants nor their employees tested eyes or wrote prescriptions and that persons coming to the place of business of the defendants would be referred to the physicians for examination and when the prescriptions were brought to the office of defendants by the patients they would have the lens ground according to the prescription. All of these witnesses testified that defendants did not influence or coerce the physicians in making prescriptions or in refracting.
This court has repeatedly held that the test of the employer-employee relation is the right of the employer to exercise control of the details and method of performing the work. We find that the defendants under the arrangement did not have the right to control or seek to control examinations of eyes by the physicians. The physicians, all of whom had practiced optometry prior to the arrangement, were not performing the business of defendants but were carrying on their own business of optometry under a reciprocal arrangement with the defendants for the mutual financial benefit of both parties. When a patient came to consult one of these physicians there was the personal relationship of patient and physician between them. The physicians, in making the refraction, represented the patient and not the defendants.
As stated by Mr. Weiss, one of the defendants, "the arrangement was both beneficial to the doctors and the National Optical Stores Company. The company was a general optical company that would grind and furnish any kind of lens in any kind of frames; that is what the company did. The more prescriptions written by the doctors, the more glasses we could sell. Such an arrangement as we had (with reference to the physicians referring patients to defendants for the purpose of having their prescriptions filled) is practically had by every dispensing optician. In order to get more customers to come to my office, the closer the doctor is, the more apt the patient is to come to *Page 77
me. It is true that a lot of these doctors and physicians and optometrists refer their work to one institution, dispensing opticians. The more physicians or opticians that you can have that would make that arrangement, the more business you would do. I visited with Dr. Hamilton in his office but never attempted to show him as to what he should do in taking measurements. I had no control over him in that regard. I had no supervision over him of any kind."
[2] The record shows that the business of defendants was materially increased by the arrangement. We are satisfied after a careful reading of the record that defendants did not coerce or influence the physicians relative to prescriptions. The profession of the physicians and the business of defendants were separate and each operated independently of the other. We hold that the defendants did not practice optometry as defined by section 2574.
The trial court stated in the decree that the case was controlled by the case of State v. Kindy Optical Company,216 Iowa 1157, 248 N.W. 332. The facts in the Kindy case distinguish it from the case at bar. In the Kindy case the licensed optometrist was an employee of the defendant. He was paid a monthly salary, and all of his earnings belonged to the company. The employee was subject to the control and direction of the defendant in all things. The court found that through its method of advertising it specifically professed to carry on the business of optometry. The court held that the purpose of the statute was to protect the public from incompetent and unscrupulous practitioners; that the law contemplated and required that the relation of the doctor to the patient must be a personal one; that the optometrist, being the employee of the defendant, was not personally practicing his profession but that defendant was practicing optometry through its employee. Because of the substantial difference in the facts, the Kindy case does not control the decision in this case.
[3] Defendants urge the proposition that the employment of one legally authorized to practice optometry in the State of Iowa is not forbidden by statute, and even if the arrangement did constitute an employment contract, the same did not constitute the practice of optometry by the defendants in violation of the laws of the State of Iowa, and the court erred in so holding, and state in argument: *Page 78
"We feel that the Kindy case is contrary to the great weight of authority as evidenced by recent decisions of courts rendered since the Kindy case, is not sound and should be overruled."
They cite, among others, the following cases: Georgia Board v. Friedman Jewelers, 183 Ga. 669, 189 S.E. 238; Golding v. Schubach Optical Co., 93 Utah 32, 70 P.2d 871; Jaeckle v. Bamberger,119 N.J. Eq. 126, 181 A. 181.
The statutes construed by the court in the Jaeckle case are materially different from those involved here, and in the other cases cited the courts reached the same result but on different principles.
In the case of Georgia Board v. Friedman Jewelers, supra, the defendant corporation employed a licensed optometrist. The court, after holding that optometry was not a learned profession and that the sole purpose of statutes regulating the practice of optometry was to protect the public health and prevent unskillful examinations of eyes, stated:
"This being so, we see no reason why the corporation in the present case by employing a qualified and licensed optometrist is practicing optometry contrary to the provisions of the statutes or that its acts under such circumstances will so endanger the public health and safety as to thwart the purposes of the statutes."
In the case of Golding v. Schubach Optical Company, supra, the court held that there was nothing in the statutes making employment of licensed optometrists by a corporation or unlicensed persons unlawful or against public policy and that the right of a person to sell his time and talents is as inalienable as the right of the owner of other property to contract respecting thereto subject to reasonable police regulations.
The conclusions reached by the above cases are not in harmony with the decisions of this court.
Because of our holding that the relationship existing between defendants and the physicians was not one of employer and employee it will not be necessary to consider this proposition further than to say that we are satisfied with the conclusions reached in the cases of State v. Kindy Optical Company, 216 Iowa 1157,248 N.W. 332, and State v. Bailey Dental Company, *Page 79 211 Iowa 781, 234 N.W. 260, and reaffirm the interpretation placed on our statutes and the principles announced in those cases.
The case is reversed and remanded and the trial court is directed to enter a decree in harmony with this opinion and dismissing plaintiff's petition. — Reversed and remanded.
MITCHELL, C.J., and SAGER, OLIVER, BLISS, HALE, and MILLER, JJ., concur.
RICHARDS, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247166/ | JESSE M. FURMAN, United States District Judge:
Plaintiff Carrie Williams brings employment discrimination claims against her former employer, the New York City Department of Health and Mental Hygiene (the "DHMH"), pursuant to the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et seq. ; the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 290 et seq. ; and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Specifically, Williams claims that the DHMH discriminated against her on the basis of her disability and then retaliated against her after she filed a complaint with the Equal Employment Opportunity Commission (the "EEOC"). (See Docket No. 1 ("Complaint") ). Williams and the DHMH now cross-move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. (Docket Nos. 30, 38). For the reasons discussed below, the DHMH's motion is GRANTED, Williams's motion is DENIED, and the Complaint is DISMISSED.
BACKGROUND
The relevant facts, taken from the Complaint and admissible materials submitted in connection with the pending motions, are either undisputed or described in the light most favorable to Williams. See Costello v. City of Burlington , 632 F.3d 41, 45 (2d Cir. 2011).
*422Williams worked for the City of New York from October 25, 1987, until her retirement on March 7, 2016. (Docket No. 31 ("Williams Decl."), at ¶ 4). In September 2002, Williams was hired by the DHMH as a Public Health Nurse Level II in the Bureau of Tuberculosis Control. (Id. ¶ 5). The Bureau of Tuberculosis Control maintains four health centers: the Fort Greene Chest Center, the Washington Heights Chest Center, the Corona Chest Center, and the Morrisania Chest Center. (Id. ¶ 8). In 2003, Williams assumed the responsibilities of Patient Care Manager, and in 2004, she was assigned the title of Public Health Nurse Level III. (Id. ¶¶ 6-7). Williams was assigned to work primarily at the Fort Greene Chest Center, but she occasionally worked at the Washington Heights Chest Center as well. (Id. ¶ 10).
In or about May 2013, Williams was diagnosed with herniated lumbar discs, arthritis of the spine and knees, and sciatica; she also suffered from gout and diabetic neuropathy, chronic conditions that she had previously developed. (Id. ¶¶ 16-17; see also Williams Decl., Ex. 2 ("2015 Tambor Letter") ). As a result of these challenges, Williams's doctor, Jeffry Tambor, opined that she was "unable to stand longer than 2-3 minutes and ... to walk greater than 80 feet without stopping." (2015 Tambor Letter). In the fall of 2013, Williams informed her supervisor, Errol Robinson, that she had a medical condition. (See Docket No. 32 ("Sackowitz Decl."), Ex. 1 ("Robinson Depo."), at 27). According to Williams, her initial treatment plan was ineffective, and her pain management doctor recommended that she undergo surgery. (Williams Decl. ¶¶ 22-23; see also Docket No. 39 ("Murrell Decl."), Ex. E, at 3-32). Prior to the surgery, Williams was granted leave from the date of her surgery (January 15, 2015), until her expected return date (June 2, 2015). (See Murrell Decl., Ex. G).
On May 19, 2014, before Williams began her medical leave, one of the laboratory associates she supervised at the Fort Greene Chest Center-Sofiya Mazuryan-filed a charge of discrimination against the DHMH with the EEOC. (See Williams Decl. ¶¶ 32-33; Sackowitz Decl., Ex. 5 ("Mazuryan Charge") ). Significantly, Mazuryan specifically-and exclusively-complained about Williams, claiming that she had treated Mazuryan "less favorably than the other non-white employees she supervise[d]." (Mazuryan Charge). On December 8, 2014, the EEOC issued its final determination, concluding that Mazuryan was, in fact, "treated less favorabl[y] than non-white employees and subjected to retaliation after she complained of discrimination." (Murrell Decl., Ex. N ("EEOC Proceedings"), at 59-60). To resolve the charge, the EEOC recommended, among other remedies, that the DHMH "transfer Ms. Carrie Williams from the Fort Greene location" so that Mazuryan would "no longer be under the direct or indirect supervision of Ms. Williams." (Id. at 61).
On January 5, 2015, apparently unaware "that the [DHMH] had decided to transfer [her]," (Williams Decl. ¶ 47), Williams submitted a "Request for Reasonable Accommodation" to her supervisor (Williams Decl., Ex. 1 ("First RFRA") ). According to Williams, she "feared that while [she] was out on medical leave the [DHMH] might transfer [her] to the Corona and Morrisania locations." (Williams Decl. ¶ 47). Citing her herniated discs, arthritis, sciatica, gout, and diabetic neuropathy, Williams requested that she remain primarily at the Fort Greene Chest Center and that she be assigned a parking space. (First RFRA). Two days later, one of Williams's supervisors informed her that she was to be reassigned from the Fort Greene Chest Center to the Corona and Morrisania centers. (Williams Decl., Ex. 6).
*423In March 2015, while Williams was still out on leave, she filed a second Request for Reasonable Accommodation, advising the DHMH that she was ready to return to work on April 13, 2015, and seeking again to remain at the Fort Greene Chest Center. (Williams Decl., Ex. 7 ("Second RFRA") ). She noted that "[d]riving a car longer than one hour causes back and leg pain" and that transfer to the Morrisania or Corona offices would be infeasible because the commute between her home on Staten Island and either site would exceed two hours. (Id. ). Shortly thereafter, Williams informed the DHMH that her medical leave would be extended to June 1, 2015. (Sackowitz Decl., Ex. 9, at 1). In light of that extension, the DHMH advised Williams that her Request for Reasonable Accommodation was "moot" and that if she needed an accommodation "on or about June 2, 2015," she should submit a new request at a later date. (Williams Decl., Ex. 9 ("April 14 E-mail") ).
On May 1, 2015, Williams submitted her third Request for Reasonable Accommodation, seeking the same relief that she had sought in her prior two requests. (Williams Decl., Ex. 11 ("Third RFRA") ). In her third request, Williams reported that she could neither drive a car longer than an hour nor take public transportation. (Id. ). Williams also advised that she was able to return to work sooner than expected-on May 11, 2015-so long as she was not required to report to the Corona or Morrisania clinics. (Id. ). Errol Robinson, her supervisor, responded by informing Williams that she should report to the Corona Chest Center on May 11, 2015. (Williams Decl., Ex. 14). A week later, when Williams had still not reported to the Corona location, Jewel Jones, the DHMH's EEO Investigator, e-mailed Williams requesting her attendance at a meeting the following day to discuss Williams's accommodations. (Williams Decl., Ex. 15). Williams contacted her union representative, Judith Arroyo, who was unable to make the meeting on such short notice. (Williams Decl., Ex. 16). The meeting did not take place. (Williams Decl. ¶¶ 85-86).
On May 29, 2015, Williams e-mailed Jones, reminding the latter that she was able to return to work. (Williams Decl., Ex. 16). Having not heard back from Jones by June 2, 2015-the day Williams was to return to work-Williams initiated a complaint of discrimination with the EEOC. (Williams Decl., Ex. 20). On June 5, 2015, James Hallman, the DHMH's Chief Diversity and EEO Officer, e-mailed Williams and scheduled a meeting for June 12, 2015. (Williams Decl., Ex. 16; see Williams Decl. ¶ 93). At that meeting, attended by several DHMH supervisors, the DHMH offered Williams a proposed accommodation: Williams could become a "Nurse Coordinator" at the "Gotham Center," a Long Island City facility. (Williams Decl., Ex. 18; see Williams Decl. ¶¶ 93-94). Williams rejected the proposal in an e-mail four days after the meeting, stating that commuting to the Gotham Center would require her "to drive more than one hour" and that the job responsibilities of Nurse Coordinator would require her to visit all four tuberculosis clinics. (Williams Decl., Ex. 22 ("June 16, 2015 E-mail") ). In response, the DHMH argued that transit from Staten Island to the Gotham Center would take less than an hour and that visits from the Gotham Center to other facilities would not be required "every day or every week." (Williams Decl., Ex. 25 ("June 23, 2015 E-mail") ). Jones also advised Williams that she could use public transportation or the Access-A-Ride service. (Id. ). On June 25, 2015, Williams responded by e-mail, confirming that she would not accept the Nurse Coordinator role and disputing the DHMH's transportation calculations. (Williams Decl., Ex. 30 ("June 25, 2015 E-mail") ).
*424In that same e-mail, Williams also disclosed to Jones that she had filed a charge with the EEOC. (Id. ). Jones responded by seeking further information about the charge, eventually telling Williams that the DHMH would close the request-for-reasonable-accommodations (or "RFRA") process if she did not provide information about her EEOC complaint. (See Williams Decl., Ex. 33 ("July 16, 2015 E-mail") ). Williams did not provide the information, and, on July 20, 2015, the DHMH closed Williams's matter because of her "failure to participate in the reasonable accommodation interactive process." (Williams Decl., Ex. 35 ("July 20, 2015 E-mail") ). Further, by letter dated July 28, 2015, the DHMH informed Williams that she had been referred for disciplinary charges because of her failure to return to work on July 14, 2015 (the date to which Williams's leave of absence had been extended) and because she had "failed to follow up" on her request for reasonable accommodation. (Williams Decl., Ex. 36; see id. , Ex. 23). Several months later, on February 23, 2016, the DHMH sent Williams a Notice and Statement of Charges, charging her with being absent from her work location. (Williams Decl., Ex. 37 ("Notice and Statement of Charges") ). Williams resigned from the DHMH on March 7, 2016. (Williams Decl. ¶ 178). This lawsuit followed.
LEGAL STANDARDS
Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute over an issue of material fact qualifies as genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; accord Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548 ); accord PepsiCo, Inc. v. Coca-Cola Co. , 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).
In ruling on a motion for summary judgment, all evidence must be viewed "in the light most favorable to the non-moving party," Overton v. N.Y. State Div. of Military & Naval Affairs , 373 F.3d 83, 89 (2d Cir. 2004), and the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought," Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 83 (2d Cir. 2004). When, as in this case, both sides move for summary judgment, the district court is "required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party." Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd. , 661 F.3d 164, 171 (2d Cir. 2011). Thus, "neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it." Heublein, Inc. v. United States , 996 F.2d 1455, 1461 (2d Cir. 1993).
*425To defeat a motion for summary judgment, a non-moving party must advance more than a "scintilla of evidence," Anderson , 477 U.S. at 252, 106 S.Ct. 2505, and demonstrate more than "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party "cannot defeat the motion by relying on the allegations in [its] pleading or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. Cty. of Orange , 84 F.3d 511, 518 (2d Cir. 1996) (citation omitted). Affidavits submitted in support of, or opposition to, summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show "that the affiant is competent to testify to the matters stated therein." Patterson v. Cty. of Oneida , 375 F.3d 206, 219 (2d Cir. 2004) (quoting Fed. R. Civ. P. 56(e) ).
DISCUSSION
Williams brings discrimination and retaliation claims under the ADA, NYSHRL, and NYCHRL. (See Complaint ¶¶ 98-154). The Court begins with her federal claims.
A. Disability Discrimination
It is well established that "discrimination" under the ADA includes a failure to provide an employee with a reasonable accommodation for his or her disability. See Graves v. Finch Pruyn & Co. , 457 F.3d 181, 183-84 (2d Cir. 2006). Discrimination claims under the ADA are, like race discrimination claims under Title VII of the Civil Rights Act, analyzed using the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McDonnell v. Schindler Elevator Corp. , No. 12-CV-4614 (VEC), 2014 WL 3512772, at *4 (S.D.N.Y. July 16, 2014). To establish a prima facie case of discrimination based on a failure to accommodate, and thus shift the burden to the defendant to articulate a legitimate, non-discriminatory reason for its conduct, a plaintiff must show by a preponderance of the evidence "that (1) plaintiff is a person with a disability under the ... ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." Rodal v. Anesthesia Grp. of Onondaga, P.C. , 369 F.3d 113, 118 (2d Cir. 2004).
Significantly, "[t]he ADA envisions an 'interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated." Jackan v. N.Y. State Dep't of Labor , 205 F.3d 562, 566 (2d Cir. 2000) (quoting 29 C.F.R. § 1630.2(o)(3) ). The mere failure to engage in the interactive process is not, however, an "independent violation of the ADA." Nazario v. Promed Pers. Servs. NY Inc. , No. 15-CV-6989 (LGS), 2017 WL 2664202, at *7 (S.D.N.Y. June 19, 2017). Instead, a court must follow "a two-step process to evaluate whether the failure to provide a proposed accommodation constitutes a violation of the ADA. First, the plaintiff bears the burden of proving that an accommodation exists that permits her to perform the job's essential functions. If the plaintiff meets that burden, the analysis shifts to the question whether the proposed accommodations is reasonable; on this question the burden of persuasion lies with the defendant." Jackan , 205 F.3d at 566 (internal quotation marks and ellipsis omitted). Critically, if an employee "cannot show that a reasonable accommodation existed at the time of his [or her] dismissal," the employee cannot recover.
*426McElwee v. Cty. of Orange , 700 F.3d 635, 642 (2d Cir. 2012).
Applying those standards here, Williams's ADA discrimination claims fail as a matter of law for a simple reason: The accommodation she demanded was unreasonable. In all three of her RFRAs, Williams made the same demand: that she be reassigned back to the Fort Greene facility from the Morrisania and Corona clinics. But it is undisputed that DHMH reassigned Williams from that facility in order to separate her from Mazuryan after the EEOC found that Williams had discriminated against Mazuryan on the basis of her race. (See EEOC Proceedings 65-66). Contrary to Williams's argument, it is immaterial that the DHMH disputed the EEOC's finding that Williams discriminated against Mazuryan "on the basis of her race, national origin and participation in a protected activity." (Docket No. 46 ("Pl.'s Reply Mem."), at 9; see EEOC Proceedings 65). The fact that the EEOC's recommended remedy "was not binding" on the DHMH is similarly irrelevant. (Id. ). The undisputed fact is that there was a serious "personality conflict between [Mazuryan] and Ms. Williams" that was "exacerbated by Ms. William[s'] seemingly unpleasant managerial style." (EEOC Proceedings 65). And separating Williams and Mazuryan at the Fort Greene Chest Center "was not feasible," as it was a small facility. (Def.'s Mem. 15). Given those undisputed facts, Williams's proposed accommodation was not reasonable as a matter of law. See, e.g. , Diaz v. City of Phila. , 565 Fed.Appx. 102, 106 (3d Cir. 2014) (finding that proposed accommodation was "not necessarily reasonable in light of the ... conflict with a coworker"); cf. Gordon v. Runyon , No. 93-CV-0037 (JRP), 1994 WL 139411, at *5 (E.D. Pa. Apr. 21, 1994) (holding that a proposed accommodation was not reasonable where the employer "could not insulate Plaintiff from coworkers"), aff'd , 43 F.3d 1461 (3d Cir. 1994).
Williams's remaining arguments with respect to the reasonableness of her proposed accommodation also lack merit. The bulk of those arguments concern the DHMH's behavior during the interactive process. For example, Williams takes issue with the DHMH's "refusal to substantively communicate with Plaintiff about either her first or second RFRA." (Pl.'s Mem. 16). But the law in this Circuit is clear that "an employee may not recover based on his employer's failure to engage in an interactive process if he cannot show that a reasonable accommodation existed at the time of his dismissal." Stevens v. Rite Aid Corp. , 851 F.3d 224, 231 (2d Cir.), cert. denied , --- U.S. ----, 138 S.Ct. 359, 199 L.Ed.2d 264 (2017) (citation and internal quotation marks omitted). Williams also claims, for the first time in her memorandum of law opposing the DHMH's cross-motion, that the DHMH had "identified a vacancy within the Bureau of STD Control and Prevention" and "explored [that vacancy] as a potential accommodation." (Pl.'s Reply Mem. 9). But "an employer cannot refuse to make an accommodation that it was never asked to make." Dooley v. JetBlue Airways Corp. , 636 Fed.Appx. 16, 18-19 (2d Cir. 2015) (internal quotation marks, citation, and brackets omitted). And there is no dispute that Williams never requested that accommodation-her only request was to be re-assigned back to Fort Greene.1 Finally, Williams's criticisms of the DHMH's proposed accommodations are irrelevant: It is *427she, not the DHMH, who bears the burden of demonstrating the reasonableness of her proposed accommodation in the first instance. See McElwee , 700 F.3d at 642 ("[A]n employee may not recover based on his employer's failure to engage in an interactive process if he cannot show that a reasonable accommodation existed at the time of his dismissal."); McBride v. BIC Consumer Prods. Mfg. Co. , 583 F.3d 92, 101 (2d Cir. 2009) ("The employer's failure to engage in such an interactive process, however, does not relieve a plaintiff of her burden of demonstrating, following discovery, that some accommodation of her disability was possible."). As Williams does not meet that burden, summary judgment must be and is granted to the DHMH on her discrimination claims under the ADA.
B. Retaliation
Next, Williams claims that the DHMH impermissibly retaliated against her for engaging in protected activity under the ADA. (Compl. ¶¶ 109-16). Retaliation claims under the ADA are also subject to the burden-shifting framework of McDonnell Douglas. See Paxton v. Fluor Enters., Inc. , No. 15-CV-3737 (DLC), 2017 WL 875856, at *5 (S.D.N.Y. Mar. 3, 2017). To state a prima facie case of retaliation under the ADA, a plaintiff "must show that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took some adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002) ; see also 42 U.S.C. § 12203(a). "Once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment decision. If a defendant meets this burden, the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Treglia , 313 F.3d at 721 (citation and internal quotation marks omitted). The plaintiff "has the ultimate burden of showing that the proffered reasons are a pretext for retaliation [under the ADA]." McDonald v. City of New York , 786 F.Supp.2d 588, 613 (E.D.N.Y. 2011).
Applying those standards here, the Court concludes that the record does not support Williams's retaliation claims. As an initial matter, Williams identifies two allegedly adverse employment actions: the DHMH's "refusal to provide [her] with a reasonable accommodation" and "her effective termination." (Pl.'s Mem. 21). The second, however, can be traced back to the first, as Williams resigned rather than face disciplinary charges for her undisputed absenteeism, (Williams Decl. ¶ 180), and she stopped going to work because the DHMH had denied her Third RFRA, (Williams Decl. ¶ 172). Thus, Williams's claims turn on whether she can prove that the DHMH denied her Third RFRA in retaliation for her filing an EEOC complaint.2 She cannot.
*428Even assuming that Williams has met her prima facie burden, the DHMH has proffered a legitimate, non-discriminatory reason for denying her Third RFRA: her failure to participate in the reasonable accommodation process, as manifested in her refusal to provide basic information about her EEOC filing to Jones. Under New York City's "Equal Employment Opportunity Policy," when an agency is made aware of a complaint filed with the EEOC, the agency EEO Officer is supposed to transfer the matter to the agency General Counsel. (Sackowitz Decl., Ex. 16 ("EEO Policy"), at 11). As the DHMH explained, the purpose of the policy is to permit the agency General Counsel to determine which entity-the agency itself or the law department-should respond to the EEOC action. (See Murrell Decl., Ex. I, at 71; see also Def.'s Br. at 22 (explaining that the policy enables the DHMH "to defend itself more efficiently and effectively by localizing all decision-making regarding the [DHMH]'s defense against plaintiff's EEOC Charge as well as the resolution of her [RFRA] in the General Counsel's office") ). In furtherance of that policy, the DHMH requested that Williams provide the date on which she had filed her charge. Williams-inexplicably-refused to comply.
The failure to comply with the DHMH's minimal request and, thus, to participate in the reasonable accommodation process is a legitimate and non-retaliatory reason for closing Williams' Third RFRA. See, e.g. , Tillery v. N.Y. State Office of Alcoholism & Substance Abuse Servs. , No. 13-CV-1528 (LEK), 2017 WL 2870502, at *11 (N.D.N.Y. July 5, 2017) (holding that the defendant's justification for its adverse action against the plaintiff-that it was "more efficient"-was legitimate and non-retaliatory). The burden thus shifts to Williams to demonstrate that the proffered justification was "merely a pretext for impermissible retaliation." Treglia , 313 F.3d at 721. The evidence falls well short of that standard. Indeed, Williams does not identify any evidence (and the Court does not discern any evidence) even suggesting pretext. On top of that, for the reasons discussed above, the record is also clear that Williams's sole proposed accommodation was unreasonable as a matter of law. As a result, the DHMH denied Williams's Third RFRA and, after she had failed to return to work for months, initiated a disciplinary proceeding against her. Accordingly, summary judgment is also granted to the DHMH on Williams's retaliation claims under the ADA.
C. State-Law Claims
Having dismissed Williams's federal claims, the Court must decide whether to exercise supplemental jurisdiction over her claims under the NYSHRL and NYCHRL. A district court "may decline to exercise supplemental jurisdiction over [a pendent state law claim] if ... the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). The statute does not create "a mandatory rule to be applied inflexibly in all cases." Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Nevertheless, "in the usual case in which all federal-law claims are eliminated before trial," as here, "the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. ; see also Kolari v. N. Y. Presbyterian Hosp. , 455 F.3d 118, 123 (2d Cir. 2006) (reversing a district court decision to retain supplemental jurisdiction over state-law *429claims after dismissal of the federal claim, citing "the absence of a clearly articulated federal interest"); Marcus v. AT & T Corp. , 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well."); Anderson v. Nat'l Grid, PLC , 93 F.Supp.3d 120, 147 (E.D.N.Y. 2015) ("In the interest of comity, the Second Circuit instructs that absent exceptional circumstances, where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should abstain from exercising pendent jurisdiction." (citing cases) (internal quotation marks omitted) ).
Despite the general presumption, the Court concludes that, in the interest of judicial economy, it should exercise supplemental jurisdiction over Williams's NYSHRL claims. That is because, for purposes of this case, there are no material differences between the ADA and the NYSHRL. See, e.g. , Graves , 457 F.3d at 184 n.3 (explaining that the standards applicable to claims under the NYSHRL and under the ADA are the same). Given that and the Court's decision on Williams's ADA claims, it would be inefficient, and risk inconsistency, to defer a decision on her NYSHRL claims to a state court; instead, those claims are dismissed for the reasons the ADA claims were dismissed. By contrast, the Court declines to exercise supplemental jurisdiction over Williams's claims under the NYCHRL, which are subject to a different standard and must be analyzed separately. See, e.g. , Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 109 (2d Cir. 2013) (noting that NYCHRL claims "require[ ] an independent analysis"). In light of that, and because the law governing claims under the NYCHRL is still developing, Williams's NYCHRL claims present questions "best left to the courts of the State of New York." Brief v. Albert Einstein Coll. of Med. , 423 Fed.Appx. 88, 92-93 (2d Cir. 2011) (summary order) (affirming dismissal of the plaintiff's federal claims and declining to decide his claims under state and city law on the ground that they were "arguably governed by different legal standards" and the relevant law of New York was "still developing"); Giordano v. City of New York , 274 F.3d 740, 754 (2d Cir. 2001) (declining to reach the question whether the plaintiff had a valid claim under the NYCHRL after dismissing his federal claim). Accordingly, Williams's NYCHRL claims are dismissed, but without prejudice to her refiling them in state court.
CONCLUSION
For the reasons stated above, the DHMH's motion for summary judgment is granted, and Williams's claims are dismissed, albeit without prejudice to her refiling her claims under the NYCHRL in state court. It follows that Williams's cross-motion for summary judgment must be and is denied. The Clerk of Court is directed to terminate Docket Nos. 30 and 38, to enter judgment in the DHMH's favor, and to close this case.
SO ORDERED.
Moreover, even if Williams had requested assignment to the Bureau of STD Control and Prevention, the DHMH's explanation for why that accommodation would have been unreasonable-that "moving plaintiff ... would have resulted in a vacancy within TB Control that would not have been filled," (Def.'s Mem. 16)-is adequate.
In any event, considering Williams's "effective termination" claim independently would not change the Court's conclusion. The record supports the DHMH's claim that Williams's "absenteeism"-that is, her failure to work for months-led to her termination. (Def.'s Mem. 19; see also Notice and Statement of Charges 5 (advising Williams that she "violated [a] Standards of Conduct Rule" because she was "absent from [her] work location without authorization from July 14, 2015 through [February 23, 2016]") ). That is plainly a legitimate, non-discriminatory reason for termination, and Williams points to no evidence that it was pretext for retaliation. See, e.g. , Best v. Duane Reade Drugs , No. 14-CV-2648 (CM), 2017 WL 218251, at *5 (S.D.N.Y. Jan. 11, 2017) (finding the "history of Plaintiff's absences" to be a legitimate, non-discriminatory reason for her termination and granting summary judgment to the employer where there was "no evidence to suggest that this rationale was pretext"). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3433545/ | This is an action to recover a 100 per cent stock assessment against the defendant, Rosa Wosoba. The defense was a general denial; plea of misjoinder of causes of action and parties; that plaintiff had no legal right to maintain the suit; that plaintiff had no authority granted by the court to maintain the suit; that there had been no transfer of the stock on the stock books of the corporation; that the stock did not belong to the defendant, but belonged to the estate of her deceased *Page 815
husband; plea of estoppel; and that the defendant was not made party to any suit establishing an assessment on the stock. The trial court found for the defendant and dismissed plaintiff's petition, and rendered judgment against plaintiff for costs.
At the threshold of this controversy we are met with a motion to dismiss the appeal, based on the ground that the plaintiff in the case tried in the lower court was D.W. Bates, superintendent of banking of the state of Iowa, and the defendants were Oxford Junction Savings Bank of Oxford Junction, Iowa, and Rosa Wosoba, and the case was so docketed in this court, whereas the notice of appeal whereby this court acquired jurisdiction, if it has jurisdiction, was entitled "D.W. Bates, Superintendent of Banking of the State of Iowa, as Receiver of the Oxford Junction Savings Bank, Plaintiff, v. Oxford Junction Savings Bank of Oxford Junction, Iowa, and Rosa Wosoba, Defendants." The notice of appeal recites that "D.W. Bates, Superintendent of Banking of the State of Iowa, as Receiver of the Oxford Junction Sayings Bank, Plaintiff, has appealed from the judgment of the district court aforesaid rendered against the plaintiff in above entitled cause on the 29th day of April A.D., 1935," etc. The original papers have been certified, and we find an original notice for the March term, 1934, of the district court of Jones county, Iowa, entitled, "D.W. Bates, Superintendent of Banking of the State of Iowa, as Receiver of the Oxford Junction Savings Bank of Oxford Junction, Iowa, Plaintiff, v. Oxford Junction Savings Bank of Oxford Junction, Iowa, and Rosa Wosoba, Defendants." This notice was served upon Rosa Wosoba on the 13th day of February, 1934, and required the defendant to appear thereto and defend on or before noon of the second day of the next March term of said court commencing on the 5th day of March, 1934. The notice was properly entitled and was in due form and properly served. It is the contention of appellee that no petition was ever filed in response to this notice, and upon examination of the record we find that the only petition filed was entitled "D.W. Bates, Superintendent of Banking of the State of Iowa, Plaintiff, v. Oxford Junction Savings Bank of Oxford Junction, Iowa, and Rosa Wosoba, Defendants, In Equity, No. 10817, Petition in Equity." Petition recites: "Comes now the plaintiff and for cause of action against the defendants, Rosa Wosoba, states." *Page 816
Then follows the usual and ordinary allegations with reference to the insolvency of the bank; the necessity for a stock assessment of 100 per cent. against the stockholders. In the last paragraph of the petition, prior to the prayer, we find this statement: "This plaintiff has reported herein that a stock assessment against all stockholders of said bank is absolutely necessary and essential for the purpose of aiding in the payment of depositors and creditors of said bank, and that said action should be started immediately by this plaintiff against the said Rosa Wosoba and any other stockholders," etc. "And that this court has entered an order authorizing this plaintiff to commence said action" * * * "Wherefore the plaintiff demands judgment," etc. And this petition is signed by C.J. Cash, attorney for plaintiff.
Petition is sworn to by said C.J. Cash, and in the affidavit he states: "I am the attorney for D.W. Bates, as Receiver of the Oxford Junction Savings Bank of Oxford Junction, Iowa, theplaintiff in the foregoing petition," etc. There are also other references in the petition to the plaintiff as receiver, successor to L.A. Andrew, superintendent of banking of the state of Iowa, said L.A. Andrew, superintendent of banking of the state of Iowa, being the plaintiff in the original suit brought against the Oxford Junction Savings Bank of Oxford Junction, Iowa, and the officers of said bank, asking for the appointment of himself as receiver. The number of that case was 10817, which is the same number that appears on the aforesaid petition in equity above referred to. The order of the court dismissing the action and rendering judgment bears the same number, and recites: "The court finds that the equities are with the defendant, Rosa Wosoba and against the plaintiff. It is therefore ordered that plaintiff's
petition be dismissed as to the defendant, Rosa Wosoba atplaintiff's costs. Judgment accordingly. To all of whichplaintiff excepts."
There was no other plaintiff except D.W. Bates, superintendent of banking of the state of Iowa. Therefore, this judgment could be nothing more nor less than a judgment against D.W. Bates, superintendent of banking of the state of Iowa. There was no judgment rendered against D.W. Bates, superintendent of banking of the state of Iowa, receiver of the Oxford Junction Savings Bank of Oxford Junction, Iowa. The only person who has served notice of appeal is D.W. Bates, superintendent of banking of the state of Iowa, as receiver of the *Page 817
Oxford Junction Savings Bank of Oxford Junction, Iowa, and in this notice he states that he appeals from the judgment of the district court rendered against "the plaintiff in the above entitled cause on the 29th day of April, A.D., 1935." D.W. Bates,superintendent of banking of the state of Iowa is one person, and D.W. Bates, superintendent of banking of the state of Iowa,receiver of the Oxford Junction Savings Bank, is another person. In his capacity as superintendent of banking, he had no standing in court to sue the stockholders to collect the super-added 100 per cent. assessment upon stock. Under the statute, this action must be brought by the receiver, or by a creditor. Section 9253, Code 1935. In the petition, which is the only basis for the suit against the defendant, Rosa Wosoba, the only plaintiff named in the caption was D.W. Bates, superintendent of banking of the state of Iowa. In the prayer he prays for judgment in the name of plaintiff, not as receiver. Judgment was rendered against the plaintiff, D.W. Bates, superintendent of banking of the state of Iowa, not against the receiver. There was no judgment rendered against the receiver. No petition was ever filed in which the receiver was named as plaintiff. D.W. Bates, superintendent of banking of the state of Iowa, has served no notice of appeal. There has been no notice of appeal served in an action entitled D.W. Bates, superintendent of banking of the state of Iowa v. Oxford Junction Savings Bank of Oxford Junction, Iowa, and Rosa Wosoba, defendants. The notice of appeal is served in an action entitled D.W. Bates, superintendent of banking of the state of Iowa, as receiver, etc.
Motion was made prior to the filing of answer in the court below to dismiss this action because the plaintiff as superintendent of banking had no authority to bring and maintain this suit. This motion should have been sustained. Appellant insists that he has a right to bring the action against the stockholders in the original case in which the receiver was appointed, and is not required to docket a new and independent case. Even if this be true, a matter which we do not determine, that does not solve the question. In any event, the action against the stockholders under the statute must be brought by the receiver and whether he dockets it as an independent suit in equity, or whether he files his petition in the original action and has the same carried under the same number, the plaintiff in the stock assessment suit *Page 818
necessarily must be the receiver and not the superintendent ofbanking. There is no escape from this. Had the prayer in the petition been for judgment in favor of the receiver against the defendant, we might be able to overlook the mistake in the caption, but when the caption is plain and unequivocal and the petition starts out, "Comes now the plaintiff" and the prayer is for judgment for the "plaintiff" and the judgment is against the"plaintiff," we are compelled to look to the caption to ascertain who is the person referred to by the use of the term "plaintiff."
It did not cure the evil by putting the number, 10817, on the papers. Appeal dismissed.
DONEGAN, C.J., and PARSONS, RICHARDS, KINTZINGER, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433563/ | The plaintiff in the original action was the owner of a farm of 360 acres. It appears that he sold the farm, and received as evidence of part of the purchase price a mortgage on the premises for $27,250. The purchaser in turn sold the farm to the defendants L.W. Barnhart and wife, who assumed the payment of said mortgage. Subsequently, the title was conveyed to appellant.
In 1920, the Barnharts executed a second mortgage on said premises to appellee W.J. Steckel, trustee, for the sum of $4,000. The plaintiff brought suit for the foreclosure of said first mortgage. The Barnharts and the mortgagors were made parties defendant, as were also appellant and appellee Steckel. A decree of foreclosure was entered on or about the 25th day of May, 1922, and a special execution was issued and levy made on the premises, and the same was sold to the plaintiff, as purchaser, in nine separate tracts of forty acres each, the total amount of the sale being $31,969.23. On March 22, 1923, Steckel attempted to make a redemption from said sale, as a junior lien holder, and paid to the clerk the total amount of the sale of the several tracts under execution, and filed affidavit stating that there was then due upon his junior lien $3,114. This affidavit will be discussed later.
It is conceded that, on June 19, 1923, appellant was the owner and holder of the legal title to all of the lands described in said mortgage, and the holder of the right of redemption in and to said lands, and that on said date she paid to the clerk $22,112.39 in redemption of five of the forty-acre tracts that had been sold under the sheriff's execution in the foreclosure sale, and at said time deposited with the clerk of the district *Page 331
court the sum of $3,180, being the amount then due on Steckel's junior mortgage. Thereupon, appellant filed her application, under Section 4057, Code, 1897, for an order to fix and determine the amount required to be paid to make full redemption of said premises, and to determine whether or not Steckel had legally redeemed from the foreclosure sale.
Notice of said application being duly served, Steckel appeared in resistance thereto. A hearing and trial was had, and it was ordered and decreed that Steckel's redemption was legal, and that he was entitled to the amount paid by appellant in redemption from the foreclosure of the first mortgage, and also to the full amount due on his junior mortgage. From this order the title holder redemptioner appeals.
The question at issue is whether the redemption by the junior mortgagee was made in such manner as preserved his lien against the five forty-acre tracts sought to be redeemed by the title holder redemptioner. The amount due on the junior lien holder's mortgage, $3,180, was paid into the hands of the clerk of the district court, and under stipulation is held pending the determination of this question.
No question is raised as to the legality of the foreclosure proceedings, or of the sale under the special execution. The land was sold in nine forty-acre tracts. Different amounts were bid for each of said tracts, and the homestead forty acres were offered for sale last. It appears that nine separate certificates of sale were issued to the purchaser, each being for the amount paid on one particular forty-acre tract.
When Steckel, as junior lien holder, sought to redeem from this sale, he paid to the clerk the total amount due on all of said certificates of sale, and filed an affidavit in which he stated that he was a junior lien holder to the certificates of sale issued to the purchaser under said special execution, and that he had a lien on the premises described in said certificates of sale, as evidenced by a mortgage of $4,000, which was particularly described, and on which he averred there was due $3,114, and stated:
"Which amount I credit on my lien in redeeming from all the sheriff's certificates of sale of the above described land."
The affidavit further recited the amount due at said date *Page 332
on each of the several certificates of sale, with interest, and the aggregate amount thereof, which amount Steckel paid to the clerk.
Did Steckel effectually redeem as a junior lien holder, so that the title holder was required to pay the amount due on the junior mortgage, in order to effectuate redemption of the five tracts?
The method of redemption by a junior mortgagee is pointed out by the statute. We have quite recently had occasion to consider the statutes involved, and to discuss the question of redemption by a junior mortgagee, in Burns v. Hanby, 184 Iowa 727, and Gatesv. Ives, 191 Iowa 851.
Section 4056, Code, 1897, provides the method by which a junior lien holder may redeem from a senior lien holder. Said section is as follows:
"The mode of redemption by a lien holder shall be by paying into the clerk's office the amount necessary to effect the same, computed as above provided, and filing therein his affidavit, or that of his agent or attorney, stating as nearly as practicable the nature of his lien and the amount still due and unpaid thereon. If he is unwilling to hold the property and credit the debtor thereon the full amount of his lien, he must state the utmost amount he is willing to credit him with. If the amount paid to the clerk is in excess of the prior bid and liens, he shall refund the excess to the party paying the same, and enter each such redemption made by a lien holder upon the sale book, and credit upon the lien, if a judgment in the court of which he is clerk, the full amount thereof, including interest and costs, or such less amount as the lien holder is willing to credit therein, as shown by the affidavit filed."
There is no question in this case but that Steckel complied with the provisions of Code Section 4056, in that he made reimbursement of the amount bid by the holder of each of the nine certificates of sale, including all of the costs, with interest, and said amount was paid by him to the clerk of the court.
We held, in Burns v. Hanby, supra, that, for a junior redemptioner to effectuate a valid redemption, it was necessary that the redemption be in substantial conformity with said Section 4056. In this case, the land was sold under the *Page 333
foreclosure of the mortgage, in nine separate and distinct tracts. Nine certificates of sale were issued. In this particular instance, one party was the purchaser of nine of the certificates; but it might well have happened that nine different purchasers each had acquired a separate certificate of sale of a particular tract.
The junior redemptioner, in attempting to redeem, computed the amount due upon each of said nine certificates of sale, and paid to the clerk the total amount due on all of said certificates. He also filed an affidavit, in which he stated the nature of his lien "and the amount still due and unpaid thereon."
It is contended by appellee Steckel that he strictly and literally complied with the express provisions of the statute, and that this is all that is required. It is obvious that this statute by its terms was intended to refer to and provide what should be done in the event of a sale of a single tract and of a redemption from the sale of such a tract, or from a sale enmasse, where one certificate had been issued.
Unless we are to construe the statute by incorporating into it other and additional provisions than are contained therein, it must be held that the junior redemptioner in this case did the precise thing and the only thing that the statute required him to do. It is to be remembered that he had a mortgage which was a lien upon the entire tract of land. He had in no way changed his position as such mortgagee, although his rights as a mortgagee, as between him and the holder of the first mortgage, had been changed by the foreclosure to which he was a party, into the statutory rights of a redemptioner. He made his redemption from the foreclosure sale in exact accordance with the provisions of the statute: that is, by paying the amount due on the sale of each of the several tracts covered by his mortgage. He then filed his affidavit, stating the nature of his lien and the amount still due and unpaid thereon. His lien was a lien upon all of the parcels which he had so redeemed. The amount due was stated correctly in his affidavit. He did not have a separate lien upon each of the several forties that had been so separately sold under the foreclosure sale, but his lien still remained as a lien upon the entire tract. He was not compelled *Page 334
by any provision of the statute to split his lien into nine distinct amounts and state the amount of his lien that he was willing to credit upon each of the several parcels, if redemption should be made of them. He redeemed the nine forties, and, by his affidavit, did exactly what the statute requires: stated the amount due on his lien, which covered the entire tract.
It is suggested that, if a title holder redemptioner sought to redeem one tract, in order to do so, he would be compelled to pay the entire amount due on the junior redemptioner's mortgage, and that the junior redemptioner should be required to apportion his mortgage among the several parcels redeemed by him, so that a title holder redemptioner of one tract could redeem such tract by paying the amount of the sale under the first mortgage and the amount stated by the junior redemptioner that he was willing to indorse upon his mortgage by a redemption of such particular tract. The difficulty with this contention is, however, that there is no provision of the statute requiring the redemptioner to split up his mortgage among the several parcels, where the land is sold in this manner, under the foreclosure of the first mortgage.
It is true that the title holder redemptioner of any one of the forty-acre tracts might be compelled to pay the total amount of the junior redemptioner's mortgage, to effectuate a redemption. Of course, the amount of such mortgage must be paid once; and whether or not, where there are a number of title holder redemptioners all seeking to redeem, contribution could be enforced by the one who first redeemed, as against the others, is a matter not involved in this case, and upon it we express no opinion.
The sole question for our determination is whether or not, under the facts in the instant case, the junior mortgagee made a redemption of the mortgaged premises in such a manner as preserved his lien against the mortgaged premises in such a way that no single parcel could be redeemed therefrom unless the junior mortgagee's lien had first been satisfied. We hold that the redemption by the junior mortgagee was in strict and full compliance with the statute, and that appellant was not entitled to redeem the parcels of land which she sought to redeem as a title holder redemptioner, without first paying the amount due on *Page 335
Steckel's lien. The redemption by the junior lien holder was made in strict accordance with the statute, and must be satisfied by the title holder in order to effectuate full redemption.
The decree of the district court was correct, and must be —Affirmed.
ARTHUR, C.J., and EVANS and PRESTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433571/ | Lester H. Colver made written application *Page 408
to the Continental Assurance Company for a policy of insurance in the amount of $2,000 upon his life. On the 20th day of September, 1933, he appeared before Dr. A.L. Yocom, Jr., the medical examiner of the appellant company at Chariton, Iowa, and submitted to a medical examination as to his health and insurability. The medical examiner made a certificate of health to the insurance company, and as a result thereof, on the 2d day of October, 1933, the policy now in question was issued, naming Oral M. Colver, the wife of the insured, as beneficiary. On the 12th day of December, 1933, the insured died at Afton, Iowa. Formal proof of claim was filed by the beneficiary, as required. The company then made an investigation and discovered that Lester Colver on the 19th day of August, 1933, had consulted Dr. Delmar B. Sollis, an eye specialist, in Chariton, Iowa, and had given him a history of having suffered from diplopia or double vision. Investigation further disclosed that the insured had complained of a tired, overworked feeling during July and August of 1933. The insurance company then instructed one of their adjusters, Mr. Ladd Shramek, to call on Mrs. Colver and to explain to her that the company had certain defenses against the claim filed by her and that it felt, by reason of the false and fraudulent representations and concealment made by the insured concerning his health, it owed her nothing on the policy. In compliance with his employer's instructions, Mr. Shramek did call on the beneficiary on February 16, 1934. He called early in the afternoon, and as Mrs. Colver was sick in bed and unable to see him he came back about 4:30, when her thirteen year old daughter, who was attending school, had returned home. Mr. Shramek was a man of experience in the settlement of cases; that was his business. He told Mrs. Colver that her husband had secured the policy by making false statements and that the insurance company was not liable, but that it would pay her what it would cost the company to defend a lawsuit if she brought one, $200. He then secured her signature to a release, gave her a check in the amount of $200, and took the policy with him. Later Mrs. Colver tendered the $200 which the company had paid her and demanded the full face value of the policy in the amount of $2,000. The insurance company refused to pay, and she was forced to commence suit. The appellant company set up two defenses: First, that the policy was procured by fraud; second, that a compromise settlement was made by appellee *Page 409
when she executed her release to the appellant's agent and surrendered the policy on the payment of the sum of $200. The appellee in reply denied the first defense and set up that the written release was obtained by fraud and misrepresentation and was without consideration, and asked that she recover the balance due under the insurance contract, in the amount of $1,800. The case was submitted to a jury, which returned a verdict in favor of Mrs. Colver. The insurance company has appealed to this court.
The appellant relies mainly upon two propositions for reversal of this case: first, that Lester H. Colver made false and fraudulent answers to the insurance company's medical examiner, and by fraud obtained from such medical examiner a certificate of sound health and insurability, and the issuance of the policy of insurance sued upon.
[1] The false statements which appellant complains of that were made to the examining physician, were: first, in response to the question, "Have you ever had or been told that you had fits, nervous breakdown, overwork, or any other nervous or mental disorder?" he answered, "No," and, second, to the question, "What physicians did you consult in the past ten years? Name all, state why?" he answered, "None." The insurance company claims that because Lester Colver consulted an eye specialist, who diagnosed his trouble simply as a defect in his eyesight and prescribed eye glasses for him; and that because Lester Colver consulted Dr. Gutch of Chariton some two or three months preceding and was given a tonic, these answers were false and made with the intent of deceiving Dr. Yocom into issuing a certificate of health.
It is the statutory law of Iowa, section 8770, Code of 1931, that the certificate of health given by a company's medical examiner is conclusive and the company is estopped to attack the insurability of applicant unless the certificate be secured by fraud and deceit.
In the case of Sargent v. Modern Brotherhood, reported in148 Iowa 600, on page 607, 127 N.W. 52, 55, this court said:
"But in the interpretation of the language used in calling for answers and in making response to such inquiries, the courts insist upon a reasonable or even a liberal construction in favor of the assured, with a view to avoiding forfeitures on purely *Page 410
technical grounds. As is said in the case of Wilkinson v. Connecticut Mutual L. Ins. Co., 30 Iowa 119, 127, 6 Am. Rep. 1357, relating to the failure to disclose in answer to a question about previous accidental injuries a slight injury which the jury specifically found not to be serious: `The language of the question is to have a reasonable construction in view of the purposes for which the question was asked. It must have reference to such an accidental injury as probably would or might possibly have influenced subsequent health or longevity of the insured. It could not refer, and could not be understood by any person reading the question for a personal answer to refer, to a small burn upon the hand or arm during infancy, to a cut upon the thumb or finger in youth, to a stumble or falling or sprain of a joint in more advanced age. The idea is that such a construction is to be put by the courts upon the language as an ordinary person of common understanding would put upon it, when addressed to him for answer.' * * *
Thus, it has been held that a statement that the applicant is in good health is not shown to be false by proof of a temporary ailment, not indicating a vice in the constitution or so serious as to have some bearing on the general health and continuance of health; that is, such as according to common understanding, would be called a disease. * * *
"Even where the inquiry is as to a specific ailment or disease it is to be interpreted as calling for an answer only where the previous attack was of a nature likely to result in impairment of health or to indicate a constitutional difficulty which might shorten life. * * * Accordingly, this court had held a negative answer as to `spitting or coughing of blood' was not false, unless the evidence showed that the applicant had been subject to spitting or coughing of blood in such sense as that a reasonable person might suppose some ill health or physical condition, affecting the desirability of the applicant as a risk, was indicated. * * *
"Giving to the questions and answers in this case relating to previous disease or severe sickness the interpretation thus indicated, it is clear that the evidence did not show any falsity in the statements. The tonsilitis or quinsy was not of a character to be denominated a disease, and the stomach trouble appears to have been of a similarly inconsequential character. Headaches due to temporary causes, not indicating or resulting in *Page 411
constitutional impairment, are not regarded as matters of enough consequence to be disclosed even where there is a specific question as to habitual headaches. * * *
"The same principle is to be applied in construing questions and answers relating to prior attendance by a physician. In response to such question it is not necessary for the applicant to disclose the occasion and circumstances of every consultation of a physician for temporary disability or indisposition, not amounting to a disease."
In this statement of the law we concur. To hold otherwise would no doubt unjustly deprive many of the right to recover upon insurance policies, who through failure of memory or because of what to them seemed a trivial call upon a doctor failed to disclose some consultation with a doctor for a temporary disability or indisposition, or for some minor ailment. The untrue answer does not necessarily prove fraud; there still remains the question for the jury to consider whether or not there was an attempt to deceive the insurance company. In the case at bar Lester H. Colver did not seek this insurance. The agent of the insurance company called upon him several times urging him to take the policy. Finally he signed the application. He did not rush to the doctor's office to take the physical examination; the record shows he was called twice before he went. He was working steadily and at hard labor, all during this time, and appeared to be in the best of health. He had told the agent of the insurance company who had solicited the policy about the fact that Dr. Sollis had fitted him with a pair of eye glasses and that Dr. Gutch had given him a tonic. The record does show that he went to Dr. Sollis, an eye specialist, and that the doctor thought his trouble would be cured by fitting him with a pair of eye glasses. There is nothing in the evidence of Dr. Sollis that would convince any reasonable man that Lester H. Colver had anything the matter with him except that he needed glasses. Colver did go to Dr. Gutch some months before for a trivial ailment. Certainly there is nothing in this record to show that Lester H. Colver had any idea from his consultations with Dr. Sollis and Dr. Gutch that there was anything fundamentally wrong with him; that he had any disease. He submitted himself to the examination of the insurance company's doctor. He made no effort to conceal anything from the company, as he had told their *Page 412
agent, the man who solicited the policy, that he had consulted both Dr. Sollis and Dr. Gutch and what they had advised him.
In view of the law, the presumption of the statute, and all the facts surrounding the issuance of this policy; in view of the further fact that the burden of proof of this defense was upon the appellant; in view of the fact that they seek to prove fraud by one witness only; in view of the fact that the credibility of the witness was for the jury, the lower court was right in submitting the case to the jury for its determination.
The appellant in regard to the second question raised says:
"No principle of law is more definitely or more universally settled than that a compromise settlement of a good faith controversy between two or more parties is encouraged by the law, and when made without any fraud or artifice on either side, is universally upheld by the courts, not only in our own jurisdiction, but in every jurisdiction. Such a principle rests upon the soundest public policy and is conducive to peace, amity and good order among men."
[2] With this statement we agree. When settlements are fairly arrived at between parties, such agreements should be respected and enforced by the court. It is the policy of courts also to encourage the amicable settlements of all controversies, but, as said by this court, "it is even more a matter of good policy and good morals to stamp the law's disapproval upon settlements which bear the taint of fraud and undue advantage."
Let us look at the situation in this case. The insurance company, about a month after the death of the insured, sent its trained expert, a man who for more than twenty years had been engaged in the business of an insurance adjuster, to the home of Mrs. Lester Colver. She was a lady of little education and of no business experience. On the day that Mr. Shramek, the adjuster, arrived, she was confined to her bed. Somehow or other he talked to her through the window. Just how this occurred we do not know. He sought admission to the house and she said she was sick; there was no one there and she could not see him. She informed him then that her daughter, thirteen years of age, was at school, and would be back around four o'clock. He said he would return, and he did. Mrs. Colver was still in bed. The thirteen year old girl was the only other *Page 413
person present. The adjuster told Mrs. Colver that her husband had taken the policy out under false pretenses and that therefore made the policy no good. This statement, that her husband had tried to defraud the company, affected Mrs. Colver greatly and caused her to cry and to reply that "Lester didn't take that policy to defraud," and that he had dropped another insurance policy at about the same time. The insurance adjuster then replied, "Of course the company knows that your husband didn't intend to defraud the company." After considerable argument back and forth between this trained expert, representing the insurance company, and the widow, confined to her bed, with no one with whom to advise or consult, Mrs. Colver signed a release, settling the $2,000 claim against the company for the sum of $200. It is her claim, and there is evidence to bear it out, that the adjuster represented to her that this policy of insurance was not good and she could not recover anything under it because of false representations made to Dr. Yocom. And yet we find this same adjuster admitting that his company did not believe that Lester Colver intended to defraud the company when he made answer to the questions of Dr. Yocom. And, knowing that Lester Colver did not intend to defraud the company, this adjuster knew that the company had no defense to this policy, and when he told Mrs. Colver that the statements which Lester Colver made rendered the policy no good and she would get nothing unless she settled, he told her facts which he knew, or is charged with knowing, to be false. It will not do for him to say that it was merely his opinion of the law, as he holds himself out as one who is skilled in the law of insurance, and, as Mrs. Colver put it, she thought he ought to know the law.
This court in the case of Rauen v. Insurance Company, 129 Iowa 725, at page 738, 106 N.W. 198, 203, said:
"But there was here more than a mistake. There was a surrender of legal rights intentionally induced and procured by a false representation as to the law governing the case. The defendant must be presumed to have known that it was liable for the whole loss, and by falsely representing that under the law applicable to the case the policy was void it induced plaintiff to rely upon the superior knowledge that it possessed upon the subject and to surrender to it his claim. This clearly constituted *Page 414
fraud, and there would be manifest injustice in upholding a settlement under such circumstances."
In the case of Robinson v. Meek, reported in 203 Iowa 185, 210 N.W. 762, we find a case where an illiterate colored man was severely injured, and within a few days after he was taken to the hospital with a broken leg and other injuries and confined to his bed an insurance adjuster went to see him. This court, speaking through Justice Evans, said at page 188:
"The conversation, in the first instance, was the casual conversation of visitors. The plaintiff was suffering great pain. His leg was in a splint and was held in an elevated position from which a weight was suspended over a pulley. His head had been injured, and he was suffering from great headache and from roaring in his head. Sleeping tablets had been administered to him and a `shot in the arm.' This was his physical condition. He had no one present to advise or assist him. He had no warning that he would need any advice or assistance. The conversation was one sided. The defendant assured him that his expenses would all be cared for. He appears to have been appreciative of defendant's solicitude. The record discloses that the plaintiff assented to everything that was said or proposed to him. After making the representations testified to, the agent said to him: `I will give you $125. Will that be all right?' The plaintiff answered: `I guess so.' The agent immediately wrote out the contract of settlement. When he found the plaintiff could not read it because of his condition, he read it to him." On page 190: "The helpless condition of the plaintiff was pleaded in the reply, as an incident of the fraud. Without holding that the mere representations herein set forth were, of themselves, sufficient to impeach this settlement, if they had been made under different circumstances from those indicated herein, we reach the conclusion that the question of fraud and fraudulent representations, in the light of plaintiff's then physical and mental condition and capacity, was fairly one for the jury. In Kilmartin v. Chicago, B. Q.R. Co., 137 Iowa 64, 70, 71, 114 N.W. 522, 525, wherein we sustained the settlement, we said:
"`Settlements made with an injured party by a claim agent of a railroad, who is rushed to the scene, and who deals with the injured person before he has had time to realize what he has *Page 415
suffered, or is likely to suffer, and without opportunity for consultation, may well be looked upon with suspicion.'"
So in the case at bar Mrs. Colver was certainly in a helpless condition. Her husband had died but a month before. She was alone at home, confined to her bed. She had no one to advise or assist her, for the only person present was her thirteen year old daughter, who had just returned from school. The insurance adjuster knew these things and yet he went into that sick room, confronted this woman of no business experience in her weakened condition, and secured a settlement of a $2,000 obligation for the sum of only $200. We think that, in the words of Judge Evans in the case just cited, such settlement "may well be looked upon with suspicion." Certainly, in view of the circumstances under which this compromise settlement was made, the question of fraud and fraudulent representations, in the light of appellee's then physical and mental condition, was fairly one for the jury.
But the appellant says that the case of Vande Stouwe v. Bankers' Life Company, reported in 218 Iowa 1182, 254 N.W. 790, is a case involving almost identical features with the case at bar. The writer of this opinion did not agree with the majority in that case, and his views are set out in a dissenting opinion. No good could be accomplished by repeating them here. The Vande Stouwe case is distinguishable from the case at bar for the reason that Vande Stouwe was alive, representations were made to him, and he knew whether or not he had made false statements or intended to defraud the company in procuring the policy or to deceive the examining physician into issuing a certificate of health. When the attorney representing the insurance company in that case told him of the facts which he had discovered, Vande Stouwe knew whether or not these facts were true, while in the case at bar the adjuster was not talking with Lester H. Colver but with his widow, and she did not know whether the statements that the adjuster made to her that her husband had made false statements to Dr. Yocom were true or not. In the Vande Stouwe case, Vande Stouwe knew whether the statements were true, while in the case at bar Mrs. Colver was forced to rely entirely on the statements of the adjuster.
Other questions are raised, all of which have been given *Page 416
careful consideration. The record clearly shows that this was a question for the jury to decide, and it was properly submitted by the court.
Judgment and decree of the lower court must be, and it is hereby, affirmed.
KINTZINGER, C.J., and ANDERSON, DONEGAN, HAMILTON, and POWERS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433575/ | [1] This is the second appeal in this case, the opinion in the first appeal being found in 204 Iowa 739, where the facts are stated. On procedendo in this case, an effort was made to carry out the orders of this court. The assignee filed a report showing that she had paid her attorneys $500 in fees, with interest thereon of $78.08; that she also paid herself as assignee for services, $1150.00, with interest, amounting to $179.59; also the costs of the first trial in the district court amounting to $57.60; also the rent claimed from S.S. Lohr of $1750.00, plus $273.29 interest. The interest was all figured at 6%. The court reduced the interest to 4%. The evidence shows that the assignee had her funds on deposit at the bank bearing 4% interest, payable semi-annually. The assignee appeals.
Her first complaint is that the court erred in disapproving the payment of interest at 6% per annum on the judgment of the landlord, and the fees of the assignee and her attorney. The court evidently allowed the 4% semi-annual interest to be figured on these claims and held that the assignee must turn back the excess, or the difference between that and 6% interest which she paid. In this we think the court's ruling was right. The evidence shows that there were not sufficient funds in this estate to pay the creditors in full, with interest on the claims. We have held that in insolvent estates where this condition exists, *Page 985
creditors, even preferred creditors, are not entitled to interest. See Leach v. Sanborn State Bank, 210 Iowa 613.
It is next urged that the court erred in taxing the costs of the original proceeding in amount of $57.60 against the assignee. In this there was no error. So far therefore as the appeal of the assignee is concerned, the case is affirmed.
[2] II. F.S. Lohr also appeals. As is noted in the former opinion, he was the holder of a chattel mortgage for $4500.00 on an undivided half-interest in the stock of goods involved herein. He claims that his chattel mortgage was superior to taxes due the State. Opposing counsel rely on section 12731, Code, 1927, which provides that in cases of assignment for the benefit of creditors, taxes due the state shall have priority and be paid in full. We do not think this section of the statute is applicable here. Lohr, under his chattel mortgage, had the first lien on this property, and the taxes in controversy were never a lien on the property. We know of no equity under such circumstances which would make these taxes a lien superior to a chattel mortgage on an undivided one-half of this property. It is to be remembered that the State is not here asserting a superior lien, but the question involved is what the equitable rights are as between this chattel mortgagee and other creditors of the partnership making the assignment, and because this matter was taken into court by insolvency proceedings is no reason why the holder of the chattel mortgage should be required to bear the burden of any part or all of these taxes.
[3] It is further insisted that the unpaid rental on the building which originated and accrued after the giving of this chattel mortgage should also be deducted, thus making the chattel mortgagee stand a part of this unpaid rent. While the same was a lien on the property by reason of the relation of landlord and tenant, yet it was a lien junior and inferior to the rights of the prior-existing chattel mortgagee, and we see no reason why any part of this unpaid rent should be borne by the chattel mortgagee.
[4] In the former submission of this case, 204 Iowa 739, 745, we said: "In the final distribution of the proceeds of this estate in the hands of the assignee, in determining the amount due the chattel mortgagee, the proceeds are not to be reduced *Page 986
by the compensation allowed the assignee, but are to bear their share of the usual cost of administration."
This is the law of the case which must control us in the consideration of this question. It follows, therefore, that no part of the fee allowed the assignee can be charged against or deducted from the undivided half-interest on which this chattel mortgage existed. In other words, the value of the undivided half-interest of all of the property that went into the hands of the assignee, less the proportionate share of the usual cost of administration, is the amount that should be received by the chattel mortgagee.
Turning to the reports of the assignee, so far as we are able to determine therefrom, the amount thus ascertained as the value of the assets that went into the hands of the assignee was $6856.89. One-half of this amount is $3,428.44. The accounts presented to us in the various reports of the assignee are in many instances lump sums, and it is a difficult matter to determine what is the proportionate share of the usual cost of administration. So far as we are able to calculate from the figures before us, the share of the expense of administration, which should be borne by the chattel mortgagee, would be approximately $300.00. This would leave a balance of $3,128.44 which should be paid by the assignee to the holder of the chattel mortgage. This is in accordance with the rule laid down by the prior opinion in this case.
The motion to dismiss the appeal is overruled.
The decree entered in the lower court is affirmed on the appeal of the assignee and is modified and affirmed on the appeal of the chattel mortgagee. — Affirmed on the appeal of the Assignee; modified and affirmed on the appeal of the Chattel Mortgagee.
All Justices concur except FAVILLE, C.J., and EVANS, J., who take no part.
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433595/ | The defendant, W.A. Arts, was appointed city clerk of the city of Carroll, Iowa, in 1922 and held that office until his resignation in 1934. One of the duties of the city clerk was to collect water rents. The city brought this suit in *Page 488
October 1934, to recover water rents which it alleged defendant collected during the years from 1926 to 1934 and failed to account for and pay to the city treasurer. The defense to the action is a general denial and the statute of limitations. Code 1935, § 11007, subd. 4. The jury returned a verdict for defendants.
Plaintiff claims that it established a prima facie case against the defendant W.A. Arts and that the court erred in failing to instruct the jury that the burden of proof then passed to defendant to establish his defense and satisfactorily account for the money.
[1] The plaintiff states that "the city having established its prima facie case by city records the burden to overcome that case passed to defendant. The situation of the defendant Arts is that of a debtor who seeks to claim payment and as such the burden of proof of payment is on him."
Plaintiff misconceives the pleadings and the issue. Plaintiff alleged that defendant received about $4,000 more than he accounted for. The defendant denied that he received the money, alleging there was no deficiency as claimed by plaintiff and that he accounted for all money that came into his hands as city clerk.
Defendant does not plead the affirmative defense that he received the funds and properly accounted for them. The theory of his pleadings, which is sustained by his evidence, is that he did not collect the money which plaintiff seeks to recover. All that plaintiff had to establish in order to recover was that defendant received the funds that it alleged he had converted, for defendant does not purport to have accounted for them. It may be conceded that at the close of plaintiff's evidence it had established a prima facie case against the defendant but this fact would not relieve plaintiff of the burden of proving its accusations against defendant by a preponderance of the evidence, which burden remained at all time on the plaintiff, nor would it impose on the defendant, as claimed by plaintiff, the duty of going forward with the evidence.
There was a conflict in the evidence and there was sufficient evidence to support the verdict.
The rule that if a defendant admits he received money belonging to the plaintiff the burden is on him to satisfactorily account for such funds does not apply to the situation in this case. *Page 489
Plaintiff's statement that Mr. Art's situation was that of a debtor claiming payment has no support in the record.
The trial court was right in not assuming that defendant received the money, which was a controverted fact, and in not instructing that the burden was on defendant to prove payment.
[2] Plaintiff further claims that the court erred in holding that the burden of proof was on the plaintiff to prove the tolling of the statute of limitations as to claims originating before April 1, 1931.
Defendant pleaded the statute of limitations as to claims originating prior to April 1, 1931. Plaintiff seeks to avoid the statute by its contention that defendant concealed from the plaintiff the fact that it had a cause of action against him.
The rule in this state is that "where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the use of diligence, have been discovered." District Township of Boomer v. French, 40 Iowa 601; Conklin v. Towne, 204 Iowa 916,216 N.W. 264.
The trial court instructed the jury that the burden was on the plaintiff to prove that it was prevented, until a time within the statutory period, by the fraudulent concealment of defendant from discovering, in the exercise of proper diligence, that the deficiencies existed.
The plaintiff had the burden of establishing the facts which he claims avoids the statute of limitations. Hodgson v. Keppel,211 Iowa 795, 232 N.W. 725; Van Wechel v. Van Wechel, 178 Iowa 491,159 N.W. 1039; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264.
There was no error in the instruction. We have given consideration to other errors assigned by appellant and find no merit in them. Finding no error in the case, it is affirmed. — Affirmed.
ANDERSON, KINTZINGER, DONEGAN, MILLER, SAGER, and HAMILTON, JJ., concur. *Page 490 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433577/ | On January 5, 1933, the Ely Savings Bank of Ely, Iowa, was duly adjudged insolvent and the superintendent of banking of the state of Iowa was duly and legally appointed receiver of said bank. On August 31, 1933, the plaintiff receiver filed his petition in equity to recover from the shareholders of the capital stock of said bank the superadded statutory liability on said stock under the provisions of section 9251 of the 1931 Code of Iowa. It is alleged in plaintiff's petition that the defendant Minna K. Anderson is the owner of seven shares of said stock. She was personally served with original notice of said suit on the 28th day of August, *Page 1357
1933. On December 3, 1933, it being a day of the regular November, 1933, term of the district court of Linn county, Iowa, the court found and entered of record an order to the effect that the defendants Minna K. Anderson et al. had been duly and legally served with a sufficient original notice by personal service as provided by law, and in time for the November, 1933, term of said court, and that the subject matter of the suit, and the persons of the defendants and each of them were lawfully within the jurisdiction of said court, and that upon motion of plaintiff, said defendants and each of them were adjudged to be in default for want of an answer or appearance.
[1] On June 11, 1934, the defendant-appellant, Minna K. Anderson, filed a "motion to set aside default and to have leave to file answer", the reason assigned in said motion being that one assessment of 100 per cent had been previously collected on said stock on December 30, 1924, receipt for which is incorporated in said motion. It is further alleged in said motion that said defendant did not have personal knowledge until she had made an investigation recently and discovered said receipt; that because of said assessment so made and fully paid she is not liable to further assessment on said stock. The motion is signed by her personally, but is not verified, and no affidavit of merits in support of said motion was filed as provided by section 11589 of the 1931 Code of Iowa.
The case falls squarely within the rule laid down by this court in Shaffer v. Morgan, 188 Iowa 772, 176 N.W. 799.
[2] Furthermore, the defense suggested by the motion would be of no avail under the repeated holdings of this court. See Andrew v. Bevington Sav. Bank, 206 Iowa 869, 221 N.W. 668; Andrew v. Farmers Trust Sav. Bank, 204 Iowa 243, 213 N.W. 925, 56 A.L.R. 521; Leach v. Arthur Sav. Bank, 203 Iowa 1052, 213 N.W. 772.
It should be noted that the prior assessment referred to in defendant's motion was paid on December 30, 1924, as shown by the receipt therefor set out in said motion. The bank was not adjudged insolvent and a receiver was not appointed until January 5, 1933, and this action is brought by the receiver, and any assessment paid to the bank back in 1924 could not be urged as a defense to the present action by the receiver, under the prior holdings of our court. *Page 1358
It therefore necessarily follows that the ruling of the trial court on the motion to set aside default was correct and the same should be and is hereby affirmed. — Affirmed.
ANDERSON, C.J., and ALBERT, MITCHELL, DONEGAN, PARSONS, POWERS, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433578/ | On the 22nd day of December, 1931, the plaintiff, appellant herein, was awarded a decree of divorce from the defendant, appellee herein, in which decree plaintiff was awarded the custody and control of the two minor children of the parties; and which decree further ordered the defendant to pay to the clerk of the Polk County district court the sum of $10 per week as support money for such children, commencing March 1, 1932.
On February 25, 1936, the plaintiff filed herein her verified petition for rule to show cause why defendant should not be punished for contempt, therein alleging that defendant was in arrears in paying support money as ordered by said decree, in the amount of $1710 to March 1, 1936, further alleging that defendant had only paid the sum of $210 since the date of said decree; and also alleging therein that defendant willfully refused to make such payments of support money. Thereafter, on March 12, 1936, a citation was issued by one of the judges of the district court of Polk County, to the defendant to show cause why he should not be adjudged to be in contempt of court for his alleged failure to comply with the terms of said divorce decree. On March 10, 1936, the defendant filed an application *Page 548
to modify the original decree of divorce, and the hearing upon that application was consolidated with the hearing upon the citation to show cause why defendant should not be punished for contempt. Following hearing thereon, on the 20th day of April, 1936, the court found that the defendant was not in contempt of court, and dismissed the contempt proceedings, and likewise on said date modified the original decree by reducing the support money payments for said minor children from $10 per week to $10 per month, as of October 1, 1935. Thereafter, plaintiff perfected an appeal from said order in its entirety, and herein claims that the trial court erred (1) in failing to find the defendant guilty of contempt, (2) and in modifying the original decree of divorce.
[1] The first contention of appellant, to the effect that the court erred in failing to find appellee guilty of contempt, cannot be considered in this appeal. Section 12550 of the Code provides as follows:
"No appeal lies from an order to punish for a contempt, but the proceedings may, in proper cases, be taken to a higher court for revision by certiorari."
This particular statute has heretofore been construed by this court to mean that no appeal lies from a contempt proceeding regardless of whether the order therein was for punishment or of discharge. In the case of Currier v. Mueller, 79 Iowa 316,44 N.W. 555, which was an appeal from contempt proceedings wherein defendants were discharged and not punished, this court dismissed the appeal on the ground that it was without jurisdiction, and determined without question that the judgment of the district court in a contempt proceeding could only be reviewed in certiorari, regardless of whether the defendant was or was not punished. In this connection see also the First Cong. Church v. City of Muscatine, 2 Iowa 69; Lindsay v. District Court, 75 Iowa 509,39 N.W. 817; Jones v. Mould, 151 Iowa 599, 132 N.W. 45, and Cedar Falls Nat. Bank v. Boslough, 218 Iowa 502, 255 N.W. 665. Being without jurisdiction to review contempt proceedings by appeal, it follows that all objections to the action of the trial court in relation to the alleged contempt, must be ignored.
[2] The remaining contention of the appellant is that the *Page 549
trial court was in error in modifying the original decree. Section 10481 of the Code provides as follows:
"When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.
"Subsequent changes may be made by it in these respects when circumstances render them expedient."
The question of modification as permitted by that statute has been before this court quite frequently, and the rules of law applicable thereto seem to be very definitely settled by our former opinions. In the case of Newburn v. Newburn, 210 Iowa 639, on page 641, 231 N.W. 389, 390, Justice Stevens, in speaking for the court, makes the following statement:
"The statute, section 10481, authorizes the court, upon proper application, after a divorce decree has been granted, to modify the same, upon proof of substantial changes in the circumstances of the parties which render such modification expedient. This statute has been many times considered and applied by this court. It has always been held that the original decree is conclusive upon the parties as to the then circumstances of the parties, and that the power to grant a modification in the decree is not a power to grant a new trial, or to retry the same issues, but only to adapt the decree to the changed conditions of the parties", — See, also, cases therein cited, and Boquette v. Boquette,215 Iowa 990, 247 N.W. 255; Corl v. Corl, 217 Iowa 812, 253 N.W. 125.
This court has uniformly followed the rule as stated in the case of Newburn v. Newburn, supra, and it has likewise been uniformly held that to warrant a modification of the original decree that the changed conditions of the parties must be a substantial change, and not an inconsequential one.
"While the statute contemplates that changes may be made in an award of alimony after a final decree has been entered, it is only when there has been a substantial change in the conditions of the parties that a modification should be made. An award of alimony entered in a final decree is not to be regarded as a variable sum, to be adjusted either upward or downward with each fluctuating change in the conditions of the respective *Page 550
parties. Such a decree is entered at the time, with a view to reasonable and ordinary changes that may be likely to occur in the relations of the parties. At the time such an award is made in a final decree, the court should take into consideration all of the facts and circumstances surrounding the parties at the time, and also the reasonable prospects regarding their future condition, and make such an award as will fairly and reasonably be right and proper, under all of the circumstances. When this is done, such decree is conclusive, and should not be disturbed, unless it is made to appear that the enforcement of the decree will be attended by positive wrong or injustice, under changed conditions. This is the well established and recognized rule of this court." Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438.
It is then necessary to consider the evidence herein to ascertain whether or not there was such a substantial change in the circumstances of the parties between the date of the entry of the original decree and the time of the hearing upon the application for modification, as to warrant a modification of the decree.
The present ages of appellant and appellee are 27 and 32 years, respectively, and at the time of granting the original decree their two children were of the age of 4 years and six months, respectively. The appellee is a high school graduate, a graduate of the law department of the University of Arizona, has been admitted to practice, and at the time of the original decree was engaged in the practice of law in Des Moines. Appellant, prior to their marriage worked in a beauty shop in Des Moines. Following the granting of the decree, appellee, to an extent, made some effort to practice law in Des Moines, Grand Junction, and Tucson, Arizona. He remarried in January, 1935, following which second marriage he and his present wife resided for a part of the time with appellee's mother at Grand Junction, Iowa, and since said time they have resided with his present mother-in-law in Perry, Iowa. He has apparently given some thought to commencing the practice of law in Perry, Iowa, but has never established an office there for the purpose. The record establishes that ever since his second marriage, the appellee has to a large extent lived off the bounty of his wife, mother, or mother-in-law, and that during said period he has not been self-supporting. His various attempts to engage in the practice of *Page 551
law have rendered but little remuneration. It appears that during his father's lifetime his father was mayor of Grand Junction, and on account of that relationship the appellee did perform some legal business for the town of Grand Junction. The record of appellee, to say the least, is far from encouraging, and it is apparent from an examination of the same that up until the present time, he has been far short of a success, either in the practice of law or in any other endeavor. However, the record is absolutely void of any evidence as to his financial condition, or the amount of his earnings at and prior to the time of the granting of the original decree, and we are therefore unable to see how in any shape, manner, or form there has been any change in his condition in this respect since the granting of the decree. As far as we are able to ascertain from a reading of the record, his financial condition and his ability to earn a livelihood were no better or no greater at the time of the granting of the original decree than the same are at the present time. He does make the contention that his health is somewhat impaired, and that on account thereof he is not able to perform heavy manual labor, but, in connection therewith, it was fairly established at the time of the hearing on the application to modify that his health was in about the same condition it had been for the past seven years, which of necessity results in his physical condition being practically the same at the time of the original decree as it was at the time of the hearing upon the application to modify. We likewise find, in that connection, that he was successful in passing a medical examination and procuring life insurance about 18 months prior to the hearing upon the application to modify.
The only change in the circumstances of appellant since the original decree was granted, is that appellant was not working then, but at the present time is working in a beauty shop in Chariton, Iowa, and receiving therefrom approximately $12 per week, and that therefrom, added to the small amount that appellee has paid, she is compelled to support, maintain, and clothe herself and said minor children. In our opinion that does not constitute a sufficient change of circumstances to warrant the court in reducing the amount decreed that appellee should contribute for the support of the minor children of himself and appellant. The only change in the circumstances of appellee is his remarriage, and it hardly requires citation of authority that such remarriage alone is not such a change in circumstances as *Page 552
would warrant the court in modifying the provisions of a decree in appellant's favor. Boquette v. Boquette, supra; Stone v. Stone, 212 Iowa 1344, 235 N.W. 492; Toney v. Toney, 213 Iowa 398,239 N.W. 21. In the case of Newburn v. Newburn, supra, the appellee had remarried and his new wife was soon to give birth to a child. In that case appellee contended that his health was impaired, that he had been sick, and compelled to incur expense because thereof, also that the ability of appellant to support the minor child, of himself and appellant, had materially increased since the divorce was granted, but therein his income had not been impaired. The trial court modified the decree in favor of appellee, but upon appeal it was held that all of the matters shown in that record did not disclose a sufficient change in the circumstances of the parties as to justify the modification by the trial court.
In accordance with undisputed precedents, we are compelled to find that no showing was made in the instant case of subsequent changes in the circumstances of the parties sufficient to justify a modification of the decree, and the finding of the trial court, in so far as said finding modified said original decree, must be reversed.
The appeal in so far as the same affects the order of the court in refusing to find appellee guilty of contempt is dismissed, and the order of court in so far as the same modifies the original decree, is reversed. — Reversed.
STIGER, C.J., and RICHARDS, DONEGAN, KINTZINGER, ANDERSON, and SAGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433592/ | For a clear understanding of the facts out of which this action arose we give something of a history of the title of the land upon which the mortgage securing the note in suit was placed.
On February 28, 1918, Reilly, owner, executed to the Peyton State Bank a note for $3,000, due February 28, 1922, with interest at 6 per cent, securing it by a mortgage on real estate. On February 21, 1918, Reilly, by warranty deed, conveyed to McEvers who assumed the debt. On June 15th of the same year the Peyton Bank assigned the note and mortgage to Annis; and on July 8th following Annis assigned the note and mortgage to the Roman Catholic Mutual Protective Society of Iowa. On June 26, 1920, McEvers, by warranty deed, sold the land to Walters who assumed the debt. In December of the same year Walters conveyed to defendants, McKenney and Seabury who likewise assumed.
In February, 1922, defendants, McKenney and Seabury and their wives, entered into an extension agreement with the holder of the debt to fix a new due date, February 1, 1927. On June 13, 1928, all the defendants made another extension agreement with the holder, Roman Catholic Mutual Protective Society of Iowa, fixing the time of payment, February 1, 1933, with interest at 5 per cent instead of 6 per cent as it had theretofore been. On August 29th the holder of the note and mortgage assigned to the Royal Union Life Insurance Company. This went into receivership. The receivers of the company assigned the note and mortgage to the plaintiff.
Defendants seek to escape liability on the plea that there was no consideration for the first extension, predicating such lack upon this part of the extension agreement:
"This agreement is made upon the express condition that it shall not be construed as precluding the said Society, its successors or assigns, from enforcing any and all its rights *Page 729
against any person liable upon said note * * * as maker, endorser, guarantor or otherwise, whose written assent hereto has not been obtained, for which purpose said note * * * may be treated as overdue, and collected immediately, in accordance with the terms of said note * * * and deed, as if this agreement had not been made."
[1] By amendment defendants allege that the extension agreement was a novation of the assumption undertaken in the deed; and that as a consequence more than 10 years having elapsed since the date of the acceptance of the deed, plaintiff's claim is barred by the statute of limitations. Code 1935, § 11007. There is some uncertainty as to just what the defendants' contention is. They seem to ignore the second extension executed June 13, 1928, fixing the due date at February 1, 1933, with a reduced rate of interest. Appellants' first contention may be summed up in this way: The assumption of the debt undertaken by the acceptance of the deed is barred by the statute of limitations in 10 years from the acceptance of such deed. This proposition may be admitted without helping defendants' cause. The case of Reynolds v. Johnson, 199 Iowa 1055, 202 N.W. 881, cited to this proposition affords no help to the defendants.
[2] Appellants' second proposition is that an instrument providing for an extension of time which allows the holder to commence suit at any time is without consideration; but this contention overlooks the very terms of the agreement itself as above set out. It will be seen that the reservation of the right to sue is against "any person liable upon said note * * * as maker, endorser, guarantor or otherwise, whose written assenthereto has not been obtained, for which purpose said note * * * may be treated as overdue * * *." (Italics inserted.) The difficulty with appellants' position is that their assent was not only given, but expressed in writing in the second extension agreement. This, by its very terms, fixed the maturity on February 1, 1933. This action was commenced in 1936. Appellants argue that there was no consideration because plaintiff, as they contend, could sue after the extension all parties, including the defendants, as if no such agreement had been entered into. This claim has already been disposed of. That an agreement to extend the time for the payment of a debt affords a good consideration is too well settled to admit of *Page 730
argument or to call for citation of authority, but see Goff v. Milliron, 221 Iowa 998, 266 N.W. 526; and Mowbray v. Simons,183 Iowa 1389, at page 1394, 168 N.W. 217.
Finding no error, the judgment of the trial court is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433597/ | E.J. Kreumpel, who commenced this suit against defendant, died prior to the trial and P.H. Peterson, administrator of his estate, was substituted as plaintiff.
The controlling question before us is whether the delivery of a check by plaintiff's intestate, E.J. Kreumpel, at defendant bank to the bank's assistant cashier constituted, as claimed by the plaintiff, a transaction with the bank, or as claimed by the bank, was a personal transaction between Kreumpel and the cashier. Plaintiff's evidence is substantially as follows:
Plaintiff's intestate was a farmer and dealer in livestock who resided near Greeley, Iowa. The defendant, Citizens State Bank of Hopkinton, Iowa, operated a branch bank at Greeley. M.J. Gaughen, an assistant cashier, was in charge of said bank. Prior to September 10, 1935, Kreumpel had executed two mortgages on his livestock to the bank to secure his indebtedness which was in the sum of about $5,000. On September 10, 1935, Kreumpel sold livestock covered by the chattel mortgages of the bank to Link Livestock Company of Dyersville, Iowa, for the sum of $1,896.20. At the direction of Kreumpel the check issued in payment for the stock was made payable to the bank. Kreumpel took the check to the bank on September 12th and delivered it to Gaughen. The check was endorsed to the Merchants National Bank of Cedar Rapids, Iowa, by "Citizens State Bank, Hopkinton, Iowa, by M.J. Gaughen, assistant cashier in charge." The check was paid and defendant bank was credited by the Cedar Rapids bank with the said sum of $1,896.20. Plaintiff introduced in evidence a mutilated deposit slip of the Citizens State Bank issued by M.J. Gaughen as assistant cashier for $1,896.20 dated September 12, 1935.
On September 13, 1935, Gaughen deposited the amount of *Page 221
the check in his personal account in the branch bank. On September 19, 1935, the E.J. Kreumpel notes and mortgages were sold by defendant bank to the Community Savings Bank of Edgewood, Iowa, for their face value plus accrued interest. Plaintiff, whose middle name was John, kept his account in the name of John Kreumpel. At that time he had a nephew 18 years of age named John Kreumpel who lived near Greeley. Plaintiff's evidence is undisputed.
When Kreumpel sold the mortgaged property, the notes were past due and he was heavily involved financially.
Mr. Wilson, a resident of Manchester, Iowa, for 24 years, a former banker and now engaged in farm management and the writing of general insurance, testified he made a trip to the defendant bank in June 1937 to see Mr. Wright, cashier of defendant bank, about an adjustment of the controversy. Mr. Wright told him that the bank was not inclined to give any credit in order to adjust Kreumpel's account and if Kreumpel "makes too much publicity about this, it would be too bad for him."
Defendant took the deposition of its main witness, M.J. Gaughen. From 1933 to September 1935, Gaughen was assistant cashier of defendant bank at Greeley. From 1935 to 1937, he was cashier of the Community Savings Bank of Edgewood, Iowa. In December 1937 he was convicted for embezzlement in federal court and sentenced. At the present time he is a salesman employed by the Hammond Liquor Company. He admits he expropriated the money but asserts Kreumpel was a party to the offense. We will set out the material part of his testimony.
He testified that he became acquainted with Kreumpel in 1932 and that in 1933 they carried on a livestock business under a partnership arrangement which terminated in 1937. The witness was a silent partner. A part of the partnership funds was deposited in the branch bank in the name of John Kreumpel, the witness not wanting to appear openly in the partnership because he did not want the officers of the bank to know that he was interested in a partnership which operated on funds *Page 222
borrowed from the bank and because Kreumpel had several judgments against him. The remaining funds were kept in one of the deposit boxes of the bank which was not registered in any name. Gaughen also used this account for some of his personal funds and he and Kreumpel would draw on this so-called partnership account and sometimes for their personal use. Neither Kreumpel nor Gaughen told the officers of the bank of the partnership. The witness claimed the notes and mortgages executed by Kreumpel, which are described above, were partnership transactions and that the livestock sold to Link Livestock Company was partnership property and he was entitled to a one-half interest in the proceeds. He testified that on two occasions livestock which was mortgaged to the bank by Kreumpel was sold in his (Gaughen's) name to Rath Packing Company of Waterloo, Iowa, and the two checks given in payment were made payable to him, the proceeds being placed in the partnership account. At intervals, the partners would have an accounting and determine how much each owed the partnership account. The livestock was kept on Kreumpel's farm. Gaughen's testimony about the partnership is material only as it may tend to support his version of the delivery of the check to him by Kreumpel which is as follows:
"The livestock for which such check or draft was issued in payment belonged to E.J. Kreumpel and myself jointly and it was made payable to the Citizens State Bank because the bank had a mortgage on the livestock. E.J. Kreumpel brought the draft to me, probably the same day it was issued. I told Kreumpel I was in need of some money for my personal use for the purchasing of some stock in a bank, which I was attempting to place in Edgewood, Iowa. Kreumpel stated that it was all right with him for me to use those funds. The proceeds of this draft or check of the Link Livestock Company, I credited to my personal checking account. At least $1,050.00 of the proceeds of said draft was repaid by me to the partnership account carried in the name of John Kreumpel on October 3, 1935, by me placing $1,050.00 to the credit of John Kreumpel. *Page 223
This sum was money paid to me by individuals who purchased stock in the Community Savings Bank from me. I identify Defendant's Exhibit 3 to be a duplicate deposit ticket showing the $1,050.00 credited to the John Kreumpel account.
"When E.J. Kreumpel delivered the check or draft of the Link Livestock Company to me, he did not give me any instructions to apply the same to the reduction of his indebtedness owing to the Citizens State Bank. I did not accept and receive this check or draft on behalf of the Citizen's State Bank. I accepted it in my own personal capacity as Kreumpel's partner in our livestock venture.
"There was an accounting of the partnership affairs had between E.J. Kreumpel and myself on October 10, 1936, in the back room of the Community Savings Bank in Edgewood, Iowa, and this particular accounting was the last one had. I identify defendant's Exhibit 4 to be a duplicate carbon copy of the accounting we had on October 10, 1936, signed by myself and E.J. Kreumpel and signatures thereon are the signatures of myself and E.J. Kreumpel."
Mr. Kreumpel being deceased at the time of the trial, the testimony of Mr. Gaughen was not subject to contradiction by the plaintiff.
[1] In Holmes v. Connable, 111 Iowa 298, 82 N.W. 780, 781, the rule applicable under such circumstances is stated in the following language on page 301:
"The lips of the only two witnesses who could deny it [the contract] are forever closed. The only person who could controvert the admissions alleged to have been made is the dead man against whose estate this claim is produced. There is no defense that can be made, save as it may be found in the improbability of the stories of the plaintiff's witnesses, when tested by comparison with other evidence in the case, or the ordinary rules of human conduct under similar circumstances. * * * `It is incumbent on the court to look upon such evidence with great jealousy, and to weigh it in the most scrupulous manner, to see what is the character and position of the witnesses *Page 224
generally, and whether they are corroborated to such an extent as to secure confidence that they are telling the truth.'"
See First Trust JSL Bk. v. McNeff, 220 Iowa 1225, 264 N.W. 105; Young v. McClannahan, 187 Iowa 1184, 175 N.W. 26; McDonald v. Yellow Taxicab Company, 192 Iowa 1183, 184 N.W. 291.
Mr. Kreumpel was one of the substantial, influential and prosperous farmers of his community. He was president of the Security Savings Bank of Greeley from 1916 until it closed in 1930. He was not the managing officer of the bank and it is apparent he was made president because of his high standing in the community and not because of his banking experience. After the closing of the bank his reputation was such that the defendant bank did not hesitate to extend to him extensive credit. The only evidence in the record tending to prove that he was a dishonest man is found in the testimony of Gaughen. When Kreumpel sold the mortgaged livestock and had the check made payable to the mortgagee, defendant bank, there was manifestly no intention on his part to defraud the creditor, the sale being made in full recognition of the rights of the bank. When he delivered the check at the bank to Gaughen his indebtedness to the bank was past due. Though Kreumpel brought the check to the bank for the sole purpose of having it applied on his notes, Gaughen claims that when he told Kreumpel he was in need of some money for his personal use Kreumpel stated that it was all right with him to use this sum of $1,896.20 which was one third of his total indebtedness to the bank. It does not appear that either of them had other funds with which to pay the overdue notes.
We do not attempt to interpret the statement of the cashier of the defendant bank that "if Mr. Kreumpel makes too much publicity about this, it would be too bad for him." The exhibits in the case are not certified to this court. With reference to the mutilated deposit slip, plaintiff's Exhibit 14, we quote from the decree:
"The plaintiff also proved that Kreumpel had in his possession *Page 225
during his lifetime plaintiff's Exhibit 14. This exhibit is a duplicate deposit slip, made as a carbon copy, and from examination and comparison it conclusively appears to be a carbon copy of plaintiff's Exhibit 8 which is the deposit slip whereby Gaughen deposited the check for $1,896.20 to his own personal account on September 12th, 1935. It is to be noted that Exhibit 14 is mutilated by the top portion thereof being torn off so that the name of M.J. Gaughen as the depositor does not appear thereon. How such came to be is not shown, but on the whole record it is somewhat suggestive that Gaughen might have wished to avoid Kreumpel's knowing just what particular account he was crediting with the money."
Gaughen delivered this slip of the defendant bank to Kreumpel showing the exact amount of the check and the exhibit may be construed as a receipt for the amount of money Kreumpel had delivered to the bank to apply on his indebtedness and tends to support plaintiff's contention that the delivery of the check was a bank transaction.
Gaughen testified that neither he nor Kreumpel told any officer of the defendant bank of any sales of partnership livestock mortgaged by defendant. The fact that the Community Savings Bank of Edgewood purchased from defendant the notes and chattel mortgages without discount suggests that there were not many sales made of mortgaged property.
Gaughen testified that on two occasions he personally made a deal with the Rath Packing Company for the sale of mortgaged partnership property and had the checks made payable to himself and deposited the proceeds in the partnership account. This witness does not testify to any transaction in which Kreumpel sold mortgaged property and had the checks made payable to himself. When Kreumpel sold the livestock to the Link Livestock Company he required the check to be made payable to the bank. Defendant's Exhibit 4, which Gaughen states is the last accounting between the partners, is not before us. There is no showing that this accounting included the check for $1,896.20. Gaughen claims he repaid $1,050, not to the *Page 226
bank which was entitled to the money, but to the partnership account. It should be recalled that Gaughen used this account for his personal funds.
We are in entire agreement with the conclusion of the trial court that "if there was no other evidence before the Court than as shown by the plaintiff in the making of his case on direct the Court might be entirely justified in finding that the check was in fact delivered to the bank and for the purpose claimed by the plaintiff that it be applied upon his notes," but we disagree with the court in its conclusion that the testimony of Gaughen, who was vitally interested in the question to be decided, balanced the scales in favor of the defendant bank.
[2] In Scow v. Savings Bank, 136 Iowa 1, 6, 111 N.W. 32, 34, the opinion states:
"If a bank cashier or a bank president who is engaged in the active charge and control of the bank's business receives at his usual place of business the money or credits of a customer either as a time deposit or for credit on open account, the bank becomes at once chargeable therewith, and the fact that the officer puts it down in his own pocket or converts it to his own use is no defense to an action by the depositor, if no collusion in the wrong appears on the part of the latter."
[3] We have read the record in the light of the rule that:
"`It is incumbent on the court to look upon such evidence with great jealousy, and to weigh it in the most scrupulous manner, to see what is the character and position of the witnesses generally, and whether they are corroborated to such an extent as to secure confidence that they are telling the truth.'" [111 Iowa, at page 301.]
In our judgment, plaintiff's theory of the transaction is the more probable and we are of the opinion that Kreumpel did not participate in the wrong perpetrated by Gaughen. There being no collusion between Kreumpel and Gaughen, the defendant must account to plaintiff for the misappropriation of the funds by its agent. *Page 227
[4] Appellant claims that M.J. Gaughen was an incompetent witness under section 11257, 1935 Code, known as the "dead man statute" and that the court erred in not sustaining his motion to suppress the deposition of the witness.
While Gaughen was interested in the question to be decided, which interest may be considered in passing on the weight and credibility to be given his testimony, he was not interested in a manner that would make him an incompetent witness under the above section. To render a witness incompetent, he must be interested in the sense "that he will either gain or lose by the direct legal operation and effect of the judgment, or [in the sense] that the record will be legal evidence for or against him, in some other action." Wormley v. Hamburg, 40 Iowa 22, 25. See Savings Bank v. Hanna, 124 Iowa 374, 100 N.W. 57; Reichart v. Downs, 226 Iowa 870, 285 N.W. 256.
Kreumpel, having delivered the check to Gaughen for the purpose of having it applied on his indebtedness, is entitled to an accounting though the indebtedness may have been a partnership indebtedness which is a question we do not determine. The trial court erred in finding that the delivery of the check was not a delivery to the defendant bank and in dismissing the petition. — Reversed and remanded.
HAMILTON, C.J., and MILLER, BLISS, and HALE, JJ., concur.
MITCHELL and OLIVER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433598/ | The collision complained of occurred on the morning of August 11, 1928, a little earlier than the noon hour. The place of the accident was at the intersection of the Illinois Central Railway Company with a north and south highway, which runs along the east line of the town of Knierim. The Illinois Central Railway runs westerly at this point, and skirts the southern edge of the town. The place of the accident was therefore near the southeast corner of the town. The plaintiff was an employee of the Illinois Central Railway Company, and the general scope of his duties was to perform the painting work *Page 883
upon the bridges. On the morning in question, he was acting under the supervision of his superior, Morphew, who was the superintendent of bridges. These two were proceeding together to the town of Richards, located upon this railway and lying some distance to the west of the town of Knierim. For the purpose of travel they were using a so-called "gas car". This was a very small vehicle propelled by a gasoline engine. It was 5 feet long, 3 feet high, and as wide as the rails. It weighed 350 pounds. It had neither siren nor horn nor whistle nor any method of warning in its approach to the crossing. As a control, it had a hand brake. These two parties started their trip at Fort Dodge and were proceeding westerly. Both of them were familiar with the railway and its intersections. At a point about 250 feet east from the intersection, the plaintiff observed two gravel trucks approaching the intersection from the north. The drivers of these two trucks proved to be Stover and Gibson. Stover was driving a Ford truck loaded with gravel, and Gibson was driving a larger truck loaded with gravel. Stover was travelling 25 or 30 miles an hour, and Gibson about 5 miles per hour faster. Before they arrived at the intersection, Gibson had passed Stover. This occurred at a point approximately 50 feet north of the intersection. When the plaintiff observed the approach of the trucks, he threw off his clutch and slowed down. He had been travelling 15 miles an hour. He slowed down to a coasting speed of 10 or 12 miles. A moment later he thought he could cross the crossing in advance of the approaching trucks, and he threw in his clutch and picked up speed. Gibson went over the crossing in front of him. Both occupants of the gas car jumped therefrom. The car proceeded, and struck the left hind wheel or fender of Gibson's truck. This had no effect upon the progress of Gibson. A bent fender was the only damage sustained by him. The contact, however, stopped the gas car on the crossing. A moment later a collision with Stover's truck resulted, which threw the gas car against the plaintiff, resulting in very severe injury.
The principal questions which inhere in the case and which are presented for our consideration are, briefly:
(1) Was either Stover or Gibson guilty of negligence as the proximate cause of the collision?
(2) Was the plaintiff himself guilty of negligence? *Page 884
(3) Was either Stover or Gibson the employee of Eno in such sense as to render Eno liable for his wrongful acts; or, on the other hand, was either of them an independent contractor, rather than an employee?
The emphasis of the argument is concentrated somewhat upon the last question, viz., Was Stover an independent contractor rather than an employee?
To this latter question we will give our first attention. The relation of Gibson to the event under consideration may be eliminated from the discussion. He sustained no contractual relation with Eno, unless it be a constructive one. He was primarily the employee of Connors. Connors was the owner of an equipment for hauling gravel, including a gravel truck. He bargained with Eno for the delivery of gravel from the pit to the place of distribution at an agreed price per yard per mile. Connors did not perform the service contracted for in person, but employed Gibson to do so, for a wage assumed and paid by Connors. Gibson had no personal contact, contractual or otherwise, with Eno. Whether Eno could be rendered liable upon any hypothesis for any act of negligence on the part of Gibson in driving the truck of Connors, we will not now consider. At this point we confine our discussion to the question whether Stover was an independent contractor, as distinguished from the mere employee of Eno.
The question raised is one which lends itself to endless debate and rather plausible argument on either side. Discussion of the question abounds in the books. Harmony is apparent in the statement of principles and in the platitudes and abstract phases of the subject. But in the application of the abstract to the concrete, and of the principles to the particular case in hand, there is much diversity and confusion of opinion in the precedents in different jurisdictions. In this state of the precedents, we can only hope to maintain, if we may, consistency in our own decisions.
As to these, the appellant relies mainly upon two cases: Root v. Shadbolt Middleton, 195 Iowa 1225, and Mallinger v. Webster City Oil Company, 211 Iowa 847. In each of said cases we sustained the contention that the person rendering the service was an employee, and not an independent contractor.
The general principles underlying the distinctions between an employee and an independent contractor are stated in the *Page 885
Mallinger case, and we can do no better at this point than to quote them:
"Before passing to the analysis of the written contract in question, it may be well to examine and analyze the usual legal tests that are adopted by courts in determining whether or not a person classifies as an independent contractor, under the facts and circumstances of a given case. The term has a fairly well-defined meaning under the decisions of many jurisdictions, including our own. An independent contractor, under the quite universal rule, may be defined as one who carries on an independent business, and contracts to do a piece of work according to his own methods, subject to the employer's control only as to results. The commonly recognized tests of such a relationship are, although not necessarily concurrent, or each in itself controlling: (1) The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants, with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer. If the workman is using the tools or equipment of the employer, it is understood and generally held that the one using them, especially if they are of substantial value, is a servant."
In the Root case, cited by appellant, the ultimate facts were in dispute and the evidence in conflict. The Workmen's Compensation Act was involved. The finding of facts by the Industrial Commissioner supported the contention that the deceased was an employee. Such finding was binding both upon the trial court and upon us. If it had not been binding upon us, we should have been inclined to the same finding. In that case a few farmers were employed by the agent of the contractor to haul gravel. For that purpose the farmer hitched his team to the equipment of the contractor. The burden of discussion in that case is upon the decisive questions of fact. Counsel for appellant quote copiously therefrom, but inadvertently the *Page 886
quotation is limited to the language of the Industrial Commissioner, which is incorporated in the opinion itself.
The Mallinger case also involved the Workmen's Compensation Act. The decedent had been employed by the Webster City Oil Company to sell its product at prices fixed by it and to deliver to purchasers such product thus sold, by the use of the equipment and instrumentalities of the Oil Company. The decedent furnished substantially nothing to the enterprise except his personal service. The case was a border-line case, and the decision was by a divided court. That the contract of an employee is one ofservice, whereas the contract of an independent contractor is onefor service, is the terse differentiation stated in that case. With these pronouncements before us, we turn to the contract of Stover.
This contract was entered into at a time of great activity in highway improvement in this state. One of those improvements consisted of distributing suitable gravel upon the surface of the highway. With the view of getting into the enterprise of hauling gravel, Stover procured for himself complete instrumentalities for that purpose. These comprised a motor truck, equipped with a box or body suitable for carrying an adequate load and for loading and unloading the same. In further aid of his enterprise he built, or procured, a small house, and mounted it upon wheels, whereby he could move it conveniently from one place of work to another. Wherever his job, this little house was occupied by him and his wife as a home. There they lived, boarded, and slept. Eno was a contractor, and was a successful bidder at a letting of a certain project for gravelling a certain highway. He had no equipment of his own for hauling gravel. Instead of procuring any, he set a price per yard per mile, which he would pay to such as chose to accept it. This was the business for which Stover had equipped himself; and likewise many others. The contract between Stover and Eno was oral and very brief. It consisted in an agreement on the price. All else was left to implication and general understanding. Stover maintained his own equipment and carried all the risks thereof. Eno was not chargeable with a dollar of expense for damage or repair. Stover paid for all the motor fuel and oils used by him, whether much or little. None of it was chargeable to Eno. It is urged that, notwithstanding all this, Eno still retained and exercised *Page 887
a right of control over the service of Stover. This contention is predicated upon the method of the work. There were other haulers besides Stover. The gravel was obtained from a pit owned by Calhoun County. It was a part of the undertaking of Eno that he would load the trucks. He had men and equipment at the pit, whereby the gravel was first gathered into an elevated hopper. The gravel haulers drove their trucks underneath the hopper and received their load and passed on. There was but one hopper at the pit, and therefore only one truck at a time was loaded. This meant that each hauler brought his truck under the hopper in his turn or rotation. The filling of the truck was a momentary task, and the trucks passed under the hopper in procession. In order to get its load, each truck took its place in the procession.
At the place of unloading the gravel, Calhoun County maintained an inspector, who checked every load and kept an account thereof and directed the place of each unloading. This man is known in the record as a "checker". He quit the work at a designated hour every afternoon, and thereby ended the hauling for that day. It was in this sense only that any control was retained or exercised by Eno over the gravel haulers. There was a natural limitation upon the number of loads which Stover could possibly deliver in a day. But he was bound to no number, either great or small. He could haul one load, or several, or none, any day. Eno had no other interest in his work or in his time than to know his yardage and his mileage. We may note at this point that in the Mallinger case, the contract created a fiduciary relation of agency. The employee was under duty, not only to sell the product, but to collect the proceeds of the sale and to account for the same to his principal. He was also in possession of his principal's equipment, for which he was likewise under duty to account and under duty to care and to preserve.
In the case before us it was immaterial to Eno whether the yardage and mileage stipulated for was accomplished by Stover himself, or by some employee of Stover's. This point is illustrated by the contract between Eno and Connors. It was identical with that between Eno and Stover. But Connors did not personally perform it. He employed Gibson. This was acquiesced in as being in accord with the mutual understanding of the *Page 888
parties. Under this interpretation the contract was one forservice and not one of service.
What is here said, is sufficient to differentiate the case before us from the cases of Root and Mallinger, relied on by appellant. Stover had selected a line of business for the time being, and had equipped himself therefor. He devoted a capital investment thereto and carried the risk incident to the business. In holding that the case is not ruled by the cited cases, we necessarily hold that it is ruled by others of our decisions, which are cited and discussed in the briefs. The question was before us in the recent case of In re Estate of Amond, 203 Iowa 306. In our opinion in that case many authorities are reviewed. No useful purpose could be served by a repetition of the discussion. That case involved the question whether a teamster using his own horses and wagon and delivering coal for a dealer at an agreed price of $.80 per ton was an employee or an independent contractor. We held the latter.
A like question was involved in Norton v. Day Coal Co.,192 Iowa 160. We held that the alleged employee was an independent contractor.
In Pace v. Appanoose County, 184 Iowa 498, the alleged employee was under contract with the defendant county to furnish an engine and himself as operator thereof, in order to draw a grader owned by the county. Compensation at $14.00 a day was agreed on. The personal service was performed in part by the decedent and in part by his employee. We held that he was an independent contractor. We think these cited cases and the discussions therein are quite decisive of the case at bar as to those features of the contract which have been set forth above.
