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https://www.courtlistener.com/api/rest/v3/opinions/3434326/ | Plaintiff has been engaged in farming and draying. He had owned second mortgages to the amount of $35,000 or more, among which was one on 160 acres securing a note for $4500 given by Reed, subject to a mortgage to Annis Rohling, for $15,500. Reed at the time in controversy was owing defendant bank more than $2,000. Since May, 1928, plaintiff had had a small checking account with defendant. In November, *Page 350
1928, plaintiff borrowed of the defendant bank $400, to secure which he assigned the $4500 note and mortgage. The $400 note was renewed from time to time thereafter with his son Leon as surety, the bank retaining the collateral. On July 31, 1930, plaintiff left with the bank another renewal for $300, $100 having in the meantime been paid, but Leon did not sign the new $300 note. On August 21, 1930, Annis Rohling wrote plaintiff, stating that there was $852.50 interest due and that the 1929 taxes were delinquent; that they were unable to get any response from the mortgagor; and that, unless the interest was promptly paid, they would find it necessary to go into the next term of court in foreclosure. On August 22, 1930, defendant wrote plaintiff, calling attention to Leon's failure to sign, and stating that the bank could not carry the renewal without Leon's signature, and unless it was obtained at once, defendant would have to cancel the renewal and collect the old note out of the collateral. On August 25, 1930, and again on September 1, 1930, plaintiff interviewed the cashier and assistant cashier of the bank in the presence of the stenographer, Miss Lyle. On each of those occasions plaintiff executed an assignment of the $4500 second mortgage (Exhibits 1 and 2). The suit is brought to reform these assignments. The disagreement of the parties is as to what was said on the dates the assignments were executed. Plaintiff's testimony, in brief, is that when he wanted anything on business matters he consulted with defendant's cashier, Roberts, and assistant cashier, Iddings; that he was unable to pay the $300 note; that he went to the bank pursuant to the letter of August 22nd.
"I went in to see about the note, and they started a conversation by putting the question up about the taking of this mortgage over and making a collection. * * * what Mr. Roberts (cashier) said to me, as near as I can tell it, he says, `If we can get an assignment of this, why it would help us collect, and we could use it as a club to collect our notes against Mr. Reed.' I said: `That is all right, I am willing if I can have the money we can get out of my mortgage, I will do that.' There was nothing said about asking Mr. Reed to sell the farm. Mr. Roberts said he thought there would be some chance of selling it. * * * Mr. Roberts said they would make the collection the best they could *Page 351
and give me my money and try and see if they could get enough to pay theirs off, — that is the way they could make the collection. By doing this they said it would help the bank get straightened out with the Reeds. They were talking about the $2,000 note that Reed owed the bank, and that is what they wanted to collect. Regarding the $300 note they said they would deduct that out and give me all the balance there was. Of course, as I said, `if this don't work out, and you can not get rid of the mortgage, and get the money out of it, I will accept the mortgage back, and still owe the 300.' They said they didn't hardly think there would be any need of that. * * * They was to cancel it for me when I signed this mortgage over, and mark it paid. Of course they didn't give it to me just then, but they give it to me later. * * * Q. Was there anything said by Mr. Roberts or Mr. Iddings at that time as to what was to be done with that mortgage when you signed this assignment, Exhibit 1? A. Why they was to take it and use it to help collect their money from Mr. Reed, and if they could sell the farm, of course it would be all right, and they might have to foreclose on it. * * * They were going to pay me the balance of what was left out of it and pay me the balance, — that is the words they used. * * * Exhibit 2 is dated August 25th. * * * I think I signed that instrument on the second visit, on the first of September. * * * that I got my $300 note back. * * * When he handed the note back to me on September 1st, I made the remark that `if this doesn't go through so that it's all right, I expect to have this note and mortgage back, and I will owe you the note.' * * * and he said he didn't think there would be any use, it would be all right. * * * In my opinion, a fair and reasonable value of that farm last August and September, I should judge, by the way land is priced and so on, that was selling or changing hands, was $130 or $140 per acre. * * * We didn't talk about there being $852.50 interest due and unpaid (on first mortgage). I had read the (Annis Rohling) letter before I gave it to the bank. I understood the interest wasn't paid, and understood that the taxes were delinquent. * * * I understood that Annis Rohling were about to begin a foreclosure suit * * * Exhibit 12 is an assignment in blank of this Reed mortgage, and was signed by me * * * on the 31st day of March, 1925. I had forgotten about that assignment. * * *" *Page 352
Plaintiff further testifies that the purpose of signing the assignment August 25th "was for to give them a chance to work with it, and then I told them I would sign it if they would give me the money that was left after it was sold, — that is, the mortgage, — done what they could do to sell it. Q. After paying your debt? A. Yes, sir. * * * They was to cancel it for me when I signed this mortgage over and mark it paid. Of course they didn't give it to me just then, but they give it to me later. * * * Q. Now did Mr. Roberts and Mr. Iddings say anything to you about the effect of these two exhibits here, Exhibits 1 and 2, the two assignments? * * * A. I says to them that I would not read it, I would trust them it was all right, and I would sign it; but before I signed it I wanted an agreement with them if they collected my money I was to get it. They said, `these assignments are all right,' — that is the way they worded it; that it was made for the purpose of giving them power to go ahead with this deal, to foreclose and collect * * * This mortgage * * * for the benefit of the bank and me and themselves on behalf of * * * the $300 note."
The testimony of the cashier, assistant cashier and stenographer is substantially identical. The stenographer, Miss Lyle, testifies that plaintiff "said he had got this letter from Annis Rohling, and they wanted this interest and taxes paid, and he was unable to pay those amounts. * * * He said he could not meet the $300 note. He said, would they just take the $4500 note for his $300, as he simply could not pay it, nor make these payments mentioned by Annis Rohling. Mr. Roberts said he would take the $4500 note for the $300 note. Mr. West said that would be agreeable to him. Then Mr. Roberts handed me the old assignment of mortgage that had been signed in 1925, and told me to make up a new one of this date, and a release, and I made those up. Exhibit 1 is the paper that I then made up. * * * Exhibit 1 was given to him to read, and he read it. I heard Mr. West testify that Mr. Roberts said to him in substance that he wanted the $4500 note and mortgage assigned to the bank in order that they could use it for a club against Mr. and Mrs. Reed. He didn't make any such remark, * * * at any time during the time he was in the bank. I heard Mr. West testify in substance that if he made this assignment to the bank it was upon the condition that the bank was to collect this $4500 note *Page 353
and then pay the $300 note owing to the bank, and pay the balance to him. No such conversation occurred. I saw the $300 note there that day. It was on Mr. Schenck's desk, within the reach of all of us. Mr. West did not take the note away with him that day. It was discovered after Mr. West had left the bank. I was in the bank on September 1, 1930, at the time Mr. West came into the bank. * * * At that time, in regard to Exhibit 2, Mr. Roberts told Mr. West that he had another assignment made up, and he read it to him. We were all standing around Mr. Schenck's desk there * * * and Mr. West sat down to sign it, and he said at that time something like this, that that finished him with the $4500 mortgage, and Mr. Roberts replied, in substance, `that is about the size of it, it surely does;' and then, after he had signed it and I took his acknowledgment, — you see it had August in here in the acknowledgment, and I had to take it to * * * change it to September * * * I heard Mr. West testify in substance in his evidence that Mr. Roberts wanted an assignment of Exhibit 2 for the purpose of using it as a club against Anna K. Reed and Pearl Reed in regard to the $4500 note and mortgage * * *. Q. Did Mr. Roberts make such a remark? A. No, sir * * * I heard Mr. West testify in substance that if Mr. Roberts, or the bank collected anything on the $4500 note and mortgage they were to take out sufficient to pay the $300 note and give Mr. West the balance, and heard him say the conversation took place on the first of September at the time and place I testified to. * * * No such conversation occurred."
On September 15, 1930, the land was sold by Reed to Olson for $20,800,-$1500 cash, $15,500 by the first mortgage, $3800 March 1, 1931. The cashier testifies that plaintiff "did not at any time or place, and particularly on the 25th of August, 1930, ever tell me that E.J. Olson might buy the premises described in the mortgage. I didn't know that Mr. Olson was interested in this quarter section at all until the 13th day of September, 1930. * * * I learned that the farm had been sold to E.J. Olson on the 13th day of September; I did not hear of it before that date, directly or indirectly."
The assistant cashier testifies:
"I had no information, directly or indirectly, prior to *Page 354
September 13th, that Mr. and Mrs. Reed were selling the land referred to in the $4500 mortgage, or at any time that Mr. E.J. Olson was a prospective buyer of this land. Mr. Ed West (plaintiff) never had asked me for any advice regarding any business matter."
The bank brought suit to foreclose the $4500 mortgage. Reed testifies:
"I had received some information regarding a transfer of this $4500 note and mortgage. I wanted to find out if he (plaintiff) had signed this over to somebody else. I asked him what he had did with the mortgage — the $4500 mortgage — and he said he had assigned it to the First National Bank for what he owed, and I had just talked to Mr. Hysham (defendant's attorney) before that, that is the reason I asked him, and he said he was out of it, and he was done with it. Mr. West said that. Mr. Hysham said he had started foreclosure, and that is the reason I went to Mr. West to find out if he had sold it, and he made the statement that he had. Mr. Hysham had told me that he owed a note to the bank, and I asked Ed (plaintiff) what it was, how much it was, and he said $300 and interest. He said he turned that over to pay that off. He said he had borrowed $400 in the first place, and that he had paid $100 on it, and then he turned this mortgage over to pay it. * * * Q. When first did you make any approach to Mr. E.J. Olson, who signed this contract of September 12th, with reference to selling the land to him? A. Well, after I had talked to Mr. West, — I could not say, — it was only a day or so afterwards. Q. And how long were you negotiating with Mr. Olson before you entered into this contract of September 12th? A. Four or five or six days. Q. And to whom did you communicate the information that you were negotiating with Mr. Olson? A. Paul Richards. Q. Did you communicate that to anybody else? A. No, sir. Q. Did you inform the First National Bank, or anybody connected with the bank? A. No, sir."
Mrs. Reed testifies that she was present at the conversation between plaintiff and her husband, and gives substantially the same version of it. She says:
"I don't think we said anything to Mr. Olson about buying *Page 355
the farm until after we heard they were going to foreclose on us. We hadn't tried to sell it to him until we found out that Mr. West said he didn't have anything more to do with the second mortgage; then we thought maybe he would buy it."
Plaintiff denies these conversations. The Olson sale was financed through an account on the books of the bank, carried in the name of the cashier. The bank paid the delinquent interest to Annis Rohling, $872.56, delinquent taxes, $222.65, attorneys' fees, $50, paid Reed in cash $761.65, cancelled his notes, $2,165.48. These, with plaintiff's note, $302.87, and the first mortgage, made up the purchase price of the land.