See also Arthur v. Marble Rock, 209 Iowa 280.
II. It remains to consider one other contention urged by the appellant. The contract of Eno with Calhoun County contained the following provisions:
"(1) It is understood that the Contractor for all or any part will furnish all labor, material, equipment, tools, transportation, and necessary supplies, such as may reasonably be required to execute the contract in a satisfactory and workmanlike manner and in accordance with the plans, specifications and terms of the contract."
"(2) The Contractor shall at all times so conduct the work *Page 889
as not to conflict with any such laws, ordinances or regulations, and shall save the county and its representatives harmless against any claim arising from violation thereof. The Contractor shall carry liability insurance to protect the public from injuries sustained by reason of the carrying on of the work."
Eno did not in fact carry liability insurance. The appellant is not predicating liability upon breach of his contract in that regard. He urges the point as in the nature of an admission on the part of Eno that all persons who were aiding him in performance of his contract were employees, and not contractors. Giving full weight to the implication contended for, it can go no further than to imply that Eno had employees in the performance of his contract. Undisputably he did have many employees. These in the main consisted of his men at the pit, who were working for wages by the day. They were engaged in stripping the surface soil, to lay bare the sand content. They were likewise engaged in operating a crane for the filling of the hopper, and a screen for the purpose of cleaning the gravel. These instrumentalities were the property of Eno. They were operated by employees, to whom he paid stipulated wages. Giving the appellant, therefore, the benefit of whatever admission might be fairly implied by a contract covering liability for the acts of employees, yet it can be deemed to admit no more than that the contractor hademployees. Moreover, if Eno had given a bond for the performance of the requirements thus made upon him, such bond could be enforced only within its statutory scope. Its penalty could not be absorbed by an action for damages for personal injuries. We so held in Schisel v. Marvill, 198 Iowa 725, and U.S.F. G. Co. v. Iowa Telephone Company, 174 Iowa 476.
It is our conclusion that Stover was an independent contractor. Eno was, therefore, not liable for his negligence, if any. If Stover was an independent contractor, Connors was necessarily such. Eno could not, therefore, be charged with his negligence. Gibson was the employee of Connors, not of Eno. Appellant has not pressed the alleged liability of Eno for the negligence of Gibson, and we need not discuss it.
In view of our conclusion at this point, we need not consider the question of contributory negligence. The court properly *Page 890
directed a verdict on the ground here discussed. Its judgment is accordingly — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433600/ | The defendant Roth Brothers Akers is a copartnership, which is engaged in the business of a general contractor for public improvements. In its petition, the plaintiff asks for judgment for the balance claimed to be due upon an account for reinforcement steel alleged to have been sold and delivered by the appellant to the appellee. The defendant copartnership filed a counterclaim for damages. Among other things, it is alleged in said counterclaim that, by reason of plaintiff's failure to furnish proper steel, there was considerable delay in the prosecution of said work; that a part of said work was subcontracted by the defendants to Frank Zimmerly Son, and that the Zimmerly firm brought suit for damages against the defendants, based on the fact that the plaintiff, in the first instance, shipped defective steel, and claiming therein that the delay in returning said steel and getting proper steel caused damage to said firm; that, by reason thereof, the defendants have been put to large expense in hiring attorneys, in the amount of $150, and for trips to Paris, Illinois, to defend said suit, at the expense of $125, making a total of $275 which defendants have been compelled to pay on account of plaintiff's failure and neglect, for which amount they demand judgment. In a subsequent amendment to the counterclaim, the defendants allege that there is a mistake in the original counterclaim relative to its claim for damages by reason of the Zimmerly litigation, and in said amendment they allege that said suit was settled out of court, at an expense to the defendants of about $275, but that not all of said *Page 1181
damages were occasioned by the failure of plaintiff to furnish proper steel; that, as nearly as they can estimate the proportion taxable to the failure to furnish proper steel, the same would be about one half; and that, on this count of said counterclaim, defendants demand judgment against plaintiff in the sum of $137.50.
There is no evidence of the amount expended by the defendants by reason of the Zimmerly litigation. The defendants sought to prove the amount paid for attorney fees in said case, but objection to the question propounded was promptly sustained.
The appellant complains that the court included within the issues submitted to the jury for its determination the claim of the defendants for $275, the amount claimed to have been expended for attorney fees and expenses. This claim of the appellant's is not substantiated by a reading of the instructions. In the instructions, the court, in his preliminary statement of the issues, quoted from the counterclaim, as amended, all of the claims made by the defendants for which they ask judgment. In a subsequent instruction, the court told the jury that, as to the item claimed of defendants in their counterclaim for damages occasioned by settlement of the claim of Frank Zimmerly against defendants for alleged delay by plaintiff to ship or deliver steel, "you are instructed that this item is withdrawn from your consideration, and you will not allow defendants anything by reason of such claim." The court also withdrew from the consideration of the jury other claims of the defendants'. The court, after the withdrawal instructions as aforesaid, instructed the jury that, in order to recover on the items of the counterclaim "submitted to you," defendants must establish the same by a preponderance of the evidence. The court further instructed the jury that the damages, if any, recoverable by the defendants on their counterclaim would be such as were the natural and probable result of a breach of the contract, or such as were fairly and reasonably within the contemplation of the parties at the time of making such contract, "as hereinafterexplained." The court then fully instructed as to the matters in the counterclaim for which recovery could be made, depending upon the findings of the jury from the evidence. The jury is presumed to have followed the instructions of the court. It is true that it would have been better had the court, in his preliminary statement, omitted the *Page 1182
claims made by the defendants relative to the Zimmerly litigation; but it is a familiar rule that instructions must be considered as a connected whole, and if, when so considered, it can be said that the jury were not misled, there will not be a reversal. Elmore v. Des Moines City R. Co., 207 Iowa 862. Owing to the withdrawal and the other instructions herein mentioned, and considering, as we must, all of the instructions as a connected whole, we are unable to find prejudicial error. SeeLivingston v. Stevens, 122 Iowa 62; Elmore v. Des Moines City R.Co., 207 Iowa 862; Miller Kizer v. Des Moines City R. Co.,196 Iowa 1033; Wilson v. Else, 204 Iowa 857.
The appellant also complains of other matters, which, by reason of the provisions of Rule No. 30 of this court and our pronouncements thereon, are not properly presented to this court for review. However, we have carefully read the entire record, and find no prejudicial error. The judgment of the trial court is hereby affirmed. — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433601/ | I. The affirmative defenses pleaded were:
(1) That, under the contract of sale, pursuant to which the shipment was made, the purchasers had the right to make trial of the engine; that, pursuant to such contract, they took immediate possession of the engine, for the purpose only of making such trial; that, immediately after making such trial, they returned the engine to the place from which they took it; and that the same has been at all times in the possession of the defendant, and subject to the demand of the plaintiff.
(2) That the taking of the temporary possession of said engine for the purpose of trial was done and directed by the plaintiff's own agent, one Hollinberger.
(3) That the inspection and trial conducted by the purchasers were acquiesced in and ratified, at the time thereof, by the plaintiff.
The court instructed the jury, in substance, that the defendant was liable for a conversion unless the defendant had proved the first affirmative defense herein set out. The defendant complains of the failure of the court to submit to the jury its other pleaded defenses. It complains also that the verdict was contrary to the evidence, and that a verdict should have been directed in its own behalf. Certain rulings upon offers of testimony are also challenged.
The law of liability of a common carrier, so far as it is involved upon this record, is well settled. For the purpose of the discussion, we shall assume that the bill of 1. CARRIERS: lading made a prima-facie case for the carriage of plaintiff. If there is a defect in plaintiff's goods: case in that respect, it is that it never non- presented its bill of lading, and never made any conversion demand upon the railroad company for its by consignment. Nor does it affirmatively appear permitting that the defendant company had disabled itself trial. from immediate compliance with the demand, if one had been made. That possible infirmity in plaintiff's prima-facie case we ignore.
The bill of lading carries the legal title to the consignment. Delivery of the consignment to a nonholder of the bill of lading is made at the peril of the carrier. In such event the burden is cast upon the carrier to show that the delivery was made to a person authorized to receive it, notwithstanding the absence of *Page 298
the bill of lading. The method adopted by the plaintiff amounted, in legal effect, to a consignment C.O.D. Such consignment does not necessarily forbid an inspection and trial. If the consignee or person from whom collection of the price was to be made, was entitled to an inspection and trial before acceptance, the carrier may permit such inspection and trial, without being chargeable with conversion. And this is so, even though it permit the temporary use and possession of the consignment, for the purpose only of such trial. Such permission is not, of itself, deemed a delivery or a misdelivery.
If, in this case, the purchasers were in fact, under their contract, entitled to a trial inspection of this engine, such fact is available to the defendant, as a complete defense against the charge of conversion. Clark v. American Exp. Co., 130 Iowa 254; Famous Mfg. Co. v. Chicago N.W.R. Co., 166 Iowa 361; FirstNat. Bank of Wadena v. Farmers Bank of Traer, 195 Iowa 1260. This is not a case where the shipment was lost, or where any actual damage resulted thereto, as a result of the inspection. The trial court instructed the jury that, if the purchasers, under their agreement, had a right to make the inspection by trying the engine, then the plaintiff could not recover. The verdict for the plaintiff, therefore, was necessarily a finding that they had no such right. The three affirmative defenses above stated are so blended and so related in the record that it is quite impossible to give a fair consideration to any one of them if the others be ignored. The first question confronting us is whether the verdict is contrary to the evidence on the question of right of inspection. We have read the evidence verbatim, and cannot avoid the conclusion that the verdict is contrary thereto, and purely arbitrary. Upon the controlling feature of the case, the evidence is without material dispute.
II. The antecedent negotiations were had in Des Moines, with the general manager of the plaintiff. He was the chief witness for the plaintiff on the trial, and testified with commendable candor. The one point of dispute between him and the chief witness for the defendant is not controlling, because of other undisputed features of the record.
For the defendant, it appears in evidence that, for some *Page 299
years, a group of a half dozen farmers in Dallas County had owned and used jointly, a threshing machine separator. They owned no engine. They had uniformly employed Hollinberger, the owner of an engine, to operate for them their separator during the threshing season. At the beginning of the threshing season of 1922, Hollinberger's engine failed, and it became necessary to procure another engine. They deemed it expedient to buy, if possible, a suitable secondhand engine. They commissioned Hollinberger, who was an experienced engineer, to go to Des Moines, and see what could be obtained. Hollinberger entered into negotiations with the plaintiff at Des Moines for the engine which was afterwards shipped. These negotiations extended over a period of two, perhaps three, days. Some members of the purchasing group were present in Des Moines with Hollinberger, and saw the engine and participated to some slight extent in the negotiations. The price made by the plaintiff was then $1,300. An offer of $1,000 was made, which was not accepted. The final negotiations and agreement, pursuant to which the shipment was made, were had between the general manager of the plaintiff and Hollinberger alone. The former testified that there was no agreement for the privilege of inspection or trial. The latter testified that there was such an agreement. The purchasing group had no personal knowledge of the agreement, except as it was communicated to them by Hollinberger.
The fatal infirmity in the plaintiff's case appears in certain 2. PRINCIPAL candid testimony on the part of the general AND AGENT: manager. This was that he commissioned the Hollinberger to "put the deal through" and to relation: make the sale, and agreed to pay him a corrupting commission of $100 therefor. He testified: agent for other party.
"* * * The closing of the deal was made with Hollinberger, and was not made with the other men at all. The other men were not present when the deal was closed. I agreed to give Mr. Hollinberger a commission if the deal went through. I don't remember definitely whether it was $75 or $100, but I agreed to give him some commission if he put the deal through. I closed the deal with Hollinberger, and not with the farmers. I don't know what deal he made with the farmers; *Page 300 but he made the deal with the farmers, and I agreed to pay him a commission if he finally made a sale."
Disregarding the sinister aspect of such agreed commission and its invasion of the hearthstone of the purchasing group, it created a situation and a relation which should not have been ignored upon the trial below. By such arrangement the plaintiff made Hollinberger its own agent for the purpose of making the sale, and became bound by his subsequent conduct and representation, within the scope of such agency. It could not take the benefit of such an agency and escape the burden of responsibility therefor. By such arrangement, also, it destroyed Hollinberger's agency for the purchasing group, so far as its own right to rely on such agency was concerned. The members of the group knew nothing about the changed relation of Hollinberger to the subject-matter of the negotiations. Plaintiff could not thereafter bind the purchasing group by mere negotiations between its general manager and Hollinberger.
The foregoing is the final agreement, pursuant to which shipment was made. The purchasers were under the pressure of great hurry to get into their fields. The shipment was made at once on Friday, August 3d, and reached its destination, 25 or 30 miles distant, the same day. Hollinberger and one of the purchasing group boarded the flat car upon which the engine was shipped, and fired it en route, in order that it might be ready for unloading under its own power, immediately upon arrival. The other members of the purchasing group were at the station waiting for it, and ready to assist in the unloading. None of them knew that the bill of lading had been sent to the Adel Bank, some miles distant. The car was spotted about 12 rods from the station. The engine was unloaded therefrom and taken to the field where the separator was stationed. On Saturday, a trial was had, which proved very unsatisfactory. On Sunday, Hollinberger and two or three of the purchasing group hastened to Des Moines, with their complaint of trouble. In response thereto, Diebel, the Des Moines salesman, who had steamed and exhibited the engine at Des Moines, and who had loaded and billed the same, came to the assistance of the purchasers. One of the defects was a broken clutch. Diebel testified *Page 301
that this break had occurred in Des Moines, before shipment. Other defects were in the smokestack and in the flues. Diebel returned to Des Moines on Monday night, promising to return on the following day with the proper repairs. He came on the following day, bringing with him repairs for the clutch, and a smokestack. The repairs were placed upon the clutch. Whether the smokestack was installed, does not appear. At the time of his making such repairs, Diebel knew that the bill of lading was outstanding and uncollected. Likewise, the general manager knew the same thing. The members of the purchasing group acted in good faith, believing that they had a right to make such trial. Diebel and the general manager necessarily knew at the time that they did so believe. There is no room, upon the record, to doubt that Hollinberger believed the same thing. Diebel returned to Des Moines on Tuesday evening. On Wednesday morning, the engine was returned to the railroad station by Hollinberger and the purchasing group, and was rejected as not satisfactory. It has at all times remained in the possession of the railway company, subject to the demand of the plaintiff.
Such are the undisputed facts appearing in this record. One feature of the case which was ignored in the court below was the conversion by plaintiff to its own use of the agent of the purchasing group. The creation of this agency by plaintiff carries a double aspect:
(1) Because thereof, the right of the purchasing group to make inspection must be determined by their conversation with Hollinberger after he became agent for the plaintiff, and not from the conversation of Hollinberger with the general manager.
(2) Hollinberger was the directing hand and mind that took the engine from the station to the field, for the purpose of trial. In so doing, he was acting within the scope of the agency conferred upon him to "put the deal through" and to "make the sale." His act in so doing was, of legal necessity, the act of the plaintiff itself.
III. Furthermore, the subsequent conduct of all parties was wholly inconsistent with the theory that there was to be no right of inspection by trial, but was acquiescent and ratifying *Page 302
3. CARRIERS: in its nature. The Des Moines agency knew that carriage of the right was being exercised, and acquiesced in goods: it. It knew that the engine had been taken for acquiescence such purpose, and it participated in the trial of consignor of it. The very sending of the bill of lading to in Adel, several miles distant, was inconsistent inspection with such theory. Concededly, the engine was and trial shipped hurriedly, in order to meet the effect. necessities of the purchasing group, who needed the engine for immediate use. If it was really to be paid for in advance of any trial thereof, there was no apparent reason why it should not have been paid for in Des Moines, before shipment. The purchasers were there, and accessible. To send the bill of lading to Adel for collection could only work delay and inconvenience, if payment was expected before delivery by the railway company at the station at Kennedy. The very method adopted indicated a purpose to delay collection until a fair trial could be had. As between the plaintiff and the defendant carrier, it was the duty of the plaintiff to receive the shipment at the destination point with reasonable promptness. It was likewise its duty to unload the freight and to release the defendant's car with like promptness. Failing to do so, it would become subject to penalties in the form of demurrage. The relation of the defendant to the shipment would change from that of carrier to that of bailee. But the plaintiff made no other provision for the receipt of the freight or the unloading thereof except that which was carried out by Hollinberger. When the engine came to the destination point, Hollinberger was already in possession of it, aboard the flat car. While it was being put upon trial by Hollinberger and the purchasing group, the Des Moines agency participated in the trial for the last two days thereof. During all this time, the bill of lading lay dormant at Adel. The negotiability of the bill of lading is not involved. If the bill had been issued or negotiated to a third party, a different question would be presented. But a bill of lading issued to a consignor and held by him is subject to meritorious defense against him, like any other contract. Suppose that the depot agent of the defendant company had gone to the threshing field on Monday or Tuesday, to enforce his constructive possession and to terminate the temporary use of the engine for trial, and had found there both *Page 303
the seller and the purchaser, jointly engaged in the trial, would he not have been justified in allowing the trial to proceed? Was his justification any less because he failed to go to the threshing field to observe personally what was going on? The very fact that the plaintiff knew what had been done and what was going on, and yet withheld the presentation of the bill of lading until after the completion of the trial of the engine, was a circumstance of much significance. These facts also have a double aspect:
(1) They bear on the question whether the circumstances appearing in evidence, as distinguished from direct evidence, tend to the support of the verdict or to the contrary.
(2) They bear upon the question of ratification, in that they disclose the acquiescence of the plaintiff, through its Des Moines agency, in the acts of the purchasing group, and a ratification of the acts of Hollinberger in directing such trial, and of the defendant carrier in permitting it. This issue of ratification was not submitted to the jury in the trial below, nor otherwise considered by the court.
We recognize that the defendant's pleading in that regard was not very meritorious. Nevertheless, it did plead ratification in specific terms, and the pleading was in no manner assailed.
Upon a consideration of the record as a whole, we think it is quite conclusive against the plaintiff, and that the defendant's motion, at the close of all the evidence, to direct a verdict, ought to have been sustained. The judgment below is, accordingly, reversed. — Reversed and remanded.
FAVILLE, C.J., and STEVENS, De GRAFF, and VERMILION, JJ., concur. *Page 304 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433602/ | On the evening of June 27, 1931, at about the hour of 7 o'clock, and while it was still light, the appellee was driving east on Eighth avenue in the city of Marion, Linn county, Iowa, and the appellant was driving south on Eighteenth street. Both appellant and appellee were driving old Model T Fords. Eighth avenue runs east and west, and is a paved thoroughfare 30 feet in width from curb to curb. Eighteenth street runs north and south, intersecting Eighth avenue, and is 20 feet in width from curb to curb. Ninth avenue is to the north of Eighth avenue, and Seventh avenue is to the south of Eighth avenue. Seventeenth street is west of Eighteenth street, entering Eighth avenue from the south and ending at Eighth avenue. The distance from the east curb line of Seventeenth street to the west curb line of Eighteenth street is 144.6 feet, forming a short block. The distance from the south line of Ninth avenue to the north line of Eighth avenue is approximately 290 feet. On the south side of Eighth avenue, between Seventeenth street and Eighteenth street, there are two houses. The house situated at what would be the southwest corner of the intersection of Eighteenth street and Eighth avenue is known in the record as the Bowen house. The house situated at what would be the southeast corner of the intersection of Seventeenth street and Eighth avenue is known in *Page 1313
the record as the Hibner house. From Seventeenth street to Eighteenth street on Eighth avenue there is no house on the north side that interferes with the view to the north as one proceeds from Seventeenth street to Eighteenth street, and a view can be obtained to the north without any obstruction from Seventeenth street to Eighteenth street as far as Ninth avenue. On the southeast corner of the intersection of Eighteenth street and Eighth avenue is located the Price home. On the northeast corner of the intersection in question is located the residence of Dr. Skinner. The first house on the west side of Eighteenth street north of Eighth avenue is that of De Witt Smith; this house being approximately 180 feet north of the intersection.
The appellee, a married woman 41 years of age, purchased the automobile she was driving at the time of the accident about two months prior thereto. On the day of the accident, she entered Eighth avenue some four or five blocks west of Seventeenth street, at which time she was driving at a little less than twenty miles an hour according to her speedometer. After she passed the intersection at Seventeenth street, she again looked at the speedometer, and her car, according to the speedometer, was traveling at the rate of twenty miles per hour. After looking at the speedometer after passing Seventeenth street, and observing the reading thereof, the appellee looked to the north, and testified that there was no car on Eighteenth street between Eighth and Ninth avenues at that time. She continued at the identical speed of twenty miles per hour from the time she looked at her speedometer after passing Seventeenth street until the happening of the accident in question. After she looked to the north, she looked straight ahead until she came to the Bowen house, near the southwest corner of the intersection of Eighth avenue and Eighteenth street, and when she was first able to see to her right south on Eighteenth street. She looked to the right on down Eighteenth street, to the south, just as soon as it was possible for her to see in that direction. She continued to look to her right until she entered the intersection. She was some place in the first half of the intersection when she again looked to the north. At that time the Hyde car was entering Eighth avenue from the north on Eighteenth street. The car driven by the appellant was proceeding south on Eighteenth street. According to the appellant's testimony, he was proceeding at the rate of fifteen miles per hour. The cars came together with the right front fender and the right front *Page 1314
wheel of appellant's car coming in contact with the left running board and door of appellee's car. Appellant's car, after the accident, came to a stop with the front wheels on a line with the east curb line of Eighteenth street and with the right wheels of his automobile as it was headed east, perhaps a foot or a foot and a half south of the center of Eighth avenue. Both of the right wheels of appellee's car came in contact with the south curb, breaking them off, and the car tipped over, causing the injuries to the appellee. The appellee received a gash on the left wrist about five inches long. It extended from the wrist up into the center of the back of the hand. The flesh was torn so that the ligaments to the thumb and the bone of the wrist could be seen.
The cause was submitted to the jury, and the jury returned a verdict for the appellee in the amount of $2,773.45.
[1] The appellant cites a large number of errors as grounds for a reversal, but relies principally upon the errors which will be taken up in this opinion. The appellant argues with a great deal of force that the court erred in overruling the motion of the appellant to discharge the jury and declare a mistrial on account of the voluntary statement of the appellee while on the witness stand. The appellee, while a witness in her own behalf, was asked whether or not she heard a conversation at her home the morning after the accident, between her husband and the appellant, Mr. Hyde, and the appellee testified that she heard Mr. Hyde ask her husband how she was, and he wanted to know if there was anything that he could do. She was then asked the question, "Who said that?" and she answered: "Mr. Hyde. I know I am to blame. I will do anything I can. Let me know what the company does. If it is no good, I don't want it." The appellant, immediately following said statement, made a motion to strike the answer, and also a motion to discharge the jury and declare a mistrial, for the reason that "it is a clear attempt on the part of the plaintiff (appellee) to convey to the jury the information that the defendant (appellant) is protected by insurance; * * * that such an attempt to inject any such information into this record is improper and is calculated to inflame and prejudice the jury against the defendant (appellant)." The court immediately struck that part of the testimony from the record and overruled the motion to dismiss the jury and declare a mistrial. The court later, in its instructions, admonished the jury *Page 1315
to "disregard such testimony and not discuss or consider it, nor allow it to influence you in arriving at your verdict."
This court, in the case of Stilson v. Ellis, reported in208 Iowa 1157, on page 1169, 225 N.W. 346, 352, says:
"A new trial is demanded because there were injected into the record, appellants assert, references to the fact that they were carrying liability insurance. We have read the evidence in this regard with great care, and are convinced that whatever may have been said in reference to this subject was not such as to demand a reversal of the judgment below. Witnesses brought this matter before the jury by relating conversations that took place in the Ellis home immediately after the accident. Mrs. Ellis herself made statements regarding this insurance. Assuming that what was said by the Ellises at that time was admissible as an admission against interest (as the record seems to show), it cannot be complained because a part thereof referred to the liability insurance. Admissions against interest are such even though they may embody information concerning insurance carried by the declarant. This conversation aforesaid was innocently related by the witnesses upon the stand, apparently without any thought of injecting prejudicial subjects into the record. The trial court, by special instruction, told the jury the following:
"`Any evidence introduced concerning insurance is withdrawn from your consideration, and you are directed to disregard such testimony and not to discuss the same nor allow it to influence your verdict.'"
In the case at bar the statement was admissible as an admission of liability and an admission of negligence. An admission of liability is admissible, even though it may contain information concerning insurance, and in the case at bar the witness did not use the word "insurance", but the word "company". The appellant was employed by a grocery store, and certainly the use of the word "company" does not imply an insurance company under the evidence in this case. The statement was made by the witness in good faith. The appellee had a right to prove any fact which tended to indicate or prove an admission of liability by the appellant, even though the making of the proof may incidentally disclose that the appellant is protected by insurance. The matter complained of was immediately stricken by the court. It was never mentioned throughout *Page 1316
the trial or the argument. The incidental reception of such evidence is not error, especially if stricken, and the jury directed to disregard it, as it was in this case. There is no claim made here in the brief submitted by the appellant — and the brief is an exceedingly long one — that the verdict was excessive. Every other error which it was possible to conceive of was argued by the appellant, but the appellant does not argue that the verdict was excessive.
The appellant cites certain alleged errors relating to the introduction of evidence. The main objections were that the questions were leading and calling for conclusions. An examination of the record will show no error. Much is left to the discretion of the trial court in the introduction of evidence, and, unless prejudice appears, there will be no reversal on account of leading questions or on account of conclusions. There was no persistent effort on the part of counsel to lead any witness.
[2] The appellant argues that the court erred in not sustaining the motion of the appellant for a directed verdict on the ground that the appellee was guilty of contributory negligence as a matter of law. The record shows that the appellee had the right of way; that after she passed Seventeenth street she looked first at her speedometer and then to the north. There is no dispute in the record but that she was able to see a distance of 290 feet to the north, which was the distance from Eighth avenue to Ninth avenue, and the appellee testified that at that time, after she had passed Seventeenth street and was within 144 feet of Eighteenth street, she looked to the north, and the Hyde car was not in sight, in other words, was not within 290 feet of Eighth avenue. She was traveling at the rate of approximately twenty miles per hour. It was her duty to look to the south as well as to the north. She could not see to the south until she passed what is known as the Bowen house, which was the house located on the southwest corner of the intersection where the accident happened. When she passed the Bowen house, she testified that she looked to the south, and, as she was some place in the first half of the intersection, she looked again to the north. The Hyde car, according to her testimony, was just entering Eighth avenue from the north at that time. The appellant testified that he was driving approximately fifteen miles per hour; that as he approached the intersection and when he was about in the middle of the block between Eighth and Ninth avenues he looked to the right and observed no car approaching from his right. He then looked *Page 1317
to the left, and his attention was then drawn to certain children who were playing on the east side of Eighteenth street. According to the appellant's testimony, his wheels were about three feet in the intersection when he first saw the car driven by appellee. It appeared to be in the center of Eighth avenue and had not yet entered the intersection. The cars came together with the right front fender and the right front wheel of appellant's car coming in contact with the left running board and door of appellee's car. Appellant's car, after the accident, came to a stop with the front wheels on a line with the east curb line of Eighteenth street and the right wheels of his automobile as it was headed east, perhaps a foot or a foot and a half south of the center of Eighth avenue. Both of the right wheels of appellee's car came in contact with the south curb, breaking them off, and tipping the car over, and causing the injuries complained of by the appellee.
It seems to us that the case at bar comes clearly within the rule announced in Roe v. Kurtz, reported in 203 Iowa 906,210 N.W. 550, in which this court said:
"It is conceded that the driver of appellant's car had the right of way, under the provisions of section 5035, Code 1924, which is as follows:
"`Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way provided, however, that such vehicles coming from alleys and private drives, where view is obstructed, shall stop immediately before entering a public street or highway.'
"Under this statute it was his duty to look to the right to determine whether another vehicle was approaching the intersection from that direction, to which he was bound to yield the right of way. The question therefore is: Did his failure to look to the left, under the circumstances of this case, as a matter of law, amount to contributory negligence on his part? Recognizing the danger to life and property incident to the operation of motor vehicles at street intersections, the Legislature undertook, by the enactment of the foregoing statute, to minimize, and, so far as possible, to prevent, accidents at such places. The statute does not impose the duty on the driver of a motor vehicle who is approaching a street intersection *Page 1318
on the left side to stop and wait for one having the right of way who has not yet reached the intersection, until the vehicle driven by him has passed; but there can be no question but that it is the duty of the driver on the left, who is approaching an intersection simultaneously with the driver of another vehicle on the right, to yield the right of way. In determining whether he was negligent or not, regard will not be had to fractions of seconds. It must have been manifest to appellee, if he saw appellant's truck, that he could not proceed across the intersection without colliding therewith. In such situation it was clearly his duty to yield the right of way. The driver of appellant's car had the right to presume that the driver of a motor vehicle approaching the intersection from the left would observe the statute and yield the right of way to him. Mitchell did not know of the approach of appellee until the instant immediately preceding the accident. He had no time then to do anything to prevent it."
In the case at bar the appellee looked to the north. She could see a distance of 290 feet. At the time she looked she could not have been over 144 feet from the intersection. It was her duty to look to the south. She proceeded at the same rate of speed until her view to the south was unobstructed, which was but a short distance from the intersection. She then looked to the south and proceeded into the intersection. When she had entered the intersection for the first time she saw the car driven by appellant coming from the north. Appellee was traveling about twenty miles per hour. She would travel the distance from the point where she looked to the north to the point of the collision in not to exceed three or four seconds. She was in duty bound to look to the south before entering into the intersection, and she had the right to assume that Mr. Hyde would operate his car under control and yield the right of way. The undisputed record shows that she could not see to the south until she was almost to the intersection. She did look to the south. Ascertaining that there was no one coming from the south, she proceeded into the intersection and then glanced to the north and saw the Hyde car upon her. According to the appellant's theory, the appellee should have kept her head revolving continuously. Certainly, under such circumstances as set out in this case, it cannot be held that she was negligent as a matter of law, proximately contributing to such collision, and the trial court was correct in its refusal to direct a verdict. *Page 1319
The appellant complains of certain instructions given by the court. After a careful reading of the instructions, and taking them as a whole, we are convinced that these instructions are a correct statement of the law.
[3] The appellant complains of certain misconduct on the part of certain of the jurors. It appears from the record that two of the jurors passed by the intersection where the accident occurred during the trial. On the hearing on the motion for a new trial, they gave testimony. The witness Barger testified that his trip to Marion was secondary as pertaining to the case.
"It had no bearing on my independent consideration of the evidence as introduced. In considering the evidence in this case under the court's instructions, I was guided solely by the evidence made up in the record."
The other juror, Rose McCarthy, testified that in arriving at her verdict she based it solely on the testimony which had been introduced upon the trial of this case.
In the case at bar also there was no dispute respecting the location of the buildings, the distances, the width of the avenue and street, and no dispute respecting obstructions to the view looking from Eighth avenue north on to Eighteenth street to Ninth avenue, or from Eighteenth street on to Eighth avenue. Both the appellant and the appellee testified in regard to this. Taking into consideration the fact that there was no dispute in the record pertaining to any facts or information that either of these two jurors might have acquired in respect to that location, certainly there was no prejudice. Each testified that his verdict was based solely on the evidence introduced at the trial. The case at bar is to be distinguished from Skinner v. Cron, 206 Iowa 338,220 N.W. 341, which is cited by the appellant, for in that case there was a dispute concerning the controlling evidence. The liability turned on certain facts testified to by certain witnesses and the dispute was whether such witnesses could see the point of the collision from where they testified they were. One of the controlling facts in dispute was whether a witness could see the place of the collision from where she was lying in bed upstairs looking out of the window. In the Skinner case two jurors visited the location for the express purpose of determining the disputed controlling facts. In the case at bar there was no dispute in regard to the facts, and, in addition to that, both *Page 1320
jurors testified that their verdict was based solely on the evidence introduced in the trial.
A great many other errors are assigned. Without extending the opinion to undue length, we deem it sufficient to say that we have carefully read the entire record and considered all the assignments of error, and are convinced that the appellant had a fair and impartial trial and that the verdict and judgment of the lower court should be, and it is hereby affirmed.
EVANS, STEVENS, ANDERSON, DONEGAN, KINTZINGER, and UTTERBACK, JJ., concur.
KINDIG, C.J., dissents on the theory that the appellee is guilty of contributory negligence when she did not look to the north immediately before entering the intersection.
ALBERT, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433606/ | Appellees herein were tenants on certain land owned by one C.A. Freise. On the 16th day of July, 1921, Freise commenced an action against these tenants, praying a landlord's lien against their crop, and asking that a receiver be appointed to take charge of said crops; whereupon one C.H. Bradbury was duly appointed receiver. He duly qualified, took possession of the property, and sold the same. The trial of the case of Freise against his tenants resulted in a judgment in favor of the tenants against Freise for $750, and $109.67 costs. Bradbury, receiver, in the intermediate time had died, and the executrix of his estate was substituted receiver, and judgment was entered against the estate of Bradbury, deceased, for the aforesaid amounts. The estate of Bradbury refused to pay the appellees, and the allegation is that the estate is bankrupt, and unable to pay the claim. Copy of the bond of Bradbury is set out, and judgment is asked against Marquis, surety on said bond, for the sum of $859.67, with 6 per cent interest from the the 16th day of September, 1924, which was the date of the judgment against the Bradbury estate. The defendant, in an amended and substituted answer, pleads that the order of court appointing Bradbury as such receiver reads as follows:
"Upon reading the petition in the above entitled action, it is hereby ordered by the court: That C.H. Bradbury is hereby appointed receiver to take charge of the wheat and oats grown and raised upon the premises, to harvest the same, have the same threshed, and remove the same to some storage elevator, and do all things necessary for the protection of said crop *Page 78
of wheat and oats, and preventing the waste thereof, and to await further order of this court."
Another order by the court which is pleaded is as follows:
"The receiver herein having made application to pay out of the proceeds of the property in his hands claims for labor preferred and labor claims for labor incurred since his appointment, and asking that sufficient of the grain be sold to pay such claim, and also asking what disposition shall be made with the grain in his hands, now, therefore, it is hereby ordered by the court that the receiver herein be, and he is hereby, authorized to sell at private sale, at the market value of such grain, sufficient thereof to pay the claims so filed with him and by him incurred as such receiver; that, as to the balance of the grain in his hands and in the elevator, that he hold the same therein, or that he make such arrangements with the elevator companies for the payment thereof at such a day that he will demand settlement therefor, and if held in the elevator, to make such arrangements for storage and insurance thereon."
The answer further alleges that these orders limited the duties and responsibilities of said receiver to the care, protection, and preservation of said wheat and oats, and in no way made said receiver responsible for the money derived or to be derived from the sale of said grain thereafter; that all is shown on the face of said bond and said order appointing said receiver; that said order was duly entered of record, and all pleadings, files, and records in said case of Freise v. Edward Mc Clatchey et al. are made part hereof by reference thereto; that thereafter, and without knowledge or consent of the defendant, Marquis, as surety on said bond, and without any notice upon said defendant, the court entered its further orders, authorizing said receiver to sell said grain and convert the same into money. This order was as follows:
"Receiver, having made application to stack the grain and to hire and pay labor thereon, procure the insurance and pay for the same, to sell sufficient of the grain of the defendants to pay for such labor and insurance and necessary expenses therefor, and to sell the plaintiff's share of the grain and turn the proceeds therefor over to him, now, therefore, it is hereby ordered by the court that the receiver herein cause the grain to be stacked, to hire and pay for labor therefor, and to procure insurance *Page 79
thereon, and to pay for same, and to sell sufficient of the grain of defendants and necessary expenses therefor, and at the receiver's option to sell plaintiff's share of the grain and turn the proceeds therefor over to him."
Later, without the knowledge or consent of the appellant, surety on said bond, or without any notice to him, a further order was entered, reading as follows:
"The receiver having made application to sell the wheat grown by the defendants now in his hands, at the price of 94 cents for that grown by Edwards, and 92 cents for that grown by McClatchey, as being for the best interests for said parties as to the price therefor, the receiver herein is therefore ordered and authorized to sell said wheat for the above-mentioned prices and retain the proceeds thereof till the further order of this court."
It is further alleged that all of these orders were made without the knowledge or consent of this surety; that said orders above set out materially changed the nature and character of said receivership, and materially changed the obligations and duties of said receiver, thereby making him responsible for money coming into his hands from the sale of said grain, instead of said grain itself, as provided by the order first appointing said receiver and providing for his bond, — all without the knowledge or consent of the defendant, and without any notice to him of the same; that, by reason of said material changes in the duties and obligations and responsibilities of said receiver, and in the nature and character of said receivership, this defendant, as such surety, is discharged and released from liability on said bond. Wherefore he prays that plaintiffs' petition be dismissed.
To the answer of the appellant, appellees demurred, which demurrer was sustained. Hence this appeal.
The material part of the bond in question is as follows:
"Now, if the, said C.H. Bradbury, as such receiver, will render a true account of his office and of all his doings therein to the proper authority, when required thereby, or by law; that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; that he will promptly account for all balances of money remaining in his hands at the termination of his office, will *Page 80
exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers, and securities, or other property appertaining to his office, and deliver them to his successor, or to any other person authorized to receive the same; and that he will faithfully, impartially, without fear, favor, fraud, or oppression, discharge all duties now or hereafter required of his office by law, and the sureties on his bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office," etc.
It is insisted by appellant that the demurrer should have been overruled because the matters pleaded in the answer show a good release of this surety. He urges that the substance of the original order appointing the receiver simply provided that he was to take possession of this property and hold the same inspecie, and turn it over to such parties as should be determined to be entitled to the same; that, therefore, the liability of the surety was limited to the matters provided in the original order of appointment.
The trouble with this argument is, first, that the original order of appointment provided not only that the receiver should take possession and hold said property, but further, that he should do all things necessary for the protection thereof and the prevention of waste, and "await the further order of this court." Aside from the inherent power a court of equity has over propertyin custodia legis, a special provision is made in this order, reserving to the court the power to make any further order it may see fit, relative to this property; and if the liability of a surety on a bond, under such circumstances, were to be measured by the original order of appointment, this order is sufficiently broad to authorize the court to make an order to convert this personal property into money at any time it might see fit; and so long as that power exists, the surety on the bond must sign in contemplation thereof. He is bound to know the law. It would create a peculiar condition in matters of this kind if it were incumbent upon the court, on every occasion that it might wish to make some order with reference to property in its custody, to notify the surety on the bond, before such order could be made effective without releasing the surety. We know of no such law, and are cited to none which would support this *Page 81
proposition. Further than this, however, the bond filed herein, on which appellant is surety, is very broadly termed. It provides that the receiver will render a true account of his office and his doings therein; that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; that he "will exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, * * * or other property appertaining to his office, and deliver them to his successor, or to any other person authorized to receive the same; and that he will faithfully, impartially, * * * discharge all duties now or hereafter required of his office by law, and the sureties on his bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office."
Numerous Iowa cases are cited to us on the proposition that the authority of a receiver is to be determined and measured by the order of appointment and such subsequent directions as may from time to time be given. These are all cases in which the receiver himself was called to account for misfeasance or malfeasance in office. They give us no aid on this proposition.
We are also cited to other Iowa cases to the proposition that, in builders' contracts, substantial material changes may be of such character as to release the surety. They do not aid us on this proposition.
Our attention is also called to other Iowa cases on the distinction, well recognized in law, between the construction of the obligation as between gratuitous and paid sureties. These do not aid us on the point in question here.
It is our opinion that the terms and provisions of this bond, which in fact and in law measure the liability of the surety, are sufficiently broad to cover a case where a receiver sells personal property in his custody, as such, under order of court; and if, as in this case, he afterwards embezzles or does not account for such funds, there is no reason why the sureties on the bond should not be liable. As sustaining this ruling, seeWeems v. Lathrop, 42 Tex. 207; Claflin Co. v. Gibson (Ky.), 51 S.W. 439; Commonwealth v. Leachman (Ky.), 55 S.W. 430. *Page 82
The ruling of the district court in sustaining this demurrer is right. — Affirmed.
EVANS, C.J., and De GRAFF and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433612/ | The plaintiff apparently acquired the title to the real estate in controversy from W.L. Smalley, whose title thereto never appeared of record. Immediately after the acquisition of his title by the plaintiff, the defendant Hamilton, who was a judgment-creditor of Smalley's, and who had been such judgment-creditor for more than two years prior to the plaintiff's acquisition, levied an execution upon the property, and caused the same to be sold thereunder. Smalley acquired his title in the first instance in 1911. The property at that time *Page 1293
was owned by one Mrs. Ruth. Smalley held a $700 mortgage thereon. The mortgage thereon was equal to the value of the property, and in satisfaction of the mortgage, Mrs. Ruth conveyed the property to Smalley. The method of the conveyance was the delivery to Smalley of a warranty deed, duly executed by Mrs. Ruth. In this deed the name of the grantee was not inserted in any of the blank spaces therein provided. The deed also contained a clause whereby the grantee assumed and agreed to pay the $700 mortgage. This deed was never recorded. Smalley, however, took possession of the property, and collected the rents thereon, and listed the same for taxation in his own name. The parties agree that, under this deed, Smalley acquired a good equitable title to the property, and that it was within his power to convey the same to any purchaser by delivery of his deed and by the insertion therein of the name of the purchaser, as grantee. Prior to September, 1928, Smalley became indebted to the plaintiff for a grocery bill amounting to more than $1,000, and was being pressed for payment therefor. In consideration of such account and the satisfaction thereof, Smalley delivered the deed in question to the plaintiff, and inserted therein the name of the plaintiff, as grantee. If this were the whole story, there could be no controversy. There is another thread, however, that runs through this fabric, which tends to change its color and its character, as contended by the plaintiff.
Mrs. Alexander was the owner of considerable real estate in and about the city of Winterset. Smalley was her general agent in charge thereof. In 1915, he became indebted to his bank in the sum of $1,450, for which he gave his note, signed by himself and Mrs. Alexander, as his surety. In consideration for such signing on her part, he claims to have delivered to her the Ruth deed. It is contended on behalf of plaintiff that the effect of the delivery of such deed at such time was to convey the property to Mrs. Alexander, and that from that time forth she was necessarily the owner thereof. It was also testified by Smalley that Mrs. Alexander ultimately paid the note for which she became surety. It does appear also that, at a later time, Mrs. Alexander returned the deed to the custody of Smalley; and so far as appears, he had the custody thereof at all times thereafter until the delivery thereof to the plaintiff. In explanation of this circumstance, Smalley and Mrs. Alexander testified that such *Page 1294
custody was wholly in trust, and as agent for Mrs. Alexander. Both Smalley and Mrs. Alexander testified that she paid the taxes thereon. This evidence would be more satisfactory if some tax receipts had been produced. It was never assessed to her, but was assessed always to Smalley, and listed by Smalley. In line with this claim of custody in trust, it is also claimed that, though plaintiff received the deed from Smalley and pursuant to a contract with Smalley and for the benefit of Smalley, yet he received the same constructively from Mrs. Alexander, in that her trustee had obtained her consent to use the deed for the purpose of his transaction with the plaintiff. Shortly before the trial of this case, but after the commencement thereof, Mrs. Alexander became the wife of Smalley. We shall, however, for the convenience of discussion, refer to her throughout as Mrs. Alexander. It will be seen from the foregoing that Smalley and Mrs. Alexander held to themselves a large field of evidence wherein their testimony could not well be contradicted by any other witness. This fact of itself would require the court to scrutinize their evidence and to look into the inevitable circumstances attending them for confirmation or the contrary. In this case, Mrs. Alexander did not make herself known in any manner to the plaintiff in the transaction with him. She testified that she gave the deed to Smalley to pay his indebtedness therewith, the same as if she had "given him $500." The testimony of Mrs. Alexander at this point is quite destructive of the idea of a trust. She had no interest in the transaction under consideration, and she reserved no right in the delivery of the deed. To take this evidence upon its face, it was evidence of a gift, then and there. The plaintiff believed that he was acquiring the property from Smalley. According to his testimony, Smalley told him he owned it, and offered it to him in satisfaction of the grocery bill. Mrs. Alexander was in no position to challenge the validity of the conveyance by Smalley to the plaintiff. Under the evidence, plaintiff was clearly entitled to hold the property as under a conveyance from Smalley. As between him and Smalley, plaintiff could not have claimed his title to be otherwise; and as between him and Mrs. Alexander, she could not have claimed it to be otherwise.
The findings of the district court challenged the veracity of Smalley and of Mrs. Alexander at some points of their testimony. *Page 1295
The plaintiff saw fit to rest his case upon their uncorroborated testimony as to material facts which ought to have been corroborated. For instance, it was testified by them that Mrs. Alexander paid the $1,450 note. Such alleged payment, as disclosed by their later evidence, was constructive purely. Smalley actually paid the note. He claims, however, that he paid it with the money of Mrs. Alexander. This was the basis of her testimony that she paid the note. This was a bank transaction, and carried some record, to say the least. Smalley was a business man, acting as manager of Mrs. Alexander's business. Presumptively, he had a book of accounts. They could have been produced. They would have disclosed by their entries whether Mrs. Alexander's money paid the note. In weighing this evidence, the judicial mind naturally seeks for just such corroboration. The failure to produce the same or to explain such failure tends to impeach the evidence of the uncontradicted witness, where direct contradiction is, in the nature of the circumstances, impossible. On the question of alleged tax payments by Mrs. Alexander, one tax receipt would furnish more assurance than many asseverations. The acquisition of the deed by Smalley from Mrs. Ruth, and by the plaintiff from Smalley, for his own benefit, standing alone, would make a clear case for the defendant. If, underneath these transactions, there was a concealed trust in favor of Mrs. Alexander, the burden of proving it was upon the plaintiff, and such burden was a substantial rather than a formal one. The district court held that the trust was not proved, and that Smalley was the real owner of the property, and that plaintiff took his title from and through Smalley, and not otherwise. We reach the same conclusion, and the decree dismissing the petition is, accordingly, — Affirmed.
MORLING, C.J., and FAVILLE, KINDIG, and GRIMM, JJ., concur. *Page 1296 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433616/ | This is an action brought by the plaintiff, appellant, Dorothy Anne Dondore, against the defendant, appellee, F.J. Rohner, for malpractice in which the plaintiff claims that the defendant physician as a consultant and specialist in internal diseases was called as such consultant by the attending physician to examine and consult with said attending physician as to the illness of the administratrix's mother, the decedent. The record discloses that the defendant physician saw the decedent professionally probably on three different occasions and, at the time of the first visit occurring on the 5th of July, 1930, the decedent was suffering from acute cardiac failure, decompensation of the heart, congestive in type, coronary thrombosis, congestion of the liver, enlargement of the heart, an exceedingly high irregular pulse, and a general feeble and wasted physical condition. The claim is that the defendant did not properly and skillfully diagnose the acute and serious condition of the patient and did not properly prescribe a skillful course of treatment and that by reason thereof the patient continued to decline, her ailments continued to increase in severity, finally resulting in her death.
Although the appeal must be dismissed on the defendant's motion, owing to the apparent sincerity of the plaintiff who, though not an attorney, personally presented the appeal to this court, we have reviewed the record carefully and are constrained to hold that no errors were committed by the trial court in the admission and exclusion of evidence that were prejudicial to the plaintiff or that would constitute reversible error, and that the trial court was right in its order and ruling *Page 3
sustaining a motion directing a verdict for the defendant at the close of plaintiff's testimony.
[1] As to the motion to dismiss the appeal it appears first that the appellant failed to comply with Rule 16 of this court in the preparation of the abstract in that such rule provides that only so much of the record as may be necessary to a full understanding of the questions presented for decision be included therein, and that the abstract as prepared and presented by the appellant is practically a copy of the transcript and contains much more than is necessary for a full understanding of the issues presented and is in such condition as to entail an unreasonable and unwarranted amount of labor upon the part of the court to ascertain therefrom the pertinent and important facts. The rule referred to provides that the court may in its discretion affirm the judgment from which the appeal is taken without considering the appeal.
[2] There is also a violation of Rule 18 of this court which provides the form and context of the abstract, in that the petition and other pleadings containing arguments and conclusions are set out in full thus adding unnecessarily to the labors of this court and constituting a complete failure to conform to the rule referred to.
[3] It is also an absolute failure to comply with Rule 30 of this court in the preparation of the appellant's brief and argument. For instance, instead of a "brief statement of the main facts as claimed by the appellant" we have an exhortation and argument covering twenty-seven pages of the brief and argument, from which it is arduous, if not impossible, to separate the argument and general discussion from the main facts and thus obtain an intelligent idea of the main facts at issue.
[4] Again Rule 30 has been ignored and violated in that the assignments of error are omnibus and are not stated with sufficient definiteness to apprise the court of the errors relied upon without an arduous reference to the abstract or transcript. This is true of all attempted and claimed assignments of error.
Without prolonging this ruling by specifically referring to the various and very numerous claimed assignments of error, we are constrained to hold that the appellee's motion to dismiss the appeal based upon a violation of and failure to follow the *Page 4
requirements of the rules of practice in this court must be and it is sustained. — Appeal dismissed.
HAMILTON, C.J., and MITCHELL, KINTZINGER, DONEGAN, PARSONS, RICHARDS, STIGER, and SAGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433562/ | Lawrence Lein, the plaintiff and appellee, brought this action against John Morrell Company, the defendant and appellant, to recover damages caused on January 14, 1927, by the negligence of the latter's agent and driver in carelessly operating a light delivery truck into and against the former's automobile at or near the intersection of Fremont and East Fourteenth Streets in Des Moines. Fremont Street runs east and west, while East Fourteenth extends north and south, and intersects the former at right angles. Appellant's truck was proceeding eastward on Fremont, toward East Fourteenth Street. When entering East Fourteenth Street, appellant's driver cut the corner, and turned north thereon, near the curb at the northwest corner of the intersection. At that time, appellee was going southward on the right side of East Fourteenth Street in a new Chevrolet coupé. So, in order to avoid a head-on collision, appellee attempted to swerve eastward, to the left. In doing this, appellee managed to get the body of his car past the truck; but the right front frame and wheel of the truck struck the right rear of the Chevrolet coupé, whirling it around, and causing its overturn. Because of the impact, appellee received personal injuries, and his automobile was damaged. Hence this suit.
As a defense to appellee's claim, the appellant asserted: First, that it was not guilty of negligence; and second, that the proximate cause of the accident was appellee's own carelessness. A new trial is asked because of various errors assigned. These complaints will now be given consideration.
I. It is first suggested that the court wrongfully overruled appellant's motion to strike "the evidence of appellee and appellee's witnesses with reference to measurements taken, and to the value of appellee's car."
Clearly, this does not raise an issue here. Information is not furnished by appellant concerning that to which it objects. *Page 1273
Under such an assignment, the court is compelled to search the record without a guide, in order to determine 1. APPEAL AND what appellant may have in mind. Many times this ERROR: court has said that such an assignment is not assignment sufficient. McAdams v. Davis, 200 Iowa 204; of errors: Monona County v. Gray, 200 Iowa 1133; Kroloff v.
fatal Southern Sur. Co., 197 Iowa 1244; Brown v.
indefinite- Gray, 190 Iowa 252; Holt v. Doty, 193 Iowa 582; ness. Ryan Bros. v. Rate, 203 Iowa 1253. Moreover, the assignment is not followed by brief points.
Nevertheless, we have read the entire record, and failed to find any prejudicial error in the admission of testimony. While on the witness stand, appellant's driver stated facts properly laying the foundation for the measurements about which the general exception is taken. Also, the various witnesses who testified concerning value were properly within the well-known rules relating thereto. This appears fully when the amended abstract is read in connection with the original. Manifestly, there is no basis for reversal here.
II. Grievance is founded upon the proposition that the evidence is not sufficient to sustain appellant's negligence. Obviously, this argument is without merit. In this case there is a dispute concerning many of the material facts which 2. MOTOR determine whether or not there was negligence. VEHICLES: If, then, there is substantial evidence of operation: appellant's carelessness, the cause was properly negligence: submitted to the jury. The point of collision "cutting was north of the intersection, on East corner." Fourteenth Street. Dispute arises regarding the exact distance. Some witnesses say two, and others five, feet. Furthermore, appellee furnished proof to establish the fact that the appellant's truck came speedily around the corner from the west, turning north into East Fourteenth Street, and while so doing, cut close to the curb on the wrong side of the street. A square turn was not made. Section 5033 of the 1927 Code provides:
"The operator of a motor vehicle, in turning to the right from one street or highway into another, shall turn the corner as near the right hand as practicable, and, in turning to the left from one street or highway into another, shall pass to the right of and beyond the center before turning." *Page 1274
No excuse is offered by appellant in the case at bar for its statutory transgression. Violation of those legislative provisions constitutes prima-facie evidence of negligence, and when, as herein, it was the proximate cause of the injury, will furnish the basis for damages. Rowley v. City of Cedar Rapids,203 Iowa 1245. Therein we said:
"It was alleged, along with other acts of negligence, that the automobile operated by Cary under the direction of the defendant Kennedy was proceeding in an easterly direction on one street, and turned to the north into another street, and that it was negligently turned to the left-hand side of the center of the intersection, `cutting the corner,' and struck the plaintiff, who was proceeding across the street into which the car turned at the intersection. Section 26 of Chapter 275, Acts of the Thirty-eighth General Assembly (Section 5033, Code of 1924), required that, in making such a turn, the car should pass to the right of and beyond the center of the intersection before turning. A violation of the statute was prima-facie negligence.Carlson v. Meusberger, 200 Iowa 65."
With the law thus established, and the facts as contended by appellee, there was sufficient foundation for saying appellant was negligent. Contradictory evidence was presented by appellant concerning what its driver did at the time and place. However, that does not mean that the court was wrong in submitting the cause to the jury. Rather, the very conflict itself furnished the issue upon which the jury was to pass.
Because of the foregoing, appellant's motion for a directed verdict on that ground was properly overruled.
III. Likewise, appellant asserts that it should have had a directed verdict because of appellee's contributory negligence. Basis for this contention is placed upon the theory that appellant, rather than appellee, was entitled to the right of way across the intersection. Section 5035 of the 1927 Code contains this provision:
"Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way * * *."
Upon that legislative enactment appellant seeks to substantiate *Page 1275
appellee's contributory negligence. Plainly, however, that law can have no application to the facts and circumstances under consideration, for it is to be remembered the 3. MOTOR collision occurred before appellee had reached VEHICLES: the intersection. He had not yet had an operation: opportunity to yield the right of way. Here the intersecting accident did not happen because of appellee's paths: right dereliction in failing to give the right of way, of way: but rather, the proximate cause of the limitation. unfortunate happening was appellant's recklessness in cutting the corner. Even conceding that appellant had the right of way, that would not mean it could operate its truck on the wrong side of the street, across the corner. On the other hand, appellant, when entitled to the right of way, could, under these facts, proceed, according to the statute, across the middle of East Fourteenth Street, and then turn north thereon. To elucidate, it is enough to say the right of way did not license appellant to unlawfully cut the corner or in any other way travel upon the highway illegally. 42 Corpus Juris 990; 42 Corpus Juris 977; Huddy on Automobiles (8th Ed.) 320, Section 312, and also page 321, Section 313; Foley v. Taylor, 121 Wash. 401
(209 P. 698); Berry on Automobiles (5th Ed.) 725, Section 946; Roe v.Kurtz, 203 Iowa 906; Syck v. Duluth Street R. Co., 146 Minn. 118
(177 N.W. 944); Primock v. Goldenberg, 161 Minn. 160
(200 N.W. 920); Oliver v. Taylor, 119 Wash. 190 (205 P. 746); Glatz v.Kroeger Bros. Co., 168 Wis. 635 (170 N.W. 934).
Consequently, until appellee failed to permit appellant to enjoy the lawful use of the right of way, the former was not guilty of contributory negligence. While lawfully approaching the intersection, appellee had a right to assume that appellant would not unlawfully use the public way. Hines v. Chicago, M. St.P.R. Co., 196 Iowa 109.
IV. Yet, notwithstanding the decision reached on the foregoing premise, appellant insists that a directed verdict was due it because appellee was negligent in swerving his automobile to the left, while attempting an avoidance of the 4. MOTOR impact. We cannot agree with this idea. There VEHICLES: was a store building at the northwest corner of operation: this intersection, about 12 or 14 feet west of turning to the corner. That tended to obstruct appellee's left in view of the approaching truck. Therefore, when emergency. appellee first saw the appellant's *Page 1276
vehicle, it was rapidly coming across the wrong side of the intersection, within two and one-half feet of the curbing. According to the record, the truck in fact was going at the estimated speed of 35 miles an hour, directly in the path of appellee's automobile. Ice and snow prevented appellee from instantaneously stopping his car. Because he could not turn to the right, he swerved to the left. About this, appellant has no just cause for complaint. Its negligence placed appellee in the precarious position of unexpected and suddenly arising danger. Resultantly, he had a right to use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation. McPhee v. Lavin, 183 Cal. 264 (191 P. 23); Noyes v.Katsuno, 111 Wash. 529 (191 P. 419); Berry on Automobiles (5th Ed.) 168, Section 209; Babbitt on The Law Applied to Motor Vehicles 322; 42 Corpus Juris 908, also 1002. The McPhee case aptly suggests:
"The plaintiff, in an effort to avoid the threatened collision, speeded up his machine, and turned at an angle to the left. * * * That he cannot be held, as a matter of law, guilty of negligence in doing this, is clear from the well-established rule that one suddenly confronted with an unexpected danger may use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation, without being held to strict accountability as to whether the course chosen is the most judicious or not. * * * The defendant, by unlawfully cutting the corner and approaching the plaintiff from the wrong side of the street, is not in a position to complain of the plaintiff's deviation from the rule of the road in an attempt to avoid a collision."
Under the conditions revealed in this record, appellee was not guilty of negligence as a matter of law; but rather, his acts in the premises were properly presented to the jury, and it was for that body to say whether or not he exercised due care, in view of the facts submitted.
V. Error is assigned because the district court refused to sustain appellant's objections to the instructions and its motion for a new trial. However, both motion and exceptions were *Page 1277
filed too late in the district court. Apparently 5. NEW TRIAL: the jury's verdict and the judgment thereon, motion: appealed from, were entered on October 10, 1927. exceptions Two days later (on October 12th), the district to court extended appellant's time ten days, for instruc- excepting to the instructions and moving for a tions: new trial. But it was not until after the belated expiration of the additional period that the filing. motions were actually presented. They were filed, in fact, on the 24th day of October. This was beyond the authorized interim. Code of 1927, Section 11495, contains this language:
"Any party may take and file exceptions to the instructions of the court, or any part of the instructions given, or to the refusal to give any instructions as requested, within five days after the verdict in the cause is filed or within such further time as the court may allow, and may include the same or any part thereof in a motion for a new trial. * * *"
Succeeding the foregoing is Section 11551, which is:
"The application [for a new trial] must be made within five days after the verdict, report, or decision is rendered, unless for good cause the court extends the time * * *"
Wherefore, under those legislative requirements, it is obvious that appellant was fatally tardy in submitting its motion and exceptions. Carruthers v. Campbell, 195 Iowa 390; Roggensack v.Ahlstrom (Iowa), 209 N.W. 429 (not officially reported).
VI. Ample proof was furnished in reference to plaintiff's injuries and the damages to his car to substantiate the verdict. The verdict, therefore, is not excessive.
After carefully reading the whole record and considering all the assignments properly made, we are constrained to conclude that appellant had a fair trial, and is not entitled to a reversal of the district court's judgment.
Necessarily, then, the judgment of the district court is affirmed. — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, WAGNER, and GRIMM, JJ., concur. *Page 1278 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433564/ | The cause of action stated in the petition is upon quantummeruit. An itemized statement showing debits and credits is attached thereto. The answer of appellant admitted the services, alleged settlement, and payment in full, and also set up the statute of limitations. The finding of the court, sitting as a jury, upon all questions of fact, as distinguished from purely legal conclusions, is binding upon this court. Therefore, questions of law only are presented for decision.
Testifying in his own behalf, appellee said that he hired himself to appellant on or about April 3, 1916, to work for him on a farm for seven months at $30 per month; that he then worked for appellant for three months, at an agreed compensation of $35 per month; and that, during the remainder of the time, which included several years, he was employed at an agreed compensation of $50 per month. This testimony is not denied, but, on the contrary, is corroborated by the appellant.
At the close of appellee's testimony, appellant moved the court to require the plaintiff to elect whether he would prosecute his action upon contract or quantum meruit. He elected to stand on the account as pleaded. Recalled, he testified to the reasonable value of his services. Another witness, whether called by appellant or appellee does not appear, testified that ordinary wages were, during the period covered, around $40 to $50 per month. The court specifically found against appellant on the issue of payment, and also that the account was open and current, and, therefore, not barred by the statute of limitations. The court also found the reasonable value of the services, with one exception, to be as agreed upon between the parties.
As indicated, the petition of appellee contains but a single count, and that is based upon quantum meruit. The court found and held that the action was to recover a balance due on an open, continuous, current account. It is the 1. LIMITATION contention of appellant that this finding is OF ACTIONS: erroneous, and contrary to the undisputed statute of evidence in the case. Appellee was employed by limitation: appellant under a series of express contracts: "continuous, that is to say, the term of each employment was open, either definitely expressed or clearly current understood by the parties, and the compensation account" was, in each instance, fixed absolutely by the defined. several contracts. Nothing was left by the parties to implication. A *Page 1106
continuous open account is one that includes a series of items. The term has been often defined, and we shall content ourselves with the citation of the authorities, without repetition of what has previously been said. Tucker v. Quimby, 37 Iowa 17; Wertz v.Ryan, 192 Iowa 517; McCord v. Page County, 192 Iowa 357; Spencerv. Sowers, 118 Kan. 259 (234 P. 972, 39 A.L.R. 365); ConnorLivestock Co. v. Fisher, 32 Ariz. 80 (255 P. 996, 57 A.L.R. 196).
A series of independent express contracts for services to be performed for an agreed compensation does not constitute an open, continuous, current account. Authority bearing directly upon this point is not plentiful in this state; but this 2. PLEADING: court, in Shorick v. Bruce, 21 Iowa 305, held issues, specifically, under a similar situation, that proof, and the case did not involve a continuous current variance: account. This would seem to be clear upon pleading reason, and without the necessity of authority quantum to support it. The rule is well settled in this meruit and state that, where a cause of action is based proving solely upon quantum meruit, recovery cannot be express had if the proof offered in support thereof contact. establishes an express contract. It is equally true that, if the cause of action is based upon contract, recovery may not be had upon the theory of quantum meruit. Duncanv. Gray, 108 Iowa 599; Hunt v. Tuttle, 125 Iowa 676; Walker Davis v. Irwin, 94 Iowa 448; In re Estate of Oldfield, 158 Iowa 98; Bierkamp v. Beuthien, 173 Iowa 436; Murphy v. Williamson,180 Iowa 291; Cammack Son v. Weimer, 181 Iowa 1; Goben v. DesMoines Asph. Pav. Co., 208 Iowa 1113; Russell v. John Clemens Co., 196 Iowa 1121.
Counsel for appellee relies primarily upon Mills Co. v.Davies, 42 Iowa 91; Haywood v. Woods, 28 Iowa 563; Shorick v.Bruce, supra; Kilbourn v. Anderson, 77 Iowa 501; Wendeling v.Besser, 31 Iowa 248. None of the foregoing cases are in point, as a casual reading thereof will show. The full term of employment of appellee under the several contracts was continuous from April 16 to September 1, 1921. The number of contracts actually entered into during this period is wholly immaterial. The decisive factor in the case is that all of the services were performed and rendered under express oral agreements, specifically fixing the compensation to be paid. The fact that the action *Page 1107
is to recover a balance due is not, in itself, determinative of any controverted question in the case. The record does show that appellant made payments at irregular intervals, but they were all made in pursuance of existing contracts. If appellant failed to make payments monthly, as agreed, a cause of action arose immediately in favor of appellee. The failure of appellant to make prompt monthly payments, if such was the understanding and agreement of the parties, appears to have been mutually waived, or, at least, appellee did not insist thereon. Appellee was given the opportunity, during the trial, to elect whether he would rely upon express contract or quantum meruit. He chose the latter, and no amendment to the petition was tendered. The difficulty encountered by appellee at this point was obviously the statute of limitations.
It is our conclusion that there was a fatal variance between the allegations of the petition and the proof, and consequently the petition should have been dismissed. — Reversed.
FAVILLE, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433567/ | The defendants E.M. and Jennie E. Sabin executed the mortgage in question to the appellant, to secure *Page 1363
their notes in the sum of $13,000. Thereafter, E.M. Sabin entered into a written contract with E.W. Dennstedt for 1. EVIDENCE: the sale of the mortgaged premises to the parol as latter, who, in the contract, assumed payment of affecting the mortgage. The conveyance of the land in writings: pursuance of this contract was made by the oral Sabins to the appellee A.L. Dennstedt by contradic- warranty deed, in which the grantee assumed and tion of agreed to pay the mortgage. The appellee mortgage- subsequently conveyed the land to the defendant assumption Curley by a deed in which the grantee also clause. assumed payment of the mortgage. Judgment for the amount due under the mortgage was asked against the mortgagors and against the appellee and Curley on the assumption clauses in the respective conveyances to them. The relief prayed was denied as against the appellee, and it is from this judgment that the plaintiff appeals.
The appellee claimed, and, subject to objection, introduced parol evidence to show, that the Dennstedt Land Company, a corporation, was the real purchaser of the land from Sabin; that the contract therefor was made in the name of E.W. Dennstedt, and the deed taken in the name of appellee as a mere matter of convenience; that the latter had no interest in the land and received no consideration for the agreement in the deed to assume and pay the mortgage; that the corporation contracted to sell the land to Curley, and he executed a conveyance thereof in pursuance of such contract; and that he received no part of the consideration therefor. There is no contradiction of this testimony. The only question upon which the testimony is in conflict is as to whether Sabin had knowledge that the corporation was the real purchaser of the land. The controversy is over the competency of the evidence and its sufficiency to relieve appellee from liability on the assumption clause in the deed to him. It should be observed that the Sabins, the grantors in the conveyance to appellee, make no claim under the assumption clause therein. The only party seeking to enforce any liability as against the appellee is the mortgagee, who was not a party to the agreement.
It is a well settled doctrine, frequently applied to such contracts as the one in question, that the rule that the terms of a written contract cannot be altered or contradicted by parol evidence cannot be invoked either by or against a stranger to *Page 1364
the contract; that it has "no application in controversies between a party to the instrument on the one hand and a stranger to it on the other; for the stranger, not having assented to the contract, is not bound by it, and is therefore at liberty, when his rights are concerned, to show that the written instrument does not express the full or true character of the transaction. And where the stranger to the instrument is thus free to vary or contradict it by parol evidence, his adversary, although a party to it, must be equally free to do so." Aultman E. T. Co. v.Greenlee, 134 Iowa 368. See, also, DeGoey v. Van Wyk, 97 Iowa 491; Logan v. Miller, 106 Iowa 511; Clark v. Shannon Mott Co.,117 Iowa 645; Livingston v. Stevens, 122 Iowa 62; Peters v.Goodrich, 192 Iowa 790; Shult v. Doyle, 200 Iowa 1. In In reAssessment of Shields Bros., 134 Iowa 559, we said:
"As against a stranger to the contract, a party thereto may assert that the agreement was other or different — in any respect and to any extent — than that which the writing imports."
In Shult v. Doyle, supra, we said, speaking of the relation of the mortgagee to a contract whereby the purchaser of the land from the mortgagor assumed and agreed to pay the mortgage:
"As to the plaintiff herein, his rights are subordinate to the real agreement entered into, as between the defendants. His rights are purely legal. They do not arise out of any equity. They spring alone from the express agreement of the parties, made in his behalf as a third person. Peters v. Goodrich, 192 Iowa 790. The cause of action thus created in his favor is a bit of legal grace; it cost him nothing; it simply fell upon him, without effort or knowledge on his part. He is entitled to it, such as it is. He has no ground of appeal to equity, either to expand it or to prevent its shrinkage."
Appellant relies upon Beeson v. Green, 103 Iowa 406. Language is to be found in that case that seems to support appellant's contention that, in such a situation, the rule excluding parol evidence to vary or contradict a written contract is applicable. No consideration appears to have been given in that case to the fact that the question arose between the assignee of the mortgagee, a stranger to the contract evidenced by the assumption clause, and the mortgagor's grantee, a party to the contract. In so far as it applies to the rule affecting parties to the contract in favor of a stranger thereto, it is clearly out of harmony *Page 1365
with our many subsequent holdings on the question, cited above, and must be considered as, in effect, if not in terms, overruled by them. See particularly Peters v. Goodrich, supra.
Appellant also relies upon the doctrine that one who contracts for an undisclosed principal binds himself. The difficulty with the application of this doctrine to the facts in hand is that the one invoking it is a stranger to the contract. 2. PRINCIPAL Whatever might be said of the appropriate AND AGENT: application of this rule at the instance of the undisclosed grantors in the deed, in case the real purchaser agency: was not disclosed, it cannot aid one who was not liability of a party to the contract. In this view, it agent: becomes unnecessary to determine whether the non-applica- Sabins were advised that the Dennstedt Land bility of Company was the real purchaser, the only rule. disputed question of fact in the case.
In argument, counsel discuss the question of consideration for the assumption clause in the deed, and whether it was incumbent on the appellant to plead and prove a consideration therefor. In the view we take of the case, it is unnecessary 3. REFORMATION that we consider these questions. The evidence OF INSTRU- on behalf of the appellee established without MENTS: in contradiction that he was not the purchaser of general: the land; that by the purchase he acquired no non-neces- interest in it; that there was in fact no sity to agreement that he should assume and pay the reform. mortgage. As against the appellant, it was not necessary that there be a reformation of the deed in order to relieve the appellee from liability under the agreement appearing in the deed; for, as we have seen, he had a right, as against the mortgagee, notwithstanding the writing, to show the facts.
In Shult v. Doyle, supra, the land was sold on contract to one who by the contract agreed to assume and pay the mortgage. This purchaser sold the land on contract to parties who therein agreed to take it subject to the mortgage. Both transactions were consummated by conveying the land "across" from the first vendor to the last vendee by a deed in which the grantees assumed and agreed to pay the mortgage. The grantees asked a reformation of the deed. We said:
"So far as the plaintiff [the mortgagee] was concerned, they [the grantees] had no need of equitable relief. As against *Page 1366
him, they had a right to introduce parol evidence, to vary and contradict the writing upon which he predicated his case."
When it is determined, either as a result of the reformation of the writing or on competent evidence, where reformation is not necessary, that there was no agreement on the part of the appellee to assume and pay the mortgage, it is the end of the controversy. As bearing on the question see, also, Rogers v.Castle, 51 Minn. 428 (53 N.W. 651); Gold v. Ogden, 61 Minn. 88
(63 N.W. 266); Kelly v. Geer, 101 N.Y. 664 (5 N.E. 332);Deyermand v. Chamberlin, 22 Hun (N.Y.) 110; Painter v. Kennedy,89 Wash. 275 (154 P. 161); Llewellyn v. Butler, 186 Mo. App. 525 (172 S.W. 413); Boyd v. Winte, 65 Okla. 141 (164 P. 781); 41 Corpus Juris 744.
We do not have before us, and express no opinion upon, the question of the right of the grantor in such a situation to recover, in a proper case.
We reach the conclusion that the judgment below was right, and it is — Affirmed.
EVANS, C.J., and STEVENS and FAVILLE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433568/ | The petitions of the respective plaintiffs herein are identical except as to the amounts claimed. Summarized, the said petitions are as follows:
The Hardsocg Manufacturing Company was a corporation under the laws of the state of Iowa, of which the capital stock was $76,000, represented by 760 shares of which Bane Hardsocg and Lester C. Hardsocg owned 500 shares. As individuals they were indebted to the First National Bank of Ottumwa in the sum of $40,000. They assigned certificates for said stock to said First National Bank, together with proxies authorizing said bank to vote said shares of stock at any meeting of the stockholders of said manufacturing company. This assignment was made as collateral security for their said individual indebtedness to the bank. Under the articles of incorporation of said manufacturing company, its charter would expire on May 8, 1931. Under section 8365 of the Code, it had a right to renew its charter at any time within three months after its expiration, and hence August 8, 1931, was the last day on which it could exercise this right under the statute. On the 2d day of June, 1931, a special meeting was duly called to consider the question of renewal of the charter. At that meeting the outstanding shares were 760; 639 voted for renewal and 44 voted against renewal. These 44 shares were divided as follows: Emmett A. Work, 24; Elizabeth Maschek, 15; and L.W. Clark, 5 shares. Thereafter, the following writing was made: *Page 639
"In consideration of Elizabeth Maschek, L.W. Clark and E.A. Work withdrawing their objections to the renewal of Articles of Incorporation of the Hardsocg Manufacturing Company, we the undersigned hereby agree and stipulate with the above named persons that so long as the First National Bank of Ottumwa, Iowa, holds as collateral security, or owns in its own right any stock of said Corporation that it will vote all of said stock for such directors in said Corporation as shall vote for L.W. Clark for the office of General Manager of said Corporation for a term of not less than one year, at a salary of $3,000.00 per year, beginning August 17, 1931; and for Elizabeth Maschek as bookkeeper at a salary of $25.00 per week for the same term. It is further stipulated that said bank shall at once demand and receive the resignation of L.S. Hardsocg as Secretary-Treasurer and general manager; also the resignation of Bane Hardsocg as Vice President and of Roy Stevens and T.J. Madden as Directors of said corporation. That the following directors shall be elected to fill the vacancies created: G. Frank Spry, E.A. Work, L.W. Clark, M. Bannister." (There are some other provisions that are not material here.)
"[Signed] First Nat'l Bank, W.B. Bonnifield, Pt. Aug. 8, 1931."
Thereafter, the renewal or substituted and amended articles of incorporation of the said Hardsocg Manufacturing Company were duly signed, and Work, Maschek, and Clark, in writing, withdrew all objections thereto and consented to the renewal articles. Said articles were duly executed and filed as required by law. It is further alleged that the First Bank Trust Company of Ottumwa, Iowa, has, since the 8th of August, 1931, taken over all the assets and assumed all the liabilities of the First National Bank.
The plaintiffs allege that this contract was breached in two respects: First, that the respective plaintiffs were not given the employment provided for in said contract; and, second, that the named parties in said contract were not elected directors as therein provided. On account of this breach of the contract the plaintiff Clark seeks to recover the sum of $3,000, and Mrs. Maschek seeks to recover the alleged stipulated salary of $25 per week. Attached to each of said petitions is a copy of the renewal or substituted and amended articles of incorporation, together with the resolution of the board in relation thereto. The renewal articles of incorporation, which was attested and approved by both of these plaintiffs, among other things recites: "* * * and until otherwise ordered *Page 640
the present directors and officers in the expiring corporation shall hold similar position in such succeeding corporation."
Article VI provides that the affairs of the corporation are to be conducted by a board of directors elected at the annual meeting of the stockholders, and that:
"The Board as at present shall consist of five members consisting of Martin Hardsocg, Lester C. Hardsocg, Bane Hardsocg, Roy E. Stevens and T.J. Madden named for the first corporate fiscal year commencing with May 1, 1931."
Article VII provides for the corporate offices and that the board of directors shall name the persons filling these positions and designate their compensation. It further authorizes the board of directors to employ subordinate executive officers whose services may be required, as a general manager, superintendent, or sales manager.
"Unless otherwise directed by the Board of Directors the officers shall serve for the annual term commencing with May first of each year, the officers for the year ending May 1, 1932, being President Martin Hardsocg, Vice President Bane Hardsocg, Secretary Lester C. Hardsocg, and Treasurer Lester C. Hardsocg."
To each of the petitions a demurrer was filed which was sustained, from which ruling the plaintiffs appeal.
It is apparent from the summary of the petitions just set out that the plaintiffs claim that the defendant bank breached this alleged contract in two respects: First, that it failed to vote the shares of stock which the bank had under its control for the named parties (Spry, Work, Clark, Bannister) as directors; second, that it failed to vote said shares of stock "for such directors in said corporation as shall vote for L.W. Clark for the office of general manager * * * and for Elizabeth Maschek as bookkeeper * * *."
Both sides present very able briefs discussing the powers of national banks, but, as we view the case, this question need not be discussed as there are other phases that are controlling.
[1] It will be noted that at the first meeting of the stockholders of the manufacturing company, Work, Maschek, and Clark voted against the renewal of the charter. Following that, the contract sued on herein was executed as set out. Subsequently to that, Work, Maschek, and Clark withdrew their objections and attached to the *Page 641
proposed renewal articles of incorporation their signatures so asserting and consenting to such articles as they then appeared and as they now appear. As heretofore shown, those articles provided for a different set of officers and directors than those provided for in the alleged agreement. In other words, the articles that were adopted, so far as the officers and directors were concerned, showed other and different names than those provided for in the alleged written contract; and the approval of the articles by Work, Maschek, and Clark is alleged to have been subsequent to the execution of the alleged contract. This being their last act, the approval of such articles must therefore be controlling, and it is held that by reason of such latter act on their part, they must have waived their rights under the alleged contract with the bank, and, having waived the very things which they allege to be a violation of the contract, necessarily they could not base an action on such alleged breach. The plaintiffs state their position to be that there was an agreement to vote this stock as a unit for certain purposes, to wit: (1) To vote for directors who would employ the plaintiffs; and (2) to vote for specific directors. They say, "The bank broke its contract and refused to vote in accordance with the terms of the contract in either instance," and for that reason damages are claimed.
From what has already been said, it is apparent that the plaintiffs are not in position to make such claim under the record as it stands.
[2] Viewing this matter from another angle, it is quite apparent that the bank had no power to make or carry out the terms of the alleged contract. What the plaintiffs were seeking to accomplish, as we gather from the argument, was that Clark and Maschek wanted to be certain of their employment by the manufacturing company, and whether or not they were so employed rested wholly with the directors of the renewed corporation. The bank was not in a position in which it could control the official action of such board of directors. Further than this, if the bank should attempt to make a contract by which it agreed to dictate the action of the board of directors of the manufacturing company, it would far exceed its power, as is fully shown by Thilmany v. Iowa Paper Bag Co., 108 Iowa 333, 79 N.W. 68, where the principle is laid down governing this phase of the case. It will be noted by what has already been said that the manufacturing company was not a party to this alleged contract. These two plaintiffs were stockholders *Page 642
in the old and in the renewed corporation, and the National Bank was in control of stock of the said corporation, and as such these parties attempted to enter into a contract giving to each of the plaintiffs, who were stockholders, a lucrative position in the manufacturing corporation. That such a contract cannot be made is quite well settled by the authorities. See Creed v. Copps, 103 Vt. 164, 152 A. 369, 71 A.L.R. 1287; Teich v. Kaufman,174 Ill. App. 306; Woodruff v. Wentworth, 133 Mass. 309; Harris v. Scott, 67 N.H. 437, 32 A. 770; Snow v. Church, 13 A.D. 108, 42 N.Y.S. 1072; Haldeman v. Haldeman, 176 Ky. 635, 197 S.W. 376; Palmbaum v. Magulsky, 217 Mass. 306, 104 N.E. 746; Ann. Cas. 1915D, 799; 7 R.C.L. (Corporations) par. 331; 2 Cook on Corporations, section 622; 1 Thompson on Corporations (2d Ed.) section 898.
Some other questions are discussed, but we think these are the controlling questions in the case, and that the demurrers to each of the petitions of plaintiffs were properly sustained. — Affirmed.
ANDERSON, C.J., and DONEGAN, PARSONS, RICHARDS, HAMILTON, MITCHELL, POWERS, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433599/ | One Joseph Hruska died in 1919, leaving a widow. Frances, a son, Harold, and a mentally incompetent daughter, Mary. In June, 1919, Otto Sikora was appointed guardian of the property of Mary upon the application of Harold. This appointment was in all respects regular. Sikora continued to act as guardian until his death on May 8, 1940. On May 11, 1940, one William Kacena was appointed administrator of the estate of Sikora. On May 13, J.U. Yessler, who had acted throughout as attorney for the guardian, Sikora, prepared and presented to the district court in which the guardianship was pending an application by Kacena, administrator, for appointment of a guardian for Mary Hruska to succeed Sikora. Pursuant to that application, William Fahey, a law partner of Yessler, was appointed successor-guardian on May 13th by an ex parte order. No notice was given the incompetent nor anyone else, nor was a guardian ad litem appointed for the incompetent.
Upon the death of Sikora he had under his control as guardian $6,134 and a building located in Cedar Rapids. He also held $10,320 under the following circumstances. The will of Joseph Hruska provided that Frances Hruska, and after her death, Harold, should pay Mary $300 per year during her lifetime so long as she remained incompetent. In case Mary regained her sanity she was to be given the sum of $10,000, in which event the yearly payments of $300 were to terminate. These provisions for the benefit of Mary were made a lien on all the real estate left to Frances and Harold. In order to remove this lien, a contract was entered into in January, 1921, as a result of which $10,000 in cash was placed with the guardian from funds which otherwise would have gone to Frances and Harold, to secure the performance of the testamentary provisions for the benefit of Mary. This contract was approved by the probate court, which in effect ordered the money held by the guardian *Page 670
as security in lieu of the lien against the real estate created by the will. Frances Hruska, surviving widow of Joseph, died in 1932. Consequently, under the will, whatever was left of this fund originally amounting to $10,000, upon the death of Mary, would go to Harold.
Two days after the order was made appointing Fahey as successor-guardian, Harold and one William F. Hruska, a cousin of Harold and Mary, filed an application to set aside the appointment of Fahey, principally on the ground that no notice was given of the application for his appointment. This application prayed for the appointment of the cousin, William F. Hruska, one of the two applicants, as successor-guardian in place of Fahey. The ward, Mary, was confined in the State Hospital for the Insane at Independence. Due and legal notice of the application to set aside the order appointing Fahey was served on the incompetent Mary and a guardian ad litem was appointed for her who made answer. The application was heard and overruled by the court in January, 1941. Applicants have appealed.
[1] The principal point relied upon by appellants is that the order appointing Fahey as successor-guardian is a nullity because made without notice to the ward or to any other party.
It must be conceded that upon original appointment of either a temporary or permanent guardian for a person of unsound mind, notice to the alleged incompetent is necessary. Sections 12619, 12620, Code, 1939. But notice would be necessary even though the statute did not specifically provide therefor. McKinstry v. Dewey, 192 Iowa 753, 185 N.W. 565, 23 A.L.R. 587, and cases cited; 25 Am. Jur. 30, section 40; Annotation 23 A.L.R. 594. Statutes authorizing such appointment without notice have been held invalid as in violation of due process. Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206, 32 C.J. 655, section 256. It may at once be conceded, therefore, that if this were an original appointment it would be a nullity because made without notice.
No statute requires notice for the appointment of a successor-guardian. But appellants argue that notice is required in order to supply due process and by fundamental rules of the *Page 671
common law. It seems to us, however, that the appointment of a successor-guardian presents quite a different situation than the original appointment upon an adjudication of incompetency. It is at the time of the original adjudication that the status of the ward is fixed and he is deprived of the control of his property. We hold that the appointment of Fahey as successor-guardian was not void even though made without notice.
The only Iowa case dealing with the necessity of notice for the appointment of a successor-guardian is Salomon v. Newby, 210 Iowa 1023,228 N.W. 661. There a previous guardian was discharged and another substituted for him without notice to the incompetent, although the ward knew of and acquiesced in the substitution. The court says (page 1030 of 210 Iowa, page 664 of 228 N.W.):
"It is sufficient to state, however, that the probate court had jurisdiction of the subject-matter of the guardianship proceeding. The orders of which complaint is made were not invalid and void and without jurisdiction."
In Chaloner v. Sherman, 242 U.S. 455, 461, 37 S. Ct. 136, 138,61 L. Ed. 427, 436, we find the following:
"The order of November 19, 1901, accepting Butler's resignation as committee and appointing defendant in his place, was made by the court without notice either to the plaintiff [incompetent] or to the other parties to the original proceedings. But this was a mere substitution of one officer of the court for another. No substantial right of the plaintiff was affected. Due process does not require notice and opportunity to be heard in such a proceeding; and the irregularity, if any, was not such as to prevent the court from exercising jurisdiction to determine the matter."
Ekblad v. Linderholm, 102 Kan. 3, 169 P. 555, and Johnson v. Gustafson, 96 Kan. 630, 152 P. 621, are cases similar to the instant case, where the court holds that a successor-guardian for an incompetent who has previously been adjudged of unsound mind may be appointed without further notice. See also as supporting the conclusion herein reached Foran v. Healy, *Page 672 73 Kan. 633, 85 P. 751, 86 P. 470; Heckman v. Adams,50 Ohio State 305, 34 N.E. 155; Swope's Admr. v. Frazier, 18 Ky. Law Rep. 649, 37 S.W. 495; Brown v. F. D. Co., Tex. Civ. App.,76 S.W. 944; Crosbie v. Brewer, 68 Okla. 16, 158 P. 388, 173 P. 441; In re Chambers, 46 Okla. 139, 148 P. 148; 32 C.J. 655, section 256.
There is considerable authority holding that where one has been regularly adjudged of unsound mind, pursuant to notice and hearing, no additional notice to the incompetent is necessary to the appointment of a guardian unless, of course, it be required by statute. Logue v. Fenning, 29 App. D.C. 519, 527; Oster v. Meyer, 113 Ky. 181, 67 S.W. 851, 852, 23 Ky. Law Rep. 2455.
The only authorities cited by appellants which they claim to be directly in point are Allis v. Morton, 4 Gray 63, 70 Mass. 63
(1855), and Willworth v. Leonard, 156 Mass. 277, 31 N.E. 299
(1892). These decisions seem to be largely based upon a construction of the Massachusetts statutes which were held to require notice. In connection with these two cases, see Brigham v. Boston Albany R.R. Co., 102 Mass. 14.
Appellants also argue that Sikora was not only guardian of the incompetent but was trustee of the $10,320 fund for the benefit of Harold and that before a successor could be appointed notice must have been given to Harold. This contention is without merit. We think the relation between Mary's guardian and Harold was not that of trustee and beneficiary. This fund in the first instance came into the hands of the guardian as such from the executor of the estate of Joseph Hruska and was security for the benefit of Mary. If the incompetent should regain her mentality, this fund would go to her. The mere fact that the money would ultimately go to Harold upon the death of Mary, provided she does not recover her sanity, is insufficient to constitute Harold a beneficiary of the fund.
[2] Appellants contend that the appointment of Fahey is a nullity because no guardian ad litem was appointed for the incompetent in connection therewith. We think, however, after the original adjudication of incompetency and the appointment of a guardian has been made upon proper notice, appointment *Page 673
of a guardian ad litem and hearing, the matter of substitution of guardians does not require the appointment of a guardian ad litem. In any event, the failure to appoint a guardian ad litem here is not more than a mere irregularity at most. See Jones v. Schaffner, 193 Iowa 1262, 1275, 188 N.W. 787.
[3] The final contention of appellants is that the court erred in refusing to appoint William F. Hruska as guardian in lieu of Fahey. Our conclusion as to the validity of the order appointing Fahey perhaps makes it unnecessary for us to consider this contention.
The matter of who is to act as guardian rests very largely in the sound discretion of the court making the appointment. 25 Am.Jur. 23, section 26; In re Guardianship of Waite, 190 Iowa 182,180 N.W. 159; In re Guardianship of O'Connell, 102 Iowa 355,71 N.W. 211; Lawrence v. Thomas, 84 Iowa 362, 51 N.W. 11. Without discussing the matter in detail, we think upon a careful consideration of the record that no abuse of discretion has been shown by the refusal of the trial court to appoint William F. Hruska. The record shows the trial judge was familiar with this guardianship. He saw and heard the parties and the witnesses and appears to have given the matter careful consideration. We are not disposed to interfere.
We are unable to see how the incompetent has been deprived of any substantial right by the order appealed from. She was confined in the State Hospital for the Insane. No claim is made that she is of such mentality that notice to her would have accomplished any good except as others might perhaps have acted for her. Two days after the order appointing Fahey was made, the application to set the same aside was filed. Due and legal notice was served upon the incompetent of this application. A guardian ad litem was appointed for her who filed answer and full hearing and trial upon the merits was had. There can be no claim but what the court properly acquired jurisdiction over the incompetent in connection with this hearing.
The court could and presumably would have set aside the previous appointment of Fahey and appointed William F. Hruska in his place if the best interests of the guardianship had warranted such action. The order overruling the application *Page 674
in effect amounts to a ratification of the order appointing Fahey.
The judgment is affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433603/ | Ross V. Hawk had an undivided one-fourth interest in an estate. In the estate was a tract of 280 acres, apparently unincumbered, and 40 acres incumbered with a life estate to Della Hawk. The land is in Dallas County. Hawk wanted Jones to 1. INSURANCE: buy his interest. Hawk had been under apparent extent of guardianship, as a spendthrift. Jones told Hawk loss and that he, Hawk, could not convey any title. Hawk liability said he was going to be released from the of insurer: guardianship. Jones and Hawk, on September 21, title 1926, signed a paper by which Hawk agreed to insurance: sell his interest in the land for $2,000, and by refusal by which Jones accepted the offer, "upon the insurer to condition that a guaranteed title policy may be defend: secured upon this undivided one-quarter effect. interest." Jones made application to defendant for such a policy. The application was referred to defendant's examiner of titles and investigator of values, McDaniel. McDaniel examined the abstract. His attention was called to the guardianship proceedings. Hawk, with his attorney and a friend, Beyers, met with Jones and McDaniel in defendant's office in Des Moines. McDaniel asked Hawk's attorney what he knew about the guardianship. The attorney explained it at length, stating, in substance, that there was no decision as to Hawk's incompetency; that the guardianship "was merely an arrangement whereby Hawk could not trade this property himself, and it would have to be administered through the guardian." McDaniel referred to "some additional interest in this estate, — that is, a personal interest that might be coming to Mr. Hawk," — which the attorney also explained. McDaniel then drew a deed from Hawk to Jones for his undivided *Page 63
one-fourth interest, and (it having been signed by Hawk) took Hawk's acknowledgment to the deed and to an assignment to Jones of all Hawk's interest in the estate, real and personal, including rents. According to the attorney's testimony, which McDaniel seems to acknowledge to be correct, after signing the deed and assignment, Hawk asked Jones for money. Jones had a cashier's check for $2,000, which he gave to McDaniel, and which he said he didn't want to deliver until he got the policy. McDaniel said he couldn't deliver the policy until he had filed the papers and made examination of the records in Dallas County for further entries. Hawk said he was very anxious to complete the deal, because he was leaving town that evening, and going with Beyers, whose sister he was to marry, to Missouri, to operate a restaurant. It was arranged that Hawk's attorney was to accompany Jones and McDaniel to the Dallas County courthouse, "for the purpose of carrying this check over and back, and then, when the policy was issued, to deliver to Mr. Hawk." Arrangement was made with the bank to have a teller present after closing hours, to cash the check on the return of the parties from the courthouse.
"Jones told Mr. Hawk that it would take the rest of the afternoon to get back, and if he wanted to change his mind about the deal, to * * * do so upon his return; and I [Hawk's attorney] told Mr. Hawk at the time that, if * * * he would wait, * * * he would get more money out of it; but Hawk said * * * he wanted this money, * * * and that he was satisfied * * *"
The parties went to the courthouse accordingly. After McDaniel filed the deed and examined the records, the title insurance bond or policy sued on and the check were delivered. By this bond the defendant guaranteed Jones against loss not exceeding $12,000 "which assured shall sustain by reason of any defect or defects of title affecting the premises described * * * No loss or damage shall be payable hereunder except and until as ascertained in the manner and in the amount as provided in the annexed conditions and upon compliance by the assured with the stipulations of said conditions." By the conditions of the bond, Section 1, the Southern Surety Company "will at its own cost defend the assured in all actions or proceedings founded on a claim of title or incumbrance prior *Page 64
in date to this bond and not excepted therein. 2. No claim shall arise under this bond except under Section 1 of these conditions and except also in the following cases: (I) Where there has been a final determination in a court of competent jurisdiction under which the assured may be dispossessed or evicted from the premises covered by the bond, or from some part or undivided share or interest therein. * * * In case any action or proceeding described in Section 1 of these conditions is commenced * * * the object and effect of which shall or may be to impugn, attack or call in question the validity of the title hereby guaranteed, as guaranteed * * * it shall be the duty of the assured to at once notify the company thereof in writing and to secure to it the right to maintain or defend such action or proceeding and to give all reasonable assistance therein and to permit it to use, at its option, the name of the assured * * * 5. Nothing contained in this bond shall be construed as a guarantee against defects or incumbrances arising after the date hereof. Defects, liens and incumbrances suffered by the assured, or for which the assured was liable or responsible at the date of the policy, are excepted from this insurance. * * * 9. Any untrue statement made by the assured or his agent affecting the subject-matter of this bond, or any suppression of any material fact, or any untrue answer by the assured or his agent to material inquiries before the issuing of the bond shall void the bond * * *"
These papers are dated October 1, 1926. At the January term, 1927, of the Dallas district court, Clarence W. Hawk, as guardian of Ross V. Hawk, incompetent, filed petition in equity against Jones, alleging that he was the guardian of the property of Ross V. Hawk, incompetent.
Paragraph 4 of this petition alleged: That, on or about the first day of October, 1926, Jones obtained a purported assignment of all of the interest of Ross V. Hawk in the real estate in question and personal property; that the assignment "was obtained for a grossly and unconscionably inadequate price, having paid for said property $2,000, which was grossly inadequate price for said property, as the real estate alone would be worth at least ten or twelve ($10,000 or $12,000) thousand dollars, besides personal property, which would be worth at least $1,500, and that the same is without any validity, for the reason that *Page 65
the said Ross V. Hawk at that time was mentally incompetent to enter into a legal and binding contract, which fact was or should have been known to the defendant at said time, and that the same is wholly void and illegal, and should be set aside."
In the next paragraph of this petition the guardian alleged connivance and conspiracy between Jones and Beyers and Beyers's wife and false representations to wrongfully induce Hawk to part with his property. Notice of the suit was immediately communicated to the Southern Surety Company. The company wrote to Jones, calling his "attention to the fact that if it should develop upon the trial of said cause that any defect in the title insured against under said policy is brought about by any act or conduct on the part of the assured in said policy, that the Southern Surety Company reserves the right to disclaim all liability under said policy and in appearing and defending in said cause, it waives none of its right by reason thereof and reserves to itself all defenses it now has, or may hereafter have, in connection with any purported liability growing out of the matters covered by said policy of insurance. In assuming the defense of this action, it is only under the conditions herein stated and permission is hereby given to you to employ such attorneys as you may desire to assist in the defense, but the same to be at your own expense." Jones referred this letter to his attorneys, who wrote defendant that there was nothing in the policy which gave defendant the right to impose conditions on making the defense. This letter stated:
"It is obvious that you may not consistently with your obligations as an insurer assume the defense of a suit and at the same time reserve the right to disclaim liability, for the simple reason that you thus place yourself in a position where your own interest is nor [or] may be antagonistic to that of the assured: — even to the extent of enabling you in this suit to establish a defense for yourself to a suit that may afterwards be brought upon the bond."
The letter stated that Jones could not consent to the reservation, and tendered to the company the defense of the suit, as one founded upon a claim prior in date to and not excepted in the bond. To this the defendant's attorneys replied that *Page 66
defendant would refuse to defend except in strict accordance with former letter.
"* * * that if any fraud or any other undue advantage was taken by Mr. Jones or exercised by him in securing title to the land or property in question, this Company was not advised of such fact, neither is it yet advised, except through the alleged claims as set forth in plaintiff's petition. * * * We will assume that Mr. Jones will employ his own attorneys and defend said case accordingly * * *"
Jones's attorneys, in a letter in response, stated that they assumed the defense, and would call upon the company to hold Jones harmless from any loss sustained from the attack on his title, and all expense of attorneys' fees. Defendant, in a following letter, asserted, without qualification, that, under the terms of the policy, considering the allegations of the petition and amendment in the cancellation suit, there was no obligation on defendant's part to defend Jones in said action, nor any liability under the terms of said policy to reimburse him for any damages. On June 21, 1927, a stipulation of settlement of the Hawk case was made, reciting the allegations of Hawk's petition of the invalidity of the deed and assignment "because of the incompetency of the said Ross V. Hawk and fraud in connection with the execution of said instruments * * * and whereas answer has been filed expressly denying the allegations of incompetency and fraud and alleging the execution of said instruments to be free from any fraud or influence on the part of the defendant DeWitt Jones, and whereas the parties hereto have, for various reasons, concluded to compromise and settle this cause, without thereby adjudicating and without admitting by defendants the correctness of the allegations of incompetency and fraud as made in said petition, but expressly avoiding the determination thereof:
"Now, therefore, it is agreed by the parties, subject to the approval of the court:
"(1) The plaintiff shall forthwith pay to defendant DeWitt Jones the sum of $2,200 in full compromise and settlement hereof;
"(2) That the court may by its decree cancel and annul the said deed and assignment * * *" *Page 67
Decree was thereupon entered in the cancellation case, reciting "that, by stipulation of the parties, this action has been compromised and settled by the agreement of Clarence W. Hawk, guardian, to pay to DeWitt Jones the sum of $2,200, settlement hereof not to operate, however, as an adjudication as to the allegations contained in plaintiff's petition; and the court expressly refrains from determining the issues therein as to fraud and incompetency, as alleged." The decree empowered the guardian to pay Jones $2,200, canceled the deed and assignment, and quieted title in Ross V. Hawk.
I. Defendant urges that the decree in the cancellation suit isres adjudicata; that the defect in the title is not one insured against, because the alleged ground for cancellation of the deed was: "(1) Incompetency on the part of Hawk, 2. JUDGMENT: known to Jones, who then paid an unconscionable conclusive- price for the property. (2) Fraud on Jones's ness of ad- part." The stipulation and decree, so far as judication: this point is concerned, amount to no more than matters a compromise of the pending suit. Nothing was concluded: adjudicated, no estoppel effected. The question questions or whether Hawk was in fact incompetent, or was issues overreached or defrauded, was expressly withheld specially from adjudication. It was competent for the withheld: parties by agreement to withhold those questions effect. from the adjudication. The decree is not resadjudicata nor an estoppel as to matters so withheld. B., C.R. M.R. Co. v. County of Benton, 56 Iowa 89; Hargrave v. City ofKeokuk, 208 Iowa 559; Parkinson v. Fleming, 208 Iowa 345; 34 Corpus Juris 797, 890, 896, 931.
II. Plaintiff set up breach of two of defendant's policy obligations: First, the covenant to defend at defendant's cost the action attacking his title, and, second, the guaranty against damage sustained by reason of defect in title. Defendant contends that it had the right to refuse to defend, because the grounds of recovery alleged in the cancellation suit were within the exception. Defendant urges that, in an executed transaction, mere incompetency of the grantor, not known to the grantee and not accompanied with unconscionable conduct on his part, is not ground for cancellation; that the petition in the cancellation suit was founded upon fraud; and that the action was, therefore, not one which the insurer was bound to defend. *Page 68
This was not the position first taken by the defendant, which was "that, if it should develop upon the trial of said cause that any defect in the title insured against under said policy is brought about by any act or conduct on the part of the assured," defendant reserves the right to disclaim liability. Defendant did not originally disclaim liability, and did not claim that the policy did not require it to defend the cancellation suit. It impliedly admitted the contrary. Defendant argues that if, when notified of the suit, it had proceeded to defend, without reservation, it would have estopped itself from setting up, in a later action on the policy, the defense that the defect in title was not one insured against; that there were open to defendant three courses: (1) to deny liability, and leave Jones to make his own defense, (2) to concede liability, and assume the defense, (3) to undertake the defense, with reservation of its right to claim exemption from liability if a defect in the title were established, but of such character as not to be within the liability assumed by the policy.
As has been noted, the policy provides that "defects, liens and incumbrances suffered by the assured for which the assured was liable or responsible at the date of the policy are excepted from this insurance." Defendant's assertion of 3. INSURANCE: non-liability because of alleged fraud was, actions on therefore, based upon an exception "from this policies: insurance," or on misrepresentations or title concealment by the assured in obtaining the insurance: policy. The burden of allegation and proof of burden of fraud, or that the title was within the proof. exception, rested upon defendant. Robinson v.Hawkeye Com. Men's Assn., 186 Iowa 759; Ward v. Interstate Bus.Men's Acc. Assn., 185 Iowa 674; Vernon v. Iowa State Trav. Men'sAssn., 158 Iowa 597. It was not established in the cancellation suit, and is not pleaded or proven in this suit, that the defect in title was within the exception, or that Jones was guilty of misrepresentation or concealment in his application or in obtaining the policy. Such a state of facts, for the purpose of this case, is nonexistent. It must be assumed that the defect in the title was not within the exception, and that Jones did not make any untrue statement to the company, or suppress any material fact. Defendant guaranteed or insured Jones against loss not exceeding $12,000 from any defect (with certain exceptions) *Page 69
of title affecting the premises described. As between defendant and Jones, defendant was, by virtue of this guaranty, bound to know whether or not there was a defect in the title not excepted from the policy. If a defect has been established, the defect, as has been shown, for the purpose of this case is not within the exception. It was, therefore, a defect insured against, and defendant was bound to defend the action founded upon it. Defendant refused to defend the cancellation suit. Thereby defendant necessarily waived its right, as well as violated its duty, to defend. By so violating its duty and waiving its right to defend, defendant authorized the insured to conduct the defense in good faith, and thereunder in good faith to make such a settlement as ordinary or reasonable prudence and caution might dictate to be advisable, and waived the right to demand prosecution of the action to final judgment. Settlement made by the insured in good faith, in circumstances not raising an inference of imprudence, is presumptive evidence of liability and of the amount thereof. Fullerton v. United States Cas. Co.,184 Iowa 219; Farmers Handy Wagon Co. v. Casualty Co., 184 Iowa 773;Butler Bros. v. American Fid. Co., 120 Minn. 157 (139 N.W. 355);St. Louis Dressed Beef P. Co. v. Maryland Cas. Co.,201 U.S. 173; Kansas City, M. B.R. Co. v. Southern Ry. News Co.,151 Mo. 373 (52 S.W. 205); Interstate Cas. Co. v. Wallins Creek Coal Co.,164 Ky. 778 (176 S.W. 217). The settlement is not conclusive of the good faith or reasonable prudence thereof. The question whether the settlement was made and the decree thereon entered in good faith and in the exercise of reasonable or ordinary prudence was one of fact, to be determined by the attendant circumstances. The court instructed the jury that, before Jones could recover, the burden was upon him to establish all the following propositions, namely: (1) That plaintiff made demand on defendant to defend the cancellation suit; (2) that defendant refused to defend that suit; (3) that the settlement was a reasonable one, and made in good faith; (4) that plaintiff has sustained damage in some sum. The court charged that, if plaintiff had established all these propositions, the verdict should be for plaintiff; otherwise for defendant. The court further told the jury, in effect, that the settlement must have been a reasonable one, and made in good faith, and that the term "good faith," as used in the instructions, meant the *Page 70
exercise of that caution and diligence which an honest man of ordinary prudence would exercise under the same or similar circumstances. The verdict in favor of the plaintiff, therefore, establishes that the settlement was made in good faith and in the exercise of ordinary caution and prudence. It follows that the decree in the cancellation suit establishes the fact that the title was defective. As the decree in that suit does not, of its own virtue, establish that the defect on which it proceeded was within the exception, and as defendant has not pleaded or proved that the defect is one excepted from the policy, and has not pleaded or proved misrepresentation, concealment, or fraud, the defect, on this record, must be held to be one insured against. It must be held, therefore, that defendant broke its covenant to defend, and subjected itself to liability for the reasonable value of the services of attorneys reasonably performed in the conduct of the defense. Defendant might, as it now argues, choose to defend or not to defend; but its choice not to defend would not relieve it of its contract liability to defend or of its contract liability for defect of title insured against. On this record, Jones was within his rights in demanding that defendant defend the cancellation suit as one founded on a claim against which defendant agreed to defend. While defendant offered Jones permission to employ attorneys to assist in the defense, it did not offer to make the defense against the alleged ground of liability for which it was responsible and to leave to Jones the defense against asserted ground of liability for which it was not responsible. In its last letter, defendant said that there was no obligation to defend, "nor any liability under the terms of such policy to reimburse him [Jones] for any damages or alleged damages he may suffer or sustain in connection with or as the result of said suit." If defendant had offered to defend against alleged defects for which it was liable, and had left to Jones the defense for alleged defects excepted from the policy, instead of peremptorily denying liability and refusing to defend, it may be that it would thereby have adopted a proper course of procedure. See Fidelity Cas. Co. v. Stewart Dry Goods Co.,208 Ky. 429 (271 S.W. 444). But as the case stands here, there was a defect in the title for which defendant was responsible, and against which it unjustifiably refused to defend.
Defendant objects that the attorneys' fees which the plaintiff *Page 71
incurred in making the defense and the right to recover which was submitted to the jury are not shown to have been paid. The attorneys' fees incurred, however, were a part 4. INSURANCE: of plaintiff's damage for defendant's breach of extent of contract. Under the contract, defendant agreed loss and to defend, and thereby save plaintiff the cost liability of of defending; not merely to indemnify plaintiff insurer: against liability for attorneys' fees. Defendant wrongful became liable for the attorneys' fees as a part refusal to of plaintiff's damage, and it was not necessary defend: to show that they had been paid. 17 Corpus Juris attorney 811. Defendant is, therefore, liable to pay the fees. damages on account of the defect in title, and the attorneys' fees as damages for refusal to defend.
Defendant contends that there is no competent evidence of the value of the Dallas County land. Objections were 5. TRIAL: made to the testimony on the subject of values, reception of and while assigned as error, are not argued. The evidence: evidence must be regarded as properly in the motion to record. A witness testified that the value of strike: the 280 acres not incumbered by life estate was evidence $175 per acre, and that the value of the 40 admissible acres incumbered by the life estate was $7,600. in part. It was for the jury to determine what weight should be given to this evidence.
It is also argued that the amount testified to as the value of the attorneys' services included services performed before the breach of the covenant to defend. The member of the firm of plaintiff's attorneys who testified to such value stated, in direct examination, that the reasonable value of his services as attorney in the defense of Jones in the cancellation suit was $750. On cross-examination, he testified to the time that he spent, and that:
"In addition to that, there was — I know it included a half day of Mr. Evans' time charged, conference with Southern Surety Company, preliminary to the correspondence that has been offered here, following your letter of December thirtieth. Q. The service of Mr. Evans that you refer to, included in the estimate of value of services rendered to Mr. Jones, that you have set at $750? A. Yes."
Defendant then moved to strike the testimony, for the reason *Page 72
that it appeared that the estimate was based upon and included services for which the Southern Surety Company could not be liable. This testimony on cross-examination is too ambiguous and indefinite to require the court to strike out all the evidence of the witness upon the value of the services. The ruling was within the proper discretion of the court.
Defendant argues that the instruction was erroneous by which the court told the jury that "good faith," as the term was used in the instructions, meant the exercise of that caution and diligence which an honest man of ordinary prudence would exercise under the same or similar circumstances. We are of the opinion that the defendant has no cause for complaint of this instruction.
Assignments of error not argued are not considered. —Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, KINDIG, and WAGNER, JJ., concur.
EVANS, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433605/ | Christian Nelson died June 14, 1921. His will was duly admitted to probate. Subject to a life estate to the surviving widow, it provided, in Item III thereof:
"I give, devise and bequeath all of my real property of which I may die seized, from the death of my said wife, Christina Nelson, to my children in the following shares: to my daughter, Lizzie Dresher, one share; to my daughter, Christina Heckroth, one share; to the children of my deceased daughter, Sophie Gonnerman, one share; to my son, Frank Nelson, one share; to my daughter, Fannie Grimm, one share; to my daughter, Annie *Page 886
Gonnerman, one share; to my son, Clifford Nelson, one share; to my daughter, Alta Klink, one share; to my son Earl Nelson, one share; to my daughter, Pearl Nelson, one share; to my daughter, Esther Seebach, one share; to my daughter, Dortha Nelson, one share. I further direct that in order to make a fair and equal distribution of the real estate, it shall be sold."
Item VI named testator's son Clifford Nelson executor and authorized him to make sale of the real estate. Testator died the owner of the Northwest Quarter of Section 22 and the Southwest Quarter of Section 15, all in Township 85, Range 13, West of the Fifth P.M., Tama County, Iowa. The widow elected to accept the provisions of the will and is now deceased.
On November 24, 1922, the appellant Alta Klink, "heir at law of Christian Nelson, Dec'd," and her husband, George Klink, borrowed $6,500 from the Dysart Savings Bank and made and delivered to said bank their note for $6,500, due November 24, 1925. To secure the same they executed a mortgage on the land above described, subject to the life estate of Christina Nelson.
On December 17, 1923, said note and mortgage were assigned by the bank to Amelia Fischer, appellee. She thereafter brought suit on the note and mortgage. Decree of foreclosure was entered therein and at sheriff's sale appellee bid in the amount of the judgment and costs and satisfied the judgment. On April 21, 1939, appellee filed petition in the present case, setting out the facts heretofore referred to, the will, and the note and mortgage, alleging that appellants agreed with Dysart Savings Bank to secure payment of the loan by the encumbrance of Alta Klink's right and interest to the estate, which was done, and that the mortgage was accepted by the bank with the understanding and belief that the same encumbered and assigned as security for said indebtedness her right, title, and interest in the estate of Christian Nelson. The petition recites the fact of foreclosure, alleges a mutual mistake, claims an equitable lien upon the distributive share of Alta Klink, being an undivided one twelfth of the proceeds of the sale of said land by the executor upon the termination of the life estate of Christina Nelson, and asks vacation of the former decree of foreclosure *Page 887
and of the execution sale and sheriff's deed and satisfaction and discharge of personal judgment.
To this petition there was answer, and motion to dismiss, which was overruled. Trial was had to the court and decree entered finding that the mortgage equitably assigned to Dysart Savings Bank all of Alta Klink's right, title, and interest to the real estate described and in and to any distributive share arising out of the sale thereof by Clifford Nelson, executor; that all rights or interests of Alta Klink are now lodged in Amelia Fischer; and directing Clifford Nelson, as executor of the estate of Christian Nelson, to account for and pay over to Amelia Fischer all the proceeds of sale arising out of the real estate described that Alta Klink might at any time have claimed therein. Defendants Alta Klink and George Klink appeal. After the appeal was perfected, by stipulation the share of Alta Klink in the proceeds realized from the sale of the three hundred twenty acres was deposited with the clerk of the district court of Tama county to be paid over to the person finally found to be entitled thereto.
In the petition filed in this case appellee asked reformation of the instruments, but in argument withdrew any such claim, alleging that there is no necessity of reformation and confining her claim for relief to such rights as she may be entitled to arising out of the note and mortgage as written and the facts and circumstances in connection therewith under applicable equitable principles.
We will first note the propositions submitted by appellants as grounds for reversal. The first is a general averment that the trial court erred on the ground that the evidence and the record show that appellee received everything to which she was entitled and is not entitled to equitable relief. We understand this to mean that the land, and not the proceeds, was the only security for the note and there was no equitable lien upon the share of Alta Klink in her father's estate. We shall consider this matter hereafter. Appellants cite various portions of the petition, alleging that the evidence does not sustain appellee's allegations. We think the case hinges upon the interpretation to be given to the note and mortgage.
[1] I. In the second division of their argument appellants *Page 888
urge that the endorsement of the note and the assignment of the mortgage to appellee did not transfer or assign to her the cause of action here sought to be maintained. With this we disagree. The transfer of the note and mortgage, before due, carried with it the right to collect, and such right to collect was a right to all that the mortgage represented. Various cases are cited by appellants. Puffer v. Welch, 144 Wis. 506, 129 N.W. 525, Ann. Cas. 1912A, 1120, was an action for deceit, and it was held that right to recover did not pass to assignee of an option as an incident. One of the reasons given by the court was that under the statute in force at the time a right of action for damages did not survive and hence was not assignable. Also cited are Kenedy v. Benson, N.D., Iowa, 54 F. 836; Schwartz v. Durham,52 Ariz. 256, 80 P.2d 453; Robinson v. Saxon Mills, 124 S.C. 415,117 S.E. 424; and Mullinax v. Lowry, 140 Mo. App. 42, 124 S.W. 572. All these are cases involving fraud and none has application here. Like any other assignment of mortgage or contract, the assignment here to appellee carried with it every right pertaining to the instrument assigned. Under our law all choses in action are assignable.
[2] II. Appellants next urge that the record in this case fails to disclose any grounds upon which appellee can sustain the cause of action pleaded by her. This argument is based upon the claim that appellee has never had any lien, by contract or otherwise, on the personal property or money in the estate belonging to Alta Klink. Cited by appellants are Beaver v. Ross, 140 Iowa 154, 118 N.W. 287, 20 L.R.A., N.S., 65, 17 Ann. Cas. 640; and Hunter v. Citizens Sav. Tr. Co., 157 Iowa 168, 175, 138 N.W. 475, 478, Ann. Cas. 1915C, 1019. The latter case is hardly applicable, and the opinion states:
"Our decision only goes to the proposition that a judgment creditor acquires no lien or claim upon the land left by the testator which can be asserted or enforced against it in the hands of one to whom it has been conveyed by the executors in the exercise of power conferred upon them by the will. Beyond that we need not go."
We find in this case little application to the facts in the case at bar. *Page 889
The fourth proposition of appellants is that there was no assignment by appellants to appellee of the proceeds of the sale of the land. This we will consider in a later division.
In substance, all propositions of appellants are based upon a denial of any claim of an equitable assignment, and they insist the mortgage referred only to the land and not to any proceeds thereof.
[3] III. Neither party disputes that the will of Christian Nelson worked an equitable conversion of the real estate into personalty. Under the rule many times announced by this court, equitable conversion took place upon the death of the testator. Beaver v. Ross, supra; Peters v. Thoning, 231 Iowa 755,2 N.W.2d 76. Many other cases support this rule and it has invariably been so held in Iowa.
Appellee cites Beaver v. Ross, supra, in support of her argument that a beneficiary under a will such as the one in the case at bar, who is entitled to a distribution arising out of the sale of real estate, has an interest subject to assignment, and that such assignment can be informal and it is not necessary that such assignment be in writing. This is the rule. The only question is, Do the facts herein constitute such an equitable assignment? Any words or transactions which show an intention on the one side to assign and the intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment. 5 C.J. 909, 910, section 78 [6 C.J.S. 1101, section 58]; County of Des Moines v. Hinkley
Norris, 62 Iowa 637, 17 N.W. 915. Alta Klink, being entitled to one twelfth of the proceeds of the sale of the land when made, had such an interest as was subject to assignment. Dating from the death of Christian Nelson, the land had all the attributes of personal property, and except in the case of reconversion by agreement of all the heirs, the interest of each heir would be only an interest in the proceeds. Not only did Alta Klink have the right to assign, but such an assignment might be verbal and informal and there need be no express assignment of such interest; and, following Beaver v. Ross, supra, there might be an equitable assignment by the legatee, Alta Klink, of her interest by mortgage or otherwise.
Was the instrument executed by Alta Klink and her husband *Page 890
such an instrument as transferred to the assignee thereof her one-twelfth interest in the proceeds of the sale of the land directed by the will? It may be noted that the mortgage deed describes Alta Klink, the mortgagor, as heir at law of ChristianNelson, deceased. The mortgage contains the usual habendum clause and a warranty of title. Either (1) it was an idle and useless instrument, which neither party thereto intended to be of any validity or value; or (2) it was something of value intended to be a security for the loan. We think there can be no question as to the intention of the parties. Taking into consideration that the land described was the source from which the legacy of Alta Klink was to be derived, it is fair to assume that, in executing the instrument as she did, she intended to transfer to the bank her right under the will in such land as security for the loan and that the bank so understood and accepted her interest in the land, or the fund to be derived therefrom, as such security. No other construction is reasonable.
A construction that the execution of the note and mortgage gave no right to the bank to participate in the proceeds arising from the sale of the land would result in making the mortgage worthless and void. We have a right to consider that the parties acted in good faith and the mortgagors intended to give, as mortgage intended to receive, something substantial and of value. This is the only equitable construction that can be placed upon the transaction. Courts are loath to construe such transactions in a manner as to cause the result to be unfair, unreasonable, and unjust. See Johnston v. Johnston, 182 Iowa 481, 166 N.W. 65, cited by appellee; Saunders v. Saunders, 115 Iowa 275, 88 N.W. 329; and In re Estate of Wilson, 218 Iowa 368, 371, 255 N.W. 489, 491, wherein it is stated, in relation to a contract to convey an heir's interest in personal property:
"The only personalty of the estate in which he was interested on the date of the assignment was the proceeds of the sale of the real estate. The parties must have intended to do something for the benefit of one or the other to the transaction."
In that case the personal property had been exhausted and the court construed the contract to carry with it the proceeds derived from the sale of the real estate by the administrator. *Page 891
In re Estate of Matthews, 234 Iowa 188, 192, 12 N.W. 162, 164, cites the Saunders case, supra, and states:
"It is to be presumed that a valid instrument was intended to be made."
This court has never directly passed upon the proposition here presented, under similar facts, where the question of equitable assignment was in issue. In Ihle v. Ihle, 222 Iowa 1086, 270 N.W. 452, a case of equitable conversion, there was some reference to the question. There one of the heirs had given a mortgage on his one-sixth interest in certain land. The mortgage was given as additional security to a chattel mortgage and assigned to a bank. The trial court decreed appellant's mortgage created no lien upon the real estate therein described, but made a finding that, subject to the right of retainer by the executor, the mortgage created upon the heir's share an equitable lien in favor of the bank, and directed payment to the bank of his share after deductions by the executors. Neither party appealed from this ruling, however, and the only question arising on appeal was one of priority.
In a general way, Beaver v. Ross, supra, holds that an equitable assignment may be created by mortgage. However, the question has arisen in courts of other jurisdictions. The rule that an assignment ordinarily carries with it all rights, remedies, and benefits which are incidental to the thing assigned, except those which are personal to the assignor and for his benefit only, has been affirmed many times and it has been held that an assignment of property carries with it a right to the proceeds thereof. 6 C.J.S. 1142, section 85.
In Bailey v. Allegheny Nat. Bk., 104 Pa. 425, 435, it is held that a mortgage executed by one who was only entitled to a share in proceeds of land itself was treated as a provisional election on his part to take the land in lieu of the money, contingent upon agreement of the other heirs uniting therein, and an equitable assignment in the meantime of the interest of the lien as personalty, which, after partition, attached to the purpart allotted to the mortgagor in severalty. The opinion states:
"As between the parties to the mortgage, any other result would be grossly unjust and inequitable. While they may have *Page 892
been mistaken as to the nature of Mrs. Mackey's interest under the will, it was undoubtedly their intention to pledge it, whatever it might be, as security for the loan; and hence, as between themselves, the mortgage was, at least, an equitable assignment of that interest."
In Klock Ould v. Buell, 56 Barb. (N.Y.) 398, an assignment of all the right, title, and interest in the within-named land was held to assign the proceeds of the sale of the land.
In Shephard v. Clark, 38 Ill. App. 66, which was a case of equitable conversion directing sale at the conclusion of a life estate, it was held that a quitclaim deed given by a legatee, though purporting to convey an interest in land, if intended by the parties to be an assignment of such property right, will, in equity, operate as such. The court held that the intention might have been by the terms of the deed to pass the grantor's interest in the proceeds of the land. Citing Ridgeway v. Underwood,67 Ill. 419.
While not directly in point, for the rule that the assignment of a demand operates as an assignment of all incidents to the demand, see Citizens Nat. Bk. v. Loomis, 100 Iowa 266, 69 N.W. 443, 62 Am. St. Rep. 571; and Everett v. Central Iowa Ry. Co.,73 Iowa 442, 35 N.W. 609.
We think that a court of equity, in a situation such as is shown by the evidence here, should determine that under the facts the instrument in evidence be given the construction of an equitable assignment. Under any other construction the mortgage would be a nullity. No specific intent in words is necessary other than the fact that the instrument itself evidences the intent.
[4] IV. Appellee cites various maxims of equity which we think are applicable to the situation here:
"The maxim that equity imputes an intention to fulfill an obligation, means that where an obligation rests upon one to perform an act and he attains the means of performing it, he will be presumed to intend to perform through such means, and usually will not be permitted to show the contrary, equity giving effect to the presumed intent. It has been applied in connection with the maxim that equity regards as done that which ought *Page 893
to be done." 21 C.J. 206, section 206 [30 C.J.S. 516, section 108].
Also cited is the well-known maxim that equity regards substance rather than form. See Marshall Inv. Co. v. Lindley,156 Iowa 6, 134 N.W. 853; and one of our most recent cases, Kurtz v. Humboldt Tr. Sav. Bk., 231 Iowa 1347, 1349, 4 N.W.2d 363, 364. The opinion, by Justice Garfield, states:
"This cause is before us in equity. It is a maxim which has been frequently stated and applied that equity regards substance rather than form. In applying this maxim, technicalities will be disregarded." Citing authorities.
As we have stated, the decision of the issue presented to us depends only on the interpretation to be given to the mortgage — whether or not such instrument constitutes an equitable assignment. We hold that it does. We are satisfied that the intention of Alta Klink, an heir of Christian Nelson, deceased, was to transfer, and she did transfer, all her interest in the three hundred twenty acres described in such mortgage, and such interest included the proceeds derived from the sale of the land. Any other holding would defeat the very purpose for which the instrument was executed and would be unfair and inequitable, in that appellee, who took the instrument in good faith, as security for the money which was advanced, would be unjustly prevented from receiving repayment; and that appellants, who received the benefit therefrom, would unfairly profit thereby. Under the general rule, we hold that not only the general equities in the case require but the authorities sustain a holding of this court affirming the decree of the lower court, and it is so held.
Under this view of the case we find it unnecessary to consider the effect of appellee's motion to dismiss, especially now that by stipulation the fund in controversy, which was held by the executor, has been deposited with the clerk of the district court. — Affirmed.
All JUSTICES concur. *Page 894 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433610/ | W.F. Main operates under the name of Standard Manufacturing Company at Cedar Rapids, Iowa, and in 1932 and subsequent thereto was engaged in the sale of merchandising vending machines. On April 12, 1932, F.A. Henriott, who lived in Louisville, Kentucky, purchased from Main, thru his salesman, forty vending machines and twenty pounds of confection, for the sum of $1,156.40. A guarantee, in writing, guaranteed a cash return of 120 per cent from the operation of the vending machines for a period of twelve months from date, and if the machines did not produce this much the amount paid, plus interest, would be refunded. The machines were delivered, were located in the territory provided, to wit, in Louisville, Kentucky, and were operated for the required time. According to plaintiff, the purchaser, the total income was $320.91. He notified the defendant in regard to this and offered to ship back the machines. In writing he was notified not to do so. Defendant having refused to pay the amount of money to which plaintiff felt he was entitled under the contract, to wit, the purchase price plus interest after the allowance of credit because of the amount made in the operation of the machines, plaintiff commenced this action. The case was tried to a jury, which returned a verdict in the amount of $1,021.11. Defendant, being dissatisfied, has appealed.
We turn to the record to ascertain the facts.
W.F. Main is an individual engaged in the business of selling penny vending machines, operating his said business under the trade name of Standard Manufacturing Company. F.A. Henriott lives at Louisville, Kentucky. A salesman for *Page 22
Main contacted Henriott, and after some negotiations sold him forty vending machines at the price of $29.50 each. Two per cent was allowed for cash with the order and Henriott paid the sum of $1,156.40. With the vending machines went a certain amount of confection used in same.
The contract is so unusual and the defenses relied upon by appellant to escape payment so closely connected with the contract, that we set out the essential parts of it:
"STANDARD MANUFACTURING COMPANY, "CEDAR RAPIDS, IOWA.
* * *
"April 12, 1932.
"Total 40 units @ $29.50
........................ $118.00
"To F.A. Henriott 709 Sutcliffe Ave., Louisville ----------------------------------------------------------------- Street Town "State Texas Freight Engineer ----------------------------------------------------------------- How to ship Business
"TERMS: $1156.40 check or draft in advance .................... "2% off check or draft in full with order. "Transportation charges to be paid by purchaser. "All sums due under this agreement are payable at Cedar Rapids, Iowa. =================================================================
"The Standard Mfg. Co. guarantees a cash return of 120% on the investment in the above machines from the operation of same on a vending machine route for a period of twelve months from the date they have been placed in operation by the purchaser, if the purchaser will buy from this company all the products to be vended through the machines and will keep the machines at all times in good working order, clean and attractive in appearance, and well filled with the above products and adjusted to vend at an average price to the consumer of 70¢ to 85¢ per pound, and will rotate the different kinds of products so as to make available to the public the different kinds, flavors and assortments thereby making the machines more profitable, and will notify the company at once giving dates, names and addresses of all original locations and changes in locations of machines in order to keep them operating in the most profitable *Page 23
places, and furnish to the company at its offices in Cedar Rapids, Iowa, every six weeks, a report showing the name and address of the person with whom machines are placed, the dates serviced, the amount and kinds of products vended, the amount of money taken by each machine so that the company will know just what the machines are doing and will continuously operate the route with proper care and diligence. If the above provisions are complied with and if the above named cash return resulting from the operation of the above machines for the twelve months period is less than 120% and if all of the machines are delivered within thirty days after the expiration of said twelve months period to the Std. Mfg. Co. at Cedar Rapids, Iowa, transportation charges prepaid, securely packed and good condition, this company upon receipt of the machines will re-purchase the above machines at the full purchase price paid therefore, plus 6% interest, less the retail price of the products vended after deduction of 20% thereof to cover location rental. The term `cash return' as used above is understood to mean the total cash realized from the sale of the products vended less the purchase price of the products vended and the 20% paid for location rental. Purchaser agrees that in the event any machine gets out of order to promptly notify the company for repair and replacement. All of the above provisions are construed as constituting a single agreement and not independent agreements, and are of the essence of the repurchase agreement. * * *
"Name of Firm .............................................
"Signature of Purchaser F.A. Henriott
"Signature of party signing for above .....................
"Accepted at Cedar Rapids, Iowa, this 5th day of May, 1932.
"STANDARD MANUFACTURING COMPANY
"By E.L. Weidner, Manager.
"Salesman Louis Okin."
[1] I. Appellant contends that the court erred in overruling the motion for a directed verdict made at the close of the evidence. It is his contention that there are enumerated in the contract certain conditions precedent which had to be performed in order to require him to repurchase the machines. The contract was prepared by appellant. A reading of it will convince *Page 24
anyone that it was prepared with the one thought in mind of limiting appellant's liability and making it almost impossible to recover the amount of money he promised to pay in case the machines did not show the profit of 120 per cent within the year. In view of such a situation the contract will be construed most strongly against him.
As said by the late Justice Weaver in the case of First National Bank v. Dutcher, 128 Iowa 413, at page 423,104 N.W. 497, 500, 1 L.R.A. (N.S.) 142:
"It is to be remembered that the conditions attached to the warranty are framed by the seller to limit his liability and restrict the benefit thereof to the buyer. It is a settled rule that such conditions are to be strictly construed against the party in whose interest they are made. Parsons v. Gadeke, 1 Neb. (unofficial) 605, 95 N.W. 850; Meyer v. Fidelity, 96 Iowa 385,65 N.W. 328, 59 Am. St. Rep. 374."
II. It is contended that one of the important conditions of the contract was that Henriott was "continuously to operate the route with proper care and diligence" and that he failed to do this; that he failed to keep the machines in proper condition; that they were not washed and cleaned as they should have been; that the locations were not good; that he did not change locations, as he should have; that he did not set the machines so that they would dispense a certain amount; that the machines could be so fixed that upon the insertion of a coin they would give a certain amount of confection and Henriott gave more than he should have, selling the merchandise on the basis of 72 cents a pound rather than on a basis of 80 cents a pound.
This was the main defense relied upon at all times up until this lawsuit was commenced. All of the other technical defenses and claims that will hereinafter be referred to were never urged or set forth in any of the correspondence had between these parties, until the time that appellee sought to recover his money by commencing this action. Both sides offered evidence in regard to this matter. It was purely a fact question. Upon reading the evidence, one cannot see how the jury could come to any other conclusion than that it did reach, and that appellee had operated the machines in a diligent and careful manner.
[2] III. Another of the conditions placed in the contract by the appellant is that appellee "was to operate the above machines *Page 25
on a vending machine route for a period of twelve months from the date they had been placed in operation by the purchaser." There were forty machines sold and delivered. On December 7, 1932, appellee advised appellant that two of his machines had disappeared and one was robbed. In the spring of 1933 he reported another machine missing. It is now the claim of the appellant that he would only repay the 120 per cent provided there were forty machines operated during the period of a year, and that because appellee now admits he only operated thirty-seven machines during that period he cannot recover. Appellant says this is important because he contracted he would guarantee the forty machines would take in 120 per cent and not that thirty-seven machines would do it.
This question was never raised until the time of the trial. This was not the basis of the refusal of appellant to accept the return of these machines when appellee offered them to him. In addition to that, we find in the record that appellee wrote a letter to appellant, asking that he advise what effect it would have upon his contract if two or three machines were disposed of. On October 27, 1932, appellant answered. We quote part of the letter:
"It has ordinarily been the custom of claimants who have either had machines stolen or sold them to deduct the amount paid for such machines from the amount of their claim when such a situation has developed."
This, we believe, is a practical construction placed upon the contract by appellant.
In the case of Dodds Co. v. Consolidated School District, reported in 220 Iowa 812, at page 816, 263 N.W. 522, 524, the late Justice Parsons, speaking for this court, said:
"In the construction of contracts, the primary rule is `that the court must, if possible, ascertain and give effect to the mutual intention of the parties, and that it must be construed in the light of the circumstances surrounding them at the time it is made, and that where parties to a contract have given it a practical construction by their conduct, as by acts in partial performance, such construction is entitled to great, if not controlling weight in determining its proper interpretation', citing 13 C.J., Contracts, par. 482, note 18, p. 521; par. 514, note 30, p. 542; par. 517, note 54, p. 546." *Page 26
So in the case at bar appellant placed a practical construction upon this contract; that it would be figured upon the basis of the number of machines operated where some had been stolen, as in this case.
In addition to this, the only provision in the contract upon which the appellant can base his contention is that "the Standard Mfg. Company guarantees a cash return of 120% on the investment in the above machines from the operation of same on a vending machine route for a period of twelve months."
Here is an effort on the part of appellant to strain the construction of the contract to meet his own views, and again we refer to the well-settled rule that in such a contract the provisions will be construed most strongly against the one who has prepared it, and, when the seller has prepared it to limit his liability, it will be strictly construed against him. Certainly no one anticipated when this contract was drawn that if a vending machine was stolen it would still be kept in operation. That would be expecting the impossible. There is no provision in the contract requiring replacement. Appellant could easily have put this into the contract; he has included in it about everything else that one could conceive of. The reasonable construction of the contract is that in the absence of provision therefor it does not contemplate that the purchaser shall buy machines to replace any which were stolen. The only place he could buy these machines was from the appellant, and, if appellant had refused to sell him one, then of course he would not, under the theory of appellant, be able to recover in this case.
The court in this case figured that he was entitled to recover on the basis of thirty-seven machines operated. The contract provides for the sale in units, and, figuring on the basis of the number of machines operated, due to the fact that three had been stolen, appellant could not possibly have suffered any injury.
[3] IV. Another one of the conditions precedent was that the purchaser would report "every six weeks, showing the name and address of the person with whom machines were placed, the dates serviced, the amount and kinds of products vended, the amount of money taken by each machine, so that the company would know."
It is the contention of the appellant that these reports were not properly made, that they did not always reach the office in *Page 27
Cedar Rapids within the exact six weeks period. There is no claim that appellee did not make the reports. He did make them; he made them in detail. Now for the first time complaint is made in regard to the manner in which the reports were made. At no time prior to the commencement of this lawsuit was any objection made in regard to the manner in which reports were made.
There is a letter in the record, from appellee, written in September of 1932, at which time he sent in his second report. We quote:
"I would appreciate knowing if this report is according to agreement. If I do not hear from you on this all I can do is assume they are correct and acceptable."
Appellant did not answer that letter. He stood by and permitted appellee to make the reports every six weeks, with no objection of any kind, altho he had been asked if the reports were satisfactory, until the time this lawsuit was brought.
It is contended these reports did not always reach Cedar Rapids exactly within the six weeks period; that on one or two occasions they were a day or two, or perhaps three, late. No such objection was made until the time that this lawsuit was brought. We find in the record a letter from appellee, asking whether appellant considered the period from June 15th to July 31st six weeks. To this letter he received no reply. Thereafter the reports were made within the exact time. It is hard to see how anyone could have complied more faithfully in the making of the reports than did the appellee. While the writer of this opinion is not familiar with the vending machine business, it would seem that the reports are as full and complete as they could be made.
[4] V. We come now to the more serious proposition involved in this case. The following is one of the conditions precedent set out in the contract:
"If all of the machines are delivered within thirty days after the expiration of said twelve months period to the Std. Mfg. Co. at Cedar Rapids, Iowa, transportation charges prepaid, securely packed and good condition, this company upon receipt of the machines will re-purchase the above machines * * *."
Appellee in his last report showed that the machines had not produced anywhere near the 120 per cent guaranteed. He *Page 28
did not return the machines. He pleads a waiver. At the end of the twelve months period appellee wrote appellant a letter, in which he said:
"I have brought in all machines, which will be thoroughly cleaned and packed with all equipment in the same manner as received. These will be shipped to you, prepaid, this week.
"I would much appreciate prompt settlement of this matter, as I expect to leave town, in order to find employment, and wish to clean up my debts before leaving."
Appellant replied to this letter on June 26, 1933. We quote from same:
"If you have taken up your machines, and if you ship them to Cedar Rapids, the responsibility for any expense or loss which may come to you as a result will rest upon your shoulders, for we will not submit to a demand when we believe it to be unjustified by the facts.
"There is no doubt in our minds but that, if you desire to discontinue as a vending machine operator, you can sell your vending machines there to much better advantage and to much greater profit for yourself than if you were to attempt to ship them back, and if there should be resulting litigation, for such litigation, if started, would undoubtedly cost you fully as much as you could realize after deducting expense of return, and the amount of your sales.
"These are matters for you to take carefully into consideration, Mr. Henriott. We have not attempted to point out all of the delinquencies on your part, either as to failure to send in some reports, or in other respects. We are simply putting the situation before you in a friendly way so that you may not get into a situation from which there can be no withdrawal without great expense, and loss.
"Sincerely yours, "STANDARD MANUFACTURING CO., "By J.M. Parker."
It is appellee's contention that by writing this letter, instructing him not to return the machines, the appellant waived a formal tender. The appellant does not seriously question the fact that the original tender was waived. However, it is his contention that appellee did not keep that tender good in this case; *Page 29
that "the making of a tender is one proposition and the keeping of it is quite another," especially where a lawsuit is brought.
In the case of McCormick H.M. Co. v. Markert, 107 Iowa 340, at page 343, 78 N.W. 33, 34, this court said:
"Further, it is said that no particular machine was ever tendered to defendant. Inasmuch as he refused to recognize the contract or receive any machine under it, no specific tender was necessary. Williams v. Triplett, 3 Iowa 518."
In the case of Olson v. Brison, 129 Iowa 604, at page 605,106 N.W. 14, 15, we read:
"Ordinarily, before commencing an action at law to recover the price paid the vendee must give notice to the vendor of his election to rescind and offer to return the thing purchased. This is for the reason that the suit is for the consequences of rescinding, and is based on the ground that it has been effected. Technically, plaintiff's right to recover must be perfect when the suit is begun. But for the necessity of a tender, the commencement of the action for the consideration paid would be a sufficiently definite disaffirmance of the contract and an election to rescind. Laboyteaux v. Swigart, 103 Ind. 596
(3 N.E. 373); Thompson v. Peck, 115 Ind. 512 (18 N.E. 16, 1 L.R.A. 201); Howard v. Hunt, 57 N.H. 467; Skillman Hardware Mfg. Co. v. Davis,53 N.J. Law 144 (20 A. 1080); Huey v. Grinnell, 50 Ill. 179; Mobley v. Pickett, 9 Ala. 97 (24 Am. Eng. Ency. of Law, 645). The object of the tender is to give the vendor the option of joining in the rescission and taking back the property at the earliest period. The vendee will not be permitted to play fast and loose down to the last moment. The petition contained no allegation of an offer to return the property; that is, to put the vendor in statu quo, as a condition precedent to demanding the repayment of the consideration paid. Nevertheless evidence that the furnace and other material had been safely stored and that defendant was at liberty to remove the same at any time was introduced, without objection, and defendant admitted while on the witness stand that when plaintiff asked him, shortly before the furnace was removed from the house, what he intended to do about it, he responded that he would have nothing more to do with the matter, and, farther, that he would not have taken the furnace had it been brought back then, and would not at the *Page 30
time of the trial. He would not have joined, then, in rescinding by receiving the property back, and any offer to return it would have been an idle and useless ceremony. If this was so, only an election to rescind was essential, and, as said, this was evidenced by the commencement of the suit."
In Reeves Co. v. Younglove, 148 Iowa 699, at page 704,127 N.W. 1017, 1019, this court said:
"The contract provides for notice after the expiration of the six-day trial provided for, and then the plaintiff was to have a reasonable time in which to make the machinery comply with the contract. It not only appeared and undertook this work, but, if the defendants are to be believed, such appearance was in response to the notices given. The plows were not returned to Drinkwater as required by the contract, but the appellants contend that there was a waiver of such return. Whether there was such a waiver was a question for the jury. After the last trial, in which Mr. Lowell and the three other agents participated, the defendants stated to Mr. Lowell that they were not satisfied with the work of the plows, and asked him what they should do with them, to which he replied that he did not care what they did with the plows, that they belonged to them, and that they would have to pay for them. Although the defendants did not in the exact language offer to return the plows to Drinkwater, such was the fair import of the question, and it was evidently so understood by Mr. Lowell, as indicated by his answer. The defendants were, therefore, justified in believing that the plaintiff would not accept the plows or do anything more towards meeting the requirements of the warranty, if they were returned, but would enforce payment of the notes then held by them for the purchase price. Kuhlman v. Wieben, 129 Iowa 188, 105 N.W. 445, 2 L.R.A. (N.S.) 666; McDermott v. Mahoney, 139 Iowa 292, 115 N.W. 32, 116 N.W. 788."
This court in Bricker v. Accident Association, 161 Iowa 61, at pages 64, 65, 140 N.W. 851, 852, said:
"That a party may waive any provision of a contract made for his benefits is too long and well established to be now open to controversy. That an insurance association, such as this, can waive a provision of its contract of insurance, providing for a forfeiture or suspension of the policy for failure to make *Page 31
payments strictly at the time and on the terms provided in the policy, has also been held. See Mayer v. Mutual Life Ins. Co.,38 Iowa 304, 18 Am. Rep. 34; Loughridge v. L. E. Assn., 84 Iowa 141,50 N.W. 568; Bailey v. Mutual Benefit Assn., 71 Iowa 689,27 N.W. 770; Moore v. Order Railway Conductors, 90 Iowa 721, 730,57 N.W. 623; Davidson v. Tribe of Ben Hur, 135 Iowa 88, 111 N.W. 46; Trotter v. Grand Lodge, 132 Iowa 513, 109 N.W. 1099, 7 L.R.A. (N.S.) 569, 11 Ann. Cas. 533; Hartford Insurance Co. v. Unsell,144 U.S. 439, 12 S. Ct. 671, 36 L. Ed. 496; Leland v. Modern Samaritans, 111 Minn. 207, 126 N.W. 728. That this waiver may be shown by the acts and conduct of the officers of the association is well settled by many adjudicated cases. See Richwine v. Aid Assn., 76 Minn. 417, 79 N.W. 504; M.W.A. v. Colman, 68 Neb. 660,94 N.W. 814, 96 N.W. 154; Trotter v. Grand Lodge, 132 Iowa 513,109 N.W. 1099, 7 L.R.A. (N.S.) 569, 11 Ann. Cas. 533; Sweetser v. Mutual Aid Assn., 117 Ind. 97, 19 N.E. 722; Wallace v. Fraternal Circle, 121 Mich. 263, 80 N.W. 6. Where the acts and conduct of the insurer have been such as to indicate a purpose and intent not to insist upon a strict performance of the terms of the certificate touching the times of payment of installments, and where it appears that, without objection and without complaint, the company has permitted its members to pay installments due upon the contract after the time fixed in the contract for payment, and has accepted the same without claiming forfeiture or right to forfeiture, and where one, in reliance upon this custom, fails to make his payments strictly and at the times provided in the contract, it has been held that after loss the association is estopped to claim that which by its conduct it had so manifestly denied. When by its conduct it says to its members, `We do not and will not insist on forfeiture or suspension for failure to pay as required by the strict terms of the certificate,' it cannot, after loss, so change its attitude to the prejudice of the members."
We find the following in the case of Lake v. Silo Company, reported in 177 Iowa 735, at page 740, 158 N.W. 673, 674:
"In various forms, it is contended that the court erred in permitting a recovery by plaintiff, for the reason that it was not alleged in the petition, or proved upon the trial, that he had returned, or offered to return, the silo, to the place where he received it. He received it at the depot in the town of Gaza, *Page 32
and hauled it to his farm, at least a quarter of a mile away, and he did not return it to the depot. Plaintiff does not expressly allege a return, or an offer to return the silo. The statement made by him was that defendant was duly notified that said materials were held by plaintiff at its (defendant's) risk. He proved that he told defendant's agent that he would not accept the silo; that they could take it; and that it was there (at the farm), subject to their order. The telegram which plaintiff sent the defendant has already been referred to, and this constituted no more than a refusal to accept the property. Defendant admitted, however, that it received a letter from plaintiff's counsel, before suit was brought, that the machine was there at its (defendant's) risk. Was this a sufficient tender, or offer to return the silo? The general rule is, that, if a buyer rescinds a contract of sale, he must return, or offer to return, all that he has received under the contract; and the tender, or offer, should be to return the property to the place where the property was received by the buyer; and, to make out a case for rescission, such tender must be pleaded, or an offer to return must be made in the pleadings. National Imp. Const. Co. v. Maiken, 103 Iowa 118, 72 N.W. 431; Eadie v. Ashbaugh, 44 Iowa 519; Lunn v. Guthrie, 115 Iowa 501, 88 N.W. 1060; McCorkell v. Karhoff, 90 Iowa 545, 58 N.W. 913.
"As the law does not require the doing of vain things, if the seller refuses to accept the goods when offered, or indicates a purpose not to rescind, if tendered, no formal tender is necessary. Olson v. Brison, 129 Iowa 604, 106 N.W. 14."
In Hughes v. National Equipment Corporation, reported in216 Iowa 1000, at page 1011, 250 N.W. 154, 159, this court, speaking thru Justice Donegan, said:
"We think the evidence further sufficiently shows that the appellee repeatedly told the appellant or its representatives that the dumptors would not be retained by him, and that, after many attempts to repair them and place them in working condition, the appellee finally notified the appellant that he would have nothing further to do with the dumptors and that they were at appellant's disposal. There is nothing in the evidence to indicate that either the appellant or any of its representatives ever suggested to the appellee that he should return the dumptors to the depot at Jamesport or to any other place. On the contrary, *Page 33
the evidence indicates that the appellant by its conduct refused to accept a return of the dumptors and continually insisted upon the appellee retaining the same." The opinion then cites the case of Lake v. Silo Company, 177 Iowa 735, 158 N.W. 673.
Having in mind the rules of law established in the cited cases, the uncontradicted record in this case shows the appellee wrote appellant that the machines were packed and would be shipped back, in compliance with the terms of the contract. Immediately appellant replied by letter, informing appellee not to ship back the machines, stating that he did not want them shipped back; that appellee could sell the machines in Kentucky; that litigation was expensive. In view of such a letter it would have been a useless thing for appellee to have shipped back the machines. Appellant had a right to have them shipped back but when he wrote that letter he waived that right. It is the fault of the appellant, and not of appellee, that the machines are not now in Cedar Rapids. In addition to this, at the time of the trial appellee testified that the machines were boxed and he could produce them in Cedar Rapids within a short time, by express, if appellant desired. By his conduct, appellant waived the right to have the machines tendered; it was thru his fault that they were not shipped from Kentucky to Cedar Rapids, and he cannot now complain.
The appellant says that Mr. Parker, the man who signed the letter, did not have authority to waive the provision in the contract. With this we cannot agree. This record shows that Mr. Parker worked in the office of the appellant; that he was in charge of correspondence with those who had purchased merchandise. His job was to answer letters. Unfortunately, since the writing of the letter Mr. Parker has died. The only testimony in this record in regard to Mr. Parker's authority is that of a lady who worked in the office, who is designated in the record as appellant's secretary. Appellant himself did not see fit to testify. To say that Parker, who was placed in charge of the correspondence with those having purchased machines from appellant, was vested with the naked power of simply answering correspondence, without any authority to waive or modify any term of the printed contract, would be, as well stated in Pitsinowsky v. Beardsley, 37 Iowa 9, 14, *Page 34
"* * * to establish a snare by which to entrap the unwary, and enable principals to reap the benefits flowing from the conduct of their agent in the transaction of business intrusted to his hands, without incurring any of the responsibilities connected therewith." See, also, Northwestern Mutual Life Ins. Co. v. Steckel, 216 Iowa 1189, 250 N.W. 476.
[5] VI. The appellant next contends that the court erred in permitting appellee to amend his petition to conform to the proof.
With this we cannot agree. The amendment was permitted for the purpose of simply conforming to the proof. As this court said in Reynolds Heitsman v. Henry, 193 Iowa 164, at page 171,185 N.W. 67, 70:
"The matters contained in the amendment to the petition had been supported by proof upon the trial, and were largely formal matters. It was clearly within the province of the court to permit the filing of the amendment to the petition, formally alleging these matters. Gray v. Sanborn, 178 Iowa 456,159 N.W. 1004; Boyd v. Buick Automobile Co., 182 Iowa 306, 165 N.W. 908; Cahill v. Illinois Cent. R. Co., 137 Iowa 577, 115 N.W. 216; Heald v. Western Union Tel. Co., 129 Iowa 326, 105 N.W. 588; Decatur v. Simpson, 115 Iowa 348, 88 N.W. 839."
[6] VII. We come now to the objections raised by appellant to the instructions.
Every single, solitary instruction is objected to. It may be the misplacing of a word, or it may be the failure to insert a comma, but objection is made. To go into each and everyone of them would be an almost endless task and would take pages of the printed records of this court. Phraseology of instructions must receive a reasonable construction, in view of all of the circumstances, and not a strained or forced one. Instructions should not be interpreted thru the magnifying eye of a technical lawyer.
The late Justice Weaver in the case of Elliott v. State Bank,149 Iowa 309, at page 319, 128 N.W. 369, 372, states this far better than the writer of this opinion could, when he said:
"We think it must be said that no set of instructions ever yet framed by a trial court could stand the test of an appeal if the severely critical and technical tests for which appellant contends were to be adopted and enforced by us. Instructions *Page 35
are of necessity prepared under more or less pressure to avoid interference with the progress of the business of the term. They are addressed to jurors unskilled in law and unversed in legal phraseology. To serve their purpose they should be brief, pointed and clear. If the court indulges in excessive minuteness of statement with respect to the law or facts, it is quite sure to envelop the case in darkness rather than light, and mislead and confuse the minds of the jurors. The standards by which instructions are to be judged are not those which might properly be applied to a technical treatise prepared for the use of the profession."
In the case of Thompson v. City of Sigourney, 212 Iowa 1348, at page 1354, 237 N.W. 366, 369, we read:
"It will be seen that the court used the word `may' without discriminating for or against either party in the definition of her or its duty, and with respect to the plaintiff particularly the court plainly told the jury that whether she acted as an ordinary, prudent person `must' always be in proportion to the danger. The instructions must be taken as a whole and so read are not misleading nor discriminatory."
And so in the case at bar we have gone over all of the various objections raised by the appellant. Reading the instructions as a whole, we find no error.
There are also other errors alleged and argued by the appellant, twenty-six in all. His brief consists of 123 pages and the reply brief of 25. Needless to say, we cannot discuss all of the propositions set out therein. They have been considered. The case was well tried. It was properly submitted to the jury, which returned a verdict for the appellee. The evidence justifies that verdict.
It necessarily follows that the case must be, and it is hereby, affirmed. — Affirmed.
ANDERSON, KINTZINGER, DONEGAN, RICHARDS, HAMILTON, SAGER, and MILLER, JJ., concur. *Page 36 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433611/ | At the election of 1934 in the Third supervisor district of Hamilton county, there were three candidates for supervisor; E.B. Tyler, a Republican candidate, H.G. Klaver, as an Independent candidate, and Charles Greiner, a Democratic candidate. There were six townships in this supervisor district, and six voting precincts, each township being a voting precinct. The precincts were Blairsburg, Liberty, Lincoln, Lyon, Rose Grove, and Williams. The result of the election was certified to by the proper officials of the various precincts named to the county auditor as required by law, and these returns were canvassed by the board of supervisors of the county. The result of the canvass set forth shows the voting precincts, the names of the candidates, and findings from the returns sent from the various voting precincts:
Names of Townships or Charles E.B. H.G. Voting Precincts Greiner Tyler Klaver Blairsburg ................. 87 53 148 Liberty ................. 39 75 124 Lincoln ................. 21 259 130 Lyon ................. 80 263 269 Rose Grove ................. 25 66 76 Williams ................. 65 188 163 --- --- --- 317 904 910
On November 13, 1934, the board of supervisors adopted the foregoing canvass and declared H.G. Klaver elected supervisor of the district. A contest was commenced by Tyler, who *Page 1126
is designated in this record as contestant and appellee. There is no question raised about the validity of the contest court. That court consisted, as provided by statute, of three members, and it found that Greiner received 304 votes, Tyler 907 votes, and Klaver 901 votes. One of the judges of the contest court, Hefner, dissented, claiming Greiner received 313 votes, Tyler 902 votes, and Klaver 908 votes. From this finding of the contest court, Klaver appealed to the district court of Hamilton county, Iowa. That court, after hearing the case, found that Greiner had received 304 votes, Tyler 905 votes, and Klaver 897 votes, and awarded the office to Tyler, in accordance with this finding. In the finding, of the district court, on the facts, the following was found:
"In the presentation of this case, there were certain ballots that were separated in the recount before the Contest Board, being 54 in number, that were recognized by the parties hereto as the disputed ballots. These ballots were each marked with an exhibit number or letter by the Contest Court, and by agreement of counsel made in open court, these same exhibit numbers and letters were retained in this appeal; and it was stipulated in this case as to each precinct that if the ballots of the different precincts were counted, outside of and without the contested ballots, they would show that the different candidates for Supervisor of the Third Supervisor District of Hamilton County, Iowa, would receive the following votes:
Greiner Tyler Klaver Blairsburg ................... 84 53 146 Williams ................... 65 188 158 Liberty ................... 38 75 120 Rose Grove ................... 25 62 73 Lincoln ................... 14 249 124 Lyon ................... 78 265 261 --- --- --- 304 892 882"
The court also found that all of the ballots from the supervisor district of Hamilton county, from all the precincts, have been preserved and returned as provided by law, and are entitled to be received as evidence in this appeal. That all of these ballots were brought in their cases and containers to the auditor's office in Webster City, Iowa, by an election officer of the precinct wherein the ballots were cast, who were sworn *Page 1127
officers to do their duty, and the presumption prevails they did their duty honestly, no evidence is produced to show to the contrary, and it was the presumption they were delivered to the auditor in the same condition they were at the time cast by the voters.
It was further found:
"The evidence is also without dispute that the Auditor promptly placed them in the vault adjoining his office, and that at all times from that time down to the time they were produced in the Contest Court, they were under the supervision and control of the Auditor and were not exposed to the public, and that no opportunity was given for tampering with them; and the Court finds that the ballots themselves are competent evidence in this case and in this appeal, and that the same have been preserved and produced in Court, all as provided for and contemplated by law."
Upon counting the ballots, the court found that on the count of the contested ballots 24 were rejected. Tyler received 15, and Klaver 15, the result being as found by the court, that Greiner received 304 votes, Tyler received 907 votes, and Klaver received 897 votes. That E.B. Tyler, the contestant, received the highest number of votes for the office of supervisor. It was accordingly ordered, adjudged, and decreed that E.B. Tyler be declared to be duly qualified and elected to the office of supervisor of the Third district of Hamilton county for the term commencing January 1, 1936; and that E.B. Tyler is entitled to and there shall be forthwith issued to him a certificate of election to said office, and that in the event the certificate of election has been issued to Klaver certifying his election, it shall be void and held for naught, and that the certificate be forthwith issued to the incumbent Tyler. To all of which Klaver excepted. From this judgment in due time, an appeal was perfected to this court.
[1] So the question naturally arises as to the preservation of the ballots and as to their admissibility in evidence. The appellant in this case objects practically to each and every ballot on the theory that they were not kept as provided by law, and consequently are not admissible in evidence. The objection even goes back to the ballots prior to their delivery to the county auditor following the election, and while they were in the hands *Page 1128
of the election officers of the various precincts involved in this count. A case cited and relied on, and which looks to be the basis of this objection, is Furguson v. Henry, 95 Iowa 439, 64 N.W. 292, 693. That case holds that a showing that the ballots came through the channels and from the custodians provided by law for their keeping makes such ballots prima facie evidence. This may be met with proof that they are not as they were cast and counted. So, under the authority of the cited case, a showing that the ballots "came through the channels and from the custodian provided by law", makes them prima facie evidence. In this case the record shows that the ballots from the various precincts were delivered by election officers to the county auditor. That is in strict conformity to the law. Being primafacie admissible in evidence, they may be impeached by showing they were not in the condition when cast; i.e., had been tampered with while in the hands of the election officers, and prior to the delivery to the county auditor.
DeLong v. Brown, 113 Iowa 370, 85 N.W. 624, cited by the contestant, among other things, says:
"The statute requires the auditor to carefully preserve the ballots received from the judges of election for six months. Section 1142, Code. The particular manner or place is not pointed out. If carefully done, this precludes any reasonably well founded suspicion that they may have been changed or tampered with, and in such event they form the best evidence of who has been elected. With their integrity thus fully established, they are silent witnesses which can neither err nor lie. And it is generally held, where the manner or mode of preservation has been enjoined by statute, a substantial compliance therewith must be shown, preliminary to the introduction of ballots in evidence."
Let us apply this analysis to these ballots before they came into the hands of the auditor, bearing in mind that they were delivered by the election officers to the auditor. Chapter 41 of the Code (section 840 et seq.) deals with the canvass of votes. By section 850, when the canvass of votes is completed, one of the judges shall publicly announce the total number of votes received by each of the persons voted for, the office for which he is designated, as announced by the clerk. Then follows the provision in section 851 in regard to folding and stringing the *Page 1129
ballots, and as to rejected, defective, or objected-to votes. And by this same section it is provided that "the judges shall at once return all the ballots to the officer from whom they were received, who shall carefully preserve them for six months." The officer from whom they were received was the county auditor, because the statutes so direct. He has the distribution of all the ballots to the various precincts in the county, and after election the ballots are delivered to him. So then the showing that the ballots were taken by one of the election officers to the county auditor shows that so far there has been compliance with the statute, and, if any irregularity is claimed, it must be by an affirmative showing of something done prior to the time they reached the auditor's office, so far as an objection of the validity of the ballots reaching back of the auditor's results. When they get to the auditor's office, he is to preserve them carefully for six months.
In the De Long case the court held that there was no such keeping as is shown in this case; that there was every opportunity to tamper with the ballots, and hence for the negligence in preserving the ballots they were rendered incompetent in the election contest, and this is the rule that has been adopted and followed ever since.
In a late pronouncement of this court upon the question as to the preservation of the ballots is Marsh v. Huffman, 199 Iowa 788, 202 N.W. 581, 585, and in that case this court said:
"While we have said that it must affirmatively appear that the ballots had been preserved with that jealous care which precludes the opportunity of their being tampered with, and like Caesar's wife, must be shown to be above suspicion, yet we have also said that they need not be so shown beyond groundless suspicion, nor that there is no possibility that they might have been tampered with."
[2] Some question is made about folding and wiring the ballots, but the Marsh case, citing Murphy v. Lentz, 131 Iowa 328, 108 N.W. 530, said:
"This statute is only directory, and a failure to comply therewith will not defeat the will of the electors."
Here, however, the district court specifically found that the ballots were under the supervision and control of the auditor *Page 1130
and were not exposed to the public, and that no opportunity was given for tampering with them, and that the ballots themselves were competent evidence. An examination of the record here discloses that it fully supports the finding of the lower court on this question. True, the auditor was not in the vault all the time with the ballots, neither were any of his clerks. People went in and out of the vault, but they were in there only a few moments at a time, without being under the observation of the auditor or his associates. We think the meticulous care of the ballots shown here shows there is nothing in the objections in this case that rendered the ballots incompetent.
A canvass by the board of supervisors is not a canvass of the votes, but it is simply a canvass of the returns sent in by the officers of the various election precincts. So it is the conclusion arrived at by the various election boards in the supervisor district. Where ballots are counted hurriedly, where it is conceded even if everybody is honest, mistakes may be made in counting when it is carried on to the middle of the night.
The writer of this opinion very well remembers the election contest between Steck and Brookhart concerning a seat in the United States Senate. In that case the returns after the canvass had been made by the various election boards, certified by the board of supervisors, there tabulated and passed on to the secretary of state's office, and a certificate issued to Brookhart on the assumption from these records that he had 800 plurality, yet a contest was thought advisable for the reason that conceding each and every election judge and clerk had been honest, as the counting of the ballots was carried on sometimes until long after midnight, and sometimes even until daylight; that the mark in the circle at the top of the ballot would be seen while the small cross opposite the name of the individual might easily be overlooked, and that there being something over a million voters in the state of Iowa, it would take only 400 cases of these overlooked ballots to be found to make it a tie, because sometimes the marking in the circle over the Brookhart ticket was accompanied by a small cross in the square before the name of Steck, and that might not have been observed.
So the real aim in election contests is to see who received the most votes for the office in question. We have carefully gone over the record in this case and agree with the court below that the record affirmatively shows no tampering with the votes *Page 1131
after they reached the auditor's office. That the record affirmatively shows the proper officers brought the ballots to the auditor's; that there is nothing to impeach them prior to reaching the auditor, and the auditor having carefully preserved them as provided by law, they should be received in evidence, and were so received, and the result of the count was, as has been the case frequently with the party found to be elected on the face of the returns, that he was found not to have the greater number of votes.
Therefore, for the reasons pointed out in this opinion, the decision of the lower court in holding that the contestant and appellee Tyler received more votes for member of the board of supervisors of the Third district of Hamilton county than did the incumbent appellant, the action of the district court is affirmed.
KINTZINGER, C.J., and POWERS, ANDERSON, RICHARDS, DONEGAN, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433613/ | [1] In December, 1921, Bankers Life Company issued a policy of insurance on the life of John Welch, a resident of Johnson county, Iowa, in which his wife, Clara E. Welch, was named as beneficiary. Following the death of said John Welch, it appears that a controversy arose between the beneficiary, Clara E. Welch, and the Bankers Life Company, as to its liability under said policy, that a settlement of some kind (the validity or invalidity of which we do not now consider or determine) was made, and the policy surrendered to the Bankers Life Company. Subsequent thereto, and in April, 1933, Clara E. Welch and Harold A. Olson, as plaintiffs, brought an action in Winneshiek county, Iowa, against Bankers Life Company to recover the amount claimed by them to be due under said policy. Attached to said petition was a copy of an assignment alleged to have been executed by Clara E. Welch transferring and assigning to Harold A. Olson, trustee, an undivided one-half interest in and to all her right, title, and interest in said policy of insurance on the life of John Welch, and to any and all proceeds due and unpaid thereon. The defendant Bankers Life Company filed a motion for a change of place of trial, which motion was supported by an affidavit of J.P. Lorentzen, one of the attorneys for defendant, and asked that the court grant the defendant a change of place of trial and that the court tax the costs, including attorney's *Page 211
fees and expenses, as provided by statute, to the plaintiffs. To this motion the plaintiffs filed a resistance.
Hearing was had upon said motion for change of place of trial and plaintiffs' resistance thereto, and the court entered an order which was in part as follows:
"Now Therefore, It Is Ordered, Adjudged and Decreed: That the place of trial of this cause be and is hereby changed and transferred to Johnson County, State of Iowa, being a proper venue and place of trial for said cause, and that said change is ordered and granted at the cost of the plaintiff and said cost shall be taxed by the Clerk against the plaintiff; that the defendant is hereby allowed and awarded as reasonable compensation for his trouble and expense in attending the wrong county, the sum of $100.00 which is hereby taxed in this cause against the plaintiff; that said costs and sum awarded to the defendant as aforesaid shall be paid by the plaintiff to the Clerk of the aforesaid Court on or before the 18th day of August, 1933, and if not so paid and if the papers are not filed on or before the first day of the next term of the District Court of Iowa, in and for Johnson County, as provided in section 11054 of the 1931 Code of Iowa, in either such event, this action shall be dismissed and judgment entered against the plaintiff for said sum and costs.
"To all of which plaintiffs except."
Following the entry of this order, the plaintiffs in said action, who are the petitioners herein, filed a petition for a writ of certiorari in this court, and on August 15, 1933, such writ issued. In this action we are asked to determine the validity of the said order of the district court.
Petitioners allege that they had a right to bring the action against Bankers Life Company in Winneshiek county under section 11043, of the 1931 Code of Iowa, which is as follows:
"* * * Insurance companies may be sued in any county in which their principal place of business is kept, or in which the contract of insurance was made, or in which the loss insured against occurred, or, in case of insurance against death or disability, in the county of the domicile of the insured at the time the loss occurred, or in the county of plaintiff'sresidence." (Italics are writer's.)
Respondents argue that the purported assignment to Harold A. Olson, under which the action was brought in Winneshiek county, *Page 212
was made for the purpose of fixing venue and to vex, annoy, harass, and oppress the defendant and cause it needless expense, and that said assignment was colorable, collusive, fictitious, and a fraud upon the court, and that a venue could not be based thereon. The assignment was in writing and is as follows:
"ASSIGNMENT.
"Iowa City, Iowa. April 10, 1933.
"For a valuable consideration receipt of which is hereby acknowledged, I, Clara Welch, widow of John Welch, deceased, whose death occurred on or about March 2, 1930, hereby sell, transfer and assign an undivided one-half interest in and to all my right, title and interest in and to Bankers Life Company of Des Moines, Iowa, policy number 519586, issued on the life of said John Welch, and to any and all proceeds, due and unpaid thereon, to Harold A. Olson, Trustee, and do authorize said assignee and agree to join with him in any and all legal steps and efforts, including institution and prosecution of action to collect any and all sums due under and on said policy for the death of said John Welch.
"Clara Welch.
"Anna Osborn, witness."
It appears from the evidence introduced on the hearing that the attorneys for the plaintiffs were to receive one-half of the amount recovered, as attorneys' fees, and that the assignment was made to Harold A. Olson, as trustee, to protect said attorneys as to their one-half of the proceeds of the claim against the insurance company. It further appears that A.C. Lynch, one of the attorneys for Clara E. Welch and Harold A. Olson, the assignee, were both residents of Winneshiek county, Iowa. Petitioners claim that, under said assignment, Harold A. Olson had such an interest in said claim as entitled him to join with the beneficiary and assignor, Clara E. Welch, in prosecuting an action against the insurance company under such policy, and that, being a resident of Winneshiek county, Iowa, he, as plaintiff in such action, had a right to bring the same in the county of his residence.
[2] It is the established law of this state that, after a loss has occurred under an insurance policy, the beneficiary may assign his right against the insurer to a third person without the consent of the insurer. Walters v. Washington Insurance Company, 1 Iowa 404, 63 Am. Dec. 451; Mershon v. National Insurance Company, 34 Iowa 87 *Page 213
; Benesh v. Mill Owners Mut. Fire Ins. Co., 103 Iowa 465, 72 N.W. 674; Davis v. Bremer County Farmers Mut. Fire Ins. Assn.,154 Iowa 326, 134 N.W. 860; Smith v. Farm Property Mutual Ins. Assn., 199 Iowa 693, 202 N.W. 508.
According to the above authorities, after a loss occurs under a policy of insurance, the relation between the person entitled to the payment of such loss and the insurer is that of creditor and debtor. After the death of the insured, John Welch, the beneficiary under said policy, Clara E. Welch, was, therefore, a creditor of the respondent insurance company as to any amount which might be payable to her under said policy.
[3] Respondents claim, however, that a partial assignment of a chose in action is not recognized in law, unless made with the consent of, or ratified by, the debtor. The authorities cited in support of this contention do not, in our opinion, sustain it. At most, such authorities hold that the assignee of a part of a chose in action cannot prosecute an action against the debtor for the part of the claim thus held by him, because this would amount to a splitting up of a cause of action. We find nothing in the authorities cited by the respondents to prevent the owner of a chose in action from assigning a part of it to another and then joining with the assignee in the prosecution of the entire cause of action. The action in this case was brought by both Clara E. Welch and Harold A. Olson; the claim sued upon was for the entire amount alleged to be due from the respondent insurance company; there was no splitting of the cause of action; and there is nothing in the law to prevent them, as the holders of an entire cause of action, from joining together in its prosecution.
Respondents further contend and cite authorities to support the proposition that an assignment of a chose in action does not confer upon the assignee any greater right or interest than that possessed by the assignor, and does not create in the assignee remedies other than those which were had by the assignor. As to the first part of this contention, that is, that an assignment of a chose in action does not confer upon the assignee any greater right or interest than that possessed by the assignor, there can be no question. It may be conceded also that an assignment does not create in the assignee remedies other than those which were had by the assignor. These propositions, however, are not determinative of the situation presented in this case. Under the statute enacted by the legislature, it is provided *Page 214
that, in case of insurance against death or disability, an insurance company may be sued in the county of plaintiffs' residence. The word "plaintiff" has a well-defined meaning, and it cannot be assumed that the legislature was not aware of this meaning when it enacted the law as it is now contained in section 11043. Prior to that time, the law had provided that an insurance company might be sued in any county in which it kept its principal place of business, or in which the contract of insurance was made, or in which the loss insured against occurred. The legislature changed this provision by adding thereto the words, "or, in case of insurance against death or disability, in the county of the domicile of the insured at the time the loss occurred, or in the county of plaintiff's residence."
It may be argued that the legislature had in mind that the beneficiary in a case of death or disability might reside in some county other than that in which the insurance company kept its principal place of business, or in which the contract was made, or in which the loss insured against occurred, and that it was for the purpose of allowing such beneficiary to sue in the county of his residence that this change was made in the statute. True, the legislature may have had beneficiaries of insurance policies in mind, but this, even if true, does not establish that other plaintiffs besides beneficiaries were not also in mind when the change in the statute was enacted. The legislature must have known that the term "plaintiff" would include other claimants as well as beneficiaries, and, if it had meant the statute to apply to beneficiaries only, it could easily have said so. Instead of doing this, it authorized insurance companies to be sued in the county of the plaintiff's residence. There does not seem to be any ambiguity in this language, and it is not within the province of this court to limit this provision and say that it shall apply to some plaintiffs and shall not apply to others. Nor does the assignment give the assignee greater rights or create in him remedies other than those had by the assignor. One who acquires the right to sue upon such a policy of insurance by assignment from the beneficiary or person to whom such insurance is payable has the right, as plaintiff, to sue the insurance company for whatever may be due under such a policy. The assignment gives him that right and none other. The statute gives him the further right, as plaintiff, to sue in the county of his residence.
Respondents call our attention to and place great stress on the case of Cochburn v. Hawkeye Commercial Men's Association, *Page 215 163 Iowa 28, 143 N.W. 1006. In that case the residence of the insurer was in Marshall county. The accident occurred in Webster county in which the insured resided. The assured assigned his right under the policy to the plaintiff who brought action in Webster county, in which he also resided. The insurance company contended that the right of the assured to sue in the county of his residence was personal to him and did not pass to his assignee. In passing upon this question, this court said:
"Giving to the statute its fair interpretation, while the right of an assignee to bring suit in his own county and not the county of the residence of the assured may be the subject of doubt, it is clear that when the jurisdiction is laid in the county of the residence of the assured at the time of the loss, even in an action brought by his assignee, such is within the express terms of the statute. The appellant had not the absolute right to be sued in the county of its residence, although, had the plaintiffs so elected, the venue would have been properly laid. While it is claimed that the right granted by the statute is purely personal to the assured, we are of opinion that it may be exercised by his assignee in the place where the assured had the right to sue."
It will be noted that the question which now confronts us was not before the court in the Cochburn case, and, while the court expressed the opinion that the right of the assignee to sue in the county of his residence, if that were not the county of the residence of the assured, might be the subject of doubt, this question was not in the case and was not decided by the court.
[4] Respondents also contend that the assignment was made without consideration, was made merely to evade the provisions of the venue statutes, and was a fraud upon the court. It fairly appears in the evidence that the attorneys for Clara E. Welch, the beneficiary in the policy, were to receive one-half of any recovery in compensation for their services. It further appears that these attorneys were the beneficiaries of the assignment which was made in trust to Harold A. Olson. We think it sufficiently appears, therefore, that the assignment was not without consideration. Even if it were necessary that the consideration pass from the assignee, who in this case was the trustee, to the assignor, it cannot be said that there is no evidence of consideration, because it appears from the evidence *Page 216
that, in case of recovery, said Olson was to receive compensation for his services as such trustee.
Even if the assignment were made for the purpose of evading the venue statutes so that the action might be brought in the place of residence of the plaintiff in Winneshiek county, it cannot be said that this was a fraud upon the court, if the assignment was otherwise valid. There can be no fraud upon the court in doing what the law authorizes to be done.
It is our opinion that Clara E. Welch, as beneficiary, had a right, after the loss occurred under the policy, to assign one-half of her interest in and to any claim she had under such policy to Olson, as trustee. Under section 10968, Olson, as trustee, had a right to prosecute an action without joining with him the party for whose benefit the action was prosecuted. Clara E. Welch having joined with him as plaintiff in the action, the entire claim against the appellant insurance company was prosecuted in this action, and there could be no complaint that Olson, as trustee, was splitting the action and prosecuting a part of it under his assignment. Being a resident of Winneshiek county and being a plaintiff in the case, he had a right under section 11043 to prosecute this action in Winneshiek county. Having this right under the terms of the statute, it can be no defense thereto, and cannot be ground for a change of place of trial, that the prosecution of this action in Winneshiek county will subject respondent insurance company to greater expense than if it had been prosecuted in the residence of the original beneficiary, Clara E. Welch, in Johnson county. Whatever the motives of the attorney, R.N. Klass, may have been, whether vindictive or otherwise, does not change the rights given to the parties under the law and under the statutes.
Under the facts as they appear in the record in this case, we feel constrained to hold that the district court erred in entering an order requiring the case to be transferred to Johnson county, and in assessing costs and expenses against the plaintiffs.
The writ of certiorari is, therefore, sustained, and the order of the trial court is hereby annulled. — Writ sustained.
CLAUSSEN, C.J., and EVANS ALBERT, KINDIG, MITCHELL, and KINTZINGER, JJ., concur. *Page 217 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433615/ | The sole question involved in this appeal is whether the evidence was sufficient to carry the case to the jury on the question of the defendant's negligence. The testimony of the various witnesses is not in complete harmony. In a situation of this kind we are, of course, required to view the testimony in the light most favorable to the plaintiff.
The defendant and his wife were driving west on United States Highway No. 6, just west of the town of Newton. At the place where the injury to the plaintiff was received there is a group of mailboxes on the north side of the highway at or near the north boundary of the right of way. Across the road on the opposite side of the highway is a filling station. The plaintiff, a little girl five years of age, together with another little girl of the same age, and two little girls eight years of age, were at these mailboxes where the father of one of the older girls had sent her to get the mail. After examining the mailboxes they started across the highway to the filling station with the intention of purchasing some candy. The defendant, who was then 250 or 300 feet down the road to the east driving his *Page 753
automobile westward, testified that when the children reached a point three or four feet from the paving he observed them and sounded his horn and made some effort to apply his brakes; that when the horn was sounded the group of little girls stopped; that one of the older girls who was in the center of the group stretched out both her arms, one to each side of her, as though to restrain the other children in the group. There is testimony of other witnesses, including one of the little girls in the group, that no horn was heard. The defendant proceeded at the rate of speed he had previously been traveling, estimated by the witnesses to be from thirty to forty miles per hour. He testified that he proceeded on his right side of the pavement and about three feet from the north edge, which would bring him within six or seven feet of the place where he knew these little children were then standing poised ready to cross the highway. He did not turn from his course until after the child was struck, and he turned off on the right shoulder of the road. His testimony is that he paid no further attention to the group of children, and that he did not know that he hit the plaintiff, one of the five-year-old children in the group, until he heard the thud of the impact. He then brought his automobile to a stop some 150 or 200 feet beyond the point of the collision.
The circumstances immediately surrounding the collision are somewhat in dispute. The defendant's wife, who was riding with the defendant, says that when they were about eight feet from the group of little girls that the plaintiff ran out into the road and was struck by the right front fender of the defendant's car and thrown back onto the shoulder of the road. Some of the little girls in the group say that the child was struck while on the shoulder of the road. A man driving a truck behind the defendant's car testified that he saw the child come out from under defendant's car, and that immediately after the accident the child was lying in the middle of the right lane. To have been there the child must have been in the middle of the front end of defendant's car when struck.
We have, then, in this case, even if we give full credence to defendant's testimony, this situation: A motorist sees and knows that there is adjacent to the highway, and within three or four feet of the paved portion thereof, a group of little children, two of them only five years of age and two of them *Page 754
eight years of age. He knows that their purpose is to cross the highway. When 250 or 300 feet away he sounds a warning which they apparently heard. From that time on the motorist assumes that the children thus warned and in a place of safety will remain there until he has passed, and proceeds at 30 or 40 miles an hour within six or seven feet of where the children are standing without giving any further heed to the presence of the children on the highway, or taking any precaution to guard against the possibility of these children, or some of them, moving from the place of safety where he saw them stop to a place of danger on the paving.
This court, in the case of Webster v. Luckow, 219 Iowa 1048, 258 N.W. 685, decided since the verdict was directed in the case at bar, has very definitely laid down the rule that a motorist can not ignore the frequently observed disposition of children of tender years, especially when in a group, to be heedless and capricious and to dart here and there and from a place of safety to a place of danger and into the pathway of an oncoming car. The defendant in this case saw these children, saw that they were of tender years, saw that they wanted to cross the road and that they were poised there ready to cross, and that one of the older children was making some effort to restrain the younger ones from going out onto the paving. He had no right to assume that they would remain in a place of safety. He should anticipate that children of that age and under such circumstances are likely to do the very thing the plaintiff in this case apparently did do. He should, therefore, have continued to keep a lookout for these children, to be on the alert to avoid injury to them, and to reduce his speed when passing them so as to be in a position to stop promptly or to turn from his course to avoid striking them, or any of them, if they should run into the path of his car. The degree of care which the defendant was required to exercise in this situation was commensurate with the obvious danger, and one of the obvious dangers was the disposition of children of tender years, seeking to get across the highway, to suddenly run across in response to impulse and without the exercise of judgment or caution. Motorists must take into account this disposition of children of tender years, and take the precautions in passing them which that situation requires. There is evidence in this case that no precautions whatever were taken by the defendant after *Page 755
he warned the children when 250 or 300 feet from them by sounding his horn. The fact that they then stopped would not justify him in abandoning all further care for their safety. A jury might have found, under the rule of the Webster case, that the defendant failed to use the degree of care required of him under the circumstances. A jury might have found, also, that, if defendant had been in the exercise of the proper care, he could have avoided striking this child, and that his failure to exercise such care was the proximate cause of the injury which this child sustained.
Because of plaintiff's tender years, no question of contributory negligence is involved.
We are satisfied that the question of defendant's negligence and the question of such negligence being the proximate cause of the injury to the plaintiff were for the jury.
It follows that the judgment must be, and is hereby, reversed.
KINTZINGER, C.J., and ALBERT, MITCHELL, ANDERSON, DONEGAN, PARSONS, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433617/ | Prior to December 13, 1920, the defendant James C. Pierce had become indebted to the State Bank of Deep *Page 778
River for borrowed money, to the amount a little less than $4,000, a portion of which was used for the benefit of the wife, Ruth M. Pierce. On said date, Pierce executed a new note to the bank, to take up all old notes and for an additional small sum in cash. Mrs. Pierce signed this note, and later she and her husband executed a mortgage, to secure the payment of the same. This note was renewed in February, 1923.
About the month of February, 1924, Frank J. Wilson, father of Mrs. Pierce, died, possessed of real and personal property, and by the terms of his will, his widow was given a life estate, and the property, subject to the life estate, was divided equally between his five children. In May, 1926, Mrs. Pierce executed an assignment of her interest in her father's estate to her two sons, Robert and James, Jr. At the time of this conveyance, Mrs. Pierce had no property other than her said interest in her father's estate. In September, 1927, the said bank began suit on the note.
On the 22d day of October, 1927, both James C. Pierce and Ruth M. Pierce filed petitions in bankruptcy, in the southern district of Iowa. Attached to Mrs. Pierce's petition was a schedule in which she listed the State Bank of Deep River as a creditor to whom she owed $4,000. On the 26th day of October, 1927, an adjudication of bankruptcy was entered. On November 15, 1927, J.W. Scovel, plaintiff in this case, was appointed trustee of the estates of said bankrupts. On the 20th day of December, 1927, the claim of the State Bank of Deep River, in the sum of $5,506, was approved and allowed as an unsecured claim against the estate of the said Ruth M. Pierce, bankrupt.
I. The first point relied upon for reversal is that the suit to set aside this conveyance was not brought within 1. BANKRUPTCY: four months of the date of the conveyance, and preferences therefore, under the bankruptcy laws of the by bankrupt: United States, the time for bringing the suit right to had expired. Section 67e of the Bankruptcy Act set aside. (U.S. Comp. Stat. 1916, Section 9651) is as follows:
"That all conveyances, transfers, assignments, or incumbrances of his property or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on *Page 779
his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or encumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the state, territory, or district in which such property is situate, shall be deemed null and void under this act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt. For the purpose of such recovery any court of bankruptcy as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction."
Section 70e of said Bankruptcy Act (U.S. Comp. Stat. 1916, Section 9654) is as follows:
"The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona-fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona-fide holder for value. For the purpose of such recovery any court of bankruptcy as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction."
Section 47a of the Act (U.S. Comp. Stat. 1916, Section 9631) provides, among other things, that the trustee: *Page 780
"* * * shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied * * *."
It is claimed that, by virtue of the foregoing, and the decision of this court in Murphy v. Murphy Co., 126 Iowa 57, this action is barred. Such appears to be the holding of theMurphy case. It was decided in November, 1904. The foregoing provisions of the Bankruptcy Act were in force at that time, and no material amendment has since been passed. In 1918, in passing on this question, the Supreme Court of the United States said:
"This section [70e] as construed by this court gives the trustee in bankruptcy a right of action to recover property transferred in violation of state law. [Citing cases.] * * * And a right of action under this subdivision is not subject to the four months' limitation of other sections (60b, 67e) of the Bankruptcy Act. Under this subdivision, if a creditor could have avoided a transfer under a state law, a trustee may do the same."Stellwagen v. Clum, 245 U.S. 605, 614.
"The right of action given the trustee by the just-mentioned provision [70e] is not subject to the four-months limitation. Under that provision, if a creditor could have avoided a transfer under a state law, a trustee may do the same." Campbell v.Calcasieu Nat. Bank, 12 Fed. (2d Ser.) 981 (C.C.A. 5th Cir., 1926).
See, also, Campbell v. Dalbey, 23 Fed. (2d Ser.) 229 (C.C.A. 5th Cir., 1928); Peacock v. Fairbairn, 45 Idaho 628 (264 P. 231).
Several of the other states have adopted the same rule.
In administering a Federal statute, we prefer to apply the rules of construction given thereto by the Federal courts. In accordance therewith, we hold that the plaintiff was not confined, in the bringing of this suit, to the four-months period. In so far as this ruling is in conflict with Murphy v.Murphy Co., supra, the same is hereby overruled.
II. It is claimed that Ruth M. Pierce was not legally indebted *Page 781
to the State Bank of Deep River in any amount, at the time she made this assignment, in May, 1926, and consequently the bank could not have been at that time an existing 2. FRAUDULENT creditor. It appears that, at the time Mrs. CONVEYANCES: Pierce first signed the note to the bank, her indebted- husband had an accumulated indebtedness at the ness: bank of approximately $4,000. This new note was evidence. in renewal of all old notes, and for a small cash balance. At the time the note was signed by the husband, Pierce, Mrs. Pierce not being present, there was an understanding between the bank and Pierce that subsequently Mrs. Pierce would sign the note and the mortgage securing the payment thereof. This transaction took place in December, 1920, and it was not until March following that Mrs. Pierce signed the note and mortgage. This first note matured on December 13, 1921. It appears that the bank did not press the makers for payment until in February, 1923. At that time, the note was renewed. Mrs. Pierce says, on this subject:
"I know that I signed the note and mortgage so that the bank would give my husband further time, and not press him for payment."
There is in the record some evidence tending to show, on behalf of Mrs. Pierce, that she thought, at the time she signed the first note and the mortgage, that she was only releasing her dower interest in the farm, and not obligating 3. BILLS AND herself personally upon the note. But there is NOTES: con- no evidence that she was so told or led to sideration: believe by the bank or any of its officials. The extension representative of the bank testifies that her of time of signature to the note and mortgage was required payment. as a condition precedent to the surrender of the old notes. However this may be, Mrs. Pierce's own statement, hereinbefore quoted, in reference to an extension of time for her husband, is conclusive. This court has recently said (CommercialSav. Bank of Ames v. Carey, 207 Iowa 1060):
"Nor may it be questioned that an extension of time [for] payment to a debtor furnishes adequate consideration for the signature to a new note by another for a debt owed by the principal debtor."
Furthermore, in October, 1927, Mrs. Pierce filed a petition in *Page 782
bankruptcy, and scheduled in connection therewith the said note of $4,000 as her indebtedness to the State Bank of Deep River, Iowa. Subsequently, in December, 1927, the claim of the State Bank of Deep River on said note was approved and allowed as an unsecured claim against the estate of the said Mrs. Pierce, bankrupt.
After a careful examination of the somewhat lengthy record upon this subject, we hold that Mrs. Pierce was indebted to the State Bank of Deep River at the time this assignment was made.
III. It is claimed that Mrs. Pierce was not insolvent at the time the assignment was made, in May, 1926. At the time of the transfer in question, the note to the bank was 4. FRAUDULENT still unpaid, and Mrs. Pierce herself testified CONVEYANCES: that, at the time of the transfer, she had no voluntary property other than her interest in her father's conveyance: estate. She had not yet come into possession of effect. this property. Mrs. Pierce testified as follows:
"My sole object in making the transfer was to prevent my husband from squandering the money which would come from my father's estate, because I wanted the boys to have it."
It appears clearly from the record that, at the time of the transfer, both Mr. and Mrs. Pierce were without funds. It is claimed that the petty earnings of the boys and small contributions made to the boys by relatives had been and were being appropriated for family use at that time. The value of Mrs. Pierce's interest in her father's property is in dispute. The estate, at the time of the transfer, had not been settled, and it does not appear what the value of her interest would have been, had it been then reduced to cash. On the whole record, we find that Mrs. Pierce did not have, after the conveyance in question, sufficient property to satisfy the claims of her creditors. On this subject, see Campbell v. Campbell, 129 Iowa 317, where it is said:
"But a voluntary conveyance, even to children, as to whom there may be presumed an inducement by way of love and affection, is constructively fraudulent as to an existing creditor, unless the grantor had remaining after the conveyance sufficient property to satisfy the claims of his creditors; and the burden is on the grantee to rebut the constructive fraud by proving that *Page 783
the remaining property of grantor was sufficient for this purpose."
This court has also said:
"Where it is found that a debtor is insolvent at the time judgment is rendered, and is unable to respond to the amount recovered, his insolvency will be considered as extending back beyond a voluntary conveyance of his property made during his indebtedness, unless the contrary is shown." Strong v. Lawrence,58 Iowa 55.
This rule also being applied to Mrs. Pierce at the time she, upon her own motion, was adjudicated a bankrupt, it follows that she became insolvent by making the transfer in question.
IV. Finally, it is claimed that the assignment was not made with a fraudulent intent to hinder, delay, and defraud existing creditors. It is contended on behalf of Mrs. Pierce, among other things, that her transaction with the bank, 5. FRAUDULENT about March 1, 1921, amounted only to a waiver CONVEYANCES: on her part of her dower interest in the farm on consider- which the mortgage had been given to the bank as ation: security for the note. It is claimed in her earnings of behalf that the old notes owed by her husband to minor. the bank had been surrendered prior to the time she first signed a note to the bank with her husband. It is claimed that no demand was made upon Mrs. Pierce by the bank until suit was brought upon the note and mortgage. It is also claimed in her behalf that, at the time she signed the renewal note, — the one in suit, — the farm had been surrendered to the bank. It appears from the record that, at the time the first $4,000 note was executed by Mr. Pierce, Mrs. Pierce was not present; but it also appears that a definite understanding and agreement was entered into between Pierce and the bank, that Mrs. Pierce should sign the note and join with Mr. Pierce in the execution of a mortgage. This was done in March, 1921. It is undisputed that this indebtedness was renewed from time to time, until finally the note in suit was executed by both Mr. and Mrs. Pierce; and Mrs. Pierce admits, as previously stated, that she executed this note for the purpose of obtaining for her husband additional time for payment.
It is claimed on behalf of Mrs. Pierce that the minor boys *Page 784
had, from time to time, been earning small amounts, and that these sums had been taken and used partly in furnishing supplies for the boys, and partly for the common expenses of the household. The amounts do not clearly appear, but it is apparent that the total is small. It is also claimed that these boys had been the recipients of small gifts, from time to time, from different relatives, and that these sums also were likewise appropriated for family expenses and other similar needs. It is claimed, however, that these funds which thus came into the possession of the boys formed a consideration for the transfer. The whole record on this subject is unsatisfactory, and not at all convincing.
The lot of Mrs. Pierce had been none too fortunate. Her husband was far from successful. He was improvident. The family finances were in desperate condition. Notes matured from time to time, and Pierce continued to add the unpaid interest to the principal, and renew the paper. It must have been apparent to Mrs. Pierce that existing indebtedness would very soon sweep away every vestige of property not exempt. It was under such circumstances that Mrs. Pierce made an assignment to her boys of her interest in her father's estate, — an interest which had not yet been determined, and in an estate which had not yet been settled. It was a laudable and maternal instinct which prompted the mother to endeavor to protect her boys from the gathering storm, but unfortunately, creditors had rights demanding protection. Without a showing that Mrs. Pierce had, independent of her interest in her father's estate, sufficient property with which to pay the bank, the conveyance to the children was constructively fraudulent. Campbell v. Campbell, 129 Iowa 317; Hansen v. FirstNat. Bank, 197 Iowa 1101.
"It is a firmly established doctrine that, where a voluntary conveyance is made by a husband to his wife, it is presumptively fraudulent as to existing creditors, and the grantee is under the burden of showing that the grantor had sufficient property remaining to pay his debts. Tyler v. Budd, 96 Iowa 29; Seekel v.Winch, 108 Iowa 102; Carr v. Way, 141 Iowa 245; Woods v. Allen,109 Iowa 484; Kolb v. Mall, 187 Iowa 193. The same rule applies to a voluntary conveyance made to a child. Strong v. Lawrence,58 Iowa 55; Campbell v. Campbell, 129 Iowa 317; *Page 785 Long v. Garey Inv. Co., 135 Iowa 398." Dolan v. Newberry,200 Iowa 511, 514.
There is no satisfactory showing that the relatives had given the boys any specific amount of money, or that the mother owed either of them any amount. In fact, there is testimony to warrant the conclusion that all the money given by the relatives, at least that given by the grandfather, was not, in fact, given to the boys, but to the father.
Moreover, the taking of the earnings of the minors by the parents, under circumstances as shown here, did not constitute a consideration for the conveyance. There is no showing that the boys were emancipated, and under those circumstances, their earnings belonged to the father. Crary Bros. v. Hoffman, 115 Iowa 332; Gamet Ogden v. Simmons, 103 Iowa 163. See, also, Ransom v.Lochmiller, 207 Iowa 1315.
Further discussion of the evidence would unduly extend this opinion.
This case presents an unfortunate situation. It is to be regretted that the boys — particularly the one in poor health — cannot profit by the mother's inheritance. But after a very careful, painstaking examination of the record, and an examination of authorities, we are forced to the conclusion that the case must be, and it is, — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433653/ | I. The mortgage in question was a second mortgage, covering a half section of land in Hancock County, and made subject to a mortgage of $25,000. The three defendants named and duly served were Teget, the mortgagor; Gus Schulz, the 1. MORTGAGES: tenant in occupation; and Plymouth Clay Products foreclosure: Company, as a claimant of some interest in the decree: property. The suit was commenced on February 2, conclusive- 1928. After execution sale, there remained a ness against deficiency judgment of more than $8,000. rent Pursuant to the mortgage and the decree thereon, claimant. a receiver was appointed, to take possession during the year of redemption, on April 23, 1928. He leased the land to defendant Schulz, who was already in actual possession, pursuant to his former tenancy under Teget, and who also had been evicted by the decree. In November, 1928, the appellant intervened, and claimed the rents. He predicated his claim upon an alleged assignment of such rents, and upon a chattel mortgage given thereon to him by Teget. It appears that, in December, 1926, Teget executed a lease of the premises to Schulz for a period of one year from March 1, 1927. On January 18, 1927, Teget made a formal written assignment of the lease to the intervener, to secure a note of $4,000. He also executed a purported chattel mortgage on the following described property:
"All my [Henry Teget's] share and interest in the crops and rental accruing from the west half of Section 29, Township 97, Range 24, Hancock County, Iowa, during the years of 1927 and1928." (The italics are ours.)
The claim of the intervener is predicated upon the two italicized words above. On the date of the alleged assignment and of the purported chattel mortgage, the lease of Schulz purported to expire on March 1, 1928. Some months later, Schulz and Teget orally agreed that the lease should be renewed for the year 1928. The intervener claims that this renewal inured to his benefit, and brought the crops of 1928 within the provisions of his previous chattel mortgage. The chattel mortgage was drawn to the intervener as "trustee." It is in such capacity that he intervenes. It appears from the evidence in the case that he was *Page 159
purporting to act as trustee for the Plymouth Clay Products Company. Teget was indebted to the amount of $4,000 to said company. Norton, the intervener, was the auditor and general manager of such company. The Plymouth Clay Products Company, Teget, and Schulz were parties to the decree of foreclosure, and were fully foreclosed thereby. Norton claims, in support of his petition of intervention, that, as a trustee, he was a necessary party to the foreclosure. He had no personal interest in the instruments under which he claims. He was a trustee for his corporation in no other sense than that he was an agent for it. The corporation itself was under no disability. It was composmentis and sui juris. Its authority over its property was superior to that of the alleged trustee. The legal effect of the appellant's trusteeship was precisely that of an agent, and nothing more. It is true that, as such trustee, he could, under the statute, have maintained an action in his own name, for the benefit of his beneficiary. But this statutory power would not exclude the power of the beneficiary itself to maintain an action, or to set up a defense in its own name, as the sole party in interest. Section 10967, Code, 1927; Rice v. Savery, 22 Iowa 470. The intervener contends that he was also trustee for Teget. This is a legal conclusion only, and is not tenable. There is a sense in which every security-holder is a trustee for the benefit of his debtor. But that means no more than that he must return to the debtor the unused part of the security. Such a trustee does not exclude the debtor from the right to assert and defend his own interest in the property, to the fullest extent.
The decree entered in March, 1928, was a complete adjudication as against Teget, Schulz, and Plymouth Clay Products Company. The original notice to the Plymouth Clay Products Company was served by reading and delivery to the intervener, Norton. His present intervention can serve no personal interest of Norton himself. The only function sought for it is to serve the interest of the Plymouth Clay Products Company. The rights of that company have been completely adjudicated by the decree. Its representative, therefore, can have no further standing. The case at this point is fully controlled by Browne v. Willis, 199 Iowa 453.
II. As against the intervener, the case is further controlled by Louis v. Hansen, 205 Iowa 1216. Taking the intervener's *Page 160
2. MORTGAGES: own construction of his mortgage, as intended to foreclosure: cover the crops for 1928, the subject-matter of rents: his mortgage had not come into being when the conflicting foreclosure suit was begun. Whether his mortgage claims of could be deemed effective, as between him and receiver and Teget, to cover any crops in 1928, we need not chattel consider. mortgagee.
The petition of intervention was properly dismissed. —Affirmed.
ALBERT, C.J., and FAVILLE, De GRAFF, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433656/ | Levi Green died intestate in 1926, leaving three daughters and a son as his heirs at law. Francis Snyder, husband of a daughter, Nellie Snyder, made claim against the estate of decedent upon a note for $800, executed in 1920, and a $500 loan evidenced by a check dated August 16, 1922. A temporary administrator was appointed to act in connection with the determination of said claim. The cause was tried to *Page 704
the court which allowed the $800 note and disallowed the $500 item. From the portion of the judgment disallowing the $500 item claimant appeals.
The judgment entry contains the following findings:
"It appears without dispute that both of said claims are based upon the identical obligations and the claims constitute a duplication. In fact, the claimant testified that all he was making was one claim against the estate, and according to the evidence, both of said claims may be considered as one claim as they are based upon identical consideration and constitute a duplication.
"The court further finds * * * claimant * * * is entitled to have his claim based upon the said note * * * of $800.00 * * * duly established * * *.
"The court further finds that as to that part of the claim of Francis Snyder based upon the check bearing date of August 16th, 1922, in the sum of $500.00, and which claimant claimed was a loan to said decedent, the court is of the opinion that there is no evidence to show that the said check was given as a loan; that the evidence of Nellie Snyder, if competent at all, goes no further than to show that claimant and decedent talked about the payment of a $500.00 debt and that the said witness, Nellie Snyder, was an incompetent witness with regard thereto.
"The court further finds that as the claimant has made no sufficient proof as to the check being issued as a loan to the said decedent, that part of said claim should be denied."
Appellant contends the part of the order denying the $500 item was erroneous. The complaints are largely centered upon that paragraph of the findings of the court (above set out) in which reference is made to the evidence of Nellie Snyder. No attack is made upon the finding that "it appears without dispute" that the $500 claim and the $800 claim "are based upon identical considerations and constitute a duplication." This portion of the judgment entry is neither discussed nor mentioned in the argument and no alleged error is based thereon.
[1, 2] I. The first division of appellant's argument is devoted to a discussion of the inferences arising from the delivery of a check under various situations. It is contended the circumstances in this case create an inference that the $500 check was a loan. In support of this contention appellant cites certain *Page 705
cases from another jurisdiction. We will not undertake the discussion of the varying holdings of these or other outside cases. Ordinarily the trier of facts in any case is entitled to draw such legitimate inferences as the record will warrant. However, attention may be called to our holding in Wragg v. Rippey, not reported in Iowa reports, 229 N.W. 237, that where one seeks to recover for money loaned, the burden is on him to prove a contract, express or implied, for the repayment thereof.
Such propositions as the burden of proof and the presumptions and inferences, if any, arising from the facts and circumstances shown in the record, were, no doubt, given proper consideration by the trial court. In the absence of specific findings upon these matters we cannot say what part they played in the decision.
[3] The trial court found, among other things, "that all he was making was one claim against the estate" and that "it appears without dispute that both of said claims are based upon the identical obligations and the claims constitute a duplication." Appellant does not challenge this finding. Without a showing that such finding was erroneous the matters discussed by appellant in this division are insufficient to justify the overturning of the conclusion reached by the trial court.
[4] II. Error is also predicated upon the rejection of the testimony of claimant's wife covering a conversation between decedent and claimant in which decedent allegedly said with reference to the debt owed claimant, "they should get around to make a note for the $500.00 he gave him."
It appears this evidence was admitted without objection, the alleged error being in the finding of the court "that said witness * * * was an incompetent witness." See Code, section 11257.
From the rather abbreviated record before us it appears the witness was competent to testify to the conversation between claimant and decedent. The conversation in which she took no part was not a personal transaction or communication between her and decedent. In re Estate of Allis, 221 Iowa 918, 267 N.W. 683. However, the statement of the court that this witness was incompetent was immediately preceded by a finding that such evidence went no further than to show a conversation *Page 706
about a $500 debt, and inferentially that it was not sufficiently definite to establish the claim. Therefore, the refusal to consider this evidence could not be said to have affected the result even though the decision had been based solely upon the findings in this paragraph of the judgment entry.
[5] III. Appellant also bases error upon the rejection of the testimony of claimant's wife relative to an alleged conversation after her father's death, between claimant, her husband, her brother and her two sisters about some debt owed by decedent to claimant. Claimant and wife in the presence of the others said they had a note and a check, but nothing was said about the amount of the debt. The brother and one sister told her to file the claim, that they would see claimant and wife would not be out their money. The brother and said sister also said they knew about it. The other sister said nothing.
We think the trial court properly rejected the proffered evidence, if for no other reason than that the sister who remained silent was not shown to have known anything about the claim and could not be bound by any admissions of the other heirs. No Iowa case directly in point has been called to our attention, but this court has frequently held that where there are several devisees or legatees whose interests are several, and not joint, the declarations of one are not admissible, for the reason that they might operate to the prejudice of the others. Wackman v. Wiegold, 202 Iowa 1391, 212 N.W. 122. The general rule appears to be that the admissions of an heir are not admissible to prove a claim against an estate unless he is the only heir interested upon that side of the action. Jones, The Law of Evidence in Civil Cases, 4th Ed, 1938, section 253.
[6] The foregoing discussion of the various errors assigned was perhaps superfluous. The finding and judgment of the court has the effect of the verdict of a jury and may not be set aside if it finds any substantial support in the record. In re Will of Fish, 220 Iowa 1247, 264 N.W. 123. At every turn we are met with the finding, unchallenged by appellant, that the undisputed record shows the $500 claim was included in the $800 claim which was allowed by the court.
In the face of this the sufficiency of the other grounds upon which the judgment was based becomes immaterial. *Page 707
Wherefore, the judgment of the trial court is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433678/ | The incorporated town of Norwich is located near the southeast corner of Section 29, Township 69, Range 38, Page County. In 1921, the board of supervisors of said county established, as a part of Primary Road No. 3, locally known as Waubonsie Trail, a new route on the section line between Sections 29 and 32, Township 69, Range 38, from a point near the intersection of a north and south highway on the west section line to a point several hundred feet east, to intersect with a long established portion of said highway. The right-of-way tracks and depot grounds of the Chicago, Burlington Quincy Railroad Company are situated to the southwest of Norwich, and the track extends in a northwesterly and southeasterly direction, curving slightly toward the southwest, and crossing a portion of appellant's farm. The railroad right of way crosses the section line not far east of the depot, which is situated west and southwest of Norwich.
Prior to the establishment of the new road on the section line at the point referred to, the highway ran a short distance *Page 907
to the northeast, past the Burlington depot, and then curved to the southeast, intersecting the old highway near the point where a heavy fill was placed on the new road. The curved portion of the highway was vacated when the new road was established. A bridge or viaduct 278 feet long, the floor of which is 26 feet above the top of the track, was constructed across the railroad right of way in 1923, as a part of the new highway. Fills or embankments were erected at each side thereof, as approaches to the viaduct, the fill on the west being 500 feet, and the one on the east about 200 feet in length.
The plaintiff, appellant herein, is the owner of the northwest quarter of Section 32, which abuts upon the new highway. There are three residences on the north side of appellant's farm, one fronting west on the north and south road on the west section line, one about 40 rods east thereof, and another, a two-story modern residence, which, with the other near-by buildings, constitute the main improvements on the quarter. The latter residence is about 50 rods east of the west section line. The middle residence is situated about 100 feet south of the highway, and the main residence about 300 feet south thereof. The highway at the point in question was completed prior to the trial of this case in the court below. In 1922, appellant filed in the auditor's office a claim against Page County for damages in the sum of $10,000. This claim is based upon the alleged damages to his premises by reason of the heavy grade constructed on the highway, which obstructs his view to the north, and of the town of Norwich, and upon the further ground that the improvement resulted in depriving him of the use of his property without due process of law, in violation of the Constitutions of the state of Iowa and of the United States. This claim for damages filed by appellant does not appear to have ever been acted upon by the board of supervisors.
The relief sought in this action is not in all respects clear; but, as we interpret appellant's pleading and the argument of counsel, it is not an action to recover damages, but a proceeding to restrain the maintenance by the county of the embankment or grade in the highway until such time as proper condemnation proceedings may be had to condemn the property of appellant taken for the improvement, and to adjust the damages therefor. *Page 908
The real point argued by counsel, and the one upon which, as we understand it, they mainly rely, is that appellant's right of ingress to and egress from his premises was greatly diminished, if not entirely destroyed, by the heavy grade constructed in the highway, and that such right cannot be taken or destroyed for a public improvement without compensation. It appears without conflict in the evidence, not only that ingress to and egress from appellant's premises were fully preserved, but that the route was not substantially changed. Prior to the grading of the new highway, ingress to and egress from appellant's premises were over a driveway to the north, across the right of way and tracks of the Burlington Railroad Company. The only change in the route is that which results from the construction of the viaduct, or overhead highway crossing. The driveway now passes over the right of way and tracks of the railroad company through the trestleworks under the viaduct. The crossing itself over the railroad tracks was improved, and placed in better condition than it was before the changes were made in the highway. The town of Norwich lies wholly on the north side of the highway and of the railroad right of way. All of the business district, depot, elevators, churches, and stockyards are north of the highway. The schoolhouse is situated north of the Waubonsie Trail, but south of the railroad right of way. The only additional inconvenience to appellant in reaching the schoolhouse is that the railroad tracks must now be crossed twice, instead of but once, as formerly. The real difficulty from which appellant suffers is in getting from his premises onto the highway when he desires to travel east or west thereon from Norwich. Formerly, the driveway from his premises intersected directly with the vacated portion of the road, as above described. There is no point along the new route, either to the east or west of the viaduct, at which appellant can pass directly from his premises onto the highway. After crossing the railroad right of way under the viaduct, he has the same facilities for getting upon the highway as the rest of the public residing in that vicinity. The highest elevation of the grade is 26 feet. This was made necessary in order to secure the proper elevation of the viaduct above the tracks of the railroad company. For a portion of its length, the base of the grade is 100 feet in width, *Page 909
and extends over and onto appellant's premises. The damages resulting from this trespass have been paid, and are not in any way involved in this action. Waubonsie Trail is a primary road extending from Nebraska City, Nebraska, across Fremont, Page, and other counties to the east, and is a much traveled thoroughfare. It is about 9 miles northwest from Norwich to Shenandoah, and about 11 miles east to Clarinda, the county seat of Page County. If appellant desires to travel east on the Waubonsie Trail, he must now go about a block farther, and, if he desires to go west, about two blocks farther than formerly.
It is apparent from the foregoing statement of the facts, none of which are in dispute, that ingress and egress to and from appellant's premises were neither destroyed nor substantially interfered with by location and improvement of the new highway. The inconvenience of being compelled to travel one block farther in one direction and two blocks in another, to reach the highway, is not an unreasonable interference by the public authorities with the right of ingress and egress to and from his premises. The right of way of the railroad company to the southeast from the section line crosses a portion of appellant's premises through a comparatively deep cut, and much greater safety is secured to the public generally by the overhead crossing than was possible the way the highway formerly ran.
Much evidence was offered, tending to show depreciation in the value of appellant's farm by the construction of the heavy grade in the highway, which almost completely cuts off his view to the north, and the erection of the viaduct, with the unsightly trestlework upon which it rests. Naturally, appellant would rather have a convenient road to town that did not pass under the viaduct. The record shows, however, that it was practically impossible to construct the improvement in the highway so as to give immediate access from appellant's premises thereto, and at the same time accomplish the public purpose.
Thus situated, we do not perceive in what way appellant has been deprived of any of his constitutional rights. The county condemned the land occupied for public use, and thereby acquired the right to build whatever grade or embankment was necessary for the reasonable improvement and use of it as a public highway. The exact question here presented was before us *Page 910
in Pillings v. Pottawattamie County, 188 Iowa 567, except that, in that case, the interference with the plaintiff's ingress to and egress from his premises was the result of a deep cut in the highway. In the Pillings case, we held that:
"* * * the liability of the state or municipality for injury to land by the improvement of a public way does not extend to or include indirect or purely consequential damages, but is confined, in judicial application, to the case of property actually taken and appropriated. That this rule works hardship in some cases may be easily believed; and, assuming the truth of the matters pleaded in the petition, this case is an illustrative example of that fact. But roads are not provided for the sole benefit of the property over or along which they are laid. They are for the use of the general public, and the law providing for their improvement has in view their general public convenience and usefulness. When first established, under pioneer conditions, they are given comparatively slight attention; but, with the increase of population and traffic, there comes a correspondingly increased demand and necessity for road improvements. The necessity and propriety of the improvements, their kind, character, and extent, and the matter of their execution or construction, are confided to such boards, officers, or agencies as the legislature has provided for that purpose; and, in the absence of any provision for the review of their action upon appeal or otherwise, their finding and decision are final, so long, at least, as they act in good faith, and within the scope of the authority conferred upon them. In the discharge of these duties, they are the arms or agencies of the state, and are clothed with the exemption which the state itself enjoys against claims for the damages, if any, resulting to the individual citizen or property owner. Snethen v. Harrison County, 172 Iowa 81. And this rule is held to include claims for damages against the county, its officers and agents, even for injuries occasioned by the negligent manner in which those duties are performed.Snethen v. Harrison County, supra."
The matter is so fully and recently discussed in the above case that we deem further elaboration of the subject quite unnecessary. See, also, in this connection, Sauer v. City of NewYork, 206 U.S. 536 (51 L. Ed. 1177). *Page 911
Many authorities are cited by counsel for appellant, typical of which are the following: United States v. Welch, 217 U.S. 333 (54 L. Ed. 787); De Lauder v. Commissioners of Baltimore County,94 Md. 1 (50 A. 427); Graham v. Covington County, 110 Miss. 645
(70 So. 825); Stack v. City of East St. Louis, 85 Ill. 377 (28 Am. Rep. 619); Hopkins v. Clemson Agri. College, 221 U.S. 636 (55 L. Ed. 890); Vanderlip v. City of Grand Rapids, 73 Mich. 522
(41 N.W. 677); Pearsall v. Board of Supervisors, 74 Mich. 558
(42 N.W. 77); Lowery v. City of Pekin, 186 Ill. 387 (57 N.E. 1062);Sterling's Appeal, 111 Pa. St. 35 (2 A. 105).
None of these cases are in conflict with the holding of this court in Pillings v. Pottawattamie County, supra, and other cases therein cited. To review them at length for the purpose of pointing out distinctions would not be profitable to either party.
The right of full and free ingress and egress to and from the premises of appellant must not be confused with the loss of immediate and direct accessibility to the highway, due to the improvement. They are by no means identical. The route which appellant must travel to get upon the highway, if he desires to go east or west from Norwich, is the same as that which the whole public residing in Norwich and vicinity must travel, in order to do so.
Counsel for appellant relies to some extent upon the holding of this court in McCann v. Clarke County, 149 Iowa 13. This case involved a question of special damages to the owner of premises for the vacation of a highway. The point there decided is not applicable here, and nothing said in the opinion bears more than remotely thereon.
While other questions are discussed by counsel, we need not refer to them, as we regard Pillings v. Pottawattamie County,
supra, as controlling of the only proposition really relied upon for reversal.
It follows that the judgment and decree of the court below dismissing appellant's petition must be, and is, — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. *Page 912 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433658/ | The facts in this tragedy are not in dispute.
On the morning of August 8, 1930, Sheriff C.H. Elwood of Cedar County received a telephone call from the police department *Page 1135
of Davenport, stating that the Lage Drug Store of that city had been held up by three men and robbed, and that the bandits had left Davenport on Primary Road No. 74, headed in the direction of Tipton. The car in which the robbers were driving was described; also that it carried orange-colored license plates. Immediately the sheriff proceeded to do his duty. He asked John Carey, a constable, and Robert G. Sproat, a vigilante, to go with him.
The highway runs in an easterly and westerly direction. The sheriff and his men drove five and a half or six miles east of Tipton when they met a car answering the description. They turned their car around and followed the other car to a point about two miles east of Tipton, commonly known as "Charles Ochiltree hill". The sheriff was driving. At his right sat Carey and Sproat was sitting in the back seat. The car was stopped on the north side of the road. Carey got out, walked around the front of the sheriff's car and east along the south side, towards the car that was approaching. He motioned to the driver to stop, which he did, at a distance of approximately fifteen feet behind the sheriff's car. Carey approached the car, with a gun in his hand. Robert Sproat, with a gun in his hand, stepped out of the back seat of the sheriff's car, on the north side, and approached the car that had been stopped.
In the auto that had been stopped were Roy Mercer at the steering wheel, his brother John Mercer at his right, in the front seat, and Wain S. Kile in the rear seat. Carey said to the men, "You look like the men we're looking for." Roy Mercer pointed his gun at Carey and pulled the trigger, but the gun did not discharge. By this time Sproat was walking between the rear bumpers of the sheriff's car and the front fenders of the car that had been stopped, when John Mercer, who had a 45-calibre revolver in his hands, fired at Sproat, who staggered across the street and fell into the ditch on the south side of the highway, dying shortly thereafter. Roy Mercer also fired his gun but did not hit anyone. The Mercer car then drove at a terrific speed down the highway to Tipton and turned north and east. After traveling some little distance the car tipped over near a field in which Robert Moore, a farmer, was working. Kile was injured and the Mercers asked Moore if he would take his car and drive them to a hospital. Moore of course had no idea who the men were, and thinking that he was helping some unfortunate individual who *Page 1136
had been injured, got his car and the three men got into it. John Mercer pointed his gun at Moore and ordered him to drive in a certain direction. For twelve hours they kept Moore a prisoner, finally ending up in East Dubuque. Thereafter the Mercers separated.
Some five or six years later John Mercer, the defendant, was arrested in California and brought back to Iowa to answer for the taking of the life of Robert Sproat. At first he pled "not guilty". He was represented by distinguished and able counsel. His plea was changed to that of "guilty". A hearing was held before the Hon. F.O. Ellison, one of the judges of the district court of Cedar County, to ascertain the degree of punishment that should be inflicted. Various witnesses testified. A written confession made by John Mercer, was introduced without objection. It told the story of a life of crime, of committing over fifty major offenses before the killing of this innocent man, and in detail it described the murder of Robert Sproat. The able trial court, before pronouncing sentence, listened to the evidence and gave to the defendant every opportunity to present any evidence he might desire. He asked the defendant if he had anything to say and the defendant replied, "No." The defendant did not see fit to take the witness stand. A full and complete hearing was held. The judge then fixed the sentence at death.
The question that confronts us here is not whether the appellant is guilty of this crime. There is no dispute in the record. The appellant's story and the stories of all the other witnesses are the same. Appellant confessed the crime; he pled guilty. The sole question at issue is the measure of punishment.
It is the contention of the appellant that a life sentence is ample and that the facts do not warrant the scaffold. However, it is interesting to note that in the appellant's brief and argument filed in this case the following is contained:
"There can be no greater punishment than life imprisonment; — death penalty is quickly served and then there is no more. But with life, it is endless punishment and mental worry till the day when nature has run its course."