It must be remembered that this suit is not for cancellation of the assignments or for rescission of the agreement by which plaintiff's remaining interest in the mortgage was assigned to the bank. Plaintiff is standing upon the agreement. He has retained his $300 note. His contention is not that the agreement was void, but that it was different from that expressed in the writings. The assignment of August 25th was merely an ordinary assignment. That of September 1st recites:
"In consideration of the payment, cancellation and surrender of a certain promissory note for $300 (described) * * * I, Charles E. West, hereby sell, transfer, assign and set over to said First National Bank of Red Oak, Iowa, a certain note of $4500 (described) * * *." Also "* * * mortgage given to secure said note (described) * * * I authorize said First National Bank * * * to collect, enforce and cancel said indebtedness and mortgage and retain as its own all proceeds therefrom."
Plaintiff contends that the bank stood in a fiduciary relationship to him, obtained an unconscionable advantage of him, and has the burden of proof to establish good faith; that fraud will be inferred from the relationship and inadequacy of consideration.
As the suit is for reformation, and not for cancellation, these considerations are applicable only to the question of what the contract actually was, and whether the defendant, in reducing it to writing, fraudulently so phrased it that it did not express the true agreement. The agreement, as written, expressly states that the bank is "to retain as its own all proceeds" from *Page 356
the mortgage. Plaintiff contends that, relying on defendant to draw it correctly, he did not read it. The record will not support a finding that he did not read it, or that it was not read to him, nor that he would be excusable if he did not read it or have it read to him. Crum v. McCollum, 211 Iowa 319.
It was incumbent upon the plaintiff, in order to secure a reformation of the contract, to prove that by mutual mistake or by mistake on his part and fraud on the part of the defendant the writing did not correctly express their actual agreement. The degree of affirmative proof required was not merely a preponderance of the evidence. The evidence "must be clear, satisfactory and convincing." Galva First National Bank v. Reed,205 Iowa 7; Phillips v. McIlrath, 205 Iowa 1126; King v. Good,205 Iowa 1203, 1209; Taylor v. Lindenmann, 211 Iowa 1122.
It is highly improbable that the bank officers should cancel, as they did, the $300 note and surrender it to plaintiff if the note was not paid. It is highly improbable that the two officers of the bank, in the presence of the stenographer, should agree with plaintiff to give back his $4500 note and mortgage if they did not collect it, and should immediately draw assignments in absolute form, one of them expressly stating that defendant was to "retain as its own all proceeds therefrom," and the plaintiff should then and there sign without questioning them. It is unreasonable that the bank, if it had made such an express agreement, would take the chance of personal liability by paying the proceeds to or for the benefit of Reed. It is reasonable that plaintiff was convinced that he could not protect the $4500 second mortgage and that cancellation of his note for $300 was better than nothing. Plaintiff's testimony to the alleged agreement is directly contradicted by all three of the witnesses present and indirectly by testimony of two witnesses to his contrary admissions.
The arguments adverse to the sufficiency of the plaintiff's evidence are too obvious and conclusive to call for further discussion. — Affirmed.
WAGNER, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. *Page 357 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434327/ | Margarethe Wilhelmine Ellen Hicks, the owner of the property hereinafter described, commenced this action to restrain the highway commission and others from entering upon, condemning, appropriating, and taking 5.89 acres of her land, with the improvements thereon, for highway purposes.
This case and the one of Reed v. Highway Commission, 221 Iowa 500,266 N.W. 47, are companion cases, and by agreement in open court were tried and submitted on the same evidence. Injunctive relief was asked on the ground that the proposed condemnation was unlawful, arbitrary, and oppressive. The petition set out the same allegations. The answer was the same. And the decision of the lower court was the same as in the case of Reed v. Highway Commission, in which opinion we have set out material parts of these pleadings. No good could be accomplished by repeating them here.
As in the Reed case, the only question before this court is whether or not the proposed appropriation and construction did constitute the "rounding of a corner" within the legislative prohibition, upon which ground alone the lower court granted the injunction prayed for.
The appellee is the owner of the northwest quarter of the northwest quarter of section 9, township 83, north of range 21, west of the Fifth P.M., Story county, Iowa, except the right of way of the Chicago Northwestern Railway. Said 40 is substantially rectangular in shape, and located upon said land and near the northwest corner thereof are the dwelling and outbuildings. For twenty-one years appellee has owned this property, but never lived on same until shortly before the proposed condemnation proceedings were commenced. She is a maiden lady, seventy years of age, and is not the head of a family, and there are no homestead rights involved.
Federal Highway No. 30 (the Lincoln Highway) runs east and west along the north side of both the Hicks and Reed properties. Federal Highway No. 65 (the Jefferson Highway), coming from the north, makes a "T" intersection with Highway No. 30 at the northeast corner of section 8 and the northwest corner *Page 511
of section 9, the common corner of the Reed and Hicks properties. Until a few years ago traffic on No. 65 came down and made the square turn when passing on to road No. 30. Some time ago the highway commission acquired the right of way for and constructed two curved roadways, branching off No. 65 some 850 feet north of No. 30. One of these roadways curved to the west on about a six-degree curve and connected with highway No. 30 about 850 feet west of the old intersection. The other made a similar curve to the east and connected with road No. 30 about 850 feet east of the old intersection. Highway No. 30, Highway No. 65, and these curved wings on Highway No. 65, were all approximately 100 feet wide.