Whether or not a life sentence is a more severe punishment than that of a death sentence, is a question the writer of this opinion is not able to answer. To spend the rest of one's life behind prison bars, with the thought ever before him of having taken *Page 1137
the life of an innocent man, is indeed severe punishment, for "in the calmness of his prison cell his mental tortures would know no bounds." It must be kept in mind that it is not the courts that fix the punishment that shall be meted out to those who disobey the law. It is the people, speaking thru their chosen representatives in the legislature of this State, who fix the punishment. The legislature has prescribed the death penalty, and, whether it meets with our approval or not, as long as that remains the law of this State, it is our duty to see that it is so enforced. John Mercer of his own free will chose a life of crime. He confessed to more than fifty major offenses, and it should be noted that that confession is in writing — in his own hand-writing. A reading of it would clearly convince anyone that no person had any part in preparing the confession except John Mercer himself. It covers seventeen pages of tablet-size paper, is in his own handwriting, written with a lead pencil, and the spelling is such as would demonstrate that no one had assisted him. We quote a part of that confession:
"Too men got out of the car, one on each side, and work up to our car. They were holding guns in their hands. One was on each side of are car; they stop at the front of the car and looked like they were weating for something. Then the man on Roy's side began to point his gun at him. Roy pulled his gun up to the door and tryed to fire but it did not go off. The man on his side stared to run back to the car. The man on my side point his gun at Roy and before I know it I had my gun on him and fired. He just look at me and said `My God.' That is when the man with the rafl begin fireing. My gun was a 45 Roy's was a small 32. Mr. Sproat was waking across in front of our car. Roy then get his gun working and fired. I do not thing he shot anyone. The man that I shot crossed the rowd to the other side and fell. We then drove by the other car. My gun I know would not work; the same scell that had been fired was still in it. I thow and gas scell at the man in the front seat and had my gun in my other hand so that he could see it. We then drove down the highway to Tipton and turn North and East. The rowd was slippery and my car turned over and Kile cut his hand on some glass."
John Mercer's only claim is that the case does not present one of planned, malicious, premeditated and deliberate killing. *Page 1138
Let us look at the record.
For months John Mercer and his brother had been committing crimes thruout Pennsylvania, Illinois, Missouri, Indiana, Ohio, and finally, on the morning of August 8, 1930, they reached Iowa and held up a drug store in Davenport. The crimes consisted of larceny, robbery, entering stores, stealing automobiles, and other offenses. Their guns were with them at all times and were loaded, ready for action. They knew no such thing as the law and they cared not about the rights of others. After holding up the drug store they started west on Primary Highway 74, which runs in an easterly and westerly direction. Before they reached Tipton they noticed a car behind them. The three of them then discussed whether they were being followed and got their firearms ready for action. There can be no question they knew when they were stopped that the men who were stopping them were officers of the law. To say otherwise would be like closing our eyes to a self-evident fact. John Carey, the constable, said to them that they looked like the men they were looking for. Hardly had he made that statement when Roy Mercer pointed his gun at him and pulled the trigger, but the gun for some unknown reason (perhaps it was not Carey's time to go) failed to discharge. Then John Mercer, the appellant, fired at Sproat, another officer of the law doing his duty, and Sproat fell dead to the ground.
In the case of State v. Decklotts, 19 Iowa 447, at page 449, Mr. Justice Dillon said:
"That these directions to the jury were applicable to the testimony is not disputed. That they conform to the law as settled in the courts of England, and of this country, requires no elaboration to show. They not only express the law, but they express it with but little verbal, and without essential variation from the language of the accepted authorities and text books in reference to this subject, and in language which, in substance, has been more than once employed in the published judgments of this Court. The State v. Gillick, 7 Iowa 287; 1 Hale, 454; Kel., 64; 1 Russell on Crime, 482.
"The killing, in the case at bar, was by the intentional use of a loaded revolver, discharged into the breast of the deceased. It was entirely correct for the court to state to the jury, that *Page 1139
malice might properly be inferred from the use of such a weapon, unless the circumstances in evidence rebutted such an inference."
In the case of State v. Zeibart, 40 Iowa 169, 173, 174, the doctrine is further elaborated in this language:
"`Malice aforethought may be implied from the kind of weapon used, and the manner and circumstances attending its use, as the place where the wound was inflicted, the strength or severity of the blow given, and if the weapon used was one which, taking into consideration the place where the blow was struck and its evident force would produce a wound which would be likely to result in death, the blow would imply malice aforethought, and if death resulted it would be murder.' This instruction was given by the court, and it is urged that it is erroneous for that `maliceaforethought' cannot be implied from any such facts as stated. But the law is well settled that malice is implied from every case of intentional homicide; and this malice so implied must be malice aforethought, because it will sustain a conviction for murder, which requires malice aforethought, unless the accused rebuts the malice, or such negation arises out of the evidence produced against him to prove the homicide and the circumstances attending it. We conclude that the malice implied by the use of a deadly weapon is that malice which will sustain a conviction for murder, and that, as we have seen, is malice aforethought. In other words, the intent to kill is inferred from the deliberate, violent use of a deadly weapon, and an intent to kill is malice aforethought.
"1. The following authorities show that the law implies malice from the mere fact of the killing, and it devolves upon the defendant to rebut the presumption in order to reduce the offense from murder to manslaughter: Murphy v. The People, 37 Ill. 447; State v. Brown, 12 Minn. 538 [Gil. 448]; Clarke v. State,35 Ga. 75; State v. McDonnell, 32 Vt. 491; Hague v. State, 34 Miss. 616; State v. Gillick, 7 Iowa 287; State v. Knight, 43 Me. 11; State v. Johnson, 3 Jones (48 N.C.) 266; Pennsylvania v. McFall, Add. [Pa.] 255.
"2. And the following cases very directly decide that the use of a deadly weapon is evidence of malice aforethought: 1 Wheaton Criminal Law, section 944; Com. v. Drew, 4 Mass. [391] 396; State v. Merrill, 2 Dev. (13 N.C.) 269; Beauchamp v. State, 6 Blackf. [Ind.] 299; Kilpatrick v. Com., 31 Pa. 198; State *Page 1140
v. Decklotts, 19 Iowa 447; Bivens v. State, 6 Eng. (11 Ark.) 455; 1 Greenleaf on Ev., Sec. 14; State v. Gillick, 7 Iowa 287."
In the case of State v. Woodmansee, 212 Iowa 596, at page 611,233 N.W. 725, 733, this court said:
"`But it is contended that as to the first degree (murder) there was error, because there was no showing of deliberation and premeditation such as would sustain a conviction for that degree of murder. It is well settled that premeditation and deliberation need not exist for any particular length of time before the killing to warrant a conviction for the first degree. State v. Fuller, 125 Iowa 212, 100 N.W. 1114; State v. McPherson, 114 Iowa 492,87 N.W. 421. * * *
"`Where the defendant has selected a deadly weapon, and with opportunity to deliberate has intentionally used it in a deadly manner, it would not, we think, be proper for the court to take the question of deliberation and premeditation from the jury. That under such circumstances it is proper to submit the question of first degree to the jury, although there is no specific proof of deliberation and premeditation, apart from the proof of the violent infliction of a mortal wound, has been affirmed by this court on several occasions.'"
Again, in State v. Troy, 206 Iowa 859, at page 865,220 N.W. 95, 98, we announce:
"`Premeditation and deliberation need not exist for any particular length of time before the killing, and may be proved by circumstantial evidence.'"
From the time that John Mercer purchased the deadly weapon and started out to wage his war against organized society, until the death of Sproat, there was in the mind of the accused a fixed purpose to employ that revolver to take human life on the first occasion it appeared to him necessary to do so to carry out his unlawful acts. That thought was translated into action on August 8, 1930, and murder resulted. John Mercer did not act on the spur of the moment. He had been engaged in this life of crime for a long period of time, and he had made up his mind that he would use the revolver at any time that anyone interfered with him. He was waging war against organized society, and when Robert Sproat, an officer of the law, appeared before *Page 1141
him, Mercer did not hesitate to fire at Sproat and take the life of this innocent individual.
It is not easy to say that a man must pay with his life for an offense he has committed. The writer of this opinion has carefully scrutinized every part of the record of this case. There is not a mitigating circumstance. The appellant was represented by distinguished counsel, who have ably presented his cause to this court. We regret that it is our duty to say that John Mercer must pay with his life, but that is the law. It is our hope and prayer that John Mercer will prepare himself to appear before his Maker, and that He who rules over all of us may be merciful to him. — Affirmed.
HAMILTON, C.J., and ANDERSON, KINTZINGER, DONEGAN, PARSONS, RICHARDS, and STIGER, JJ., concur.
SAGER, J., takes no part in this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433661/ | Patrick Murphy, a resident of Pocahontas County, died testate, June 24, 1906. His two sons James and *Page 680
Philip were named in his will as executors, and also as trustees for certain purposes therein mentioned, and upon 1. EXECUTORS the probate of the will, they duly qualified as AND such, and gave notice of their appointment, in ADMINISTRA- accordance with the order of the probate court. TORS: The decedent was the owner of 640 acres of real accounting estate. His widow and eight sons and daughters and are named as devisees in his will, which is settlement: quite lengthy and complicated, and we do not objections: deem it necessary to state all of its compromise provisions. Except as to 80 acres, the executors and are directed to take full and complete charge settlement: and control of the real property during the life conclusive- of the widow; to procure reliable tenants ness. therefor, collect the rents as they mature, and from the proceeds of the rents, pay all taxes and charges assessed against the real estate; to keep the buildings and the improvements on the same in good repair, have all buildings thereon painted at least once in five years, keep up the fences, and make such other improvements on the real estate as may appear necessary and advisable, and pay the net income to the widow annually during her lifetime. The personal property was also bequeathed to the widow. The daughter Agnes, who filed the objections to the final report of the executors and trustees, is one of the residuary legatees.
In September, 1926, Ellen Murphy, the widow of Patrick Murphy, died testate, and her will has been admitted to probate. The objector is one of the residuary legatees in said instrument. Mary Jane Murphy, sister of the objector, has qualified, and is now serving as executrix of the Ellen Murphy estate.
After the death of the widow, the executors and trustees of the Patrick Murphy estate filed their final report. The appellant, in her objections thereto, alleges that the executors and trustees have failed to account for the reasonable rents and profits of the real estate that was intrusted to their care, either to Ellen Murphy during her lifetime or to her executrix after her death. The executors plead an estoppel, by settlement, as to all matters arising prior to March 29, 1921, by reason of certain litigation then pending, and a settlement thereof, which was entered into among the executors, Ellen Murphy, and the objector. The trial court sustained the contention of the executors, *Page 681
and this affords the chief ground of appellant's complaint.
The executors, more than a year after giving notice of their appointment, filed in the clerk's office a report of their doings prior to that time, which has been lost. No further report was made by them until certain proceedings were begun by the objector. On October 16, 1920, in her petition filed at that time, she alleges the filing by them of a report, which does not appear on file among the records, and that the same was never acted upon by the court. She therein alleged that they have failed to account to the widow for the rents for the lands belonging to the estate, and other claimed acts of maladministration by the executors, and asked for their removal. Thereupon, the executors filed a second report, attaching thereto the receipt which the evidence discloses was duly signed by Ellen Murphy, the widow. In said receipt the widow states that she has received from the executors all sums due her as rent from the real estate, after the payment by them of the taxes and certain sums for the repair and upkeep of the improvements located upon the real estate, and that she has received from them all the personal property as provided by the will. It further provides:
"I further state that the use and occupancy of certain portions of the land owned by late husband has been used by my sons Ambrose and Michael and my son-in-law and his family with my full knowledge and consent and that I do not at this time make any claim or in any manner hold the said executors responsible for the nonpayment to my said executors of any sums due from them for rent of said premises. I further state that I fully approve in every respect all the acts and doings of my said executors in the management of said real property and do not at this time make any claim or demand against them on account of anything done by them as such executors. A full and complete settlement and accounting of all moneys due me from the estate of my late husband is hereby acknowledged."
After the filing by the executors of the said report and receipt, the objector filed an amendment to her petition, averring that the receipt was obtained from the widow through fraud and misrepresentation. Thereafter, a written agreement *Page 682
of settlement was entered into by James Murphy, one of the executors, the widow, and the objector. The executor and the widow are named therein as the first parties, and the objector as the second party. It provides that, for the purpose of equalizing the use of lands between the widow's children and gifts made by her to her children, the widow, Ellen Murphy, who is entitled to the beneficial use of a certain 80 acres of real estate, consents to and directs the executors to pay to the objector one half of the rents received therefrom for the year 1921, less one half the taxes, and one half the expense of any necessary fence repairs, and from and after March 1, 1922, to permit the objector to rent one half of said real estate as she may see fit, and to collect and receive the rents therefor, she to pay one half of the taxes on said 80 acres; and the executors agreed to abide by the provisions of said contract, and the objector agreed to dismiss the proceedings begun by her, and permit the affairs of said estate to be conducted as heretofore, so far as she is concerned. It further provides: "This agreement to be binding during the lifetime of Ellen Murphy, party hereto." The objector, at all times thereafter, received the rent from the one half of this 80 acres, which, according to the will of Patrick Murphy, was to be rented by the executors and the rent therefrom to be paid to the widow. The will gave the objector an interest in this 80 acres after the death of her mother.
It is shown by the record that two of the sons, Michael Murphy and Ambrose Murphy, were in the occupancy of certain portions of the real estate in which they had an interest, and for which they were not paying rent, all of 2. EXECUTORS which was with the consent and approval of AND the mother. It is apparent from the record ADMINISTRA- that the fact that her two brothers were not TORS: paying rent was what caused her to bring the accounting former action against the executors, and it is and the same matter which she seeks to relitigate settlement: in this proceeding. During the lifetime of the allowable widow, the rents from the real estate belonged failure to her, and she could dispose of the same in to collect accordance with her own wishes. While the will rents. imposed the duty upon the executors to rent the real estate and collect the rent and pay it to the mother, yet, with the consent of the mother, the children could be allowed to occupy the portions which would belong to *Page 683
them after her death, without paying rent therefor. Such a course is the equivalent of the children's paying the rent to the executors, and their paying it to the mother, and her, in turn, giving it to the children. By reason of the aforesaid contract, the objector was also permitted to retain the rent from the real estate in which she had an interest. Said contract of settlement is founded upon a good and sufficient consideration. It is conclusively shown by the mother's receipt that she had received all to which she was entitled. It is also apparent from the record that, by reason of the aforesaid contract of settlement, all matters in dispute at the time of the prior litigation were thereby settled and determined. The action of the trial court in so holding is hereby sustained.
Moreover, the executrix of the Ellen Murphy estate has made no objection to the report of the executors of the Patrick Murphy estate.
The executor James Murphy was the devisee of 160 acres of the real estate, and the executors account for rent therefrom at the rate of $240 per year; and the objector complains that the expenditures for taxes, repairs, and improvements upon said 160 acres exceed the amount of the rent. By a separate paragraph of the will, the son James was given the privilege of occupying said real estate during the lifetime of the widow, at the yearly rental of $1.50 per acre. As hereinbefore stated, the executors were directed to keep up the fences and make such other improvements on the real estate as might appear necessary and advisable. None of the expenditures are shown to be improper, except the sum of $82 for two portable brooder houses, which were purchased for said executor's personal use, and which cannot be deemed improvements, within the meaning of that term as used in the will. The credit for said sum is hereby disallowed.
The trial court ordered the taxation of an attorney fee in the amount of $500 in favor of the attorney for the executors and trustees. As to this the appellant complains. While, as *Page 684
hereinbefore stated, the two sons were serving 3. EXECUTORS as executors, and also as trustees, for AND certain purposes mentioned in the will, the ADMINISTRA- services performed by the attorney were TORS: necessarily in connection with the allowance administration of the estate, and therefore and payment the allowance of an attorney fee comes within of claims: the purview of Sections 12064 and 12065 of the attorney Code, 1927. In re Estate of Leighton, 210 Iowa fees: —. The first section places a maximum limit extra- upon the amount to be allowed for the ordinary ordinary services of the attorney. By the latter services: section, it is provided that a further just and burden. reasonable allowance may be made by the court to the attorney "for actual necessary and extraordinary expenses or services." It is manifest from the report that the maximum amount which could be allowed the attorney for ordinary services, computed under Sections 12063 and 12064 of the Code, would be $354.88. To be entitled to compensation for what is termed "extraordinary services," the burden is upon the executor to prove the "extraordinary services" and the reasonable value thereof. See In re Estate of McClellan, 192 Iowa 384; In reEstate of Munger, 168 Iowa 372; In re Estate of Dalton,183 Iowa 1013. As to this matter, there is neither allegation nor proof. Therefore, the allowance for attorney fees is excessive, and $145.12 of the amount allowed by the court is disapproved.
The appellant, in the grounds of error relied upon for reversal, alleges error committed by the court by rulings upon the introduction of the evidence, many of which are not argued in the argument. All such, under Rule 30 of this court, are deemed waived. Those which are argued have had our consideration, and we find that the rulings of the court are correct, or not prejudicial to the appellant.
Because of the improper allowance by the trial court of the credit of $82 for the brooder houses hereinbefore mentioned, and because of the improper allowance for attorney fees in the sum of $145.12, the cause is hereby reversed and remanded to the trial court, with directions to enter judgment and order consistent herewith. — Reversed and remanded, with directions.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. *Page 685 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433663/ | It is conceded that the appellant owed the appellee $200 for rent. On January 4, 1926, the appellee was at the appellant's place, and at said time the appellant gave appellee a check drawn on the Hedrick State Bank for $200, in payment of said rent. The appellant testified:
"I told Mr. Ostrander, at the time I gave him the check, that I did not have quite enough funds in my account in the Hedrick State Bank on that day with which to meet the check, but that I would haul my wheat right away, and have the money for him. * * * I did in fact sell my wheat right away. I hauled *Page 78
one load of it the afternoon of the day I gave Mr. Ostrander the check. I made a deposit in the bank on January 7th. * * * I said that I would haul the wheat right away and get the money for him. I did not tell him when I had hauled the wheat, and did not tell him when I put the money in the bank."
Regarding the transaction the appellee testified:
"He told me at that time that I was to hold the check until he had hauled the wheat. The roads were in very bad condition at that time. He never told me when he hauled his wheat. * * * He did not tell me that he would notify me when he sold the wheat, but told me he would haul the wheat as quickly as he could. * * * I did not make any effort to find out whether he had the money in the Hedrick State Bank to cover the check before February 1, 1926. * * * Q. Isn't it a fact that the only reason why you didn't deposit it during that period of time is that you were not in town to deposit it? A. Yes, sir."
A third party testified to a conversation between the appellant and the appellee after the bank closed. He testified:
"He [appellee] also asked Mr. Sauer if he hadn't told him to hold the check a few days until he hauled his wheat, and Mr. Sauer said he had. * * * In Mr. Ostrander's conversation with Mr. Sauer, Mr. Ostrander did not claim that Mr. Sauer was to notify him when he hauled the wheat."
The check was delivered on January 4, 1926, and the appellant proceeded to sell his wheat, and deposited the proceeds in the bank; and on January 7, 1926, there was on deposit in said bank to appellant's account an amount in excess of the amount of said check. Such amount remained in said bank at the time it closed, on February 1st. Twenty-seven days elapsed from the time that the appellant delivered the check to appellee until the bank closed. During said time, the appellee made no effort to present said check to said bank. The parties lived within a short distance of each other. The bank upon which said check was drawn was some nine or ten miles distant. There was another town nearer the appellee's residence, where there was a bank. It also appears that each of the parties had a telephone, by which they could communicate with each other or with said bank. It *Page 79
also appears that there was a daily mail delivery at appellee's place. There is evidence tending to show that the roads were bad and inconvenient for travel, but were not impassable. There is no substantial dispute in the record. The appellant says that he told appellee he would haul his wheat "right away," and deposit the money to meet the check. Appellee says that the appellant told him he would "haul the wheat as quickly as he could." The parties agree that nothing was said either about the appellant's notifying the appellee that he had sold the wheat and made the deposit, or that the appellee was to find out whether the appellant had deposited it. The appellee states, however, that the only reason why he did not deposit it during the time was that he was not in town to deposit it. In the recent case ofKnauss v. Aleck, 202 Iowa 91, we said:
"We have frequently announced the general rule that, under facts similar to these, the question of what is `a reasonable time' is a question of fact. However, there are exceptions to this rule; and one is that, where the facts are undisputed, it then becomes a question of law. * * * `Where the facts are in dispute, "reasonable time" is a question for the jury; otherwise for the court.'"
Upon the record in this case, we are disposed to differ from the conclusion of the trial court. Under the undisputed evidence, the appellant was to haul his wheat and deposit the proceeds to meet the check "right away," or "as quickly as he could." This he did within three days' time. The appellee made no attempt in any way to present the check for a period of twenty-seven days. We fail to find in the record any reasonable excuse whatever for this delay on the part of the appellee in making such presentation. The only excuse he offers therefor is that he did not go to town, and testimony tending to show that the roads were in bad condition, and that travel was difficult. There were ample mail facilities by which the check could have been presented to the drawee bank, and the evidence discloses that it could have been forwarded for collection through the medium of another bank, reasonably near and convenient to the appellee. We think, upon the record, that it should be held, as a matter of law, that the appellee failed to present the check within a reasonable time, and that, therefore, under Section 9647, *Page 80
Code of 1924, the drawer is discharged from liability to the extent of the loss caused by the delay.
It appears that the drawee bank has closed its doors, and the question of the rights of the respective parties in the amount on deposit to the appellant's credit in said bank is not involved in this action, and we make no pronouncement in regard thereto. It follows that the judgment appealed from must be, and it is, —Reversed.
EVANS, STEVENS, MORLING, and GRIMM, JJ., concur.
KINDIG and WAGNER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433667/ | In this case the plaintiff, Corn Belt Theatre Corporation, appealed to the district court from the action of the Board of Review of the City of Oskaloosa, Mahaska County, Iowa, in confirming an assessment made by the local assessor *Page 356
upon a theater property owned by it in that city in 1941, and in disregarding the objections and the demand of the owner thereto that the Board of Review make a reduction from said assessed figure.
Plaintiff perfected its appeal by giving the statutory notice and filing in the district court a petition in equity setting up the grounds for its appeal. The defendant appeared but filed no pleadings or answer to the petition of plaintiff. The defendant did not then question the jurisdiction of the court or make objections to the trial on appeal. The court, following a hearing in which evidence was taken, found against the plaintiff and in favor of the defendant, taxing the costs to the plaintiff, and the plaintiff has appealed.
[1] I. Both parties have argued to some extent the procedure to be followed by this court on appeal. Both cite section 7134 of the Code of 1939, which provides that trials on appeal shall be in equity and that this court shall determine anew all questions arising before the board. Appellant argues that under the statute quoted the cause is triable here de novo. In re Assessment of Sioux City Stock Yards Co., 223 Iowa 1066, 274 N.W. 17; Leach v. Sanborn State Bank, 201 Iowa 1323, 207 N.W. 326. The cases cited by appellee on the matter of the procedure here deal for the most part with appeals where the record below, especially as to the facts, was not before the court. Such could have little application here as the evidence received on appeal by the lower court has been presented in this court and there is no claim by appellee that the same does not set forth substantially the facts as there given. Following a consideration of the argument made by appellee in this respect, we find ourselves unable to agree with the contentions therein made.
[2] II. The decisive questions growing out of this appeal which we find it necessary to pass upon are two in number.
The first is the question of the jurisdiction of the lower court to pass upon the matters presented to it by the appeal of appellant from the action of the Board of Review. The court, on December 22, 1942, following trial of the cause, made the following judgment entry:
"The court finds for the defendant, and the assessment *Page 357
is confirmed. Judgment against plaintiff for costs. Plaintiff excepts."
Appeal was taken from this judgment.
Appellant in proposition No. 1 of its brief and argument argues that if the action of the lower court was based upon its lack of jurisdiction, then it was in error. Appellee argues that the appellant did not comply with the statute in taking an appeal from the action of the Board of Review and that the action of the lower court was right, thereby arguing that the lower court found against appellant on the failure of the appellant to take the proper steps on appeal. In considering this phase of the matter we will examine the record. The assessor of Oskaloosa, in January 1941, fixed the value of the building owned by appellant at $28,000. Appellant, orally and in writing, objected to the value fixed and requested the assessing officials to reduce the same. This was not done and appellant gave notice of appeal from the action of that Board, by serving notice and then filing its petition in equity wherein it set up its grounds for relief, elaborating upon the objections filed with the Board of Review. Appellee appeared in the lower court but filed no pleading. Neither did it attack the jurisdiction of the court to entertain the appeal. When the cause was reached for trial certain concessions were made of record by the parties in open court. Among these was the ownership of the property, describing it; that its owners had filed objections to the assessment and that the same were refused by said Board of Review; that said Board of Review adjourned on May 21, 1942, and that plaintiff (appellant herein) had appealed therefrom; also that the property described in the petition of appellant had been assessed for the year 1941 by the assessor at $28,000 in arriving at the sixty per cent value of the property: land, $4,800, building, $23,200. Following this the cause proceeded to trial. The appellant introduced witnesses to the value of the assessed property and also that of other properties in the same vicinity, following which the appellee introduced evidence tending to contradict that of appellant and confirm the action of the assessor. The judgment entry, by its very language, indicates that the court ruled upon the contentions of appellant and not upon the matter of jurisdiction. *Page 358
We think that under the record the appellee cannot here raise the question as to the right of the lower court to entertain the appeal. It seems to us that, if raised at all, it is raised here for the first time. Certainly there was no objection to the lower court's proceeding to hear the appeal and no denial or question as to its jurisdiction.
Even should it be conceded that the question was properly raised in the lower court, still it is without merit. In the case of Yeoman Mut. L. Ins. Co. v. State Board of Assessment and Review, 229 Iowa 320, 323, 294 N.W. 330, 332, this court had before it a similar question, that is, the failure of the party appealing to file with the lower court a transcript of the proceedings before the assessing tribunal. That is the question which appellee has argued in this case, i.e., the appellant here failed to file the transcript of the proceedings before the Board of Review in the lower court before hearing. Speaking through Hale, J., in the case above cited, we quote the following:
"Neither is a transcript necessary to give jurisdiction, but only the notice of appeal. * * * that the jurisdiction of the court is obtained by filing of notice of appeal, and from the holdings of the court an appeal such as we have here will not be dismissed unless, from the absence of transcript, petition, or evidence the court has nothing upon which it may act."
See, also, German American Sav. Bk. v. Council of City of Burlington, 118 Iowa 84, 91 N.W. 829; White v. City of Marion,139 Iowa 479, 117 N.W. 254. Many other cases might be cited as authority for the holding but we think the above are sufficient.
The facts, as well as the law, are against the position taken by the appellee as to the right of the lower court to entertain the appeal.
[3] III. The other question raised by the appellant which we are called upon to determine in this appeal relates to the value of the property when same was assessed. In general, it was the claim of appellant in its petition that the value of the property as fixed by the assessor and later confirmed by the Board of Review was excessive, that it disregarded its actual *Page 359
or market value, was in excess of assessments made upon other property of the same value, character, and location, and that the value so fixed was discriminatory and inequitable.
Both parties introduced witnesses who testified to the value of the property assessed; also to the value of some other property in the vicinity. Most of the witnesses were real-estate brokers, experienced in the handling of real estate in Oskaloosa, and claimed to be familiar with the value of city property.
Appellant's witnesses gave opinions as to the value of the theater at the time assessed, ranging from $28,000 to $35,000; opinions of the witnesses for appellee ranged from $30,000 to $48,000. Some of these witnesses gave reasons upon which their opinions were based, such as location, rentals, availability, and values of other properties in the vicinity. These figures indicate quite a difference of opinion as to value, which usually happens when there is involved the question of the value of a certain property. This is neither unusual nor surprising. Neither is such a difference of opinion a reflection upon the honesty or integrity of the witnesses. Estimates of value will naturally vary, depending upon the qualifications and experience of the witnesses, and will reflect to some extent, at least, the views of each witness as to the various factors which may be considered in arriving at values. The matter of values of property such as real estate is generally relative and is arrived at for the most part by comparison with other properties. Factors and considerations which might be given considerable weight by one witness in fixing values, might not weigh so heavily with another.
We do not deem it advisable or necessary to set out at length the testimony of the witnesses as to value given or the factors upon which their opinions were based. There was some evidence that in the city there had been an increase in the number of vacant buildings and a decrease in the valuation of business properties. There was also evidence that real estate in the form of farms had increased in value. There was no evidence as to the complete rental income of appellant's property at the time it was assessed but there was some to the effect that one or possibly two offices had not been rented for a time.
The appellant offered as a witness the assessor, who testified *Page 360
that he had served in that capacity for nine years. He stated that in his opinion the building of appellant, when assessed, had an actual market value of $46,500; also that in 1937 the assessed value of the land was $7,000; that at the time he made the $28,000 assessment on appellant's property he had assessed other properties in the vicinity, among those being the Kresge Building at $28,900 and the Sears Roebuck Building at $35,000, and testified that in his opinion the values fixed by him and later confirmed by the Board of Review were the proper values to be placed thereon.
The statute, section 7109, makes it the duty of the assessor to fix the value of property being taxed. This statute fixes the standard or method of fixing such value. It provides that in arriving at the said actual value the assessor shall take into consideration the productivity and earning capacity, if any, past, present, and prospective, the market value, if any, and all other matters affecting the actual value of the property. The statute further provides that the burden of proof shall be upon any claimant attacking such valuations as excessive and inequitable.
[4] In this case the burden of proof was upon the appellant to establish its claim as set forth in its petition. The evidence was in conflict; some of the witnesses did not express an opinion as to how they arrived at the valuation, or the different factors entering into their opinion as to value. It was essentially a fact situation and with the evidence in conflict we do not think the lower court erred in sustaining the assessment fixed by the assessor and later confirmed by the Board. The presumption is that the assessing officer or officers have done their duty and that the values fixed by them are presumptively correct and in this case it was incumbent upon the appellant to overcome such presumption. Sioux City Bridge Co. v. Board of Review, 192 Iowa 1224, 184 N.W. 733; Call v. Board of Review, 227 Iowa 1116, 290 N.W. 109.
What the law seeks in the assessment of property for taxing purposes is equality. If the appellant has any complaint herein it would be required to show that the assessment of its property exceeded its actual value, or, in comparison with other properties of like kind and character and similarly situated, resulted in *Page 361
inequality or inequity. Hanson v. Local Board of Review, 232 Iowa 390,4 N.W.2d 384; Hawkeye Portland Cement Co. v. Board of Review, 205 Iowa 161, 217 N.W. 837; Trustees of Estate of Flynn v. Board of Review, 226 Iowa 1353, 286 N.W. 483.
This court has held, in Butler v. City of Des Moines, 219 Iowa 956, 961, 258 N.W. 755, 758, that:
"The problem of determining relative values in a situation of this kind is one of the most difficult with which the courts have to contend. There is no such thing as absolute equality in the assessment of property for taxing purposes. What might seem to one qualified person to be the proper difference in valuation between two pieces of property might to another person, equally qualified, seem to be inequitable and unjust. It is the judgment of the assessor which the statute requires in making these assessments. So long as his action is not arbitrary or capricious or so wholly out of line with the actual values as to give rise to the inference that for some reason he has not properly discharged his duty, the assessments made by him and confirmed by the local board of review should not be disturbed by the court."
We think the language above quoted fits the present situation. Appellant makes no showing that the local assessor or the Board of Review acted arbitrarily or capriciously; there is no claim of irregularity in the manner in which the assessment was made or in that of the Board of Review wherein the action of the assessor was confirmed. The Board of Review had before it the objections and complaint of appellant and there is no claim made that appellant was not given the opportunity to present its objections. The same is true upon appeal. The question was before the court on the issues joined; evidence was offered by both sides. The evidence as to the value of the property was in conflict. We hold that, under the record, the findings of the lower court support its judgment. The case is affirmed. — Affirmed.
All JUSTICES concur. *Page 362 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445263/ | Reversing.
June 21, 1924, appellee, Frank Trenkamp, boarded a street car in Covington, Ky., owned and operated by appellant, Cincinnati, Newport Covington Railway Company, bound for Cincinnati, and paid his fare. He was carried over the bridge across the Ohio river between the two cities and into the Dixie terminal in Cincinnati, owned and maintained by appellant in connection with its street car service. He left the car in the terminal, and had proceeded afoot some eight or ten feet when he fell, breaking one of his legs in three places. From this he necessarily suffered great pain, was temporarily disabled for work for a considerable period of time, and incurred much expense in hospital bills and surgeon's fees. He instituted this action to recover from appellant for the injuries and consequent damages, upon the theory that they were the proximate result of its negligence. The trial below resulted in a judgment for appellee for $5,000.00, and appellant has appealed.
The chief ground urged for reversal by appellant is that the record affords no evidence of its negligence, and consequently that it was entitled to a directed verdict.
Appellant's street cars, carrying passengers from Covington to Cincinnati, after crossing the bridge, all enter the terminal where appellee was injured. The cars from Covington enter the terminal on level with its second floor, and passengers alight from them on to an unloading platform raised slightly above the track level, so that from the car step to the platform there is a step down of only about six inches. This platform is of concrete construction, float-finished. Where the passengers are unloaded, the floor of the platform is level for a distance *Page 554
varying in width from approximately four feet at the narrowest point to ten or twelve feet at the widest. The floor then begins to decline to the exits from the unloading platform, going either to street levels or other cars operating out of the terminal to the various parts of the city of Cincinnati; this decline being on a grade of approximately 10 per cent. The concrete surface of the unloading platform and ramp was float-finished in order to furnish a sure-footed walking surface for its patrons. The ramp, as a means whereby its patrons leaving the Covington cars could reach the lower levels of the outgoing cars to Cincinnati or the streets of that city rather than steps, was installed after consultation with, and upon the advice of, the most capable and skilled architects and engineers, as being by far the safer means of the two; and appellee does not complain that his injuries resulted from any structural defect or negligent plan or method of its construction.
The cars from Covington enter the terminal on a slightly curved track, and, after discharging their passengers, proceed around a sharper curve to another point, where they take on passengers for the return to Covington. It was or had been raining on the occasion when appellee entered the terminal building on one of appellant's cars. No car was ahead of it, and it proceeded to the point closest to the sharp turn before stopping to discharge its passengers, so that cars following might enter the terminal behind it. It seems that, in making the sharp turn, water from the gutter on the car falls upon the concrete platform. This happens because the portion of the car ahead of the front trucks proceeds in line until the wheels have reached the curve, when the car will swing. The water so falling on the unloading platform had followed a seam made in marking the concrete surface into squares, and had spread over the surface of the concrete on either side of the seam it had followed, leaving a wet area from near the point where appellee left the car in the general direction in which he was going, approximately three feet wide and ten or twelve feet long. Appellee fell while in this moist area. It is insisted for him that appellant's permitting this condition to exist was negligence, and that it was the proximate cause of his injuries. He testified that the moisture was sufficient after he fell to penetrate his clothing, causing him at first to believe that he was bleeding from the *Page 555
wounds he had received. While appellee and two or three witnesses for him use the words "slimy" and "sloppy" and "slippery" as descriptive of the condition of the surface of the platform and ramp where it was wet, there is nothing in the evidence as a whole to justify the inference from the use of those words as descriptive of the condition that there was enough of foreign matter in the moisture on the concrete surface to attribute its presence to appellant's negligence. It was their way of describing the condition existing by reason of the presence of the water through which numbers of people had walked, which was necessarily discolored thereby. The evidence established that this floor had been swept and cleaned about two hours before the accident. The testimony of all the experts on concrete construction and finish, who testified herein, is that moisture or water on float-finished concrete has no tendency at all to make it slippery or unsafe for those walking over its surface, and there was none to the contrary.
Appellee, at the time he received his injuries, was 48 years of age, and weighed 290 pounds. The argument is made for appellant that, in view of his great weight and the fact that in the fall the bones of his leg were broken at three different places, we have conclusive proof that his injuries were occasioned by his ankle turning, causing him to fall on and break his leg. Appellee denied, however, that that occurred, and stated that his injuries were occasioned by a fall which resulted from his slipping on the wet concrete. The question would certainly be one for the jury, in case the existence of the water on the concrete may be held to be negligence upon the part of appellant.
Appellee testified that the rain started on this occasion after he boarded the street car in Covington and while on the way to Cincinnati. There is no testimony tending to establish how long the wet condition of the concrete had existed before appellee fell, and, in view of the short time elapsing after the rain began before appellee fell, the time must have been short; but, if it should be conceded that the water had been on the concrete for a sufficient length of time so that appellant, in the exercise of ordinary care, should have discovered it, we are confronted with the question whether, with knowledge of its existence, in the exercise of ordinary care it must be required to have anticipated that the condition of the platform *Page 556
and ramp by reason of the presence of the water was unsafe or dangerous to its patrons. In view of the uncontradicted evidence of the witnesses on the subject and the common observation of all of us that a concrete surface, float-finished, does not have a tendency to become slippery or unsafe for those walking over it because of the presence of moisture or water on its surface, it is difficult to reach the conclusion that actual notice of the existence of water on the concrete surface of its terminal station would have been sufficient to arouse in appellant any cause for believing or anticipating that its patrons might be injured thereby so as to impose upon it the duty of providing a remedy for the condition.
This terminal had been in use something over four years, and thousands of people passed through it, over the place where appellee was injured, daily. If the water on the concrete came from the passing street cars on this occasion, necessarily that condition had existed many times previously. This appears to be the first instance in which any one has slipped and fallen on the unloading platform or the ramp leading to the various car tracks within the terminal since it has been in use, though several million patrons of appellant's utility have passed over them since it has been in use.
The parties seem to be agreed, as is true, that the law imposes upon appellant the duty to keep its terminal station and the places therein where its patrons are invited and have the right to be reasonably safe for their use. To succeed in this action it was incumbent upon appellee to establish by evidence that appellant had failed in this duty owing to him. In view of the evidence above discussed, this court is constrained to the view that no such evidence may be found in the record, and for this reason appellee failed to make a case authorizing the submission of the question to the jury. Appellant's motion for a peremptory instruction should have prevailed at the close of the testimony.
Judgment reversed, and cause remanded for other proceedings consistent herewith. *Page 557 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433660/ | In this action the plaintiff seeks to recover damages to person and property for alleged negligence by the defendant-corporation, through its servants, relative to a truck, which, at the time in question, was standing next to the curb on the right-hand *Page 37
side of the pavement on Federal Highway Number 34, near Corning. At the close of all the evidence, the court sustained a motion for directed verdict in favor of the defendant. Said motion presents the questions as to whether the evidence is sufficient to warrant a verdict in plaintiff's favor upon the alleged grounds of negligence; whether said negligence, if any, was the proximate cause of the injury to plaintiff and the car; and whether the plaintiff was not guilty of contributory negligence. The burden is upon the plaintiff to establish that the defendant was negligent, as alleged, and that said negligence, if any, was the proximate cause of the injury, and that he, himself, was free from contributory negligence.
In Count One of the petition, the plaintiff alleges, in substance, that he was forced off the paved highway west of the city of Corning, on Highway Number 34, after dark, about 7:00 P.M. on February 17, 1931; that, on the night in question, the defendant and its agents parked a truck on the pavement without lights and that the plaintiff, while proceeding on said highway, and while the paving was blocked by said truck, in the exercise of due caution, being unable to stop, attempted to pass on the dirt shoulder, and in so doing the shoulder gave way and plaintiff's car was overturned in the ditch, causing permanent injuries to the plaintiff.
In Count Two, the plaintiff asks damages for injuries to the car, which was owned by his father, and the claim for which had been assigned to him. As grounds of negligence, he alleges:
"That the defendant stopped said motor van on the paved portion of said highway at night, well knowing that said highway was an arterial highway and bore very heavy traffic, and the defendant stopped said truck on the paved portion of said highway without displaying any lighted tail light or red light to the rear, or other warning or signal of its location, all in violation of law."
[1] For the determination of the questions presented, we must refer to the evidence. In the consideration of the motion for a directed verdict, the appellant is entitled to have the evidence considered in the light most favorable to him. This proposition is so well established as to require no citation of authorities. But see Robertson v. Carlgren, 211 Iowa 963; Hamilton v. Wilson, (Iowa) 240 N.W. 685, (not officially reported).
The evidence discloses that defendant's truck was, on the evening of February 17, 1931, driven east on Federal Highway Number *Page 38
34, in charge of two of defendant's employees. As the truck proceeded upon its journey, one of the dual tires on the right-hand wheel went flat, and almost immediately the other dual tire on said wheel blew out. The truck was stopped and the two employees began immediately to remove the tire and replace the same by another, and were so engaged at the time of the accident. The evidence is uncontradicted that the truck was standing in plain view on the top of a little knoll with the right wheels very close to the right curb. In other words, the whole of the truck was standing on the right side of the pavement about as close to the curb as it was possible to place it. The truck was faced east. The highway for a number of miles ran in a straight easterly and westerly course. To the west of the knoll where the truck was stopped for replacement of the tire, there is what is known in the record as the Bixler hill. The distance from the top of the Bixler hill to the top of the knoll where the truck was located is not definitely stated, but it is more than a quarter and less than a half mile. There is only one depression between these two locations. The truck lacked one inch of being eight feet wide and stood 11 feet high. When empty, it weighed 6 tons, and at the time in question was carrying a load of about 5 tons. The testimony is that the shoulder to the right of the truck was soft and spongy and to have driven the truck onto the shoulder would have caused it to sink and mire in the dirt. Plaintiff, at the time in question, approached the truck from the west. According to the testimony offered in behalf of the plaintiff, Powelson was traveling in the same direction ahead of the plaintiff. Powelson testified:
"As I came over the hill [the Bixler hill], I see 4 lights [lights on the truck] east of me up there on the hill [the hill or knoll where the truck was located]. As I went down this little knoll [the Bixler hill] and started up the other one for a little bit they were out of sight, and as I came on up the hill I see them again. I slowed up and drove on around. What made the lights go out of my vision I do not know. I have been back since and you could see everything as far as that is concerned. Whether or not they were turned off I do not know, but they were out of my vision a little bit. Nobody was between me and them, no car between me and that truck. I saw the red lights on the truck. I first saw the lights after I came in view of the Bixler hill. Q. Could you see the lights along the course you were traveling after that time? A. There was a place along *Page 39
there about half way, I did not see the lights for a little bit. Q. And when you passed through that space? A. The lights come on again. After that I saw the lights all the time until I went around the truck."
The only other testimony relative to the omission of lights upon the defendant's truck is that of the plaintiff himself and Wallace, who was riding with him. Their testimony upon this question is practically the same. The plaintiff testified that, as he approached from the west to the place where the truck was standing, there was no red light visible, except that on the car which he was following; that before he was injured, he did not see a red light at the place where he afterwards saw the truck. The plaintiff was asked:
"What do you say to the jury if there had been lights on that truck on that hill that night could you or could you not have seen it from the Bixler hill, proceeding down the Bixler hill? A. Yes, sir, I could. Q. State whether or not you could have seen it until you came up immediately behind the car you were following. A. No, sir. Q. Could you see it as you followed the other car up the hill coming east? A. No, sir. Q. About how far is it from the top of the Bixler hill to the place where you could not see it if there had been a red light on the truck that night? A. About one-eighth of a mile."
Relative to the other propositions involved, the plaintiff testified that the lights and brakes on his car were in good condition; that he was traveling about 40 miles an hour; that by using the brakes, he could stop in about 50 feet; that his headlights when turned on showed ahead so that he could see a distance of 100 to 150 feet; that, as he turned to the left to go around the car ahead of him, it also turned to the left; that when he, the plaintiff, turned out, the car immediately ahead of him also turned to the left, "and I was so close to him when he started around the truck I put my brakes on and tried to stop and seen I could not stop without hitting the car in front of me or the truck, so I drove off on the shoulder on the north side, and that is where the shoulder gave away and I went down the bank;" that he turned out at the top of the hill, just before he reached the top of the knoll; that at that time the car immediately ahead of him was traveling along the right-hand side of the pavement; that, when he turned out to the left, the car ahead of him turned out at the same time; that, at the time he attempted *Page 40
to pass the car ahead of him, he had got practically up to it; that he was probably 10 feet behind the car ahead of him. "Q. Going forty miles an hour and about that fast, is that right? A. I would judge that." He further testified that the car ahead of him slowed down right there to about 15 miles an hour; that he observed him drive off to the left; that he was not over 10 feet behind him: "that is the first time I saw the truck;" that he then tried to stop, applied his brakes with all the force he thought he could, and left the pavement about 10 feet behind the other car; that he drove along the shoulder until he got even with the other car; that if the car just ahead of him had not changed its course, he could and would have passed the car and the truck and gone on down the road; that he proceeded 15 feet in an easterly direction on the shoulder when the shoulder gave away and he landed in the ditch. The plaintiff further testified that as he approached the top of the knoll where the truck was standing, the car ahead of him obstructed his view and he could not see the truck or any part of it up to the time when he started to turn out. "Q. So you do not know whether or not any lights were there or not on the back of this truck? A. No, sir, I did not see no lights."
[2] The alleged ground or grounds of negligence are hereinbefore quoted. It is provided in Section 5045, Code, 1931, that a "motor vehicle when in use or parked upon or immediately adjacent to the traveled portion of the highway shall also display on the rear a lamp so constructed and placed as to show a red light from the rear and throw a white light directed upon the rear registration number and render the numerals thereon visible for at least fifty feet in the direction from which the vehicle is proceeding." Section 5054, Code, 1931, provides that:
"No person shall, during any period of time from one-half hour after sunset to one-half hour before sunrise, permit a motor vehicle, under his control, to stand upon the paved portion of any hard-surfaced highway outside of the corporate limits of any incorporated city or town with the rear light extinguished unless said highway is artificially lighted, at the place where the vehicle is located, to such an extent as to clearly indicate the presence of said vehicle."
There is an exception contained in the provisions of Section 5055, Code, 1931, which, under the record in this case, has no *Page 41
bearing upon the questions presented. A violation of, or non-compliance with, either of the foregoing statutes, without proof by the defendant of a legal excuse for non-compliance, constitutes negligence. See Kisling v. Thierman, 214 Iowa 911; Waldman v. Sanders Motor Co., 214 Iowa 1139; Albert v. Maher Bros. Transfer Co., 215 Iowa 197; Wosoba v. Kenyon, 215 Iowa 226; Holub v. Fitzgerald, 214 Iowa 857.
[3] The question at this point is, Is the evidence sufficient to warrant a finding by the jury that there was a failure by the defendant to comply with the statutory provisions relative to lights on the rear of the truck? It will be noted that Powelson affirmatively testified that he saw the rear lights on defendant's truck while traveling the latter half of the distance between the Bixler hill and the knoll where the truck was standing. There is no testimony that the lights on the truck were not displayed at said time. This testimony was offered by the plaintiff. It will also be noted by the testimony of the plaintiff, himself, that during this portion of the journey, he, being behind the Powelson car, could not have seen the lights on the truck even had they been displayed. Under these circumstances, his negative testimony that he did not see the lights during this portion of the journey cannot be held to be sufficient to establish the claimed fact that no lights were burning upon the rear of the truck during said period of time. The failure, if any, by the defendant to display lights during the time when the plaintiff was making the first half of his journey from the Bixler hill, remote from the place where the truck was standing, could not have been the proximate cause of plaintiff's injury. Negligence must be the proximate cause of the injury, in order to warrant recovery. It is quite clear that reasonable minds could not differ upon these questions, and they therefore become questions of law for the court.
[4] But the plaintiff contends that, although the evidence may be insufficient to constitute negligence for failure to comply with the statutory provisions, yet the fact that defendant stopped the truck on the paved portion of the highway is sufficient to constitute negligence at common law. It must be borne in mind that the truck was temporarily standing, not in a place of concealment, but at the top of a knoll; that the truck, with the load, weighed approximately eleven tons; that the uncontradicted evidence shows that, if the driver of the truck had driven off the pavement upon the shoulder, the truck would have mired in the soft, spongy soil. In *Page 42
Scoville v. Clear Lake Bakery, 213 Iowa 534, relative to a similar proposition, we said:
"It was the duty of the defendant to remove his `dead' truck from the pavement with reasonable promptness. The defendant was engaged in that very effort at the time of the collision. No claim is made in pleading or argument that the defendant was not diligent in that regard."
Likewise, in the instant case, the servants of the defendant were busily engaged at the time of the accident in the replacement of the tire, so that the truck could proceed upon its journey. Under the record, it cannot be said that the defendant was remiss in any common-law duty which it owed the plaintiff in this respect.
[5] What we have already said is sufficient justification for the court's action in sustaining defendant's motion for a directed verdict. But, even could it be said that the question as to defendant's alleged negligence was one for the jury, then the court was justified in sustaining defendant's motion upon the ground that the evidence establishes, as a matter of law, negligence upon the part of the plaintiff, which contributed to his injury. Section 5029, Code, 1931, provides:
"Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway ata speed greater than will permit him to bring it to a stop withinthe assured clear distance ahead." (Writer's italics.)
A violation of, or non-compliance with, this statute, without proof of legal excuse for non-compliance, constitutes negligence. See Wosoba v. Kenyon, 215 Iowa 226. It is unnecessary to refer in detail to the evidence hereinbefore set out. However, plaintiff's own evidence establishes the fact that he was traveling at the rate of forty miles per hour when proceeding upon the highway ten feet behind the Powelson car, and while he (the plaintiff) was making the turn to the left, and while so situated and traveling at said rate of speed, the Powelson car, at the same time, also turned to the left, and he was then unable by application of the brakes to stop his car without collision with the Powelson car, and therefore turned to the shoulder on the left, which gave way and caused him to go *Page 43
into the ditch. It is quite clear that he was traveling at a rate of speed in violation of the express provisions of said statute, and that it contributed to the injury. There is no evidence of legal excuse for his failure to comply therewith. Reasonable minds could not differ upon the questions as to plaintiff's negligence and whether it contributed to the injury, and these questions therefore became questions of law for the court.
The court was right in sustaining defendant's motion for a directed verdict, and the judgment is hereby affirmed. — Affirmed.
STEVENS, C.J., and FAVILLE, De GRAFF and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433662/ | Mrs. Miller testified that on August 23, 1930, she accompanied the deceased, Mrs. Helen Feori, her niece, to the home of the defendant, Carrie Rowley, in Des Moines. Mrs. Miller *Page 142
was not aware of the purpose of the visit to defendant's home until about the time they arrived there. She had no idea what her niece wanted until they reached the Rowley home. Her niece never consulted with or asked her about having anything done. Mrs. Feori never asked her advice, and Mrs. Miller never gave any.
While there, she heard Mrs. Feori tell defendant she was about three months along. Mrs. Rowley told Mrs. Feori her price would be $10, which Mrs. Feori then paid. Then they went upstairs, where Mrs. Rowley placed Mrs. Feori on a bed. Then Mrs. Miller saw Mrs. Rowley insert a catheter and speculum into Mrs. Feori. After the operation, Mrs. Rowley told her niece to go home and take a dose of quinine and she would be all right. Mrs. Miller said the instruments shown as exhibits were similar to the instruments Mrs. Rowley inserted into Mrs. Feori.
Mrs. Miller said that Mrs. Feori was pregnant about two weeks before August 23. The operation was performed on Saturday, and Mrs. Miller again saw her niece the following Monday, when she was sick in bed and menstruating very badly. That afternoon Mrs. Feori showed her a very small form of a human being which had passed from her. Mrs. Feori died on September 2 following.
The appellant was not a physician or surgeon, and the record does not show that she was a nurse. The indictment is brought under section 12973 of the Code, which is as follows:
"If any person, with intent to produce the miscarriage of any woman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the penitentiary for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars."
It was necessary to show that the defendant performed an illegal operation upon Mrs. Feori by the use of an instrument, with intent to produce a miscarriage, that such miscarriage was not necessary to save the life of the deceased, and that Mrs. Feori died as a result thereof.
The defendant admitted to the officers arresting her in September that she had often done this kind of work; that she was forced into it by girls, and did not have the heart to refuse; that, if she had received $10 for every abortion she performed, she would *Page 143
have barrels of money; that she was not ashamed of it; that she produced abortions to save disgraced girls for $10, and was glad to do it. The officers found many instruments used for that purpose in her home. Some of these were admitted in evidence. The defendant did not testify, and there was no denial of the evidence offered by the state.
[1] It is the settled law of this state that a person who, in an unlawful attempt to produce a miscarriage, inflicts injury upon a woman, from which she dies, is guilty of murder in the second degree, unless the miscarriage was necessary to save her life. State v. Moore, 25 Iowa 128, 95 Am. Dec. 776; State v. Moon, 167 Iowa 26, 148 N.W. 1001; State v. Leeper, 70 Iowa 748,30 N.W. 501.
[2] I. Defendant claims the court erred in admitting the testimony of Bessie Miller uncorroborated on the alleged ground that she was an accomplice. An examination of the record shows that practically all of the testimony of Mrs. Miller went in without objection. Much of her testimony was also elicited on cross-examination. No such objection was urged during her entire examination.
At the close of the state's case, defendant's counsel moved to take from the consideration of the jury all of Mrs. Miller's testimony on the ground of her being an accomplice, because there was no corroboration as provided by section 13901 of the Code.
The testimony was admitted without objection. She can hardly claim ignorance of the grounds of this objection when the testimony was received, because her counsel at the beginning of her examination said to the court:
"Before this witness goes any further, I think she ought to be admonished that she has certain rights here that she can exercise if she desires; that there are about to be asked of her certain questions incriminating her, and I think she ought to be advised in regard to her rights thereto."
If the testimony was inadmissible for the reasons now urged, objections should have been made thereto when offered. Section 13901 of the Code provides:
"A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the *Page 144
corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."
This statute does not bar the admission of such evidence, but prohibits a conviction thereon, unless so corroborated. The testimony itself was admissible, but, if there was no corroboration, the court should instruct there could be no conviction thereon.
The only error that could be relied on if there was no corroboration would be the court's failure to instruct the jury they could not convict unless the testimony was corroborated by other evidence tending to connect the defendant with the commission of the offense.
Although not requested, it would be the court's duty to so instruct, if there was no evidence of such corroboration, and if the evidence showed Mrs. Miller to be an accomplice. No such error is relied on, and no argument on such ground is made by the defendant.
In the first place, the evidence offered as related on first page hereof does not tend to show that Mrs. Miller was an accomplice; and in the second place, if it did, there was corroborating evidence connecting the defendant with the commission of the offense.
Her evidence was corroborated by the dying declarations of Helen Feori herself on the day she died. Therein she told her mother, Mrs. Canfield, that the defendant, Carrie Rowley, performed the abortion, and that she used instruments in so doing, and it was painful.
It was further corroborated by evidence of the police officers who seized the instruments used by defendant in such operations; by the testimony of Officer Castelline, who, in the presence and hearing of the defendant, was told by Mrs. Miller that Mrs. Rowley was the lady she saw perform the abortion on her niece; and in reading to Mrs. Miller, in the presence and hearing of the defendant, a statement previously made containing a statement that Mrs. Rowley committed an abortion on Mrs. Feori, and by asking Mrs. Miller if the statement was true; that she said it was — all without any protest or objection on the part of Mrs. Rowley.
This evidence was sufficiently corroborating to make Mrs. Miller's testimony admissible, although she was an accomplice.
II. Complaint is also made of the admission of the testimony *Page 145
of Mary Canfield as to dying, declarations made to her by deceased.
[3] It is the settled law of this state that dying declarations of decedent as to cause of death are admissible when it appears that such statements were made with the knowledge of impending death. State v. Gillick, 7 Iowa 287; State v. Johnson, 72 Iowa 393,34 N.W. 177; State v. Schmidt, 73 Iowa 469, 35 N.W. 590; State v. Brumo, 153 Iowa 9, 132 N.W. 817; State v. Klute,160 Iowa 170, 140 N.W. 864.
The evidence shows the operation was performed on August 23, 1930; that almost immediately thereafter the decedent became violently ill; that she was soon removed from her home to the hospital; that before she was removed she was advised by her physician that "there was very grave danger that she would not live." She died on September 2 following. Between August 27 and September 2 she developed a severe case of abdominal peritonitis. The doctor told her on August 27 that she was in a serious condition, and on the day of her death she told the doctor she was going to die. She also told her mother, Mrs. Canfield, she thought she was going to die. These statements were all made before the alleged dying declarations were made.
This evidence fairly tends to show that deceased was aware of her impending death. Thereafter she told her mother that a woman by the name of Carrie Rowley produced the miscarriage, and that she (Mrs. Rowley) used an instrument in doing it, and that it was painful. This evidence fairly tended to show that decedent believed she was going to die, and was aware of her impending death, when the declarations were made.
[4] III. Defendant also complains of the admission of certain exhibits, claimed to have been obtained without a search warrant, in violation of the search and seizure provisions of the Constitution of Iowa. The writer of this opinion believes there might be some merit in this contention, notwithstanding our holding in State v. Tonn, 195 Iowa 94, 191 N.W. 530, provided the evidence showed the officers entered defendant's home without a search warrant. There was evidence in the record, however, tending to show they had a search warrant, and that it was read to Mr. or Mrs. Rowley. Neither Mr. nor Mrs. Rowley testified positively that the officers had no search warrant; on the contrary, three of the officers testified they had. Besides this, the record shows that most of these exhibits were *Page 146
surrendered to the officers without protest. For these reasons we see no error in the admission of this testimony. This therefore, is not a case for a reconsideration of the doctrine announced in the Tonn case.
[5] IV. It is also contended that the court erred in failing to instruct the jury about included offenses, especially abortion. The crime of attempting to produce an abortion under Section 12973 of the Code is a separate and distinct offense, and is not included in any of the offenses included in an indictment for murder.
If any offenses could be included within a charge of murder in second degree, it might be claimed to be manslaughter.
Our court in the case of State v. Moore, 25 Iowa 128, loc. cit. 137, 95 Am. Dec. 776, held that it was not error to refuse to charge the jury that they might convict the defendant of manslaughter under the indictment charging the defendant with murder by procuring a willful abortion. In that case the court says:
"The charge against the defendant was not negligence and unskillfulness in procuring an abortion under justifiable circumstances, but the willful procurement of an abortion without any necessity for it, whereby death was occasioned. If death unexpectedly results from such an act, the crime we have seen was at common law murder, and under our statute is murder in the second degree. Under the charge, and under the evidence, the defendant was guilty of murder in the second degree, or of nothing, and hence the court did not err in refusing to say to the jury that they might convict the defendant of manslaughter."
So in this case the only offense submitted was murder in the second degree, under instructions of the court. The only offenses that could have been included in this case, if any, would have been manslaughter. Under the evidence in this case, the defendant was guilty of murder in the second degree or of nothing. We therefore find that there was no prejudicial error in failing to instruct on any included offenses.
Counsel for appellant cite no authorities supporting her contention that the jury should have been instructed on the included offense of abortion, but allege that they could find none.
[6] V. Complaint is also made of the court's instruction No. 7 because it failed to tell the jury that the act must be done willfully. *Page 147
It is not necessary under an indictment of this kind to prove that the death was willfully caused. It is the law of this state that, where a death is caused by an unlawful act, it must be shown that the unlawful act was willfully committed. In such an act the law implies malice. State v. Moore, 25 Iowa 128, 95 Am.Dec. 776; State v. Gibbons, 142 Iowa 96, 120 N.W. 474, 475.
In the latter case this court said:
"The crime of murder in the second degree necessarily involves an act done with malice aforethought. * * * But that term used in defining the crime is technical rather than descriptive. It does not necessarily require an intent to murder. Malice aforethought may be implied where there is no intent to kill, but an intent to commit a felony from which death results, although that result is unintended. That death resulting from a criminal attempt to commit an abortion constitutes murder in the second degree is in this state well settled."
The complaint against instruction No. 7 is without foundation, because the matter complained of is fully covered by instruction No. 8 where the jury was told that one of the elements necessary to establish beyond a reasonable doubt was:
"1. That the defendant willfully, unlawfully and feloniously and with malice aforethought in Polk County on August 23, 1930, used an instrument upon the body and person of Mrs. Helen Feori with intent to produce a miscarriage."
[7] VI. It is also claimed that the verdict was not sustained by the evidence and the law. As herein pointed out, where a death occurs as the result of an illegal abortion performed upon a female, the person committing the act is guilty of murder in the second degree.
An illegal abortion involves the following elements: (1) That the defendant willfully and unlawfully used an instrument upon a woman; (2) that the use of such instrument was with the intent of producing a miscarriage; and (3) that such miscarriage was not necessary to save the life of the woman.
Where these elements have been shown and a death results, the person committing them is guilty of murder in the second degree. The court covered these elements by instruction No. 8 as follows: *Page 148
"Before you can find the defendant guilty of the crime of murder in the second degree as charged in the indictment you must find that the state has established each and all of the following numbered propositions beyond a reasonable doubt: 1. That the defendant willfully, unlawfully and feloniously and with malice aforethought in Polk County, Iowa, on or about August 23, 1930, used an instrument on the body and person of Mrs. Helen Feori, with intent to produce a miscarriage. 2. That the said Helen Feori died on or about the 2nd day of September, 1930. 3. That the use of such instrument by the defendant with intent to produce a miscarriage of the said Helen Feori, was the direct and natural cause of her death. 4. That the miscarriage of said Helen Feori was not necessary to save her life."
This instruction included all of the elements necessary to warrant a conviction, and, if established, the verdict was warranted. In our opinion, there was evidence fairly tending to establish all of the foregoing propositions.
[8] Defendant strongly contends that the state failed to prove that a miscarriage was not necessary to save Mrs. Feori's life.
The evidence shows that Mrs. Feori was a young woman twenty-three years of age, and up to the day of the operation was in good health. On the morning of the operation she was working around her home, and was healthy and happy. She had one child about seven months old, and the doctor who delivered that child saw her in July, 1930. In his opinion, he thought she was then pregnant. At that time he says she appeared to be in good health and in normal condition.
Her mother, Mrs. Canfield, and her aunt, Mrs. Miller, both testified that she was in good health.
The defendant was not a physician or surgeon, and was not consulted for any legitimate purpose. The defendant admitted in the presence of several witnesses that she was in the habit of performing operations of this kind, and did so in order to save girls from being disgraced. It was not necessary for defendant to show that an abortion was necessary to save a life, but, in view of these admitted statements, and in view of the condition of Mrs. Feori's health prior to the operation, we believe the jury was fairly warranted in finding that the operation was not necessary to save her life. *Page 149
The testimony also shows without conflict that Mrs. Feori was pregnant at the time the operation was performed. Her mother, Mrs. Canfield, and her aunt, Mrs. Miller, both say that on the Monday following the operation a little shape of humanity came, and shortly afterwards the afterbirth came.
[9] VII. The only remaining complaint is that the evidence failed to show beyond all reasonable doubt that the use of the instrument with intent to produce a miscarriage of Helen Feori was the direct and natural cause of her death. The evidence offered fairly tends to show that up to the time of the operation the deceased was in good health; that immediately after the operation she became sick; that as soon as she returned home she was confined to her bed; that her condition became progressively worse; she became violently ill, suffered intense pain, and finally developed general peritonitis. This verdict is supported by the evidence of her aunt, Mrs. Miller, her mother, Mrs. Canfield, and by medical testimony.
Dr. Sharp, her attending physician, from August 27, 1930, until her death, found that she first had a mild degree of pelvic inflammation, probably the beginning of peritonitis following an abortion. He had no doubt an abortion had been performed. He also said that in his opinion she was suffering from the effects of an abortion; that from his observation of his patient, and from the autopsy performed almost immediately after her death, the cause was undoubtedly an early abortion.
Dr. Weingart said the cause of death was septic inflammation of the tubes, the uterus walls, and tissues about the uterus. The infection was started recently.
Physicians at a post mortem testified they found signs of a recent pregnancy. They found a good deal of free pus in the abdominal cavity and signs of a general peritonitis. The Fallopian tubes were infected and contained pus. The cause of death was due to septic inflammation of the tubes, the uterus walls, and tissues about the uterus. The infection was recent, and started within two or three weeks, because it was acute peritonitis. From the history of the case the autopsy showed an abortion had been performed.
From the evidence introduced the jury was fairly warranted in finding that the death resulted from the operation.
We have reviewed the evidence and instructions of the court as applied thereto, and believe the defendant had a fair trial, and *Page 150
that the verdict is sustained by the law and the evidence. The judgment of the lower court is therefore affirmed.
KINDIG, C.J., and EVANS, STEVENS, ALBERT, and ANDERSON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433669/ | In what follows no attempt will be made to do more than set out the highlights of the State's case and how it was met by the defendant; because, if a fact question was presented the verdict of the jury was conclusive as to that.
Cars driven by the defendant and one Munsell collided about 3:15 o'clock of the morning of October 10, 1937. When the vehicles came to rest the condition of defendant, as relates to his alleged intoxication, is thus described by Munsell: *Page 183
"His [defendant's] motor was running wide open and racing and I asked him to cut it off. He just mumbled something to me, didn't seem to understand, and I reached across him and shut the motor off for him. He was sitting under the wheel of the car. His wife was on the righthand side. She was slumped down in the seat, slid forward. She was screaming when I got out of my car. As I got to their car she was screaming, `I knew he would do it if I didn't watch him.' * * * He got out and staggered around and I helped her get up in the car. I noticed that someone had vomited on the righthand running board. At the time I turned off the motor of the car I could smell McDowell's breath and he smelled very strong of alcohol. The whole car smelled of alcohol and intoxicating liquor. * * * After we got straightened out a little McDowell staggered around and wanted to argue with me about the wreck. * * * His voice was thick and he mumbled. Didn't talk plain so you could hardly understand him for a while. He was excited, argumentative, and very angry. * * * I would say that Mr. McDowell was intoxicated or drunk, whatever way you would call it."
Hook, the sheriff of the county, reached the place of the accident about 3:30 o'clock. The night was clear and pavement dry. The sheriff thus described the defendant's condition:
"* * * I had a conversation with the defendant, J.L. McDowell, and made some examination of him. There was an odor of liquor on his breath. His speech was not distinct. He had a groggy appearance. He did not stagger. * * * After he was in my custody I noticed his eyes were red and bloodshot. The car had a very strong odor of liquor on the running board where someone had thrown up. He was intoxicated to a marked degree."
The sheriff took the defendant in custody and placed him in jail. Commenting on the defendant's condition later, the sheriff said:
"I saw him again during the forenoon and he still showed *Page 184
signs of intoxication. I noticed the change in his condition about one o'clock, there being less signs of intoxication."
Everett, a farmer living nearby, who was awakened by the crash, testified to the vomit on the car, the odor of liquor all around it. The defendant, when asked by this witness how the accident occurred, said something about there being a fog and he couldn't see. This witness smelled liquor upon the defendant's breath and was of the opinion he was intoxicated so that when asked "questions he didn't repeat them coherently."
For the purposes of this opinion it is sufficient to say that all the testimony of intoxication was denied by the defendant and his wife, and by four or five witnesses who testified that they were with the defendant and wife until a very short time before the accident. Defendant attributes his dazed or groggy condition to a blow over the right eye sustained when the cars came together. Two doctors expressed the opinion that a concussion, a blow on the head might produce some of the actions of the defendant as described by the State's witnesses. Defendant also produced a number of substantial witnesses who testified to his good moral character, though none of them was asked their opinion as to the character of the defendant on the trait involved in the charge, to wit, sobriety, or the lack thereof.
[1] I. Defendant argues as his first ground, that the court erred in refusing to direct a verdict in his behalf, and in failing to instruct the jury to find him not guilty. He cites a large number of cases but none are persuasive and all distinguishable from the case at bar. We call attention to but a few. State v. Hopper, 222 Iowa 481, 269 N.W. 431, is the latest of the cases cited by appellant as announcing the doctrine contended for — that where facts and circumstances are relied upon to prove guilt, there must be no other reasonable hypothesis than that of guilt. This case, upon examination, will be found to be an authority against the defendant. Quoting from State v. Lorey, 197 Iowa 552, 554, 197 N.W. 446:
"The evidence was ample to take to the jury the question as to whether or not appellee `was engaged in the operation of *Page 185
said automobile.' * * * The case presented all the essential facts for the determination of the guilt of appellee by the jury, and in fact, upon the evidence, the conclusion of guilt is quite irresistible."
This being the rule, it becomes unnecessary to analyze the cases cited to the effect that a conviction may not rest on conjecture alone.
If the jury believed the State's witnesses, the conviction of the defendant was not based upon speculation or conjecture, but rests upon a solid foundation of fact. But, defendant argues, his moral character having been proven to be good, this was of itself sufficient to generate a reasonable doubt. He cites, among other cases, State v. Bell, 206 Iowa 816, 221 N.W. 521; and State v. Johnson, 215 Iowa 483, 245 N.W. 728. These not only do not support that claim, but an approved instruction to the contrary appears in the Bell case. It is said that the verdict was against the weight of the evidence and a new trial should have been granted on that ground. What we have said as to the functions of the jury answers this contention against appellant. See State v. Kendall, 200 Iowa 483, 203 N.W. 806; State v. Giles, 200 Iowa 1232, 206 N.W. 133, 42 A.L.R. 1496; State v. Schenk, 220 Iowa 511, 262 N.W. 129; State v. Harrington, 220 Iowa 1116, 264 N.W. 24; State v. Wehde, 226 Iowa 47, 283 N.W. 104; and State v. Lowenberg, 216 Iowa 222, 227, 243 N.W. 538, 541, wherein we said:
"It is peculiarly the province of the jury to pass upon questions of fact. Reversal upon the ground of the insufficiency of the evidence to justify a conviction will follow only where the evidence to support the verdict is so utterly wanting that it cannot be sustained."
It hardly needs to be said that we would not be justified in holding that the jury was not warranted in believing the State's testimony.
[2] II. Defendant's second assignment is that the court erred in refusing to give requested instructions Nos. 26, 33 and *Page 186
37. These ask the court to embody appellant's contention that his condition after the accident was caused by his head striking some part of the car, resulting in shock, the purport of the instructions requested being that the jury should take this into consideration together with all circumstances and if, when so considered, there was a reasonable doubt of defendant's guilt, they must acquit. Stated alternatively, requested instruction No. 7 told the jury that before defendant could be found guilty, they must be satisfied beyond a reasonable doubt that his acts and conduct were not induced by the shock of the collision. It would seem a sufficient answer to this contention to quote instruction No. 15 given by the court:
"The defendant claims that his condition immediately after the collision was caused by an injury received by him at the time of the collision and resultant shock caused by said injury and collision.
"In determining whether the defendant was intoxicated at the time of the collision, or whether his condition immediately after the collision was the result of injury and shock, you should take into consideration the fact of the injury received by him, if you so find; the nature and extent thereof and its effect upon the defendant, if shown and as shown; and all the other evidence and facts and circumstances shown on the trial as surrounding the collision, if shown and as shown."
This appears to embody every thought included in the requested instructions; and it is difficult to see how the court could have gone further without joining in the argument for the defense.
In support of this division of his argument, defendant cites State v. Shea, 104 Iowa 724, 74 N.W. 687; State v. McGarry,111 Iowa 709, 83 N.W. 718; State v. Brady, 121 Iowa 561, 97 N.W. 62, 12 L.R.A., N.S., 199; State v. Usher, 126 Iowa 287, 102 N.W. 101; State v. Sharp, 127 Iowa 526, 103 N.W. 770; State v. Matheson,130 Iowa 440, 103 N.W. 137, 114 Am. St. Rep. 427, 8 Ann. Cas. 430; State v. Brooks, 192 Iowa 1107, 186 N.W. 46; State v. Wheeler, 216 Iowa 433, 249 N.W. 162; State *Page 187
v. Wheelock, 218 Iowa 178, 254 N.W. 313; State v. Sampson,220 Iowa 142, 261 N.W. 769; and State v. Fador, 222 Iowa 134, 268 N.W. 625. A glance readily distinguishes all of them, as it does others cited but not here mentioned.
[3] III. Appellant's next complaint assails instruction No. 15, just considered, on the ground that it failed to include the further statement that "if the evidence above referred to, taken into consideration with all the other facts and circumstances disclosed by the evidence, raises in your mind a reasonable doubt, as hereinbefore defined, as to the guilt of the defendant then it would be your duty to acquit him." A reading of defendant's request leaves some doubt as to what appellant means. It seems to be his idea that each instruction must in and of itself be complete. We have too frequently said that the instructions must be taken as a whole to require citation of authorities. In this case the court fully instructed as to the meaning of reasonable doubt and told the jury that "if, after a careful and impartial consideration of all the evidence presented in the case, you can feel and say you have an abiding conviction of guilt of the defendant, as charged in the indictment, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt." We find no error here.
IV. Appellant's fourth proposition is that instruction No. 2 is erroneous. It reads:
"To this indictment the defendant has entered a plea of not guilty, which plea denies and puts in issue every material allegation in the indictment contained, and before the state will be warranted in asking a verdict of guilty at your hands, it must have satisfied you from the evidence, beyond a reasonable doubt, of the truthfulness of all such material allegations. If you are so satisfied, you should convict the defendant. If you are not so satisfied, you should acquit him."
This instruction, defendant says, is complete within itself and excluded from the jury the consideration of defendant's claim of injury or shock, the specific complaint being that it *Page 188
was erroneous because it did not have added to it this: "And you further find that defendant's condition was not caused by injury to his head striking against the car or by resultant shock, or words to that effect." What we said in answer to division III is sufficient answer to this.
Counsel cite a large number of cases as sustaining the contention at this point by argument. We analyze a part of them. Quinn v. Railway Co., 107 Iowa 710, 77 N.W. 464, is a personal injury action. Error was found because the instructions failed to include the defense of assumption of risk. Lauer v. Banning,140 Iowa 319, 118 N.W. 446, was a breach of promise case. The court's instruction ignored the claims of the defense. Romans v. Thew,142 Iowa 89, 120 N.W. 629, was a brokerage contract case, wherein an instruction was found to be erroneous because it in effect was a peremptory direction in favor of plaintiff, and totally ignored defendant's testimony. In State v. Johnson, 162 Iowa 597, 144 N.W. 303, one instruction permitted a finding of guilt without including the defendant's claim of self-defense. The court held that the error was not remedied by a later instruction in conflict therewith. State v. Rourick, 211 Iowa 447, 233 N.W. 509, was reversed because a finding of guilt was permitted in an assault case without reference to self-defense. In Smith v. Middle States Utilities Company, 224 Iowa 151, 275 N.W. 158, instructions were erroneous because they permitted a recovery for fraud by proof of the elements thereof while totally ignoring defendant's plea of statute of limitations.
[4] V. The fifth error complained of has to do with instruction No. 16 which reads as follows:
"The defendant has introduced testimony in this case to the effect that prior to the 25th day of October, 1937, his general moral character was good. This testimony should be considered by you along with all the other evidence in the case in passing upon the question of his guilt or innocence of the offence charged against him.
"Upon this you are further instructed that good general *Page 189
moral character may be considered by you in determining whether a man possessing such good moral character would be apt to commit the crime with which the defendant is charged. Such good general moral character may be sufficient in and of itself to generate in the mind a reasonable doubt as to defendant's guilt. And if the evidence as to the defendant's good character when considered along with all the other evidence, causes the jury to have a reasonable doubt as to the guilt of the defendant, then and in that case you should acquit him, even though without proof of such good character you would convict him. But if under all theevidence in the case, including that bearing upon his good moralcharacter, you have no reasonable doubt as to his guilt, youshould convict him however good his character may have been."
The complaint is as to the italicized portion. Appellant construes this as excluding all evidence of good character from having a bearing on the question of reasonable doubt and cites cases which he claims support that contention. While the sentence complained of might have been couched in different language, we do not read it to mean what defendant says it does. See State v. Fador, 222 Iowa 134, 268 N.W. 625. There was no error here.
[5] VI. Defendant's next complaint is that the court erred in not giving requested instruction No. 3. This has to deal with the definition of reasonable doubt. The court covered this feature of the case by instruction No. 6. It would unduly lengthen this opinion to set the instructions side by side. Seeing no difference in the meaning of the two, we are unable to find error on the part of the court in this regard. While the court might, perhaps, have used the instruction asked, it was not bound to do so.
[6] VII. Appellant complains of the refusal of the court to instruct in effect that if the evidence was open to two constructions, one consistent with guilt and the other of innocence, the jury should acquit the defendant. No Iowa citations are given to this contention and we are aware of none. Even so, *Page 190
instruction No. 9 given by the court is in effect the same thing. It reads in part:
"In order, however, to warrant a conviction on circumstantial evidence alone, the facts and circumstances proved must not only be consistent with the defendant's guilt, but they must also be inconsistent with any rational theory of innocence."
This gave the defendant all to which he was entitled under the record in this case.
[7] VIII. The eighth complaint is to the ruling on the demurrer which challenged the indictment because it alleged a violation of section 5027 of the Code, which section was repealed by section 312, chapter 134, Acts of the Forty-seventh General Assembly, which went into effect before the indictment was returned. This criticism overlooks section 63, subdivision 1, 1935 Code, and our construction thereof. See State ex rel. Ackerly v. Shepherd,202 Iowa 437, 210 N.W. 476. We find no error here.
[8] IX. Defendant's next complaint was that the court was in error in sustaining the State's motion to strike certain allegations of his motion for new trial, these grounds alleging in substance that the jury was guilty of misconduct in considering matters not in evidence, and that some of the jurors stated to their fellows facts not appearing in the record. Both motion and the ruling thereon were somewhat unusual, but there is no prejudicial error because, at best, the stricken grounds were not supported by affidavit or otherwise.
There was nothing in the stated grounds in effect other than that the defendant had not had the benefit of a fair consideration by the jury, and that the jurors considered matters which should not have been considered. The motion was verified by one of the attorneys for the defendant who said no more than that the allegations thereof "are true, as I verily believe." There is no request that the jurors be called for examination, nor any reasons given why they should be, other than the bare allegations of the motion itself. If there be any authorities justifying a court in granting a new trial for no better reasons *Page 191
than here stated, they are not included in the citations appearing in defendant's brief.
[9] X. Defendant argues that the court erred in sustaining certain objections to the cross-examination of the State's witnesses. A statement of the questions ruled out would seem to be sufficient to demonstrate, without further discussion, the correctness of the ruling of the court. This is the record. Munsell was asked:
"Q. I will ask you to state, if you know, how much of this mumbling upon which you have based your opinion as to Mr. McDowell's intoxication was the result of a concussion or blow that he might have received there that night?"
This was asked of the sheriff:
"Q. You know, Mr. Hook, how much of the talk you have described here of Mr. McDowell, as you observed it, was occasioned by the excitement and shock and injury he received as a result of that wreck?"
The witness Everett was asked:
"Q. * * * I will ask you to state if you know to what extent that injury that you saw there caused shock or concussion to Mr. McDowell at the time he received it?"
These, and others of the same tenor, were met with proper objections. Several reasons occur why the court was right: first, the witness could not possibly have given an answer which could have been more than a guess; second, they asked the witness to answer the very question which the jury had to decide; and third, there was no foundation laid, nor could be, to enable the witness to give an answer of any probative value.
[10] XI. Defendant's next and last complaint is that there was error in the giving of instruction No. 18, which is as follows:
"The defendant has testified before you as a witness in his own behalf, and in considering and weighing his testimony *Page 192
you should be governed by the instruction last given and apply the same rule as that governing the testimony of the other witnesses, taking into consideration the fact that he is the defendant and charged with the commission of the crime; and while for that reason alone you should not disregard his testimony, yet the fact that he is testifying in his own behalf may be considered by you, and you should fairly and carefully consider his evidence as you are bound to do the testimony of all the witnesses in the case; and you should also consider whether the testimony of the defendant is true, and made in good faith, or whether it is for the purpose of avoiding conviction; and in the light of all the facts and circumstances as proven by the evidence and the whole case, you should give his testimony such weight as you believe it fairly entitled to and no more."
This is said to single out the testimony of the defendant to its discredit and disparagement. While we would have preferred a different wording, we are unable to perceive any error, especially when considered with the other instructions given by the court.
There are many other arguments incident and pertinent to those herein examined which are pressed upon our attention. These have all had careful consideration but this opinion has already exceeded its proper length and we deem it unnecessary to say more. The record has been carefully scrutinized, and authorities cited examined. From such consideration we conclude that defendant had a fair trial. We have not overlooked, as was indicated earlier, the fact that the defendant made a strong showing in defense by his array of witnesses, but it was for the jury to decide the fact question.
The judgment of the trial court is accordingly affirmed. — Affirmed.
HAMILTON, C.J., and STIGER, HALE, MILLER, OLIVER, and BLISS, JJ., concur. *Page 193 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433674/ | On March 1, 1920, the defendant C.A. Watts sold to plaintiff, Larson, a tract of land by contract in substitution of one previously existing, the terms of which need not be considered, further than to say that $10,000 was paid by 1. VENDOR AND plaintiff on the two contracts, and performance PURCHASER: was to be, but was not, made March 1, 1921. On remedies of March 1, 1920, plaintiff took possession by a purchaser: tenant, who remained on the farm until after the vendee's deed to Metcalf later referred to. On June 27, right to 1921, Watts gave notice of intention to declare lien. a forfeiture, and on August 6, 1921, declared the forfeiture, and served notice of it. About the time of the service of notice of intention, the plaintiff, Larson, commenced an action at law against Watts, to recover the *Page 1210
$10,000, and also to recover for material and labor expended on the land, and for commission paid on a loan, and for interest and taxes, alleging plaintiff's readiness and Watts's refusal to perform, and rescission by plaintiff. The case was submitted to a jury upon the questions of plaintiff's readiness and Watts's refusal to carry out the contract, and the amount to be awarded to plaintiff, if anything. The jury returned a verdict for the plaintiff, though for an amount considerably less than his claim. On September 25, 1922, judgment was entered on the verdict.
The defendant J.T. Metcalf is a banker, and, pending the action at law (on August 10, 1921). Watts conveyed the land to Metcalf. On January 16, 1924, the petition in this suit was filed, to establish a vendee's lien for the amount of the judgment.
Defendants submit three propositions: First, that in this state a vendee is not entitled to a lien. Second, even though a vendee may have a lien, still the plaintiff had an election between recovering at law and relying upon his lien, and by suing and recovering at law, he made his election, and waived claim to lien. Third, Metcalf is a purchaser in good faith, and the lien cannot be enforced against him.
I. Our attention has not been called to any opinion by this court in which the vendee's lien, under that name, has been referred to. Nevertheless, the equitable estate of the vendee in the land contracted for, — his equitable ownership, the foundation principle of the English and American cases which gives rise to the vendor's lien, and, on refusal of the vendor to perform, raises a vendee's lien, — has been the law of this state since the decision of Pierson v. David, 1 Iowa 23, to be presently referred to. In In re Estate of Miller, 142 Iowa 563, 566, it is said:
"The interest acquired by the vendee is `land,' and the right and interest conferred by the contract upon the vendor is `personal property.' In case of the death of the vendee, his interest in the land would descend to his heirs. In case of the death of the vendor, his interest would pass as personal estate to his administrator. A judgment against the vendee would become a lien on the land, inferior, of course, to the rights of the *Page 1211
vendor. A judgment against the vendor would not become a lien upon the land * * *"
In O'Brien v. Paulsen, 192 Iowa 1351, 1353, we accepted the English rule, as laid down in Paine v. Meller, 6 Ves. Jr. 349, by Lord Eldon, as follows:
"* * * for, if the party by the contract has become in equity the owner of the premises, they are his, to all intents and purposes. They are vendible as his, chargeable as his, capable of being incumbered as his; they may be devised as his; they may be assets; and they would descend to his heir."
In Cumming v. First Nat. Bank, 199 Iowa 667, after referring to the Miller case, we said:
"The title in equity passed to the vendee. It is not dependent upon a conveyance nor the payment of the purchase money; nor is possession or delivery of possession a necessary incident."
We take up first defendant's reasons for disputing the existence of a vendee's lien. He urges that a vendee's lien, where recognized, "exists as a corollary of the vendor's lien," and that, as the vendor's lien is now by statute denied after a conveyance by the vendee, the vendee's lien must likewise be held to end with a conveyance by the vendor. The vendee's equitable title to the land is not a corollary of the vendor's equitable title to the purchase money. The vendee's lien upon the land for a return of the money that he has invested in it when the vendor refuses to perform is not a corollary of the vendor's lien upon the land for the purchase money. These respective estates and liens are correlative. They correspond. They are derived from the same principle, but neither is a corollary of or derived from the other. The fundamental principle of Pierson v. David results, as we shall see, in the giving of both liens. The destruction of one by the statute does not result in the destruction of the other merely because they have the same parentage. They may be twins, but they are not Siamese twins. The statute does preserve the principle, for it permits foreclosure by the vendor, and declares that the vendee, for the purpose thereof, shall be treated as a mortgagor. Sections 12382, 12383, Code of 1924. The vendor can protect his lien without the grace of the vendee, for he can, as the statute provides (Section 10057, Code of *Page 1212
1924), reserve it in the conveyance which he alone executes. The vendee has not similar protection. He must depend upon his possession and his equitable estate. To deny the vendor a lien after conveyance does not put him at the mercy of the vendee. To require restoration by the vendee on rescission for the vendor's fault, and then to deny the vendee a lien, open the way for a vendor to fraudulently appropriate the money paid or improvements made by the vendee, by merely conveying his legal estate to a confederate, or a purchaser with notice. The statute (Section 10057) refers to vendors' liens only. It does not abolish the vendor's lien, but restricts it. It does not impose these restrictions upon a vendee's lien, and it would be legislating to declare that the statute which applies to vendors' liens applies conversely to vendees' liens.
The statute relating to the vendor's lien first appeared in the Code of 1873, Section 1940. In Pierson v. David, 1 Iowa 23, this court said:
"Under our law, where so much strictness is required with regard to placing on the appropriate records evidences of liens and incumbrances, it would seem that, in the absence of fraud, courts should be careful in the recognition of this lien. And yet, there is much of good conscience, equity, and natural justice in providing that the vendor shall not be regarded as having lost all dominion over his property until he is paid the agreed price. This lien or trust, though formerly objected to, as being in contravention of the policy of the statute of frauds, and for other reasons, is now firmly established. Its necessity is, indeed, too apparent, the beneficial consequences too clear, and its equitable existence too well sustained, to need now either authority or reason, to prove its origin or design. * * * This vendor's lien, it must be borne in mind, however, is an equitable mortgage, and does not contemplate any writing to evidence it. A trust estate is created by the contract, whereby the purchaser becomes the trustee, and the vendor the cestui quetrust. The payment is a part of the contract, and upon this, and the ground of good conscience, this equitable trust rests. This equitable lien, it is admitted, follows the property sold into the hands of the heirs, and even future vendees with notice."
This doctrine, including in it the right to a lien on the *Page 1213
property in the hands of subsequent purchasers with notice, was firmly established at the time of the adoption of the Code of 1873. The vendee was treated as the mortgagor, and his rights foreclosed in the same manner. Blair Co. v. Marsh, 8 Iowa 144;Grapengether v. Fejervary, 9 Iowa 163; Johnson v. McGrew, 42 Iowa 555; Jordan v. Wimer, 45 Iowa 65; McDole v. Purdy, 23 Iowa 277. The right to the lien was held to be a part of the contract, which the legislature could not, by the Code of 1873, as to contracts then existing, impair. Jordan v. Wimer, 45 Iowa 65;Webster v. McCollough, 61 Iowa 496. See, also, Wightman v.Spofford, 56 Iowa 145. This lien was held to survive the filing and allowance of a claim against the vendee's estate. Hays v.Horine, 12 Iowa 61. Under the circumstances in Patterson v.Linder, 14 Iowa 414, it was held to survive a judgment against the vendee. It is the general rule that the vendor's lien is good as against a purchaser with either actual or constructive notice. 39 Cyc. 1822. The Code commissioners, in order to cut off a secret lien (a lien which, as has been noted, was not necessary for the protection of the vendor), recommended the passage of Section 1940. Annotations, Code of Iowa, Vol. I, page 821.
The vendor need not divest himself of the legal title except by his voluntary act, and then, by a conveyance, voluntarily place the vendee in the position of apparent ownership. The reason for the adoption of Section 1940 does not apply to a vendee. As the vendee makes his payments, the vendor becomes trustee for him of the legal estate, and the vendee becomes, in equity, the owner of the estate to the extent of his payments. When the payments are fully made, the full equitable title vests in the vendee, and the vendor retains the naked legal title in trust for him. Rose v.Watson, 10 H.L. Cas. 672 (10 Jur. [N.S.] 297).
"A deposit is part payment. Therefore, part payment to thatextent constitutes the purchaser actually owner of the estate. Consequently, if the contract do not proceed without the fault of the purchaser, the seller, to recover the equitable ownership, must repay the deposit, which, representing a portion of the interest in the property, is a lien upon it." 2 Sugden on Vendors (14th Ed.) 672. Elterman v. Hyman, 192 N.Y. 113, *Page 1214
124, 125 (84 N.E. 937, 941, 127 Am. St. 862, 15 Ann. Cas. 819).
"The legal title remains in the vendor, while an equitable interest vests in the vendee, to the extent of the payments made by him. As his payments increase, his equitable interest increases; and when the contract price is fully paid, the entire title is equitably vested in him, and he may compel a conveyance of the legal title by the vendor, his heirs, or his assigns. The vendor is a trustee of the legal title for the vendee to the extent of his payment. The result of this state of things is quite unlike that of a conveyance subject to a condition subsequent which is broken, and when re-entry or a claim of title for condition broken is necessary, to enable the vendor to restore to himself the title to the estate. The legal title having, in that case, passed out of him, some measures are necessary to replace it. In the case of a contract like that we are considering, no legal title passes. The interest of the vendee is equitable merely, and whatever puts an end to the equitable interest * * * places the vendor where he was before the contract was made." (Written with reference to the vendor's rights.) Jennisons v. Leonard, 21 Wall. (U.S.) 302, 309.
For further authorities, see cases cited in 39 Cyc. 2033 etseq. The vendee's lien will prevail against the subsequent grantee of the vendor with notice. Lowe v. Maynard (Ky.), 115 S.W. 214; Rose v. Watson, 10 H.L. Cas. 672; Stewart v. Wood, 63 Mo. 252; Clark v. Jacobs, 56 Howard's Practice 519, cited in note to 3 Pomeroy's Equity Jurisprudence (4th Ed.) 3050, Section 1263; 39 Cyc. 2040.
In this case, the judgment is conclusive that plaintiff was ready, and that Watts refused to perform the contract. The plaintiff had paid his money to Watts and had improved the property in reliance upon the contract, and had acquired an equitable estate in the land to the amount of his payments and improvements and other proper expenditures. To deny a lien (which in this case would apparently be against an insolvent, nonperforming vendor, and against one who takes the title from him with notice of the vendee's equity) would be, as it seems to us, to put a premium upon the perpetration of fraud by a vendor and by those who are willing to collude with him. It seems to us, therefore, that the vendee's lien is not only just, *Page 1215
and well supported on principle and by the great weight of authority, but that, in substance, it is a part of the equity jurisprudence of this state. For leading authorities upon the vendee's right to a lien, consult 3 Pomeroy's Equity Jurisprudence (4th Ed.), Section 1263; Flickinger v. Glass,222 N.Y. 404 (118 N.E. 792); Witte v. Hobolth, 224 Mich. 286
(195 N.W. 82); Gerstell v. Shirk, 127 C.C.A. 41 (210 Fed. 223);Everett v. Mansfield, 78 C.C.A. 188 (148 Fed. 374); 39 Cyc. 2031.
II. The lien is to secure to the vendee the repayment of his expenditures made in pursuance of the contract. The amount may be ascertained, and the liability of the vendor therefor determined at law. The ascertainment of the amount of the 2. VENDOR AND expenditures and the determination of the PURCHASER: vendor's liability to make restoration are not remedies of inconsistent with the existence of or right to purchaser: enforce the lien. There is no splitting of election of causes of action and no merger remedies. of the lien in the judgment and no waiver.Sigworth v. Meriam, 66 Iowa 477; Gilman v. Heitman, 137 Iowa, 336; Freeburg v. Eksell, 123 Iowa 464; Flickinger v. Glass,222 N.Y. 404 (118 N.E. 792); Bierce v. Hutchins, 205 U.S. 340;Erickson v. Russ, 21 N.D. 208 (129 N.W. 1025, 32 L.R.A. [N.S.] 1072; Lambert v. Nicklass, 45 W. Va. 527 (72 Am. St. 828); Lovev. Caylor, 99 Okla. 302 (227 P. 98).
III. As stated, plaintiff's tenant was in possession. Plaintiff testified that, on July 7, 1921, Metcalf and the cashier, Raw, had an interview with him, in which Metcalf "asked me what the trouble was between Watts and me. * * * I told Metcalf that I had purchased a piece of land from Watts, and that I had paid him money down, and that Watts had refused, from time to time, to deliver a deed to me, and that, even when I refused to sign the second contract, he went up to the house and wanted my wife to sign it; and Mr. Metcalf said, `Why, that is strange Charley [Watts] would do that.' And then I told Metcalf that, if I didn't get the deed, that I was intending to start an action to recover my money. I told Metcalf at that time that I had paid Watts $10,000. I don't remember whether Metcalf said very much of anything. Raw said he didn't think I had much of a case. He said Tobe Diamond could make a *Page 1216
case out of anything. This was after I had commenced my action against Watts. This was in July, and I had commenced my action in June; so I say that the trouble Metcalf referred to between Watts and me was the lawsuit. I had another talk with Metcalf in August, — the 10th day of August. * * * Metcalf asked me again about the Watts trouble, and I told him; and he said Watts had come to him and wanted to give him a deed for the farm in controversy, and that Metcalf said Watts had offered him [Metcalf] a deed as security on $9,000. Metcalf said Watts owed $4,000, I believe, at Merrill, and $5,000 at Paullina; and Metcalf said, if he accepted the deed, it was up as security to that indebtedness. I told Metcalf that I had not relinquished my right on the farm; that, if I got a judgment against Watts, that, if he didn't pay, I would levy on the farm, and try to get it that way. I got an opinion before that time from you, Mr. Diamond, as to what my rights were. * * * I told Metcalf what you had said: that I should bring the action first before a jury, and get the judgment, and then, if Watts didn't pay the judgment, why, you would start an action in equity court. Metcalf said that the only reason that he would ever expect a deed for that place would be as security on what Watts owed him. Metcalf did not tell me at that time that he was buying the land, or anything of that sort."
Watts testified:
"Mr. Metcalf's bank was asking for some security for the money I owed them. I told Metcalf that I expected to get some notes from Mr. Larson and a mortgage, and when I got them, I would put them up for security * * * I had a later conversation with Metcalf, when I tried to deliver the deed, Exhibit 1, and intended to get the mortgages from Larson; and I then told Metcalf that I was not going to get them. I later had a conversation with Metcalf, and told him, owing to the fact that I was not getting the mortgages, that the best thing I could do was to deed him the land. * * * This was along about the latter part of July, 1921, when it looked as though Mr. Larson was going to complete his contract. Later, I went to the bank and told them I was at their mercy, and that the only thing I had was this piece of land, and that, if they would cancel my notes, I would give them the land. I gave them a deed on the *Page 1217
10th of August, 1921, and they gave me a receipt for the note. * * * The bank said they wanted to see about the title, and so I think they called up Mr. Rerick, of Primghar, to see if there was anything against the land, other than the $18,000 first mortgage. * * * I gave the bank an abstract, and they looked the matter over. * * * they were satisfied with it. * * * I told Metcalf that the mortgage I expected from Larson would be a mortgage covering the farm in controversy. * * * I don't know as I went in to Metcalf and honestly and clearly gave him my trouble * * * I told Metcalf I served a notice of forfeiture on the land contract."
Metcalf testified:
"I do not remember of having any talk with him [plaintiff] with reference to his deal with Watts. * * * At that time, Watts owed us more than $9,000. I don't remember that I ever had any conversation with Larson with reference to his land contract with Watts. I don't remember of him, ever mentioning the land. If he ever did, it was a year or two after I took the deed from Watts. * * * To the best of my recollection, on August 10, 1921, I was at the bank in Paullina, when I took deed from Watts. I don't believe I ever was at Larson's place on the 10th of August, 1921. * * * At the time I took this deed from Watts, I did not have any knowledge that Larson had any interest in this land, or claimed to have any interest in the land. Before turning the notes Exhibits 7 and 8 over to Mr. Watts, I called up Mr. Rerick [abstracter at Primghar], with reference to the title, and asked him to find out if there was any judgment or any claims whatsoever on this farm, * * * and he said that the farm was clear from all claims, except the $18,000 mortgage * * * The abstract was continued to about the first of December, 1921. That abstract at that time did not disclose anything about this suit that is now being tried, or any claim of Larson to this land. * * * Larson, the plaintiff, did not dispute our right to the rent in any way. He never claimed to me that he owned any interest in the land or had any right to the rent, at that time. * * * I had no agreement in any form * * * to deed the land back to Watts. I was acquainted with the farm in controversy in 1921, and knew there was a tenant on the place. Before I got deed to the land, I did not talk to the *Page 1218
tenant as to who his landlord was. I did not talk to Larson with respect to what rights he claimed to the land. * * * I knew, at the time we took deed, that Larson was starting action against Watts; that there was an action pending between Larson and Watts. I didn't know that it was concerning the land deal between them. I didn't know what it was about. * * * I did not go to a lawyer and ask legal advice as to the possible rights of Larson under this suit before I took the deed from Watts. * * * I suppose it was not surprising to me that, if Mr. Larson claimed to have a lien on the land, that he was not claiming the rent from the land."
Rerick testified that he continued the abstract for Raw, and that Raw "wanted to know if there was not some case there, and he thought there was a case pending there. Well, I either went and looked it up, or I had it looked up, and I told him I thought not; that I didn't find any. I don't know whether I overlooked at the time, or whether I thought, as I will explain a little later on. I think, how that happened, * * * I didn't find anything in the records * * * that affected the title to the land, or any claim which was of record * * * I think I probably found the record of the law action between Larson and Watts."
The witness stated that the abstract was made in his office July 5, 1921, signed by his son, and that the son knew about the pendency of the suit as early as July 5, 1921. The abstract certified July 5, 1921, shows the petition filed June 29, 1921, stating that plaintiff held contract for the land, and that the contract was not fulfilled, and that plaintiff was asking judgment for $14,256.88.
Neither Raw nor the abstracter's son was called as a witness.
The evidence, in our opinion, justifies the finding that Metcalf, before he took the deed, knew that plaintiff had made a large payment on this land; that there was a controversy between plaintiff and Watts; that plaintiff was suing to recover $14,256.88, and was claiming that the farm would be held as security for the payment of the amount of his recovery. He knew, or ought to have known, that plaintiff's money was in the land. If we were to accept the defendant's testimony, he had constructive notice, and was also put upon inquiry, which, if followed out, would have led to a discovery of plaintiff's claims. *Page 1219
3. VENDOR AND Crooks v. Jenkins, 124 Iowa 317; Aultman
PURCHASER: Taylor Mach. Co. v. Kennedy, 114 Iowa 444. The remedies of burden of proof was upon Metcalf to show that he purchaser: was without notice, actual or constructive. In enforcement our opinion, he had both actual and constructive of vendee's notice. Flickinger v. Glass, 222 N.Y. 404 (118 lien: burden N.E. 792); 20 Ruling Case Law 349; Doran v.
of proof. Dazey, 5 N.D. 167 (64 N.W. 1023, 57 Am. St. 550).
The judgment is — Affirmed.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433675/ | I. The plaintiff is a banking corporation located at Chalco, Nebraska, and organized under the laws of that state. On May 29, 1922, John Schleisman, vice president of the Farmers Merchants Savings Bank, executed the note in suit, to 1. BANKS AND Louis Kovar, its cashier. It is admitted, or BANKING: clearly proven, that the maker received no insolvency: consideration for the note, and that it was, in assumption fact, executed for the use and benefit of the of bank. On or about the date of its execution, the liabilities: note was transferred to appellant for value, the construc- payee indorsing same in blank. Prior to the tion. execution of the note, and on September 30, 1916, the Farmers Merchants Savings Bank, by John Schleisman, vice president, and Louis F. Kovar, cashier, executed a written guaranty to appellant, guaranteeing the payment of all rediscounts, notes, or other negotiable paper received by appellant from said bank which were indorsed personally by any officer of the bank or by any individual therefor, in the event that such officer or individual should sever his connection with the bank *Page 278
by reason of death or otherwise. The note was not entered upon the books of the savings bank, and it is conceded that the loan was made in excess of the authority of the bank to loan to its officers, and that this is the reason the transaction was withheld from the bank's books.
The assets of the Farmers Merchants Savings Bank were taken in charge by the superintendent of banking, as receiver, in August, 1922. Following this event, the Farmers State Bank of Lidderdale, a new corporation, was organized, for the purpose of taking over the assets and business of the savings bank. The transfer was consummated on the sixth day of October, when all of the real property and valuable assets of the bank were transferred to, and possession taken thereof by, the new corporation. No part of the consideration was paid in cash. The new corporation, however, assumed "payment of all the existing liabilities of the Farmers Merchants Savings Bank, Lidderdale, Iowa, on account of demand deposits, savings deposits, time deposits, subject to waivers duly signed by said depositors, and all outstanding drafts, cashier's checks, rediscounts, and bills payable; and such liabilities are henceforth to be regarded as valid, binding obligations of said Farmers State Bank, Lidderdale, Iowa."
The agreement between the two corporations further provided that all bills receivable of the savings bank should be indorsed as follows:
"For value received, the payment of these notes is hereby guaranteed, waiving demand, notice of nonpayment and protest."
It provided also that the cashier should execute a guaranty to the new bank, the form of which was prescribed by resolution.
Prior to the commencement of this action, appellant obtained a judgment upon its note against the maker and indorser, on which execution was issued, and returned unsatisfied. The contentions of appellant may be discussed and disposed of under two general propositions: (1) That the assumption of the new corporation to pay the liabilities of the insolvent bank was intended for the benefit of all of its creditors; or (2) that the assets of the insolvent bank in the hands of the receiver constituted a trust fund for the payment of creditors, and, if *Page 279
they were transferred without any provision for the payment of appellant's claim pro rata out of such assets, then it has a lien thereon in the hands of the new corporation, and that the court should have so decreed.
As to the first of the above propositions, we think that the intention of the parties to the agreement, which was executed in pursuance of separate resolutions adopted by the respective corporations, contemplated the assumption and payment by the new bank of only such obligations and liabilities as were shown on the books of the old bank. The resolutions, which are set out in full in the agreement, so provided in express terms. It will be observed, by reference to the paragraph of the agreement quoted above, that no reference is made therein to the books of the bank, but apparently all liabilities are included. Notwithstanding this omission, the intention is made clear by the separate resolutions which conferred the authority upon the respective corporations to enter into the agreement, and they should control. It is our conclusion, therefore, that, in so far as appellant's prayer for relief is based upon the agreement between the banks, it cannot be granted. The obligations assumed under the contract were to pay the liabilities of the savings bank that were shown on its books.
II. The doctrine which treats the assets of a corporation as a trust fund for the payment of its creditors has been adopted in this state. Luedecke v. Des Moines Cabinet Co., 140 Iowa 223; Farnsworth v. Muscatine P. P.I. Co., 177 Iowa 2. BANKS AND 20; Warfield, Howell Co. v. Marshall County
BANKING: Canning Co., 72 Iowa 666. Nevertheless, insolvency: corporate assets may be sold and transferred to transfer of a purchaser in good faith for full value, for assets: cash or its equivalent. Such is the holding of trust-fund the above cited cases. It is conceded that the doctrine. assets of the savings bank were inadequate to pay its obligations in full. As stated, no part of the consideration for the transfer was paid to the receiver in cash. As we understand the record, the estimated value of the assets transferred equals the total of the liabilities assumed. Such assets as were of little value were retained by the receiver, who did not sign the contract, nor, so far as the evidence shows, take any part in the transactions involved. If the assets of a corporation are sold and transferred for value and for cash, the *Page 280
fund derived therefrom becomes available for the payment of creditors at once. The theory upon which the assumption by the purchaser is equivalent to cash is that provision is thereby made for the payment of all of the creditors of the debtor corporation. The note of appellant did not appear upon the books of the bank, and, as stated, is not included in the liabilities assumed. If, however, appellant is denied a lien upon the corporate assets of its debtor, then a preference in favor of other creditors is created by the transfer made after the debtor became insolvent. That a debtor may, under some circumstances, prefer creditors by securing or paying some of them in full is well settled in this state. A banking corporation cannot do this, however, after it has become insolvent and its assets and business turned over to a receiver. Counsel appear to regard as significant the fact that the officers of the state bank did not have personal knowledge of appellant's claim. Surely, this can make no material difference. So far as this question is concerned, however, Kovar, cashier of the old bank, who became assistant cashier of the new bank, did have full knowledge of the note in suit. Furthermore, the new corporation purchased the assets thereof with full knowledge of the insolvency of the savings bank, and this was at least sufficient to put its officers upon inquiry as to the insolvent's liabilities. Luedeckev. Des Moines Cabinet Co., 140 Iowa 223; Valley Bank v. Malcolm,23 Ariz. 395 (204 P. 207); Williams v. Commercial Nat. Bank,49 Or. 492 (90 P. 1012).
Counsel for appellee and the cross-appellant, the Farmers State Bank, rely to some extent upon Warfield, Howell Co. v. MarshallCounty Canning Co., supra. The court in that case declined to establish a lien upon the assets of the debtor which had been transferred to a new corporation. The facts disclosed in that case were that the purchaser was the mortgagee of the insolvent corporation, and that the value of its assets was much less than the mortgage. We held that, although the mortgage created a preference in favor of the mortgagee, it was executed in good faith, and was, therefore, valid. The case is not in point here.
It is apparent from the foregoing discussion that, if appellant's judgment is affirmed upon the cross-appeal, it had a lien upon the assets of the old bank in the possession of the new *Page 281
bank. The lien must be established only for the pro-rata value of the assets, which must be determined in the receivership. To deny appellant a lien upon the assets of the savings bank would be to sanction the right of an insolvent corporation, although in the hands of a receiver, to prefer certain of its creditors, exclude others from participation in the trust fund, and, in effect, completely eliminate the trust-fund doctrine.
III. We come now to consider the cross-appeal of the Farmers
Merchants State Bank. The cross-appeal is from the judgment entered in appellant's favor against the bank. It is contended by cross-appellant that the written instrument 3. CORPORA- executed September 13, 1916, by it to appellant, TIONS: by the terms of which it undertook to guarantee indebted- the payment by the old bank of negotiable ness: debts instruments received by appellant therefrom beyond which were indorsed personally by an officer of lawful the bank or any individual in its behalf, was limit: not authorized by resolution of the board of status. directors, and that same was in excess of the bank's statutory authority.
Savings banks are authorized to "discount, purchase, sell, and make loans upon commercial paper, notes, bills of exchange, drafts, or any other personal or public security." Section 9184, Code of 1924. The note was executed for and on behalf of the bank, which discounted it to appellant for cash.
It is further contended by cross-appellant that the loan was excessive, and that this was known to appellant. It is well settled by the decisions of this court that a corporate debt contracted in excess of the maximum limitation in its articles is not void because thereof. Junkin v. Plain Dealer Pub. Co.,181 Iowa 1203; Farmers' Sav. Bank v. Jameson, 175 Iowa 676; BentonCounty Sav. Bank v. Boddicker, 105 Iowa 548. The savings bank received and retained full value for the note, necessarily with the knowledge of the officers thereof. By doing so it acquiesced in the transaction, thereby ratifying it. German Sav. Bank v. DesMoines Nat. Bank, 122 Iowa 737.
Cross-appellant set up a plea of estoppel, based upon the pleadings filed in the action in which judgment was entered on the note against the vice president and the cashier of the bank, respectively. The savings bank was not named as a defendant in that action. The answer of Kovar filed therein proceeded upon *Page 282
the theory that the note was executed and his indorsement placed thereon solely for the purpose of enabling the bank to make the transfer, and that he received no consideration therefor. It is claimed by counsel for cross-appellant that appellant denied the allegations of Kovar's answer, thereby assuming the position that it received the note from him, and not from the bank, thereby, in effect, repudiating any claim against the bank. We find nothing in the pleadings to that effect. The petition and answer are all that is set before us. The case was not tried. The attorneys appearing withdrew their appearance for the defendants. The plea of estoppel is not, therefore, sustained by the proof. Judgment, we think, was properly entered against the Farmers Merchants Savings Bank. It should have been established as a lien upon the assets of the debtor corporation, subject to a judicial determination in the receivership of the pro-rata value of such as are in the possession of the new bank and subject to the preferential rights of depositors. The cause will be remanded to the district court for decree in harmony with this opinion, and for such further proceedings as may be necessary.
Thus modified, the judgment of the court below is affirmed. —Modified and affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433718/ | [1] This is a proceeding in equity whereby plaintiff asks for an accounting and judgment. Count I of the petition alleges an agreement, partly written, partly oral, and under this agreement claims a percentage of defendant's profits for the year 1947. Defendant in answer to Count I states that the written agreement is clear, unambiguous and complete in itself; that any evidence offered in connection therewith would violate the parol-evidence rule and that plaintiff is bound by the writing, as a matter of law. Other counts of the petition, not set forth in the record but conceded by counsel to exist and to involve an entirely separate matter, are not involved. The legal questions raised by the answer were submitted to the trial court prior to a trial of the case, and on July 28, 1947, an order was made to the effect that "oral evidence of the alleged oral agreement is not admissible in this case." Plaintiff has appealed from the "order, ruling and decision herein under date of July 28, 1947." The record does not disclose any order of this court or a justice thereof authorizing this appeal, and the question therefore is before us as to the jurisdiction of this court to entertain the appeal. While appellee has not filed a motion to dismiss or otherwise raised this issue, the question must be determined, as jurisdiction may not be had through consent, or, much less, by mere silence on the part of appellee, if as a fact no jurisdiction exists. Green v. Ronen, 59 Iowa 83, 12 N.W. 765; City Council of Marion v. National L. Inv. Co., 122 Iowa 629, 98 N.W. 488; Smith v. Des Moines Central Iowa R.R., 211 Iowa 223, 233 N.W. 57; Jensen v. Nolte, 231 Iowa 1103, 3 N.W.2d 140; Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435.
[2, 3] The right of appeal is not inherent nor constitutional and may be granted or withheld by the legislature. Van der *Page 474
Burg v. Bailey, 207 Iowa 797, 223 N.W. 515; In re Lytle Inv. Co.,219 Iowa 1099, 260 N.W. 538. Rule 1 (a), Rules of Civil Procedure, provides: "These rules shall govern the practice and procedure in all courts of the state * * *." That the rules have the force and effect of statute see State ex rel. McPherson v. Rakey, 236 Iowa 876, 20 N.W.2d 43; Stolar v. Turner, 236 Iowa 628,19 N.W.2d 585; Phillips v. Catterson, 235 Iowa 715,17 N.W.2d 517.
[4, 5] Rule 105, Rules of Civil Procedure, provides:
"The court may in its discretion, and must on application of either party * * * separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the case. It shall enter an appropriate final order before trial of the remaining issues * * *. If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal."
It was under this rule that the order appealed from was entered. It is conceded by counsel in oral argument that irrespective of the question here raised, further and other counts of the petition have not been disposed of. Thus under the plain wording of Rule 105, the question before us is an "interlocutory [order] for purposes of appeal." Rule 86, Rules of Civil Procedure, is not applicable, as the order appealed from does not even purport to "require or permit further pleading" which is the basis of that Rule.
Rule 331 provides:
"(b) No interlocutory ruling or decision may be appealed, except as provided in rule 332, until after the final judgment or order."
Rule 332 (a) states:
"Any party aggrieved by an interlocutory ruling or decision * * * may apply to the supreme court or any justice thereof to grant an appeal in advance of final judgment. Such appeal may be granted, after notice and hearing."
No claim is made that such an application was ever made, in fact it is conceded that none was made. *Page 475
It is the established rule in this state that unless an appeal is authorized, the supreme court is without jurisdiction to consider it and must dismiss the appeal. In re Estate of Swanson,239 Iowa 294, 31 N.W.2d 385; Eby v. Phipps, 225 Iowa 1328, 283 N.W. 423. We hold that the order appealed from is "interlocutory for purposes of appeal" and that an appeal in such cases is authorized only by complying with the provisions of Rule 332. Appellant in failing to so comply is attempting to appeal where no appeal is authorized, and this court has no jurisdiction to entertain the same. — Appeal dismissed.
OLIVER, HALE, GARFIELD, WENNERSTRUM, and MANTZ, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445634/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 609
Affirming in part and reversing in part.
This appeal is from a judgment rendered in two consolidated actions, declaring preferential certain mortgages on a farm executed by James Pruitt Tapp to the other appellees to secure debts and contingent liabilities.
The farm had been sold for an adequate consideration and the proceeds were paid to the appellees, who paid certain valid mortgages, after the payment of which the appellees received $6,097.17 under their preferential mortgages, including the $1,000 homestead exemption of James Pruitt Tapp. While the actions filed by the trustee in bankruptcy of James Pruitt Tapp attacking the preferences also attacked the deed, the chancellor refused to set aside the deed because an adequate consideration was paid but treated the proceeds of sale as taking the place of the land. No complaint as to this is made by the appellant. However, instead of ordering the $6,097.17 paid to the appellant, the costs of the action were ordered to be paid therefrom and the balance, less the $1,000 homestead exemption of James Pruitt Tapp, was ordered prorated between the appellant and the appellees in proportion to their respective claims, the appellant's claim being considered as the amount of general claims filed against the insolvent estate. This resulted in ordering $729.96 paid to the appellant, the balance being distributed to appellees on their debts.
It is contended by the appellant, 1) that the judgment should have directed the amount of the preferential *Page 610
payments turned over to him as an asset of the insolvent estate to be administered in the bankruptcy court, 2) that the judgment was erroneous in ordering costs paid out of the fund, since he was entitled to recover costs from the appellees, and 3) that the judgment was erroneous in permitting the appellees to retain $1,000 of the preferential payments, representing the homestead exemption of James Pruitt Tapp mortgaged to them.
The appellees' cross appeal from so much of the judgment as denied them participation in the fund to the extent of $1,218.91 in claims against the bankrupt estate, purchased by them with the understanding that they would not present the claims for payment out of the fund represented by the preferential payments. They have also made a motion to be permitted to prosecute an appeal on the record before us against R.R. Craft, attorney for the appellant, from so much of the judgment as allowed him an attorney's fee of $250.
Section 1910 of the Kentucky Statutes, now KRS 378.060, provides that any act done by a debtor with the design to prefer one or more creditors to the exclusion of others shall operate as an assignment of all the property of the debtor for the benefit of his creditors. It was under this statute that the appellant successfully attacked the preferences made by the insolvent debtor. The theory of the appellees, and the one adopted by the chancellor, seems to be that since the trustee was invoking the benefit of a state law, and since the state law under which the preferences were avoided declares that the preferences operated as an assignment for the benefit of creditors, the court, upon avoiding the preferences at the instance of the trustee in bankruptcy, was authorized to distribute the fund under the state law relating to assignments for the benefit of creditors and to require the trustee to participate therein as the representative of general claims. But such a theory places the trustee on the footing of a mere creditor suing to avoid a preference and ignores the provisions of the National Bankruptcy Act, which is supreme in its field and overrides all state laws in conflict therewith.
The National Bankruptcy Act provides, in substance,11 U.S.C.A. Sec. 110, sub. e, that any obligation incurred by a debtor, which under a state law is voidable for any reason by a creditor shall be null and void as *Page 611
against the trustee in bankruptcy and that every such obligation shall be avoided by the trustee for the benefit of the estate. The trustee is authorized to institute plenary proceedings in the state courts to recover such property or avoid such obligation. Thus, while under the state law a preference to a creditor which is voidable operates as an assignment for the benefit of creditors, such preference, whether it be regarded as a voidable transfer of property or as a voidable obligation incurred by the debtor, is, by virtue of the Bankruptcy Act, null and void as to the trustee. The act does not confer on the trustee merely the right to force an assignment for the benefit of creditors under the state law but renders the preference null and void as to the trustee, so that when the trustee avoids the preference he is entitled to recover the property involved in the preference just as he is entitled to any asset available to general creditors.
While section 1910, KRS 378.060, declares that a preference "shall operate as an assignment and transfer of all the property and [the] effects of such debtor, and shall inure to the benefit of all his creditors," the true intent and purport of the statute is that upon the adjudication of such a preference the estate of the debtor shall then be distributed amongst his creditors. Certainly, in view of the provisions of the Bankruptcy Act referred to which give the trustee the right to set aside transfers of property or obligations voidable under the state law, our statute should not be construed to require the trustee to participate in assignment proceedings in the state court for the distribution of the insolvent estate. The voided preference becomes property of the bankrupt to which the trustee is entitled. We think the National Bankruptcy Act clearly required the court to direct the amount of the preferential payments to be turned over to the trustee to be administered in the bankruptcy court.
And, just as clearly, the trustee, who was successful in his action against the appellees, was entitled to recover of them the costs of the action, just as any other plaintiff who succeeds in his action. The judgment was erroneous in directing payment of costs from the funds representing the preferential payments.
Our conclusion that the trustee was entitled to recover the amount of the preferential payments disposes of the question raised on the cross appeal as to the right *Page 612
of the appellees to participate in the distribution to the extent of the claims against the insolvent estate purchased by them. Since the distribution is to be made in the bankruptcy court, that court only has jurisdiction to allow claims against the insolvent estate.
Our conclusion also disposes of the question of the attorney's fee allowed to the appellant's attorney, since the latter contends that the judgment should have directed the payment of the fund to him and that the court was without power to allow attorneys' fees, that being a matter addressing itself to the bankruptcy court.
The final question is as to the correctness of the judgment in allowing the appellees to retain $1,000, representing the homestead exemption of James Pruitt Tapp. It is conceded by the appellant that under the law of this state a homestead exemption, being exempt from claims of creditors, may be disposed of by its owner as he sees fit and the act of the debtor in disposing of it is not a preference within the meaning of Section 1910, KRS 378.060.
It is contended, however, that Section 6 of the Bankruptcy Act, 11 U.S.C.A. Sec. 24, since its amendment in 1938, denies to the bankrupt, and consequently to the appellees, the right to the homestead exemption. Section 6 of the Bankruptcy Act, as originally enacted, allowed the bankrupts the exemptions prescribed by state laws. The 1938 amendment to the section reads: "Provided, however, That no such allowance shall be made out of the property which a bankrupt transferred or concealed, and which is recovered or the transfer of which is avoided under this Act for the benefit of the estate, except that, where the voided transfer was made by way of security only and the property recovered is in excess of the amount secured thereby, such allowance may be made out of such excess. * * *"
It is argued that since the preferences were voided under the Bankruptcy Act no exemption was allowable. But this argument fails to take into consideration that it was under the state law that the preferences were avoided and that under the state law there was no preference in so far as the homestead exemption was concerned. The homestead exemption was the property of the debtor, free from the claims of creditors, and the debtor was at liberty to dispose of it as he saw fit. There *Page 613
is no recovery or transfer avoided under the Bankruptcy Act as to the homestead exemption, the state law denying a recovery as to this. We think the court correctly adjudicated this question.
The judgment is affirmed in so far as it denied a recovery of the $1,000 homestead exemption and is reversed in the particulars indicated, with directions to enter a judgment in conformity with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433897/ | Plaintiff and defendant are brothers who inherited from their mother a one-sixth interest each in certain land. A partition suit was commenced by one of the heirs, which proceedings resulted in the appointment of a referee, W.B. Whiting. He thereafter sold the land to the defendant. Thinking himself short of funds to pay the purchase price, defendant sought to get some of his brothers, among them the appellee, to accept his note for their shares. Whiting conducted the correspondence upon which the case largely turns. One of the questions involved, and really the one upon which the case turns, is the question as to whose agent Whiting was during the negotiations.
Plaintiff-appellee was at all times a resident of Florida; and he had no connection with the transaction other than is disclosed by the exhibits. On October 2, 1931, Whiting wrote to three of the defendant's brothers, including the plaintiff, and advised them that Charlie (defendant) had been in that day and was unable to settle for the deed and would like to get an extention *Page 701
of time for a year. The letter further advised that an attorney representing a creditor of another brother was insisting on payment at once and threatening a resale; and that the land at that time would not sell for as much as appellant had paid for it. The letter then continues:
"Would you be willing to allow Charley to pay enough to take care of Frank's share, and then let your share go until he is able to sell some cattle or make payment some other way?
"Charley had some money in our Bank and we were compelled to close a week ago Monday, so that money is tied up for a while.
"If the three boys (among them plaintiff) * * * would be willing to give Charley an extension of a year, it seems to me it would save a lot of costs and in the end you would get more than you would by Williams attorney ordering a resale of the land, which he undoubtedly has the power to do."
On March 30, 1932, Whiting addressed a letter to the defendant-appellant which reads as follows:
"Hess was up today and we went down to George Prichard's and fixed up the land deal. I am holding the money of Lynn's and Billy's here for you as you are to give them notes for this. Out of this amount it will take $598.22 to pay the balance that you owe for the land and house. Shall I now send this balance to the insurance company or send it direct to you?
"If you could come over, we could go over this entire deal with George Prichard, but if you can't come over, just advise whether you want the balance of this money sent to you or to be applied on the mortgage of the Prudential Life. Before sending this money out, it will be necessary to get the receipts from Billy and Lynn, which I have enclosed to them and asked them to return."
Enclosed with this under the same date was a statement to the defendant as to the sale of land which sets up the sale price and other matters and concludes with this: "Amount necessary to deduct from the amounts coming to Lynn and Billy to make up enough to pay for the balance of the land — $598.22."
On May 27, 1932, Whiting again addressed a letter to the defendant as follows: *Page 702
"I received a letter from Lynn and he inclosed the note that you signed to him. When you are over here he would like the time put in the note and the note signed in ink, so I'll hold it here until you come.
"Lynn says that he did not receive the receipt that I sent you for him to sign. Before we can close the estate it will be necessary to get these receipts from Lynn and Billy. Will you send them out to the boys just as soon as you get this letter? As soon as we get those receipts we can settle up the estate."
This postscript was attached: "Before I settle with you we will have to get the receipts signed from boys."
On July 1, 1932, Whiting again wrote the defendant saying that he had received Billy's (one of the brothers) receipt for the amount of his share and advised of a deduction necessary. (Here follows a list of deductions.) The letter continues:
"Balance due you for which I am enclosing a check 700.51 ------ "Total $1327.23
"If I had known you weren't coming back soon I'd have sent this to you before.
"Did you ever get Lynn's (plaintiff) receipt?"
Some days before the letter just referred to had been written, plaintiff wrote to appellant. Among other things, he had this to say:
"Charlie your note you sent me was not all filled out. You never wrote in when it was payable and then you should have signed it with pen ink. Willard wrote me that he sent you a Estate receipt to send me when you sent your note but you failed to send it to me.
"You say you will be down to Whiting soon. So I am sending your note to Willard Whiting. So he can make out a new note for you to sign and if you have that Estate receipt you had better bring it along with you as Willard wants to get things fixed up as soon as he can." (It should be noted that the referee's name was Willard Whiting and his address, Whiting.) *Page 703
On August 23, 1934, Whiting sent back to plaintiff the note which had been signed by the defendant and which is involved herein, with this letter:
"The lost is found and I am enclosing the Charlie Ballard note that you returned to me. In Iowa lead pencil signature is as good as ink, so I would suggest that you hang on to this." This note is the one in suit.
[1] The jury could have found from the testimony that plaintiff accepted the note, that it was never paid and there was due thereon the full face thereof; that plaintiff signed the receipt to the referee, and that it had been received by the latter. Appellant's first proposition is that the court should have directed a verdict for him, because the appellant never received any consideration; that there was error in failing to enter a judgment notwithstanding verdict, and in refusing to grant a new trial because of the alleged lack of consideration. Appellant is not in a position to complain about the failure of the court to direct a verdict. After that ruling defendant shifted his line of defense by admitting the signature of the note (which he had theretofore denied) and setting up affirmative defenses. This placed the burden of proof on him.
[2] There is no merit in the plea of lack of consideration because the consideration for which plaintiff accepted the note, if he did, was clearly the purchase price of his inheritance in his mother's estate. Appellant cites authorities to the effect that parol testimony may sustain a defense of lack of consideration, and where the evidence is clear that there is noconsideration the presumption of consideration is overcome, andthe burden is upon the plaintiff to show that there wasconsideration therefor. (Italics ours.) We have already said that the jury could have found consideration for the notes.
Appellant's second proposition is also predicated upon failure of consideration and the court's failure to grant relief on that ground, it being his contention that "said note was signed for the purpose of allowing the defendant to receive credit from the referee upon the purchase price of the property of the plaintiff's distributive share of the proceeds, and that in defendant's settlement with the referee, no credit of any kind was given the defendant for signing of said note or for plaintiff's share in the proceeds, and at the time of the settlement between the referee *Page 704
and the defendant that the referee still retained the plaintiff's interest in the proceeds in cash." This complaint of defendant is probably based on these facts: After defendant had secured the consent of his brothers, including the plaintiff, that they take his note for the purchase price of their shares, he secured a loan from an insurance company which made it unnecessary that he use the amount of plaintiff's share and that the amount remained in the bank after the land transaction had been completed. This was a situation which evoked Whiting's expression in the letter of March 30, 1932, to appellant, as follows:
"I am holding the money of Lynn's and Billy's here for you as you are to give them notes for this. Out of this amount it will take $598.22 to pay the balance that you owe for the land and house. Shall I now send this balance to the insurance company or send it direct to you?" (The rest of the letter has heretofore been quoted.)
What became of the money that was left in the bank is not disclosed by the record. Appellant urges that there was no valid delivery of the note because appellee originally sent it back to Whiting because he thought the signature in pencil was not valid, but the jury could find that after the note was returned to him with the explanation that the penciled signature was valid, he accepted it.
[3] Objection was made that the court permitted the plaintiff to testify (over objection that it was the conclusion) that the plaintiff was the owner of the note. There was no error here.
[4] It is complained that the court erred in permitting Whiting to testify that he had no recollection of sending any part of the money received from the sales of the plaintiff, the argument being that on this testimony plaintiff was able to argue to the jury that defendant had signed the note, thereby acquiring plaintiff's share in the land, and that plaintiff had received nothing therefor. This error, if it be such, was cured by the instructions of the court to the effect that all that was required of the purchaser was to pay the money to the referee and that such purchaser was in no event responsible for the disposition thereof made by the referee.
[5] Appellant's sixth proposition is predicated upon a construction of the record with which the jury did not agree. *Page 705
Appellant urges that the court erred in permitting Whiting to testify that he was acting as agent for the defendant. Appellee denies this, but neither offers any citations to support his contention. But see note to Exchange State Bank v. Occident Elevator Co., 90 A.L.R. 749. In this state the rule is that such testimony is admissible. Lyons v. Farm P.M. Ins. Assn., 188 Iowa 506,176 N.W. 291. Some of the questions on this subject were objected to as leading and while this may be so, we have been unable to detect any error therein on the state of this record.
[6] Lastly it is argued that there was misconduct on the part of the jury in failing to observe instructions of the court. In the nature of things, such a complaint defies analysis and we do not attempt it. It is sufficient to say that there is as much room for plaintiff to assert that the jury did follow the direction of the court, as there is for appellant to deny. From what has gone before it is apparent that the question involved in the case is one of fact for the jury. For this reason and the further one that a verdict for either party would seem to work a hardship on the other, we have examined and reexamined the instructions, although they are not criticized, with the view of determining whether the court might inadvertently have misled the jury into a wrong result. We have discovered no fault in them. This being so, we may not substitute our judgment for that of the jury. Their verdict is final. There are other possible errors suggested by the record but the foregoing disposes of all that call for attention.
Having discovered no reversible error, it follows that the case should be, and it is, affirmed. — Affirmed.
HALE, STIGER, MILLER, BLISS, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433840/ | This is an action brought by L.A. Andrew, superintendent of banking of the state of Iowa, as receiver of the Farmers
Merchants Savings Bank of Durant, Iowa, to recover against the stockholders of the Farmers Merchants Savings Bank of Durant, Iowa, on their several shares of stock owned in said bank. The action was started as one suit, in a court of equity, against all the stockholders of the said bank. The case was submitted to the court upon the pleadings and a stipulation of the facts. Under the stipulation it was agreed that the Farmers Merchants Savings Bank of Durant, Iowa, closed its doors on the 23d day of July, 1931; that on the 31st day of July, 1931, L.A. Andrew, superintendent of banking of the state of Iowa, was, by the district court of Cedar county, Iowa, upon his application, appointed as receiver of said bank; that he has been since that date, and is at the present time, the duly acting and qualified receiver of said bank; that in his capacity as such receiver he instituted this action. The defendant C.J. Ruymann is the owner and holder of eight shares of capital stock in the Farmers
Merchants Savings Bank of Durant, Iowa, and the defendant (appellant here) Adolf Ruymann is also the owner and holder of eight shares of capital stock in said bank. None of the indebtedness incurred by the Farmers Merchants Savings Bank of Durant, Iowa, during the time it was a going concern, was incurred without proper authority. It was admitted in the pleadings that all the assets, property, and resources of the said bank would be insufficient to pay the creditors and depositors thereof, and that the shortage of assets, property, and resources *Page 246
of said bank would be largely in excess of the assessment required should the full amount of the assessment due from the stockholders be realized. It was stipulated also that the only issues before the court for determination in this case are legal in nature, and are as follows, to wit:
"The power of the receiver to sue or collect on the theory that he has only authority to distribute assets ratably among the creditors of said bank," and the contention "that the plaintiff (appellee herein) is without authority to maintain an action in equity by virtue of section 9253 of the 1931 Code of Iowa, on the theory that this section is null and void, being in violation of Article III, section 29, of the Constitution of the State of Iowa, requiring that every act shall embrace but one subject and the matters properly connected therewith, which subject shall be expressed in the title. That all other allegations in the plaintiff's petition so far as it affects these defendants are admitted."
On the 5th day of October, 1932, the lower court entered judgment against C.J. Ruymann, in favor of the said L.A. Andrew, as receiver of the Farmers Merchants Savings Bank of Durant, Iowa, on his eight shares of stock in said bank, in the amount of $800, together with costs of the action, and against Adolf Ruymann on his eight shares of stock in said bank, in favor of L.A. Andrew, receiver of the Farmers Merchants Savings Bank of Durant, Iowa, in the amount of $800, plus costs.
The appellant claims that section 9253 of the Code of 1931 is null and void for the reason that under the Constitution of the State of Iowa, Article III, section 29 thereof, it is required that every act shall embrace but one subject and the matters properly connected therewith, which subject shall be expressed in the title, and that said section 9253 contains more than one subject, to wit, makes provision for the assignee's bringing suit, makes provision for the receiver's bringing suit, and makes provision for the creditor's bringing suit, and that the title to said section is only in reference to the action by creditor and that it is therefore unconstitutional.
Article III, section 29, of the Constitution of the State of Iowa, is as follows:
"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. *Page 247
But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."
Section 9253 of the 1931 Code of Iowa is as follows:
"The assignee or receiver of any such corporation, or in case there is none, or of his failure or refusal to act, any creditor thereof, may maintain an action in equity to determine the liability of the stockholders, and the amount to which each creditor shall be entitled; and all parties interested shall be brought into court."
It has been generally and universally held that the language of the Constitution that requires that every act shall embrace but one subject and the matters properly connected therewith, which subject shall be expressed in the title, should not be given a narrow or limited construction, and that it is not necessary that the subject of the bill shall be specifically and exactly expressed in the title, or that the title shall be an index of the details of the act; that "but one subject and matters properly connected therewith" does not and cannot prohibit the uniting in one act of any number of provisions having one general object fairly indicated in the title. The rule of construction to be used in determining whether or not the title is expressive of the subject-matter therein contained is well expressed in State v. Gibson, 189 Iowa 1212, 174 N.W. 34. On page 1221 of 189 Iowa,174 N.W. 34, 38, this court says:
"The Constitution is not violated if all the provisions relate to the one subject indicated in the title and are parts of it, or incidental to it, or reasonably connected with it, or in some reasonable sense auxiliary to the subject of the statute."
The very language of section 9253 of the 1931 Code indicates that all the provisions of the act, namely, the provision for the assignee bringing suit, the provision for the receiver bringing suit, and the provision for the creditor bringing suit, have one general object in mind, that is, the liquidation or conversion of the liabilities of the stockholders into tangible form for the use and benefit of the creditors and depositors of the bank, this statute being made broad so that receiverships could be had in a number of different cases. This act applies not only to banking corporations but to all sorts of corporations existing under the laws of the state of Iowa. *Page 248
In some cases a proper party would be an assignee for the benefit of creditors; in other cases, like those of a bank and in the case at bar, the proper person would be the receiver; or, in the event that the assignee or the receiver, after being asked to institute a suit for the collection of the liability of the stockholder, would refuse to institute such suit, then, rather than to permit the creditors of the corporation to suffer loss by reason of the failure to act, the statute provides that the creditors thereof, in their name, may maintain an action in equity to enforce the statutory liability. Underlying the whole action is the thought that the liability must be enforced, and the three means of enforcement provided were to meet the different situations which might arise. The title says "Action by creditor". That was only a convenient means of designation for the reason that the chapter dealing with this subject is headed, "Banks and Trust Companies", and in the act specific reference is made to the action brought by receivers, and about the superintendent of banking acting as receiver of banking institutions. Certainly, an action by a creditor, an assignee, or a receiver, having in mind the common purpose, namely, the enforcement of statutory liability of stockholders, cannot be said to not be reasonably connected with the subject matter of the statute.
The judgment and decree of the lower court is correct, and it must be, and it is hereby, affirmed.
KINDIG, C.J., and STEVENS, ANDERSON, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433841/ | During his lifetime E.B. Clarke was the owner of certain real estate located in Story county, Iowa. He executed a note in the amount of $16,000 on January 28, 1929, to the Midland Mortgage Company, an Iowa corporation, promising to pay *Page 374
the principal sum on February 1, 1934, with interest at 5 per cent, payable annually on February 1st of each year, with the usual provision for acceleration of maturity in the event of failure to pay said interest. His wife, Etta Clarke, also signed the note and mortgage. To secure the payment of the said debt, Clarke and his wife gave a real estate mortgage to the Midland Mortgage Company on the same date. This company was in the business of making real estate loans, and it resold them to various clients, mainly insurance companies. The Midland Mortgage Company forwarded to the John Hancock Mutual Life Insurance Company a copy of the application which was executed by the Clarkes, and an inspector's report describing the farm, to the home office of the insurance company in Boston, Massachusetts. The assistant treasurer of the John Hancock Mutual Life Insurance Company received these papers in Boston, had them duly checked, and recommended the loan for acceptance by the finance committee of the insurance company. The committee approved the loan and the Midland Mortgage Company was so notified. The note, mortgage, and assignment were forwarded by the Midland Mortgage Company to the Atlantic National Bank in Boston, and the John Hancock Mutual Life Insurance Company on March 1, 1929, paid to the bank in Boston for the credit of the Midland Mortgage Company the sum of $16,068.89, being the full amount of the note, plus interest to the date upon which the payment was made by the insurance company. The insurance company then returned the assignment to the county recorder of Story county, Iowa, and the same was duly recorded. In July of the same year the Clarkes sold the farm by warranty deed to the Delaware General Financial Corporation, and the amount of the mortgage, to wit, the sum of $16,000, was figured in as part of the consideration paid by the Delaware corporation to the Clarkes. The Delaware General Financial Corporation paid the interest in 1930 and in 1931, but failed to pay the 1932 interest. The John Hancock Mutual Life Insurance Company commenced this action against the Clarkes and the Delaware General Financial Corporation, praying for judgment on their note of $16,000, plus interest, and for foreclosure of the mortgage. Crim A. Gunder and wife were joined as defendants, being the tenants upon the land against which foreclosure was brought.
The defendant-appellee, E.B. Clarke, and wife, Etta Clarke, filed cross-petition, setting up the fact that because of the dealing *Page 375
between said defendants-appellees and the Delaware General Financial Corporation their liability was only a secondary liability, and that, before any claim could be made against said E.B. Clarke and Etta Clarke, the security must be exhausted, including the rents and profits. This claim made by these defendants-appellees was first made by way of answer and then the same relief was asked for by way of cross-petition. The Delaware General Financial Corporation, the grantee of the original mortgagors, and the owner of the record title at the time of the foreclosure, filed answer and set up the following defenses: First, a denial on information and belief of the execution of the note and mortgage; second, an alleged oral extension of time for the payment of the interest due February 1, 1932; third, a plea that the John Hancock Mutual Life Insurance Company had no right to foreclose a mortgage in the courts of Iowa because it was a foreign corporation and had not secured or received a permit from the secretary of the state of Iowa to transact business in this state, under the provisions of chapter 386 of the Code of Iowa. By way of counterclaim, the said appellants demanded judgment against the insurance company for the sums of money paid by appellant Delaware General Financial Corporation as interest on the note and mortgage after appellant Delaware General Financial Corporation acquired title to the farm. The tenants, who were also defendants, joined in the answer.
By way of affirmative reply to the third defense, the appellee alleged:
First, that it was a foreign life insurance company and that it had been licensed by the auditor of state in 1914 and by the commissioners of insurance in subsequent years, to transact the business of life insurance in Iowa, and it was therefore not required to comply with the provisions of chapter 386 of the Code, relating to ordinary foreign corporations.
Second, that as a necessary and incidental part of said business of life insurance it had authority to invest its funds in mortgages on Iowa real estate.
Third, that it had no capital stock and for that reason did not come within the provisions of section 8427 of the Code of Iowa of 1931.
Fourth, that the note and mortgage sued upon were not a contract made by it in the state of Iowa, as referred to in section 8427.
Fifth, that the corporation laws of the state of Iowa have been *Page 376
uniformly construed by the executive officers of the state to require no permit from the secretary of the state to authorize life insurance companies duly licensed by the commissioner of insurance to purchase Iowa mortgages and foreclose the same.
Sixth, that the defendant-appellant corporation received the benefits of the mortgage when it purchased the real estate from the mortgagors and recognized its validity by the payment of interest thereon and is estopped from questioning its validity.
The case proceeded to trial. Evidence was offered. The lower court found in favor of the appellee and entered a decree, foreclosing the mortgage as prayed for in appellee's petition, and a judgment in rem against the mortgaged premises for the full amount of the mortgage, plus interest and costs, including attorney's fees. The court also denied the relief prayed for in the answer and counterclaim of the Delaware General Financial Corporation. The court also found that E.B. Clarke was only secondarily liable and his wife, Etta Clarke, signed the mortgage and note in suit only as the wife of the defendant-appellee, E.B. Clarke and only for the purpose of releasing her dower interest in and to the premises in question, and that she was not liable on said note.
The appellant Delaware General Financial Corporation, not being satisfied with the finding and decree of the lower court, has appealed to this court.
There are but two questions which are argued in this court by the appellants.
The first, the claim of the appellants that there was an agreement entered into between the appellant Delaware General Financial Corporation and the appellee John Hancock Mutual Life Insurance Company for the extension of time to pay the interest which was due on February 1, 1932. It appears that Mr. Gunder, who was one of the high officials of the Delaware General Financial Corporation, met one of the officials of the insurance company, and he was referred by this official to a Mr. Waples of the Midland Mortgage Company. Mr. Gunder thereafter got in touch with Mr. Waples, and they met at the Pennsylvania Hotel in the city of New York on the 19th of February. There is a marked conflict in the testimony as to just what took place at that time. Gunder claimed that in consideration of an agreement to turn over the rents to the insurance company Mr. Waples told him there would be an extension granted for the period of six months. Mr. Waples claimed Mr. *Page 377
Gunder talked with him, but that Mr. Waples stated all he could do would be to recommend to the insurance company allowing the matter to run for a period of six months, if the leases were assigned. There was nothing in writing. But, on the very day that Mr. Gunder claimed to have the agreement with Mr. Waples, Mr. Gunder wrote a letter, in which he said:
"I discussed the matter with Mr. Waples today. Taking into consideration that the Delaware General Financial Corporation acquired the equity in the land, subject to the mortgage of $16,000, and that none of the equity owners are obligated to pay the taxes and interest personally, he stated he was willing to recommend that the insurance company allow six months time within which to pay the interest provided the Corporation gave an assignment of the lease," etc.
The record clearly shows that the appellant company has not met the burden of proof to show that there was a valid agreement for the extension of time for the payment of the interest. On this question there was but one witness on each side, but one conversation between these witnesses, and, in addition to this, the admitted letter, written by the witness for the appellant, in which he states that all Mr. Waples agreed to was to recommend to the insurance company an extension of time upon the assignment of certain leases. No leases were ever assigned, nor was an assignment of said leases ever tendered. The learned and able trial court had these two witnesses before him, and we believe was right in holding that the appellant company had failed to prove there was any agreement to extend the period of time for the payment of interest.
[1] We come now to the principal question involved in this case, and that is the contention of the appellant that the John Hancock Mutual Life Insurance Company, the appellee, is a foreign corporation, for pecuniary profit, and that it has not complied with chapter 386 of the Code of Iowa and hence it cannot bring this suit in the courts of Iowa and the note and mortgage are void.
Both sides admit that this question has never been directly passed upon by this court. It is all-important, of course, not alone to the insurance companies who, according to the appellants' brief and argument, have invested in real estate mortgages, numbering more than fifty thousand, an aggregate amount in the huge sum of 412 millions of dollars, but likewise important to the state of *Page 378
Iowa because of the tax which it would be able to collect if foreign life insurance companies are required to secure a permit from the secretary of state, and also vitally important to the thousands upon thousands of policyholders in this state who, for years, have been paying premiums upon their policies and exceedingly important to the widows and orphans living in Iowa, whose income for the necessities of life depends upon the payment of policies issued by the insurance companies. For, if the appellants' contention is correct, these foreign life insurance companies would lose the amount now invested in real estate and real estate mortgages — the sum above referred to, to wit: 412 millions of dollars.
The following is the history of the legislation covering the proposition that confronts us:
The first statute relating to ordinary foreign corporations and requiring them to obtain a permit from the secretary of state was adopted in 1886, but was declared unconstitutional by the United States Supreme Court in the case of Barron v. Burnside,121 U.S. 186, 7 S. Ct. 931, 30 L. Ed. 915. In 1897 sections 1637, 1638, and 1639 of the Code of that year were re-enacted, omitting the objectionable sections. In 1909, the 33d General Assembly amended section 1637 by adding after the word "business" in the third line, these words, "as clearly defined and restricted by its articles of incorporation," and by adding a provision requiring the certified copy of the articles when filed to be attested by the secretary of state or other state officer in whose office the original articles were filed. And the 34th General Assembly by chapter 75 of its acts added some specific provisions as to the showing to be made by foreign corporations when making application for permit, and changed the fees required. The amended section appeared as 1637 in the Code Supplement of 1913 as follows, and said sections 1637, 1638, and 1639 as in force in 1913 read as follows:
"Sec. 1637. Foreign corporation — filing articles — process — application — increase of capital — fees. Any corporation for pecuniary profit, other than for carrying on mercantile or manufacturing business as clearly defined and restricted by its articles of incorporation, organized under the laws of another state, or of any territory of the United States, or of any foreign country, which has transacted business in the state of Iowa since the first day of September, eighteen hundred eighty-six, or desires hereafter to transact business in this state, and which has not a permit to do such business, *Page 379
shall file with the secretary of state a certified copy of its articles of incorporation, duly attested by the secretary of state or other state officer in whose office the original articles were filed, accompanied by a resolution of its board of directors or stockholders authorizing the filing thereof, and also authorizing service of process to be made upon any of its officers or agents in this state engaged in transacting its business, and requesting the issuance to such corporation of a permit to transact business in this state; said application to contain a stipulation that such permit shall be subject to the provisions of this chapter. Said application shall also contain a statement subscribed and sworn to by at least two of the principal officers of the corporation, setting forth the following facts, to wit:
"1. The total authorized capital of the corporation;
"2. The total paid up capital of the corporation;
"3. The total value of all assets of the corporation, including money and property other than money, represented by capital, surplus, undivided profits, bonds, promissory notes, certificates of indebtedness, or other designation, whether carried as money on hand or in bank, real estate or personal property of any description;
"4. The total value of money and all other property the corporation has in use or held as investment in the state of Iowa, at the time the statement is made (if any);
"5. The total value of money and all other property the corporation proposes or expects to make use of in the state of Iowa, during the ensuing year;
"The secretary of state can make such independent and further investigation as to the property within this state owned by any such corporation as he may desire, and upon the true facts determine the value thereof, and fix the fee to be paid by such company. Before a permit is issued authorizing such corporation to transact business in the state of Iowa, said corporation shall pay to the secretary of state a fee of ten cents per one hundred words for recording the certified copy of the articles of incorporation, with resolution and statement as previously set forth, and a filing fee of twenty-five dollars upon ten thousand dollars or less of money and property of such company actually within the state of Iowa, and of one dollar for each one thousand dollars of such money or property within this state in excess of ten thousand dollars. If from time to time the amount of money or other property in use in the state of Iowa by said foreign corporation is increased, said corporation shall at *Page 380
the time of said increase, or at the time of making annual report to the secretary of state, in July of each year, file with the secretary of state a sworn statement showing the amount of such increase, and shall pay a filing fee thereon of one dollar for each one thousand dollars or fraction thereof of such increase, together with a recording fee of ten cents per one hundred words, but not less than fifty cents. The secretary of state shall upon request furnish a blank upon which to make report of such increase of capital in use within the state. Any corporation transacting business in this state prior to the first day of September, eighteen hundred eighty-six, shall be exempt from the payment of the fees required under the provisions of this section. The secretary of state shall thereupon issue to such corporation a permit, in such form as he may prescribe, for the transaction of the business of such corporation, and upon the receipt of such permit said corporation shall be permitted and authorized to conduct and carry on its business in this state. Nothing in this section shall be construed to prevent any foreign corporation from buying, selling and otherwise dealing in notes, bonds, mortgages and other securities.
"Sec. 1638. Permit. No foreign corporation which has not in good faith complied with the provisions of this chapter and taken out a permit shall possess the right to exercise the power of eminent domain, or exercise any of the rights and privileges conferred upon corporations, until it has so complied herewith and taken out such permit.
"Sec. 1639. Penalty. Any foreign corporation that shall carry on its business in violation of the provisions of this chapter in the state of Iowa, by its officers, agents or otherwise, without having complied with this statute and taken out and having a valid permit, shall forfeit and pay to the state, for each and every day in which such business is transacted and carried on, the sum of one hundred dollars, to be recovered by suit in any court having jurisdiction; and any agent, officer or employee who shall knowingly act or transact such business for such corporation, when it has no valid permit as provided herein, shall be guilty of a misdemeanor, and for such offense shall be fined not to exceed one hundred dollars, or be imprisoned in the county jail not to exceed thirty days, or by both such fine and imprisonment, and pay all costs of prosecution. Nothing contained in this chapter shall relieve any person, company, corporation, association or partnership from the performance *Page 381
of any duty or obligation now enjoined upon or required of it, or from the payment of any penalty or liability created by the statutes heretofore in force, and all foreign corporations, and the officers and agents thereof, doing business in this state shall be subject to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers."
These were the statutes relating to ordinary foreign corporations which were in force in 1914, when the John Hancock Mutual Life Insurance Company first began to do business in Iowa.
The 39th General Assembly in 1921, by chapter 139 of its acts, again amended section 1637 by striking out the exception in the first sentence relating to mercantile and manufacturing business and by striking out the exception in the last sentence, reading as follows:
"Nothing in this section shall be construed to prevent any foreign corporation from buying, selling and otherwise dealing in notes, bonds, mortgages and other securities."
It added a further provision, which is now paragraph 6 of section 8421 of the 1931 Code, requiring the corporation to furnish a certified copy of the resolution of the board of directors, naming a process agent, and added the following additional sentence to section 1637, which is now section 8427:
"No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state unless prior to the making of such contract it shall have procured such permit. This prohibition shall also apply to any assignee of such foreign stock corporation and to any person claiming under such assignee of such foreign corporation or under either of them."
When the 1924 Code was adopted, section 1637, as amended, and sections 1638 and 1639 became chapter 386 of said Code, and so appear in the Codes of 1927 and 1931. Section 1637 was divided up into seven sections, and these are numbered sections 8420 to 8426. The additional provision about the commencement of suits which is quoted above, and which was section 4 of chapter 139 of the Acts of the 39th General Assembly, appears as section 8427 of *Page 382
the present Code. Section 1639 of the Code of 1897 was never amended, but in the Code of 1924 was split up into three sections, and they appear as sections 8430, 8431, and 8432.
It will be noted from the above history that the original act of the 1897 Code, section 1638, provided that no foreign corporation which did not obtain a permit could exercise any of the rights and privileges conferred upon corporations. This was made more specific and at the same time modified by section 4, chapter 139, of the Acts of the 39th General Assembly, adopted in 1921, which provided that no foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state unless it has procured a permit.
It is admitted in this case, by the appellee company, that it has not complied with chapter 386, and it is the claim of the appellant that because the appellee has not complied with the statutes embodied in chapter 386, because it has not filed its articles with the secretary of state, nor applied for permit as required by section 8420; has not paid the fees required in sections 8423 and 8424; has not received the permit required by section 8426; and that by reason of its noncompliance with the statutes, appellee cannot maintain this suit, and that the note and mortgage are void. The appellee claims that it has complied with the statutes relating to foreign life insurance companies, and that the legislature never intended section 8420 of chapter 386 to apply to foreign life insurance companies which had obtained a permit to do business in the state under the statutes relating to life insurance companies. These statutes are sections 8652 to 8659 of the Code of 1931, and they have been in force since 1873. It will be noted that these statutes were adopted long before section 1637 of the Code of 1897, referring to ordinary foreign corporations, was adopted.
Section 8657 is as follows:
"8657. Annual certificate of authority. On receipt of such deposit and statement, and the statement and evidence of investment of foreign companies, all of which shall be renewed annually, by the first day of March, the commissioner of insurance shall issue a certificate setting forth the corporate name of the company, its home office, that it has fully complied with the laws of the state and is authorized to transact the business of life insurance for the ensuing year, which certificate shall expire on the first day of April of the ensuing year, or sooner upon thirty days' notice given by the *Page 383
commissioner, of the next annual valuation of its policies. Such certificate shall be renewed annually, upon the renewal of the deposit and statement by a domestic company, or of the statement and evidence of investment by a foreign company, and compliance with the conditions above required, and be subject to revocation as the original certificate."
This statute originally provided for the issuance of the annual certificate by the auditor of state, but when the insurance department was created the certificates were issued by the commissioner of insurance.
This record shows that the John Hancock Mutual Life Insurance Company first applied to do business in Iowa in 1914, long before the office of insurance commissioner had been created, and under the provisions of the law at that time the auditor of the state duly issued a certificate to the appellee company, which certificate was introduced as an exhibit and set out in the record, and it recites that the company has fully complied with the laws of Iowa relating to life insurance companies and is authorized to transact its appropriate business of life insurance in this state in accordance with its laws. Annually thereafter, in compliance with the law, a certificate was duly issued by the auditor of the state, and then by the insurance commissioner to this appellee company, authorizing it to do business in this state. It is true, of course, that there is no express exception of life insurance companies in chapter 386, but section 8420 of said chapter contains what amounts to a broader exception, limiting its application to any corporation "which has not a permit to do such business." Such exception does not refer to a permit under chapter 386 to be issued by the secretary of state, but a "permit", and it is the claim of the appellee here that, having secured a permit from the proper state officer, to wit, the auditor of state, and then the insurance commissioner, it was not necessary, nor was it the intent of the legislature to require a foreign life insurance company to secure a second permit from the secretary of state, for, by securing a permit from the insurance commissioner it had complied with the laws of Iowa covering foreign life insurance companies, and it had a right to do business in the state of Iowa.
In the case of St. Louis, I.M. S.R. Co. v. Commercial Union Ins. Co., 139 U.S. 223, 11 S. Ct. 554, 556, 35 L. Ed. 154, the Supreme Court of the United States considered the statute of *Page 384
Arkansas applying to ordinary foreign corporations requiring said corporations to file with the secretary of state a designation of a process agent and place of business in the state, and providing:
"If any such foreign corporation shall fail to comply with the provisions of the foregoing section, all its contracts with citizens of this state shall be void as to the corporation, and no court of this state shall enforce the same in favor of the corporation."
The court went on to consider the statutes of Arkansas relating to foreign insurance companies. These statutes are very similar to the statutes of Iowa, and required filing of a showing of condition with the auditor of state, designation of the auditor as process agent, the issuance of a certificate of authority by the auditor entitling the company to do business in the state, and a penalty for doing business without such certificate of authority. The court held that a comparison of the statutes relating to ordinary foreign corporations first referred to above with the other legislation of the state relating to foreign insurance companies clearly showed that the act relating to foreign corporations was not intended to include foreign insurance companies. The court said, after setting forth the insurance statutes:
"It thus appears that the state of Arkansas had established and maintained a distinct system with regard to foreign insurance companies, under the superintendence of the state auditor, by which every such company was required to file with the auditor a stipulation for the service of process upon it, as well as to make full returns of its condition and business to that officer, to report to him the names of all its agents within the state, and to receive from him certificates of authority for itself and for each of its agents; evidently contemplating that a foreign insurance company would have no principal place of business within the state, but would transact its business in the usual manner through agents at different places.
"Such being the settled policy of the state with regard to foreign insurance companies, they cannot reasonably be held to be governed by the act concerning foreign corporations generally, which required a certificate to be filed with the secretary of state, designating an agent upon whom service might be made, and stating the principal place of business of the corporation within the state. To construe that act as including foreign insurance companies would require the drawing of one of two equally improbable inferences, — *Page 385
either that the only stipulations of such companies for service of process upon them should be filed in a different public office from that in which all other returns and documents relating to such corporations are preserved, or else that their stipulations for such service must be filed both with the auditor and with the secretary of state.
"For these reasons we are satisfied that the omission of the plaintiffs to file in the office of the secretary of state the certificates required by the statute of Arkansas of April 4, 1887, chap. 135, was no bar to this action."
And so, under our statute, if it be that a foreign insurance company must also comply with chapter 386, then it must designate two officers upon whom service can be made, which certainly would seem to be an unnecessary thing to do as there is already one person upon whom service may be made in this state, under the law of this state.
In the case of State ex. rel. Kahn v. Tazwell, 125 Or. 528,266 P. 238, 59 A.L.R. 1436, the Supreme Court of Oregon has also pointed out the distinction between the statutes relating to foreign life insurance companies and the statutes relating to all ordinary foreign corporations. In that case the New York Life Insurance Company had been admitted to do business in the state of Oregon as a foreign life insurance company, but it claimed that the court had no jurisdiction of a suit brought by a resident of Germany on a contract made with the company in Germany. The court held that the Oregon courts had jurisdiction of the case. The opinion cites the provisions of the Oregon statutes, which are similar to those of Iowa, in providing for the appointment of an insurance commissioner and prescribing the conditions which a foreign insurance company must comply with in order to be entitled to do business in the state. The court said: (page 241)
"When the New York Life Insurance Company complied with this section, it consented to all terms thereof, and assumed the duties and liabilities thereby imposed, as well as accepting the privileges and benefits thereof. * * * Such company, upon complying with the state law, has the right to institute and prosecute any action or suit against any person in any of the courts of this state, whether the cause of action or suit is based upon a contract made in the state or elsewhere.
"Oregon Laws, section 6908, contains a like provision for the *Page 386
appointment of an attorney in fact by other foreign corporations before doing business in this state, and authorizing service of process in the same manner and with like effect as the act in question.
"A similar statute in this state dates from 1864. * * * The Insurance Act in question, and prior laws of similar effect, which have been in force since 1887 * * * which apply to foreign insurance companies, as to them take the place of the statute governing other foreign corporations."
There can be no question that the state of Iowa had a right to prescribe the conditions which must be performed by a foreign life insurance company before it can do business in this state. This right has been recognized by the Supreme Court of the United States too often to be open to argument. Some states have gone further than others, and the decisions of the various courts have to be carefully considered in the light of the particular statutes involved. Iowa has prescribed the requirements that foreign life insurance companies must comply with before they will be permitted to do business within this state. And, if these requirements do not meet with the approval of the people of this state, the legislature has the right to change those requirements. That is a matter for the legislature, and not for the courts.
[2] Courts have always given great weight to the construction of statutes of this kind by the executive department of the state, whose duty it is to enforce them. This record shows, without any dispute, by the testimony of the deputy secretary of state in charge of the corporation department, that no secretary of state has ever demanded the appellee to obtain a permit from him, and no executive officer in the state of Iowa has ever attempted to collect any penalty for failure to obtain such permit. He even went further than this and testified that the secretary of state's office interpreted the corporation laws of Iowa as requiring no permit from the secretary of the state to be issued to a foreign life insurance company, licensed by the insurance commissioner, before purchasing Iowa mortgages, foreclosing them, and operating the foreclosed real estate. It is the duty, under the law of this state, for the executive officers of this state, if any foreign corporation fails to comply with chapter 386, to see that the officers of said corporation are duly punished, as they are guilty of a misdemeanor, and that a penalty of $100 per day is to be paid to the state. And yet, in this case, the record shows that none of the officers charged with that duty have *Page 387
ever made any effort to inflict the penalties provided for in these statutes on any foreign life insurance company that has secured a permit from the insurance commissioner, and for the reason that, in their judgment, foreign life insurance companies that have a permit from the insurance commissioner, do not come under chapter 386. The reason that this construction is so important is because it shows the intent of the legislature. The legislature is presumed to know the construction of its statutes by the executive departments of the state, and if the legislature of this state was dissatisfied with the construction which has been placed upon them by the duly elected officials in the past years, the legislature could very easily remedy this situation, as it has the power to pass such legislation, and the only conclusion we can come to is that the legislature must have been satisfied with the construction placed upon the act by the secretary of state.
This court in the case of Bankers Mut. Casualty Company v. National Bank, in 131 Iowa 456, on page 466, 108 N.W. 1046, said:
"It thus appears that the officers, to whom was especially committed the duty of enforcing the statute, interpreted it as permitting burglary insurance, and by their approval gave the company at least apparent authority to transact such business. So far as we know that interpretation and authority remained unchallenged for a period of 10 years and until the objection was raised by the demurrer in this action. The appellee has held the policy issued to it by the appellant for the full period of insurance, and has from time to time paid the accruing assessment without objection or protest so far as the pleadings disclose until the final call on which this suit is based. While not disclosed by the record, it is at least probable that much other business of this kind has been transacted by this and other companies doing a like business on the strength of this interpretation of the law by the state officers to whom its administration was committed; and much less injustice is likely to be accomplished by adhering to that interpretation than by departing therefrom at this late date."
Again, in the case of Farmers Telephone Company v. Washta,157 Iowa 447, 133 N.W. 361, the question involved the statutes relating to the use of the streets of the city by the telephone system. The court said on page 458: *Page 388
"We think, too, that some weight should be allowed to the practical construction which has been placed upon the statute.
"It is a matter of common observation that public utility corporations have quite universally accorded to the statute the effect which we here give to it; since it became the law of the state, they have sought and obtained entrance into the cities and towns of the state only by the method and under the restrictions imposed by Code, sections 775 and 776. Such was the intervener's own conception of its rights when it sent its agents to Washta to secure the passage of ordinance No. 33. The view thus indicated we hold to be the correct one. The opposite conclusion would come as a surprise, not only to the profession and to the cities and towns of the state, but to the promoters and proprietors of telephone enterprises themselves, and result in an unfortunate increase of confusion and disharmony."
In the case of New York Life Ins. Co. v. Burbank, 209 Iowa 199, 216 N.W. 742, involving the construction of the statutes taxing foreign life insurance companies, the court found that the statutes had been interpreted in a certain way for many years, and held that the executive construction should be given much weight, saying on page 206:
"It is a fair presumption that the legislature, by the re-enactment without change of language, was satisfied with such construction, and intended that it should continue."
In the case of Arnreich v. State, 150 Md. 91, 132 A. 430, the question involved was the interpretation of a license statute. The appellant had been doing business for many years, and no effort had been made by the state to collect a license from it or others in similar business. The court said: (page 435)
"At any rate, the long, unvarying, and uninterrupted contemporaneous construction put upon this section of the Code by the administrative officers must at this time be given the force of law. It must be presumed that the legislature during all these years knew that the people engaged in this business were not being required by the administrative officers to secure a traders' license, and that this was the administrative interpretation put upon the section, and, therefore, by acquiescence, the legislature had approved this administrative construction; for, if they had not, it would have been a simple matter to specifically include stall owners in the markets of Baltimore City among those required to obtain this license." *Page 389
In the Nebraska case of Kennedy v. Royal Highlanders,109 Neb. 24, 189 N.W. 612, the court had before it the question of whether a mutual benefit association could write endowments under the Nebraska statute. Said statute had been construed by the state officials and the society to give such power, and this construction was upheld. The court said on page 616:
"The contemporaneous construction placed upon a statute by those charged with its execution, where such construction has long prevailed and been recognized by the parties who are concerned and who are ruled by the statute, will not be disregarded, unless it is clear that such construction was erroneous. The statute is not so clear that it is free from doubt as to what the legislature intended, and we find no cogent reason for disturbing contractual obligations which have grown up based upon that construction, and which have existed and been recognized by the society for so many years."
There can be no question in this record about the facts in regard to executive construction. The state of Iowa through the state auditor licensed the John Hancock Mutual Life Insurance Company in 1914, and the state has collected premium taxes from it for twenty years. During that period of time the John Hancock Mutual Life Insurance Company has been doing business in this state, selling life insurance and loaning money upon real estate, until now we find that this one company alone has thirty-seven millions of dollars loaned upon good Iowa land, and it has, through the process of foreclosure, through the failure of the people who borrowed this money to carry out the contracts entered into, acquired real estate of the value of $1,800,000. The state knew that the appellee company was doing business in this state and that its only authority to do business was its certificate from the auditor and later from the commissioner of insurance. Yet, never during these twenty years did any one of the various secretaries of state ask or require that a permit be secured from the secretary of state, nor did any officer of this state ever exact any penalty for failure to obtain such permit. Never has this question been raised by any public official or by any citizen of this state until the Delaware General Financial Corporation, a foreign corporation, raised it. And then it was only raised when this foreign corporation had defaulted in the requirements of a contract it had entered into with the appellee company. Covering some twenty-five or thirty pages in the brief and argument *Page 390
submitted by the appellant is an attack upon the manner and method in which the insurance companies in general and the appellee company in particular do business. They state today that excessive salaries have been paid to various officials of said insurance companies. No doubt there have been things done by the various insurance companies which should not have been done. No doubt, in the light of the present existing conditions, the salaries paid are excessive, but there is no showing in this record of any fraud on the part of the appellee company in this case. The money was loaned. The mortgage was taken as security. There was default in the terms of the mortgage. The Delaware General Financial Corporation set up this defense. They say that the construction placed upon these statutes by the duly elected officials of this state is wrong. And thus it remains for a corporation from the state of Delaware to come out to Iowa to inform the officials of this state that for twenty years they have failed to do their duty.
In view of the cases cited, in view of the construction placed upon these statutes by the executive officers of this state for a period of some twenty years, we find ourselves unable to agree with the theory of the appellant corporation. The insurance company in this case having complied with the requirements of the statutes covering the securing of a permit from the insurance commissioner, having paid to the insurance commissioner the fees therein demanded, to wit: 2 1/2 per cent of the premiums collected by said insurance company, having designated a process agent, and having been issued a permit to do business in the state of Iowa by the insurance commissioner, had a right to do business, and it was not necessary that they secure a permit from the secretary of state.
Judgment and decree of the lower court must be and it is hereby affirmed.
CLAUSSEN, C.J., and STEVENS, EVANS, DONEGAN, KINDIG, ANDERSON, KINTZINGER, and ALBERT, JJ., concur. *Page 391 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433842/ | This was a suit on a promissory note in amount of $5,000, dated April 23, 1923. As to the liability on the note, the defendant W.C. Jones made no defense, but defaulted, and the trial of the case arose over a motion made to dissolve the attachment. Iowa Miller Jones, wife of W.C. Jones, intervened, claiming a homestead right in the attached property. A jury was waived, and, on submission of the matter to the court at the trial, the court overruled the motion to dissolve the attachment and entered judgment against the property for the amount due on the original indebtedness.
This case being a law action, and having been submitted to the 1. APPEAL AND court, after waiving a jury, under our rule the ERROR: decision of the court has the force and effect review: of a verdict of a jury, and we are bound by the scope and same, unless the record is wholly wanting in extent: evidence to support the finding of the court. We findings by turn, therefore, to the record, to determine trial court. this question.
At and prior to 1916, W.C. Jones and his family, consisting of a wife and three daughters, resided on a 165-acre farm in Keokuk County. In the fall of that year, Jones, with *Page 763
his family, moved to Fairfield, Iowa, where they rented a house which they occupied for about two years. During the intermediate time, Mrs. Jones died. At the end of that time, they moved to another rented house, which they occupied for about two years, then moved to another residence, which they occupied about a year, at the expiration of which time the property was purchased on which the attachment in this case is levied. In other words, after leaving the Keokuk County farm, they lived in the town of Fairfield for about five years before this property was purchased. In the meantime, two of the daughters were married, and the defendant W.C. Jones married his present wife, the intervener, Iowa Miller Jones. In 1917, defendant contracted to sell the Keokuk County farm at a price of $32,000, possession being given March 1, 1918. Five hundred dollars was paid down on the purchase price, $11,500 was due and paid March 1, 1918, and a mortgage was taken back for the balance, $20,000, under which $10,000 was due March 1, 1920, and $10,000 March 1, 1922. The town property in controversy herein was purchased by defendant on February 18, 1921, from A.W. Blakewell, for $5,100, $1,100 being paid by check on March 3, 1921, and the balance, $4,000, was payable March 1, 1922. Some further facts may be recited as the case progresses.
No one disputes the fact that, at one time, W.C. Jones had a homestead right in the Keokuk County farm, and that the indebtedness sued on here postdates said homestead right, nor does anyone dispute the fact that, after Jones purchased the property in Fairfield, he and his wife used and occupied the same as a homestead, and that the indebtedness sued on herein antedated the purchase and occupancy of this town property.
The contention of the appellee below was, and here is, that W.C. Jones abandoned all homestead rights in the Keokuk County farm long prior to the time the town property was acquired as a homestead. The appellant's contention is that Jones had a homestead right in the Keokuk County farm, and that, when he moved therefrom to Fairfield, he had an intention to sell said Keokuk County farm and reinvest a part of the proceeds thereof in the homestead property in the city of Fairfield. It is apparent, therefore, that the questions to be *Page 764
considered are, first, as to appellee's contention of abandonment of the homestead rights in the Keokuk County farm; and second, the contention of the appellants, roughly stated, that Jones, having occupied certain property as a homestead, had a right to sell the same and reinvest the proceeds, or a part thereof, in another homestead, and that by so doing he did not subject the second homestead to liability for a debt created prior to the purchase and occupancy of the second homestead.
Appellants insist that there is no question of abandonment of homestead rights involved in this case. With this contention we cannot agree. The district court held, in effect, and the evidence in the case tends to support a finding, 2. HOMESTEAD: that, when Jones and his family moved from the abandonment: Keokuk County farm, he had no intention whatever subsequent of returning to and occupying the same, but that sale and his intention, and in fact the intention of the investment family, was to make the city of Fairfield their in permanent residence. We have held that, where homestead: actual occupancy of a homestead ceases, a effect. presumption of abandonment arises. Vittengl v.Vittengl, 156 Iowa 41; Shaffer v. Miller, 195 Iowa 891; Fardal v.Satre, 200 Iowa 1109. And under such condition, the burden is on the one claiming the homestead exemption right to show and defend a fixed purpose to return, in order to preserve such exemption right. See cases cited above, and Conway v. Nichols, 106 Iowa 358; Evans v. Evans, 202 Iowa 493.
One thus removing from property must, in order to preserve the homestead exemption right have a fixed, specific, and abiding intent on his part to return, and when such intent ceases, the abandonment becomes complete. Kimball v. Wilson, 59 Iowa 638;Maguire v. Hanson, 105 Iowa 215; Vittengl v. Vittengl, supra.
Stated in another way, the actual removal from a homestead with no intention to return to it as a home is an equivalent to a surrender of all claim of homestead to the premises, and constitutes an abandonment of such right. Cotton v. Hamil Co.,58 Iowa 594; Maguire v. Hanson, supra; Chambers v. Jackson,106 Iowa 6; Anderson v. Blakesly, 155 Iowa 430.
Under the evidence in this case, the very material fact is undisputed that these people did leave the Keokuk County farm and made their residence in the city of Fairfield. As above *Page 765
stated, the consensus of the family opinion seems to have been that there was no intention to return to the farm, to occupy it further as a homestead. This situation of the evidence, in the ordinary course, would undoubtedly make a jury question, and the verdict of the jury would be binding on us. Equally so, when a jury is waived and the case submitted to the court, the finding of the court in this respect is binding on us.
But in spite of this, appellants insist that Jones had the right to sell and dispose of one homestead and reinvest the proceeds in another homestead without making the second homestead subject to antecedent debts. With this statement no one would disagree.
Appellants further insist that, when Jones moved from the Keokuk County farm, he had a homestead right therein, and that he expected to sell the farm, and from the proceeds thereof acquire another homestead.
Where a party claims that a present homestead was procured with the proceeds of a prior homestead, the burden of proof in establishing this claim is upon him. First Nat. Bank v. Baker,57 Iowa 197; Paine v. Means, 65 Iowa 547; First Nat. Bank v.Thompson, 72 Iowa 417.
Where a party sells a homestead with intent to purchase another homestead, he will be allowed a reasonable time within which to exercise that right. Benham v. Chamberlain Co., 39 Iowa 358;Robinson v. Charleton, 104 Iowa 296.
In the instant case, five years intervened between the sale of the Keokuk County farm and the purchase of the property in Fairfield. Whether or not this should be held to be within a reasonable time, we do not stop to consider, because there is another phase of the matter that we deem controlling. The doctrine contended for by appellants is bottomed on the proposition that Jones had a homestead which he sold, and reinvested the proceeds thereof in another homestead. In other words, the proceeds with which he purchased the town property were the proceeds of a prior existing homestead. It is at this point that appellee's contention becomes important. If, as a matter of fact, Jones abandoned all homestead rights in the Keokuk County farm before he sold the same, then the money he received therefor cannot be said to be the proceeds of a homestead. It being found that the district court was warranted in *Page 766
holding that the homestead rights in the Keokuk County farm were abandoned in 1916, it necessarily follows that Jones then had no homestead or homestead rights from which he could acquire proceeds to reinvest in another homestead. Section 10154, Code of 1927. We conclude, therefore, under the record, that there was sufficient evidence to warrant the district court in the conclusion reached. — Affirmed.
STEVENS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433843/ | Plaintiff S.W. Korf is the owner of the 140-acre farm in Washington County, Iowa, across which the defendants, in the exercise of the right of eminent domain, condemned a right of way and constructed a track thereon for the relocated line of their railway. Plaintiff Charles Cannon had been a tenant of the farm during the years 1944 and *Page 504
1945, and was the tenant during the 1946-1947 farm year under a lease providing for a cash rental of $10 an acre, or $1,400 for the year.
On June 26, 1946, under statutory proceedings, commissioners appointed by the sheriff of the county to assess and appraise the damages incident to the condemnation, fixed the amount therefor to be paid to Korf, as the owner of the farm, at $7,750, and the amount to be paid to Cannon, as the tenant, at $1,200. Defendants appealed from these awards to the district court, and upon trial in said court, statutory record of the awards to owner and tenant was entered in the respective sums of $8,750 and $1,350. On said appeal the owner claimed damages in the sum of $15,400, and the tenant in the sum of $1,950. Defendants do not assign error on this appeal because of the court's order fixing the amount of fees for plaintiffs' attorney at $1,175.
The farm is about six miles from the city of Washington, the county seat, and is about three miles from the town of Ainsworth. It is in a consolidated school district. A rural mail route, electric power line, and school-bus route, are along an all-weather gravel highway just south of and abutting the farm. The farm consists of three 40-acre tracts in a north-south row: the E 1/2 of the NE 1/4 of Section 30, the SE 1/4 of the SE 1/4 of Section 19, and the north 20 acres of the SW 1/4 of the SW 1/4 of Section 20. The tract last described abuts the east side of the north forty.
The right of way, 200 feet wide, with an area of 6.69 acres, crosses the south forty diagonally southwest-northeast. The south line of the right of way at the east line of the forty is about 1,041 feet north of the south line of the forty, and at the west line of the forty it is a little more than 200 feet north of said south line. Approximately thirteen acres lie south of the right of way, and the remainder of the farm lies north of it. The buildings — house, barn, double corncrib, single corncrib, granary, hoghouse, chicken and brooder houses, well, tank and windmill — are all south of the right of way and separated by it from the rest of the farm. They are adequate and in quite good repair and are situated about midway east and west near the south line of the south forty. *Page 505
The railroad cut, extending the length of the right of way, is about 15 feet deep at its east end, and about six feet at the west end, and about 11 feet deep midway between the ends, where the lane crosses the right of way. Before the cut was made a fenced lane extended from the barn lot north about the center line of the south forty and over 200 feet into the middle forty, and from that point an unfenced farm road extended northeasterly up into the north forty to a tract of about ten acres of tillable ground along the north side thereof. This lane and road afforded ready access to all parts of the farm north of the buildings, and permitted the livestock to go at will to and from the pasture and fields and the shelter, feed and water of the barn lot. The defendants constructed a planked crossing where the lane intersects the right of way. To reduce the grade on each side of the crossing to not exceed eight per cent, the defendants excavated beyond the right of way lines on each side so that the gates in the lane on each side of the crossing are 366 feet apart. The farm buildings are about 300 feet from the track. West from the lane crossing, the track is level and straight, and on a clear day a person standing on the natural ground surface on either side of the crossing can see a train approximately a mile to the west, and to the east about 3,100 feet, where the track curves to the north. Over this track three regularly scheduled passenger trains and three freight trains will pass westward each day, and the same number and type of trains will pass eastward daily. They will be either Diesel or steam propelled. Operating rules of defendants permit Rocket-type Diesel-powered passenger trains to travel at a maximum speed, on an approximately straight track, of 90 m.p.h.; steam-powered passenger trains at 70 m.p.h.; and freight trains at 50 m.p.h. There will also be extra freight trains.
The right of way crosses the very best land in the farm. The south forty is level and thoroughly tiled. The soil is a very productive Grundy silt loam. In 1946 the corn on that forty averaged 100 bushels an acre. Three and one-half acres of corn growing on the right of way west of the lane were destroyed by the railroad construction. East of the lane on *Page 506
the right of way the tenant secured the first cutting of clover but lost the remainder, except a little hay which he was able to cut on the right of way.
The middle forty has a lighter and less productive soil than that of the south forty. It is also more readily subject to erosion. In 1946 the west half of this forty — 19.5 acres — was in oats. The yield was light — about 500 bushels. The east half of the middle forty has a clover meadow of a few acres along its south line, and just north of the east part of this meadow in 1946 there were 3.2 acres of corn, which yielded between 65 and 70 bushels per acre. Extending northward through the north three fourths of the east half of the middle forty and into the north forty to Long Creek is an eroded ditch. At its greatest width it is perhaps 60 feet, and its greatest depth is from 10 to 15 feet. Several sodded swales drain into it. On each side of the ditch is permanent bluegrass pasture of 14.4 acreage. The tenant testified that he lost the use of this pasture in 1946. Just why he did is not clear as it was completely fenced at all times.
In 1946 there were 9.2 acres of corn along the north border of the north forty. The remainder of that forty, about 31 acres, is creek bottom and rough timber pasture. At the south line is a small barn into which 15 head of cattle might crowd for shelter, but which could properly accommodate only about six head. Long Creek crosses this forty east and west about midway and on eastward across the south side of the 20 acres in the SW 1/4 of the SW 1/4 of Section 20. In the latter 20 acres north of the creek, there were 16 acres of corn in 1946. The tillable ground in these 20 acres and in the north ten acres of the north forty is of good soil — not so good as the south forty — and productive, but has some overflow water from the north and from the creek. The corn in these two fields averaged 60 bushels per acre in 1946. The four acres south of the creek, in the 20 acres in Section 20, were of very little value to the farm and of no value to the tenant in 1946. It is wet, brushy, creek bottom and is fenced out of the farm and into the land on the Montgomery farm.
The farm as a whole is just an average farm. Approximately one third of it is permanent pasture of mediocre grade. The *Page 507
farm had been operated as a combination stock and grain farm. There was evidence that it would raise sufficient feed for about 30 head of cattle, old and young and perhaps 90 hogs. In 1946 the tenant had five milk cows, and at the time of the trial in January 1947 he had five brood sows.
The petition of the plaintiff contained two counts — one for the owner and the other for the tenant. Damages were claimed for the loss of the ground appropriated; the damage to the land remaining; the loss of the crops thereon; for the division of the farm and the consequent damage and inconvenience in its operation because thereof; the dangers incident to the use of the lane crossing by the occupants of the farm in the taking of the farm machinery, crops and livestock over it; the interference with the movements of livestock between the pasture and fields and the barn and feed lots and water tank; the additional fencing to mow; the smoke, soot, dust, noise, and fire hazards incident to fast moving trains; the reduction in the sale and rental value of the farm; the increased expense and labor in operating the farm.
The defendants conceded that the farm would be damaged, but alleged the extent thereof would not exceed $5,000 to both the owner and the tenant, and that any damage awarded should be apportioned between them. In their answer they specifically denied the various elements of damage alleged in the petition.
The defendants cut the line fences of the condemned land about July 12, 1946. Grading work commenced on August 21, 1946. The first work consisted in the removal of about 18 inches of surface soil. The machines worked from east to west. About three weeks later an elevating grader was put in, and removed three feet of dirt the length of the right of way. This work was done in the week ending September 21, 1946. Defendants started the construction of the right-of-way fences in August and completed them early in December 1946. The track was laid but not fully ballasted at the time of the trial. Much of the dirt had not been leveled at that time.
Defendants assign twelve errors. A number of these complain of improper limitation of the cross-examination of some *Page 508
of plaintiffs' witnesses on values. We will first give the facts of each incident, and then comment on all of them.
[1] I. (1) Plaintiffs' witness Orr testified that he lived at the county seat, and had been engaged in the real estate business about twenty-five years, knew the Korf farm, and was acquainted with the fair and reasonable market value of real estate in Washington county, and in the vicinity of the Korf farm. On direct examination he testified, over objection, to the value of the Korf farm before and after the taking of the right of way. On cross-examination he testified that about three years before he bought, at public auction, a 200-acre farm, south and west of Washington, which was crossed by a Milwaukee Railroad Company track; that it had about 100 acres of pasture and 100 acres of tillable land, and that the land west of Washington was not so desirable as the land east of it. Cross-examination as to how much per acre he paid for the farm was met by the objection that it was immaterial and irrelevant. The objection was sustained. He testified that he had very good results in operating the farm, and thought it was worth considerably more than what he paid for it. Plaintiff's objection to the question as to how much more it was worth — that it was immaterial — was sustained. Neither question called for information that would be of much help to the jury. Its admission was within the discretion of the court, and we find no error.
(2) Orr testified on cross-examination that in arriving at his valuation of the Korf farm he had considered the purchase by Mrs. Latchem of an eighty. On being told by his interrogator that the house did not go with the land, the witness replied that $325 an acre would be a pretty good price for an eighty without a house on it. The cross-question was then asked:
"So, as a matter of fact, in the case of the Latchem property, the fact that the CBQ Railroad ran through that property the long way from end to end didn't apparently hurt the market value of that property substantially, did it?"
Objection that the question was argumentative was sustained. *Page 509
(3) The witness then testified on cross-examination that: some pieces of real estate are acceptable to certain buyers and unacceptable to others, at the same price; the judgments of individuals vary considerably upon the desirability of land, and that it had been his experience that a man buying a farm to reside on and operate it is more likely to pay attention to matters of inconvenience than the buyer who lives in town and buys for investment. Defendant then asked:
"So that a prospective purchaser who is not going to live on the land, himself, and who knows that the land has a certain degree of productivity is inclined to overlook matters of purely convenience in the operation of the farm, is that not true?"
The court sustained an objection that the question called for an opinion and conclusion.
With respect to (2) and (3) there was clearly no prejudicial error. There was no abuse of discretion by the court in restricting the cross-examination. The subject matter of each question had previously been fairly answered by the witness. Each was speculative.
(4) Orr testified on cross-examination that he knew of a 240-acre farm, less a Milwaukee right of way, north and east of Washington, which Dr. Lloyd recently purchased, and that he thought it probably brought about what it was worth, although it would have brought a higher price if there had been no railroad across it. He was then asked: "All right. How much would the Lloyd farm have sold for, in your judgment, had there been no railroad through it at the time it did sell less than one year ago?" An objection that the question called for a speculative and immaterial answer was sustained. The witness testified that the right of way went through the best part of the farm, and that he did not know its ratio of tillable and pasture land as compared to the Korf farm. The record disclosed nothing more about the character of the Lloyd land, its improvements, location, or the price at which it sold. Any answer would have been speculative and a guess. There was no prejudice in refusing an answer. *Page 510
(5) Plaintiffs' witness Breitenbaugh had almost the same qualifications as Orr. He had sold 2,000 acres or more of land during the year preceding the trial. He knew the Korf farm and land values generally in Washington county. He testified to the value of the Korf farm before and after the condemnation. On cross-examination he testified that Dougherty, who owned the farm before Mrs. Dougherty gave it to Korf, had listed the farm for sale with him in 1941 or 1942. Defendant asked him for the listing price. Objection was made that the information called for was immaterial, irrelevant, and too remote. The court sustained it with the remark that "there's been a big change in five years." There was no error in the ruling. What Dougherty offered to sell the land for was immaterial. It was not an admission of the witness. It was not binding on plaintiff and was not proper proof of value when made or of value four years later. There is oftentimes little relation between the asking price and the market value. The rejection of the answer was no abuse of discretion by the court.
(6) This witness, on further cross-examination, testified that the inconveniences and hazards and difficulties incident to the operation of a farm with a railroad right of way separating the buildings from the remainder of the farm, as on the Korf farm, would be just as great with a farm capable of producing 40 bushels per acre as with one producing 80 or 90 bushels to the acre, assuming other factors are equal. Defendants immediately asked: "If you have a farm that is worth only $50 an acre and the railroad right of way is located adjacent to those buildings and cuts the farm off from the buildings, the damage will be just as much as in the case of a farm worth $100 or $150 an acre?" The objection was that the question was hypothetical and not based on any facts in the case and was purely speculative and immaterial. The question was quite fairly answered by the testimony the witness had just given. The information was not very material. It would have aided little in the proper determination of the case. There was little factual basis for it. Its rejection was well within the discretion of the court.
(7) This witness had previously been an appraiser for *Page 511
defendants in a right-of-way condemnation case. He was asked by defendants if at that time in valuing an eighty cut by a Rock Island right of way he had not said that the land was worth $55 an acre before the taking of the right of way and $40 afterwards. The witness answered that he did not recall what valuations were fixed on that occasion. There was no error, in view of the previous answer of the witness, in sustaining an objection to defendants' question: "Would you say that my statement was incorrect?"
(8) Wenger, witness for plaintiffs, a young farm tenant living about seven miles east of Washington, who was familiar with the Korf farm, and had picked the corn on the place for Cannon in 1946, testified to the value of the farm and of the leasehold, before and after the taking of the right of way. He was cross-examined to the extent of nine pages of the printed record. The Greiner farm of 240 acres is the second farm east of the Korf farm on the same side of the road. It was conveyed to a Mr. Roberts by deed dated February 27, 1946. The witness was cross-examined at length about the farm, although he testified that he knew nothing about the sale to Roberts; that he did not know the farm had changed hands; that he knew where the farm was but had never been over it; he had seen part of the pasture because he had once looked for a calf over in the roughest part; that was the only time he had been on the farm, although he knew where the buildings were; he could not say it was similar to the Korf farm and he did not know how the forties in the farm lay. Defendant then asked: "And one barn there is very good?" An objection of immateriality and irrelevance was sustained. Defendant then asked: "But you do know that this Greiner farm lies just exactly as this Korf farm here?" Objection was sustained with the remark to "not waste too much time." The witness had been cross-examined much about this farm, of which he knew little. He had just testified: "I don't know whether the Greiner farm consists of three forties running north and south and another three forties right beside them, also running north and south."
There was no error in the rulings of the court with respect to the cross-examination of Wenger. *Page 512
Defendants have argued earnestly that the restriction of cross-examinations complained of was so prejudicial to them as to require a reversal. They have cited a number of decisions of this court wherein the importance of thorough cross-examination and the right of a litigant to a full exercise thereof have been vigorously stressed. Among these citations are Jones v. Lozier,195 Iowa 365, 191 N.W. 103; Schulte v. Ideal Food Products Co.,203 Iowa 676, 213 N.W. 431; Eno v. Adair County Mut. Ins. Assn.,229 Iowa 249, 294 N.W. 323; Glassman v. Chicago, R.I. P. Ry.,166 Iowa 254, 147 N.W. 757, and others. They have urged that much latitude is allowed in the cross-examination of expert witnesses. These decisions have our full support. Our decision in this case is no departure from them. But it is just as well settled that the conduct of a trial and the scope of cross-examination are necessarily largely within the discretion of the trial court and unless that discretion has been abused to the clear prejudice of a litigant this court does not ordinarily interfere. This is particularly true where the cross-examination was not narrowly circumscribed prior to the adverse ruling. In re Estate of Austin, 194 Iowa 1217, 1221, 1222, 191 N.W. 73; Hayes v. Chicago, R.I. P. Ry. Co., 239 Iowa 149, 30 N.W.2d 743; Connelly v. Nolte, 237 Iowa 114, 129, 21 N.W.2d 311; Youtzy v. City of Cedar Rapids, 150 Iowa 53, 66, 129 N.W. 351. The cross-questions to which objections were sustained were largely directed to collateral matters of little materiality.
II. In question (6), supra, to Breitenbaugh, objection was made that it was hypothetical. Defendants insist that a witness testifying as an expert or one experienced in the subject matter may, in the discretion of the court, be cross-examined on facts and theories having no foundation in the evidence, but wholly assumed, and quote from the often cited case of Bever v. Spangler, 93 Iowa 576, 608, 61 N.W. 1072, in support of their contention. This court has many times so held. For reasons heretofore stated we find no abuse of the court's discretion and no prejudicial error.
[2] III. Defendants' witness Fedderson, an experienced farm operator, had testified quite fully on direct examination *Page 513
as to the character of the Korf farm, its types of soil, and how it had been farmed. His cross-examination was confined to matters of the direct examination. On redirect examination he was asked if he had any suggestions from the standpoint of efficient operation of the farm, in view of the fact that it now had a railroad across it. Further, how would the farm be affected if the right of way had been placed farther north, and what was the comparative convenience of operation of the farm as it now is, as compared to one where the railroad was a half a mile away? The court sustained objections that the questions called for speculation and guessing and was not a proper measure of damages. Defendants then made an offer of proof, the sum of which was that the farm could be handled in the future as it had been in the past, and that an additional well north of the railroad track might improve the situation. Objection was made to the offer as calling for an opinion and conclusion as to immaterial and irrelevant matters, and to speculative improvements, and was of no aid in arriving at the true measure of damage.
The court said:
"Well, it seems to me that the construction of a well would just be common knowledge, that's all. If they didn't have water over there, they would have to dig a well. I don't think it needs any expert on that. * * * I am going to sustain the objection."
Whether another well would be helpful was hardly a matter of expert opinion. There was no error in the ruling of the court.
[3] IV. On January 18, 1947, Korf and Cannon executed a lease of the farm for the year ending in 1948 for a cash rental of $700, with a proviso that if Korf entered into a bona fide contract for the sale of the farm by February 1, 1948, the lease would be of no effect. The court sustained objections to an inquiry for the name of Korf's prospective purchaser. Later the name of the purchaser was made of record. The error assigned is without merit.
[4] V. Defendants assigned error because of the introduction by plaintiff, over objection, of certain photographs taken *Page 514
of the railroad cut during its construction. These exhibits simply showed the conditions as they existed. They were admissible as bearing upon the issue of the inconvenience and damage suffered by the tenant from the construction work in his operation of the farm. The jury viewed the cut when it was practically completed and knew its appearance and condition. We are unable to see how the defendants suffered any prejudice by the admission of the photographs.
VI. Defendants assigned error in the refusal to strike the testimony of Cannon, Wenger and Wolfe as to the net leasehold values before and after condemnation.
On direct examination Cannon testified that: before the condemnation his stock had free access from the pasture and any fields in which they might be feeding to the barn lot; in 1944 and 1945 he always kept at least six milk cows and 30 or more head of cattle in all, and around 90 hogs; in 1945 he sold dairy products to the amount of $800; in 1946 he changed the farm operations considerably because of the right of way; he cut down on the number of cattle, and milked but five cows, as it was not practical to milk the cows out north of the right of way and bring the milk in, and it had been impossible from August on to bring the cows to the buildings for milking; at the time of the trial the crossing was not yet fixed up so that you could drive across it much; the construction made it difficult to harvest the crops north of the right of way as they had to be hauled along the cut to the west line of the farm to the road and east along the road to the building, making an extra drive of a half mile on each trip. When he loaded stock he corralled them, with the help of neighbors, in the little barn in the pasture where there were no loading facilities. In 1946 he sold but $100 worth of dairy products. His net income in 1944 was about $3,700 and in 1945 it was about $3,800, and his income tax report showed his net income for 1946 was $1,775. There were no objections to the testimony stated above. He testified that in his opinion the value of his leasehold over and above the rental was $4,000 before the condemnation and $2,000 afterward. On cross-examination he testified that he would have realized a *Page 515
net income of $4,000 with his labor and equipment if he had had the full use of the farm without the loss of crops and without the inconvenience of the right-of-way burden and could have operated the farm as he had planned. Defendants objected to and moved to strike this valuation testimony upon the grounds that it was immaterial and irrelevant and was an opinion not as to the value of the use of the land or the leasehold but it included the elements of the tenant's labor, implements, material etc., and the production of the farm. The objection and motion were overruled.
The witness Wenger estimated the net value of the leasehold before and after the condemnation was $3,750 and $1,800, respectively. He testified that before the condemnation the farm would accommodate and feed 100 to 150 hogs, 8 milk cows and 12 stock cows with calves, and poultry, but that the amount of livestock that would be carried would be reduced by the right of way. The witness Wolfe lived on the farm adjoining on the west and had been on the farm many times while Cannon lived there. He testified that the 9 or 10 stanchions in the barn before the condemnation were usually filled with milk cows, and many head of cattle and hogs were on feed. He testified to the difficulty of getting machinery, crops, fertilizer and livestock over the crossing, and that it would break up the system of livestock feeding that had been carried on in the past, and make it quite impossible to utilize the building shelters. He estimated the net leasehold value at $4,900 before the condemnation and $2,400 afterward. Other burdens which he considered in arriving at the decreased valuation were the increased cost and inconvenience of operating the farm.
In this division we will also pass upon defendants' complaint that the court erred in overruling their motion for new trial on the ground that the award of $1,350 to Cannon was grossly excessive and the result of passion and prejudice against them.
[5] It is our conclusion that the elements considered by the plaintiff Cannon and the witnesses Wenger and Wolfe in arriving at their respective estimates of the value of the leasehold before and after the taking of the right of way were *Page 516
proper, and that there was no error in the court's rulings on this testimony.
[6, 7] A lease or leasehold in the sense of the term or estate created and not the instrument of grant or conveyance is property, and, as such, when it is taken in the exercise of the right of eminent domain, the lessee is entitled to just compensation, or its equivalent in value. Des Moines Wet Wash Laundry v. City of Des Moines, 197 Iowa 1082, 1085, 198 N.W. 486, 34 A.L.R. 1517; Werthman v. Mason City Fort Dodge R. Co.,128 Iowa 135, 103 N.W. 135; Renwick v. Davenport N.W.R. Co.,49 Iowa 664. A farm leasehold has no value to the lessee unless it is used as a farm or farmed. And a farm of 140 acres, in addition to the labor of the occupants, requires the use of tools, implements, horse or other power to operate them, seed, fertilizer, feed, and much other equipment. Good farm husbandry requires poultry and the usual farm livestock to make the most advantageous use of the land and the necessary equipment. When the tenant with labor and the equipment has prepared the ground, seeded, planted and cultivated it, and in July a strip of it is condemned and taken for a railroad right of way across it, and his labor, seed, fertilizer, growing crops, the use of his machinery, its expended operating power, and the ground rent, are lost, he is, of course, seriously damaged. And that damage is not to be based or computed wholly upon the rent or rental which he agreed to pay in his lease, as some testimony for defendants indicates. No tenant would rent a farm if the return he anticipated receiving for the year was just enough to pay the rent he had promised. He expects and hopes that he will have a fair return for his labor and capital over and above the obligations of his lease. That excess is the rental value or the value of the use of the leasehold to the tenant. It is said in Orgel on "Valuation Under Eminent Domain" (1936), section 122:
"The relative paucity of cases denying any compensation to the tenant under a lease of measurable duration suggests that courts and juries are generally ready to assume an excess of rental value over rent reserved. * * * *Page 517
"It is usually assumed that this market value is equal to the excess of the rental value over the rent reserved." Section 124 (page 418).
Where the whole property is taken and the leasehold is destroyed the measure of damage has been variously stated as the rental value over the rent reserved (In re Matter of City of New York (Seventh Avenue), 196 A.D. 451, 188 N.Y. Supp. 197); the value of the leasehold over the rents payable (Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074, 1076); United States v. Petty Motor Co., 327 U.S. 372, 66 S. Ct. 596, 90 L. Ed. 729, 734; 29 C.J.S., Eminent Domain, section 143 (b). In Des Moines Wet Wash Laundry v. City of Des Moines supra, 197 Iowa 1082, 1085, 198 N.W. 486, 488, 34 A.L.R. 1517, where the entire property was taken, the recovery was stated to be "the value of the unexpired term of the lease, less the rental reserved."
The same rule applies in the condemnation of a right of way over leased premises and only a part of the leasehold is taken. In Werthman v. Mason City Fort Dodge R. Co., supra, 128 Iowa 135, 136, 137, 103 N.W. 135, the court instructed the jury that:
"In fixing the amount of damages you will take into consideration the net value of the annual use during the term of this lease; that is, the net value of the annual use of the premises before the defendant appropriated the right of way and took the land and what it was worth afterwards."
The able attorneys on each side took no exception to the instruction. See, also, Renwick v. Davenport N.W.R. Co., supra,49 Iowa 664, 674.
In the condemnation of real estate, that is the fee, this court, in Ranck v. City of Cedar Rapids, 134 Iowa 563, 565, 567, 568, 569, 111 N.W. 1027, 1028, 1029, said:
"Generally speaking, the true rule seems to be to permit the proof of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale and all other facts which would naturally influence a person of *Page 518
ordinary prudence desiring to purchase. * * * the value of growing crops lost by the condemnation, Lance v. Railroad Co., 57 Iowa, 636 [and other cases]; * * * the kind and value of crops produced in other years * * *. It is true that market value and intrinsic value are not necessary equivalents, but proof of the latter is often competent evidence for consideration in determining the former. * * * That is, these items are not to be considered as in themselves affording a basis or measure of recovery, but as explaining and supporting the estimates made of the value of the property as it stands."
The same principle applies in the condemnation of leases. In Des Moines Wet Wash Laundry v. City of Des Moines, supra,197 Iowa 1082, 1089, 198 N.W. 486, 489, 34 A.L.R. 1517, the court said:
"Ordinarily, market value is the criterion, but in certain cases it is not the true standard by which to determine the value. * * * This is particularly true as applied to a leasehold. Value must be determined by a consideration of the uses to which the property is adapted. All circumstances naturally affecting this value are open to consideration."
Quoting from Bales v. Wichita M.V.R. Co., 92 Kan. 771, 141 P. 1009, L.R.A. 1916C, 1090, the court in the Laundry case said:
"`Although the interest taken in this case is only a leasehold * * * the same rule applies, viz., the market value of the thing taken. * * * In awarding compensation to a lessee, * * * the market value of the unexpired term should be allowed, taking into consideration as elements of value the situation, condition, and use made, or that may be made, of the premises, and the nature and prosperity of the business carried on there, if it affects the value of the lease.'"
In 1 Nichols "The Law of Eminent Domain", Second Ed., section 233, it is stated:
"Ordinarily, of course, the value of the term is figured upon the basis of the most advantageous use of the estate *Page 519
* * *. Leases commonly are not assignable without the consent of the landlord, and are so infrequently sold, and are so infrequently sold, and vary so much in length of term, rent reserved and other particulars as well as in the character of the property, that it is almost impossible to apply the customary tests of market value to a leasehold interest. It would seem that a lease might well be held to fall within the class of property not commonly bought and sold, and that consequently the intrinsic value, or the value to the owner, might be taken as the best and only available test of market value."
See, also, section 222 in the same volume citing decisions. See McMillin Printing Co. v. Pittsburg, C. W.R. Co., 216 Pa. 504, 65 A. 1091.
[8] Many other decisions support the principles above noted that a short-term farm lease such as was held by the plaintiff Cannon has no market value that can be proved in the usual methods of proving market value, and that therefore it is proper and necessary to prove every factor and element showing its actual and intrinsic value — the productivity of the soil, the yield and value of the crops, the net income. Such evidence is material and competent to establish such market value as the leasehold has.
Concerning proof of the value of such property, the court, in San Diego Land Town Co. v. Neale, 78 Cal. 63, 68, 20 P. 372, 374, 3 L.R.A. 83, said:
"Some property is not in actual demand and has no current rate of price. In such case it has been sometimes said that the property has no market value, in the strict sense of the term. * * * And in one sense this is true. But it is certain that a corporation could not for that reason appropriate it for nothing. From the necessity of the case the value must be arrived at from the opinions of well-informed persons, based upon the purposes for which the property is suitable. This is not taking the `value in use' to the owner as contradistinguished from the market value. What is done is merely to take into consideration the purposes for which the property is suitable, as a means of ascertaining what reasonable purchasers would in *Page 520
all probability be willing to give for it, which, in a general sense, may be said to be the market value."
In Hayes v. City of Atlanta, 1 Ga. App. 25, 30, 57 S.E. 1087, 1089, the court referring to a tenancy at will which had no market value said:
"Consequently the damages to it must be determined in the same manner as the damages to other things which have no market value must be ascertained, that is to say, by an impartial jury, in the light of all the proved facts and circumstances."
[9] Defendants argue that estimated profits must not be considered. We have no quarrel with this rule. Here the estimated profits were not in the distant future but were almost in the present and based upon the existing conditions and farm returns of the past two years. As said in Pause v. City of Atlanta,98 Ga. 92, 105, 26 S.E. 489, 493, 58 Am. St. Rep. 290:
"[While profits lost] are not recoverable by way of damages, [yet] evidence that the business was profitable is admissible to illustrate and throw light upon the value of the premises for rent."
See, also, In re City of Seattle, 52 Wash. 226, 100 P. 330, 333.
In Alabama Power Co. v. Herzfeld, 216 Ala. 671, 674,114 So. 49, 52, the court said:
"Income is an element of market value. `The value of property, generally speaking, is determined by its productiveness — the profits which its use brings to the owner.' Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463. `The net revenue arising from the use of land may be shown on an issue as to value, although it does not furnish a conclusive test.' 22 Corpus Juris 181."
[10] On the assigned error that the award to the tenant is excessive and indicative of passion and prejudice, we find nothing in the record to sustain it. Cannon had a good lease. He was paying $10 an acre and he testified that a fair cash rental was $12 an acre. No one contradicted it. He was entitled *Page 521
to the benefit of his bargain. He lost 350 bushels of corn from the land taken. It was worth $1.20 a bushel at the time of the trial. He lost clover seed and hay from ground taken. He sold $800 worth of dairy products in 1945 and but $100 worth in 1946. His net returns in 1944 and 1945 from the farm were respectively $3,700 and $3,800. In 1946 they were $1,775. In addition to the direct loss from the taking of approximately seven acres of the farm, he suffered consequential injuries to the remainder of his leasehold in the additional expense and inconveniences of operating the farm. These various items and elements are not to be considered as specific amounts of damage to be added together in computing the loss, but are simply to be considered in arriving at the fair and reasonable value of the leasehold over and above the rent reserved in the lease both before and after the appropriation of the right of way. The award of $1,350 to Cannon is amply sustained by and is well within the evidence. The four witnesses of defendants place the value of the use of the farm before the taking at $1,400 — merely the rent reserved in the lease — although he had spent four months or more in putting in and caring for his crops. They estimate the depreciation in the leasehold by the condemnation at respectively $800, $700, $650 and $600. In support of his estimates one of these witnesses testified:
"I would think that Cannon's leasehold interest * * * was worth $1400. I took his own figures as to the rent he was paying. * * * Of course, he supposed he was going to make more money than $1400 by farming the place, but that still did not change the fact that the lease was worth $1400. If he had only been paying $500, I would say that that was what it was worth."
According to his reasoning the better the lease the tenant had and the less rent he paid, the less the leasehold would be worth. Bearing upon this matter it is said in Kafka v. Davidson,135 Minn. 389, 395, 160 N.W. 1021, 1023:
"If plaintiff [the tenant] had made a bad bargain, and the fair rental value of the premises was less than the rent he had agreed to pay, he * * * sustained no damage. But if he *Page 522
had made a good bargain and the fair rental value of the premises was more than the rent * * *, he did sustain damage."
Neither assignment of error considered in this division is good. See citations in Division VII.
VII. Defendants assign error upon the overruling of their motion for new trial on the ground that the verdict of $8,750 to Korf was excessive and indicates passion and prejudice was the cause. Plaintiff used five qualified witnesses — farmers and realtors of the vicinity. Defendants used six witnesses equally qualified, but not quite so familiar with the farm. We tabulate their testimony. Plaintiffs' is set out first:
Witness Value Before Taking Value After Taking Damages Wenger ............. $28,000 $11,700 $16,300 Orr ................ $28,000 13,300 14,700 Wolfe .............. 28,000 13,300 14,700 Breitenbaugh ....... 28,000 11,700-13,300 14,700-16,300 Patterson .......... 25,200-28,000 11,700-13,300 13,500-14,700
Defendant's Witnesses
Schmoeller ......... $17,500 $12,000 $5,500 Fedderson .......... 17,500 11,730 5,770 Knock .............. 18,700 13,575 5,175 Wiley .............. 21,000 15,000 6,000 Trotman ............ 20,250 14,750 5,500 Duensing ........... 20,670 14,655 6,115
[11, 12] The average damage according to the plaintiffs' witnesses was $15,340 taking their highest estimates. The average for defendants' witnesses was $5,800. The jury awarded $8,750 or $1,820 less than a split of the difference. Apparently they followed the court's instruction that in weighing the testimony they be guided by their own good judgment. Defendants conceded substantial damages. It would be only human nature that the concession was conservative. It needs no argument to convince any fair-minded person that the damage to the farm is a serious one. In the eyes of the law it is there for all time for practical purposes. The damage to the tenant's leasehold for 1946 is estimated by defendants to be from $600 to $800. Necessarily the owner's rental will annually be decreased in *Page 523
proportion. The capitalized present value of the aggregate annual damage to the farm through the years to come would be a substantial sum. The sheriff's jury awarded Korf $7,750 and the court jury added $1,000. We find no reason for, nor evidence of, the amount of the award being the result of passion or prejudice. The language of the court in Longstreet v. Town of Sharon,200 Iowa 723, 727, 205 N.W. 343, 344, applies here:
"It is further urged that the verdicts are excessive. A condemnation case is one in which the amount allowed is peculiarly within the province of the jury; and unless the same be shown to be so extravagant as to be wholly unfair and unreasonable, this court has repeatedly refused to interfere with the verdict of the jury."
See Cory v. State, 214 Iowa 222, 228, 229, 242 N.W. 100; Cutler v. State, 224 Iowa 686, 690, 691, 278 N.W. 327; Millard v. Northwestern Mfg. Co., 200 Iowa 1063, 1066, 205 N.W. 979; Kemmerer v. Iowa State Highway Comm., 214 Iowa 136, 142, 143, 241 N.W. 693; Stoner v. Iowa State Highway Comm., 227 Iowa 115, 120, 287 N.W. 269; Hubbell v. City of Des Moines, 166 Iowa 581, 595, 147 N.W. 908, Ann. Cas. 1916E, 592; Kosters v. Sioux County,195 Iowa 214, 217, 191 N.W. 993; Bracken v. City of Albia, 194 Iowa 596, 600, 189 N.W. 972; Evans v. Iowa Southern Util. Co.,205 Iowa 283, 290, 218 N.W. 66.
[13] VIII. Korf asked that the railroad crossing be placed where the lane intersected the right of way. This was the most reasonable place to locate the crossing for the best operation of the farm. The defendants acceded. Because of the depth of the cut the approaches to the track crossing extended beyond the right of way on each side. Defendants' obligation to provide an adequate crossing is required by another statute having nothing to do with condemnation proceedings. Defendants assign error in the court's refusal to give a requested instruction about fencing these approaches. We think the court's instruction was adequate and proper, and there was no error in the refusal.
[14] IX. Defendants have assigned two separate errors which involve the same matter and we will dispose of them in *Page 524
this division. It is the contention of the defendants that damages to the farm should have been determined as though Korf had been operating it from March 1, 1946 to March 1, 1947, and one award should have been made to him for all damages to the fee caused by the condemnation, and that from that award as a unit any damages to the leasehold should have been deducted from this award in gross and apportioned to Cannon. They complain of instructions Nos. 7, 10 and 14 in which the jury was told to make separate awards to the owner and the tenant. It is their theory, or it is the effect of that theory, that the compensation for which they are liable should be no greater when a farm is occupied by a tenant at the time of condemnation than it would be if it were occupied and operated by the owner at that time. In other words, that the damage to Korf as owner and the damage to Cannon as lessee should be no greater than the damage to which Korf would be entitled were he operating the farm. Defendants requested this instruction:
"You are instructed that in making your award you will first determine the damage to the farm as a unit including any loss or damage to growing crops upon the 6.69 acres appropriated by the railroad. After you have determined the damage to the whole farm as herein instructed you will apportion to Charles Cannon the amount to which you find he is entitled under these instructions and deduct such sum from the whole damage to the farm."
This instruction was refused. We do not believe that defendants were prejudiced thereby, or that the total compensation as awarded to Korf and Cannon was any greater than the unit or gross award which the jury would have first allowed to Korf under the requested instruction. This is true because of the way the case was tried.
The proper measure of damages to a tract of land where the ownership is undivided and the fee is in the owner, and a right of way is condemned across it, is the difference in the market value of the land just before the taking by condemnation and the market value immediately after said taking. In such case, since the owner has the undivided fee, he is entitled to the entire award of damages or compensation thus ascertained. But if the *Page 525
property is subject to a lease, the lessee is also entitled to compensation for the damages to his leasehold. That was the situation in this case. The record showed that Cannon had a lease for one year terminating on March 1, 1947, at a cash rental of $10 an acre. Each valuation witness of the plaintiffs was asked this question:
"Now, in your opinion, what was the fair and reasonable market value of this Korf 140 acres of land, burdened with a lease expiring on the first day of March, 1947, immediately before the taking of the right of way through it, which occurred on or about June 26, 1946?"
This question was objected to as not bearing on the proper measure of damage, it being immaterial whether the property was leased or otherwise. A question worded in the same way was then asked the witness as to the market value after the right of way had been taken. These questions were asked to ascertain the award to which Korf was entitled, and it must be assumed that the witnesses in their answers to these two questions reduced the answers by the amount of compensation which in their opinion Cannon was entitled to for damage to his leasehold. Some of these witnesses had given testimony to the damage to the leasehold. The court in instructing the jury had told them, in instruction No. 11, that in fixing the value of the farm before and after the condemnation the amount so fixed must be based upon the evidence, "taking into consideration that the said land was under lease to one Cannon from March 1, 1946 to March 1, 1947." In instruction No. 13 speaking of the answers to the two questions above noted, the court said:
"The difference between the two values will be the plaintiff's [Korf's] measure of damages taking into consideration the fact that the land is encumbered with a lease from March 1, 1946 to March 1, 1947."
We must assume that the jury gave effect to these instructions and that its award of $8,750 to Korf and $1,350 to Cannon was approximately "the damage to the farm as a unit" as stated in defendants' requested instruction set out herein. The defendants while objecting to the questions asked by plaintiffs of their valuation witnesses asked the same questions of their *Page 526
valuation witnesses in seeking to ascertain the damages owing Korf. Each witness was asked his opinion of the market value of the 140 acres before and after the taking, "burdened with a lease to expire March 1, 1947." The court submitted the case on the theory on which each side submitted its case with reference to the award allowed to Korf. Each side adopted the same theory in the introduction of its testimony as to the before-and-after valuation of the farm in the ascertainment of the award to Korf. The court gave effect to this theory in its instructions. The defendants, having adopted this theory, are not in a position to complain. There is no reason to believe that the award to each plaintiff would have been materially different had the above-noted requested instruction of defendants been given.
Furthermore, in Wilson v. Fleming (these same defendants),239 Iowa 718, 31 N.W.2d 393 (March 9, 1948), a case very similar to this one, this court refused to accept the theory of law contended for by defendants, as stated in the fore part of this division, and held that the landowner and his lessee were entitled to have the damage to the fee and the leasehold assessed separately.
It is therefore not necessary to pass upon defendants' said theory of the law nor to discuss the authorities cited by them, to wit, 18 Am. Jur., Eminent Domain, section 239; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 69 A.L.R. 1256; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600; Bartlow v. Chicago, B. Q.R. Co., 243 Ill. 332, 90 N.E. 721; Edmands v. City of Boston, 108 Mass. 535; Providence, F.R. N.S. Co. v. Fall River, 187 Mass. 45, 72 N.E. 338; State ex rel. Kafka v. District Court, 128 Minn. 432, 151 N.W. 144; Pennsylvania R. Co. v. National Docks Co., 57 N.J. Law 86, 30 A. 183; Wiggin v. New York, 9 (Paige) N.Y. 16; City of Portland v. Postill, 123 Or. 579,263 P. 896; Spaulding v. Milwaukee, L.S. W. Ry. Co.,57 Wis. 304, 14 N.W. 368, 15 N.W. 482; 2 Lewis on Eminent Domain, Third Ed., 1253.
The judgment is — Affirmed.
MULRONEY, C.J., and OLIVER, HALE, GARFIELD, MANTZ, SMITH, and HAYS, JJ., concur. *Page 527 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433845/ | In this cause an instrument, purporting to be the last will and testament of Frances Rule Pike, was offered for probate. Contestant claimed that the instrument had not been properly signed, executed, published, and witnessed as a will. The district court found that the instrument was never executed or witnessed as required by law and refused its admission to probate. Proponent has appealed.
Section 11852, 1931 Code, is determinative of the issue involved and is in the following words:
"11852. Formal execution. All other wills, to be valid, must be in writing, signed by the testator, or by some person in his presence and by his express direction writing his name thereto, and witnessed by two competent persons."