Coming into the town of Colo from the south is a graveled primary highway known as No. 64, which, if projected north in a straight line, would follow the line between said sections 8 and 9 and intersect with No. 30 and connect with No. 65 at the common corner of sections 4, 5, 8, and 9.
Heretofore Highway No. 64, coming into Colo from the south, has turned west just south of the right of way of the Chicago
Northwestern Railway and meandered through the streets of Colo in order to reach primary Highways 30 and 65. It is the purpose of the highway commission at this time to extend 64 northward through an underpass under the Chicago Northwestern to highway No. 30 and to connect with No. 65 at the common corner of the four sections.
As part of this proposed project, wide curves, substantially corresponding with those now connecting primary road No. 30 with primary road No. 65 to the north, will connect No. 30 and the relocated No. 64 to the south. When completely relocated No. 64 will cross No. 30 at the common corner for the four sections above referred to. Four quadrants will be created, each inclosed by the two highways, thus intersecting at right angles and by a curved hypotenuse connecting the two highways in all directions and permitting travel from whichever direction on either road to turn in either direction on the other. Both wings of the "Y" to the north of No. 30 have been constructed and paved, and it is now the purpose of the highway commission to construct and pave corresponding arches or curves south of No. 30, connecting with the new or relocated No. 64 to the south.
Reed of the companion case owns a tract of land through which the west wing will be constructed, and appellee Hicks *Page 512
owns the tract across which the east wing will be constructed. The highway commission, in its proceedings, is proposing to condemn all of the land within the triangles formed by Highway No. 30, the proposed extension of No. 64 to the north, and the curved wings or roadways above referred to. The total amount of land belonging to the appellee Hicks sought to be acquired is 5.89 acres.
The situation at the point in controversy is a little bit difficult to describe, but the following diagram will serve to clarify the description:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
The law governing this case is the same as in the case of Reed v. Highway Commission, opinion in which case was handed *Page 513
down at this term of court, and this case is controlled by the opinion in the Reed case (221 Iowa 500).
It therefore follows that this case must be, and it is hereby, affirmed.
DONEGAN, C.J., and HAMILTON, KINTZINGER, RICHARDS, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434328/ | [1] Appellant relied solely on the doctrine of res ipsa loquitur, her petition charging general negligence only. Decedent was last seen in the Midway Tavern between 11:30 and 12:30 o'clock on the night of April 30, 1940, and about 6:30 the next morning was found on the floor of an elevator shaft located on the appellee's premises, in an unconscious condition. He died before recovering consciousness.
Appellee owned two buildings in Clinton, Iowa, situated at the southeast corner of Fourth Avenue South and South Second Street. The Turner Building, a four-story brick structure, fronts west on South Second Street — a north-and-south street. The Turner Annex, a two-story building, is situated east of the Turner Building, facing north on Fourth Avenue South. Between the two buildings is an areaway extending south from Fourth Avenue a distance of about 75 feet to a wall at the south end of the Turner Building. The corridor then turns east at right angles between the rear of the annex and said wall about 50 feet to a dead end. At the north entrance, for a distance of 42 feet south the corridor is 7 feet wide, and for the remaining distance south it is 10 feet wide. The east-and-west way of this L-shaped passage is 12 feet 3 inches wide.
The freight elevator adjoins the south wall of the east-and-west corridor and is located about 13 feet east of the west side of the north-and-south way. It is 6 feet 10 inches wide and 9 feet 4 inches long, there being a clear space of about 5 feet 6 inches between the elevator and the north side of the way. The bottom of the shaft opens into a tunnel leading into the basement of the Turner Building.
The first floors of the two buildings are occupied by tenants. The rear of the stores of the Turner Building face the north-and-south corridor. The Midway Tavern and Alden's Cafe are in the Turner Building. The rear door of the Midway Tavern opens on the north-and-south corridor about 25 feet south of the entrance to the way on Fourth Avenue South. The rear door of the Alden Cafe is about 32 feet south of the entrance and the rear door of a barber shop opens on the south *Page 693
end of the way. Baumeister's Tavern is in the annex building and its rear door opens on the east part of the east-and-west areaway, about 12 feet from the dead end, and is about 28 feet east of the elevator. There were no lights in the east-and-west corridor, and the only light in the north-and-south way was a small electric bulb in the rear of the Alden Cafe about 25 feet north of the elevator.
The cement floor of the elevator shaft is 7 feet below the level of the corridor. When Mr. Rodefer was found in the center of the floor of the shaft the elevator doors, which opened to the west, were open, and the elevator was at the second floor.
Appellant's theory is that decedent left the rear door of the Midway Tavern about midnight and walked south about 40 feet to the east-and-west way, turned east, and, instead of passing down the east-and-west corridor north of the elevator, walked through the open doors and fell to the bottom of the pit, sustaining the injuries that resulted in his death. There were no guards around the elevator and there were no handles on the inside or outside of the elevator doors. The function of this elevator is described by appellee's janitor, a witness for appellant, as follows:
"Q. Are you acquainted with the elevator shaft which is located in an areaway behind the Turner Building? A. Partly, yes. I never had much to do with it, but I know how she is situated and about it. Q. Well, what purpose does it serve there? A. Well, mostly for freight. Q. Where does the freight come from and where does it go to? A. Well, May Alden has freight going down into the basement for her stuff and — Q. Well, where does the freight come from and where does it go to? A. Well, it's stuff that we get upstairs, like beer and soft drinks, and we pull it up. Q. Beer and soft drinks up to the Turner Society? A. On the third floor, yes."