Although the instrument bears signatures of two purported witnesses, contestant claims the instrument was not "witnessed by" one of these witnesses, Miss Helen M. Billings, in the manner contemplated by the foregoing statute. To sustain such claim contestant relies on the following facts in the record: Decedent had asked Miss Billings whether she would be a witness *Page 1103
to her will; that decedent did not have with her nor exhibit any instrument purporting to be a will at the time of this conversation; about two weeks thereafter a Miss Rule brought to the schoolhouse where she and Miss Billings were teachers the instrument involved in this controversy; Miss Rule asked Miss Billings whether she would sign it; Miss Billings having never previously seen the instrument signed her name as a witness where it now appears on the instrument and handed it back to Miss Rule; this all occurred in the office of Miss Rule at the schoolhouse; decedent was not present during any part of this transaction; about a month later decedent thanked Miss Billings for having signed the instrument; decedent at no time exhibited the instrument to Miss Billings, nor had it with her at the time of either of the conversations between the decedent and Miss Billings; prior to decedent's death Miss Billings had seen the instrument but once, that is, at the time she signed her name at the school house.
Whether Miss Billings witnessed this will as required by the statute above quoted depends, of course, upon the meaning of the provision therein that all wills (with certain exceptions not material to these issues) must be witnessed by two competent persons. One essential element of such witnessing is the subscribing by the witnesses of their names. Such subscribed names become a part of the writing. The subscribing witnesses become witnesses from the time they thus sign. They testify from that moment, though they should be deceased before the instrument is offered for probate. If they have witnessed the instrument in the legal sense of the word "witnessing", then their such testifying is that when they subscribed their names they perceived and knew that those things existed or were done which the statute requires must exist or be done to make the written instrument, in law, the will of the decedent. In re Boyeus' Will,23 Iowa 354; Nunn v. Ehlert, 218 Mass. 471, 106 N.E. 163, L.R.A. 1915B, 87. While formally, by subscribing, Miss Billings purports to attest that she had perceived and knew the existence and doing of all such statutory requirements, yet the uncontroverted fact is that she at no time perceived or knew that there had been a signing of this instrument by decedent. Such signing is a statutory essential to make the instrument the will of decedent. Miss Billings had neither seen the instrument signed, nor had testatrix shown and adopted her signature in the *Page 1104
presence of the witness, nor indeed could the witness even identify the instrument as having been seen in the possession or presence of the decedent. There seems no avoidance of the conclusion that, excepting in form, the will was not "witnessed" by Miss Billings, because she was clearly without knowledge of any signing by decedent, the attesting of such signing being an indispensable and essential part of an effective "witnessing". She could not by her signature attest a fact not within her knowledge any more than she could as a witness examined in open court.
We have not been favored with any brief on part of appellee, and deem it not necessary to consider the fact that Miss Billings admittedly did not subscribe the instrument in the presence of the decedent. — Affirmed.
DONEGAN, C.J., and PARSONS, HAMILTON, KINTZINGER, ANDERSON, ALBERT, STIGER, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433848/ | I. The prosecution had its origin in a search and seizure in certain premises known as 307 North Center Street, Marshalltown, wherein intoxicating liquor was found. It appears that the defendant lived with his mother, in the old family home. This home was the place of the search. On the afternoon or evening of March 8, 1928, nine officers entered the house, for the purpose of search. They found Mrs. Friend alone in possession. The seizure included eight exhibits, which were introduced at the trial. These consisted of bottles and their contents. The quantity appears to have been small. One bottle was marked "Old Steuben Rye." Its contents were described in the testimony of the seizing officer as being flavoring extract, and not intoxicating. Another exhibit was a bottle of blackberry wine, said to be "mighty good wine." The other six exhibits *Page 743
were all described as containing alcohol. Some of these were found in the kitchen cabinet, some in the cupboard, and some in the bookcase. Concededly, the burden was upon the State to show that these intoxicating liquors were found in the possession of the defendant. The broad question arising upon this record is whether the defendant is to be deemed presumptively in possession of small quantities of intoxicating liquor found in his mother's cupboard while he was living with her. Her husband was previously deceased. She was presumptively the head of the family, and in control of the household. Indeed, she testified as a witness that she was the sole owner, and in control of the exhibits seized, and that they had been originally acquired by her deceased husband, and had been in her possession at all times since his decease. We are not so much concerned, however, with her testimony. The question is whether the State proved possession in the defendant.
The district court recognized the state of the record, and submitted the specific issue to the jury as one to be determined by circumstantial evidence, if any. Instruction 9 was as follows:
"You are instructed that circumstantial evidence has been offered and is relied upon by the State to establish ownership of the liquor alleged to have been found at No. 307 North Center Street in Marshalltown, Iowa.
"To warrant a conviction upon circumstantial evidence alone, each fact in the chain of circumstances necessary to prove guilt must be proven by competent evidence, beyond a reasonable doubt, and all the facts necessary to prove guilt must be connected with each other and with the main fact, and all circumstances taken together must be of a conclusive nature, producing a moral certainty that the crime was committed.
"In order, however, to warrant a conviction upon circumstantial evidence alone, the facts proved must not only be consistent with the guilt of the accused, but they must also be inconsistent with any other rational theory of defendant's innocence."
The instruction is abstractly correct. The difficulty confronting us is that the jury ignored it. The record presented here discloses no circumstance in support of such allegation, *Page 744
other than the fact that the defendant lived with his mother at this home. The brief for the State points out no other circumstance, nor does it purport to rely upon circumstantial evidence. It purports to rely only upon the direct evidence to the effect that the defendant lived at this home.
It appears that the defendant arrived home while the search thereof was still in progress. It does not appear that he gave any attention thereto. He said nothing and did nothing. We see no escape from the conclusion that the State stopped short in its proof of possession or control.
II. Other grounds of reversal are urged, many of which are clearly wanting in merit. The instructions are quite unassailable in form, except No. 8, which was concededly formulated by defendant's counsel, and given at his request. The brief for the State calls our attention to the fact that the case involves one question which is presented to us for the first time. That is whether the mere possession of liquor, without intent to sell the same, will of itself subject the possessor to prosecution for maintaining a liquor nuisance. The State asks for a specific consideration of this question. A careful examination of defendant's brief fails to disclose that he raises this question. Consideration of it, therefore, must be deferred. It is expressly reserved from this adjudication.
On the ground stated in Division I hereof, the judgment of the district court is — Reversed.
ALBERT, C.J., and STEVENS, MORLING, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433849/ | I think the case presents a fact question for the determination of the jury, and would affirm. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433850/ | On May 3, 1940, U.C. Burch contracted in writing to do grading for the state highway commission on a secondary road in Wayne county. At that time Maryland Casualty Company became surety on the contractor's bond in the sum of $7,500. The contractor completed the work on September 7, 1940, and it was later accepted by the highway commission. On October 15, 1940, the Hercules Manufacturing Company filed its petition in equity against the highway commission, Burch, Maryland Casualty Company, Iowa State Bank and Trust Company of Fairfield — Burch's assignee — and several parties who had furnished labor or material on the project, alleging that it furnished material to Burch of the value of $351.14 for which it was entitled to a claim against the retained percentage of the contract price.
The highway commission asked leave to pay the balance of the contract price, $1,806.59, into court to be disbursed according to the rights of the parties. Maryland Casualty Company filed answer and cross-petition alleging the execution of the contract and bond, the approval and acceptance of the work by the highway commission, that cross-petitioner had paid several claims for labor and material furnished on the project, which claims had been assigned to it, and that under the provisions of chapter 452, Code of Iowa, it is subrogated to the rights of these claimants to the funds in the hands of the highway commission. Iowa State Bank and Trust Company of Fairfield alleged in its answer that it was entitled to the balance of the contract price under a written assignment from Burch, the contractor, made on August 3, 1940, filed with the highway commission three days later.
Upon the trial all facts were stipulated. It was agreed that: The contract, bond, and assignment to the Fairfield bank were executed as alleged; the work described in the contract was completed on September 7, 1940; the surety had paid claims for labor and material totaling $2,370.77 and taken assignments thereof; in August the highway commission estimated that work of the value of $8,219.20 had been completed; ten per cent of this amount, or $821.92, was retained by the commission, the balance of $7,397.28 was disbursed in two checks payable to Burch and the assignee bank; on November 2, 1940, the commission estimated the balance of the completed work was of the *Page 570
value of $984.67, none of which had been disbursed; the assignment to the Fairfield bank was to secure a loan from it to Burch upon which there was due more than the sum retained by the highway commission.
Section 1109.06 of the specifications, part of the contract which in turn was incorporated in the bond, provides:
"If the work extends over a period of more than one month the Contractor will receive monthly estimates based on the amount of work completed in an acceptable manner, and on material delivered. * * * Ten per cent of each estimate shall be deducted and held as a suspended payment until final acceptance of the entire contract. * * * 90 per cent of the contract sum for each item shall become due upon final acceptance of that item by the Commission. The amount deducted from the contract sum shall be retained by the Commission as a suspended payment until final acceptance by the Commission of all of the items included in the contract."
The total contract price was $9,203.87. The highway commission was required by the contract to retain ten per cent of this amount, $920.39, until final acceptance of the work. It is conceded this ten per cent retention fund should be applied to the payment of claims and should go to the surety as assignee and subrogee of the claimants paid by it. The balance unpaid by the commission above the ten per cent, $886.20, is the amount in controversy. The lower court held that claimants for labor and material and the surety as their assignee and subrogee had no right to any part of the contract price except the ten per cent retention fund and awarded the amount in controversy to the bank. The surety has appealed. We think the trial court was right.
The rights of the claimants for labor and material and of appellant surety as their assignee and subrogee against the unpaid fund are determined by the statutes in chapter 452, Code, 1939. Southern Surety Co. v. Jenner Bros., 212 Iowa 1027, 1036,237 N.W. 500; Missouri Gravel Co. v. Federal Surety Co., 212 Iowa 1322,1327, 237 N.W. 635; Independent Sch. Dist. v. Hall,159 Iowa 607, 611, 140 N.W. 855. All sections of the chapter should be considered in the light of their relation to *Page 571
the whole. Ahrweiler v. Board of Supervisors, 226 Iowa 229, 231,283 N.W. 889, 890; Eysink v. Board of Supervisors, 229 Iowa 1240,1243, 296 N.W. 376, 378; 50 Am. Jur. 361, 362, section 358. When this is done it seems plain that the claimants and appellant, as their assignee and subrogee, could resort only to the ten per cent of the contract price which the highway commission was required to retain. The applicable statutes in chapter 452 are (all italics supplied):
"Section 10304. Subcontractors on public improvements. The following provisions shall be held to be a part of every bond given for the performance of a contract for the construction of a public improvement * * *:
"1. `The principal and sureties on this bond hereby agree to pay * * * all just claims * * * for labor performed or materials furnished, in the performance of the contract on account of which this bond is given, when the same are not satisfied out of theportion of the contract price which the public corporation isrequired to retain until completion of the public improvement, but the principal and sureties shall not be liable * * * unless the claims of said claimants against said portion of the contractprice shall have been established as provided by law.' [Here the bond contains the exact language of section 10304.]
"Section 10310. Payments under public contracts. Payments made under contracts for the construction of public improvements, unless provided otherwise by law, shall be made on the basis of monthly estimates of labor performed and material delivered; said payments to be made for not more than ninety percent of said estimates and to be so made that at least ten percent of thecontract price will remain unpaid at the date of the completionof the contract * * *.
"Section 10311. Inviolability and disposition of fund. * * *the retained percentage of the contract price, which in no case shall be less than ten percent, shall constitute a fund for thepayment of claims for materials furnished and labor performed on said improvement, and shall be held and disposed of by the public corporation as hereinafter provided.
"Section 10312. Retention of unpaid funds. Said fund shall be retained by the public corporation for a period of thirty days after the completion and final acceptance of the improvement. *Page 572
If at the end of said thirty-day period claims are on file as herein provided the public corporation shall continue to retainfrom said unpaid funds a sum not less than double the total amount of all claims on file.
"Section 10313. Optional and mandatory actions — bond to release. The public corporation, the principal contractor, any claimant for labor or material who has filed his claim, or the surety on any bond given for the performance of the contract, may * * * bring action in equity in the county where the improvement is located to adjudicate all rights to said fund, or to enforce liability on said bond. * * *
"Section 10315. Adjudication — payment of claims. * * * Payments from said retained percentage, if still in the hands of the public corporation, shall be made in the following order: * * *
"Section 10316. Insufficiency of funds. When the retainedpercentage aforesaid is insufficient to pay all claims for labor or materials, the court shall, in making distribution under section 10315, order the claims in each class paid in the order of filing the same.
"Section 10317. Converting property into money. When it appears that the unpaid portion of the contract price for the public improvement, or a part thereof, is represented, in whole or in part, by property other than money, or if a deposit has been made in lieu of a surety, the court shall have jurisdiction thereover * * *.
"Section 10319. Unpaid claimants — judgment on bond. If, afterthe said retained percentage has been applied to the payment of duly filed and established claims, there remain any such claims unpaid in whole or in part, judgment shall be entered for the amount thereof against the principal and sureties on the bond. In case the said percentage has been paid over as herein provided, judgment shall be entered against the principal and sureties on all such claims.
"Section 10320. Abandonment of public work — effect. When a contractor abandons the work on a public improvement or is legally excluded therefrom, the improvement shall be deemed completed for the purpose of filing claims as herein provided, from the date of the official cancellation of the contract. The *Page 573
only fund available for the payment of the claims of persons for labor performed or material furnished shall be the amount thendue the contractor, if any, and if said amount be insufficient to satisfy said claims, the claimants shall have a right of action on the bond given for the performance of the contract.
"Section 10322. Filing of claim — effect. The filing of anyclaim shall not work the withholding of any funds from thecontractor except the retained percentage, as provided in thischapter."
Appellant relies upon sections 10320 and 10312. With regard to 10320, appellant states its proposition thus:
"That as Burch defaulted in his contract the fund available for the payment of the laborers and materialmen became the entire amount due under the contract and held by the commission under the provisions of Section 10320 * * *."
Assuming without deciding that 10320 will bear the construction for which appellant contends, the argument cannot be sustained because Burch did not abandon the work on this improvement nor was he legally excluded therefrom as provided by this section. Nor was there any "official cancellation of the contract." On the contrary, Burch fully performed the work described in his contract, the highway commission approved and accepted it and issued its final estimate thereon. The stipulation of facts so states and appellant, by incorporating part of the petition of the Hercules Manufacturing Company, so alleges in its answer and cross-petition.
The other section which appellant contends makes the fund in controversy (in excess of the ten per cent) available to claimants is 10312. When considered in connection with the other sections of the chapter, especially 10310, 10311, and 10322, section 10312 will not fairly bear such a construction.
It is plain that the terms "said fund" at the beginning of 10312 and "said unpaid funds" later on in the same section refer to "the retained percentage of the contract price" (in this case ten per cent) found in section 10311, and a similar provision in section 10310. Section 10311 plainly says, "the retained percentage of the contract price, which in no case shall *Page 574
be less than ten percent, shall constitute a fund for the payment of claims * * *." This provision, according to an elementary rule of statutory construction, excludes the fund here in controversy, in excess of the ten per cent, from claims for labor and material. See 50 Am. Jur. 238, section 244; Van Eaton v. Town of Sidney, 211 Iowa 986, 991, 231 N.W. 475, 71 A.L.R. 820, and cases cited; Vale v. Messenger, 184 Iowa 553, 558, 168 N.W. 281, and cases cited. Section 10322 is an express provision to the same effect. The plain meaning of 10312 is expressly recognized in Southern Surety Co. v. Jenner Bros., 212 Iowa 1027, 1035, 1036,237 N.W. 500, 504, in these words:
"Under section 10312 of the 1927 Code, said ten per cent shall be retained `by the public corporation for a period of thirty days after the completion and final acceptance of the improvement. If at the end of said thirty-day period claims are on file as herein provided the public corporation shall continue to retain from said unpaid funds a sum not less than double the total amount of all claims on file.' When, however, no claims were filed, as required by 10305, supra, within the thirty-day period, then such ten per cent need no longer be retained. Perkins Builders Supply Fuel Company v. Independent School District, 206 Iowa 1144.
"So, under the statute, the so-called ten per cent portion ofthe contract price no longer exists, as such, if claims are not filed within the thirty-day period." (Italics supplied.)
Indeed, Southern Surety Co. v. Jenner Bros. holds that the terms, "the portion of the contract price which the public corporation is required to retain until completion of the public improvement" and "said portion of the contract price," found in section 10304, refer to the ten per cent provided for by section 10310. At pages 1033 and 1035 of 212 Iowa, page 503 of 237 N.W., it is said:
"The words `said portion of the contract price' [in 10304] refer by inference to section 10310 * * * As previously stated, the surety is liable under the statutory contract set forth in section 10304 of the Code for such amount of the claims `not satisfied out of the portion of the contract price which the public corporation is required to retain until completion of the public *Page 575
improvement.' Said portion to be thus retained is ten per cent.See section 10310." (Italics supplied.)
Not only do the terms "said fund" and "said unpaid funds" in section 10312 refer to the ten per cent retained percentage provided for by sections 10310 and 10311, but similar references are found in sections 10313 ("said fund"), 10315 ("said retained percentage"), 10316 (" the retained percentage aforesaid"), 10319 ("the said retained percentage" and "the said percentage"), and 10322, which provides:
"The filing of any claim shall not work the withholding of any funds from the contractor except the retained percentage, asprovided in this chapter."
Plainly, the terms "said fund," "retained percentage," and similar expressions throughout this chapter refer to the "retained percentage of the contract price, which in no case shall be less than ten percent" and which "shall constitute a fund for the payment of claims," provided for by 10311.
Appellant quotes a statement from Cities Service Oil Co. v. Longerbone, 232 Iowa 850, 858, 859, 6 N.W.2d 325, 329, which is said to sustain its contention that section 10312 makes available to claimants all unpaid funds and not merely the percentage of the contract price which the highway commission is required to retain. This is the only authority appellant cites on this proposition. Fairly considered, the cited opinion bears no such construction. The statement relied upon is:
"When claims were filed herein within the 30-day period, the highway commission was required to retain `not less than double the total amount of all claims on file.' [Section 10312, Code, 1939.] To that extent there was clearly a statutory retained percentage. * * *
"We agree with the trial court that the funds retained by the highway commission constituted statutory retained percentages herein, which, subject to the priorities fixed by section 10315, were available for the payment of claims filed with the court pursuant to section 10309, and, if such funds were insufficient, recovery might be had upon the bond." *Page 576
The Cities Service opinion thus states the question to be decided and the decision, at page 853 of 232 Iowa, page 326 of 6 N.W.2d:
"The question presented for our decision is clearly drawn. Does the failure of Concrete Products Corporation to file a claim with the highway commission within 30 days following the completion and acceptance of the work, in each instance, defeat its right to recover upon the bond of the contractor in each case? The trial court answered in the negative. We agree."
That there was no intention in the Cities Service case to interpret section 10312 in accordance with appellant's contention is apparent from the following language of the opinion, at page 855 of 232 Iowa, page 327 of 6 N.W.2d:
"Section 10310 provides for a retention of 10 per cent of the contract price. Section 10312 provides that said 10 per centshall be retained for 30 days after completion and acceptance of the work, and, if claims are filed before the expiration of such 30-day period, the public officials shall continue to retain a sum `not less than double the total amount of all claims on file.'" (Italics supplied.)
The Cities Service case thus expressly recognizes that the term "said fund" at the beginning of section 10312 refers to the ten per cent retention fund provided for by 10310. This is in harmony with what is said in Southern Surety Co. v. Jenner Bros., supra.
The second sentence of section 10312 reads:
"If at the end of said thirty-day period claims are on file as herein provided the public corporation shall continue to retainfrom said unpaid funds a sum not less than double the total amount of all claims on file."
It is clear that the words "from said unpaid funds" in this sentence also refer to the same ten per cent retention fund as do the first two words in 10312, "said fund." Obviously, it would be impossible to "continue to retain" a larger amount after the thirty-day period than had been retained during such period. To construe section 10312 in accordance with appellant's *Page 577
contention would be to read out of the second sentence of the section the words "from said unpaid funds," even though the statute is plain and unambiguous.
Here the lienable claims amounted to $2,370.77. If 10312 were to be given the meaning for which appellant contends, the highway commission was required to withhold double this amount or more than half the entire contract price. The clear meaning of the second sentence of section 10312 is that the public corporation shall "continue to retain" double the amount of claims filed but not in excess of the retained percentage, which in this case is ten per cent.
Our holding finds support in Federal Surety Co. v. Des Moines Morris Plan Co., 213 Iowa 464, 467, 239 N.W. 99, 100 (Evans, J.), where we held that as to payments in excess of the retained ten per cent the Morris Company, as assignee of the contractor, was entitled to prevail over the surety company that signed the contractor's bond and paid the amount of claims in excess of the retained percentage. The opinion states:
"The plaintiff's right of subrogation to the rights of the claim-holders may be conceded in an abstract sense. But the claim-holders had no lien upon the funds which came into the hands of the Morris Company. At this point the statute is conclusive. This provides that at least ten per cent of the estimates shall be retained by the public body. As to such retained percentage, liens attach in the order of filing claims.The remainder of the monthly estimate becomes payable forthwithto the contractor. Section 10322 provides:
"`The filing of any claim shall not work the withholding of any funds from the contractor except the retained percentage.'
"It has been the policy of the statute not to encumber theseinstallments. There was, therefore, no lien upon the installmentswhich were assigned to the Morris Company and which passed through its hands. [Italics supplied.] * * *
"The plaintiff cites, and relies upon, a number of our own cases in support of its contention at this point. It is enough to say that each and all of them involve controversy over theretained percentage. As to such percentage, the claim-holders did acquire liens by the filing of their claims." *Page 578
Since we are concerned mainly with the construction of our own statutes, there is little occasion to comment on outside decisions, but they have been considered. Although there is a conflict in cases of this kind generally (see 43 Am. Jur. 945, 946, section 201), there are some decisions that have awarded the unpaid funds in excess of the retained percentage of the contract price to the surety of the contractor in preference to his assignee. Most of such decisions proceed on the theory that the surety was subrogated to the rights of the obligee in the bond (here, the highway commission) rather than to the rights of laborers or materialmen. It is not necessary to determine whether such theory could be invoked here since no such claim is made by the pleadings in the case, and there is nothing in the record to indicate that such theory was advanced in any way in the court below.
Appellant suggests that it is entitled to prevail by reason of section 1109.11 of the specifications for construction work on the secondary road system, which provides:
"The Contractor guarantees the payment of all just claims against him or any sub-contractor in connection with this contract, and his bond will not be released by final acceptance and payment by the County Board, nor will final payment be made until all such claims are paid or released."
These specifications by reference appear to be a part of the contract. The specifications consist of a bound book containing more than three hundred pages. The record does not show that section 1109.11 was called to the trial court's attention although the book containing it was offered in evidence, along with other exhibits, when the facts were stipulated. It is not clear that section 1109.11 is applicable here since it apparently was intended to apply to a contract made by the county board of supervisors. Here the contract was between Burch and the state highway commission. So far as the record shows, the county board had nothing to do with the contract.
Aside from the above, however, we think the rights of the parties are governed by the provisions of statute which are, in effect, written into the contract. Appellant says in its brief:
"The contract * * * is a statutory contract and the terms *Page 579
of the statutes are written into, and became a part of, the contract."
If there were a conflict between the terms of the contract and the statutes, the latter should prevail. The highway commission was powerless to enter into a contract except in accordance with the statutory provisions which we have analyzed. As stated, section 10311 provides, "the retained percentage of the contract price * * * shall constitute a fund for the payment of claims * * *" and section 10322 says, "The filing of any claim shall not work the withholding of any funds from the contractor except the retained percentage * * *." Here "the retained percentage" is ten per cent.
It is not to be understood from the foregoing that the highway commission could not contract to retain more than ten per cent of the contract price. The statutes expressly contemplate such right. Ten per cent is the minimum and not the maximum that must be retained. What we do hold is that there was no intention here to retain for the benefit of laborers or materialmen more than the ten per cent.
Finally, appellant contends that since the Fairfield bank did not apply the payments received from the highway commission to the reduction of Burch's indebtedness the bank does not come into court with clean hands and is not entitled to recover upon its assignment. The contention is without merit and is answered by what we have already said. The rights of laborers and materialmen and appellant as their subrogee are limited by statute to the retained percentage. The balance of the contract price was not encumbered. A similar contention was rejected in Federal Surety Co. v. Des Moines Morris Plan Co., 213 Iowa 464, 239 N.W. 99. There the contractor's assignee retained a part of each payment received but released the balance to the contractor. We held that no rights of the surety or of the holders of claims to whom it was subrogated were violated.
But assuming without deciding that appellant could complain of the release of the money to Burch if it were prejudiced thereby, there is no showing that Burch did not use the funds so released to him to pay laborers and materialmen or *Page 580
otherwise in the performance of his contract. In the absence of such showing it does not appear that the surety was prejudiced by the bank's release of the funds to Burch. — Affirmed.
MANTZ, C.J., and BLISS, OLIVER, HALE, and WENNERSTRUM, JJ., concur.
MULRONEY and SMITH, JJ., dissent.
MILLER, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433851/ | I respectfully dissent.
The majority opinion holds that claimants for labor and material against the unpaid funds of a contractor can only resort to a per cent of the contract price (in this case ten per cent) for the payment of their claims, and that the contractor can assert a superior and paramount claim as against labor and material claimants, to a per cent of the contract price (in this case ninety per cent). This is the force of the majority holding when the case is stripped of the elements of subrogation to the claimants' rights, and assignment of the contractor's rights, about which there is no argument in this case.
The conclusion is arrived at, in the majority opinion, by construing various statutes in chapter 452, Code of 1939, and the provisions of the contract and bond. The fallacy of the majority reasoning, as I see it, lies in the failure to distinguish between the funds that can be resorted to by claimants after a contract has been completed and the duty of the public body to retain funds until the contract has been completed.
Sections 10310, 10311, and 10312 are statutes that fix the retention duty of the public body for some contracts. The majority construe these statutes and find therein the only funds to which claimants can resort for payment of their claims. I do not think they can be so construed. I think that after a contract has been completed, any funds due the contractor can be resorted to by claimants.
How else can one construe section 10308, which provides that a claim may be filed at any time, even after the thirty-day period following completion, "if the public corporation has not paid the full contract price"? Certainly the legislature meant that all funds due the contractor after completion were subject *Page 581
to claims. The funds might be insufficient if installments were released under section 10310 or if the claim was filed more than thirty days after completion, but that does not mean that funds that had not been released could not be resorted to for the payment of claims that remained unpaid after completion. Notice section 10304, where the legislature wrote into every bond the unqualified agreement to pay all claimants.
It is apparent that section 10310 applies only to contracts that require more than one month for completion. If the fund to be resorted to for the payment of claims is found only in this statute and section 10311, then, since the statutes are not applicable to contracts requiring less than a month for completion, no funds of the contractor would be available for claimants.
I find nothing in sections 10310 to 10312 that would give the contractor the absolute right to any agreed percentage of the contract price, after the contract has been completed, as against filed claimants. I see in these statutes a plan to allow partial payments to the contractor, upon monthly estimates, which, when applied to certain contracts will mean that the fund available for claimants at the time of completion will be less than the full contract price. The statutes deal with the size of the fund that will be available for claimants when the contract is completed. They do not deal with the right of the claimant to assert his paramount claim at any time against any funds due the contractor who has completed his contract but has not paid for the labor or material. I differ with the majority in that I would construe the retention duty after completion of the contract, provided for in section 10312, to be double the amount of the claims on file thirty days after completion. But this difference is not significant in this case. All the funds were retained by the commission. The ninety per cent of the monthly estimate had been paid. All that was due the contractor was the final paymentafter the contract was completed.
This question has not been before us in any case where the contractor or his assignee asserted a right to funds, in excess of the ten per cent fund, remaining due the contractor after the completion and final acceptance of the contract. But we have in prior decisions recognized the right of claimants to *Page 582
any or all funds in the hands of the public body after the completion of the contract.
In Perkins Builders Supply Fuel Co. v. Independent Sch. Dist., 206 Iowa 1144, 1148, 221 N.W. 793, 795, we denied relief to a claimant when it appeared that he did not file his claim until after thirty days following the completion of the contract and after the municipality had fully settled with the contractor except for the nominal sum of one dollar. In the course of the opinion we stated:
"However, appellants claim that, since the school district withheld $1.00 from the payment on the final estimate, they have brought themselves within the provisions of the second sentence of the aforesaid section. [Section 10308.] It is clear, however, that, under said provision, the appellants would have no rightexcept as to the unpaid portion of the contract price, to wit, $1.00. After the expiration of the 30-day period, the school district could have paid the entire amount, and neither said district nor the surety company would be liable. Therefore, in no event could the appellants prevail, except as to the amount of the $1.00 withheld." (Italics supplied.)
A study of Southern Surety Co. v. Jenner Bros., 212 Iowa 1027,1035, 1038, 237 N.W. 500, 504, reveals that we there held the balance of the contract price, in excess of the ten per cent in the hands of the highway commission after the work was completed and the project accepted, available for claimants. This action was brought at the time when section 10305 provided for the filing of claims "with the officer authorized by law to issue warrants in payment of such improvement." Since this was a state highway commission improvement, such officer was the state auditor. The contractor completed the work and it was accepted and thereafter the surety brought action to determine its liability and to fix the rights of the other defendants as claimants. It appeared that labor and material claims totaling in excess of $10,000 had been filed with the county auditor, the highway commission, and with the district court. The highway commission at the time of suit held $9,201.12 due the contractor of which sum "* * * the sub-final estimate is $3,427.15, and the final estimate is $5,773.97." In *Page 583
passing, let us note the similarity to the situation here where the funds held by the highway commission were $1,806.59, composed of the subfinal estimate of $886.20 and the final estimate of $920.39. In the language of the highway commission, the sub-final estimate seems to be the amount due the contractor over and above the ten per cent of the full contract price and the final estimate is ten per cent of the full contract price. In the Southern Surety case we held that the claimants were not entitled to any judgments against the surety for the provision of the statute with respect to bonds absolved it from liability "unless the claims * * * shall have been established as provided by law." But the claimants asserted they established their claims under the second paragraph of section 10308 and under section 10309 giving them the right to file claims after the thirty-day period after completion and with the district court. With regard to this claim we stated:
"Unquestionably such filing, after the thirty-day period, willbe sufficient to establish appellees' claim against the fundsretained from the contractor's agreed consideration * * *."
Consequently, we there held:
"Plainly, therefore, under the facts and circumstances presented in the present controversy, appellees can have no judgment against the appellant, as surety, on the contractor's bond, but they are entitled only to the balance of the contractprice remaining after the work was completed and the jobaccepted. Paragraph two of section 10308, supra, authorizes appellees to receive such balance of the contract price. Because the district court held otherwise, the appellant is entitled to a reversal." (Italics supplied.)
Thus it will be seen that in the above case we held that both the subfinal estimate and the final estimate were available to claimants who filed after the thirty-day period following completion and acceptance of the improvement. Of course, if this fund is available for claimants who file after the thirty-day period, it is available for those who file before the expiration of that period. I feel that the majority opinion certainly overrules our holding in the above case. *Page 584
Again, in Cities Service Oil Co. v. Longerbone, 232 Iowa 850,858, 6 N.W.2d 325, 329, the sum retained after the work under the contract was completed and accepted was in excess of ten per cent of the contract price. Claims were filed before the expiration of the thirty-day period after completion of the contract, and we there stated:
"When claims were filed herein within the 30-day period, the highway commission was required to retain `not less than double the total amount of all claims on file.' [Section 10312, Code, 1939.] To that extent there was clearly a statutory retained percentage. * * * We agree with the trial court that the funds retained by the highway commission constituted statutory retained percentages herein, which, subject to the priorities fixed by section 10315, were, available for the payment of claims filed with the court pursuant to section 10309, and, if such funds were insufficient, recovery might be had upon the bond."
The majority cites our opinion in Federal Surety Co. v. Des Moines Morris Plan Co., 213 Iowa 464, 239 N.W. 99. But the Morris Plan case was not a statutory action under this chapter. True, such a statutory action had earlier been brought in Marshall county which determined the surety's liability to claimants. All that we held was that the surety, held liable to claimants in a statutory action, could not recover from the contractor's assignee who had received the ninety per cent estimate payments from the county. The situation would be comparable if the surety here were seeking recovery for the payments already made to the bank under the assignment.
I would hold that the balance of the contract price, or $1,806.59, retained by the highway commission after the contract was completed and accepted was available for claimants. This being true, the contractor could not have asserted any right to these funds superior to claimants. His assignee, possessing only an assignment of "all moneys due or to which [contractor] may be now or hereafter entitled," has no superior right over a claimant that the contractor would not have. In Monona County v. O'Connor,205 Iowa 1119, 1126, 215 N.W. 803, 806, we stated:
"An assignee of the contractor occupies the same position *Page 585
as his assignor. The claims of the assignee are no higher or greater than those of the contractor."
I would reverse.
SMITH, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433853/ | The property involved is a house and lot in Waukon occupied by plaintiff as his home. The contract was made December 11, 1940, between defendant Robert A. Collins and plaintiff. The purchase price was $1,800, of which plaintiff paid $350 in cash. The contract provided that within fifteen days the vendor would convey the property by warranty deed free of all liens and furnish abstract of title showing good merchantable title. The vendor also agreed to have the premises surveyed and platted and have "proper official plat" recorded. (The property is part of a larger tract then owned by the vendor.) The contract further provided that the remaining $1,450 of the purchase price was to be paid at the time of delivery and acceptance of the deed, in the form of two promissory notes, one for $1,000, for five years at five per cent interest, the other for $450, for three years at four per cent interest, each secured by a mortgage on the premises. When the contract was made, plaintiff was in possession under a lease from the mother of defendants, who are brother and sister.
Plaintiff's petition against Robert A. Collins for specific performance was filed on September 1, 1942. On April 7, 1943, plaintiff amended his petition by alleging that defendant Robert A. Collins had deeded the property to Mary E. Collins on March 9, 1942, that the rights of the grantee were subject to plaintiff's rights under his contract, and asking specific performance also as against Mary E. Collins. On May 3, 1943, plaintiff again amended his petition by alleging that defendants had wrongfully shut off the water supply to the premises and asking that they be required to restore such water supply. Defendants answered by admitting the execution of the contract but alleging, among other matters, that plaintiff had abandoned the contract.
Upon the trial, at the conclusion of plaintiff's evidence, defendants moved to dismiss plaintiff's petition principally on the grounds that plaintiff had failed to show he had no adequate *Page 24
remedy at law and that he made no tender before bringing suit. The motion was overruled and defendants' counsel called his first witness. Plaintiff's counsel then objected to the offer of any evidence by defendants on the ground that by moving to dismiss defendants were precluded from offering testimony, that the legal effect of defendants' motion to dismiss was to rest their case. Plaintiff's counsel asked to submit authorities to the court in support of his contention and the trial was recessed.
A week later, and before the court had passed on plaintiff's contention that defendants had no right to offer evidence, defendants' counsel asked the court to reopen the case to permit the offer of testimony, if defendants' motion for dismissalconstituted a closing of defendants' case. On December 27, 1943, the trial court entered decree which "finds, orders and rules that on October 12, 1943, plaintiff and defendants both rested their case." (October 12th is the date plaintiff's evidence was concluded and defendants moved for a dismissal.) The decree also overrules defendants' motion to reopen the case and awards plaintiff specific performance.
[1] I. Defendants contend the decree should be reversed because plaintiff failed to show the inadequacy of his remedy at law for breach of contract. The contention is without merit. The granting of specific performance of a contract to convey real estate does not depend upon the existence of special facts showing the inadequacy of the remedy at law in a particular case. Courts assume that money damages do not constitute an adequate remedy for the breach of a real-estate contract and grant specific performance without an actual showing of inadequacy of the legal remedy. Unless the consideration is inadequate or there is some other equitable reason for denying specific performance, a party to a land contract is as much entitled to this form of relief as to damages at law. Western Securities Co. v. Atlee, 168 Iowa 650,659, 151 N.W. 56; 49 Am. Jur. 107, 108, section 92; 58 C.J. 1024, section 233; id. 1028, 1029, section 239; annotation 65 A.L.R. 7, 40.
[2] II. We are asked to reverse because plaintiff did not tender performance prior to the commencement of suit. There is some conflict of authority generally on the necessity of a tender *Page 25
by the vendee prior to his bringing suit for specific performance. 49 Am. Jur. 166, section 143; 58 C.J. 1081, section 342. See Wood v. Howland, 127 Iowa 394, 398, 101 N.W. 756. Here, however, it is clear that plaintiff's failure to tender performance on his part prior to instituting suit is not fatal to his right to relief.
In his petition plaintiff alleged he was ready and willing to perform and that he "does hereby tender performance of his part of said contract." Soon after the commencement of the trial plaintiff made a written tender in cash, accompanied by the money, of the amount he contended was unpaid on the contract and also tendered the two notes and mortgages executed by him and his wife, which the contract provided should pay the balance of the purchase price, giving defendants the option to accept either the cash or the notes and mortgages. Under the facts here, the offer in the petition, followed by the written tender, was timely.
As stated, the contract provided that within fifteen days the vendor would furnish plaintiff a warranty deed and an abstract showing merchantable title. No deed or abstract was ever furnished plaintiff. Time of performance by the vendee was not made of the essence of the contract. Plaintiff could hardly be expected to execute and deliver mortgages for the balance of the purchase price, containing the usual covenants, until the vendor transferred the title to him or at least was ready to do so. 58 C.J. 1081, 1082, section 342; annotation 79 A.L.R. 1240.
Aside from the above, however, there are two reasons why plaintiff was not required to tender performance prior to commencing suit. First, the vendor did not have good title. There were liens against the premises. Indeed, a mortgage against the property was foreclosed and plaintiff paid rent on it, presumably as required by the court, to a receiver appointed in the foreclosure. The vendor's inability to perform rendered unnecessary a tender of performance by plaintiff prior to bringing suit. 49 Am. Jur. 167, section 144; annotation 79 A.L.R. 1240, 1241. In the second place, plaintiff was excused from tendering performance before instituting suit by the vendor's conveyance to his sister, which placed it beyond his power to perform his contract with plaintiff. McWhirter v. Crawford,104 Iowa 550, 554, *Page 26 72 N.W. 505, 73 N.W. 1021, and cases cited; 49 Am. Jur. 167, section 144; annotation 79 A.L.R. 1240. See, also, as tending to support our conclusion on this branch of the case, Braig v. Frye,199 Iowa 184, 189, 199 N.W. 977; Conner v. Baxter, 124 Iowa 219,228, 99 N.W. 726; Veeder v. McMurray, 70 Iowa 118, 121,29 N.W. 818; Hopwood v. Corbin, 63 Iowa 218, 222, 18 N.W. 911.
[3] III. Defendants make an objection to the amount tendered by plaintiff which we think must be sustained. The amount of cash and the amount of the notes and mortgages tendered was $1,229 rather than $1,450. Plaintiff claimed the right to deduct $221 from the $1,450 remaining unpaid on the contract because of rent paid by him to the receiver in the mortgage foreclosure above referred to. The record does not clearly show, except by the self-serving statement in the written tender, the total amount of rent plaintiff paid the receiver nor for what period of time. Perhaps the inference is that plaintiff paid the receiver thirteen months' rent at $17 a month. Plaintiff occupied the property about three years from the date of the contract down to the entry of the decree. The effect of the decree is that plaintiff was permitted to occupy the property, on which he had paid but $350, for three years without paying rent (except as the amount claimed to have been paid the receiver was deducted from the purchase price) and without paying interest on the unpaid portion of the purchase money.
While plaintiff should be credited with the rent he was compelled to pay the receiver in the mortgage foreclosure, he is chargeable with interest on the unpaid portion of the purchase price from the time he took possession under the contract, even though the title of the vendor may have been defective. Interest is allowed the vendor under such circumstances to compensate for the vendee's use of the property. Wood v. Howland, 127 Iowa 394,398, 101 N.W. 756; annotation 75 A.L.R. 316, 325; 58 C.J. 1243, section 596. In order for a purchaser in possession to stop the running of interest he must ordinarily tender the purchase money in sufficient amount and keep it in readiness for the vendor. Here interest on $1,450 should be added to that sum and the amount plaintiff was compelled to pay the receiver deducted *Page 27
therefrom. Since the case must be reversed and remanded because of the matter about to be mentioned, the determination of the balance due from plaintiff may be made by the lower court pursuant hereto, in the event plaintiff prevails. It may be necessary for the lower court to hear testimony in order to determine this amount.
[4] IV. Defendants ask a reversal because the court refused to permit them to offer evidence. In this connection, plaintiff contends the court did not so rule. We think, however, the record shows the court adopted plaintiff's contention that defendants were precluded from offering testimony by making their motion to dismiss. At least, defendants understood this to be the ruling and were never given an opportunity to offer testimony. As stated, the decree "finds, orders and rules" that defendants rested their case on October 12, 1943, the date they moved for a dismissal. Defendants never rested their case unless that was the legal effect of their moving to dismiss. This provision of the decree can be accounted for only on that theory.
The court should have permitted defendants to offer testimony. The trial was governed by Iowa Rules of Civil Procedure, effective July 4, 1943. It is not claimed the trial court was of the opinion the application of the rules in this action "would not be feasible, or would work injustice." See Rule 1 (b). In fact, in overruling the motion to dismiss made by defendant Mary E. Collins, the court stated, "I will overrule that motion. We will try this thing through and note exceptions under the new rules." Rule 216 provides:
"After the plaintiff has completed his evidence, a defendant may move for dismissal because plaintiff has shown no right to relief, under the law or facts, without waiving his right to offer evidence thereafter."
It is but fair to say that this rule was not called to the trial court's attention.
Although the application of Rule 216 is conclusive on this question, we may add that we find no decision of this court holding that the mere making at the close of plaintiff's evidence of a motion to dismiss which is overruled amounts to a resting of the defendant's case or precludes him from offering evidence. It *Page 28
must be admitted there is language in some of our opinions which might be so construed. But in each of those cases the motion to dismiss was sustained, or the defendant expressly rested his case, or stood on his motion and refused to offer evidence. See Hirtz v. Koppes, 212 Iowa 536, 538, 234 N.W. 854; Haggin v. Derby, 209 Iowa 939, 942, 229 N.W. 257, and cases cited; Bridges v. Sams, 202 Iowa 310, 311, 202 N.W. 558.
We have also pointed out that the statutes made no provision for a motion to dismiss an equity case at the close of plaintiff's evidence; the practice of making such a motion is not to be commended and is perilous procedure. If a defendant obtains a favorable ruling on his motion he, of course, precludes himself from offering evidence. Then if the ruling is reversed on appeal, our decision is ordinarily final and the defendant may find himself defeated because he did not produce the evidence which would have saved him. Coen Conway v. Scott County Sav. Bk.,205 Iowa 483, 487, 218 N.W. 325. And see cases last above. But we find no Iowa decision in which a defendant has been held precluded from offering evidence merely by unsuccessfully moving to dismiss plaintiff's case at the close of plaintiff's evidence.
[5] V. Since this case is in equity, it is reviewed de novo here. Rule 334, Iowa Rules of Civil Procedure. Ordinarily the trial de novo in this court of an equity case is final and there is no further trial in the court below unless for some special reason it is so ordered. Upon a reversal all that ordinarily remains to be done is the entry of a decree in harmony with our opinion. Matthews v. Quaintance, 204 Iowa 520, 522, 215 N.W. 707, and cases cited; Sears, Roebuck Co. v. Nelson, 230 Iowa 936,938, 299 N.W. 398, 399, and cases cited. We have repeatedly held, however, that when essential to effectuate justice, an equity case may be remanded for such further proceedings as the circumstances may require. Sears, Roebuck Co. v. Nelson, supra, and cases cited. See, also, Pace v. Mason, 206 Iowa 794, 803,221 N.W. 455; Kelley v. Kelley, 189 Iowa 311, 319, 177 N.W. 45; Shetler v. Stewart and Weber, 133 Iowa 320, 325, 107 N.W. 310, 110 N.W. 582. Our authority to remand an equity case for the taking of further testimony cannot be doubted. *Page 29
Kossuth County State Bk. v. Richardson, 141 Iowa 738, 742,118 N.W. 906, 907.
Since the trial court refused to receive defendants' evidence, which is not before us, we have no way of knowing whether defendants can establish any of their pleaded defenses. The cause is therefore remanded for the taking of testimony in support of such defenses and any rebuttal thereof. In order that our present decision may be as complete as possible, we may say, as above indicated, that the lower court did not err in overruling defendants' motion to dismiss and that plaintiff made a prima facie case entitling him to specific performance, subject only to the allowance of interest to the vendor as stated in Division III.
[6] VI. Regarding the right to specific performance as against Mary E. Collins, if plaintiff is entitled to such relief against the vendor, Robert A. Collins, he is also entitled to such relief as against the sister unless she is an innocent purchaser for value and without notice of plaintiff's rights. 49 Am. Jur. 171, 172, sections 148, 149; 58 C.J. 921, section 86; id. 1135, section 445. See, also, Anders v. Crowl, 210 Iowa 469, 477,229 N.W. 744; Larson v. Smith, 174 Iowa 619, 626, 156 N.W. 813; Zundelowitz v. Webster, 96 Iowa 587, 591, 65 N.W. 835. Defendants may have evidence to offer upon this issue which will be for the trial court to decide.
VII. As to the issue raised by plaintiff's second amendment to petition that defendants wrongfully shut off the water supply to the premises, we also have only plaintiff's evidence. The lower court should hear any evidence for defendants on this issue, also any rebuttal thereof, and award such relief, if any, as may be warranted.
For further proceedings in harmony with this opinion, the case is — Reversed and remanded.
MANTZ, C.J., and OLIVER, HALE, BLISS, MILLER, WENNERSTRUM, and MULRONEY, JJ., concur.
SMITH, J., takes no part. *Page 30 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433854/ | I. The case has complications of procedure and practice which are more troublesome than the question of ultimate merit. The plaintiffs filed their petition alleging their ownership of a certain 640 acres of land, and that they were 1. EJECTMENT: entitled to the possession thereof, and that title: the defendants were withholding such possession non- from them. An abstract of title was later necessity attached as an amendment to the petition. This to plead. petition sufficiently conformed to the requirements of Section 12236, Code of 1924. In addition to a general denial, the defendant Hassett's answer set up his claim of ownership, predicating the same upon an executory contract of purchase of said premises from the plaintiffs. This sufficiently conformed to Section 12239, which requires the answer to set forth the interest claimed in the land by the defendant. This answer set forth an executory contract of sale by the plaintiffs to one Grill, and an assignment of such contract by Grill to the defendant Hassett. Thereupon, the plaintiffs pleaded the same contract in reply, and predicated and pleaded an estoppel thereon against this defendant to deny the plaintiffs' title. Upon these pleadings, the parties went to trial. The plaintiffs put in evidence their record title, the abstract being received by stipulation, as a proper index of the recorded conveyances. It appeared from the plaintiffs' evidence that they had been in possession of the land for more than 25 years, under claim of ownership, and that they had acquired the same through their father, who had acquired the same under like claim of ownership more than 50 years ago, and had been in possession of the same down to the year of his death, in 1902. The contract also was introduced in evidence, apparently by both parties. It further appeared that the defendant Hassett had defaulted in the payment of interest on March 1, 1924, and that notice of forfeiture was served upon him and upon an alleged assignee of the contract, *Page 157
and that all the formalities necessary to effect a forfeiture were complied with. Much of the evidence introduced by the plaintiffs was admitted by the court over objections of the defendants; but none of these rulings are complained of as grounds for reversal here, though they are complained of in the body of the argument. The complaint here is concentrated upon the proposition that the plaintiffs failed to prove their title to the land. In the absence of errors assigned and predicated upon the rulings of the court in the course of the trial, the pleadings and the evidence fall into hotchpot, and we have only to consider the ultimate merits of the case as they appear from the evidence actually introduced. Before proceeding to a consideration of such merits, we consider first the claim of the appellees. They claim an affirmance of the judgment on the ground that no errors have been specified by appellants as grounds of reversal. Appellants' argument specifies the following as their grounds of reversal:
"1. Plaintiffs not only failed to show title, but disclosed they had none to part of the lands.
"2. There is no showing that Hassett was in possession solely under a contract for sale.
"3. He would not be estopped to deny title if he were.
"4. Robb, the mortgagee, was an assignee of any contract Hassett is shown to have had, because he had a mortgage on the possession.
"5. Robb's answer must prevail, because not attacked."
The first ground above stated challenges the sufficiency of the evidence to show title in the plaintiffs. This is rather broad in its scope, and calls for a consideration of the entire record. We think, however, that it is permissible to challenge the sufficiency of the evidence to sustain the judgment. The consideration of such question necessarily involves consideration of the whole record. On the trial below, and in their brief here, the appellants pointed out many alleged defects in the record title of the plaintiffs, as the same appear from the abstract. The following quotation from the brief will be sufficiently illustrative of the nature of these objections:
"Title to N 1/2 NE 1/4 of Sec. 16, Township 83, Range 38. *Page 158
"1. No. 5 — No wife of grantor signs. (Date is 1867.)
"2. No. 5 grantee is Justis Knapp, while at Nos. 6 and 7, grantor is Justus Knapp. Dates 1868-9 and 1875.
"3. Title to NW 1/4 NE 1/4 16-83-38 has a break in the chain. Daniel Warren was last record owner before the break. (See No. 4). Charles N. Knapp and wife convey without authority at No. 9.
"4. No. 9 grantee is W.L. Joslyn, while at No. 10, grantor is M.L. Joslyn.
"5. No. 11 grantee is Morris B. Wiley, while at No. 12, grantor is M.B. Wiley, though acknowledgment recites Morris B. Wiley, which may make deed sufficient.
"6. No. 13 shows tax deed covering NW 1/4 NE 1/4 and running to John O'Connor. Under curative acts, this probably cures break in title spoken of at No. 3 above.
"7. No. 13 shows tax sale Oct. 4, 1880, for taxes of 1878 and 1879. Nothing further appears regarding this sale.
"8. No. 11 fails to show any wife of grantor signed. Date is in 1872.
"9. No. 12 spells grantee's name O'Conner, while elsewhere it is O'Connor. Not important.
"10. Release at No. 17 and power of attorney at No. 18 are by Wm. B. Brown, while mortgage was to William B. Brown. Not important. * * *
"11. No patent shown to cover SW 1/4 or W 1/2 of SE 1/4 above."
Objections of this character cover 10 printed pages in the briefs. The alleged failure of proof of plaintiffs' title is predicated upon blemishes of the character here indicated. The abstract of title printed in this record covers approximately 20 printed pages. If a few or many irregularities and inaccuracies and blemishes of the character here indicated are wholly destructive of a record title, then we fear that there are comparatively few farm owners in this state who can justify their claim of ownership of their farms by the exhibit of a record title. A title may be good, even though the record thereof be imperfect. In this state, even a color of title is recognized as sufficient to sustain the possession under a good-faith claim of right. However, we do not deem the question controlling in this case, for *Page 159
reasons hereinafter indicated; and we proceed to a consideration of the case on its merits as a whole.
II. In May, 1919, these plaintiffs were in possession of the land in question, under claim of ownership and under color of title, and had been in such possession for more than 15 years. In that month, they entered into an executory contract of sale of the same to Grill, for the agreed price of $160,000. $5,000 was paid at the time of the execution of the contract. $20,000 was to be paid on March 1st following. The balance, of $135,000, was to be paid on March 1, 1935, "with annual interest at 5 1/2%." The contract contained a forfeiture clause, to be operative in event of the default of the purchaser in making the required payments. In June, 1919, Grill assigned his contract to the defendant Hassett, who, on March 1st, paid to the plaintiffs the $20,000 provided by the contract. For three years thereafter, he paid the annual interest on March 1st of each year. On March 1, 1924, he defaulted. Notice of forfeiture was served upon him, and all requisite formalities were observed. The contract provided in express terms that, in event of forfeiture, the land should revert back to the plaintiffs. Why should the plaintiffs, in order to avail themselves of the express provisions of their contract, and to get back possession of their land, be required, as a condition precedent, to show an unblemished record title from the government down? The defendant is not pleading breach of the contract by the plaintiffs. Since he himself has failed to meet the payments required, and his further right therein has been forfeited, what interest has he in the record chain of title? The attitude of the appellants is that the vendor of land by executory contract must run the risk of losing it entirely, upon default of the purchaser to pay, unless he can exhibit a perfect record title. True, the plaintiffs herein unnecessarily pleaded themselves into the operation of Section 12236, and thereby assumed a formal burden which was quite gratuitous. They had no need of the aid of such statute. A common-law remedy was available to them, and they could have predicated an action upon the contract itself, in that the purchaser had agreed therein that, in event of his default, the property should go back to the plaintiffs. The ultimate merits of the controversy did not require the consideration of any question of record title. The plaintiffs, however, having committed themselves *Page 160
to the procedure indicated by Section 12236, entered the treadmill, and traced the title of every tract over a period of 70 years. This was precautionary and prudent, though it resulted in a record the volume of which was made up of nonessentials. The defendant Hassett having denied their title, the plaintiffs, by way of reply, pleaded their contract, and pleaded that, because thereof, the defendant was estopped to deny the vendor's title. In support of such plea, they rely upon the well established rule that a vendee in an executory contract of sale of land may not, after his default and forfeiture, deny the title of the vendor. Any other rule would open a wide door to fraud and oppression. The contrary rule would operate as an inducement to designing persons to purchase lands by executory contract from an owner whose title was known to be defective and beclouded. Possession could be thus acquired by the purchaser; he could default by choice, and suffer forfeiture; he would maintain his possession because of the vendor's clouded title.
The rule invoked at this point is succinctly stated in 9 Ruling Case Law 847, as follows:
"As already seen, it is the general rule that the plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary's; but this rule is subject to the qualification that the title of the plaintiff need not be good as against all the world, if good as against the defendant by estoppel; and there are many cases in which the character of the defendant's title alone has been held to preclude all investigation into that of the plaintiff. Such, for instance, is the case where the relation of landlord and tenant exists, and such is also the case between vendor and vendee, where the possession of the latter is not adverse to that of the former, as where the vendee is in possession under an executory agreement of purchase."
The rule here announced has been recognized by this court in numerous cases. Conger v. Converse, 9 Iowa 554; Byers v.Rodabaugh, 17 Iowa 53; Morrison v. Wilkerson, 27 Iowa 374;Denecke v. Miller Son, 142 Iowa 486, 493. The rule thus announced is quite decisive of the controversy herein, so far as the question of plaintiffs' title is concerned.
III. As to the other grounds of reversal specified, the *Page 161
sufficiency of Nos. 2 and 3 is very questionable. Responding to the argument, however, No. 2 stresses the point that Hassett's interest in the real estate was not solely referable to the contract of purchase. The argument is that 2. EJECTMENT: plaintiffs failed in their proofs at this point. pleading: The evidence is undisputed that Hassett went burden of into possession under his contract, and that the proof. interest he purported to acquire was under the contract. If he had an interest in the title or right of possession of the land derived from any other source than the plaintiffs, the burden of pleading such facts was upon the defendant, and not upon the plaintiffs. Code Section 12239. Whether such facts, if pleaded and proved, could be effective to lift the estoppel, is a question which would still confront the appellant, and one which we have no occasion to consider.
The proposition laid down in No. 3 is met by what we have said in Division II hereof.
It remains to consider the alleged interest of defendant Robb, as set forth in Points 4 and 5. This defendant answered to the effect that, in February, 1924, the defendant Hassett had executed to him a chattel mortgage upon the 3. APPEAL AND crops "and on the use and occupancy and rents ERROR and profits of the lands," and "that certain review: leases of said lands to tenants had been scope: assigned to him by the defendant Hassett; and absence that such mortgage was an assignment of of record. defendant Hassett's interest in the contract to the extent of the conveyance therein, and contained the warranty of said Hassett that he had good right and title to make the same; and that the said recording thereof conveyed notice of the assignment therein to plaintiffs." It is averred, also, that no notice of forfeiture was served upon him. This defendant did not set out a copy of his mortgage in his pleading, but rested upon the legal conclusions above set forth. On the trial, he introduced his mortgage in evidence. He has not, however, set it forth in the abstract presented here. The trial judge had it before him, and held, in effect, that the contents of the mortgage did not sustain the material allegations of the defense. Manifestly, there is nothing in the record presented here which will enable us to determine what the contents of such mortgage were. A chattel mortgage is a mortgage upon chattels. It is doubtless true that *Page 162
an instrument could be so drawn as to operate as a mortgage upon chattels and as an assignment of a real estate contract. Such an instrument would be something more than a chattel mortgage. Whether the instrument in question was such a one can be determined only by a consideration of its very terms. Indeed, even if the terms of the instrument had been adequate for that purpose, it appears by other undisputed evidence that the instrument could not be effective in that respect, because the defendant Hassett had previously assigned his contract of purchase and delivered the same to McHenry Seemann, who were the holders of the same at and prior to the time that Robb claims to have acquired an assignment thereof. The finding of the district court at this point is, therefore, quite conclusive upon the appellant.
It is our conclusion that the judgment below must be —Affirmed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433855/ | Plaintiff's petition asserts that he is a surviving brother and heir of Eda J. Runyan, who died February 17, 1933; she was the wife of James C. Runyan, who died November 1, 1938; in 1928, Runyan made a will whereby he bequeathed and devised all of his property to his wife, Eda J. Runyan; the will became lost, diligent search has been made, but it cannot be found; Runyan did not revoke said will nor make a new one. The prayer was that the will be admitted to probate. The answer admitted that Eda Runyan was the wife of James C. Runyan until her death in 1933, and that Runyan died November 1, 1938, but denied all other allegations of the petition.
D.B. Hunt testified that sometime in 1928, 1929, or 1930, he drew a will for James C. Runyan, which left all of his property to his wife; the will was executed, properly witnessed, and was left in the safe of Hunt's bank, the Geneva Savings Bank; the bank closed in 1933; in Hunt's judgment, Runyan's will was in the safe when the bank closed; April 7, 1932, Hunt drew a will for Mrs. Runyan leaving her property to her husband; she did not leave it at the bank; he had no recollection as to its being left at the bank.
On August 6, 1938, the examiner in charge of the closed bank delivered to the clerk of the district court at Hampton several wills that had been in the safe at the bank. Among *Page 881
them was an envelope, that had been opened, which contained Mrs. Runyan's will. No will of James C. Runyan was filed.
E.A. Schemmel was examiner in charge of the bank from February 1934, to March 1936. He testified:
"I have no recollection of turning a will or anything over to Mr. Runyan or even meeting him after his loan was cleared. The custom was to take a receipt from somebody that took a will. There was always careful and proper identification if somebody claimed a will. We checked through some receipts and correspondence and stuff of that kind in Mr. Ralph Stuart's basement this noon to see whether there was any will of James Runyan. There was nothing, not even any receipt or record showing that any will had been returned to him."
B.H. Moore, who preceded Schemmel as examiner in charge, testified:
"I didn't give Mr. Runyan a will at any time."
Carl Mansfield, who succeeded Schemmel, testified:
"I don't believe I ever met James Runyan. Never, to my knowledge, did I give a will back to him. If I did I would have taken a receipt. I have searched through the records in the Clerk's Office and Mr. Stuart's office, or basement, for all the records of the bank that I know of for Mr. Runyan's will and found neither a will or receipt. I found other receipts and other valuable papers, but there is none for Mr. Runyan's will."
[1] The court's findings include the following statements:
"The cases governing the establishment of lost wills are innumerable; but apparently the last of the series and the most elaborate of them all, is that of Goodale vs. Murray, 227 Iowa, 843. In this case, it is laid down as a universally applicable rule that to establish a lost will, it is encumbent upon the proponent to prove by clear, satisfactory, and convincing testimony, (1) its execution; (2) its loss; (3) that the presumption of its intentional destruction by the testator has been rebutted; and (4) its contents.
"The first, second, and fourth of these propositions, if not actually conceded, are established by the evidence almost beyond *Page 882
a reasonable doubt; and the third alone presents the controversial subject matter of the case.
"That the will has disappeared is certain; but we are left largely if not entirely in the realm of uncertainty and conjecture as to what has happened to it. I can guess quite as easily that some time in the intervening years the decedent must have procured the will and destroyed it, — as the contestant claims, — as to guess that in the mess and confusion of the receivership the will unintentionally dropped out of sight and is now a legally `lost' will, — as claimed by the proponent. In this circumstance the result is inevitable. Of the two alternatives, a heavy burden rests on the proponent both to prove the latter and to disprove the former, and in both I think it must be said that he has failed.
"Indeed the circumstances throughout are against him. The decedent's property, it appears, originated exclusively in his family. It was of course perfectly natural and appropriate that he should leave it to his wife in the event of her survivorship. But she predeceased him, and it was equally natural if not inevitable that upon her death the will had served its purpose, and should be revoked or destroyed. In as much as I have to indulge in a pure conjecture, as already said, as to the nature of such disappearance, I see no escape from guessing that upon the wife's death, he withdrew and intentionally destroyed it, — as anyone in his circumstances naturally [would], — rather than to leave it to the uncertain operation of Section 11861 aforesaid." (The antilapse statute.)
Pursuant to the foregoing findings, decree was entered dismissing the petition. Proponent appeals.
As above indicated, the sole question presented herein is whether, under the rules announced in Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, 126 A.L.R. 1121, the presumption of revocation by intentional destruction has been overcome. The arguments of counsel devote considerable space to the question of the burden of proof.
[2] Contestants assert that, even though the execution of a will is proven, if the will is not found after testator's death, the presumption obtains that the will was revoked by intentional *Page 883
destruction by the testator, citing Goodale v. Murray, supra; In re Estate of Thorman, 162 Iowa 237, 144 N.W. 7, Ann. Cas. 1916B, 484; Thomas v. Thomas, 129 Iowa 159, 105 N.W. 403. Accordingly, it is contended that the burden is upon proponent to overcome such presumption by clear, satisfactory, and convincing proof, citing Thomas v. Thomas, supra, and McCarn v. Rundall, 111 Iowa 406, 82 N.W. 924. The authorities sustain the contention.
Proponent's position is that the contentions above set forth do not apply herein because of the rule that, where a will is placed in the custody of another, the burden is cast upon contestants to prove that the will was returned to testator before the presumption of revocation will obtain, citing 68 C.J. 994; 28 R.C.L. 385; Miller's Will, 49 Or. 452, 90 P. 1002; Gfroerer v. Gfroerer, 173 Ind. 424, 90 N.E. 757; Williams v. Miles,68 Neb. 463, 94 N.W. 705, 96 N.W. 151, 62 L.R.A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306; Schultz v. Schultz, 35 N.Y. 653, 91 Am. Dec. 88; Lane v. Hill, 68 N.H. 275, 44 A. 393, 73 Am. St. Rep. 591; Mann v. Balfour, 187 Mo. 290, 86 S.W. 103; Snider v. Burks,84 Ala. 53, 4 So. 225; In re Robinson's Estate, 149 Wash. 307,270 P. 1020; McElroy v. Phink, 97 Tex. 147, 76 S.W. 753,77 S.W. 1025; Aschenbeck v. Aschenbeck, Tex. Civ. App., 62 S.W.2d 326; Rape v. Cochran, Tex. Civ. App., 217 S.W. 250; In re Calef's Will, 109 N.J. Eq. 181, 156 A. 475, In re Calef, 111 N.J. Eq. 355,162 A. 579; Charles v. Charles, 313 Mo. 256, 281 S.W. 417; In re Ross Estate, 199 Cal. 641, 250 P. 676; Allen v. Scruggs,190 Ala. 654, 67 So. 301.
One difficulty with proponent's contention is that many of the authorities relied upon include in the rule a feature that he overlooks or ignores. For example, in 28 R.C.L. 385, supra, the text states:
"It has been said, however, that the evidence to overcome the presumption that a lost will was destroyed by the testator animo revocandi must be clear, satisfactory, and convincing. * * * But the presumption is entirely overcome and rebutted when it appears that upon the execution of the will it was deposited by the testator with a custodian, and that the testator *Page 884
did not hereafter have it in his possession or have access toit." (Italics supplied.)
Here the testimony shows that deceased left the will with Hunt. But the evidence also shows that deceased had access to it. The dispute arises over whether he availed himself of such access. The witnesses for proponent testified that they had no recollection of his having done so. Such testimony is by no means conclusive. Eckert v. Century Fire Ins. Co., 147 Iowa 507, 510, 124 N.W. 170; Pranger v. Pranger, 182 Iowa 639, 644, 164 N.W. 607; Rance v. Gaddis, 226 Iowa 531, 545, 284 N.W. 468. Added to this is the fact that Mrs. Runyan's will was clearly shown to have been left at the bank and examined by someone. Hunt had no recollection of her having left her will at the bank. He was quite sure that she did not. No one recalled the circumstances under which her will was examined before Mansfield filed it with the clerk on August 6, 1938. Yet the clerk insisted upon stating in the receipt he gave to Mansfield:
"The Eda J. Runyan will had been opened at time of delivery to the Clerk. It was open at the time of finding in safe at Geneva Savings Bank, Geneva, Iowa."
In addition to the foregoing there is no testimony, as there usually is in the case of a lost will, regarding declarations of the decedent. The record herein is silent on that issue. Also, the wife having died in 1933, it would be only natural that, between the time of her death in 1933 and August 6, 1938, James Runyan visited the bank, examined his wife's will, and destroyed his own with intention to thereby revoke it. There is no claim that the two wills were mutual or reciprocal wills; had they been such, the death of Eda Runyan would have rendered James Runyan's will invalid. Anderson v. Anderson, 181 Iowa 578, 585, 164 N.W. 1042. However, the wills were quite analogous to mutual and reciprocal wills, so much so that it was only natural for James Runyan, after the death of his wife, to conclude that his will had served its purpose and was no longer desirable. The trial court was thus persuaded. So are we.
By reason of the foregoing we do not deem it necessary to *Page 885
decide upon any arbitrary rule as to the burden of proof, nor to determine the controversy on the failure of one side or the other to sustain such burden. Viewing the evidence as a whole, we are in accord with the position taken by the trial court.
The decree is — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433856/ | The offense of which the defendant was convicted took place on November 11, 1938, in Washington, Iowa. He was then 18 years old, and lived in said city with his parents. Cecil Replogle, upon whom the alleged assault was made, was 17 years old, and lived with his parents on a farm near Washington. The boys had been acquainted since the fall of 1935, and associated with about the same young people in that community. In July, 1938, the defendant became acquainted with Replogle's 15-year-old sister, and had a few *Page 313
dates with her. Her parents objected to her being out until midnight, and to her keeping company with any of the boys, and asked Cecil to aid in enforcing their wishes in this matter. He admonished the defendant of his parents' wishes. The defendant resented this and persisted in his attentions to the young lady, and the record discloses no protest on her part. The two boys had a few wordy altercations over the matter, with an occasional blow. Each one accused the other of trying to run him off the highways in the operation of their automobiles, and of cutting in too soon in passing. As witnesses at the trial, each blamed the other as the aggressor and the one at fault. Each had the support of particular friends, and their accounts of what took place on these occasions were conflicting. It is not surprising that there was an unfortunate ending to the feud of these young people. On November 11, 1938 there was a football game in the afternoon at Columbus Junction. Cecil took his sister and a number of young people in his car, and the defendant rode in a car driven by Stanley McKeown. There was testimony that the McKeown car cut in very abruptly ahead of the Replogle car. That night after the game and after all had returned to Washington, the defendant and McKeown, in the latter's car, followed Replogle as he was taking a young lady to her home. Both cars came to a stop in the street in front of the young lady's home. There was another young girl who remained in the rear seat of Replogle's car. All three boys got out of their cars, and engaged in a heated discussion. There is a variance in their accounts of just what took place, but all agree that the defendant and Replogle engaged in a fight in which the defendant threw Replogle to the ground and kept him there until he had "taken back" certain claimed things he had said about the defendant, and had promised to behave better toward the defendant in the future. Replogle then got behind the wheel in his car and started the motor with his foot pressed on the clutch. The left front door of the car was open. It was hinged in front. The glass in the door was up, thus closing the opening. Both agree as to this. Defendant stood with his left hand on the steering wheel and his right hand on the back of the front seat. The boys were still engaged in conversation. As witnesses they disagreed as to what was said *Page 314
and as to what subsequently took place. The defendant and McKeown testified that, after calling the defendant a vile name, Replogle started the car violently forward and closed the door forcibly, catching the defendant's right wrist between the door and the frame, thus shattering the glass in the door, and dragging the defendant forward, partly on the ground, for about three car lengths. Replogle denied this and testified that he gradually eased in the clutch, and the door swung shut with the forward movement of the car, and that then the defendant jumped on the running board, and struck at Replogle with his left fist and drove it through the glass, causing the pieces and particles of glass to scatter over the inside of the car. One of these slivers of glass struck Replogle's right eyeball, so cutting and injuring it that he lost the sight thereof. The young lady in the rear seat of the car corroborated Replogle in his version of what took place, particularly as to what happened after the scuffle outside of the car.
On this appeal the defendant assigns and argues the four following errors as grounds for reversal: 1. The court erred in overruling defendant's motion for a new trial based on the ground that there was insufficient evidence to justify the verdict of the jury. 2. The court erred in overruling defendant's motion for a directed verdict, at the conclusion of the evidence. 3. The court erred in admitting evidence of the operation of the McKeown car on the afternoon of November 11th, on the road to Columbus Junction, and in overruling defendant's motion to strike the same after it became apparent, beyond dispute, that the defendant was not driving that car and had no control over it. 4. The court erred in admitting evidence of the state's rebuttal witness, Kiesey, an officer who arrested defendant, over the objection of the defendant that the testimony was not rebuttal, and a violation of the rule requiring notice of additional testimony, and in refusing to strike this testimony. The italicized statements, in the examination following, is the testimony of which defendant complains. Kiesey testified as follows:
"Q. Where did you see him and under what circumstances? Defendant objects as not rebuttal.
"Court: Overruled.
"Defendant excepts. *Page 315
"A. I saw him first at the Sinclair station, the Sinclair Oil Station.
"Q. Where is that? A. On North Marion Ave.
"Q. Go ahead and tell what happened there. Defendant objects as not rebuttal.
"Court: Overruled.
"Defendant excepts.
"A. The deputy sheriff and I went down and got Crandall at the filling station and took him to the county jail.
"Q. What was said down at the filling station, if anything? Defendant objects as not rebuttal.
"Court: I think the Court should know what he is ruling on.
"Q. Mr. Kiesey tell the Court and jury what was said down at the filling station by the defendant. Defendant objects as not rebuttal.
"Court: Overruled.
"Defendant excepts.
"A. Crandall was sleeping under the filling station, and I called to him to come out and he came out and the deputy sheriff with me told him he better come with us, and Crandall said `I wasafraid of that.'
"Q. Where did you take him? A. To the County Jail.
"Q. Did you have any further conversation with him? Defendant objects as not rebuttal, if anything it is part of the State's case.
"Court: Overruled.
"Defendant excepts.
"Q. What did Crandall say if anything? A. We asked him to tell us his story and he says: `Well, I finally caught up with theguy.'
"Q. Was there anything more said? A. He told us what happened.
"The defendant objects to all this testimony, as not rebuttal and moves to strike it out for that reason."
[1] Under the first two assignments of error, the defendant contends that the state failed to establish the allegations of the indictment with evidence sufficient to warrant the submission of the case to the jury, or to sustain the verdict of the jury. The defendant was charged with the crime of assault *Page 316
with intent to inflict great bodily injury. This is a crime which is not susceptible of exact definition. It is also difficult to define with exactness or definite limitations just what a great bodily injury is. We have said at different times that it is an injury to the person of a more grave and serious character than an ordinary battery, but that it cannot be definitely defined. State v. Gillett, 56 Iowa 459, 9 N.W. 362; State v. Ockij,165 Iowa 237, 145 N.W. 486; State v. Schumann, 187 Iowa 1212,175 N.W. 75; State v. Dickson, 200 Iowa 17, 202 N.W. 225; State v. Grimm, 206 Iowa 1178, 221 N.W. 804. It is not necessary, in fact, that there be any injury inflicted, as where one attempts to inflict the injury, but fails. State v. Shaver, 197 Iowa 1028,198 N.W. 329; State v. Steineke, 185 Iowa 481, 170 N.W. 801. While the extent of the injury may be taken into consideration as bearing upon the intent, it is not, in itself, determinative of that intent. State v. Grimm, supra. The gist, or the foundation of the offense, as this court has repeatedly held, is the intent with which the injury is inflicted, or attempted. State v. Malcolm, 8 Iowa 413, 415; State v. Parker, 66 Iowa 586, 589,24 N.W. 225, and cases cited above.
"`The intent with which an act is done is an act or emotion of the mind seldom if ever capable of direct and positive proof, but is to be arrived at by such just and reasonable deduction or inferences from the acts and facts proved as the guarded judgment of a candid and cautious man would draw ordinarily therefrom.'" State v. Gillett, supra [56 Iowa 459, 460, 9 N.W. 363.]
Necessarily, then, the intent, in most cases must be established circumstantially, and by legitimate inferences from the evidence. State v. Shaver, supra; State v. Gillett, supra; State v. Schumann, supra. As stated in State v. Grimm, supra: "This intent is disclosed by the circumstances attending the assault, together with all relevant facts and circumstances antedating the assault." See also State v. Woodward, 84 Iowa 172,50 N.W. 885.
The principle that one intends the natural result of his act, has repeatedly been stated by the court. In State v. Gillett, above-cited, we approved as sound law an instruction, stating that: *Page 317
"`The law warrants the presumption or inference that a person intends the results or consequences to follow an act which he intentionally commits which ordinarily do follow such acts.'"
The same language was used in State v. Ockij, supra, 165 Iowa 237. In State v. Redfield, 73 Iowa 643, 35 N.W. 673, the court said, a person is presumed to intend the consequences which are ordinarily to be apprehended as the result of his voluntary act. In State v. Bennett, 128 Iowa 713, 714, 105 N.W. 324, 325, 5 Ann. Cas. 997, we said:
"A specific intent may be proved by circumstantial as well as by direct and positive evidence; and, where it is proven or admitted that the defendant committed an act which would be unlawful unless justified, the specific intent may be inferred or presumed from the unlawful act." See also State v. Jones, 70 Iowa 505,30 N.W. 750, and State v. Woodward, 84 Iowa 172,50 N.W. 885.
[2] With these principles in mind let us look at the record briefly. There was evidence to establish that on the evening in question the defendant had followed and overtaken Replogle and had engaged in a quarrel and fight with him; that Replogle was then seated in his car with the door closed and the glass up; that the defendant struck at him and drove his fist through the glass, thereby causing a splinter of the glass to enter his eye and deprive it of sight. The car was an old model and the glass was not shatterproof. In striking at Replogle and in breaking the glass, he was guilty of an unlawful act, for which there was no justification. Replogle was sitting but a few inches from the pane of glass. Defendant knew that it would likely break if he struck it with his fist, and he knew that if it did break, the flying pieces of glass would probably injure Replogle. It is true that he probably did not anticipate the particular injury to Replogle's eye which resulted, but he appreciated and apprehended that such an injury might reasonably be a probable consequence of his act. It was for the jury to say whether the defendant had the essential intent which is the gist of the crime charged. See also State v. Cummings, 128 Iowa 522, 105 N.W. 57; State v. Richardson, *Page 318 179 Iowa 770, 162 N.W. 28, L.R.A. 1917D, 944; State v. Brackey,175 Iowa 599, 157 N.W. 198, and cases cited above.
[3] The prosecuting witness and the young lady with him testified that the defendant deliberately and intentionally broke the glass with his fist. The defendant McKeown denied this, but McKeown was contradicted by the minutes of his testimony which he signed before the grand jury, and by the testimony of members of that body. It is not for us to pass upon the veracity of the various witnesses or upon the weight of their testimony, or to disturb the verdict of the jury, or the judgment of the court, since both have substantial support in the evidence. It is a well-established rule that it is the province of the jury to determine questions of fact. This court will set aside these determinations only when the verdict is clearly against the weight of the evidence, and there is no substantial evidence to support it. While the testimony is conflicting, there is supporting testimony for every fact essential to the establishment of the crime charged, and the finding of the jury is conclusive upon us. Citation of authority in support of this principle is unnecessary, but see State v. Harrington, 220 Iowa 1116,264 N.W. 24; State v. Lowenberg, 216 Iowa 222,243 N.W. 538; State v. Manly, 211 Iowa 1043, 233 N.W. 110, and cases cited therein.
[4] We find no reversible error in the third assignment. In direct examination Replogle testified that the defendant was in a car driven by McKeown, which cut in on the Replogle car. Defendant did not object to the testimony when given. On cross-examination Replogle testified again that McKeown was driving. He was then asked, "And as far as you know Crandall had nothing to do with the car?" He replied, "I do not know, sir." It was then that the defendant moved to strike all of the testimony relative to the operation of the car on the way to the ball game. Neither McKeown nor the defendant testified respecting the matter, or whether the defendant did have anything to do with the car's operation. The circumstances were proper to go to the jury. And under the whole record the jury could not have been misled.
[5] In arguing the fourth assignment of error, on the oral submission, defendant's lawyer referred to the two statements complained of as rather "cryptic". It may be conceded that *Page 319
the meaning which each was intended to convey is rather ambiguous and indefinite. The defendant had denied the commission of the crime charged, and all facts tending to implicate him, in his testimony. The inference reasonably to be drawn from his statement, "I was afraid of that," on being arrested, would properly rebut his testimony. At least it indicates he was fearful that there was some basis for his arrest.
Respecting the last statement, "Well, I finally caught up with the guy," it is difficult to tell whether it was a part of his narration of the pursuit of Replogle on the evening of the offense, or whether it was a slang expression that he had finally evened the score against Replogle. The defendant insists it had the last meaning, and therefore tended to show the defendant's intent, and was a part of the State's main case. It is often difficult to draw the line between what is and what is not rebuttal. Anything showing defendant's intent to inflict a great bodily injury, was a part of the State's original case. However the defendant had denied breaking the glass in the car or making any assault upon Replogle after he was in the car, or of having an intention of injuring him, or of having any knowledge that Replogle was hurt. We think the remark, accepting the meaning claimed for it by the defendant, was proper rebuttal to this testimony.
[6] The order in which testimony may be introduced lies very largely in the discretion of the trial court. For that reason the court has never felt justified in reversing, "unless upon the clearest showing of prejudice." State v. Bruce, 48 Iowa 530, 538, 30 Am. Rep. 403.
[7] Under subsection 6 of section 13846, Code 1935, the court may for good reasons, in the furtherance of justice, permit, in rebuttal, the introduction of testimony properly a part of the main case, and the fact that it was not ostensibly so admitted would not justify a reversal in the absence of a showing of prejudice. State v. Curran, 51 Iowa 112, 118, 49 N.W. 1006. It oftentimes occurs that testimony is used in rebuttal which might have been used as a part of the State's direct testimony in its main case. This has been true notwithstanding the name of the witness was not endorsed on the indictment. Even though it may not be strictly rebuttal, if it has a tendency to disprove testimony on the part of the defendant, *Page 320
it is not prejudicial error to admit it. That this has frequently been the holding of the court, see State v. Munchrath, 78 Iowa 268,277, 43 N.W. 211; State v. Burris, 198 Iowa 1156, 1163,198 N.W. 82; State v. McCumber, 202 Iowa 1382, 1384, 212 N.W. 137; State v. Smith, 215 Iowa 374, 245 N.W. 309; State v. Gardiner,205 Iowa 30, 35, 215 N.W. 758; State v. Slycord, 210 Iowa 1209,232 N.W. 636; State v. Dimmitt, 184 Iowa 870, 873, 169 N.W. 137; State v. Graham, 203 Iowa 532, 211 N.W. 244. We feel that the introduction of this testimony was in no way harmful to the defendant. He did not deny making the statements.
Like all criminal cases, this one resulted unfortunately to both participants. The record has disclosed no criminal instincts on the part of the defendant, and we would be pleased if our decision could be rightfully otherwise, but we have gone carefully through the abstracts and the arguments, and find that there is no reversible error, and that the defendant has been fairly and impartially tried. We therefore affirm the judgment of the trial court. — Affirmed.
OLIVER, C.J., and HAMILTON, RICHARDS, SAGER, STIGER, HALE, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433717/ | It is alleged by the plaintiff that, on the evening of the 19th of December, 1928, she received severe personal injuries, while riding as a passenger in a Ford coupé automobile, *Page 253
1. MUNICIPAL which, at the time of the accident, was going CORPORA- north on Fourth Street in the city of Des TIONS: Moines, at a reasonable rate of speed, and on torts: the right side of the street; that the said operation of automobile was struck on its right side by a police police patrol wagon, which was coming from the patrol a east on Court Avenue, which vehicle was owned by governmental the city of Des Moines, and was being driven by function. the defendant Glen Crawford, one of the employees of the city. It is claimed that the police patrol was driven at a high, negligent, and dangerous rate of speed. It is claimed that the driver did not have said motor vehicle under proper control, and that he failed to sound a bell or give any warning of approach. It is alleged that the motor vehicle was driven in violation of the city ordinances regulating traffic and speed, and that the said wagon was then being used in a ministerial and corporate capacity by the city of Des Moines.
The city answered with a general denial, and, in addition, affirmatively pleaded that the motor vehicle owned by the city of Des Moines was being used for the purpose of transferring police officers from police headquarters in East Des Moines to patrol beats in West Des Moines at or about the hour of change from the afternoon to evening shift, as has been the custom for a long period of years; that the operation of such motor vehicle in the manner described was in the exercise of a governmental function; and that for injuries from or incidental thereto, there can be no liability in tort or recovery in damages against the defendant city under the laws of this state. The defendant city also pleaded certain ordinances outlining the preferential rights of public vehicles at street intersections, and of police and fire departments when engaged in the discharge of public duty. The city also affirmatively alleged contributory negligence on the part of the plaintiff, and that she was guilty of a violation of the city ordinance in relation to motor traffic.
The defendant Glen Crawford pleaded that he was a police officer at the time of the accident, and that his acts were governmental, for which there would be no liability or damages on his part; that the plaintiff was violating the city speed and traffic regulations, and was guilty of contributory negligence.
Briefly stated, the facts are as follows: On the evening of *Page 254
December 19, 1928, the plaintiff, Helen Leckliter, accompanied by Mark J. Sluss, left their home in the city of Des Moines to go to the Rock Island Station, to meet plaintiff's brother, Horace Leckliter, who was expected on the 7:15 evening train, coming from the east. The train arrived about an hour late. After the arrival of the guest, the three young people walked from the station to where the car was parked, on Fourth Street, just north of the station. They started for the Leckliter home. Sluss was at the wheel, Horace Leckliter was sitting on the right side, and the plaintiff sat between them. The car was started north on Fourth Street. One block north of the Rock Island Station, Fourth Street intersects with Court Avenue, which latter is a thoroughfare, starting from the east side of the Polk County courthouse, on the west side of the river, and continuing east across the river to the east side, where the municipal building and police station are situated, and thence on towards the state fair grounds. At the intersection of Fourth Street and Court Avenue, the Ford coupé in which the plaintiff and her companions were riding was struck by a Des Moines police patrol wagon, driven by the defendant police officer Glen Crawford, in which wagon there were, at the time, five police patrolmen, in uniform, being taken, after they had reported for duty and answered roll call, from the police station to their west side beats. It appears that it has been a custom of long standing for the city to transport its police officers in this manner. The police officer Glen Crawford was driving under specific orders from the then chief of police. The police car in use on that night had been in departmental service for many years, and, so far as the record shows, had never been used for any other purpose. It was plainly marked on the sides in large letters, "Police Patrol."
There is no dispute about the fact that the plaintiff suffered injuries, nor is there any dispute that the police patrol was traveling on the north side of Court Avenue, just before the accident. At the southeast corner of the intersection of Fourth Street and Court Avenue there is, instead of a building, a large space, occupied by a filling station, the building of which is well set back, leaving only one or two small filling station pumps at the corner of the lot. The west wall of the filling station building is 23 feet easterly of the east property line of Fourth Street, and 17.7 feet south of the south property line of Court Avenue. *Page 255
This afforded the driver of the Ford coupé a clear view of Court Avenue, as the Ford was being driven north in Fourth Street, for a long distance east in Court Avenue before the Ford reached the south curb line of Court Avenue. It appears that Court Avenue is 67 feet wide from curb to curb, and Fourth Street is 42 feet wide.
There is a dispute about the speed at which the police patrol was being driven. The police officers all testified that the police patrol gong was sounded almost constantly from the start at the police station on the east side of the river until the accident. Three disinterested witnesses also testified on the same subject and to the same effect. The plaintiff's associates and others testified that they did not hear the gong sound. The plaintiff herself testified that she saw the police car coming from the east when it was about three quarters of a block east of Fourth Street, and that she called the attention of Sluss, the driver of the car, to that fact. To this warning he answered, "Yes." It is claimed that the Ford car was going at not to exceed 12 miles an hour, and was under control; yet no attempt was made to stop the Ford, and permit the police patrol to pursue its course.
At the close of all the evidence, the defendants moved for a directed verdict. These motions were overruled, and exceptions were properly taken. The jury returned a verdict for plaintiff against both defendants, and from the judgment rendered thereon, this appeal has been taken.
I. It is the contention of the appellants that, without dispute, the evidence shows that the police patrol automobile involved in the accident was under the operation and control of police officers when on duty and while the city was engaged in the exercise of a governmental function, and that for injuries thus arising there is no liability in tort or for recovering damages against a municipal corporation, under the laws of this state. The rule is firmly established in this and other jurisdictions that, where a municipal corporation is performing a duty imposed upon it as the agent of the state, in the exercise of strictly governmental functions, there is no liability to private action on account of injuries resulting from the negligent acts of officers or agents thereunder, unless the liability is definitely fixed by statute. As was said in Harrisv. City of Des Moines, 202 Iowa 53: *Page 256
"A governmental duty is one involving the exercise of governmental power, and is assumed for the exclusive benefit of the public. A sovereign act of government cannot be submitted to the judgment of the courts, since government is not the subject of private law. It rests upon the municipality to determine whether it will exercise its governmental powers, and if it does, such functions do not create civil causes of action. Upon this theory, a city is not liable for the acts of its officers in attempting to enforce police regulations."
These rules are so widely recognized and firmly established that we need cite no authorities in support thereof. The difficulties arise mostly out of the application of these rules to the particular case in hand. It being assumed, but not decided, that the driver of the police patrol was negligent before and at the time of accident, the question is whether, under the undisputed facts in this case, there is any liability on behalf of the city. If the accident grew out of the exercise of its governmental functions by the city, then the city is not liable.
It is undisputed that the driver of the police patrol on that occasion was an officer of the police force of Des Moines, and under civil service. He was in his uniform, and on duty. The time had come for the change from the day to the evening shift for police patrolmen in the city of Des Moines. The officers whose duty it was to patrol the beats in the evening had reported for duty at the city police station on the east side of the river. They were in uniform, and had answered to roll call, and were under orders of the chief of police. It had been the custom for a long time, in order to facilitate the work and enhance the efficiency of the police department, to transfer these officers by this police patrol wagon to their respective territories over which the various patrolmen traveled. Under personal orders issued by the chief of police, the defendant Crawford drove this police patrol in which were riding the said officers who had reported for duty and were under orders.
Under Chapter 292 of the 1927 Code, designated "General Powers," applying to cities and towns, there appears Section 5738, the material portion of which is as follows:
"Cities and towns * * * shall have the general powers and privileges granted * * * for the protection of their property *Page 257
and inhabitants, and the preservation of peace and good order therein * * *."
Chapter 326 of the Code of 1927 pertains to government of cities by commission, and Section 6564 thereof, under the heading of "General Powers and Duties," contains in its material portions the following:
"The council shall have and possess, and the council and its members shall exercise, all executive, legislative, and judicial powers and duties now had, possessed, and exercised by the mayor, city council," and other officers.
Section 6588 of the same chapter provides in its material part as follows:
"The council of any city organized under this chapter [commission form of government] shall have the power to levy a special tax upon all taxable property in said city, not to exceed one mill on the dollar each year, for the purpose of purchasing and maintaining apparatus and equipment for use in police service in the department of public safety."
As was said in 1 Dillon on Municipal Corporations (5th Ed.), Section 109:
"In its governmental or public character, the corporation is made, by the state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself."
It will not be questioned but that, in establishing and maintaining a police department in a city, such city is acting for the public good, on behalf of the state, rather than for itself. The legislature clothed the city with power to maintain such an organization as a convenient method of exercising a function of government. By this means the state intends to establish and maintain peace, security, health, and the general welfare.
It is well established in this state that a municipal corporation is not ordinarily liable for the torts of a police officer while in the enforcement of police regulations. Calwellv. City of Boone, 51 Iowa 687; Easterly v. Incorporated Town ofIrwin, 99 Iowa 694; Lahner v. Incorporated Town of Williams, *Page 258 112 Iowa 428; Looney v. City of Sioux City, 163 Iowa 604. See, also,Norman v. City of Chariton, 201 Iowa 279; Harris v. City of DesMoines, 202 Iowa 53. We think it likewise follows that, if the defendant Crawford, in the case at bar, was engaged in any part of the governmental functions of the city of Des Moines at the time of this accident, the city cannot be held liable.
The appellee lays much stress upon the case of Jones v. City ofSioux City, 185 Iowa 1178. Plaintiff's intestate was struck by an automobile belonging to the city and driven by its employee. The petition alleges, among other things, that the city was negligent in that the car was driven at a high, reckless, and negligent rate of speed; that the pavement of the street at the place where the accident occurred was in a rough, uneven condition; that the defective condition of the street was a concurring proximate cause of the injury; and that the collision would not have happened if the street had not been in such defective condition. At the close of plaintiff's evidence, the court sustained a motion for a directed verdict in favor of the city. The case was reversed, the court saying:
"Under the evidence heretofore referred to, we think the court should have submitted to the jury the issue as to the defective condition of the street. The duty of the city with reference to its streets is a corporate duty."
The case was reversed and remanded. The opinion contains some irrelevant discussion by way of dicta in reference to the liability of cities in transporting policemen when they were not being transported in answer to a riot call, or something of that nature. The reversal, however, is upon the failure of the court to submit to the jury the issue as to the defective condition of the street.
This Jones case was again before this court (192 Iowa 99), in an opinion filed May 3, 1921. In commenting on the first opinion in the Jones case, this court says:
"As will be there seen [185 Iowa 1178], the reversing opinion concludes as follows: `Appellant contends that, even though the act in question was governmental, the concurrent negligence in permitting the defective condition of the street should have *Page 259
been submitted to the jury. Under the evidence heretofore referred to, we think the court should have submitted to the jury the issue as to the defective condition of the street. * * * For the reasons given, the judgment of the district court is reversed, and the cause remanded for further proceedings in harmony with the opinion.'"
The case was again reversed, solely because the court, in the second trial also, failed to submit to the jury the question of the city's negligence by reason of its defective streets.
In Bradley v. City of Oskaloosa, 193 Iowa 1072, in an opinion filed June 23, 1922, the plaintiff's decedent was killed when struck and run over by a fire engine belonging to the city, which was returning from a fire to the garage. This court said:
"A municipality is under no obligation to provide for a fire department in order to protect the property of its residents. Whether a city shall have its own fire department, or what shall be its character and extent, is governmental, and it is the recognized rule in this state that the employees in the conduct and operation of the fire department of a city are not the agents and servants of the city, but that they act as officers charged with a public service, for whose negligence no action will lie against the city. Saunders v. City of Fort Madison, 111 Iowa 102, with cases cited. See, also, Hillstrom v. City of St. Paul,134 Minn. 451 (159 N.W. 1076). * * * There is but one proximate cause of the death of plaintiff's decedent and the damages predicated thereon, and that is the negligent driving by the fireman in charge of the fire engine. This question has been answered on the theory of nonliability, under a rule heretofore announced by this court. That rule is controlling."
What was said in that case in reference to a fire department can equally well be said in this case in reference to a police department. Whether a city shall have a police department or what shall be its character and extent is governmental. Members of the police department are not agents and servants of the city in the sense that the city may be liable for wrongs committed by them in the discharge of their duties in that regard. Certainly, if, as is held in the Bradley case, a city is exercising its governmental function when a fire engine is returning to the *Page 260
garage after a fire, a city is, in the same way, and to a much more definite extent, exercising its governmental function when, under the order of the chief of police, its police patrol wagon is being driven by a police officer, in uniform, under orders, in service, in transporting other officers who had reported for duty in uniform and responded to roll call and were being conveyed from the police station to their respective beats. As was said in the Bradley case:
"The defendant city is merely an arm of the sovereign state, and in the exercise of its governmental functions its agents and servants, through negligence either of omission or commission, do not cast upon the municipality a civil liability unless the same is imposed by statute."
See, also, Norman v. City of Chariton, 201 Iowa 279, where numerous cases are collected and compared; Hensley v.Incorporated Town of Gowrie, 203 Iowa 388; Rowley v. City ofCedar Rapids, 203 Iowa 1245; Mocha v. City of Cedar Rapids,204 Iowa 51. A great many cases from other jurisdictions might be cited in support of this proposition. We will content ourselves with citing only a few. Aldrich v. City of Youngstown, 106 Ohio St. 342
(140 N.E. 164, 27 A.L.R. 1497); Engel v. City ofMilwaukee, 158 Wis. 480 (149 N.W. 141); Wilcox v. City ofRochester, 190 N.Y. 137 (82 N.E. 1119, 17 L.R.A. [N.S.] 741);Scibilia v. Philadelphia, 279 Pa. St. 549 (124 A. 273, 32 A.L.R. 981); Moulton v. City of Fargo, 39 N.D. 502
(167 N.W. 717); Jones v. City of New Orleans, 143 La. 1073 (79 So. 865);Miller v. City of Macon, 152 Ga. 648 (110 S.E. 873); Tzatzken v.City of Detroit, 226 Mich. 603 (198 N.W. 214).
II. It is the contention of the plaintiff that, by reason of a 2. MUNICIPAL change in Section 4863, Chapter 251, of the Code CORPORA- of 1924, as found in Section 4863, Chapter 251, TIONS: of the Code of 1927, the immunity from liability torts: for tort in the exercise of governmental legislative functions, in so far as the operation of motor change in vehicles is concerned, has been entirely classifica- eliminated. The said section, as found in the tion of Code of 1924, is as follows: police patrol: "The term `motor vehicle' shall include all effect on vehicles propelled by any power other than governmental muscular exemption. *Page 261
power, except traction engines, road rollers, fire wagons and engines, police patrols, city and town ambulances, city and government vehicles, clearly marked as such, and such vehicles as are run only upon tracks or rails."
In the 1927 Code, said section reads as follows:
"The term `motor vehicle' shall include all vehicles propelled by any power other than muscular power except traction engines, road rollers, and such vehicles as are run only upon tracks or rails."
It is plaintiff's contention that, inasmuch as fire engines and wagons, police patrols, city and town ambulances, and city and government vehicles, are now brought under the term "motor vehicle," therefore the immunity previously existing in this state, and so widely recognized in other jurisdictions, has been abrogated. Was it the intention of the legislature by the change in said Section 4863 to radically change the law of this state as it applies to the liability of cities and towns in the exercise of its governmental functions? In Sullivan v. School District,179 Wis. 502 (191 N.W. 1020), that court said:
"* * * it is not to be presumed that the legislature intended to abrogate or modify the rule of the common law by the enactment of a statute upon the same subject; it is rather to be presumed that no change in the common law was intended, unless the language employed clearly indicates such an intention. * * * In connection with what has been said, there is also the general rule, adopted both by this court and the Supreme Court of the United States, that general statutes are not to be construed to include, to its hurt, the sovereign."
In Balthasar v. Pacific Elec. R. Co., 187 Cal. 302
(202 P. 37, 19 A.L.R. 452), the Supreme Court of California was construing the provisions of the California Motor Vehicle Act. On the issue of specific and implied governmental immunity, the California court cites Justice Story of the Supreme Court of the United States in the case of United States v. Hoar, 2 Mason 311 (26 Fed. Cas. 329 [No. 15373]), in the use of the following language:
"`Where the government is not expressly or by necessary *Page 262
implication included, it ought to be clear, from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary, force to the government itself. It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.'"
See, also, In re Tidewater Coal Exchange, 280 Fed. 648.
In LaCock v. City of Schenectady, 224 A.D. 512
(231 N.Y. Supp. 379), that court had before it for consideration a statute reading as follows:
"Every owner of a motor vehicle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner."
The court said:
"In our opinion, this provision does not apply to municipalities when acting as agencies of the state. We have shown above the nature and extent of the immunity from action had by a city because of its acts or the acts of its officers performed while acting as a state agency in organizing and controlling a police force. An immunity so grounded admits of no exception other than that which the legislature has enacted; it is not taken away by legislation not specific in its meaning.(Matter of Hoople, 179 N.Y. 308, 311.) While the state may give its consent to be prosecuted by action, a general statute, by implication, does not give the required consent. Such consent must be expressed in unequivocal language. Consent to the prosecution of a city for its acts or omissions when, as the agency of the state, exercising general governmental powers conferred upon it, must be expressed *Page 263
with like language. I do not find such language in this act. It seems absurd to say that the legislature, by its general language in this section of the Highway Law, intended to change the long recognized rules which have application here."
Many other cases along the same line might be cited.
Chapter 251 of the Code of 1924, in which the said Section 4863 is found, contains the general Motor Vehicle Law and Law of the Road. The same chapter contains provisions in reference to applications for registration and license; it 3. STATUTES: provides for the display of number plates, the construction rights of the road in passing and meeting other and vehicles, and many other details too numerous to operation: mention. We think it is much more reasonable to general assume that the legislature removed fire wagons statutes: and engines, police patrols, city and town when ambulances, and city and government vehicles applicable from the exception contained in Section 4863 in to order that, to some extent, and so far as governmental applicable, the various provisions of the agencies. chapter might be applied to them, than that it was the legislative intention to remove the immunity then existing in favor of the municipality for the operation of such instruments in the exercise of its governmental functions. As we view the law, such change of public policy requires a definite legislative expression, and cannot be found by mere implication. There is here no such expression. The change in Section 4863 did not remove the immunities applying to such vehicles in Iowa.
III. So far as the appeal of the defendant Glen Crawford is concerned, the only error relied upon for reversal has to do with contributory negligence on the part of the plaintiff. We do not here decide whether the immunity belonging to 4. AUTOMOBILES: the municipality, in the exercise of its injuries governmental functions, applies also to the from driver of the police patrol. The question is not operation, argued, and we hereby especially reserve it. or use of highway: preference at intersecting points: contributory negligence.
All of the witnesses on behalf of the plaintiff who testified on the subject said they did not hear any gong sounded by the police patrol. The occupants of the Ford car testified that they did not see the words "Police Patrol" on the side of the vehicle. *Page 264
In other words, they did not know that a vehicle with any special rights was approaching the intersection, and therefore they assumed that it was coming at a rate of speed which would not have been negligent under the circumstances for any ordinary automobile. It was under such circumstances and with such knowledge that the Ford driver kept on driving north, assuming that he had plenty of time to pass the intersection before the vehicle from the east would arrive at the intersection. It is undisputed in the record that, at the time the Ford car reached the south side of the intersection, the police patrol was three quarters of a block east.
A jury might well find that, in the absence of any knowledge that the approaching vehicle was a police patrol, and in the absence of any knowledge of the sounding of a gong, or other similar warning from the police patrol, the driver of the Ford car was not guilty of contributory negligence in passing north through the intersection. There is in the record no evidence of any recklessness on the part of the Ford driver. The question of the contributory negligence of the plaintiff was submitted to the jury.
Under the circumstances disclosed in this case, we cannot say, as a matter of law, that the plaintiff was guilty of contributory negligence. That is the defendant Crawford's only claim of error on this appeal. It follows that the cause, so far as the defendant Crawford is concerned, must be, and it is, — Affirmed.
On the appeal of the city, the cause must be, and it is, —Reversed.
MORLING, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433728/ | This is the third appeal in this case. The two former appeals are Swan v. Dailey-Luce Auto Co., 221 Iowa 842, 265 N.W. 143, and Swan v. Dailey-Luce Auto Co., 225 Iowa 89, 277 N.W. 580. Verdict was for plaintiff. From *Page 882
judgment thereon and from ruling of the court overruling defendants' motion for new trial and exceptions to instructions, defendants appeal.
The facts are set out in the opinions in the former appeals, and the testimony was substantially the same at all the trials in the district court. In substance the facts are as given in this case as reported in 225 Iowa 89, 277 N.W. 580. The plaintiff in the former appeals, now deceased, a man over 77 years old, at about 10 p.m. on March 29, 1933, had walked to the street corner for the purpose of crossing to the west side of the street on which is located Highway No. 65. Before crossing he stopped on the edge of the street, under the glare of the floodlights of a filling station south of where he stood, and looked up and down the street. Seeing no car approaching, as he testified, he started rapidly across the street, 50 feet in width. The crossing at this place had two cement ends, at the east and west sides, which stopped at the shale covering the traveled way. He continued over the street without looking up, and when within one step of the opposite, or west, side was struck by defendants' automobile, which was approaching the crossing from the north at 20 or 25 miles an hour, and was traveling on the extreme west side of the street. The defendants' driver saw plaintiff standing on the edge of the street when 180 feet away. The view was unobstructed.
Plaintiffs in their petition alleged various grounds of negligence, of which only three were submitted to the jury: (1) Failure to have the defendants' car under control; (2) failure to keep a proper lookout; and (3) that "he drove and operated said automobile at a speed greater than permitted him to bring it to a stop within the assured clear distance ahead." On the trial no testimony was offered by the defendants. At the close of the testimony the court overruled defendants' motion for directed verdict. Verdict was returned for plaintiff as above stated.
[1] I. The defendants' first assignment of error is that the court erred in overruling defendants' motion for a directed *Page 883
verdict on the ground that plaintiff had failed to show himself free from contributory negligence, and that the entire record showed that the plaintiff was guilty of contributory negligence as a matter of law. Defendants in support of their contention cite a large number of authorities as to general rules governing contributory negligence, and with which we agree — among them the general rule as to contributing in any way or in any degree, burden of proof, the voluntary placing of oneself in a position of danger, the scintilla rule, the rule as to when contributory negligence becomes a matter of law, and other well-known rules. But the difficulty is in the application of these rules to the record. Defendants cite as sustaining their argument as to facts, among others, Lindloff v. Duecker, 217 Iowa 326, 331, 251 N.W. 698, 701, and Nyswander v. Gonser, 218 Iowa 136, 253 N.W. 829. An examination of the cases cited by defendants will show a different state of facts. Under a record practically identical with that of the present case, the holding of this court on the former appeal (225 Iowa 89, 277 N.W. 580) was that a jury question was presented as to contributory negligence. Defendants insist, however, that the facts of that opinion do not square with the record. This was brought to the attention of the court in the former appeal by a petition for rehearing. On the submission of this petition, a supplemental opinion by the court was entered, some correction made in the statement of facts, and the petition overruled. The differences between the record here and that stated in the opinion in the former case are very slight, such as the position of the witness Guinn Hedrick. The present record as to the testimony of three witnesses, Hedrick, Mills, and the plaintiff C.E. Swan, is identical in every respect with that given in the case reversed on the second appeal, having in this case been read from a transcript of former testimony, either on the first or second trial. A careful examination of the records in the various cases discloses no substantial variation. Under such a condition of the record we can do no more than hold, as was done on the former submission, that the question of contributory negligence was *Page 884
for the jury. See Swan v. Dailey-Luce Auto Co., 225 Iowa 89, 277 N.W. 580. Such ruling on appeal under the record is determinative of the question here. See Goben v. Des Moines Asphalt Pav. Co.,218 Iowa 829, 252 N.W. 262; White v. McVicker, 219 Iowa 834, 836, 259 N.W. 465, 466; Reimer v. Musel, 220 Iowa 1095, 264 N.W. 47; Spaulding v. Miller, 220 Iowa 1107, 264 N.W. 8; Blakely v. Cabelka, 207 Iowa 959, 221 N.W. 451; Pease v. Citizens State Bank, 210 Iowa 331, 228 N.W. 83; Doyle v. Jennings, 210 Iowa 853, 229 N.W. 853. We are satisfied that our former holding constituted the law of the case, and that the court was not in error in submitting the question of plaintiff's contributory negligence to the jury.
[2] II. Defendants claim that it was error for the court to submit to the jury the question of assured clear distance ahead. This question was determined in the two former appeals. In the second appeal we said (225 Iowa 89, 92, 277 N.W. 580, 582):
"That this was a jury question was determined upon the former appeal of this case, wherein we said: `Under the assured clear distance statute involved in this action, it was the court's duty, under the circumstances disclosed by the evidence in this case, to have instructed the jury that, if the defendant failed to drive his car at such a speed as to enable him to bring it to a stop within the assured clear distance ahead, then the defendant was guilty of negligence as a matter of law, unless he showed a legal excuse for not complying therewith, in accordance with the meaning of "legal excuse" as hereinabove referred to.'"
Under the same, or practically the same, state of facts, we must hold that the law announced on the former appeals continues to be the law of the case for subsequent trials. See Goben v. Des Moines Asphalt Pav. Co., supra, and other cases above cited. However, in relation to the statute as to assured clear distance ahead, we call attention to the recent opinions in Janes v. Roach, 228 Iowa 129, 290 N.W. 87, and Remer v. *Page 885
Takin Bros. Freight Lines, 227 Iowa 903, 908, 289 N.W. 477, 480, and cases cited. The court, under the record, did not err in submitting the third ground of negligence.
[3] III. The defendants complain of the giving of instruction No. 12, wherein the court quoted part of the statute, section 5029, Code of 1931, as follows:
"Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *."
Defendants insist that even if the court did not err in submitting the question of assured clear distance ahead it erred in the manner of submission in that it failed to divide the part of the statute quoted into two parts and instruct on the first half thereof. Under the familiar rule that instructions are to be read as a whole, the jury could not fail to know that the part of the statute referred to and as to which the defendants were claimed to be negligent was that which referred to the duty to stop within the assured clear distance ahead. Such was the third ground of negligence submitted in instruction No. 5, and with the two other grounds was referred to as the only grounds. Also in the first part of the instruction complained of the court specifically pointed out what plaintiff's claim was, as it did in defining the term "assured clear distance ahead" in the last part of the instruction. We do not think the jury was in any way misled or could fail to understand just what was plaintiff's claimed ground of negligence, in view of the whole instruction and other instructions given.