The Midway Tavern, located about 25 feet south of the north entrance to the corridor, maintains a neon sign on the Turner Building at the north entrance, with an arrow pointing south. Appellant's evidence shows that during intermissions and after dances at the Modernistic Dance Hall, which is apparently east of the annex, patrons of the hall would go down the corridor *Page 694
and enter the Midway Tavern and Alden's Cafe for refreshments, through the rear doors instead of using the front entrances on South Second Street. Evidence that patrons of the dance hall might proceed south of the Midway Tavern and cafe at night and walk east down the unlighted east-and-west corridor 38 feet to Baumeister's Tavern is unsatisfactory and unconvincing. Patrons desiring to go from the dance hall to Baumeister's Tavern would naturally enter the front door on Fourth Avenue rather than to walk west of Baumeister's Tavern to the corridor and through the entire corridor to its rear door. The most that can be said of the use of the east-and-west corridor by patrons of the dance hall or others that night is that it was very rarely used.
I. Appellant's first assignment of error is that the court erred in sustaining appellee's motion for a directed verdict because the questions of appellee's negligence and the proximate cause of decedent's injuries were for the jury. Appellant alleged in her petition that the falling of decedent into the shaft was the direct result of the negligent operation and maintenance of the passageway "and the elevator shaft and the openings thereto, then under the exclusive control and management of the defendant."
Appellee's answer admitted that "there is and was a freight elevator and shaft, owned and controlled by defendant, located at the south side of that part of said passageway or areaway extending east and west at the rear of the storerooms fronting on Fourth Avenue South."
Appellee's answer must be construed as an admission that it was in complete, exclusive control of the elevator.
"The necessity of complete and exclusive control of the instrumentality, for the application of the res ipsa loquitur rule, has been repeatedly referred to by the court." Whetstine v. Moravec, 228 Iowa 352, 368, 291 N.W. 425, 433.
The elevator was at the second floor and the doors opened directly into the pit when Mr. Rodefer was found in the center of the floor "facing the south, sort of on his side, lying in that [a drawn-up] position." There were no guardrails at the entrance to the elevator. One witness testified the elevator doors *Page 695
were never locked but the doors were always closed "so far as I know." There was testimony that they were open part of the time.
The circumstances were sufficient to generate a presumption of negligence, that the accident happened through want of care on the part of appellee. No evidence was introduced by appellee to rebut the presumption arising from the circumstances.
Appellant's position is that, based on the evidence, the most likely explanation of the accident is that Mr. Rodefer was last seen in the Midway Tavern about 12:30 a.m. on May 1, 1940, and said that he was going to get something to eat, probably at Mae Alden's restaurant; that he left the Midway Tavern or the restaurant about 12:30 and turned to his right into the north-and-south portion of the corridor, and as he reached the south part of the north-and-south way he turned east to go down to Baumeister's Tavern, the rear door of which was near the east end of the way. The doors of the shaft were open to the west and he needed only to take one stride to the south before turning east and he would walk into the open shaft. The areaway at this point was dimly lighted by a small light in back of Mae Alden's restaurant.
The following evidence tends to sustain appellant's theory that decedent fell into the pit soon after he left the Midway Tavern about 12:30:
"He was unconscious. Well, it was quite cold that morning and he apparently was chilled or cold and he showed evidence that he had laid there for some time in this position or in the bottom of the pit. His skin looked sort of purple, or like a person would who had lain out in the cold for some time."
On the question of proximate cause, appellant claims the circumstances surrounding the case make her theory more than a possibility, that they render her theory more probable than that the fall happened from some other cause, and the issue of proximate cause was for the jury.
Appellee claims there are several theories as reasonably probable as appellant's hypothesis. *Page 696
Decedent suffered a skull fracture which extended from the right temple to the base of the brain, a resulting cerebral hemorrhage causing his death.
A physician and surgeon was asked whether there was an outward indication of where the blow might have been that caused the skull fracture. He replied that there was an abrasion approximately three fourths of an inch or an inch in diameter over the right area back of the ear — just back of the mastoid of the right ear. Appellee claims the falling into the pit could not possibly have caused such an injury, but there is no medical or other evidence to sustain this claim. It will be recalled that decedent was lying on his right side when found. Appellee also asserts:
"1. He could have opened the doors himself and stepped in,
"2. He could have been thrown in while unconscious,
"3. He could have been pushed in,
"4. He could have been dragged in from the cellar under the building through the passageway which is on a level with the bottom of the pit,
"5. He could have walked in from the cellar in a semiconscious state and fallen there without falling from the areaway level."
There is no evidence of foul play. Decedent's watch and billfold containing $60 were in his pockets when he was found in the shaft. He had a good disposition and was not quarrelsome. He was in good health and normal when he left the Midway Tavern.
We are of the opinion appellant's theory is a reasonable inference from all the circumstances and more probable than the theories advanced by appellee. In Boles v. Hotel Maytag Co.,218 Iowa 306, 310, 253 N.W. 515, 517, it is said:
"But if the circumstances supporting a theory of negligence are of greater weight than the evidence supporting the theory of no
negligence, then it becomes a question of fact for the jury to determine whether or not the cause of the injury was the negligence alleged. A person is not required to prove his theory *Page 697
of negligence by testimony so clear as to exclude every other possible theory."
In Tisher v. Union P.R. Co., 173 Iowa, 567, 570, 155 N.W. 975, 976, we stated:
"The causal connection between the injury and the negligence of the defendant may be proved by direct or circumstantial evidence. If the latter, it must be something more than consistent with plaintiff's theory of how the accident occurred. It must be such as to make that theory reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence."
For a recent comprehensive consideration of the doctrine of res ipsa loquitur, see opinion by Bliss, J., in Whetstine v. Moravec,228 Iowa 352, 291 N.W. 425.
[2] II. Appellee contends that decedent was at most a licensee at the place where he received his injuries, and it owed him no duty other than to not wantonly or willfully cause him an injury, and with this position we agree. In Wilson v. Goodrich, 218 Iowa 462, 467, 252 N.W. 142, 144, the court, speaking through Anderson, J., said:
"An invitee to a place of business is one who goes there, either at the express or implied invitation of the owner or occupant, on business of mutual interest to both, or in connection with the business of the owner; while a licensee is one who goes on the property of another, either by express invitation, or with implied acquiescence, solely in pursuit or furtherance of business, pleasure, or convenience of the licensee."
All of the stores adjacent to the areaway were occupied by tenants. Exhibit D is a view of the north-and-south corridor, showing the fire escape, the small light at the back door of the Alden Cafe and the general nature of the areaway.
It is apparent this private corridor was not built or maintained for use by the general public as a means of ingress or egress to the business properties abutting thereon and it was not so used by the general public. It does not appear decedent was in the corridor on any business with or for the benefit of appellee, or that he was induced to use the corridor by any conduct of *Page 698
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
appellee. So far as shown by this record, he was using the corridor for his personal convenience and advantage or for a purpose unrelated to appellee. It is appellant's own contention that decedent was on his way through this unlighted corridor to Baumeister's Tavern.
We hold that decedent was a mere licensee and appellee owed him no duty to keep the corridor in a reasonably safe condition. That appellee may have passively acquiesced in the use of the corridor did not give decedent the status of an invitee. There is no evidence of a willful or wanton injury.
"Sec. 105. Condition of Premises. — No duty is imposed by law on an owner or occupant to keep his premises in a safe condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come thereon, although their entry is permitted by the owner or occupant." 38 Am. Jur. 767, section 105.
"Applying the general rule to elevators, it may be said that the owner or operator of such an instrumentality is under no obligation to mere licensees coming near or riding thereon except *Page 699
to refrain from wilful or wanton injury." 18 Am. Jur. 543, section 36.
In Printy v. Reimbold, 200 Iowa 541, 546, 202 N.W. 122, 124, 205 N.W. 211, 41 A.L.R. 1423, the court said:
"It is the universal rule that persons entering voluntarily upon the premises of another, out of idle curiosity or for their own pleasure or advantage, take the same as they find them, and the owner or occupier thereof is bound only to avoid wanton or willful injury to them; but, if the purpose of going upon the premises is the common interest, or for the mutual advantage of the parties, an implied invitation, which makes it the duty of the owner or occupier to maintain the same in a reasonably safe condition, may be inferred."
In Keeran v. Spurgeon Merc. Co., 194 Iowa 1240, 1242, 191 N.W. 99, 100, 27 A.L.R. 579, we said:
"If one goes upon premises without invitation, express or implied, the owner or occupant thereof is under no duty to look out for his safety; and if he be injured through the negligence of the owner or occupant while there without lawful right, or as a bare licensee, no recovery can be had."
We might add that it does not appear that decedent was an invitee of the Midway Tavern. There is no evidence he was in the tavern as a patron.
Mr. Wasen, the proprietor of the tavern, testified, in substance:
"I saw Harold Rodefer in my place of business about 11:00 or 12:00 o'clock on the night of April 30, 1940. I do not know where he went from my place of business. He said he was going over to eat. The Mae Alden Restaurant is the second door south of my place."
There is no evidence that decedent was in the Alden Cafe.
It is unnecessary for us to consider the question of decedent's contributory negligence. — Affirmed.
WENNERSTRUM, C.J., and SAGER, GARFIELD, HALE, BLISS, and MITCHELL, JJ., concur. *Page 700 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434329/ | The substance of the plaintiff's petition is that the plaintiff and the defendant owned or occupied adjacent buildings in the city of Fort Dodge, and that they so owned or occupied said buildings during all the time in controversy herein. The plaintiff had a heating plant in his building, and on the 13th day of August, 1926, the parties herein entered into a written contract by the terms of which the defendant agreed to pay to the plaintiff $1,800 for heating its building from the 1st day of October, 1926, to the 1st day of May, 1927. For the successive years from that time forward the plaintiff continued to furnish heat for the Kresge building until the winter season of 1933-34, and the defendant paid the aforesaid amount except for the season commencing October 1, 1933, and ending May 1, 1934. It is for this season's services in furnishing said heat that this action is brought. The plaintiff further alleges that the heat was furnished for the season of 1933-34 under an agreement that defendant was to pay $1,800 therefor. Defendant filed an answer and, after admitting certain allegations of plaintiff's petition which are not material here, alleged that the two upper floors of the Kresge building were abandoned in January, *Page 838
1933, and that the radiators were cut off, and therefore the amount of heat furnished by the plaintiff was reduced by this reduction of the radiation in the Kresge building from 4,462.5 square feet to 1,842 square feet, and that through a mistake the defendant paid the plaintiff the sum of $1,800 for heating the building for the season of 1932-33; and that during the year of 1933-34 the plaintiff continued to furnish heat to the defendant for the total amount of radiation of 1,842 square feet. The value of the heat furnished from October 1, 1932, to January 1, 1933, was $904.18, and the value of the heat furnished for the season of 1933-34 amounted to $738.58. Wherefore, the defendant prayed that plaintiff's petition be dismissed and that the court determine and adjust the payments made for the heat for the season of 1932-33, and "reform said implied contract to meet the fair and reasonable value of the heat furnished for said years 1932-33, and defendant further prays for determination in equity of the amount due for the heating season of 1933-34." At the time of filing this answer the defendant filed a motion to transfer the cause from the law to the equity calendar, which motion was overruled.