[4] IV. Instruction No. 13, following No. 12, in which the court refers to legal excuse which would excuse the failure to stop within the assured clear distance ahead, informs the jury that an emergency not of defendants' own making will *Page 886
constitute such legal excuse, under the rule given in Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, and adhered to in our subsequent decisions. That the emergency must not arise from the fault of defendant, must not be of his own creation, we think is fully established as the rule, and this seems to be the general purport of the instruction. We see no merit in the contention that the burden is cast upon defendants.
We do not find it necessary to rule upon plaintiff's objection that defendants throughout their brief and argument have failed to comply with Rule 30. Our holding, on the assignments submitted and argued, must be that we find no error requiring reversal, and the case is therefore affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433730/ | Pigeon creek runs in a southwesterly direction through Harrison and Pottawattamie counties, in this state, emptying into the Missouri river in Pottawattamie county. There have been organized along this natural water course three separate *Page 338
drainage districts, all of which have their outlet through this creek. The lower district along the Missouri river is known as Pigeon Creek drainage district No. 2 of Pottawattamie county. Immediately north of it and adjacent thereto is district No. 8 of Pottawattamie county, which extends to the northern boundary of Pottawattamie county. Immediately north of this and adjacent thereto is Pigeon Creek drainage district in Harrison county, Iowa. So we have three drainage districts, two of which are in Pottawattamie county, and one of which is in Harrison county, Iowa. The supervision of drainage districts is by law vested in the board of supervisors of the county in which they are located, or the districts may elect trustees who shall have control and supervision of each particular district to the same extent as the board of supervisors of the county in which the district is located.
It seems that trouble developed at the lower end or outlet of this creek, and the board of supervisors of Pottawattamie county in 1924 and 1925, by proper and legal means, proceeded to clean out and widen the outlet of this ditch and assess the cost thereof to the lower district, being Pigeon Creek drainage district No. 2. Some of the property owners in that district took exception to the action of the board and appealed to the district court of Pottawattamie county; the contention of these property owners being that the upper district, No. 8, in Pottawattamie county, was benefited and should be assessed for its proportionate share of the cost of the improvement. The district court sustained the action of the board of supervisors and dismissed the appeal. The property owners appealed from this decision of the district court to the Supreme Court. See Mayne v. Board of Supervisors, 208 Iowa 987, 988, 223 N.W. 904,225 N.W. 953. This court reversed the lower court, holding that the upper district, No. 8, received benefit and should bear its proportionate share of the expense, and remanded the case back to the district court, with directions that the board re-assess said land in accordance with the findings of the higher court.
Following this decision, the board of supervisors of Pottawattamie county appointed commissioners to make a re-assessment and re-apportionment, not only between the two districts wholly within Pottawattamie county, but among all three of these districts, one of which was over in Harrison county and which was not a party to the prior litigation. The commissioners *Page 339
made the apportionment and reported back to the board of supervisors, and the board confirmed the report and directed the auditor of Pottawattamie county to send the claim to the Harrison county board of supervisors for the amount determined by the commissioners to be due from Pigeon Creek drainage district in Harrison County, with the request that the board of supervisors of Harrison county take such action as was necessary to levy an assessment upon the property owners within the Harrison county district. The Harrison county board of supervisors refused to make any assessment on the basis of the apportionment, or any other basis, whereupon an action in mandamus was brought by the board of supervisors of Pottawattamie county, acting for the Pigeon Creek drainage district No. 2 in that county, against the board of supervisors of Harrison county, to compel it to make the assessment necessary to pay said claim.
It developed in the trial of said case that part of the work was done in the year 1924 and the remainder of the work was contracted for and the work done in 1925. The district court of Pottawattamie county denied the Pottawattamie board any relief as against the Harrison county board, and dismissed the mandamus suit. The board of supervisors of Pottawattamie county appealed to this court. It was held by this court, in an opinion by Justice Kindig, that, as to the claim for work which was done in 1924, the decision of the lower court was reversed, and, as to the cost of the improvement done under the contract let in 1925, the decision was affirmed; the basis of the distinction being a change in the law with reference to the apportionment and classification of the costs of such improvement. Prior to the Code of 1924 the apportionment and classification was made according to the volume of water discharged through the various ditches. In October, 1924, which was before the 1925 work had been authorized and contracts therefor let or entered into, this statute was changed and amended to the effect that "each district shall be assessed for the cost of such work in proportion to the benefits derived." Section 7563 of the 1924 Code (which is the same section in the 1931 Code). And, since the apportionment and classification of the entire improvement had been made according to the volume of water, as provided by law prior to the Code of 1924, without taking into account the change in the law, it necessarily resulted that the apportionment and classification was erroneous and invalid, in so far as the cost of improvement *Page 340
for the work done in 1925 was concerned. See Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, 214 Iowa 655, 683, 241 N.W. 14, 26. The concluding paragraph of the opinion in that case is as follows:
"Because of our conclusion in this case, it is apparent that the action of the district court in refusing to levy an assessment on the lands in the Harrison county district to cover the alleged portion of the costs for the 1925 improvement in Drainage District No. 2 must be affirmed, but the action of that court in disallowing the apportionment of costs for the 1924 improvement in that district is reversed. In fact, the allowance of the costs was made by the Pottawattamie board of supervisors in drainage district No. 2. Therefore, under the circumstances, the only action the Harrison county board can take is to spread an assessment over the lands in the Harrison county district to raise funds for the proper portion thereof, as determined by the Pottawattamie county board. It is not certain whether the district court can separate the items of 1925 from those of 1924. If not, it may take further testimony on that particular point alone, and for that purpose only the cause is remanded."
It will thus be observed that the only purpose for which that case was remanded was to determine, if necessary, by introduction of additional testimony, just how much of the cost of the work was incurred under the 1924 contract, so that judgment could be entered for the amount of cost of the work done in 1924, in accordance with the holding of the court. The record in the case at bar fails to show what was done by the district court in reference to the cost of the work for 1924 after the case was remanded. We must indulge the presumption that the lower court followed the direction of the mandate of this court and entered judgment for the proper proportion of the cost of the work which was done in 1924 against each of the three districts. If, and when, that was done, the result was to fully adjudicate all matters involved in the appeal presented to this court in that case, which included not only the cost of the improvement for the work done in 1924, but likewise included the cost of the work done in 1925.
Instead of this ending the controversy, we find that, shortly before the opinion was handed down in the above case, the property owners of Pigeon Creek district No. 2 held an election and *Page 341
elected trustees, in accordance with the provisions of chapter 358 of the Code (section 7674 et seq.). There is no claim but that the trustees were duly elected and organized according to law. By this action of the beneficial property owners of Pigeon Creek drainage district No. 2 of Pottawattamie county, the board of supervisors of that county was supplanted by the board of trustees so elected, in so far as the future control, supervision and management of said district was concerned. This board of trustees held a meeting, and passed a resolution, by which they found and determined that the cost of the work done in the year 1925 was $16,678.66, with interest thereon from November 1, 1929, and that said sum should be apportioned among all three of said districts in accordance with the benefits derived as contemplated by the provisions of section 7563 of the Code. Three commissioners were duly appointed to apportion said sum among the three drainage districts. The commissioners made their report and apportioned 17 per cent of the cost of said improvement to Pigeon Creek drainage district in Harrison county, 43 per cent to district No. 8 in Pottawattamie county, and 40 per cent against district No. 2 in Pottawattamie county. To this report objections were filed by the board of supervisors of Pottawattamie county on behalf of district No. 8 in that county and by the board of supervisors of Harrison county on behalf of the district in Harrison county. All objections were overruled, and the report of the commissioners was confirmed by the board of trustees of the Pigeon Creek drainage district No. 2. The boards of supervisors of both counties appealed to the district court. On June 5, 1934, a decree was entered by the district court dismissing said appeal. From this decree of the district court, an appeal has been taken to this court by the board of supervisors of Harrison county, the individual members of said board, and Pigeon Creek drainage district in that county.
The objections urged before the board of trustees may be summarized as follows: (1) That the board of trustees had no authority or jurisdiction to hear and determine any of the matters or to take any action as to any of the matters presented by the report. (2) That the appointment of the commissioners by the board of trustees was illegal and without authority of law, beyond the jurisdiction of said trustees and void, and that the apportionment made was not binding upon Harrison county. (3) That the apportionment was unjust, illegal, and inequitable *Page 342
as against Pigeon Creek drainage district in Harrison county. (4) That section 7563, "and the sections following," of the 1924 and 1931 Codes of Iowa, are null and void, for that they are unconstitutional and in violation of the equal protection clause and the due process clause of the Fourteenth Amendment to the Constitution of the United States. (5) That the only way provided by law for the apportionment of such costs, where districts are situated in more than one county, is contained in chapters 354 (section 7599 et seq.) and 354-A1 (section 7626-a1 et seq.) of the Codes of 1924 and 1931, providing for converting intracounty districts into an intercounty district; therefore the trustees have no authority or jurisdiction to make any apportionment of the costs or to take any action in regard to said costs and expenses of said improvement. (6) That said claim for said costs and expenses is now barred by the statute of limitations.
Transcript of all the proceedings before the board of trustees was duly certified by the clerk of said board of trustees to the district court, and the case docketed as an action in equity and tried on said transcript; no petition being filed. However, there was no objection raised on the ground that no petition was filed. The lower court dismissed the appeal and confirmed the action of the trustees, and, from this decree an appeal has been taken to this court. A reading of the decree would indicate that the trial court as well as the trustees had a misconception of the effect of the holding of this court in the case of Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, 214 Iowa 655, 241 N.W. 14. We find this language in the decree of the trial court:
"The decision of the Supreme Court finally disposed of the assessment against the Harrison County District for the cost of the repairs made in 1924, and remanded the case to the District Court to apportion the costs for the improvements made in 1925among said three districts."
This is exactly what this court in that opinion was careful not to do. That case was remanded for the sole and only purpose of determining what portion of the cost of the improvement was for work done in 1924, and the case was remanded for that purpose alone, and there is nothing said in the opinion in that case to the effect that the case was remanded to the district court for *Page 343
the purpose of apportioning the cost of the improvement made in 1925. The decree continues:
"On December 22d 1932, after this case was decided by the Supreme Court, and in order to carry out the terms of itsdecision, the Board of Trustees of said District No. 2 appointed commissioners to apportion the cost of said improvements made in 1925 among said three districts."
There was no such mandate in the decision of this court in said case. It is true the amount of the cost of the entire improvement for both years was involved in said prior case and the apportionment for 1925 was held illegal because not made in accordance with the benefits conferred, as provided by section 7563 of the Code. That constituted a complete and final adjudication with reference to the claim covering the cost of the improvement made in the year 1925.
Pigeon Creek drainage district No. 2 of Pottawattamie county is back here again with the same claim, based upon what they now contend is an apportionment of the cost of the improvement done in 1925 according to the benefits. The district in the former case was represented by the board of supervisors of Pottawattamie county. The district in this case is represented by the successor of said supervisors in representation, namely, the board of trustees of said district No. 2. Appellants urge against the decree of the trial court all the objections made before the board of trustees, and, in addition thereto, urge res adjudicata— their chief complaint, however, being that the board of trustees had no authority to bind a district outside of its own county; that the trustees were disqualified because they were freeholders in district No. 2; that the only method of procedure provided by the statutes of this state where districts are in two different counties is by converting them into an intercounty district organization, under the provisions of chapter 354-A1 of the Code; and, in the alternative, they contend that, even though such trustees were authorized to make the apportionment, there is no evidence in the record that the apportionment was made in accordance with the benefits.
One of the objections urged before the board of trustees was that the claim of Pigeon Creek drainage district No. 2 against Harrison county for said costs and expenses was barred by the statute of limitations, and we will first give our attention to the *Page 344
determination of this question. This point is not pressed in argument but is an issue in the case, and, as we view the law, is a complete defense to appellees' right to recover. This is a trial de novo, and we are required to consider all questions of fact or law raised by the issues in the trial court. Manning v. Ottumwa Auto Co., 210 Iowa 1182, 1187, 232 N.W. 501; Geil v. Babb, 214 Iowa 263, 267, 242 N.W. 34. When did a cause of action or right to recover for the proper portion of the costs of this improvement accrue to Pigeon Creek drainage district No. 2 against Pigeon Creek drainage district in Harrison county? It is conceded that the work was done in 1925. After the work was done, the board of supervisors of Pottawattamie county found and determined the amount of the costs of said improvement and apportioned the entire cost against said district No. 2, instead of apportioning it among all three districts. If the right existed to apportion the same against Pigeon Creek drainage district in Harrison county, it existed at that time when the first apportionment was made in 1925. This court held, in the case of Mayne v. Board of Supervisors, 208 Iowa 987,223 N.W. 904, 225 N.W. 953, that the right existed, and that Pigeon Creek drainage district No. 2 had a valid claim against the upper districts. Will the fact that the board of supervisors made a mistake in the manner of determining the proper apportionment of the costs to be recovered toll the statute of limitations?
After the Mayne case, supra, was remanded, with directions that the board re-assess the land in both district No. 2 and district No. 8 in Pottawattamie county, a new classification and apportionment was made not only between district No. 2 and district No. 8 in Pottawattamie county, but such apportionment included Pigeon Creek drainage district in Harrison county. The Pottawattamie county board of supervisors on November 1, 1929, reviewed the findings of the commissioners and made an apportionment among the three districts in accordance with the recommendation of the commissioners appointed to make the reapportionment, but again they made it on the wrong basis, as to the work done in 1925, as was determined by this court in the case of Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, 214 Iowa 655, 241 N.W. 14. The question of the bar of the statute of limitations was not an issue in that case. On December 22, 1932, when the last apportionment was made according to the benefits, in accordance with *Page 345
the statute in force when the work for 1925 was done, more than five years had elapsed since the claim arose and the right of action accrued thereon in favor of Pigeon Creek drainage district No. 2. We know of no statutory provision applicable which would toll the statute of limitations or which would preserve appellees' cause of action until the apportionment of said costs was made in accordance with the statute.
It must be kept in mind that the former suit of Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, supra, was a mandamus suit to compel the board of supervisors of Harrison county to levy an assessment against the land in the drainage district in that county for the proportionate share of said costs that were apportioned to that district, while this suit is an appeal from the order of the board of trustees of Pigeon Creek drainage district No. 2 of Pottawattamie county, confirming the report of the commissioners appointed to make a reappraisement and apportionment of the cost of said improvement made in the year 1925 among said three districts, which final order of the board of trustees was made on February 4, 1933, and under the statute such appeals are triable as in equity. Code, section 7522; also Code, section 7559. The order recites:
"* * * that the Auditor of Pottawattamie County, Iowa, furnish and send to the Board of Supervisors of Harrison County, Iowa, a copy of this order and request that Board to take such proceedings as may be necessary to assess and levy upon the lands, highways, railroad rights of way and railroad companies owning the same and the property subject to assessment in said Pigeon Creek Drainage District in Harrison County, Iowa, the sum of money above set forth that is apportioned to said drainage district in Harrison County in manner as required by statute," etc.
A similar request or demand was made in 1929 at the time the second apportionment was made. If this claim was barred by the statute of limitations, then there existed no legal claim against Harrison county or Pigeon Creek drainage district in Harrison county which could be the proper basis of an order directing Harrison county to levy an assessment for the payment of such apportionment.
In the case of Prescott v. Gonser, Auditor, etc., 34 Iowa 175, *Page 346
179, a mandamus suit to compel the auditor to affix the seal of the county to certain warrants and to which action demurrer was filed on the ground that the action was barred by the statute of limitations, the court said:
"It is insisted, by appellant's counsel, that the right of action did not accrue against the defendant until demand of performance and refusal, which is alleged to have occurred on the 25th day of October, 1870, and that the statute then only commenced to run. That the action of mandamus cannot be maintained until there has been a refusal to perform the official duty sought to be enforced is true, but to hold that a plaintiff, who has a right to demand performance at any time, may delay such demand indefinitely, would enable him to defeat the object and purpose of the statute. It is certainly not the policy of the law to permit a party, against whom the statute runs, to defeat its operation, by neglecting to do an act which devolves upon him, in order to perfect his remedy against another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character. He could neglect to claim that to which he is entitled, for even fifty years unaffected by the statute of limitations, thereby rendering it a dead letter. In such a construction of the statute we cannot concur.
"In Baker v. Johnson County, 33 Iowa 151, it was claimed, by counsel for plaintiff, that since the law gave him the right to sue the county only after he had presented his claim to the board of supervisors, and they had refused to allow it, the statute of limitations did not commence to run until such demand and refusal; but it was held, that the presentation of his claim tothe board was a preliminary act, devolving upon him in theinstitution of the proceedings for the collection of his claimagainst the county, which he might do at any time after his claimmatured, and hence the statute commenced to run from the time ofthe maturity of the debt." (Italics ours.)
This case was cited with approval in the case of Lovrien v. Oestrich, 214 Iowa 298, 242 N.W. 57, a suit on a demand note, where the court held that:
"A creditor may not by his own act or neglect delay or postpone the running of the statute." *Page 347
In the case of Wilson v. Stipp, 194 Iowa 346, at page 351,189 N.W. 665, 666, our court cited with approval this statement from 25 Cyc. 1199:
"Where, although the cause of action itself has accrued, some preliminary step is required before a resort can be had to the remedy, the condition referring merely to the remedy, and not to the right, the cause will be barred, if not brought within the statutory period; therefore the preliminary step must be taken within that period." See, also, Lougee v. Reed, 133 Iowa 48,110 N.W. 165.
In the case of Lenehan v. Drainage District, 219 Iowa 294, 297,258 N.W. 91, 92, an action in mandamus brought by the holders of certain drainage warrants against the drainage district to compel them to levy an assessment for a deficiency, the defendants pleaded the statute of limitations and alleged that, "notwithstanding such deficiency, the appellants failed to exercise the right of demanding the additional assessment, and neglected, for a period of more than three years before the present suit was commenced, to follow such demand with the necessary action in mandamus," and we held the action was barred. See, also, Stockholders Investment Co. v. Town of Brooklyn,216 Iowa 693, 246 N.W. 826.
It is also necessary to keep in mind that the trustees of the Pigeon Creek drainage district No. 2 had no legal right to makean assessment for said costs against the property owners in Pigeon Creek drainage district in Harrison county. The right to levy the tax does not exist outside of the county in which the district is located. That right was in the board of supervisors of Harrison county. The right to make the improvement and to determine and fix the amount due from each district under the terms of the statute, according to our prior holdings, was with the board of supervisors in the county where the district in which the repairs, etc., were made was located, or, in this instance, with the board of trustees of Pigeon Creek drainage district No. 2 in Pottawattamie county. When that was done, a claim originated against the district in the other county. To say that that claim could lie in abeyance from 1925 until December 22, 1932, before a proper apportionment of the cost was determined, as by law provided, and that the statute of limitations did not begin to run until such apportionment was properly *Page 348
made, is contrary to reason and not sound in principle, and is not supported by any authority brought to our attention, and is in fact contrary to the holdings of this court in the cases heretofore referred to, and appellees have cited us to no authority to the contrary.
It therefore follows that the action was barred by the statute of limitations, and the case must be reversed. The conclusion we reach upon this question makes it unnecessary for us to pass upon the other questions presented and argued in this case. — Reversed.
DONEGAN, C.J., and ANDERSON, KINTZINGER, PARSONS, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433735/ | An instrument purporting to be the last will and testament of Columbus H. Warren is as follows:
"I, Columbus H. Warren, of Sanders County, Montana, do make this my last will and testament, hereby revoking all former wills, if any, by me at any time made. *Page 941
"To my mother, Agnes Duncan, I give all my property, real and personal wherever located, of which I may die seized, to be her own absolutely and without reserve of any kind.
"I hereby nominate my mother, Agnes Duncan, as executrix of this my last will and testament, and request the court to appoint her without bond.
"In witness whereof I have to this my last will and testament, consisting of one sheet of paper, subscribed my name this 14th day of June, 1916."
The petition in this case was filed by Louis R. Warren, administrator with the will annexed of the Columbus H. Warren estate. The said Louis R. Warren, individually, and his brother, F.W. Warren, joined said administrator with the will annexed, asking for the same relief. The petition is attacked by motion to dismiss, in the nature of a demurrer, which, under the law, for the purposes of said motion, concedes the facts well pleaded in the petition to be true. We glean from the petition the following facts: Columbus H. Warren, a resident of Page County, Iowa, died September 3, 1928. Administration of his estate was commenced in Page County, on the theory that he died intestate. Louis R. Warren was appointed administrator of his estate. Thereafter, there was discovered the foregoing will of said deceased, which was duly admitted to probate in the Page County district court on February 27, 1929, and Louis R. Warren was appointed administrator with the will annexed. Said decedent was never married, and had no lineal descendants. At the time of the execution of the aforesaid will, the father of said decedent was dead, and his mother, Agnes Duncan, then living, was his sole heir apparent. The mother died in November, 1916. The father of the decedent died years ago, leaving Agnes Warren as his surviving widow, and his sons, the decedent and the plaintiffs Louis R. Warren and F.W. Warren, as his sole heirs at law. After the father's death, the mother, Agnes, married one E. Duncan, and by this latter marriage there were five children, who, or the lineal descendants of those deceased, are parties defendant in this cause of action. Mary Browning, Myrtle Fay, and J.T. Duncan, two half sisters and a half brother of the deceased's, were living at the time of his death. Charles Duncan, a half brother of the deceased's, died intestate before the date of the testator's death, leaving the defendant Avis Duncan Harvey as his sole *Page 942
heir-at-law. I.E. Duncan, another half brother of the deceased's, died intestate before the death of the testator, leaving as his only heirs at law, the defendants Austin E. Duncan, Zilpha Duncan, Lewis Duncan, Pearley Duncan, Adrian Duncan, Hewitt Duncan, Robert Duncan, Charles Duncan, and Mildred Duncan. In addition to the foregoing facts, it is averred in the petition:
"That, by reason of the fact that the said will of Columbus H. Warren purported to give to his mother, Agnes Duncan, who was his sole heir, the same title, both as to quantity and quality, and in all other respects, in his property which she would have received, had he died intestate and survived by her, it is the contention of this administrator with will annexed (joined in by the other plaintiffs) that the said will is void as to said devise, and that the said Agnes Duncan never would have taken anything thereunder, had she survived the said Columbus H. Warren. He further shows the court that, on the death of the said Agnes Duncan, any claim she might have had, or which anyone might have had, under said purported will, lapsed, and that the property of the said Columbus H. Warren should be distributed (after payment of all just claims) as though said instrument or will had never been executed. That, by reason thereof, the said full brothers, Louis R. Warren and F.W. Warren, take an undivided half of said estate, to be divided equally between them, and that the remaining half should be divided as follows: To Louis R. Warren, F.W. Warren, Mary Browning, Myrtle Fay, J.T. Duncan, and Avis Duncan-Harvey, each an undivided one-seventh (1/7) interest in said remaining half; and to Austin E. Duncan, Zilpha Duncan, Lewis Duncan, Pearley Duncan, Adrian Duncan, Hewitt Duncan, Robert Duncan, Charles Duncan, and Mildred Duncan, jointly, an undivided one-seventh (1/7) interest in said remaining half; or that each of said last-named children take an undivided one-one-hundred-twenty-sixth (1/126) interest in the total estate. That a contention has arisen among the parties above named as to the interests of each in said estate, it being claimed by some that the said will is valid, and that, on the death of the devisee, Agnes Duncan, her heirs should be substituted in her stead, and the estate divided accordingly; that, by reason of said controversy, it is necessary that said will be construed by the court, and the proper distribution of said estate fixed and determined." *Page 943
The plaintiffs pray therein that the rights of the parties be fixed as therein alleged and contended for.
The proposition raised by the defendant's motion to dismiss is that the petition on its face, in conjunction with the statutory law, Section 11861, Code, 1927, shows that each of the living children of the mother is entitled to one seventh of the entire estate, and that Avis Duncan Harvey, the surviving daughter of Charles Duncan, deceased, is entitled to an undivided one seventh of said estate, and that the aforesaid children of I.E. Duncan, deceased, are together entitled to an undivided one seventh of said estate.
The trial court, from the facts averred in the petition, held:
"That said last will and testament of said Columbus H. Warren, deceased, devised and bequeathed to said Agnes Duncan the same property, both real and personal, both as to quantity and quality, that she would have inherited from him, had he died intestate, and said Agnes Duncan survived him; that, had said Agnes Duncan survived him, she would have taken from him all of his property, both real and personal, by the worthier title by descent, and not under said last will and testament; that said provisions in said last will and testament in favor of said Agnes Duncan are a nullity, and of no force or effect; that, said Agnes Duncan having died prior to said Columbus H. Warren, her heirs at law would be entitled to no more under said will than said Agnes Duncan would have taken, had she survived him: in other words, said will being a nullity and of no force or effect, so far as Agnes Duncan was concerned, it would be of no more force or effect in favor of her heirs."
Thus it is seen that the court fixed the shares of the parties to this litigation in accordance with the averments of the petition.
Section 11860, Code, 1927, provides that the word "devisee" shall, when applicable, be construed to embrace "legatees," and that the word "devised" shall, in like cases, be understood as comprising the word "bequeathed." Section 11861, Code, 1927, provides:
"If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest."
It is the contention of the appellants that, by the terms and *Page 944
provisions of the will of the deceased, Agnes Duncan was his devisee, within the meaning of the aforesaid statutory provision, and that, by reason thereof, her heirs will now take the property.
On the other hand, the appellees contend that since, without the devise to Agnes Duncan by the will, she would have taken under the law the exact estate, both in quantity and quality, as given by the will, the estate would pass, not under the will, but under the "worthier title" by descent; and that the devise and bequest is a nullity, ineffective, and void. In support of their contention, they cite 4 Kent's Commentaries (14th Ed.) *506; 28 Ruling Case Law 235; 6 Greenleaf's Cruise on Real Property, Title 38, Chapter 8, Sections 1-15; 14 Cyc. 55; Moninger Ringland v.Ramsey, 48 Iowa 368; Rice v. Burkhart, 130 Iowa 520; In re Estateof Davis, 204 Iowa 1231; In re Will of Watenpaugh, 192 Iowa 1178;Herring v. Herring, 187 Iowa 593; Tennant v. Smith, 173 Iowa 264;Wiltfang v. Dirksen, 295 Ill. 362 (129 N.E. 159); Darst v.Swearingen, 224 Ill. 229 (79 N.E. 635, 115 Am. St. 152); Stilwellv. Knapper, 69 Ind. 558 (35 Am. Rep. 240); Robertson v.Robertson, 120 Ind. 333 (22 N.E. 310); Thompson v. Turner,173 Ind. 593 (89 N.E. 314, Ann. Cas. 1912A 740); Wheeler v. Loesch,51 Ind. App. 262 (99 N.E. 502); Dillman v. Fulwider,57 Ind. App. 632 (105 N.E. 124); McIlvaine v. Robson, 161 Ky. 616
(171 S.W. 413); Tyler v. Fidelity Columbia Tr. Co., 158 Ky. 280
(164 S.W. 939); Thompson v. Thornton, 197 Mass. 273 (83 N.E. 880). It is said by Chancellor Kent, in 4 Kent's Commentaries (14th Ed.) *506:
"A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise."
In 6 Greenleaf's Cruise on Real Property, Title 38, Chapter 8, Section 2, the author states:
"With respect to the first sort of devises that are void abinitio, it is a rule of law that, where a testator makes the samedisposition of his estate as the law would have done, if he had been silent, the will, being unnecessary, is void."
In Denny v. Denny, 123 Ind. 240 (23 N.E. 519, 521), the court made the following pronouncement: *Page 945
"In such a case, the law takes the preference and casts the estate, and the will is inoperative."
In Post v. Jackson, 70 Conn. 283 (39 A. 151, 153), the court said:
"If property is left to the testator's heirs in the same manner and proportion in which they would take, were there no will, the rule of law is that they take as heirs, and not as devisees. The former is deemed the worthier title."
In Robertson v. Robertson, 120 Ind. 333 (22 N.E. 310), the court used the following language:
"The children of the testator took by inheritance or descent from their father, because, by the terms of the will, they were given precisely the same interest and estate in his real and personal property as they would have taken if the particular devise or bequest to them had been entirely omitted from the will. The rule is that if, without the devise or bequest, the heir would take exactly the same estate or interest which the will purports to give him, he is to be considered as having taken by descent, and not by purchase or under the will."
In Wheeler v. Loesch, 51 Ind. App. 262 (99 N.E. 502), we find the following pronouncement:
"So a will which makes no other disposition of property than the law would make is a nullity, and not subject to contest."
(Writer's italics.)
In Darst v. Swearingen, 224 Ill. 229 (79 N.E. 635, 115 Am. St. 152), it is aptly declared:
"* * * that a devise giving precisely the same estate and interest in property as the devisee would take by descent if the devise had not been made is void, for the reason that a title by descent is regarded as a worthier and better title than a title by purchase."
In Moninger Ringland v. Ramsey, 48 Iowa 368, the point involved was as to whether or not the devisee's interest in the homestead property of the ancestor was exempt. The will devised the real estate to the same persons and in the same proportions *Page 946
as would have been the result by inheritance. We there said:
"F.C. Wood was a widow, and the devise to her children did not divert the homestead. No other disposition of the property was made by the will than that made by the law of descents. The question presented must be determined precisely as if no will had been made * * *."
In Rice v. Burkhart, 130 Iowa 520, another case involving exemption to a devisee in the homestead property coming from the ancestor, this court made the following pronouncement:
"Had the testator devised the property to all his sons so that each would have taken precisely as though no will had been executed, it would have been exempt from the prior indebtedness of each. Moninger v. Ramsey, 48 Iowa 368. But not necessarily because of the insertion of the clause `unless otherwise directed by will' [a statutory provision]; for without that, the rule prevails that, when property is left to the testator's heirs in the same manner and proportion in which they would have taken, were there no will, they take as heirs, and not as devisees, the former being deemed the worthier title. Gilpin v. Hollingsworth,3 Md. 190 (56 Am. Dec. 737); Post v. Jackson, 70 Conn. 283
(39 A. 151); Davidson v. Koehler, 76 Ind. 398; 14 Cyc. 55. In such a case the property descends according to the rules of descent, the same as though no will had been executed, and the clause would have no effect."
In Tennant v. Smith, 173 Iowa 264, the will of the wife provided for her husband as follows:
"First, — I give and bequeath to my husband, Jonathan Duncan, such share of my estate as he is entitled to have and receive under the laws of the state of Iowa."
The husband predeceased the testatrix, and his heirs contended that, under the will, the testatrix devised to her husband one half of the estate, and that they were entitled to the same by reason of the provisions of Section 3281, Code, 1897 (now Section 11861, Code, 1927, hereinbefore quoted). We there held that by the terms of the will a contrary intent is manifest, etc. We there said: *Page 947
"Had he survived her, he would have taken title under the law, which would be the paramount title, rather than under the will, in view of the fact that the provision for him in the will is exactly the provision which the law would make for him."
In Herring v. Herring, 187 Iowa 593, the will of the wife provided for the husband as follows:
"* * * I give, and bequeath to my husband, Peter Rohret, all that share or part of my estate, real, personal and mixed, which would go to him under the statute of distribution of this state, if I should die intestate, neither desiring to increase nor curtail his said distributive share or interest in my estate, but intending to leave him to take just so much as the law gives to a surviving husband in cases of intestacy."
The husband predeceased the testatrix, and his heirs contended that they were entitled to one third of said estate, under the aforesaid statute. We held that our pronouncement in Tennant v.Smith, 173 Iowa 264, was determinative of the rights of the parties, saying:
"It is well settled that, where a devise in a will gives the same estate to the devisee that he would take under the statute of descent, if there were no will, the benficiary in such case still takes the `worthier title' by descent, and not under the will. [Citing cases.] In the Tennant case, we applied this rule to the statutory right of a surviving husband to a distributive share. The situation, then, presented in the case at bar is this: If Peter had survived his wife, he would have taken his statutory share under the statute, and the devise in the will of the testatrix would have been deemed a nullity. Peter would take nothing thereunder. If Peter, as a surviving husband, would have taken nothing under such devise, can his heirs occupy any better position than he? Can such devise be effective as to the heirs, and yet a nullity as to the ancestor under whom they take?"
In In re Will of Watenpaugh, 192 Iowa 1178, we held that, under the will therein involved, the wife of the testator, who predeceased him, would have been entitled, under her husband's will, to an estate greater in quantity than she would have been entitled to under the law, and consequently that her heirs, under the statute sought to be invoked herein by the appellants, were *Page 948
entitled to that portion of the estate. We there said, after quoting the rule announced in the Herring case, and hereinbefore quoted:
"If it be true that, under the terms and provisions of the will, the widow of the testator, if she had survived him, would have taken under the will exactly the share in the estate of the testator which she would have taken under the statute, had there been no will, then it follows that she would have taken such share by descent, and not by devise or purchase. * * * The will gave her more than the law would have given her, and, had she survived the testator, she would have taken more under the will than she could have taken under the statute. That being true, the rule invoked that she would take under the law as the worthier title does not apply, and the heirs of the predeceased legatee are entitled, under Section 3281 of the Code [now Section 11861, Code, 1927] * * *."
In In re Estate of Davis, 204 Iowa 1231, we held that, under the will therein involved, the wife of the testator, who died prior to the death of the testator, took an estate different from what she would have been entitled to under the law, and that her heirs were entitled, under the statute hereinbefore quoted, to that portion of the estate devised or bequeathed to her, saying, after again quoting the rule announced in the Herring case:
"In order to bring the case within this rule, it is essential that the provision for the surviving spouse under the will should be identical in quantity and quality with the statutory provision to the same end. If such respective provisions be identical in the given case, then the beneficiary would be deemed to take under the statute, as conferring the `worthier title,' and the provision of the will would be deemed nugatory or canceled thereby."
That the taking of property under the "worthier title" rule applies to bequests of personal property, as well as to devises of real estate, see In re Estate of Davis, 204 Iowa 1231;Robertson v. Robertson, 120 Ind. 333 (22 N.E. 310); Dillman v.Fulwider, 57 Ind. App. 632 (105 N.E. 124); Parsons v. Winslow,6 Mass. 169 (4 Am. Dec. 107); and other cases hereinbefore cited.
While, as a general rule, a will is said to speak as of, or from, the death of the testator, yet this relates to the effect and operation of the instrument; but the will should be construed as of the date *Page 949
of its execution. In re Estate of Best, 206 Iowa 786; 40 Cyc. 1425. Agnes Duncan, the mother of the testator, was the sole heir apparent of the testator, and entitled to his entire estate by inheritance. See Sections 12017 and 12024, Code, 1927. The execution of the will was sufficient to constitute revocation of all former wills. The will gives her all of testator's property, "absolutely and without reserve of any kind," — the exact estate in quantity and quality to which she was entitled, without the provisions for her in the will, under the "worthier title" by descent. Under the doctrine of the authorities herein cited, — and the appellants cite us none, and we have found none, to the contrary, — the provisions of the will in behalf of Agnes Duncan, the mother of deceased, were ineffective and a nullity. Had she survived the testator, she would have taken the property by descent, and not by purchase, as a devisee under the will. The provisions of the will in her behalf as a devisee having been at all times void, ineffective, and a nullity as to Agnes Duncan, it is equally so as to appellants, claiming thereunder and through her. Their status in this respect must be identical with, and no better than, that of Agnes Duncan, through whom they claim. The provisions of the will in her behalf as a devisee cannot be a nullity as to her and effective as to them. See Herring v.Herring, 187 Iowa 593; In re Will of Watenpaugh, 192 Iowa 1178;In re Estate of Davis, 204 Iowa 1231; Tennant v. Smith, 173 Iowa 264; and all of the other authorities hereinbefore cited. Had Agnes Duncan survived the testator, she could not take as a devisee under the will, as her title would have accrued by descent, under the "worthier title" rule, — a definite, positive, and universally recognized rule of law. Her rights in the property under the will were at all times identical with her rights under the law. As said in In re Estate of Davis, 204 Iowa 1231
:
"Such identity of provision is deemed sufficient evidence of an intent on the part of a testator that the devise should lapse if the spouse [mother] should predecease him."
It follows that the judgment of the trial court is correct, and the same is hereby affirmed. — Affirmed.
All the justices concur. *Page 950 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433896/ | The accident causing the injury for which damages is sought to be recovered in this action occurred about 12:30 a.m. on November 15, 1936, at which time the plaintiff, *Page 1227
a man 52 years old, was walking in a westerly direction along the right half of the paved portion of Hickman Avenue, an arterial drive or street across the city of Des Moines, Iowa. Plaintiff was on his way home from a club room where he had spent the evening. He entered Hickman Avenue at about 21st Street and had traversed about nine blocks toward the west on this avenue and had reached a point beyond the intersection of 30th Street and Hickman Avenue when he was struck by the defendant's car approaching him from the east. At the same time, there was another car traveling in an easterly direction which had reached a point 20 or 25 feet west of the place of the accident traveling on its right hand side of the pavement which would necessarily require these two cars to meet and pass each other very close to the point where the accident occurred. The night was cloudy and plaintiff was clothed in blue overalls, a blue shirt and a dark colored zipper jacket. There are no sidewalks on either side of the street in the vicinity of this accident. On each side of the street are telephone and electric light poles and numerous tall trees. The paving is 21 feet in width with 6 feet of parking space from the edge of the paving to the lot line. There are houses along the north side of the street and the yards or lawns run out substantially level to the pavement and, while the general character of the parking space is shown to be more or less rough and irregular, the plaintiff testified that "it is somewhat level on the north side where I was struck." There is a hill or knoll, the peak of which was 200 feet east of the point of the accident, which slopes off to the east so that a car coming from the east would not be able to see the plaintiff until it had reached the top of this elevation. The incline toward the west was very gradual appearing to the naked eye to be almost level. There were street lights on some of the telephone poles along this street and one of these lights was on the next pole a short distance west of the point of the collision. The grounds of negligence, briefly stated, are: (1) failure to keep a proper lookout, (2) failure to drive at a careful and prudent speed, (3) driving at a speed in excess of the legal limit of 25 miles per hour in a residential district of the city, (4) failure to have the car under control and to reduce speed to a reasonable and proper rate when approaching and passing the plaintiff, and (5) failure to sound a horn or other signaling device. By motion to direct a verdict at the close of the plaintiff's evidence, the *Page 1228
defendant challenged the sufficiency of the evidence to establish (a) the negligence of the defendant in any of the particulars specified in the petition and (b) plaintiff's freedom from contributory negligence. This motion was sustained and it is from this ruling of the court that the plaintiff has appealed.
It will thus be necessary to briefly review the plaintiff's evidence. The only witness placed on the witness stand was the plaintiff. That we may have the full benefit of plaintiff's version, we set out, in so far as practical, his own language, as follows:
"It was not a very cloudy night. It was calm, still, not what you would call a dark night and still it was not moonlight. The paving was dry. I had been walking on the north side of the road about four feet from the north edge of the paving all the time and came up over the hill and got to the place where the accident happened. Two or three cars had passed me and I saw a car coming from the west. It was over on the right hand side of the road going east. I also heard one coming from behind me to the east.I did not turn around to see whether it was a car or a truck orwhat it was. I heard the sound of the motor and saw the lights reflected from the pavement and I knew a car was coming. It sounded as if it were coming pretty fast. I did not know how faraway the car was when I heard it but it sounded as if it were quite a ways away. I kind of looked around, just partly around,but not far enough to see how far away it was. I turned just partly around. There was a car coming from the west and I saw the head lights. That car was traveling on its own south half of the pavement. It had not passed me yet. I hardly think it was even with me at the time I was struck. There was about 8 or 10 feet clearance between me and the oncoming west car — sufficient room for the car from the east to have passed me. The car from the west had lights on. I started across the pavement. I did not walk slow, I just stepped across. At the moment I was struck I was not walking due north. I was just sort of angling off across thepaving; I was traveling northwest. I started to step over three or four feet and as I stepped toward the curb, I got hit on the right side. I was just ready to take my next step up on the curb when I was struck. I was probably four feet from the curb when I first noticed there was a car coming and I started *Page 1229
edging over toward the curb at once. I was familiar with the street and in the daytime it carried considerable traffic. I knew it was a cross town arterial street. There was no intersection where this accident happened." (Italics ours.)
The foregoing, with the addition of three exhibits being two photographs and a plat of the scene of the accident, constitutes all the plaintiff's evidence.
After a careful analysis of the plaintiff's own story and after giving his testimony the most favorable interpretation possible in support of his contention, we see no escape from the conclusion which the trial court reached, namely, that there was insufficient evidence of the negligence of the defendant and of plaintiff's freedom from contributory negligence to warrant the court submitting the case to the jury. The rules of law applicable are set forth in Lindloff v. Duecker, 217 Iowa 326,251 N.W. 698, and Taylor v. Wistey, 218 Iowa 785, 254 N.W. 50, in which cases will be found a very thorough and careful analysis of the law relating to the duties and obligations governing a pedestrian upon the highway and it would serve no useful purpose to again enter into an extended discussion of the matter. Under the rules of law therein announced, the decision of the trial court must necessarily be affirmed.
In the Lindloff case, we said [page 329 of 217 Iowa, page 700
of 251 N.W.]:
"In traveling on the right side of the pavement, it is the duty of a pedestrian to protect himself from the rear by looking backwards * * *. He may assume that persons approaching him from either direction will not violate the law and will exercise ordinary care in keeping a lookout for him. This, however, does not relieve him from the duty of keeping a reasonable lookout, for his own safety, for vehicles approaching him from the rear as well as from the front. * * * The exercise of ordinary care on decedent's part * * * should have required him to look behind, especially when he must have known a car was approaching him from the rear." In the same case, we said: "* * * the safest place for a pedestrian to travel is near the extreme edge of his left side facing the oncoming traffic."
This rule governing pedestrians in traveling upon the highway has since been enacted into our statute by the legislature. Section 354-a, ch. 134, 47th G.A. *Page 1230
[1] Plaintiff, in the exercise of reasonable care and prudence, must have known that these two cars would necessarily have to pass each other at or near where he was walking on the paving and that the car from his rear would be forced to occupy the north half of the paving in so doing. When he saw the reflection of the lights and heard the motor of the car behind him, ordinary care and prudence for his own safety would require that he immediately ascertain, as near as he could reasonably do so by his faculties, the proximity of the car to him and to govern his conduct accordingly. If he chose not to look, he should have at least speedily removed himself from the place of danger and not proceeded, as the evidence shows he did in this case, at an ordinary pace, to edge or angle off in a northwesterly direction. While the evidence shows that he was not walking slowly it does not show that he quickened his pace or that he took the shortest course to a place of safety. Therefore, the action of the trial court was justified and must be upheld on the ground that plaintiff failed to establish freedom, on his part, from contributory negligence.
[2] The other ground of the motion, viz., that the evidence of the defendant's negligence was insufficient is equally meritorious. This court said in Harvey v. Borg, 218 Iowa 1228,1232, 257 N.W. 190, 193:
"It is universally agreed that no inference of negligence arises from the mere fact that a collision occurred."
The plaintiff could not recover under the doctrine of res ipsaloquitur for the reason that he chose to rely upon specific acts of negligence. Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334; Luther v. Jones, 220 Iowa 95, 261 N.W. 817. Plaintiff does not seek to recover under the res ipsa loquitur doctrine but does contend that he was entitled to have the case submitted to the jury on the theory that, from the circumstances shown, the jury might reasonably infer negligence and cites in support of his theory the case of Luther v. Jones, supra. However, the circumstances in this case are not such as to make applicable the principle of law under which the case of Luther v. Jones, supra, was permitted to go to the jury, namely, that there was no other reasonable conclusion that could be fairly drawn from the circumstances except that the injury was due to one or more *Page 1231
causes constituting the grounds of negligence alleged in the plaintiff's petition.
We, therefore, conclude that the ruling of the trial court was right and the case must be and is accordingly affirmed. — Affirmed.
SAGER, C.J., and DONEGAN, MITCHELL, and KINTZINGER, JJ., concur.
STIGER and MILLER, JJ., concur in result. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433898/ | Plaintiff in this case is the administratrix of the estate of Arthur Grant Larsen, deceased, who met with an accident on the 11th of November, 1935, which resulted in his death within a few days thereafter, and in the petition plaintiff claims judgment against the defendant in the sum of $30,000, for such death, the petition being in two counts.
The first count is based solely upon negligence, and the second count makes the same allegations as in the first count, except that it alleges defendant was maintaining a nuisance, and in count 2 cites and refers to section 12395 of the Code, as to what constitutes a nuisance.
The facts set forth in the petition are about these: That there was to be a celebration of Armistice Day and exercises were to be held in the various schools on November 11, 1935, and the deceased, who was a member of the American Legion of Council Bluffs, Iowa, had been selected by the defendant and the Post at Council Bluffs to make an address to the school children at Washington Avenue school building. Prior to that time the school district had prepared a platform in the north end of the hall on the third floor in said school building, with three small removable steps at the side of the platform where Mr. Larsen was to stand while making his address. The platform was made of lumber, about twelve feet long east and west, and four or five feet wide north and south, and about 22 1/2 inches high from the floor. The platform extended back to a railing at the north end, which railing projected about two feet above the platform. Above this a curtain hung from the ceiling where it was fastened on rollers, but it was not fastened to the railing. Back of the railing and curtain there was an open space or stair well to the floor below.
The speaker was a man about 42 years of age, with an artificial leg, having lost one leg in the World War. As he mounted the platform, he stepped back, lost his balance and as he clutched for the curtain it tore away from its moorings and Larsen plunged over the railing and fell to the floor below, sustaining injuries from which he died in a few days.
The petition alleged the deceased was an invitee of the program committee, was a married man with two children, was city auditor of Council Bluffs at the time, earning $195 per month. It is alleged further that the defendants, its officers, and employees were guilty of certain acts and conduct consisting of *Page 693
omissions and commissions of negligence, which negligence was the direct and proximate cause of the injuries to decedent, which resulted in his death.
These acts of negligence alleged were, First, that the hall was a dark place where the platform was constructed; that the curtain should not have been left loose and unfastened as it was; that the defendant should have had an iron or steel netting of permanent background for the platform; that when Arthur Grant Larsen lost his balance and fell backward there was nothing to protect him, to keep him from falling down the stair well; that Larsen had no notice of the dangerous condition, and while this dangerous condition existed he was invited to make such address. There were further allegations about the curtain not being fastened, or not of a permanent nature, creating a dangerous situation, and allegations, of course, as to the necessary medical treatment, expenses, and the death of Larsen on the 19th day of November, 1935, as a result of the accident.
Count 2 of the petition copies verbatim practically the first eight paragraphs of the first count, and then alleges that on the 11th day of November, 1935, the following statute was in force in the State of Iowa:
"Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof."
So the first count is based upon ordinary negligence, and the second count is based solely upon maintaining a nuisance by the school district.
The answer of the defendant denied each and every allegation therein contained, except such as were specifically admitted. It admitted that it is a school corporation organized, created and existing under and by virtue of the statutes of the State of Iowa, and that at the times referred to in plaintiff's petition it owned, maintained and operated in Council Bluffs, Iowa, a building known as "Washington Avenue School" where the accident happened. The case was tried to a court and jury; and evidence was introduced and showed about the state of facts as set forth in plaintiff's petition. And further, that the *Page 694
platform was a temporary affair, and the steps were also temporary.
The evidence of J.A. True was that he was superintendent of schools of the defendant, and had been for six years; that he had his office in the Washington Avenue school building, and spent most of his time there; that he was familiar with the third floor of said building; that during the time he was superintendent they would hold exercises on said third floor of said school building; that it was the only place they had to hold an assembly of students; that whenever it was necessary to call the students together they had them in that upper hall; that they had to have chairs for meetings of long duration, but for this particular meeting it was thought the pupils would stand, as it was to be a short address. Miss Ivory was principal of this school, but at the time of the trial she was away attending the funeral of her sister. Mr. True testified that there were two stairways leading to the third floor of the school building, one at the north, and the other at the south end; that on the 11th of November, 1935, a platform or stage was at the back part of the hall, near the banister; the platform being about 20 feet east and west, and 4 or 5 feet north and south; that there were two steps to the south of the platform, and the platform made the third step. That just back of the platform there was a banister, or railing, of solid wood, kind of oak color, which went down to the floor in the hall and projected about three feet above the top of the platform; and above the railing was a curtain suspended from rollers fastened to the ceiling, but the curtain was not fastened at the bottom to the railing. Back of the curtain was the stair well down to the next floor. The witness stated he was not on the third floor when the accident happened; that he knew the meeting was to be held that day, having learned this from the principal of the building; but he did not recall any specific time that it was talked over, but he thought it was spoken of at an informal meeting of the board, but he did not recall any comment or discussion of the matter. Mr. True said the American Legion asked them to cooperate with them in observing Armistice Day, and the schools arranged a place for the meeting, and the Legion provided the speakers. Mr. True testified that the curtain that hung at the back of the platform shut out the light and it was necessary to have on the lights. *Page 695
Fred B. Shaw testified that he was a member of the school board of defendant, and had been for about nine years. He testified that it was the custom for Mr. True to mention that exercises would be held on certain dates, just a mention of the fact, that they were to observe Armistice Day in the schools; that sometimes the whole school board was present, sometimes not; they would talk about it maybe; Mr. True was superintendent of the schools. He said he thought the principals went ahead and arranged for the program.
The custodian of the building also testified that he was on the third floor of the building when the accident happened, but did not see Larsen fall; that the banister just north of the platform is 22 inches above the top floor of the platform; that the bottom of the curtain hung close to the top of the banister; that he knew there were to be exercises. He said he heard a noise and when he got there he saw Larsen lying on his back on the second floor.
There can be no question from the record of the case that Larsen came to his death substantially as claimed in the petition; by falling over the banister at the back of the stage. The burial bill, physicians and hospital bills, and nurse hire were admitted by the defendant to be $678. The amount that the plaintiff is entitled to recover, if any, on account of said bills was left for the court to say and determine as a matter of law.
At the close of plaintiff's testimony the defendant filed a motion to direct a verdict on the following grounds: First, that the evidence offered by plaintiff was insufficient as a matter of law to sustain a finding by the jury of negligence on the part of defendant as charged in her petition; second, that the evidence failed to show Larsen free from contributory negligence; third, that count 1 of plaintiff's petition was based on negligence, and that the sole and only ground upon which plaintiff seeks to recover, in count 1, is based upon the allegation, "that said defendant and its officers and employees were guilty of the following acts and conduct, consisting of omissions and commissions of negligence, which negligence was the direct and proximate cause of the said Larsen receiving said injuries which resulted in his death", and defendant alleged in its motion that it was established by the undisputed evidence in the case that in the operation and maintenance of said Washington Avenue school, and the place where plaintiff's intestate received the *Page 696
injuries which resulted in his death, that the defendant school district was acting in a purely governmental capacity, and when acting in such capacity it is not liable in damages resulting from the negligence of its officers, servants, employees, and agents; fourth, that the allegations of count 1 of plaintiff's petition did not state a cause of action against the defendant; fifth, that the evidence offered by plaintiff was not sufficient to support a verdict against defendant upon said count 1, and should the court submit the case to a jury and it return a verdict against defendant, it would be the duty of the court to set aside the verdict upon the ground of the insufficiency of the evidence to support same; and sixth, that upon the whole record as made by the plaintiff, to allow a verdict to stand against the defendant, in favor of plaintiff, would be error.
The defendant also moved to direct a verdict on count 2, and followed about the same grounds as in its motion on count 1, setting forth also that as a matter of law, the condition or the place maintained by the defendant, which is alleged to constitute a nuisance resulting in the injuries and death of decedent, did not constitute a nuisance within the meaning of section 12395 of the Code, or within the common law definition of nuisance. Then followed, that if upon the theory such condition could be said to constitute a nuisance, then under the allegations of count 2 of plaintiff's petition, and under the undisputed record, the said condition could only have become a nuisance because of the alleged failure of the defendant, its officers, employees, servants and agents to maintain the same in a safe condition; that said negligence necessarily and obviously, if any there was, arose in the exercise of a governmental function by the defendant, and the defendant would not be liable to the plaintiff for injury or damage sustained by plaintiff's intestate arising because of a nuisance caused or created by the negligence of the defendant, its agents, officers, servants and employees; second, that the allegations of count 2 do not state a cause of action against the defendant; third, that the evidence offered by plaintiff in support of count 2 of her petition is insufficient to support a verdict against the defendant, and should the court submit this case to the jury and it should return a verdict in favor of plaintiff, it would be the duty of the court to set the verdict aside; fourth, that upon the whole record, as made by the plaintiff, to allow a verdict against the defendant *Page 697
and in favor of the plaintiff to stand upon count 2 of plaintiff's petition would be error.
In ruling upon said question the court said:
"As to count one, I question very much, and believe none of us think that count one should be submitted to the jury. It seems to me that the law relative to immunity in a governmental capacity of a school district is that there can be no liability for negligence.
"That brings us down to the only question left, and that is whether or not the allegations of count two of plaintiff's petition should be submitted to the jury. It seems to me, and I cannot get away from the thought, that the question is absolutely determined in the case of Smith v. Iowa City in 213 Iowa 391,239 N.W. 29. I am unable to apply the facts, the undisputed facts in the case to the law laid down in the Smith case, and reach any other conclusion but that the finding of the Supreme Court of Iowa in that case decisively determines this question.
For the above reasons it is my opinion that the motion will have to be sustained, and the same is hereby sustained. All parties adversely affected are given an exception."
From this ruling plaintiff has appealed to this court.
This court, in Kincaid v. Hardin County, 53 Iowa 430, 431,5 N.W. 589, 590, 36 Am. Rep. 236, decided in April, 1880, that a county cannot be held liable in damages for a personal injury sustained by reason of the defective construction of its courthouse, and the negligence of the county in failing to keep it properly lighted at night. In that case it was said:
"`A plainly marked distinction is made, and should be observed, between municipal corporations, as incorporated villages, towns and cities, and those other organizations, such as * * * counties, school districts and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi corporations, and the general rule of law is now well settled that no action can be maintained against corporations of this class by a private person, for their neglect of public duty, unless such right of action is expressly given by statute.'" It says further, on page 433: "The ground upon which it is held that quasi corporations, such as counties, towns, school *Page 698
districts and the like, are not liable for damages in actions of this character is that they are involuntary territorial and political divisions of the State, created for governmental purposes, and that they give no assent to their creation, whereas municipal corporations proper are either specially chartered, or voluntarily organized under general acts of the legislature."
The court then calls attention that in Wilson Gustin v. Jefferson County, 13 Iowa 181, this court years ago held that a county was liable for an injury to a person caused by a defective county bridge, and says:
"That case has been followed in a number of other cases down to the present time, although exhaustive arguments have been made insisting that it should be overruled, as against not only the weight but the whole current of authority. As often as the question has been made, the rule has been adhered to without deviation. In Huston v. Iowa County, 43 Iowa 456, it is said: `We have no inclination now to review, either for the purpose of fortifying or overturning, a case (referring to Wilson Gustin v. Jefferson County) which has for so long a time, in so many instances, and in so deliberate a manner, been sanctioned and followed.'"
The opinion in the Hardin County case further says:
"But as the line of decisions in this State as to the liability for defective bridges stand almost if not quite alone, as we have seen, we have no disposition to carry the doctrine further than is necessary to sustain the decisions of the court, which have stood so long that it may truthfully be said they have the implied sanction of the law-making power and the people of the State," citing Krause v. Davis County, 44 Iowa 141. The opinion then points out a distinction, and says: "An examination of the cases where it is held that quasi corporations are not liable in actions of this character will disclose that the reason of the rule is, as before observed, that they are involuntary political divisions of the State created for governmental purposes", and points out that all counties are required, without their assent and exclusively for public purposes, to provide a room or place for holding the courts; counties have no option concerning this duty; it is an involuntary duty imposed upon them by the State, and imposed upon all alike; that the obligation *Page 699
to build bridges is different, the statute leaves it to the respective counties to determine what bridges shall be built. This Hardin County case from which we have quoted caused considerable discussion in legal circles at the time.
Lane v. Dist. Township of Woodbury, 58 Iowa 462, 12 N.W. 478, holds that a school district is not liable for personal injuries sustained on account of the negligent construction of its schoolhouse, or negligence in failing to keep it in repair, citing the Hardin County case as controlling.
In Green v. Harrison County, 61 Iowa 311, 16 N.W. 136, it was held that under the rule announced in Kincaid v. Hardin County,53 Iowa 430, 5 N.W. 589, 36 Am. Rep. 236, a county is not liable for damages caused by the overflow of a ditch constructed under its direction, and which has become obstructed by sediment. And to the same effect is Nutt v. Mills County, 61 Iowa 754,16 N.W. 536.
In Lindley v. Polk County, 84 Iowa 308, 50 N.W. 975, it was held that a county is not liable for injuries sustained to the health of a prisoner while confined in the county jail by reason of its unfit condition as a place for the confinement of prisoners. Likewise, in Dashner v. Mills County, 88 Iowa 401,55 N.W. 468, it was held that in an action to recover damages for the negligent construction or failure to keep open a ditch constructed under section 1207 of the Code, a county is not liable, for the reasons stated in the Hardin, Mills and Harrison County cases.
In Wilson v. Wapello County, 129 Iowa 77, 105 N.W. 363, 6 Ann. Cas. 958, it was held in an action for injuries alleged to have resulted from a defective county bridge, or approach thereto, that an instruction that in case the accident occurred before the team entered upon the approach to the bridge the plaintiff could not recover, was correct, since a county is not charged with the duty of keeping ordinary highways in repair and is not liable for injuries resulting from defects therein.
In Wenck v. Carroll County, 140 Iowa 558, 118 N.W. 900, it was held a county is not liable in damages for the unlawful act of its supervisors in extending a drainage ditch beyond the boundary of the district to the injury of land outside; the remedy, if any, is against the persons guilty of the trespass.
In Snethen v. Harrison County, 172 Iowa 81, 85, *Page 700 152 N.W. 12, 13, the court held that for more than a half century this court has persistently and consistently refused to declare a county liable for negligence in the performance of its governmental functions, with the single exception of negligence in the construction and maintenance of bridges and approaches thereto, and that therefore, inasmuch as a county, being an involuntary territorial and political division of the state for governmental purposes, is not liable in damages for performing its governmental acts in a negligent manner, it necessarily follows that the officers and employees of the county who perform such acts in a negligent manner are not liable. The court in commenting on the difference between involuntary and voluntary territorial or political divisions of the State, says:
"`Counties are involuntary political or civil divisions of state, created by general statutes, to aid in the administration of the government. * * * They are simply governmental auxiliaries, created bodies corporate "for civil and political purposes only." * * * To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. To enable them the better to exercise their powers and discharge their duties, our statute clothes them with corporate capacity. Considered with respect to their powers, duties and liabilities, they stand low down in the scale or grade of corporate existences. It is for this reason they are ranked among what have been styled quasi corporations. * * * On the other hand, the decisions are almost (though not wholly) uniform to the effect that counties and other quasi corporations are not liable to private actions for the neglect of their officers in respect to highways, unless the statute has in so many words created the liability, specially giving the action to the party injured. * * * If the county ought to be held liablein such a case, the remedy must be sought from the legislature.'"
Post v. Davis County, 196 Iowa 183, 191 N.W. 129, 194 N.W. 245, follows the reasoning of these cases, and quotes approvingly from the Hardin County case, and the other cases commented on.
So we think from the decisions of the courts of Iowa, that there is a line of distinction between incorporated cities and towns and such corporations as counties, and school districts, *Page 701
the latter being what are known as quasi corporations, and only for governmental purposes. A school district is an organization simply for the purpose of carrying on the schools, for that and nothing else. It is only a quasi corporation, and in the face of these decisions it seems to us it would be very disregardful of the law for the court to hold that in a case of this character here that the school district is liable.
Lane v. Dist. Township of Woodbury, 58 Iowa 462, 12 N.W. 478, says:
"A school district is a public corporation, or quasi corporation, created by statute for the purpose of executing the general laws and policy of the state, which require the education of all its youth. It is a branch of the state government, an instrument for the administration of the laws, and is, so far as the people are concerned, an involuntary organization."
The court in passing upon the question when presented to him for a directed verdict, recognized this and called attention to the case of Smith v. Iowa City, 213 Iowa 391, 239 N.W. 29.
In the Iowa City case there was an action against the city, a municipal corporation of the first class, not a quasi corporation, where it was held, that a city in exercising its governmental power through a park board to acquire and maintain public parks, is not liable to damages consequent on the negligent failure to keep the instrumentalities in said parks in repair; nor are the members of the park board individually liable for such nonfeasance on their part.
We have examined in addition to these cases valuable notes from the 21 A.L.R. 1328, 24 A.L.R. 1070, 56 A.L.R. 164, and 66 A.L.R. 1282. These notes fully sustain the rule that school districts are quasi corporations, and that as such they are not liable in actions of this character.
The plaintiff claims something under section 12395 of the Code as to nuisances. This section has been in the Code of Iowa for a great many years, and substantially covers everything covered in the first Code. In the Hardin case there was a nuisance.
So, after considering all these cases, and the principles laid down therein, and having examined all the authorities cited, besides many others, we arrive at the conclusion that the lower court did not err in sustaining the motion for a directed verdict. *Page 702
True, there was no direct plea of the school district acting in a governmental capacity, but the evidence and the record showed this completely, and the motion to instruct the verdict, by its very terms, raised this question where it stood after trial was had and the record considered, and the court said:
"Upon the whole record, as made by the plaintiff, to allow a verdict against the defendant and in favor of the plaintiff to stand upon count two of plaintiff's petition would be error."
The record fully shows it was admitted therein the defendant was a school corporation for public purposes. That is the defendant the plaintiff sued; alleged it in its petition. Hence, having alleged that, plaintiff undertakes to make proof under it; fails to show the object of the suit, the liability of the defendant. For the reasons pointed out the judgment of the lower court is hereby affirmed. — Affirmed.
RICHARDS, C.J., and HAMILTON, DONEGAN, KINTZINGER, SAGER, ANDERSON, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433899/ | One Tyler owned a 40-acre tract of land. On March 23, 1910, he executed his will, making disposition of said tract. On April 5, 1910, said Tyler died, and his will was duly admitted to probate. It is unnecessary that we set out the terms and conditions of said will. See, however, Bredensteiner v. Oviatt, 202 Iowa 993. Provision was made therein for his widow and certain heirs. Trustees were appointed, with certain duties. On the 1st day of March, 1916, certain of the beneficiaries under said will and said trustees executed a warranty deed of said premises to one Oviatt. Thereafter, a series of mesne conveyances were made by warranty deeds, and on the 1st day of March, 1920, said premises were conveyed to the appellant by warranty deed from the appellees McLaren and wife.
The petition alleges that, prior to the 4th day of June, 1921, the title of the appellant to the said described real estate was questioned, and was refused as security for a real estate loan, *Page 1347
and that appellant notified the grantors in her said chain of title that said title had been questioned, and that action would be commenced against the appellees herein to recover the purchase price which appellant had paid for the said real estate. It is alleged that, in consideration of appellant's withholding said action, and on account of the failure in part of the title to said real estate, the appellees herein executed and delivered to the appellant the indemnifying bond upon which this suit is based. Said bond recites that the appellees herein are held and firmly bound unto the appellant and "to her successors in interest" in the said described real estate in the penal sum of $10,000. It recites that said property had been conveyed to the appellant, and that a question has arisen with reference to the right to convey the one-half interest in said land, and that uncertainty exists as to each of said conveyances, and contains the following provision:
"Now, therefore, if the undersigned shall well and truly hold the said Olive M. Duke and her successors in interest free and clear of any loss she or her successors may sustain by reason of the defect above referred to, then this bond to be null and void, otherwise to be and remain in full force and virtue."
The petition alleges that, subsequent to the execution of said bond, the appellant endeavored to find a purchaser for the said described real estate, but, on account of the failure of the title to said premises, as alleged, she was unable to find a purchaser until on or about the 6th day of November, 1923, at which time the appellee McLaren, who had been appellant's grantor, purchased appellant's interest in said premises, and on said date the appellant reconveyed the premises to the said McLaren by warranty deed, with the usual covenants. It is alleged that appellant paid $20,000 in cash for said described real estate, and that said reconveyance was made to McLaren for a consideration of $10,000; and damages to the extent of $10,000 are asked. It is also alleged that, at the time of the execution of said last-mentioned deed, McLaren was familiar with the title of the appellant to said premises, and that by the execution of said deed appellant had no intention on her part to covenant or warrant her title to said premises, or to assign or transfer in any manner whatever any cause of action in favor *Page 1348
of her by reason of any breach of the covenants of the deed under which she held title.
The appellees' demurrer was based upon five separate grounds, and was sustained generally. The question for our determination is whether or not any of the grounds of said demurrer were well taken.
I. The first ground of the demurrer raises the proposition that the bond sued upon was executed without any consideration therefor, as shown on the face of the petition. The petition alleges that the title to an undivided one half 1. INDEMNITY: of said premises had failed, by reason of the considera- fact that said one half of said title cannot, tion: under the terms of the will of the testator, sufficiency. Tyler, vest in anyone until the death of the wife of said testator. The petition recites that the bond in question was given in consideration of the appellant's withholding action against appellee McLaren on account of the failure of said title. The recitals of the petition were sufficient to show a prima-facie consideration. Urdangen v.Fryer, 183 Iowa 39. The demurrer was not well taken upon this ground thereof.
II. Another ground of said demurrer was that the petition "contains no showing of any damages suffered by the plaintiff after the bond in question was executed and delivered, and that by reason thereof plaintiff has not shown any damages coming within the provisions of said bond."
The terms of the bond were that the obligors undertook to hold the appellant and her successors in interest "free and clear of any loss she or her successors may sustain by reason of the defect in the title."
Indemnity contracts cover a great variety of subjects, and one well recognized class includes contracts relating to defects in title. These generally provide for indemnity against disturbances in possession, or to make the indemnitee safe 2. INDEMNITY: and secure in his title, or to indemnify and action: save harmless from actions brought for recovery condition. of the land, or against outstanding judgments or liens, and other like provisions. Each contract must be construed according to its own terms. Generally speaking, the nature of the responsibility assumed by the indemnitor in a contract of indemnity is one of two classes: (1) against loss *Page 1349
or damage; or (2) against liability. Wilson v. Smith, 23 Iowa 252.
In Cousins v. Paxton Gallagher Co., 122 Iowa 465, we said:
"The law recognizes a well defined difference between covenants of indemnity against loss, and covenants to assume or pay a liability. In the former class the covenant is not broken, and no right of action accrues, until a loss has been suffered against which the covenant runs, while in the latter class the covenant is broken, and a right of action accrues, whenever the liability is fixed and absolute. This distinction grows out of the express terms of the contract, and must be recognized; otherwise a new contract would be made for the parties, and their rights determined thereunder, instead of by the contract which they made."
See, also, New England Equit. Ins. Co. v. Boldrick, 192 Iowa 763; 31 Corpus Juris 419, Section 3.
The contract in the instant case falls within the first of these classes. It is not a contract to indemnify the appellant against disturbances in possession, or to make her safe and secure in her title, or to do any other or 3. INDEMNITY: different thing than indemnify her against loss
construc- that she may sustain by reason of the defect in tion: future the title to the premises. A contract of this (?) or past character, to indemnify against loss, is not (?) damages. broken until the indemnitee has suffered an actual loss or damage. Wilson v. Smith, supra; New England Equit.Ins. Co. v. Boldrick, supra. Cases from other jurisdictions are collected in 31 Corpus Juris 439.
Does the petition allege a state of facts showing that appellant has suffered any loss for which she may recover under the contract?
The petition alleges that the appellant acquired her deed to the premises on March 1, 1920; that she attempted to secure a real estate loan on the premises, but without success. No damage is claimed by reason of this fact. The contract of indemnity was given June 4, 1921. There is no claim of any eviction or ouster, no claim of any dispossession, no claim of any attempt of assertion of any adverse title. For more than two years, so far as the petition shows, after the contract was *Page 1350
given, the matter rested in statu quo. Then the appellant reconveyed the premises to her grantor, after a mortgage had been foreclosed against the premises.
There is no allegation of any fact showing any loss that appellant sustained by reason of the defect in her title after the bond was executed. The bond looked to loss in the future. It was to protect her against loss she "may sustain." Appellant argues that the bond covered any loss that appellant had already sustained, at the time the bond was executed. The bond does not so provide. It was not a promise to pay a past loss, in the nature of an indebtedness. It was to indemnify appellant for loss she might sustain thereafter. We think appellant failed to allege facts showing that she had sustained any loss by reason of the defect in the title after the bond was given, and the demurrer was properly sustained.
III. The appellees contend that the bond in suit is, in legal effect, no more than a covenant of seizin, and that it should be construed as such, and that the law applicable 4. COVENANTS: to a covenant of seizin is applicable to it. The construction deed under which the property was conveyed to and opera- the appellant contained the usual covenant of tion: seizin, that the grantors "hold said premises by indemnity good and perfect title." The bond in suit, bond as according to its terms, was given to indemnify tantamount the appellant for any loss she might sustain by to covenant reason of a defect in the title to said of seizin. premises. That is the legal effect of the covenant of seizin.
The rule is well established in this state that, where a covenant of seizin is broken upon the delivery of the deed because there is an outstanding paramount title, yet where the covenantee has been given possession of the premises, such breach is only technical, and will not authorize the recovery of substantial damages until some loss or injury has been suffered by the covenantee. We see no good reason why the rule respecting the covenant of seizin should not apply to the indemnity bond in the instant case. The bond was given to indemnify the grantee in the deed against loss that she might sustain by reason of an outstanding paramount title. No question is raised but that the grantee was given possession of the premises, and that there had been no attempt to assert any outstanding paramount title. In such a situation, under the rule of this state, recovery *Page 1351
cannot be had on the covenant of seizin. In order to permit such recovery, there must be the hostile assertion of some adverse title. The rule has been maintained in this state for many years, and the authorities are collected and discussed in McNair v.Sockriter, 199 Iowa 1176. See, also, Mundt v. Comstock, 199 Iowa 282. In the instant case, the appellant has not been disturbed in her possession. There has been no hostile assertion of any adverse title. She did not rescind her contract, but accepted her deed and retained possession thereunder. We are disposed to apply the same rule as in the case of a covenant of seizin; and, when such rule is applied, under the law in this state, the appellant has not alleged sufficient facts to entitle her to recover upon the bond.
IV. The petition alleges that the appellant reconveyed the 5. COVENANTS: premises to her grantor by warranty deed after action for the bond was executed. The demurrer alleges breach: that, by reason of said conveyance, the legal appellant has no cause of action on said bond, cancellation because she thereby canceled the covenants of covenant contained in the deed to her, and the covenants of seizin. of the bond.
In Carroll v. Carroll, 113 Iowa 419, defendant deeded to the plaintiff certain real estate by full warranty deed. It was afterward determined that the defendant's title was invalid. Subsequently, the plaintiff reconveyed the property to the defendant by full warranty deed, and brought suit on the covenants of the deed by which he had acquired title. We said:
"It follows, then, that we have a case of mutual covenants; for the plaintiff's covenant is as broad as the defendant's, and it has been held in such cases that the covenants cancel each other."
We also said:
"That a covenantee, while he holds title, may release all obligation on the part of the covenantor cannot be questioned. Having made these covenants in a deed reconveying this land, we think it must be held, as a matter of law, that they operate as a release of his claim, and that he is estopped from recovering anything thereon." *Page 1352
See, also, Silverman v. Loomis, 104 Ill. 137.
Birney v. Hann, 3 A.K. Marsh. (Ky.) *322 (13 Am. Dec. 167), relied upon by appellant, is not controlling at this point.
The obligors in the bond in the instant case were all grantors of the premises by warranty deeds with covenants of seizin which run with the land. The reconveyance by appellant by deed with a covenant of seizin canceled the covenant of seizin under the deeds of the obligors in the bond. Since we hold that the bond was tantamount to the covenant of seizin in the deeds, the reconveyance with a like covenant operated as a discharge of the obligation.
We reach the conclusion that the trial court correctly sustained the demurrer to appellant's petition, and the judgment is — Affirmed.
MORLING, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433903/ | I. The material facts, with a single exception, to be presently noted, are not in dispute.
Clarence Hedges was the owner of certain land upon which J.W. Squire had a first mortgage for $9,000, and the defendant W.H. Donald had a second mortgage securing two notes, one for $3,946, due in five years, and the other for $4,000, due 1. MORTGAGES: in eight years. These mortgages had been transfer of executed by Frank Drinkall, a former owner of note: the land. Donald transferred the note for failure to $4,000, and it came into the hands of the assign appellant Clara E. Lemley, in a manner not mortgage: material to the present controversy. Donald made effect. no assignment of the mortgage securing the note. While it is not questioned that the assignment or transfer of the note operated as an equitable assignment, pro tanto, of the mortgage security, there was nothing of record to show that Donald was not the owner of both notes, or that Donald's assignee or Mrs. Lemley had any interest in the debt or the mortgage. Before the maturity of any of this indebtedness, Hedges, being desirous of securing a larger loan, arranged with the appellee, J.W. Squire Company, a corporation of which the holder of the $9,000 mortgage was president, for a loan of $13,000, to be secured by a first mortgage on the land. On April 10, 1917, Hedges and wife executed a note for $13,000 and a mortgage securing the same upon the land, and notes for the commission for the loan, amounting to $975, also secured by mortgage on the land. These mortgages were duly filed and recorded. Out of the $13,000 so borrowed, the amount due under the first mortgage of $9,000 was paid, $3,000 was paid on the note held by Donald secured by the mortgage to him, and Hedges received the balance. Donald was a party to this transaction, and signed a writing which appears on the margin of the record of the mortgage for $13,000, as follows: *Page 879
"It is agreed that the mortgages given to J.W. Squire Company on April 10, 1917, by Clarence Hedges and E.C. Hedges his wife recorded in Book 191, page 71, shall be and is senior to mortgage given by Frank Drinkall and Mary A. Drinkall to the undersigned recorded in Book 164, page 194. It is expressly agreed and understood that this mortgage recorded in Book 164, page 194, is junior and subject to the above mortgage to J.W. Squire Company of Council Bluffs, Iowa."
An agreement substantially in the same form, signed by Donald, appears on the margin of the record of the mortgage securing the commission notes. The mortgage to Donald was recorded at page 194 of Book 164. These agreements are not dated, but they appear to have been made before the completion of the $13,000 loan. Donald had no authority from the holder of the $4,000 note to agree that the lien of appellee's mortgage should be prior or superior to the mortgage securing such note.
This action is to foreclose the $13,000 mortgage and the mortgage securing the commission notes. The appellant Clara E. Lemley claims a prior lien under the Donald mortgage for the amount due on the $4,000 note.
The only disputed matter of fact is whether the local agent of appellee who negotiated the $13,000 loan had actual notice that Donald was not the owner of the $4,000 note at the time the latter executed the above agreements. Donald testified that he informed the agent of that fact. This the agent denied. The lower court found that the agent had no such notice, and our examination of the record brings us to the same conclusion. Without setting out the evidence, we may say that Donald's memory was obviously at fault in some respects as to the transaction; while it is extremely improbable that the agent, although insisting on an agreement that would make the $13,000 mortgage the prior lien as against Donald's mortgage, would accept his agreement to that effect with knowledge that he did not own one of the notes secured by it. Moreover, thereafter, and before the institution of this action, Donald commenced and prosecuted to judgment an action to foreclose his mortgage for the balance due thereon, including the note for $4,000 held by appellant, — procuring the note from her for that purpose. The appellee was not made a party to that action, although, if the appellant's *Page 880
contention that the appellee was chargeable with notice that Donald had transferred the $4,000 note, and therefore the holder of the note had a superior lien to the lien of the appellee's mortgage, be correct, the relief now sought by appellant would properly have been granted in that action.
Under the doctrine that the transfer of the note operated as an equitable assignment of the lien securing it, the assignment of the note affected real estate, and came under the operation of the statute with reference to the recording of such instruments.Bank of the State of Indiana v. Anderson, 14 Iowa 544; Bowling v.Cook, 39 Iowa 200; Daws v. Craig, 62 Iowa 515; Kenosha Stove Co.v. Shedd, 82 Iowa 540; Livermore v. Maxwell, 87 Iowa 705; NashuaTrust Co. v. Edwards Mfg. Co., 99 Iowa 109; Jenks v. Shaw,99 Iowa 604. Section 2925, Code of 1897 (Section 10105, Code of 1924), provides as follows:
"No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, unless recorded in the office of the recorder of the county."
The appellee, as mortgagee, was a purchaser, within the meaning of the statute. In re Estate of Gill, 79 Iowa 296; Weare Allison v. Williams, 85 Iowa 253.
If Donald, after the transfer of the $4,000 note, had satisfied of record the mortgage securing it, although without the authority of the holder of the note, and the appellee, relying upon the record, had made the loan and taken the mortgage in suit without notice of appellant's claim, it is well settled that the rights of appellee would have been superior to any claim on the part of the holder of the note under the canceled mortgage. Bankof the State of Indiana v. Anderson, supra; Cornog v. Fuller,30 Iowa 212; Bowling v. Cook, supra; Daws v. Craig, supra; Day v.Brenton, 102 Iowa 482.
But Donald in fact did less than this. Instead of satisfying the mortgage, he merely, by agreement, subordinated it to the mortgage of appellee. All rights incident to a junior lien were preserved to the mortgage securing appellant's note. If he might, by an unauthorized cancellation of the mortgage, have made it possible for an innocent purchaser to have acquired rights superior to those of appellant, we see no reason why he *Page 881
might not, by express agreement, subordinate the mortgage standing in his name of record to that of appellee, as against the appellant, in the absence of notice to the former that Donald was not the holder of the debt secured by the mortgage to him. Appellant, in the absence of actual notice, could only be protected against subsequent purchasers or mortgagees by procuring an assignment of the mortgage and placing it of record.Cornog v. Fuller, supra; Parmenter v. Oakley, 69 Iowa 388;Livermore v. Maxwell, 87 Iowa 705.
By failing to have an assignment of the mortgage of record, appellant placed it in the power of Donald to subordinate the lien of the mortgage given to him, as shown by the record, to the mortgage given appellee, and to thereby induce appellee to make the loan; and she must bear the consequences. Livermore v.Maxwell, supra; Keefe v. Cropper, 196 Iowa 1179.
While this disposes of the principal question presented, some other considerations are urged that require mention.
II. It is said that the agreements signed by Donald on the margin of the record, not being acknowledged, did not impart constructive notice. This may be conceded. But they did not depend for their validity upon notice to appellant. They were valid as between the parties, the appellee and Donald, the holder, as shown by the record, of the mortgage subordinated to appellee. Donald, as has been said, foreclosed his mortgage in the interest of appellant, and without asserting any lien superior to that of appellee. The land was sold under the decree in that case, the sheriff's certificate assigned to appellant, and she took a sheriff's deed; but she did not change her position to her detriment in reliance upon any claimed superiority of her lien over that of appellee. She is in no worse position, holding title by a sheriff's deed upon sale under a junior lien, than she was as the holder of a junior mortgage.
III. After the execution of appellee's mortgage, Hedges 2. USURY: defaulted in the payment of interest, and usurious foreclosure proceedings were commenced. This trans- former action to foreclose was dismissed on the actions: execution by Hedges of another set of commission subsequent notes, secured by mortgage, and the execution of agreements: notes for $1,500, also secured by a mortgage on effect. the land. These obligations *Page 882
were exacted by appellee as a condition of dismissing the foreclosure and allowing the original loan to run. Hedges paid $500 of the amount secured by the last mentioned mortgage, and the mortgage was foreclosed for the balance due.
The appellee makes no claim under the second set of commission notes, and the court below canceled them and the mortgage securing them. The lien of the $1,500 mortgage and the judgment upon its foreclosure is junior to the lien held by appellant. This, too, is not questioned. Appellant's claim in connection with these transactions is that thereby the original note and mortgage were tainted with usury, and that she is entitled to the benefit of that plea.
Hedges, the maker of the instant note and mortgage, presents no such plea, and indeed the present action was dismissed as to him. He made no such defense in the action to foreclose the $1,500 mortgage.
In the first place, the original contract, as made, — the notes and mortgages sued on, — had no taint of usury; and the subsequent contracts by which forbearance on the part of appellee to insist upon an accelerated maturity of the original obligation was secured, if usurious, did not taint it. Mallett v. Stone,17 Iowa 64; Sexton v. Murdock, 36 Iowa 516; 39 Cyc. 992.
Furthermore, the plea is not available to the appellant, a mere 3. USURY: junior lien holder, and one not a party nor rights of privy to the contract. Powell v. Hunt, 11 Iowa parties: 430; Carmichael v. Bodfish, 32 Iowa 418. defense not available to third party.
We conclude that the decree below was right, and it is —Affirmed.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433905/ | It is alleged by the plaintiff that the defendant George K. Horton was the owner of certificate No. 403 covering 29 shares of stock in the Ottumwa Hotel Company; that the same was held by C.F. Moulton as collateral for a debt owing by George K. Horton to the said Moulton; that the plaintiff has an assignment of said certificate No. 403, executed by George K. Horton, and by reason thereof he is now the owner of the said 29 shares of stock and is entitled to a transfer thereof on the books of the defendant, the Ottumwa Hotel Company; that a dispute has arisen between Moulton and Horton as to the ownership of such stock, and plaintiff *Page 619
asks that the court decree the amount owing by Horton to Moulton; that plaintiff be decreed to be the owner of said shares of stock; that certificate No. 403 be canceled, and the hotel company be ordered and directed to issue to the plaintiff a certificate for said 29 shares of capital stock, etc.
Horton answered, alleging among other things, that his rights in the stock were transferred to Moulton as security only for a loan made by Moulton to Horton.
Moulton answered separately, alleging, in substance, that he is the owner of the stock in controversy.
A petition of intervention was filed by the four children of George K. Horton, claiming that the money used by their father to purchase said stock was money he held in trust for them, and they asked that the stock be sold and the rights of all parties to the suit be determined.
The case went to trial, and, after the evidence of all parties was submitted, the court found that the four children of George K. Horton were the equitable owners of certificate of stock No. 403; that the interveners, having adopted and ratified said written contract for the purchase given by George K. Horton to the plaintiff herein, dated April 7, 1930, asked that the same be carried out, and its conditions complied with; that said C.F. Moulton has a lien on said 29 shares of stock represented by said certificate in the amount of $366.73; that George K. Horton has no interest in said shares of stock or in said certificate.
The court gave Moulton a lien on the stock for the above-specified amount, and the clerk of the court was directed to turn over to Moulton said amount out of the funds hereinafter required to be deposited by the plaintiff, less the costs of the case, which were taxed to the defendant Moulton. Moulton was required and directed to surrender the certificate of 29 shares of stock to the clerk forthwith, and, on the surrender of said certificate, the clerk was directed to pay him the aforesaid amount of $366.73, less the costs of the case, and the plaintiff was directed to deposit with the clerk the sum of $2,465.
Provision was made as to what should be done if Moulton failed and refused to turn over the certificate, and provision was also made for distributing this fund.
Moulton appealed from this decree, and the appeal was dismissed in this court on December 18, 1931. On December 24, 1931, *Page 620
the defendant Moulton filed a motion for a new trial in said cause in the district court. The substance of the showing made in the motion was that a few days before the filing of said motion the appellant discovered that in 1920 one Wm. Fall was appointed curator of the aforesaid interveners — the children of George K. Horton — in the probate court of Jackson county, Missouri, and he, as such curator, took possession of the property of the said four children and made numerous annual reports until he finally made settlement with his wards and was discharged from said curatorship in the early part of 1928; that nowhere in said proceedings is there recognized or shown anything to indicate that the father of George K. Horton was a trustee, or had any money at any time belonging to said children. Defendant attached to said motion a copy of all of the files in the aforesaid curatorship.
On the submission of this motion for a new trial, the court overruled the same, and it is from this ruling that Moulton now appeals.
The foregoing history of this case shows that the crux of the whole matter was the very narrow question as to whether Moulton or the plaintiff, through his assignment from Horton, was entitled to this stock. The lower court held, as indicated, that neither Horton nor Moulton was the owner of the stock, and the only interest Moulton had in the stock was as a holder of the same for security, and, upon the payment by the plaintiff of the amount found by the court to be due, the plaintiff was entitled to the stock.
Simply stated, Moulton's testimony was that he was the owner of the stock, and the substance of Horton's testimony was that he had been formerly the owner of the stock and hypothecated it with Moulton for a loan, and that later he (Horton) had assigned all of his interest in the stock to the plaintiff; that the money with which he purchased the stock in the first instance was funds held by him in trust for these four children, and they therefore were the real, equitable owners of said stock, and they joined in asking that the contract between Horton and the plaintiff be carried out.
The question therefore is whether or not the tendered testimony, to wit, the records of the probate court of Jackson county, Missouri, is such a showing as will entitle Moulton to a new trial. The most that Moulton claims from these records is that it is testimony tending to negative the claim of Horton and the interveners that the funds expended by him in the first instance for this stock were funds *Page 621
held in trust belonging to the interveners, or that the stock was so held in trust by Horton.
Section 11550, Code 1931, provides as follows:
"The former report, verdict, or decision, or some part or portion thereof, shall be vacated and a new trial granted, on the application of the party aggrieved, for the following causes affecting materially the substantial rights of such party: * * *
"7. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial."
We have settled the rule in this state that newly discovered evidence must be of such a character as that it is competent and material to the questions involved. Carlson v. Hall, 124 Iowa 121,99 N.W. 571; Buchholtz v. Incorporated Town of Radcliffe,129 Iowa 27, 105 N.W. 336; Long v. Davis, 136 Iowa 734,114 N.W. 197; Stodgel v. Elder, 172 Iowa 739, 154 N.W. 877.
Appellant insists that the proceedings in the Kansas City court show that George K. Horton and such interveners, by their sworn statements procured the adjudication of that court to the effect that none of said minors had any money at the time, or any interest in any property which could have been used for the purchase of the stock in question.
We have read the complete proceedings in the Kansas City court carefully, and are not able to make the same deductions therefrom as does the appellant. The curator filed in said probate proceedings an inventory, sworn to by him, which reads as follows:
"The following is a full and perfect inventory of all real and personal estate of the said minors so far as the same has come to the possession or knowledge of the undersigned curator of said minors."
It is to be remembered that the testimony of the father was that the money which he invested in this stock was turned over by the mother of said minors in trust for them. We can see nothing in the Kansas City proceedings which would tend to negative this testimony of the father. The inventory filed in said proceedings showed that the only assets accounted for and handled in said curatorship was $6,660.63, received from the estate of Frances E. Bond, deceased, of Kingston, New York, on the 2d day of May, 1921, and *Page 622
this is all of the property that said curatorship handled belonging to said children. As noted, there was nothing in the proceedings in the Jackson county court which, to our minds, would tend to show that the claim made as to the source of the money from which this stock was originally purchased was not as claimed by Horton and the interveners. The Jackson county proceedings purported only to handle the funds or property of the minors which came into possession or within the knowledge of the curator. The proof of the doings therein would not tend in any way to dispute the existence of this trust as claimed. It is to be remembered that George K. Horton was not the curator for the estate of these children, but apparently an outside and disinterested party occupied such position. Or, to state our conclusion in another way, we do not think there is any inconsistency between the testimony of Horton and the facts shown by the proceedings in the Jackson county probate court. It follows, therefore, as a necessary consequence, that the ruling of the district court in refusing to grant this petition or motion for a new trial was properly ruled. — Affirmed.
KINDIG, C.J., and EVANS, STEVENS, UTTERBACK, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433918/ | In September, 1933, the plaintiff commenced an action in the district court of Union county, Iowa, for foreclosure of a $10,000 mortgage upon a 200-acre farm situated in said county and owned by the defendant, Isabella McFee, who, together with Bruce McFee and Isaac N. McFee, joined in the execution of the note secured by said mortgage. On application of the defendants the cause was continued under the moratorium statute until March 1, 1935. On February 23, 1935, motion for continuance was filed under Senate File 34, Chapter 115, Acts of the 46th General Assembly, asking for further continuance to March 1, 1937, which was granted. A receiver or conservator was named in the order granting the continuance, and the order provided that such conservator was given authority to rent said premises for the year ending March 1, 1936, and to settle the balance of the rent due under the lease for 1934. It appears that the conservator and the tenant were unable to agree upon *Page 404
the terms of the lease for the year 1935, and the matter was again submitted to the court in June of 1935, at which time the court fixed the rental at $650 cash, payable in two installments. That order contained the following provision:
"7. In the event of a failure by said applicants to comply with any terms of this order or with any of the provisions of any lease executed by them under the terms hereof, then upon application by the plaintiff to the court or any judge of this judicial district upon such notice as the court or judge may prescribe, a ruling shall issue directing the said applicants to show cause why the rents should not be paid or other provisions of this order complied with, or at the election of the plaintiff this order for continuance shall be expunged and this cause shall proceed to trial the same as if this order had not been entered."
The defendants failed to comply with this order, the tenant on the farm, Bruce McFee — one of the appellants, who after the death of his mother owned a one-fifth interest in the farm — failed to make payment of any part of the $650 cash rent, and on March 2, 1936, the plaintiff filed an application for an order expunging the order for continuance. To this the appellants filed a resistance, setting up the fact that there was a substantial failure of crops on said land, and that one W.E. Johnson, who was representing the plaintiff, agreed to accept the sum of $450 in full of said rental, and that the said tenant was willing to pay said amount. The case was tried to the court, and after hearing the evidence the court sustained the application and ordered the expunging of the order for continuance because the terms of the order granting the continuance had not been complied with, the court apparently basing his opinion upon the provision in the former order in these words: "At the election of the plaintiff this order for continuance shall be expunged and this cause shall proceed to trial the same as if this order had not been entered," the court taking the position that since the former order contained this provision and the order was not appealed from, he was bound to carry out the order and expunge the order for continuance, the evidence clearly showing that the tenant had not complied with the order which granted the continuance, in that he had failed to pay any part of the rent.
The appellants take the position that this order did not bind the court of equity, and since the court had retained jurisdiction *Page 405
of the case, it had the power to modify and set aside this order, and that the court abused its discretion under the circumstances in expunging the former order; while it is the contention of the appellee that the comments of the court which were dictated into the record might justify the assumption that the court did base his finding on this one ground alone, that this dictated opinion in the record was no part of the judgment entry that was appealed from, and that this case is triable de novo in this court, and that the whole record should be examined and if there are any grounds upon which the opinion of the lower court can be sustained, the appellants must necessarily fail.
As we view the case, this provision in the order granting the continuance is not controlling. The moratorium statute contains a specific provision as follows: "Provided, however, that the court shall upon a substantial violation of its said order or orders, or for other good and sufficient cause shown, set aside said order of continuance, and the cause shall proceed to trial as by law now provided, the provisions of this act to the contrary notwithstanding." So, if the former order had contained no provision for expunging the order, the plaintiff would still have the right, under the very provisions of the moratorium statute to insist on the expunging of the order granting the continuance, and the court had the power to so expunge the former order and set it aside, and to order the trial to proceed. That is what the court did in the instant case. We are not able to find, upon examining the evidence, any showing of abuse of discretion of the trial court in making such order. It is true that the evidence shows there was talk of an adjustment between the conservator and the tenant, Bruce McFee, McFee demanding that he accept $400, which the conservator refused to entertain. McFee claims, however, that he did accept and agreed to recommend the settlement on the basis of the payment of $450, instead of $650, provided for by the court's order. This is denied by the conservator, and the appellant is not corroborated in his statement, and his own evidence shows that the compromise settlement for the cash payment, whatever it was to be, was coupled with a condition that they agree upon the 1936 rental, and there is no showing that the minds of the parties ever met or came to agreement or understanding in reference to the 1936 rental; so that on appellant's own contention the offer was never accepted as made, and *Page 406
appellant's contention that there was an agreement or settlement is not sustained by the record.
Appellants' counsel strenuously contends that a grave injustice is being done the appellants; that because of the weather conditions there was a partial crop failure on this farm in 1935, and that the court abused its discretion because of the equities involved. The evidence shows that the tenant-defendant, Bruce McFee, produced 1200 bushels of soft corn, about 600 bushels of oats and some timothy seed, and had the use of the meadow and pasture land; that at the time of the trial he had on the premises a part of this corn and oats, that he had 11 head of cows, 13 calves, 33 head of fall pigs, 10 brood sows and some work horses; that he also received a government check for the first payment in 1935 in the sum of $204. What the second payment would be is not shown by the record. So he was not unable to pay, and the plain import of his evidence is that he could pay this rent agreed upon, but to do so would require him to cut into his capital sum. Here is his own statement: "The corn is not in condition to feed work stock at the present time. If the court compels me to pay the full amount of the rent for 1935 I would just have to get rid of those fall pigs and I ain't sure that would do the job, and I would have the soft corn on my hands. I would have to pay it out of my working capital."
It should be observed that the order of the court fixing the $650 rental on this 200-acre farm was made in June, 1935. There was contention over the matter and the court had to fix the amount. It appears from the record that a restraining order has been entered in this court, restraining the plaintiff from disturbing the appellant in his possession until this matter has been determined by the Supreme Court. This restraining order was granted on condition that the appellant in possession should pay the appellee the sum of $450 to be applied upon the rent on or before the 15th day of May, 1936. Appellant in his argument states that this has been paid. It may be that $450 was adequate rental for the 200-acre farm, considering the crop conditions as they turned out to be at the end of the year 1935. But the court had previously determined this matter and fixed the amount the appellants should pay to the appellee as rental at $650. The trial court in fixing this amount apparently was advised of some of the difficulties that had existed between the appellant in possession and the plaintiff, and added the specific *Page 407
proviso, No. 7, which has heretofore been set out, which is in the nature of a penalizing provision intended to make the order for the carrying out of the provision of the court's order in fixing the rental as binding and unalterable as possible under the statute. The trial court did not see fit to disturb or change what his predecessor had placed in the order, and in accordance with said order, and also in strict accordance with the moratorium statute, expunged the former order because of failure to comply therewith.
We see no abuse of discretion and find no reason for disturbing the trial court's order. The case accordingly must be affirmed. — Affirmed.
PARSONS, C.J., and KINTZINGER, RICHARDS, DONEGAN, and ANDERSON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433919/ | In January, 1928, there was a contest before the board of supervisors of Sioux County, participated in by the owners of five different newspapers, three of which were to be selected as the official county newspapers for the year 1. COUNTIES: 1928. The contest was determined against J.D. official and Grace Bailey, and in favor of J.W. and newspapers: W.G. Van der Burg; and the Baileys attempted to appeal: appeal from this action by the board of unallowable supervisors by presenting a notice of appeal to service of Hatley Van de Steeg, who accepted due, legal, notice. and timely service on January 28, 1928, as attorneys for the appellees. The Van der Burgs were represented by Attorneys Hatley Van de Steeg in the contest before *Page 798
the board, and the Baileys by Klay Klay. The Van der Burgs entered special appearance, and moved to quash the notice and dismiss the appeal for want of jurisdiction. This motion was accompanied by the affidavits of W.G. and J.W. Van der Burg. By these affidavits, — which are uncontradicted, — it is shown that Hatley Van de Steeg were employed and paid in advance for the trial of this matter before the board of supervisors, and that, after they accepted service of the notice of appeal, they called the Van der Burgs to the office, and advised them what had been done; and they refused to ratify or confirm the action of the attorneys in accepting service of the notice of appeal.
The point made as to want of jurisdiction of the lower court to entertain the appeal from the action of the board of supervisors is that the attorneys had no power to accept such service, because, under the statute, the notice of appeal should have been served upon the Van der Burgs. This gives rise to the only question in the case, to wit: Was the acceptance of service by Hatley Van de Steeg, attorneys, sufficient to confer jurisdiction upon the district court? Numerous authorities are cited by both appellants and appellees, but none of them touch the real question in controversy here.
Our Code provides for many different appeals, in some of which service of notice of appeal shall be the same as that of original notice. Others provide for a notice of appeal, but do not provide the manner of service; while others simply provide a right of appeal, without even providing for notice.
The section of the statute under which this controversy arises is Section 5406, Code of 1927, reading as follows:
"Any applicant may * * * appeal to the district court from the decision of the board of supervisors as to the selection of any or all newspapers so selected by filing in the office of the county auditor a bond for costs * * * and by serving upon each applicant whose selection he desires to contest, and the county auditor, a notice of appeal."
A reading of the section shows that there is no provision as to the method or manner of the service of the notice of appeal, and it must also be conceded that it is to be served "upon each applicant whose selection he desires to contest."
It is first to be remembered that this is not a court *Page 799
proceeding, and the general rules governing such matters in court proceedings are not controlling.
The only authority we have been able to find, throwing any light on this subject in any way, is a part of the text of Section 148, 6 Corpus Juris 645, where it is said that attorneys may accept service "unless by statute or rule of court notices are required to be given to the party himself." This text seems to be bottomed on the case of Nash v. Gilkeson, 5 Serg. Raw. (Pa.) 352. In that case, the rules of the court required notice of the time and place of taking of depositions to be served upon the opposite party, and the court held that service on his attorney was not sufficient, and the depositions were stricken from the record. Is this rule tenable or applicable to the situation we have before us?
The right of appeal is not an inherent or constitutional right. The legislature may give or take it away, at its pleasure. In other words, the permission to appeal is a gratuity, and the legislature has the right to say upon what terms 2. APPEAL AND and conditions it will grant this right. It has ERROR: been said in many cases in this state that the nature of right is granted on condition that a notice of remedy: no appeal be served on the opposite party in the constitu- same manner and form as an original notice. tional These statutes generally provide, in terms, for right. service on the opposite party or his agent or attorney, and, of course, service under such circumstances must be made upon one of the three parties designated. In the case at bar, the legislature was not so liberal in its provisions as to notice, but provided that notice was to be served upon each applicant with whom he was contesting; and as appellants were contesting only with the Van der Burgs, under the statute, notice should have been served upon the Van der Burgs. Of course, this could have been by the usual method of serving, or they could have accepted service, which, in either event, would have been good service. But they did not do this, and, the statute not providing for service on an attorney, he cannot accept service. It is our conclusion that the service was insufficient, because not served on the party designated by statute. This result was reached by the district court, who dismissed the case for want of jurisdiction. With this ruling we agree. — Affirmed.
STEVENS, De GRAFF, MORLING, and WAGNER, JJ., concur. *Page 800 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433938/ | Under the evidence in this case the jury could have found the following facts:
This crime was committed on the 10th day of March, 1935, at about 4 o'clock in the afternoon, in a place known as the Sportsmen's Club, on West Seventh street, in Des Moines. This building faces Seventh street and is entered from said street by a door on the west side thereof. A partition runs north and south, in the neighborhood of 24 feet east from the front door, thus dividing the building into two rooms, and in about the middle of said partition is a double swinging door for passage from one room to the other. In the front room, on the south side thereof, is a bar about 2 feet wide and 3 1/2 feet high, paralleling the south wide of the building and about 4 feet therefrom. This bar is unbroken and extends from the west end of the building to the partition. Entrance behind the same is made by passing into the second room and then turning to the right and entering behind the bar from that room. On the day in question the defendant and his helper were in the second room from the street, with some other parties, figuring income tax. Two men entered at this time and sat down. After the parties who were there in relation to the income tax passed out of the building, the deceased, Donald Merrigan, and his wife and small child entered said building, and deceased stated to the defendant that they wished a private conversation with him. Defendant requested the other men to leave, which they did, and the front door was locked (this being on Sunday and not a business day in this concern). They all passed into the second room and sat down at a table. Inquiry was then made of Berlovich as to the whereabouts of one Lillian Shope (Laughlin), a sister of Mrs. *Page 1290
Merrigan. Berlovich said he did not know where Lillian was, and the deceased said, "Well, we know that you know where she is, or where we can find her." Berlovich called the deceased a liar and then hit the deceased with his fist while the deceased was seated. This resulted in a fight between the two men, and after it was over the wife and child of deceased started to leave the building. Deceased followed them, and the defendant, Berlovich went behind the bar on the south side of the building, and, as the deceased was moving toward the front door of the building on the opposite side of the bar from Berlovich, Berlovich picked up a revolver that he had behind the bar and fired two shots at the deceased. One shot missed him; the other struck him on the left side in the neighborhood of the heart and passed through his body, and he died as a result thereof. At the time that these shots were fired the deceased was moving toward the front door of the building, and after he was struck by the bullet he passed out of the front door and fell on the sidewalk in front of the building. He was taken to the hospital, where he died.
[1] The first complaint lodged against the action of the court is a claim of misconduct against the county attorney for insisting on a trial which occurred two weeks and one day after the commission of the crime. The usual complaint lodged against courts in criminal cases is the charge of too much delay in prosecution. We have carefully read this record and the defense made, and the testimony of all the witnesses. Defendant made a motion for a continuance on the day of the commencement of the trial, and it was overruled. This motion was based upon the same ground which is now charged to be misconduct of counsel in the prosecution of the case. We see nothing whatever in this charge of misconduct of counsel. Everything tends to show that the defendant had a fair and impartial trial, and there is no showing that he called for witnesses who were refused him, or that he could have gotten any other testimony than that which he introduced. The real contention of the defendant is that he should have had more time to prepare for trial. The practice in the district court is for the court to assign cases for trial, and not the prosecuting attorney, and why the prosecuting attorney should be charged with misconduct under these circumstances we are unable to see. However, as to the merits of the contention, we have settled this question in a case with parallel facts (State v. Brewer, 218 Iowa 1287, 254 N.W. 834), and have *Page 1291
held that the conduct of the court in setting the case down for trial eleven days after the crime was committed was not prejudicial error. Further than this, the question of the misconduct of the prosecuting attorney is a matter peculiarly within the discretion of the trial court, and unless there is a manifest abuse of this discretion the ruling of the trial court will not be disturbed. State v. Griffin, 218 Iowa 1301, 254 N.W. 841; State v. Williams, 195 Iowa 785, 192 N.W. 901; State v. Propp, 193 Iowa 383, 185 N.W. 90; State v. Brooks, 192 Iowa 1107, 186 N.W. 46; State v. Korth, 204 Iowa 1360, 217 N.W. 236; State v. Dobry, 217 Iowa 858, 250 N.W. 702; State v. Wheelock, 218 Iowa 178, 254 N.W. 313.
[2] The county attorney, in his closing argument, said: "I have branded Dewey Berlovich Public Enemy No. 1," and "I was about to tell my reasons for the opinion." This remark was objected to by defendant's counsel and the court said: "Counsel in argument are permitted to comment upon the record in the case, and they may apply all reasonable and natural inferences which grow out of the record. The expression in itself might be fairly within the scope of a comment on an ordinary case, were it not for a peculiar connotation that the expression has obtained in recent years and connecting up with others. On that basis, perhaps the objection ought to be sustained, and that part of the argument referring to the defendant as Public Enemy No. 1 is stricken." We think there is no error in this ruling of the court. The argument of defendant's counsel is not made of record, and it might be, so far as we know, that the remarks made by the county attorney were proper responses to the remarks made by the defendant's counsel. However that may be, under the court's order, the remark was stricken from the record, and hence no error.
[3] The next contention made is a double one, involving the insufficiency of the indictment and also the instructions of the court, in that it is not alleged in the indictment that the crime was committed with a "specific intent to kill." The indictment charges (and the instructions follow the indictment) that what was done was with "intent to kill," and the defendant's contention is that this is not sufficient, but that in both instances the term used should have been "specific intent to kill." With this contention we cannot agree. It is true that in many places in our decisions, and in the decisions of other states, *Page 1292
it is noted that one of the elements of the crime of murder in the first degree is specific intent to kill, but we have been unable to find any case in which an indictment or instruction has been held bad because of the omission of the word "specific." This question of intent is one of the necessary things to be considered in determining the mental attitude of the defendant. The word "specific" is generally used as an adjective. The real heart of the question is, What was the intent of the defendant? Did he have in his mind at the time an intention to kill the deceased? The word "specific" is used to distinguish this intention from any other intention that he may have had in his mind, and to require that the intention to kill was in actual existence in his mind. The term "specific" is used merely for the purpose of requiring the indictment to show that this particular intent to kill existed in his mind at the time of the commission of the offense. In other words, it does not make any difference how many intentions he had in his mind at the time of the killing, the only one for which he must respond is the intent to kill. It is in this sense, we think, that the books use the term "specific intent", and in the use of that term, when the indictment charges and the instructions require as a necessary element the "intent to kill", we think that that is all that is required, either in the indictment or the instructions. Were we to construe this as defendant contends, then, in every crime in which intent is involved, we would be required to hold an indictment or instruction bad which did not use the term "specific". For instance, in larceny the intent is to steal; in burglary the intent is to commit a felony. There has rarely been an indictment filed in the history of this state which would not be bad under the rule for which defendant contends. We are of the opinion that the use of the word "specific", either in the indictment or in the instructions, is not necessary to their validity.
There are a number of errors assigned on the admission or rejection of testimony. We have given careful attention to them, and find that in no instance was there reversible error.
When the state rested, the defendant made a motion to withdraw from the instructions to the jury the charge of murder in the first degree, on the ground that there was no evidence of specific intent to kill. A study of the evidence in the case shows that the ruling of the court in refusing to withdraw that charge was rightly made. *Page 1293
[4] Complaint is made against instruction No. 4, and, as correlated therewith, instruction No. 8. Instruction No. 4 consists in general of the exact terms of the statute (sections 12911, 12912, 12919) in the definition of these three crimes. Instruction No. 8 is related thereto, and sets out the exact and necessary elements defined in the Code for murder in the first degree, and, in substance, tells the jury that before the defendant can be found guilty of murder in the first degree it must be shown beyond a reasonable doubt that the defendant at the time and place specified did "with malice aforethought and with deliberation and premeditation, wilfully, unlawfully, feloniously and with intent to kill, shoot the said Donald Merrigan, as charged in the indictment, and that as a result thereof said Donald Merrigan died. If you so find, then it will be your duty to find the defendant guilty of murder in the first degree." The principal contention is against instruction No. 8 for the omission of the word "specific" before "intent to kill". We have disposed of this question. We are satisfied that the matters set out in instruction No. 4, as applied to the case at bar in instruction No. 8, correctly state the law. These two instructions being correlated, they must be read and construed together.