It will be noted that the original written contract between these parties terminated on the 1st day of May, 1927. Under the allegations of the petition, from that time forward the plaintiff states in his argument that he bases his cause of action upon a contract implied under the theory that, under the circumstances, the defendant, by its acts and conduct, impliedly promised to pay $1,800 for the steam furnished for heating for the winter season of 1933-34. The defendant by its answer also insists that no written contract existed between the parties, but only an implied contract; and:
"That said implied contract, if any, should be reformed to meet the understanding had between the parties, and said rate for heat fixed at the fair and reasonable price as understood by the parties at all times herein. That unless said implied contract, if any, is reformed the defendant is without remedy at law, and will suffer irreparable damage by reason thereof."
The defendant seeks in its answer to have said implied contract reformed, which presents really a novel question. This court has universally announced the rule that equity cannot reform a contract. All it can do is, where a written instrument *Page 839
fails to express the true contract or agreement of the parties entered into prior to the time such contract or agreement was reduced to writing, determine what the actual contract was as made between the parties. Among other Iowa cases announcing this rule are the following: Nowlin v. Pyne, 47 Iowa 293; Stafford v. Fetters, 55 Iowa 484, 8 N.W. 322; Breja v. Pryne, 94 Iowa 755, 64 N.W. 669; Marshall Sharp v. Westrope, 98 Iowa 324, 67 N.W. 257; Day v. Dyer, 171 Iowa 437, 152 N.W. 53; Heard v. Nancolas,187 Iowa 1045, 175 N.W. 13. See, also, 53 C.J. p. 908, section 5.
The very fundamental theory of the doctrine of reformation is that there must be a writing which is claimed to be the contract between the parties. Under such circumstances, if the writing does not express the actual contract that was made by the parties, equity will determine what the actual contract was. We know of no case which holds that an implied contract can be reformed. The very foundation or basis of the whole doctrine of reformation applies only where there is a writing. Briefly summarized, this case resolves itself into a proposition of a suit on an implied contract, with a defense that the implied contract, in so far as the compensation is concerned, was not as the plaintiff claimed it was. This is all law and not equity.
In the case of Allgood v. Fahrney, 164 Iowa 540, 549, 146 N.W. 42, 46, an action was started by a real estate agent for his commission. His contract of employment was oral. We there said:
"Plaintiff claims that he has alleged in his answer certain equitable matters which entitle him to have the case so transferred. He seems to base this on the idea that equity has jurisdiction to reform contracts, and that his rights could not be protected until the contract, as stated by plaintiff in his petition, was reformed. But it is apparent, from this record, that both the contract between the plaintiff and the defendant and the contract between defendant and Peppers rest in parol. There was no writing evidencing either contract. Equity will not make contracts for parties, nor reform contracts. Equity only takes cognizance where the contract has been reduced to writing, and the writing does not express truly the actual contract entered into between the parties. Where the writing, through fraud or mistake, does not express the true contract, equity will *Page 840
reform the writing, which is the evidence of the contract, to conform it to the real contract, as actually made between the parties. But where the contract rests in parol, parol evidence is necessary to establish the contract, and the contract is that which the evidence shows it, in fact, was, and is enforced according to the proof, whether in law or in equity. This is clearly a law action; and the court did not err in refusing to transfer the cause to equity for the purposes suggested by the defendant."
No other ground for equitable jurisdiction is urged. It is our conclusion that the respective claims of both the plaintiff and the defendant, having reference to implied contract, are wholly matters of law, and there is nothing involved by reason of the plea of the defendant which entitled it to a transfer to equity. This was the ruling of the district court. We think it is right. — Affirmed.
KINTZINGER, C.J., and MITCHELL, POWERS, ANDERSON, DONEGAN, PARSONS, RICHARDS, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434330/ | This is an automobile-accident case tried to the court which resulted in a judgment for plaintiff. These are the facts which the trial court found, upon which he based his judgment.
Plaintiff was driving his automobile east on a paved highway in the daytime at a speed of approximately fifty miles per hour. Defendant Hedgepath was driving his coupé west on the same highway at a speed of about thirty miles per hour and defendant King was driving his truck west about fifty feet behind Hedgepath. The highway was straight and one could see for several hundred feet in each direction and the pavement (eighteen feet wide) was dry. The trial court's written findings state:
"At a time when plaintiff's car was approaching within about 300 feet of Hedgepath's car Hedgepath applied his brakes, slowing abruptly, and pulled off onto the north shoulder of the road. He gave no arm signal of his intention to stop or turn but his stop lights lighted when he applied his brakes and King observed them. Hedgepath stopped his car about one foot off the paved slab and opened the left door of his car; the door was about three feet wide and extended over the north half of the pavement about two feet when it was opened.