Instruction No. 11, dealing with the question of plea of self-defense, is also objected to. While it is very doubtful whether or not, under the record made in this case, an instruction on self-defense should have been given, assuming that it was a proper case in which the instruction should have been given, we can see no just criticism of the contents of this instruction. It is extremely lengthy, but that is no reason for its being held erroneous. The defendant asked an instruction on this same subject, which was refused; but the court properly covered the law of self-defense in the instruction given, and hence there was no error in refusing the instruction requested by the defendant on the same subject.
Error is also assigned on the refusal of the court to give instruction No. 2 requested by the defendant. The substance of this instruction was covered substantially in the instructions given by the court.
[5] Complaint is also made against instruction No. 5. This instruction is devoted to the definition of a number of legal terms involved, and, among others, is the following: *Page 1294
"Implied malice is that which is inferred from the acts and conduct of the accused and the means employed by him in doing an unlawful and injurious act without just cause or excuse. Where one assaults another with a dangerous and deadly weapon in such manner as will be likely to kill, it will be assumed in the absence of evidence to the contrary, that the assault was made with malice."
The particular complaint lodged against this instruction is the use of the word "assumed". In discussing this matter, defendant's counsel in his argument says: "Now, it may be presumed, but it is not necessarily assumed, and it is a question of fact for the jury instead of a question of law for the court." The words "assume" and "presume" seem to be generally considered synonymous. See 5 C.J. p. 1375; 49 C.J. p. 1340. Defendant's counsel suggests that the matter is controlled by our opinion in the case of State v. Hubbard, 218 Iowa 239, 250 N.W. 891, 253 N.W. 834. The cases are not parallel in any respect. We have repeatedly held in this state that the use of a deadly weapon in a deadly manner generates a presumption of malice, and if death results, justifies an inference of intent to kill. Klinkel v. Saddler, 211 Iowa 368, 233 N.W. 538. In the case of State v. Woodmansee, 212 Iowa 596, loc. cit. 619, 233 N.W. 725, 736, with reference to a similar question, an instruction was given:
"Where one person assaults another with a dangerous and deadly weapon in such a manner as is likely to kill, it will be presumed, in the absence of evidence to the contrary, that the assault is made with malice."
We there approved this instruction because of the qualification "in the absence of evidence to the contrary." This qualification is found in the instruction given by the district court in the instant case, and as the word used in the Woodmansee case was "presumed", we think there can be no difference in the force and effect of the use of this word "presumed" in the Woodmansee case and the use of the word "assumed" in the instant case. If, as we have held, the court has a right to instruct the jury that the presumption of malice is raised by the use of a deadly weapon in a deadly manner, and there is no evidence to the contrary, we can see no infringement on this rule by an instruction *Page 1295
which uses the word "assume" in place of "presume". The thought carried to the minds of the average jury would be identically the same. We therefore cannot find that the court erred in this respect.
Complaint is made of some other minor matters in the trial, but nothing of serious importance arises under these complaints, — at least nothing that would give rise to reversible error. Viewing the case as a whole, we find that the defendant has had a fair and impartial trial, and that no reversible error occurred therein. — Affirmed.
KINTZINGER, C.J., and MITCHELL, ANDERSON, DONEGAN, and HAMILTON, JJ., concur.
PARSONS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433940/ | Some considerable time prior to the transactions out of which this controversy arises, L.A. Andrew, superintendent of banking, was appointed receiver of the insolvent Eddyville Savings Bank. W.L. Edwards had on deposit in said bank a considerable sum of money. The amount of the dividend due upon said depositor's claim on final distribution by the receiver is $243.40, which is the amount in controversy, as between the contesting parties. Edwards, the depositor, was indebted to Knemeyer; and on October 11, 1928, the former executed unto the latter a written assignment of his depositor's claim, thereby authorizing the assignee to collect, receive, and receipt for any and all amounts to be paid thereon by the receiver; and on the same date, Andrew, the receiver, accepted notice of said assignment. After the appointment of the receiver, there were in charge of the affairs of the bank, as the appointees or employees of Andrew, the receiver, Huene and Mowery. The title of the former appears to be "examiner in charge," and that of the latter, "assistant examiner in charge." Mowery testified: "I had been appointed assistant examiner in charge of the records." It appears that the duties which devolved upon Huene by reason of his appointment were performed largely, if not wholly, by Mowery.
On September 27, 1928, Newell obtained a judgment against Edwards, and on the following day, caused an execution to issue, to make the amount of said judgment, and directed the sheriff to garnish, as the supposed debtors of the judgment debtor, "L.A. Andrew, superintendent of banking, and Kenneth Mowery, receiver in charge of the Eddyville Savings Bank." At the time when this case was tried in the district court, the original execution could not be found, and the judgment creditor endeavored to prove what had been done under the writ of execution *Page 1216
by secondary evidence, which was received by the court over the objection of Knemeyer. Since the submission of this cause to this court, the original execution has been found, and has been certified to this court by the clerk of the district court; and we have before us a motion by Newell, asking us to consider the original execution and return thereon; and in response to the motion, appellant states that he does not object to this court's considering as introduced upon the trial of the case below the general execution, with indorsement on the back thereof, and the notices to garnishee, except as to certain conclusions therein stated. It appears therefrom that Mowery was served with notice of said garnishment on September 28, 1928, and that Andrew was likewise served in Wapello County November 3, 1928.
The appellant, relying upon Martin Bro. v. Davis Co.,21 Iowa 535, McGowan v. Myers, 66 Iowa 99, Ewing v. Ewing P.M. Co.,183 Iowa 711, Alderson on Receivers 247, 248, Section 203, 20 Cyc. 1026, 28 Corpus Juris 71, and other authorities, contends that the receiver in this case could not be garnished, and that for said reason the appellee must fail. For reasons hereinafter given, we find it unnecessary to pass upon this question, and we make no pronouncement thereon.
Andrew, as receiver, in his answer states that his final report was approved on the 22d day of March, 1929; that the dividend upon the claim of W.L. Edwards amounts to the sum of $243.40; and that, as receiver of the bank, he tenders into court the sum of $243.40; — and he accompanied the tender with his check for said amount. Thus the sole issue is between the assignee of Edwards, upon the one hand, and the judgment creditor of Edwards, upon the other. The notice of garnishment was not served upon Andrew until November 3, 1928; while prior thereto, on October 11, 1928, he had accepted service of notice of the assignment by Edwards to Knemeyer. While Mowery, who, according to his testimony, had been appointed "assistant manager in charge of the records," was served with notice of garnishment upon September 28, 1928, this did not constitute service upon Andrew, the receiver. Mowery, the employee, was accountable only to Andrew; Mowery owed Edwards nothing. The only person accountable to, or owing money on distribution to, Edwards was Andrew, the receiver. Andrew *Page 1217
was the superintendent of banking, and upon his appointment as receiver of the bank, was its sole and only receiver and liquidating officer. See Section 9242, Code of 1927. Since the notice of garnishment was not served upon the receiver until 23 days after he had accepted service of notice of the assignment, the assignment is prior to the garnishment, and the assignee is entitled to the fund.
For the foregoing reasons, the judgment of the trial court is reversed. — Reversed.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433941/ | Appellee is the owner of the northeast quarter of the northeast quarter of Section 14, Township 84, Range 18, Marshall County, Iowa. Primary Road No. 14 extends north and south on the east side of the above tract, and was paved from the south to a point 123 feet north of the south line of the above described tract. The assessment was levied August 26, 1921, and the petition in this action was filed November 22, 1924.
The sole question presented is: Did the board of supervisors have jurisdiction to levy an assessment for a portion of the cost of said highway improvement against the tract described, or any part thereof? It is conceded that all of the proceedings of the board of supervisors were regular.
The statute in force (Section 4697, Code of 1924) at the time the improvement in question was made and the assessment levied, provided that:
"All real estate lying upon and immediately adjacent to each side of the highway, and constituting two continuous zones each 320 rods in width, measured from the center of the highway, shall be included within each district. * * *"
Only the south 123 feet of the land described were on the west side of the pavement. Appellee has not seen fit to file a brief in this court, but we gather from the record before us that his contention in the court below was that the board had authority only to assess the south 123 feet of appellee's tract: that is to say, that the land subject to assessment was that part of the tract that lay at right angles to the improvement.
The statute also provided that any landowner aggrieved by an assessment may appeal therefrom to the district court, by filing with the county auditor, within 15 days from the date of such levy, a bond conditioned to pay all costs in case the appeal is not sustained, and a written notice of appeal, which shall point out with particularity the specific complaint which he desires to lodge against the levy. Section 4713, Code of 1924.
The questions presented are analogous to those arising from street and alley improvements in cities and towns. Appeals from assessments levied for highway improvements are heard in equity, and the court is given express authority to raise or lower the assessment and make such an assessment as, in the judgment of the court, will be equitable. If the board of supervisors *Page 1116
had jurisdiction to levy an assessment for any amount upon any portion of appellee's tract, and he was aggrieved by the action taken, his remedy was by appeal. All of the matters of which he now complains could have been corrected on appeal. The collection of a special assessment will be enjoined only when the action of the assessing body was wholly void. This is the rule generally and particularly in cases of this character. Manning v. City ofAmes, 192 Iowa 998.
No attempt was made by either party to prove what amount might properly have been levied against the south 123 feet of appellee's land. If we assume, for the purpose of this case only, that the contention of appellee on this point is correct, there is no way by which this court can ascertain the amount, if any, that should have been levied against appellee's land. It is clear that the assessment was not levied by the board of supervisors without jurisdiction, and is not wholly void. This being true, cancellation thereof should not have been decreed, nor should judgment have been entered against appellant for the payments made. The remedy by appeal was adequate.
For the reasons indicated, the judgment and decree of the court below is in all respects reversed. — Reversed.
EVANS, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433942/ | On September 5, 1924, the appellee and the appellants entered into a written contract, providing for a sale by the appellants to the appellee of real estate described therein as follows:
"A tract described as beginning at a point on the east line of Fair Avenue as shown on the plat of James Grant's Subdivision, recorded in Book 30 of Town Lot Deeds, page 466, 1. REFORMATION in the office of the recorder of Scott County, OF Iowa, 240 feet south of the north line of Sec. INSTRUMENTS: 23, in Twp. 78 N., Rng. 3 east of the 5th P.M.; instruments thence running south along said east line of reformable: Fair Avenue 40 feet; thence east 140 feet more making or less, to the west line of the alley in Block contract for 6 in said subdivision; thence north 40 feet; and parties. thence west 140 feet, more or less, to the place of beginning."
The purchase price of said real estate was $5,000. The appellee paid $1,000 at the time of the execution of the contract. It is therein provided that the balance, $4,000, shall be paid by *Page 1013
monthly installments of $35, commencing October 1, 1924, except that, on July 1, 1925, the sum of $1,000 was to be paid; but the appellee had the right to convey to appellants Lots 11 and 12 in Block 2 of Westholme's Fourth Addition to the city of Davenport, in lieu of said $1,000. The contract further contains the usual provisions as to payment by appellee of taxes and of interest upon deferred installments, and that, upon full performance by appellee, the appellants will execute a warranty deed. It is admitted that the description of the real estate in the contract is erroneous. The appellee prays for rescission, and the appellants for reformation. We do not deem it necessary to set out the testimony. While there is some conflict therein, yet there is no conflict as to many of the salient facts upon which the case must be determined.
The house upon the real estate which the appellee intended to purchase faces westward, upon what anyone, in looking at the same, would take to be a street; but it has not been dedicated to the city, nor accepted by the city as such, and the city, for said reason, has refused to pave the same. The title to the real estate which has the appearance of a street, as well as to about 18 feet to the east of the sidewalk running along same in front of the property which the appellee intended to purchase, is in one of the appellants. To reform the contract as prayed by the appellants, there would be about 18 feet east of the sidewalk, and between it and the house, which the appellee believed she was getting by the purchase, and which anyone who saw it would consider as a front yard; and the west end of the house comes within about 3 feet of the west line of the property which the appellee would obtain if the court should grant reformation, as prayed by the appellants. The east line of the property in controversy is an alley. The house had just been erected by one of the appellants before the sale. The south line of the property, according to the description contained in the contract, cuts the house which the appellee intended to buy in the middle thereof, and the north line of the property, according to contract, cuts the house owned by the Lorenzens on the north in about the middle.
Before the appellee entered into the contract, the property was shown her by a real estate agent; and it is fairly established by the evidence that the agent, standing on the sidewalk, represented *Page 1014
to her that the tract of real estate extended from there eastward to the alley, which representations the appellee believed and relied upon; and that she would not have entered into the contract, had she known that the west 18 feet of what she believed was the front yard was not to be included in the real estate to be conveyed.
It is also established by the evidence that the real estate agent, at the time he showed the property to the appellee, pointed out to her what he said was the north line thereof, as being north of the house a sufficient distance to provide a driveway on the north side thereof, which representations the appellee believed and relied upon; and that she would not have entered into the contract, had it not been for said representations. If reformation were granted, as prayed by the appellants, it would leave an insufficient space for a driveway on the premises.
The appellants, in an amendment to their answer, brought in, by way of cross-petition, the Lorenzens, the owners of the property to the north, and alleged in said amendment that they claim some interest in the real estate which plaintiff actually bought, and which will be correctly described if reformation is allowed, as prayed in defendants' cross-petition; and they pray, as against the Lorenzens, that the court decree that they have no interest in the real estate properly described, when reformation is made. The Lorenzens answered the cross-petition, neither affirming nor denying that they claim any interest in the real estate, but alleging other defenses, as against the cross-petition. The court in the decree, as hereinbefore stated, granted rescission, denied reformation, and, in addition thereto, dismissed the defendants' cross-petition, and entered judgment against the defendants in favor of the Lorenzens for the costs upon the cross-petition.
The first thing which comes before us for our consideration is a motion by the appellee to dismiss the appeal, because no notice of appeal was served upon the Lorenzens or their attorneys, — which motion to dismiss was ordered submitted with the case.
The conclusive answer to this contention of the appellee's is that the defendants have appealed only from the judgment and decree of the trial court rendered in favor of the plaintiff. It *Page 1015
2. APPEAL AND was not necessary for the defendants to appeal ERROR: from that portion of the decree dismissing their notice: cross-petition as against the Lorenzens, and failure to rendering judgment against them for the costs serve thereon made; for they were entitled to take an non- appeal from any specific part of the judgment or interested decree. Section 12837, Code of 1924. The parties. Lorenzens were not necessary parties to determine the questions arising as between the appellants and the appellee, as to whether or not the appellee is entitled to rescission, and as to whether or not the appellants are entitled to reformation. The motion to dismiss the appeal is overruled.
Now, what as to the merits of the contentions of the respective parties? As hereinbefore stated, it is admitted that the description of the real estate in the contract is erroneous. There was a mistake of fact relative to the property to be conveyed. The reformation asked on account of a mutual mistake of fact as to the real estate to be conveyed, cannot be granted unless it be established by clear, satisfactory, and convincing evidence that the minds of the parties met and agreed upon the property which the vendor offers to the vendee by the reformation. As shown by the record, the appellee believed that she was buying a strip 40 feet wide, extending from the sidewalk east to the alley. This fact is conclusively established by the record; for the real estate agent testified that he intended the appellee to think that she was getting the real estate between the sidewalk and the house, and the appellee testified that she believed, from the representations made, that she was to get that real estate. No other rational conclusion can be arrived at. Therefore, the minds of the parties never met upon the purchase by the appellee of the real estate now proposed by the reformation asked by the appellants to be given to the appellee, for it does not include the 18 feet of lawn between the house and sidewalk. The appellants are not entitled to reformation.
The record conclusively shows false representations to the 3. VENDOR AND appellee by the appellants, through the real PURCHASER: estate agent, as hereinbefore mentioned, upon rescission: which she relied. Although said innocent misrepresentations may have been innocently false made, that fact does not prevent rescission. representa- Scienter need not be proven, in order to effect tions. a rescission. Gray v. Bricker, 182 Iowa 816; *Page 1016 Selby v. Matson, 137 Iowa 97. The controlling question of fact is whether the appellee's belief was induced by the aforesaid representations made by the agent of the appellants. Misrepresentation of material facts, although innocently made, if acted on by the other party, will constitute a sufficient ground for rescission in equity. 9 Corpus Juris 1169.
In Selby v. Matson, supra, it was said:
"The defendant had a right to have the thing — the particular land — for which he traded, and plaintiff could not substitute other tracts, even though of equal value."
In Clapp v. Greenlee, 100 Iowa 586, where the plaintiff entered into a contract for the exchange of real estate, and was shown the east half of the section which he thought he was purchasing, instead of the west half, which he actually procured, it was held that the plaintiff was entitled to rescission. The court there said:
"* * * if there was a mistake as to the subject-matter, then there was no meeting of the minds, — no contract between the parties."
In the instant case, there was no meeting of the minds upon the property to be purchased by the appellee. She believed that she was to obtain what was pointed out to her, before the contract was signed, as being within the boundaries shown. It is shown by the record that appellants intended to convey all of the realty east of the sidewalk. There is no plea of laches or waiver on the part of the appellee, and no evidence tending to establish the same.
We have scrutinized the decree rendered by the lower court, and find that its provisions place the parties in statu quo, and we are content with the judgment and decree rendered.
The action of the lower court is in all particulars affirmed. — Affirmed.
EVANS, C.J., and De GRAFF, ALBERT, and MORLING, JJ., concur. *Page 1017 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433949/ | In this law action plaintiff sought to recover damages from defendant for injuries sustained by him in an automobile collision while riding in the one of the colliding automobiles that was being driven by defendant; alleged negligence of defendant being the basis of plaintiff's cause of action.
As a defense defendant alleged in Division One of her answer substantially the following: that at the time of the accident plaintiff was an employee of one Dave Seigel, and received his injuries in the course of such employment; that such proceedings were had under the Workmen's Compensation Act (chapter 70, 1931 Code); that a settlement of plaintiff's workmen's compensation for said injuries was made by the payment of a lump sum to plaintiff by New York Casualty Company, the said employer's compensation insurance carrier, with approval of the Industrial Commissioner; that Exhibits A and B of answer are copies of memoranda of agreements executed by said employer *Page 129
and plaintiff for the payment of a weekly compensation; that Exhibit D is a copy of plaintiff's application for a lump sum payment of plaintiff's workmen's compensation, duly approved by the commissioner; that Exhibit C is a copy of a final receipt and release signed by plaintiff in consideration of a lump sum payment of such compensation; that Exhibit D contains the following recital, signed by plaintiff, namely:
"This application is signed with the distinct understanding that commuted settlement by lump sum payment in full of all installments to become due erects a legal bar against any further recovery whatever on account of the injury or death recited herein."
Plaintiff by reply admitted the execution of the instruments, copies of which are above Exhibits A to D of defendant's answer, and in the pleadings plaintiff and defendant both alleged or admitted the following facts: (1) that when injured plaintiff was riding in an automobile, (2) owned by said employer Dave Seigel, (3) being operated by Seigel's wife, defendant herein, (4) with Dave Seigel's consent, (5) that plaintiff was at said time an employee of Dave Seigel, (6) engaged in the course of his employment, (7) that on account of his injuries plaintiff was confined to his home, unable to work at his employment for a considerable period, and incurred expense for physicians, hospital, etc.
The issues having been made up by the pleadings, the defendant moved that the court enter a judgment against plaintiff in favor of defendant upon such pleadings; the motion setting out that on account of the admission by both parties of facts in the pleadings, as above related, the defendant is entitled to judgment upon the pleadings for the following reasons: (1) the facts show that plaintiff is not entitled to the relief demanded, (2) the facts show that plaintiff's injury was caused under circumstances creating a legal liability against his employer, Dave Seigel, (3) the facts show that said employer was the owner of the car in question, (4) the facts show the car was being operated by defendant with the consent of said Dave Seigel, (5) the facts show that the legal liability of Dave Seigel for plaintiff's injuries has been fully discharged; (6) that defendant is discharged from all liability on account of plaintiff's injury because there has been a discharge of the liability of the owner of *Page 130
the car, (7) that plaintiff is entitled to but one complete remedy against Dave Seigel or the defendant, and the plaintiff, having elected to pursue his remedy against Dave Seigel, cannot now recover for the same injury on the same cause of action against defendant for the reason that under the laws of Iowa plaintiff must not resort to a multiplicity of actions, (8) that a verdict against defendant would be contrary to the verities of the case and contrary to the law, and it would be the duty of the court to set aside the same.
[1, 2] Defendant's first assignment of error, viz., that the court erred in overruling the above-described motion, we now consider. Defendant's contention is grounded on section 5026, 1931 Code, providing that in all cases where damage is done by an automobile, driven by consent of the owner, by reason of the negligence of the driver, the owner is liable for such damage, and is also grounded on the Workmen's Compensation Act (sections 1398, 1407) providing that the compensation for the employee as fixed by the act shall be the measure of liability which the employer has assumed for injuries or death that may occur to an employee in his employment, and that upon payment to the employee of the compensation provided by the act the employer shall be discharged from all further liability on account of such injury or death. Defendant's argument is that by reason of Code, section 5026, the defendant and Dave Seigel, the owner of the car, became jointly liable for any damages recoverable by plaintiff herein. Her next proposition is that Dave Seigel, the owner, was released from his liability for damages by reason of the payment of the workmen's compensation. Therefrom defendant draws the conclusion that defendant is also released because, as defendant claims, the release of one or more persons jointly liable for a tort releases all. We think defendant's conclusion is erroneous. One of the premises on which it depends is the statement that because of section 5026, Dave Seigel became liable to plaintiff for damages done by Seigel's car, because it was driven by his consent, and the damages were sustained by reason of negligence of the driver having such consent.
[3, 4] If this statement be correct, it must be because above section 5026 repealed or modified the provisions of the Workmen's Compensation Act, particularly sections 1398 and 1407, wherein the extent of the employer's liability is measured and limited as hereinbefore stated. We cannot ascribe such legislative *Page 131
intent in the enacting of section 5026, although the latter section was the later enactment. There being in section 5026 no express repeal of, nor reference to, any part of the Workmen's Compensation Act, it must be by implication if a repeal or modification of any of the provisions of the act was effected, and a statute will not be held to be repealed by inference unless absolutely necessary. The general rule is that if, by any fair and reasonable construction, prior and later statutes can be reconciled, both shall stand. Fowler v. Board, 214 Iowa 395,238 N.W. 618. Another fundamental rule is that, in interpreting a statute to ascertain the true intent of the legislature, the court may consider what the law was before, the mischief against which it did not provide, the nature of the remedy provided, and its true reason, Stephens v. Davenport, etc., Ry. Co., 36 Iowa 327, and may consider the effect of the construction which is to be adopted, Long v. Schee, 86 Iowa 619, 53 N.W. 331. Likewise, statutes are to be interpreted according to their associations and environments. Junkin v. Knapp, 205 Iowa 184, 217 N.W. 834. On the one hand we have the Workmen's Compensation Act, intended by the legislature to be, within the scope of its operation, exclusive of all other legislation touching upon the compensation of the employee and the liability of the employer. Double v. Iowa-Nebraska Coal Co., 198 Iowa 1351, 201 N.W. 97; Hilsinger v. Zimmerman Steel Co., 193 Iowa 708, 187 N.W. 493. On account of such legislative intent that the act be exclusive in its field, it was held in the last-cited case that the act, though not repealing expressly or by implication code section 10986, according the father of a minor the right to maintain an action for the expenses and loss of service resulting from the injury or death of a minor child, yet the act did necessarily narrow the field of application of section 10986 to cases arising outside the field of the Compensation Act. On the other hand we have section 5026 enacted originally by the Thirty-eighth General Assembly as part of chapter 275, which was an act to repeal an earlier act relating to licensing and regulation of motor vehicles, and to enact a substitute, and to prescribe penalties for the violation thereof. What is now section 5026 was one of the things enacted evidently as incidental to the general purpose of reducing dangers to the public in the operation of automobiles. Thus we have the Compensation Act intended to be exclusive of other legislation in its field, and we have section 5026, a part of a body of *Page 132
legislation occupying an entirely different field, viz., that of licensing and regulating automobiles, and the matter of public safety on the highways. The reasonable conclusion is that, after enacting the Workmen's Compensation Act with respect to the rights and liabilities of employer and employee, with intention that same should be entirely exclusive of other legislation in that field, the legislature did not intend that, by a mere implication to be drawn from section 5026 enacted as a portion of legislation having for its purpose the licensing and regulation of automobiles, there should be wiped out the distinctly exclusive character of the Compensation Act. To the contrary it might be said that section 5026 is so inclusive in its terms that the inescapable interpretation would make it applicable as between employer and employee. But we think the duty is imposed on courts to function, in the interpretation of statutes, in a manner more likely to ascertain the real intent of the legislature than would result from arbitrarily adopting the verbiage of a statute, without heeding other indications of legislative intent, and without considering the result of such arbitrary interpretation. In Oliphant v. Hawkinson, 192 Iowa 1259,1263, 183 N.W. 805, 807, 33 A.L.R. 1433, this court quoted with approval the following:
"The intention of the lawmakers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. In construing a statute the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute, though not within the letter. A thing within the letter is not within the statute, if not also within the intention. When the intention can be collected from the statute, words may be modified or altered, so as to obviate all inconsistency with such intention. (Hoyne v. Danisch, 264 Ill. 467, 106 N.E. 341.) When great inconvenience or absurd consequences will result from a particular construction, that construction should be avoided, unless the meaning of the legislature be so plain and manifest that avoidance is impossible. (People v. Wren, 4 Scam. [Ill.] 269.) The courts are bound to presume that absurd consequences leading to great injustice were not contemplated by the legislature, and a construction should be adopted that it may be reasonable to presume was contemplated." *Page 133
All the foregoing matters considered, we are content to say that the true legislative intent was that section 5026 should have general application in the field the legislature was then considering; that is, the licensing and regulating of automobiles and safeguarding the public in their operation. Thus giving this section an interpretation which is full in its content and sufficient for the apparent purpose of the legislation, there appears to us that in the recognized rules of interpretation and in the environment and association and character of these statutes as pointed out there is necessity for saying that the legislature intended no excursion by implication into the field of legislation with respect to the rights and liabilities of employee and employer. We hold that there was no legislative intent in enacting what is now section 5026 to repeal or modify by implication or otherwise the provisions of the Workmen's Compensation Act we are considering. In fact, this proposition is conceded by appellant and by appellee in this case; they both asserting in argument that the only liability that was imposed on Dave Seigel was that imposed under the Compensation Act. The result in this case is that section 5026 imposed no liability on Dave Seigel to pay plaintiff damages on account of defendant's alleged negligence, and for that reason there could have been no release of Dave Seigel upon any cause of action on which he was liable jointly with defendant herein, as claimed by defendant.
Defendant's proposition that plaintiff is entitled to but one complete remedy against Dave Seigel or the defendant, and, having elected to pursue his remedy against Dave Seigel, cannot now recover for the same injury on the same cause of action against defendant, does not have merit in view of the facts herein. One very good reason defendant's proposition cannot be adopted is found in section 1382, 1931 Code. This section expressly provides that, when an employee receives an injury for which compensation is payable under the Workmen's Compensation Act, such injury having been caused under circumstances creating legal liability for damages against some other person than the employer, the employee may take proceedings against the employer for compensation, and may also maintain an action against such third party for damages.
[5] As pointed out in Hilsinger v. Zimmerman Steel Co.,193 Iowa 708, 187 N.W. 493, there seems to be no warrant under our statutes for a motion for judgment upon the pleadings, as *Page 134
filed in this case. However, the parties seem to have been agreeable to the submission of this issue in the lower court in such manner, and we have so treated it here, without intending to give sanction to the practice.
[6] After the court below overruled the defendant's motion considered in the foregoing, plaintiff filed a motion to strike from Division One of defendant's answer the following matters: the allegations with reference to the execution by plaintiff of the memoranda of agreement with reference to workmen's compensation, and voucher for lump sum payment, copies of which are above Exhibits A to D; also the exhibits themselves; also the allegations that the New York Casualty Company was the compensation insurance carrier for Dave Seigel and paid the amounts set out in Exhibits A to D. As grounds for this motion plaintiff set out that the statements and allegations constitute no defense to any of the matters complained of by plaintiff, that the payments described cannot be used by defendant as a reduction in this action of any amount that may be recovered by plaintiff, that neither New York Casualty Company nor Dave Seigel are parties to this action, and that the allegations are immaterial to any issues between the parties and are surplusage. These matters, to which plaintiff's motion to strike was directed, constituted transactions that Dave Seigel or the insurance company could allege under code section 1382, in a proper pleading seeking to be indemnified out of plaintiff's recovery of damages to the extent of compensation by them paid plaintiff. But these were not matters according defendant any defense to plaintiff's cause of action. Southern Surety Co. v. Chicago, St. P., M. O. Ry. Co., 187 Iowa 357 at page 361, 174 N.W. 329. The motion to strike was rightly sustained.
It follows that this case is affirmed. — Affirmed.
KINTZINGER, C.J., and ALBERT, PARSONS, DONEGAN, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433928/ | I feel that I must dissent from the majority opinion in this case.
The question for determination here is whether, under said section, 278.1, Code of 1946, the voters have been given power by the legislature to authorize certification, levy and collection of the tax not to exceed two and one-half mills on the dollar for a period of more than one year. Plaintiff-appellee contends that the statute is intended to meet the usual annual needs of a school district. Defendant-appellant contends that the statute gives authority to build up a surplus or reserve in addition to the power in a school district to issue bonds when approved by the voters and that the tax may be levied for any reasonable number of years upon being approved by the voters at one election.
I. In the case of a tax statute, where the legislative intent or meaning is doubtful, such statute, unless a contrary intention appears, is to be construed against the government or the tax levying bodies and in favor of the taxpayer or citizen. Clark, Dodge Co. v. City of Davenport, 14 Iowa 494, 500; Curtis v. Michaelson, 206 Iowa 111, 118, 219 N.W. 49; Merchants Supply Co. v. Iowa Employment Sec. Comm., 235 Iowa 372,16 N.W.2d 572, and cases cited; 51 Am. Jur., Taxation, section 316; Gould v. Gould, 245 U.S. 151, 38 S. Ct. 53, 62 L. Ed. 211, 213; Moorman Mfg. Co. v. Iowa Unemployment Compensation Comm.,230 Iowa 123, 296 N.W. 791; Great Northern R. Co. v. Board of Supervisors, 197 Iowa 903, 196 N.W. 284.
II. Construing the statute as to the intent, we should bear in mind the principles of construction above stated. The statute is one subsection of section 278.1, which section relates to the powers of the voters at the annual March meeting. Except as therein stated, the general affairs of the district are usually administered by the directors. The power granted in subsection 7 is for revenue raising and seems to be intended to provide for the ordinary annual needs for the purposes enumerated, which will, of course, vary from year to year. When the ordinary methods of raising ordinary funds seem inadequate, in addition to *Page 239
levies for general funds, and other funds are necessary which will require taxes to be levied over a considerable period for school building needs, section 298.21, Code of 1946, provides for the issuance of bonds when authorized by the voters "at the regular election or at a special election called for that purpose." There is also a provision authorizing the board of directors to certify a tax of one mill, as well as a tax for general purposes.
The fund for general purposes and the fund for the purchase of building sites being thus provided for as above set out, it would not seem reasonable that another section would be necessary, running year after year as a permanent fund, like a fund raised by bonds, but rather a fund to be provided in case of need or where the regular annual funds were insufficient. Two Code provisions for the same purpose would hardly be the intent of the legislature, nor does it seem reasonable to believe that the legislature intended that the fund of two and one-half mills each year was to be used to create a surplus which could be drawn upon at will or for some contingency, at the time of levy unknown, and which fund might be voted at one time by the voters at any election regardless of the wishes of the voters at some future election. The electors in future elections — the taxpayers in subsequent years — have the right to determine at the time of the regular election the present needs of their schools and it is so provided by the subsection under consideration. The voters have this power at each regular election. It follows that under defendant's construction the voters would be deprived of the exercise of that power at the annual election in each subsequent year, and such power should not be taken away from them for a period of ten or more elections. Interpreted as argued by defendant, if the tax is voted for a longer period than one year it would be an attempt to tie the hands of the taxpayers at future elections, with no limit as to the number of future years. Burkhead v. Independent Sch. Dist., 107 Iowa 29, 77 N.W. 491, cited in Independent Sch. Dist. v. Pennington, 181 Iowa 933, 165 N.W. 209.
III. It is true that in the Burkhead case the statute referred to has since been modified, authorizing schoolteachers' contracts in certain cases for longer periods by express authority of statute, as now amended. However, the Pennington case quotes *Page 240
from the Burkhead case (page 937 of 181 Iowa) the following:
"`An examination of the statutes leads to the inevitable conclusion that the legislature intended such contracts to be limited in duration to the school year as determined by the board of directors. If not so limited, then the directors might employ teachers for any number of years, tie up the hands of their successors in office, and wrest from the control of the people the schools which they are required to support. The spirit of these statutes is repugnant to the idea that one board of directors, by contract wholly to be performed in the future, can divest future boards of the power to select teachers and make contracts therefor, and indirectly take from the people all the advantages to be derived from annual elections.'"
If true as to the board of directors it is equally true as to the electors at an annual election who are permitted to speak as to the matters enumerated in subsection 7 of section 278.1
only once each year.
Defendant argues that the tax may be levied under the statute for a reasonable number of years, but who will say what will constitute the number of years which shall be reasonable, and who can prophesy what may be the needs of the district for each future year? Such a construction is an invitation to future litigation, instead of being clear and decisive.
IV. It is argued as to the words "for a period of ten years", which do not appear in the statute but which were used in the ballot at the regular election, that since no such words were in the statute the legislature purposely intended to omit any period of time so that the period might be provided in the ballot at the discretion of the board of directors, asking the authority of the voters to levy the tax. Far from being such a discretion vested in the voters, it is more likely to be an omission purposely intended. Great, Northern R. Co. v. Board of Supervisors, supra. and cases cited.
The statute is silent. There is nothing to indicate the vesting of any discretion as to the years. By its silence it indicates that it was not intended that any additional period of years be allowed beyond the current year. We should not look beyond the words of the statute for any additional grant of authority. *Page 241
See In re Guardianship of Wiley, 239 Iowa 1225, 34 N.W.2d 593, and cases cited.
The district judge in the case at bar aptly said: "If the legislature had intended it [the tax] to be levied for a longer period than one year, it would certainly have been the simplest matter in the world to have stated so."
In the opinion of the district judge it is further said: "The legislature, by placing subsection (7) in the section it did — the section that enumerates the powers the electors have at the annual election — and by remaining silent as to the number of years the levy could be made, placed a limit of one year thereon. In other words, it granted all the powers it intended to grant." With this statement we agree. See Burkhead v. Independent School District, supra.
V. Defendant argues that the construction of the statute as it urges herein has been applied by a number of districts in the state, and in some cases has had departmental approval. This is probably true and we do not doubt that departmental practice may be considered, but such approval may not overcome what we consider the purpose and intent of the law. Of course there is no record of the very large number of districts that have made no attempt to apply it at all other than annually. The rule as to departmental approval is fully stated in the case of United States v. Dickson, 15 Pet. (U.S.) 141, 160, 10 L. Ed. 689, 697:
"It has been also argued, that the uniform construction given to the act of 1818, ever since its passage, by the treasury department, has been, that the act has reference to the fiscal year. The construction so given by the treasury department to any law affecting its arrangements and concerns, is certainly entitled to great respect. Still, however, if it is not in conformity to the true intendment and provisions of the law, it cannot be permitted to conclude the judgment of a court of justice. The construction given to the laws, by any department of the executive government, is necessarily ex parte, without the benefit of an opposing argument, in a suit where the very matter is in controversy."
See also Prudential Ins. Co. of America v. Green, 231 Iowa 1371, 2 N.W.2d 765, 141 A.L.R. 1401. *Page 242
VI. Defendant devotes considerable space to the recital of the reasons and motives for the imposition of the ten-year levy. There seems to be no reason why the motive should be considered. The power to issue bonds up to the legal limit is possessed by the district, and the grant by the legislature of the right to an annual tax of two and one-half mills is granted to the electors, but the powers of the district are limited by the legislative grant of authority.
VII. The construction argued by the defendant is adopted in the majority opinion. As noted herein, I cannot concur in the reasoning, nor do I think that the case cited sustains the view of the majority opinion. Therein cited is the case of Ruff v. Womack, 174 Ark. 971, 298 S.W. 222. In considering the meaning of a constitutional provision it is argued that a provision of the constitution authorizing a school district to levy by a vote of the qualified electors of such district a tax not to exceed eighteen mills on the dollar in any one year for the maintenance of schools, that this was no prohibition against the legislature authorizing the electors to vote a continuing levy, but the tax in the Arkansas case was a different form of tax. It constituted a general school tax which would naturally continue from year to year until changed. The difference is that the present tax under consideration seems to be an emergency tax and not, I think, to be intended to be a continuing general tax. Otherwise, the legislature would have said so.
The construction of section 278.1 should be construed in connection with other sections and chapters as to school purposes, notably chapters 296, 297 and 298. Chapter 296 requires an election before an indebtedness may be incurred in excess of one and one-fourth per cent of the assessed value of the taxable value of the property within the corporation, for buildings and sites of schoolhouses, and for issuing bonds for financing same.
Chapters 297 and 298 have extended provisions and safeguards for acquisition of sites and the building and repairing of schoolhouses, and the manner of financing such projects. These chapters are clearly designed to provide for financing over periods of time greater than one year, but section 278.1 seems intended on the other hand for current matters, including provision in paragraph 7 for any unusual current financial needs *Page 243
for schoolhouse purpose. To construe section 278.1(7) as intended by the majority opinion and as argued by defendant would result in permitting the board to build up a fund over a period of years to be used for some future and unknown, or at least unrevealed, schoolhouse purpose, and to avoid the safeguard these other sections provide before such purposes can be carried out.
I am satisfied that the words "in any one year" limit the power of the voters in any one year, and that they do not have the effect of permitting a grant of power to levy an annual tax over a period of years. A levy of such annual tax would not require such language since the annual levy would, of course, be the same each year.
I am unable to agree with the views of the majority in the construction of section 278.1(7).
SMITH, MANTZ, and WENNERSTRUM, JJ., join in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433931/ | The facts in this case, which are practically undisputed, are substantially as follows: The plaintiff brought a foreclosure action against W.S. Hart, and obtained a judgment; the land was sold, and a sheriff's certificate issued to the plaintiff under date of November 27, 1925. Within the proper time, the defendant William S. Hart redeemed from said foreclosure by paying to the clerk of the district court $8,617.89, plus certain costs. This payment was made by turning over to the clerk a draft for $8,000, and also a check for $617.89. The clerk, on receipt of the same, notified one Pieper, local representative of the plaintiff, of such payment on the date the same was made, which was November 27, 1925. On the following day, Pieper appeared at the office of the clerk, and the clerk suggested that he would pay this amount, and drew a check for the full amount of $8,617.89, but stated that he must take the draft and check down and deposit them, or he would be overdrawn. Together they went to the First National Bank, where the $617 check was deposited; but the bank refused to accept the $8,000 draft, because it was made payable to William S. Hart and the Prudential Insurance Company, and while Hart had indorsed the same, the Prudential Insurance Company had not done so. The indorsement of Hart on this check or draft left it payable to the Prudential Insurance Company, and it was then arranged that the $8,000 draft should be turned over to Pieper; and the clerk drew a check, payable to the Prudential Insurance Company, for $617.89, and delivered the same, together with the draft, to Pieper. Pieper, on the same day, forwarded both of these instruments to Pike, Sias, Zimmerman Frank, at Waterloo. principal attorneys in charge of this foreclosure, and the papers reached them on the morning of November 30, 1925. In the city of Waterloo was a company by the name of Leavitt Johnson Trust Company, which had authority to indorse the said draft, being agents of the Prudential Insurance Company of America. As soon as the draft reached the Waterloo attorneys, they called *Page 803
a member of the firm of Leavitt Johnson by telephone, and turned over to that company the aforesaid draft and check. They immediately, and in due course of business, included it with other matters of a similar nature, and forwarded the same to their Chicago correspondent. The draft for $8,000 was duly paid, and is not involved in this controversy. On the morning of November 30, 1925, the first National Bank of Waukon closed its doors, and went into the hands of a receiver; and the check for $617.89 issued by the clerk was never paid.
As above noted, this proceeding is summary in its nature, plaintiff demanding judgment against Shafer, clerk of the district court, for the amount represented by said check. The evidence shows that the First National Bank of Waukon was the general depository of Shafer, clerk of the district court. It further shows that this bank was regarded as a strong bank, and that the clerk not only deposited his official funds, but his own private funds, therein, and that he had no information or knowledge of any kind that the bank was insolvent, or of any danger of suspension of the bank, and no reason to suspect that it was other than a solvent institution at the time he made this deposit.
The clerk filed an answer; but in proceedings of this kind, an answer or response by the defendant does not cast any greater burden upon the plaintiff. State v. Morgan, 80 Iowa 413. Section 11612, Code of 1924, provides that matters of 1. JUDGMENT: this kind "shall be heard and determined by summary the court without written pleadings, and proceeding: judgment given according to the very right of effect of the matter." unnecessary pleading.
As heretofore noted, the check in controversy was made payable to the Prudential Insurance Company of America. It is urged on behalf of the clerk that, when Pieper received this check, he should have presented it to the drawee bank, 2. ATTORNEY AND which was situated in the same city as the CLIENT: clerk's office, and that, had he done so, the authority: check would have been paid, and this loss indorsement of would not have occurred. There is no showing of check. that Pieper had any authority whatever to indorse this check in the name of the Prudential Insurance Company of America, and the law gives him no such authority.Howard v. Kelly, 137 Iowa 76; Swanson Automobile *Page 804 Co. v. Stone, 187 Iowa 309; 6 Corpus Juris 659. This contention of the clerk's must fail.
It is also argued that, the clerk having notified Pieper of the payment of this money into the clerk's office on November 27, 1925, Pieper should have come in that day and drawn this money. This contention has no foundation in law.
The principal contention of plaintiff is that the clerk of the district court, as a public officer, is liable for any funds received by him by virtue of his office, as an insurer, and is not relieved from liability by the loss of the 3. OFFICERS: money without his negligence or fault. As liability: supporting this proposition they cite Code of not in 1924, Section 12783; Morgan v. Long, 29 Iowa insurer of 434; Wright Co. v. Harris, 31 Iowa. 272; official Billings v. Teeling, 40 Iowa 607; Doogan v.
funds. Elliott, 43 Iowa 342; Lowry v. Polk County,51 Iowa 50; Walters-Cates v. Wilkinson, 92 Iowa 129; Logan v.McCahan, 102 Iowa 241; also, numerous cases from other jurisdictions, to which foreign citations we will give no attention, as this case must be decided under the statutory law of this state.
Section 12783 reads:
"He shall be liable upon his bond for all such funds, moneys, or securities which may be deposited with him, and shall make complete verified statements thereof to the board of supervisors at the January and June sessions each year."
To fairly understand the import of this section, its previous history must be reviewed:
Section 370, Code of 1897, provided for the deposit of funds with the clerk of the district court by the administrator, guardian, trustee, or referee. The succeeding section (Section 371) provided that the clerk "shall be liable upon his bond for all funds, moneys or securities which may be deposited with him under the provisions of this chapter."
These sections of the Code of 1897 were amended by Chapters 13 and 14, Acts of the Twenty-eighth General Assembly, by striking out certain words therein, leaving the sections to read as subdivided in Sections 12778 and 12783, Code of 1924. The general subject of this chapter (551) is "Securities and Investments of Trust Funds," and we have serious doubts whether or not this Section 12783 is in any way controlling in the matter before us. But, if we assume that it is, the liability there provided *Page 805
is bottomed upon the bond of the clerk, and in order to understand what this liability is, we turn to Section 1059, Code of 1924, where the form of official bond is set out. The obligations of the principal are marked out, so far as material to this case, as follows:
"* * * that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; * * * that he will exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers, securities, or other property appertaining to his said office, and deliver them to his successor, or to any other person authorized to receive the same."
The question we have before us, therefore, is whether or not, under these statutory provisions, the clerk in the instant case is absolute insurer of the funds turned into his hands, or whether he is only liable in case he fails to comply with the statutory requirements to which reference has been made.
As to the cases cited by appellant, in the case of Morgan v.Long, supra, the sole question determined was whether certain funds came into the hands of the clerk by virtue of his office.
It was held that they did. Nothing further is determined in that case.
In Wright Co. v. Harris, supra, the county judge was the recipient of $217 from the executrix of an estate in payment of a claim due the plaintiff from the estate. He failed to pay this money over to the claimant. It was held that, under the statute, he had a right to receive said money, and that the failure of the county judge to pay it over to the claimant was a breach of the bond on which suit was brought.
In Billings v. Teeling, supra, the action was on the official bond of the clerk of the district court. The clerk had been elected for two terms, the money in question having been paid to a predecessor, and by him turned over to the present clerk. The bond sued upon was the bond for the clerk's first term of office. His plea was that the money for which suit was brought was in his hands at the expiration of his first term, and held by him at the beginning of his second term; hence no liability on the bond. The question determined in the opinion is the question of tender. (The money alleged to be in the hands of the clerk was paid into court as a tender.) The court instructed the jury, among other *Page 806
things, that money thus paid into court must be legal tender money. It was held that such question was not involved in the case, and further, that the clerk, as such, could not raise such question, because the right to object that it was not the right kind of money rested wholly with the person for whose benefit it was paid into court.
In Doogan v. Elliott, supra, one Killen was the executor of the estate of Thomas Doogan. Under the terms of the will, certain payments were to be made to one Patrick Doogan, whose residence was unknown, and in case he was not found, his share was to go to certain other legatees. Being unable to locate this heir, the executor, wishing to close the estate, reported the matter to the county judge, who ordered the money paid into the court, and the executor was discharged. It was held that the discharge of the executor did not depend upon the fact that the county judge made a written or oral order or any order of payment. When a county judge receives money from an executor, and settles with and discharges him, the judge and his bondsmen from that time become liable for the money in his hands. In this case, it was sought to hold the executor for this fund so paid to the county judge. It decides nothing except that the county judge had the right and power to receive such money, and that, when he so received it and entered a discharge of the executor, it released the executor and his bondsmen.
The case of Lowry v. Polk County, supra, is a case in which a county treasurer deposited county money in a bank, which was lost through the failure of the bank. It was there held that the county treasurer was absolutely liable for this fund so deposited. The case was made to turn upon the question of whether or not the deposit was a loaning out of the county's money in violation of the statutory prohibition against such conduct on the part of the treasurer. It was held that the deposit in fact did constitute a loan, and was, therefore, an unlawful deposit of public money, which constituted a breach of the bond. This doctrine has been thoroughly overruled by this court, however, in the later cases of Elliott v. Capital City State Bank, 128 Iowa 275; School Township v. Stevens, 158 Iowa 119; Leach v. Beazley,
201 Iowa, 337.
Walters-Cates v. Wilkinson, supra, is an action on the official bond of Wilkinson, clerk of the district court. In a partition case, there was an order made for the referees to pay certain *Page 807
funds to the clerk of the court. The holding was that the court had a right to make such an order, and that the clerk received said money by virtue of his office. So far as the case at bar is concerned, this was all that this court held in the Walters-Cates
case.
In Logan v. McCahan, supra, there was a co-executorship, and part of the funds belonging to the estate was in the hands of one of the executors. The court ordered the co-executor to bring action against him to recover the same; and, upon institution of an action, the defendant paid the amount in question, together with costs, to the clerk of the court. The clerk paid the money to one of the attorneys, and the holding was that the clerk was not justified in so paying the money, and that he was liable to the owner of the fund.
Turning now to the other side of this position, — what was the legislative intent in these various statutes as to the liability of the clerk of the court under these circumstances?
The only definite indication we have of this intent is that marked out in the aforesaid Section 1059, setting out the form of bond required of all officers, under which they are required to exercise reasonable diligence and care in the preservation and lawful disposal of all money, etc., appertaining to their office. It seems to us that, if it had been the intention of the legislature to make the clerk absolutely liable, or, in other words, an insurer of all funds that came into his hands, this provision would not have been placed in the required bond. There are many decisions of our court touching the question of deposit of money by officers in banks which subsequently failed; but, without now attempting to point them out, it can be said generally that many of them are decided under special statutes governing the particular case then under consideration, and we will not stop to designate them.
In the case of Ross v. Hatch, 5 Iowa (Clarke) 149, the county treasurer had, by way of taxation, collected certain funds that belonged to the plaintiff, which funds were stolen from the treasurer's office. The bond contained two clauses identical with those in the bond in the case at bar. We said in that case:
"The State has not seen proper to require of him [the county treasurer] more than reasonable diligence and care in the preservation and disposal of the public funds; and when he *Page 808
shows that he has exercised this diligence and care, and that the moneys have been stolen from him notwithstanding, he is discharged from all liability."
The rule of the Ross case is recognized and treated in Hunt v.Hopley, 120 Iowa 695, where we said, among other things:
"The liability of the officer, however, is to be controlled by the conditions entering into his bond."
In Rhea v. Brewster, 130 Iowa 729, certain funds came into the hands of the clerk, which he deposited, and drew interest thereon. The action was against the clerk and his bondsmen, to recover the interest. We there said:
"The appellants argue the case on the theory that the clerk is absolutely liable for money coming into his hands as such. In view of the form of the bond and the language of the statute, it is exceedingly doubtful whether this is so. See Ross v. Hatch,County Treasurer, 5 Iowa 149. The decisions relating to the liability of the school district are not in point, as they are based on statutes applicable to such officers only."
School Township v. Stevens, supra, is a case in which it is sought to declare absolute liability on a treasurer's bond, because of a clause in it requiring a reasonable diligence in the care and preservation of the fund, identical with the one before us. The funds were deposited by the school treasurer in a bank which failed, and the funds were lost. It was there held that there was not an absolute liability on the treasurer, so long as he complied with the requirements of his bond as to diligence and care.
Another phase of this question is discussed in IncorporatedTown of Conway v. Conway, 190 Iowa 563.
It is our conclusion under our former cases that the clerk of the district court in question was not absolutely liable, and was not an insurer of the funds in his hands, and, if he complied with the requirements of his bond as to the use of reasonable care, he is not liable herein. Under the evidence, the showing is that he deposited this money in the First National Bank of Waukon, then reputed and regarded as a strong bank; that he knew of no reason to question its stability, had heard nothing adverse to its financial standing, and had faith in it himself, because he made it a depository of his private funds.
We feel, under these circumstances and the showing made, *Page 809
that the clerk was not liable for this loss. This was the conclusion reached by the district court. — Affirmed.
STEVENS, C.J., and EVANS, De GRAFF, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433934/ | Plaintiff brings this action on an account for itself and two other accounts assigned to plaintiff by Marshall Field Co. of Chicago, and the Security Trust Savings Bank of Shenandoah, Iowa, the total claims aggregating $4,100. The accounts of the Marshall Field Co. and the claim of the Security Trust
Savings Bank were assigned to the plaintiff for collection. Other facts are hereinafter stated. Defendant filed a motion to dissolve the attachment upon the ground that the writ of attachment was improperly issued, as hereinafter considered.
[1] I. It is claimed that the property levied on by the sheriffs of Page and Pottawattamie counties, respectively, were not attached under writs directed to the sheriffs of the counties in which the property was located. Writs were duly issued by the clerk of the district court of Page county, directed to the sheriff of each of said counties, pursuant to the petition filed. After the writs were issued, plaintiff's attorney contemplated taking the writ directed to the sheriff of Pottawattamie county for the purpose of mailing it to him in that county. On reaching his office, he discovered that he had taken the writ directed to the sheriff of Page county. Thereupon he telephoned the clerk of the district court of Page county, advising her that he had taken the wrong writ. The clerk then directed him to write in the name Pottawattamie county, and forward it to the sheriff of that county, which he did. She also notified him that she would change the writ retained by the sheriff of Page county, making it apply to the sheriff of that county, which she did. Both changes were therefore made, or directed to be made, by the clerk of Page county. It also appears from the record that, notwithstanding the original switching of these writs, they were duly corrected, and proper levies were made under writs directed to the sheriff of each county. It necessarily follows that the attachment made under both writs were valid.
[2] II. It is also claimed there is no showing that the attorneys representing plaintiff were ever authorized to commence this action by the plaintiff, and were not authorized to execute the attachment bond filed in the action. It is contended that in order to authorize the commencement or continuation of litigation on behalf of a party, it is necessary to show that they had authority to *Page 446
represent the corporation they purport to represent. A number of cases are cited in support of this rule. It is true that in a direct action by an attorney against a corporation to recover fees, it is necessary to show that he was authorized to represent the person sued. In the cases cited, it was shown that the attorneys did not have authority to represent the parties they appeared for, and no recovery was permitted. In such cases, it was shown by the evidence that the parties they purported to represent neither directed nor consented to the employment of the attorneys. Antrobus v. Sherman, 65 Iowa 230, 21 N.W. 579, 54 Am. Rep. 7; Templin v. C., B. P. Ry., 73 Iowa 548, 35 N.W. 634; Griffith v. C., B. P. Ry., 74 Iowa 85, 36 N.W. 901; Orwig v. C., R.I. P. Ry. Co., 217 Iowa 521, 250 N.W. 148, 90 A.L.R. 258; Gillilland v. Brantner, 145 Iowa 275, 121 N.W. 1047.
The case at bar, however, is not an action between the attorneys and the corporation represented by them. On the contrary, it is an action commenced by the attorneys on behalf of plaintiff against the defendant, wherein the defendant seeks a dissolution and dismissal of the attachment on the ground that the attorneys prosecuting the same had no authority to represent plaintiff. In this kind of an action, it is the settled rule that the burden is upon the party questioning it, to prove the lack of authority. This rule is based upon the theory that a regular practicing attorney, as an officer of the court, is presumed to have full authority to bring and continue an action prosecuted for the party represented by him unless the contrary is shown. The burden is upon the defendant to prove a lack of such authority.
"It is well established in the courts of this country * * * that the appearance of a regularly admitted attorney at law is presumptive evidence of his authority to represent the person for whom he appears, and it devolves on the party impeaching the authority to show that it is invalid. This rule applies whether the attorney appears for a natural person or for a corporation." 2 R.C.L. 980, section 58; 6 C.J., 633.
"Although it is necessary that an attorney be specially authorized to act for a client, yet, in the absence of statutory requirements that the authority of an attorney shall be evidenced by writing, his position as an officer of the court makes it unnecessary for him, in the ordinary case, to show his authority in any way, there being a *Page 447
firmly established presumption in favor of an attorney's authority to act for any client whom he professes to represent." 6 C.J., 631, 632, section 128, with long list of authorities supporting this rule.
Harshey v. Blackmarr, 20 Iowa 161, 89 Am. Dec. 520; Wheeler v. Cox, 56 Iowa 36, 8 N.W. 688; Uehlein v. Burk, 119 Iowa 742, 94 N.W. 243; Lake City Co. v. McCrary, 132 Iowa 624, 110 N.W. 19; City of Cherokee v. Ill. Cent. Ry. Co., 157 Iowa 73, 137 N.W. 1053; Rankin v. City of Chariton, 160 Iowa 265, 139 N.W. 560, 141 N.W. 424; Walsh v. Doran, 145 Iowa 110, loc. cit. 113, 123 N.W. 999; Bond v. Epley, 48 Iowa 600; Reid v. Dickinson, 37 Iowa 56.
In Wheeler v. Cox, 56 Iowa 36, loc. cit. 37, 8 N.W. 688, we said:
"We may assume * * * that Foster was a practicing attorney of the court in which the action was brought. It is to be presumed, then, that he had authority to bring the action, and the presumption must prevail unless the evidence of a want of authority is clear and satisfactory. The records of a court, regular upon their face have a large degree of sanctity attached to them, and are not to be lightly overcome. Harshey v. Blackmarr, 20 Iowa 161 [89 Am. Dec. 520]."
In Walsh v. Doran, 145 Iowa 110, loc. cit. 113, 123 N.W. 999, this court said:
"In the absence of bad faith on the part of the attorney, the presumption that he is authorized to appear for the client whom he represents is strong, and can only be overcome by clear and satisfactory evidence."
[3] It is likewise contended that the attorneys representing plaintiff had no authority to execute the attachment bond issued on behalf of plaintiff. What has been just said also applies to this contention, and if defendant has failed to show such attorneys' lack of authority to represent plaintiff, then as such attorneys they were authorized to execute the bond. An attorney, representing a party, has, under section 10922, authority to execute a bond for his client. This section provides:
"An attorney and counselor has power to: 1. Execute in the name of his client a bond, or other written instrument, necessary *Page 448
and proper for the prosecution of an action or proceeding about to be or already commenced, or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein."
[4] In this action, the evidence fails to show that the attorneys representing plaintiff had no authority to prosecute and continue the litigation. On the contrary, it is shown that the general counsel of the plaintiff, residing in a foreign state, forwarded the business to the attorneys representing them here; and that the other claims referred to were duly assigned to plaintiff for collection. An assignment for that purpose is valid. Knadler v. Sharp, 36 Iowa 232; Searing v. Berry, 58 Iowa 20, 11 N.W. 708; Gere v. Council Bluffs Ins. Co., 67 Iowa 272, 23 N.W. 137, 25 N.W. 159; Abell Note Co. v. Hurd, 85 Iowa 559, 52 N.W. 488; Lehman v. Press, 106 Iowa 389, 76 N.W. 818. It is also shown that the parties represented by the attorneys in this action sent them funds to pay the cost of the attachment bonds filed in the action. Defendant has failed to show that such attorneys had no authority to appear for the parties represented by them. The burden is not upon the attorneys to prove their authority, but is upon the defendant to show the lack of such authority in this action. Therefore, under the well-settled law in this state, the presumption must prevail that such attorneys were duly authorized to appear for the parties they represented.
The evidence in this case, aided by the presumption, tends to show that authority was given. The fact that there may have been no direct evidence tending to show the adoption of a resolution by the corporation authorizing the employment of the attorneys does not prove that such authority was not in fact given. We find no error on this branch of the case.
[5] III. It is also contended that the original bond was not sufficient to meet the requirements of the statute. The amount of the debt was $4,100. The original bond was for only $8,500. Under direction of the court, this objection was cured by the filing of a new bond in the sum of $12,500, within the time authorized by the court. This bond was duly filed with, and approved by, the clerk. This action of the court is authorized by section 12143 of the Code.
It is also claimed that the bonds filed were not approved by the clerk. It is shown by the record that both bonds were approved by the clerk when filed. Both bonds were duly certified to this court by the clerk of the district court. This certificate shows that *Page 449
both bonds were approved at the time they were filed and entered by him. His certificate to that effect is endorsed upon the original bond certified to this court. We find no error in this complaint.
[6] IV. It is also contended that the court erred in failing to release as much of the property levied on as exceeded the amount of plaintiff's claim. While there was evidence tending to show that the value of the real estate might exceed the amount of plaintiff's claim, it fails to show, under existing conditions and real estate values, that more than an amount sufficient to satisfy plaintiff's claim could be realized from a sale of the land at this time.
[7] V. It is also contended that the court erred in not dissolving the levy upon real estate in Pottawattamie county, and also the garnishment of Mr. Davis, a referee, in a partition proceeding pending in that county, on the grounds that the property was in custodia legis. It is the general rule, as contended, that property in custodia legis cannot be attached.
It is also the general rule that a referee appointed to sell land in a partition proceeding is not subject to garnishment, before the proceeds of the sale have been received by him, and before an order of court has been made directing distribution thereof. Martin v. Davis, 21 Iowa 535; Pugh v. Jones, 134 Iowa 746, 112 N.W. 225, 11 L.R.A. (N.S.) 706, 120 Am. St. Rep. 451, 13 Ann. Cas. 499; Malone v. Moore, 208 Iowa 1300, 227 N.W. 169; Shumaker v. Bohrofen, 217 Iowa 34, 250 N.W. 683, 92 A.L.R. 914.
To authorize a dissolution of an attachment under this rule, however, it must be shown that the property levied on was in custodia legis, and the burden of establishing this status is upon the applicant for a dissolution. The difficulty with defendant's contention, regarding the real estate, is that the evidence fails to show that it was in custodia legis. The return of the sheriff on the original writ has been certified to this court, and it simply shows that he levied upon an undivided 1/24 interest in and to certain described real estate, without any showing that the land so attached was the land involved in the partition proceedings. It is not sufficient to allege that the property is in custodia legis. That fact must be established in some manner by the party alleging it.
It is likewise the rule that a referee can be garnished, after the proceeds of the sale have been received by him, and after distribution thereof has been directed by the court. In such event, he is *Page 450
subject to garnishment, and is considered an agent of the party entitled to the proceeds.
"This exemption continues as long as the person holding the property is primarily accountable to the court for it. It ceases when he becomes personally accountable to defendant. Accordingly it is generally held that he may be held as garnishee after the purpose of the law's custody has been accomplished." 28 C.J. 66 and 67; Code, section 12158; Boyer v. Hawkins, 86 Iowa 40, 52 N.W. 659; Boylan v. Hines, 62 W. Va. 486, 59 S.E. 503, 13 L.R.A. (N.S.) 757, 125 Am. St. Rep. 983; Dunsmoor v. Furstenfeldt,88 Cal. 522, 26 P. 518, 12 L.R.A. 508, 22 Am. St. Rep. 331; Weaver v. Davis, 47 Ill. 235; Smith v. People, 93 Ill. App. 135; Fearing v. Shafner, 62 Miss. 791.
The difficulty with appellant's contention is that the record fails to disclose whether or not partition had already been made, and whether or not an order of distribution had been directed by the court. Nor is there any evidence tending to show whether or not the garnishee had funds in his hands for distribution belonging to the defendant in this action. If the garnishee had funds in his hands belonging to the defendant after sale of the real estate and after a direction by the court to make distribution, he would be subject to garnishment. To authorize a release of the attachment, it is necessary to show that the distribution stage of the partition proceedings had not yet been reached. The burden of showing the property is not subject to attachment is upon defendant. As this has not been established, we are unable to say at this time that the referee was not subject to garnishment. Our holding on this branch of the case will not preclude the referee, administrator, or trustee, from showing that the land or funds are not legally subject to attachment when answering the garnishment proceedings.
The foregoing disposes of all errors alleged based upon the motion to dissolve attachment. For the reasons hereinabove pointed out, we are constrained to hold that the action of the lower court in overruling the motion to dissolve the attachment was right.
The judgment of the court is therefore hereby affirmed.
MITCHELL, C.J., and STEVENS, ALBERT, ANDERSON, and DONEGAN, JJ., concur. *Page 451 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433936/ | We give our attention first to three questions of fact: (1) Whether a relationship of trust and confidence in fact between decedent and defendants existed. If so, (2) whether defendants, through such relationship and in their dealing 1. TRUSTS: with decedent personally, obtained an advantage existence: or profit. And if so, (3) whether the profit or constructive advantage obtained by each was separable and trusts: several from that obtained by the other and fiduciary obtained severally and separably from each other relation: or jointly. The evidence is not materially in burden of conflict. Only the conclusions of fact and of proof. law to be drawn from facts proved are the subject of the controversy.
Decedent was never married. She was born in Bohemia, could not read or write, could speak English, but spoke Bohemian when talking with people of that nationality. She had been doing domestic work. An employer testifies that:
"She stopped working for us in November or December, 1925. She was very ill, had been poorly all fall, had a very bad goiter, and it was affecting her nerves, and she was very sick after that. * * * In the fall of 1925, when my sister was paying her for the work, she said: `I am glad to get this money, because I want to buy my coal.' Then she spoke about her not working any more, and she said her brother [defendant Frank] had her money."
Decedent also had dropsy. She died May 29, 1928, at the age of 69, survived by three brothers and three sisters, and by nephews and nieces. She left a will, dated March 30, 1927, giving her property to her six brothers and sisters and a nephew, to be divided equally among them. She had a home, the proceeds of which were $1,900, which, with a check for about $60, given by Frank Fryauf to the administrator, the source of which does not appear, was the only property that came into the hands of the administrator. Defendant Krall is the husband of the daughter of defendant Frank Fryauf. Defendant Krall was at one time cashier of a bank at Hills, and later, cashier of a bank at Fairfax. Decedent had savings which, while Krall was cashier of the *Page 1162
Hills bank (prior to May, 1924), were deposited on certificate in that bank. The certificates were signed by Krall. A mortgage for $6,000, given by Bulger and wife, owned by the Hills bank, was, through Krall, sold to decedent. Whether decedent ever had personal possession of the mortgage does not appear. Krall told Bulger to pay the interest to defendant Frank Fryauf. Mr. Bulger testifies:
"He told us that Miss Fryauf had taken over the mortgage, and said something about Mr. Fryauf, having made up some of the amount. He said that he and Mr. Fryauf were looking after Miss Fryauf's business for her. He said that she could not read or write. We later went to see Mr. Fryauf, and told him we wanted to increase the loan, and wanted cheaper interest. He said they might do a little better. He was looking after Miss Fryauf's business. A little later, I saw Mr. Fryauf again, as to who I would have to pay, or about the papers, and he said they were at the bank."
Mrs. Bulger testifies that Mr. and Mrs. Krall "told us to pay the interest to Mr. Frank Fryauf, at Iowa City, and that he was handling this business for Miss Fryauf. Frank Fryauf ran a harness shop in Iowa City. Mr. Krall told us that Miss Fryauf had some money, and that she thought it would be a good place to invest it, so they added more to it, as she did not have that much. Krall told us that Miss Anna Fryauf was an aunt of Mrs. Krall, and that they were looking after her business."
The Bulgers paid off the mortgage October 23, 1924, by check for $6,390, payable to the order of decedent. This check was paid, and has upon it decedent's indorsement by mark, attested by Krall. For this fund, under date of November 3, 1924, the Fairfax bank issued a certificate of deposit payable to decedent, for $6,400, signed by Krall, as cashier, which is stamped "paid" May 4, 1925. This certificate bears no indorsement. On May 4, 1925, certificate in renewal for $6,500, signed by Krall, cashier, was issued. It was stamped "paid" November 2, 1925, and has indorsed on it the name of decedent by mark, in defendant Frank's handwriting. This certificate was taken up by two new certificates, dated November 2, 1925, for $4,000 and $2,500, respectively, payable to decedent, which, in turn, were stamped "paid" February 10, 1926, indorsed in the name of decedent by *Page 1163
mark, defendant Frank (and another) witnessing the mark. It will be noticed that the certificates up to February 10, 1926, were payable to decedent only, and that the date these last mentioned certificates were taken up was two or three months after decedent had "become very sick," and had quit working. These were taken up February 10, 1926, by new certificates of the Fairfax bank, one for $2,000, "payable to Self or Mrs. Nellie Grissel, or the survivor, or either of them;" one for $1,000, "payable to Self or Mrs. Frank Fryauf, Sr., or the survivor of either," one for $1,000, "payable to Self or Frank Fryauf, Sr., or the survivor of either or order;" one for $500, "payable to Self or Mrs. Charles Grissel or the survivor of either;" one for $500, "payable to Self or Frank Fryauf, Jr., or the survivor of either;" one for $500, "payable to Self or Mrs. Glenn Mathes or the survivor of either;" one for $500, "payable to Self or Mrs. J.L. Krall or the survivor of either;" one for $500, "payable to Self or J.L. Krall, or the survivor of either." Frank Fryauf, Jr., is the son, and Mrs. Glenn Mathes and Mrs. J.L. Krall daughters, of Frank Fryauf. By this means defendant Frank was getting, contingently, $1,000 for himself, $1,000 for his wife, and $500 to each of his three children, including the wife of defendant Krall, and Krall was getting $500. The testimony of defendant Krall and his wife, in substance, is that the certificates dated November 2, 1925, were delivered to Krall by decedent at her home, and the indorsements (in Frank's handwriting) were on them at the time Krall obtained them from decedent; that decedent said to him, "I want you to issue these certificates, as follows," — giving him the names of the payees and the amount of the certificate to be issued to each; that, when the bank issued the new certificates, he delivered them to decedent; that he wrote out the directions, and "read it back to her, and she says, `That is right — that makes $6,500, doesn't it?'" When the certificates were renewed again, August 9, 1926, they were for the same amounts and the same payees, except that the one to Mrs. Charles Grissel, Sr., was for $400, instead of $500. Krall testifies that decedent "instructed me to renew the certificates just as they were, with one exception, — she needed some cash, and wanted a $100 off of one, and asked me to make Mrs. Grissel's certificate for $400, instead of 500;" that they were delivered to decedent. The indorsement on the last two mentioned sets of certificates was in the name of decedent by *Page 1164
mark, attested by Krall, or Krall and his wife. These certificates of August 9, 1926, were indorsed in the name of decedent by mark, and the indorsement witnessed by Frank Fryauf, and were renewed January 27, 1927. The renewals of January 27, 1927, were made in seven certificates, — six for $1,000 each. The six were each in the same form above set out, to "self," or, alternatively, one to defendant Frank Fryauf, Sr. , another to his wife, another to his daughter Mrs. Glenn Mathes, another to his son Frank Fryauf, Jr., another to his daughter Mrs. J.L. Krall, another to J.L. Krall. The seventh was for $400. It will be noticed that Miss Grissel and Mrs. Grissel, the payees in the next previous sets, were dropped. The certificates of January 27, 1927, were taken up by six certificates, dated February 11, 1928, each for $1,000, payable in like manner, "to Self or," alternatively, one each to defendant Frank, his wife, his same two daughters and son, and Krall. These were indorsed in the name of decedent, by mark witnessed by both defendants. They were payable in six months, but were renewed in about three months, — viz., May 3, or May 23, 1928, — except the one in which the wife of defendant Frank was named. She had in the meantime died, and the amount of that certificate had been paid to defendant Frank Fryauf, as defendants testify, by decedent's instruction. The renewals of May 23 (or 3), 1928, were in five certificates, for $1,000 each, "payable to Self or," respectively, to defendant Frank, to his two daughters and son, previously named, and defendant Krall. These certificates were, in terms, payable in three months from date, but were paid to the respective alternative payees June 2, 1928, less than a month after date, and three days after decedent's death. Thus $5,000 of the money which decedent had on deposit has found its way into the hands of defendant Frank and his children, including the wife of Krall, and $1,000 into the hands of Krall. These alternative payees gave no value for the certificates. The certificates, of course, as between the bank and the payees, evidence contracts (barring any question of fraud and notice through Krall, not here involved); but no question of contract, or the rights of the parties based upon contract, between the bank and decedent or the payees, is here involved. The money represented by the certificates belonged to decedent, and has been distributed by the defendants to themselves and to the children of Frank, including the wife of defendant Krall. Defendant Frank testifies: *Page 1165
"I didn't have nothing to do. She took care of her own business, and I just kept a box in the bank for her. Before Anna died, I remember that my name appeared in some of the certificates."
It was conceded at the trial that:
"The records show that this certificate [evidently meaning either the check for the proceeds of the mortgage or the certificate for $6,400 dated November 3, 1924,] was delivered to Frank Fryauf."
Krall testified that the certificates of January 27, 1927, were delivered to him by Frank Fryauf at Fryauf's home in Iowa City. As has been noted, Frank Fryauf witnessed decedent's indorsements. Krall testified that he, at decedent's directions, returned the certificates of February 11, 1928, to Fryauf; that they, later on, came into his possession from Fryauf; that, at the time he took them to the home of decedent, Frank Fryauf, Krall's wife, and decedent were there, and that was the occasion that decedent directed Krall to make the payment to Frank of the proceeds of the certificate payable alternatively to Frank's wife. The attorney who drew decedent's will testifies that decedent told Frank to take it, and put it in his box for safe-keeping, and that Frank was named in the will as executor, but refused to act. One of decedent's employers testifies that, on one occasion, decedent told witness "she had given her money to her brother Frank to take care of it for her, and she had put it in the Fairfax bank, she thought, — at least most of it;" "that she was placing some money with him for investment, and on another time, that she was giving Frank something to put in his box for her."
Clearly, decedent was not taking care of her own business, but it was being handled by defendants. On one occasion, several years before decedent died, according to the testimony of one of her sisters:
"I recall one time when John Krall and my brother Frank was there at the home, one evening, several years before she died. I saw Frank Fryauf go in, and John Krall was standing at the corner, about a half a block from the house, back of a little shed. Frank came out, went over to the corner, and went back to Anna's house; and when Frank went out the second time, I went *Page 1166
over to her place. When he went out the second time, he went to Krall, on the corner. I don't know what they then did. A day or two later, I stopped at the shop, and asked Frank what they were doing there that night, and he said that it was none of my business."
Neither Frank nor Krall denies or explains this circumstance. They offer no explanation of the making out of the certificates as indicated, except that decedent directed that they be so made out. These directions, if given, were given at a time when decedent was very sick. Krall and wife, or Krall and wife and Fryauf, were present. Though decedent was unable to read or write, she, according to defendants' claim, mentally computed the total of the certificates. Defendants say that, on the last renewal, she directed renewals in the same forms, in the same names, and that they be held at the bank, and, as soon as she died, be delivered to the parties named therein. It is undisputed that decedent expressed dislike for Mrs. Glenn Mathes and her husband; that she spoke of Mrs. Nearad as having been a good sister; that she said, "All that I have is to be divided among my family," and that she expected everyone to have an equal share; that she said that she did not know how she could get along without Mrs. Nearad; that, during the two years of decedent's illness, "the one year she was able to be around with us, to take care of herself a little bit, and about a year, she was hardly able to do anything. * * * The last year or so, she wasn't hardly able to get around — she had dropsy so bad, and I [Mrs. Nearad] would cook meals and take them over to her, and done her washing and ironing and took that over to her. * * * usually breakfast, she got herself, and then I took her dinner over, and she usually ate part of it and had the other part for her supper, that she warmed over. * * * She always never liked Glenn and Agnes, and she always said that whatever she had left after she was gone, that they would never get a penny of her estate, or anything out of it — she always told us that [giving her reasons] * * * Just the Thursday before she died, she told me, — she said I shouldn't worry, — there was no trouble about it, — she had everything fixed, and it was going to be divided between her brothers and sisters that was left * * * She said that, different times." This testimony was corroborated by that of decedent's brother William. No objection to the competency of these *Page 1167
witnesses is made. It is not claimed that decedent had the benefit of independent advice.
On this record, it cannot be seriously disputed that decedent did intrust to defendants the transaction of her business with respect to the deposits in question; that she 2. TRUSTS: put confidence in them; that she relied upon enforcement: them; and that they did, in fact, jointly action transact this business for her. They were not against acting in the execution of several or separable joint agencies or trusts, or independently of each parties. other. Their conduct of this business was joint and inseparable.
A relationship in fact of trust and confidence existed between the decedent, on the one hand, and defendants, on the other. While decedent's trust and confidence in defendants in the transaction of this particular business existed, and while defendants were ostensibly conducting for her the business intrusted to them, they obtained therefrom for themselves profits and benefits. Decedent was very sick, illiterate, inexperienced, and without the benefit of independent advice. Defendants were in a position of superiority or dominance. Decedent was in a corresponding position of inferiority and subservience. Her sentiments toward her other brothers and sisters, and particularly to Mrs. Nearad, who had served her so faithfully, and decedent's expressed intentions toward them, were thwarted. No purpose or reason for favoring defendants is shown. The circumstances loudly cry fraud; but if there is doubt about the sufficiency of the evidence to show actual fraud, equity, from the proved relationship and the advantage obtained by defendants therein, implies fraud, and demands of defendants proof that decedent, in extending to defendants the profits and advantages which they now claim, acted with freedom, intelligence, and full knowledge of all the facts. McNeer v. Beck, 205 Iowa 196; Curtisv. Armagast, 158 Iowa 507; Pruitt v. Gause, 193 Iowa 1354; Rollerv. Roller, 201 Iowa 1077. See, also, Albaugh v. Shrope, 197 Iowa 844; Osborn v. Fry, 202 Iowa 129; Corn Belt Sav. Bank v. Kriz,207 Iowa 11; Utterback v. Hollingsworth, 208 Iowa 300; Stonewallv. Danielson, 204 Iowa 1367.
Defendants have not discharged the burden which equity imposes upon them. They must, therefore, account to the estate for the $6,000 which they have diverted. Their liability extends *Page 1168
to the advantages obtained in the names of or for their wives and children. Haman v. Preston, 186 Iowa 1292. — Affirmed.
FAVILLE, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433943/ | No question is raised as to the method of procedure in this case.
An original action was instituted in the district court of Muscatine county, based on the following facts. In October 1932, a declaration of trust was made, by the terms of which *Page 1369
certain lands in Harrison county, Iowa, described as follows: the southwest quarter of the northeast quarter, the west half of the southeast quarter, the east half of the southwest quarter, the south half of the southeast quarter of the northwest quarter, and all that part of the west half of the southwest quarter lying south of the Willow River, all in section 21; also the northeast quarter of the northwest quarter of section 28, all in township 79 north, range 43, west of the fifth Principal Meridian, and containing 327 acres more or less, were declared to be held in trust by the Titus Management Company (the record title owner) for the benefit of certain specified parties. This declaration of trust recited that the Titus Management Company holds the above-described real estate in trust for the benefit of certain persons named, in certain shares (setting out the named beneficiaries); and that said trustee "shall have and hold the full legal and equitable title to said real estate so long as this trust exists." Further said trustee declares "that it does not have, by virtue of the aforesaid deed to it, and will not claim thereunder, any right to manage, control, lease, use or otherwise handle said real estate, nor any right to have and receive any of the annual rents, income and profits therefrom; the right to lease, handle, use and manage said real estate having been reserved by the beneficiaries hereunder, * * *. It is also agreed between the parties hereto that this trust may be ended at any time hereafter and the same shall be ended by written notice to that effect, delivered to said trustee, signed by beneficiaries holding an aggregate interest of not less than 44 parts out of the 60 parts, and thereupon this trustee agrees that it will convey said real estate by deed to said beneficiaries in their appropriate undivided shares, or, if said notice so requests, will convey said land to any nominee named by said notice."
It also gives the trustee the right to end the trust by giving to the beneficiaries sixty days' notice in writing, and, at the end of the sixty days' notice, by conveying said real estate, by its deed, to said beneficiaries in their appropriate and undivided shares, and delivering said deed to any one of them.
This declaration of trust was duly recorded in Harrison county, where the land lies.
Later an alleged proportion of the beneficiaries served notice on the trustee to terminate the trust, in which they elected to have the land conveyed to Frank Burnside, trustee. The management *Page 1370
company failed or refused to comply with the notice of termination of trust, and an action was instituted in equity, alleging among other things that the plaintiffs (the beneficiaries) "are the owners as beneficiaries of the fee title in common of the following described real property, to wit:" (here follows the description of the Harrison county property) and praying for a decree requiring specific performance of the contract, and an order on the trustee to execute a deed of conveyance of said property to the newly named trustee; and praying further for a decree "decreeing the performance of said contract styled `Declaration of Trust,'" and for "general and special equitable relief, and for such other, further and different relief as the merits of plaintiffs' cause may warrant."
A single question is raised in this case, and that is whether or not this motion for change of venue from Muscatine county (the seat of the action) to Harrison county (where the land in controversy is situated) should have been granted.
The statute on which this motion was based is section 11034, and reads as follows:
"Actions for the recovery of real property, or of an estate therein, or for the determination of such right or interest, or for the partition of real property, must be brought in the county in which the subject of the action or some part thereof is situated."
We have had this question before us many times.
The first case in the state was Johns v. Orcutt, 9 Iowa 350. This was an action by a vendor to enforce his lien against certain lands in Hardin county. The defendant resided in Grundy county, and moved for a change of venue, which was granted. The court said:
"The order of the court, awarding a change of venue to a different county from that where the land lay, and giving the defendants a sum of money as their charge for attending in the wrong county, was erroneous."
In Orcutt v. Hanson, 71 Iowa 514, 515, 32 N.W. 482, 483, a mortgage foreclosure was sought against land lying in Greene county. The court said:
"In our opinion, the circuit court of Cedar county had no *Page 1371
jurisdiction of the case, the statutes, as interpreted by this court, prescribing that plaintiff should have pursued his remedies in Greene county, where the land is situated * * *."
In Gilliland v. Inabnit, 92 Iowa 46, 60 N.W. 211, an action was brought in Lucas county to recover possession of certain land situated in the same county. A demurrer was filed to the answer, and sustained. The question there involved was an adjudication of certain rights by a court of record in the state of Kentucky, which decree was affirmed by the supreme court of Kentucky, and what was said in that case with reference to the action in rem
and in personam has to do only with the jurisdiction of the court in the state of Kentucky, and has nothing to do with the statute which we have under consideration.
In Booth v. Bradford, 114 Iowa 562, 87 N.W. 685, the suit was instituted in Guthrie county for an accounting, which involved among other things, a tract of land in Guthrie county as to which the plaintiff prayed a decree that he was the owner. It was held that the jurisdiction was in Guthrie county.
In Epperly v. Ferguson, 118 Iowa 47, 91 N.W. 816, a case much relied upon by the respondent, the plaintiff asked for specific performance of a contract as to certain lands situated in the county where the action was brought. There are some statements in this opinion which, at first blush, seem favorable to the contention of the respondent, but they are, in reality dictum. The holding of the opinion is that, the action being brought and tried in the county where the land is situated, the fact that the defendant may be a nonresident is not controlling, and the action of the district court in this case in sustaining its own jurisdiction is affirmed.
We have three cases in this state which are similar and should be treated together. Rea v. Ferguson, 126 Iowa 704, 102 N.W. 778, was an action for specific performance, but the land involved lay in the state of Wisconsin. In Sullivan v. Kenney, 148 Iowa 361,126 N.W. 349, the question involved was the setting aside of a deed to lands lying in the state of California. Barringer v. Ryder, 119 Iowa 121, 123, 93 N.W. 56, 57, was an action to set aside a deed for want of consideration. The deed conveyed land in the state of Wisconsin. We said:
"Although the land conveyed by the deed in question is in Wisconsin, all of the parties to this action are residents of Palo *Page 1372
Alto county, and all of the defendants were personally served with notice and defended. The case is analogous to one for specific performance, and a court of equity, having jurisdiction of the person, may entertain it, whether the land affected by the decree be within its jurisdiction or not."
In each of these three cases, the land being without the jurisdiction of the state of Iowa, the statute that we have under consideration could have no application.
In Donaldson v. Smith, 122 Iowa 388, 98 N.W. 138, the action was by a vendee for specific performance, and was instituted in the county where the land lay.
In Bradford v. Smith, 123 Iowa 41, 98 N.W. 377, the action was for specific performance of a contract to convey. It was held that the jurisdiction was in the county where the land lay.
In Long v. Investment Co., 135 Iowa 398, 112 N.W. 550, the action was by an executor to recall land to pay debts. It was held that the jurisdiction was in the county where the land lay.
In Wagner v. Glick, 177 Iowa 623, 159 N.W. 233, the action was to re-form a lease and to restrain the landlord from maintaining ouster, and it was held that the jurisdiction was in the county where the land lay.
In Lee v. American Trust Savings Bank, 209 Iowa 609,228 N.W. 570, the action was in Story county to rescind and enforce a vendor's lien on land in Story county, and as against a motion for change it was held that the jurisdiction was in Story county.
The last expression from this court involves an elaborate discussion of this proposition, in Eckhardt v. Bankers Trust Co.,218 Iowa 983, 249 N.W. 244, 252 N.W. 373. The action was to cancel a trust deed and quiet title. It was brought in Scott county, where the land lies, and as against a motion for change of venue it was held that the jurisdiction was in Scott county.
It is evident that the intention and purpose of the legislature in passing the section under consideration here was to have the records of the county where the land lies show all matters that in any way affect the title to said land. The cases that we have reviewed, which practically cover all the cases decided under this section of the statute, point to this undoubted conclusion. *Page 1373
Referring to the extracts we have made from the declaration of trust, we reach the conclusion that the jurisdiction is covered by the above-quoted section of the statute, and therefore is in Harrison county and not in Muscatine county. The court should have sustained this motion for a change of venue, sending the case for trial in the county where the land lies; and the respondent is directed to reverse his ruling on the motion for a change of venue, and to grant the same. — Writ sustained.
DONEGAN, C.J., and ANDERSON, KINTZINGER, PARSONS, HAMILTON, RICHARDS, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433944/ | The indictment charges the defendant with the crime of larceny by embezzlement, which crime is defined by Section 13031 of the Code, 1927.
The question presented by the appellant is as to whether or not the jury should have been allowed to find that, at the time in question, the defendant was the agent of Diamondis Varagian, *Page 544
the owner of the money, and as to whether the evidence is sufficient to establish said relationship.
The defendant's business was that of a real estate and loan agent. On July 6, 1927, Thomas Heim, the owner of a residence property located at 1451 Mt. Pleasant Street in the city of Dubuque, was desirous of obtaining a $1,500 mortgage loan upon his property, and authorized the defendant to procure the loan for him. The defendant made inquiry of one Pappas as to whether or not he could make a loan of $1,500. Pappas informed the defendant that he had no money, but that he had a cousin, Varagian, who had some money; and the request for the loan was made known to Varagian, who, with Pappas and the defendant, entered the defendant's automobile, and went to two banks, where Varagian obtained $1,500 in currency; and then the three went to inspect the property, in order that Varagian might ascertain whether a first mortgage thereon would be ample security for a loan of that amount. It is apparent that Varagian is somewhat handicapped by not being able to readily speak the English language, and because thereof, Pappas assisted in the negotiations. Varagian became satisfied that a first mortgage upon the Heim property would be sufficient security for the $1,500 loan. As they sat in the defendant's automobile, in front of the Heim property, the defendant requested that Varagian deliver to him the money, and call the next morning to get the mortgage. In compliance with the request, Varagian delivered to the defendant the $1,500 in cash, and told the defendant "to get a first mortgage on that property for $1,500. I told Reynolds myself, to get a first mortgage with that $1,500, and George Pappas told him that too." The talk between the defendant and Varagian was that the loan was to run for one year, and bear interest at 6 per cent. At the time when the $1,500 in cash was delivered to the defendant, he gave the following receipt:
"Dubuque, Iowa, July 6, 1927.
"Received of Diamondis Varagian Fifteen Hundred Dollars for Mt. Pleasant Street loan. 1 year 6%.
"C.H. Reynolds."
About 9 o'clock the next morning, Pappas called at the defendant's office, expecting to get the mortgage for Varagian, and was informed by the defendant that he came early, and he had *Page 545
not gotten around to it as yet. Numerous demands have been made upon the defendant, without avail, as to obtaining from him either the mortgage or the money. Heim testified that, although he had authorized the defendant to procure a mortgage loan of $1,500, he has never executed a mortgage. Heim and Varagian were not brought together in the deal.
The foregoing constitutes substantially all of the testimony relative to the proposition presented. At the close of the State's evidence, the defendant moved for a directed verdict, upon the ground that the evidence fails to show that he was the agent of Varagian. This motion was overruled, and was renewed at the close of all the evidence, and again overruled; and this action by the trial court is what is presented by the appellant for our determination.
The indictment charges that the defendant was the agent of Varagian. Should the jury, under the record, be allowed to find that the defendant was such agent?
"The crime of embezzlement embraces all of the elements of larceny, except the actual taking of the property or money embezzled." State v. Baldwin, 70 Iowa 180.
"An agent is one who derives authority from another to do a certain act." Walton v. Dore, 113 Iowa 1.
"`Agency' in its broadest sense includes every relation in which one person acts for or represents another by his authority." 2 Corpus Juris 419.
"The relation of agency does not depend upon an express appointment and acceptance thereof, but it may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case * * *, and if it appears from such facts and circumstances that there was at least an implied intention to create the relation, it will by implication be held to exist." 2 Corpus Juris 435, 437.
"The relation of principal and agent does not depend upon an express appointment and acceptance thereof, but it may be implied from the words and conduct of the parties and the circumstances of the case." 31 Cyc. 1217.
"It is not essential that any actual contract should subsist between the parties, or that compensation should be expected by the agent * * *." 21 Ruling Case Law 819. *Page 546
"Direct evidence is not indispensable, — indeed, frequently is not available, — but instead, circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject-matter of the contract." 21 Ruling Case Law 820.
For discussion as to some of the principles expressed in the foregoing authorities, see Burlington Sav. Bank v. PrudentialIns. Co., 206 Iowa 475, and Kann v. Fish, 209 Iowa 184.
In State v. Campbell, 99 Wash. 502 (169 P. 968), it is aptly stated:
"The evil at which the statute defining larceny by embezzlement is leveled, is not confined to instances where the agency involved is of long duration, or is broad and comprehensive in scope. If, at the time of the felonious and fraudulent conversion, the accused was an agent for a particular purposeonly, and the property appropriated was intrusted to him byvirtue of such agency, it is sufficient." (The italics are ours).
It frequently happens that one may be the agent of one party for one purpose, and agent of another party, connected with the same deal, for another particular or special purpose. In the instant case, while the defendant may have been the agent of Heim to procure the loan, the jury could well find that he was the agent of Varagian for the particular or special purpose of delivering the money to Heim, upon the execution by Heim, and the receipt by the defendant for Varagian, of the mortgage. It must be borne in mind that, at the time when Varagian delivered the $1,500 in currency to the defendant, Heim had not executed a note and mortgage to anyone, nor has he done so since. If we assume, without deciding, that Heim would have been entitled to the money upon tendering to the defendant a first mortgage upon his property securing the same, it is quite clear that, because of Heim's failure to execute the mortgage, the $1,500 delivered by Varagian to the defendant never became Heim's money. It was not the defendant's money, for the loan was not made by Varagian to him. In any event, until the owner of the property should execute a first mortgage securing the same, which has never been done, it was Varagian's money, in the hands of the defendant. The jury could well find, from the facts and circumstances, *Page 547
that the defendant was the agent of Varagian, and that the defendant received the money as such agent for the special purpose of delivering the money to Heim, upon the execution by him of the mortgage and the receipt by the defendant for Varagian of the mortgage. Since Heim has never executed the mortgage, the money which has been embezzled by the defendant has at all times been Varagian's money. Indeed, under the record, any other verdict could hardly have been expected.
We reach the conclusion that the court was not in error in overruling appellant's motion for a directed verdict, and that the evidence is amply sufficient to support the verdict.
For the foregoing reasons, the judgment of the trial court is hereby affirmed. — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433947/ | Defendant seeks to attach to the receipt by D.J. Murphy of the proceeds of a new loan which defendant made through Murphy for the purpose of paying off the note and mortgage in suit, the consequence of payment to plaintiff, claiming that payment was thus made to Murphy as agent for plaintiff. The evidence as to the relationship between plaintiff and Murphy is in many respects similar to that set out in Kann v. Fish, 209 Iowa 184. Plaintiff, through Murphy, made a farm loan to defendant, for which defendant gave to plaintiff the note in suit, dated May 18, 1915, for $4,000, payable 5 years after date, at the plaintiff bank, Guttenberg, Iowa, with interest at 7 per cent. By the terms of the note, defendant was given the privilege of paying $100, or any multiple thereof, at any interest-paying date. Payment was secured by farm mortgage. Defendant testifies that, in May, 1916, he told Murphy that he wanted to pay plaintiff and get a cheaper rate. Murphy "said he could get a loan from Lane Waterman at 6 per cent. I told him I wanted the abstract back, and he said he would send and get it. I paid Mr. Murphy interest on the Clayton County State Bank loan the 18th or 20th of May, 1916, and later I signed an application for a loan from Lane Waterman * * * to pay off the Clayton County State Bank. * * * I told him to go ahead and get it and pay off the Guttenberg loan. * * * When he got the money, he was to pay off the Clayton County State Bank loan. * * * He said he would do it. I had confidence in him. I felt absolutely certain he would do whatever he said he would do." Defendant also says that Murphy had told him that plaintiff would take its money, told him he had authority to take the money for plaintiff; that he relied on what he knew about Murphy's acting for plaintiff and on what Murphy told him, because he thought, if Murphy was not reliable, he would not be handling the loans; that he told Murphy to send the interest he was paying to plaintiff, and Murphy said he would. *Page 167
"When I came to pay the interest, I asked Mr. Murphy how much I owed him. I told him I was there to pay the interest. He figured up, and said $320, or $330."
It seems from defendant's evidence that Murphy charged interest on plaintiff's loan at 8 per cent, though the note called for 7. Plaintiff's evidence is that it was not paying Murphy compensation; defendant's is that he did not know that he was paying Murphy any commission. Murphy, under date of May 20, 1916, wrote to plaintiff, asking plaintiff to send defendant's abstract, as defendant "wants to pay off his loan. I tried to keep him from doing so, but he wants to, and would be awful sore at me if I insisted on his not doing so." Plaintiff forwarded to Murphy the abstract. The new loan from Lane Waterman was procured, for which Murphy received draft dated June 22, 1916, payable to his order, for $3,958. Murphy indorsed the draft and collected the proceeds. It seems that he forged a release of the mortgage held by plaintiff and made false entries on the abstract of title. Neither plaintiff nor defendant received any of the proceeds of the new loan. Defendant made no payment on the note held by plaintiff, other than the interest for the first year. Murphy kept up the interest payments. When the note matured, he sent to plaintiff a forged extension agreement. Defendant testifies that Murphy "said the money was there * * * to pay off the Clayton County State Bank loan. * * * He said he would pay — send the draft to the Clayton County State Bank. * * * Murphy told me that the Clayton County State Bank papers were canceled, and he would send and get them; and that is what he got the money for. * * * Murphy told me the Clayton County State Bank note and mortgage were in his office, but were mislaid some place, and he would send them to me."
There is much evidence on the subject of Murphy's collecting principal, as well as interest, on loans which he had made for plaintiff. The loan papers in such loans were retained by plaintiff in its own possession, and that is true of the note and mortgage in suit. There is no evidence that Murphy had authority to accept payment before maturity, except that Murphy requested plaintiff, in writing and by telephone, to accept payment of loans before they were due, and to increase the amount, and that *Page 168
such requests were granted. How many, is not shown. What, if any, response plaintiff made to Murphy's letter of May 20, 1916, is not shown, further than that Murphy received the abstract of title. It does not appear that defendant knew either of this letter or of plaintiff's acceptance of payment of loans before maturity. The evidence is insufficient to show ostensible agency. Defendant's reliance was on what Murphy told him, not upon other knowledge or information that he had concerning Murphy's agency, authority, or conduct of the business of the agency.
So far as the rights of the parties to this action are concerned, Murphy, in procuring the new loan, was defendant's agent, not plaintiff's.
While defendant had the right to pay any multiple of $100 on any interest-paying date, the interest-paying date was May 18th. The draft for the new loan was made out more than a month later. The draft was not for the full amount of defendant's note to plaintiff, and not for a multiple of $100. It was for $3,958, while the note was for $4,000. Defendant's testimony is not, in words or substance, that he paid Murphy for plaintiff, or that Murphy was paid the money for plaintiff. It is that he told Murphy to pay off plaintiff; that Murphy "was to pay off the Clayton County State Bank loan;" that Murphy said the money was there to pay off plaintiff, and "said he would pay — send the draft to the Clayton County State Bank." Whether there was any conversation on the subject of the amount of the draft and the note, or that the interest payment date had passed, does not appear; but the question whether the plaintiff "would take its money" was in their minds. There is no evidence whatever that defendant, in form or intent, paid $3,958 or $4,000 to Murphy as agent for plaintiff. It cannot be said, on this record, that defendant did make payment to Murphy as plaintiff's agent; that he intended to make such payment, or that Murphy accepted the draft as agent for plaintiff. Payment involves intent, express or implied, to make payment, on the one side, and to receive or accept it, on the other. The evidence is not that payment was made to Murphy, but that Murphy was to make payment to plaintiff, or send to plaintiff the draft. Murphy, at most, was the common agent of plaintiff and defendant, and his agency for defendant, on this testimony, was not completed; for Murphy was to, but did not, send the draft or the *Page 169
money to plaintiff. In re Receivership of Schanke Co., 201 Iowa 678. If it had been sent, plaintiff would not have been bound to accept it. Furthermore, the evidence is insufficient to show authority on the part of Murphy to accept such payment, or to accept it on a date when it was not payable. Dilenbeck v. Rehse,105 Iowa 749; 2 Corpus Juris 627, 632; 21 Ruling Case Law 869;Tropena v. Keokuk Nat. Bank, 203 Iowa 701. — Reversed.
ALBERT, C.J., and STEVENS, FAVILLE, De GRAFF, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3433914/ | In the early part of the year 1919, there was organized under the laws of the state of Iowa, a corporation by the name of the Farmers Union Exchange, at Oasis, Iowa. The object of this corporation was to, and it did, engage in the mercantile business at said town. As a corporation it was not a success. At its inception it commenced to borrow money from the plaintiff, appellant herein. By February 1921, it was indebted to the plaintiff bank in a sum in the neighborhood of $11,000, and the bank was demanding security. On the 16th of February of that year the following writing was made:
"For value received, we, the undersigned, jointly and severally hereby guarantee payment to the West Branch State Bank, of West Branch, Iowa, at its banking house in West Branch, Iowa, at maturity, all notes and obligations of the Oasis Farmers Union Exchange, together with interest on said notes and obligations, together with all costs and expenses, including attorney's fees which said West Branch State Bank, of West Branch, Iowa, may incur in any action, or actions, brought by it to enforce this contract of guarantee or collections thereunder. And, we further waive all demand, notice and protest upon or to us of or on any note or obligations covered by this guarantee. This guarantee shall remain in full force and binding upon the undersigned *Page 1384
until any and all indebtedness or liability hereby secured shall be fully paid."
This was signed by each of the defendants herein, all of whom were stockholders in the corporation.
The amount of indebtedness to the plaintiff bank at the time this guaranty was signed was represented by outstanding promissory notes of the defendant corporation. The notes then existing and the notes subsequently made were renewed from time to time, resulting in the notes set out in the plaintiff's petition.
The Farmers Union Exchange confessed judgment for the amount claimed in the plaintiff's petition. The defense of the individual defendants, as stated by appellees in their brief and argument, is: "Admission of the execution of the guaranty contract. Plea that the contract guaranteed only obligations of the Farmers Union Exchange which were in existence on the date the contract of guaranty was executed, to wit, February 16, 1921."
The case was tried to a jury, which returned a verdict in favor of the defendants. Hence this appeal.
It is apparent that one of the crucial questions in the case is, What is the rule governing contracts of guaranty under the circumstances of the present case? The contention of the plaintiff is that the guaranty is an unambiguous contract, and that it covers all loans made at different times by the bank to the exchange corporation. As stated, the contention of the defendants is that the contract covered only the indebtedness due on the 16th of February 1921, and that the individual defendants are not liable under this guaranty for any money loaned to the defendant corporation after that date. They also make the contention that after that date the exchange corporation paid enough to the plaintiff bank to cover the indebtedness that existed on that date, and that therefore they owe nothing under the guaranty. This is a general statement of the respective contentions.
[1] It is apparent, on reading the guaranty heretofore set out, that, while it creates an absolute liability on the part of the signers, it is indefinite and uncertain as to the very question under contention herein. With this uncertainty some questions arise. One of the controlling questions is as to what the intent of the parties was at the time of the execution of this guaranty. *Page 1385
We have settled the question under such circumstances in substantially this language: The intention of the parties shall be determined in the light of the surrounding circumstances and the conduct of the parties. Tucker v. Leise, 201 Iowa 48,206 N.W. 258; Harmon v. Hartman, 178 Iowa 912, 160 N.W. 295; Rapp v. Linebarger Son, 149 Iowa 429, 128 N.W. 555; Bridgeport Malleable Iron Co. v. Iowa Cutlery Works, 130 Iowa 736,107 N.W. 937; Fisk Co. v. Rickel, 108 Iowa 370, 79 N.W. 120; Campbell Banking Co. v. Worman, 99 Iowa 671, 68 N.W. 912; Hamill Co. v. Wood, 94 Iowa 246, 62 N.W. 735.
At this point arises one of the errors relied on, in that the defendants were permitted to show that after the 16th of February, 1921, the plaintiff was asking for new or further guaranty; and, among other things, the defendants introduced in evidence, over objection, an unsigned guaranty which the plaintiff had prepared. We think, in the light of the above rule, that this was properly admitted as showing the conduct of the plaintiff after the date of the signing of the guaranty.
[2] We have also distinguished in this state between an accommodation guaranty and a guaranty signed by a party in interest. In Valley National Bank v. Cownie, 164 Iowa 421, 424,145 N.W. 904, 905, Mr. Justice Evans said:
"The contract is something more than a contract of mere guaranty; it is signed by the stockholders of the borrowing corporation. * * * The borrowing was for the benefit of the guarantors as the owners of the borrowing corporation. * * * Because of their beneficial interest in the contract, these signers were not `favorites of the law' in the ordinary sense of guarantor or surety. Not only were they beneficially interested, but they were the only persons to be benefited by the loan. The corporation was their own artificial creation, organized for their own profit. As between themselves and their corporation, the corporation was the principal, and each signing stockholder was severally guarantor of a limited amount, which was proportionate to his interest. But, as between them and the loaning bank they severally made themselves to such extent absolutely liable as principals; and there is no principle of law which entitles them to more commiseration from the court than should be extended to any other debtor. Their undertaking was based upon a beneficial consideration coextensive with their liability." *Page 1386
In Bankers Trust Co. v. Beinhauer, 211 Iowa 112, 115,233 N.W. 34, 35, we said:
"No doubt the borrowing was for the benefit of the corporation. Generally speaking, the stockholders of a corporation are benefited by money loaned the institution. When that is the case, it may be said, under proper circumstances, that the `borrowing was for the benefit of such stockholders who became guarantors on the instrument by which the loan was effected.'" Citing, Hills Sav. Bank v. Hirt, 204 Iowa 940, 216 N.W. 281; Farmers State Bank of Strahan v. Fisher, 204 Iowa 1049, 216 N.W. 709.
It is apparent, therefore, under the circumstances, that the defendants do not fall within the rule that a guarantor is a favorite of the law; but that their liability should be determined under the general rule for the construction of ordinary contracts, to wit, "in the light of the surrounding facts and circumstances and the conduct of the parties." Hence, the court did not err in permitting the proof of the surrounding facts and circumstances and the conduct of the parties, including the unsigned guaranty.
This also disposes of the question of certain correspondence between the bank and the defendants, which we think was admissible under this rule.
[3] The plaintiff complains of the restriction of the cross-examination of the witness E.O. Knick, one of the defendants. In the sustaining of the objection to further cross-examination the court erred. Plaintiff made an offer to prove on said cross-examination certain matters which were material and went to the weight of the testimony as to what the intentions were at the time the writing was signed.
[4] Objection is made to the argument of one of the attorneys for the defendants, wherein he referred to the judgment having been entered against the Farmers Union Exchange. Under the circumstances set out in the record, we do not think the court abused its discretion in its ruling. However, by instruction No. 6 given, the court told the jury, after having referred to the confession of judgment by the Farmers Union Exchange: "* * * you will give no consideration whatever to plaintiff's cause of action as against the defendant, Farmers Union Exchange, and will consider the case only as to the liability, if any, *Page 1387
of the defendants (naming them)." We think this sufficiently protected the record against this complaint.
[5] Complaint is also made that the court required the jury to remain together for a period of approximately forty-six hours, including two nights, so that the verdict was not the free and voluntary action of the jury, etc. This question involves the discretion of the court in determining what length of time the jury should be kept out. Section 11500 of the Code provides:
"The jury may be discharged by the court * * * after they have been kept together until it satisfactorily appears that there is no probability of their agreeing."
This leaves the court as the arbiter of the length of time the jury should be kept together, and to reverse on said ground would necessitate a finding that the court abused the discretion given by said section of the statute. We do not think that the court abused this discretion, under the circumstances. See Armstrong v. James Co., 155 Iowa 562, 136 N.W. 686. The case of Clemens v. Railway Co., 163 Iowa 499, 144 N.W. 354, relied upon by the plaintiff, has no application, because the reversal in that case was based upon erroneous instructions given to the jury.
[6] Plaintiff also asked five instructions, all of which went to the question of inferences to be drawn by reason of the failure of all the defendants except Knick to testify in this cause, under the general rule that where a party is in possession of evidence material to the issue involved and on trial, and fails to produce such evidence on trial, an inference of fact arises that such evidence is against such party's contentions, and authorizing the jury to take into consideration such inference in the light of the record in this case.
The court was asked to give an instruction that the failure of a party to testify to facts that are wholly within his knowledge raises an inference that if he did testify the testimony would be to his disadvantage. We think that this instruction has no application to the situation we have before us.
The further question is raised as against the instructions that the notes now sued on were not in existence at the time the contract of guaranty was made. We do not think this is a material issue, because the notes sued on are shown to be renewals of the notes that formerly existed, and the contract of guaranty *Page 1388
recited that: "This guarantee shall remain in full force and binding upon the undersigned until any and all indebtedness or liability hereby secured shall be fully paid." It is therefore immaterial whether the notes are renewal notes or not, so long as they represent outstanding obligations and liabilities.
Some further objection is made to certain instructions, but what has been heretofore said will guide the court in a retrial of the case as to what the instructions should contain.
Another issue in the case was the one involving the contention that the defendants, if liable, were liable only for the indebtedness which existed on the 16th day of February 1921, when the guaranty was made.
Some other questions are raised in the case that are not likely to arise on a retrial, but for the errors pointed out the case is reversed. — Reversed.
DONEGAN, C.J., and KINTZINGER, PARSONS, HAMILTON, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
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