"At the same time King slowed his truck to about 20 miles per hour, swerved across the center line of the road three or four feet and traveled a distance of about 100 feet with the left side of his truck across the center line while going around Hedgepath's car.
"By the time Hedgepath opened his door and King swerved across the center line plaintiff was within 100 feet of them; he swerved his car to his right so that it was about three or four feet out onto the south shoulder of the road; at the same time *Page 1338
he applied his brakes; his car started weaving, hit a mailbox on the south shoulder of the road and overturned.
"Plaintiff's car was damaged to the extent of $438.90 in the upset; an outboard motor he was carrying in the car was damaged to the extent of $18.75 and plaintiff suffered personal injury necessitating medical attention, to his damage in the amount of $3.00."
Upon the above findings the trial court rendered judgment against both defendants for $460.65. Both defendants served notice of appeal but only defendant Hedgepath filed a brief. The two errors which defendant Hedgepath relies upon for reversal in the filed brief are: "I. The findings of fact and recovery allowed thereon against appellant Hedgepath are utterly without support in the evidence. II. The findings of fact and conclusions of law are not within the issues as tried and are not responsive to issues legally permissible for the court to consider."
[1] I. The first assignment involves the sufficiency of the evidence to sustain the trial court's findings of fact. When considering findings of a court in a law action tried without a jury we will not weigh the evidence or the credibility of the witnesses. Such findings are entitled to the same weight as the verdict of a jury. If the findings are supported by substantial evidence they will not be disturbed on appeal. In re Estate of Puckett, 240 Iowa 986, 1001, 38 N.W.2d 593, 601, and cases there cited.
[2] Plaintiff testified:
"The day was clear, sunshiny. I was traveling about fifty miles an hour. There was a lot of traffic coming out of town and there was a car in front of us; had been in front of us for quite a while. The brakes and steering gear on my car were in good shape. As we came along by the Wyanet Dairy Farm, the first thing we knew, there was a truck pulled out on our side of the road, across the dividing line. A Missouri car [Hedgepath's coupé] had stopped on the highway and this fellow [King] pulled out from behind the Missouri car with a truck. The first thing we knew there was a car on our side of the highway; the truck was there. In order not to hit him, we *Page 1339
pulled off the highway and in coming back off the shoulder onto the pavement, our car went out of control, and as we passed the driveway to the Wyanet Dairy we hit a mailbox which turned us around and headed us in the opposite direction and we fell over on our side. We ended up laying on our left side in the ditch on our right-hand side of the road. I'd say I was about a hundred feet or so away when I noticed the Missouri car stop and the truck pull over to my side of the road. There was quite a lot of cars coming toward us on the highway before the accident. The first thing we noticed was that somebody had stopped and this car pulled out. I later identified them as the King truck and the Hedgepath car."
Plaintiff's passenger testified:
"The first thing I remember seeing was the truck swaying out. We were about a hundred feet away then. The truck's front end was over the line. It was on our side of the road. The front end of the truck was mainly on our side of the road. I didn't notice that either the coupé or the truck were slowing down; I just noticed the truck swerved out. When the truck swerved out Mr. Miller tried to turn, tried to get off on the side of the road to keep from hitting. His right side just pulled off on the shoulder. His left wheels did not go off on the shoulder at all until he hit the mailbox there. As we drove along there on the shoulder, there is a driveway going into this dairy farm. The shoulder along the side of this driveway is somewhat narrower than a car is."
Defendant Hedgepath testified:
"Some little time before I came to this particular point I had noticed that the car was heating up and had reduced my speed with the expectation of when I come to a place where I could pull off of the highway, why, I would pull off, and when I came to a wide shoulder there where I could pull off, why, I immediately started to pull off of the highway. Possibly I was traveling twenty to twenty-five miles an hour. I had applied my brakes farther back down the road to reduce my speed and I applied the brakes as I moved off of the highway. At that time *Page 1340
there was a car approaching me 150 or 200 yards down the road. As I decelerated my speed, that distance was diminished. After I got off of the highway onto the shoulder and was far enough off of the highway that I could open my left-hand door to step out, a truck went by me and rolled down the road possibly sixty to seventy yards — maybe fifty yards — and he pulled off the highway onto the shoulder, with the exception of one wheel, as I remember it, still on the highway, and I stepped out of my car and went to the front of the car."
Hedgepath also stated that he gave no signal as he started to slow down and pull out on the shoulder other than the rear red lights which went on with his brakes, and that his left wheels were four feet from the paving when he stopped on the shoulder and his left door was possibly three feet wide and that the truck when it went by missed his open car by normal passing distance.
King, the truck driver, testified: "When he [Hedgepath] pulled off the road, as far as I can remember, he was clear off. As I passed him if I pulled over to the left side of the lane at all it was very little. I don't believe I ever at any time got to the left of the center line of the road."
There was other evidence that after the accident Hedgepath's car was on the shoulder with his left wheels a foot from the paving and if he opened his left door it would have swung out over the pavement.
The foregoing testimony amply sustains the trial court's findings. The damages were the subject of a stipulation between the parties. There is no merit in the first assignment of error.
[3] II. We are told in argument that the second assignment of error, which strikes us as being quite general, raises the specific question as to the right of the plaintiff to amend his petition at the close of all of the testimony. The argument of defendant Hedgepath is that plaintiff's testimony describes a situation where Hedgepath stopped his car on the pavement and the amendment to the petition states that Hedgepath "stopped his car upon the paved portion of the highway, or stopped his car so closely adjacent to the right-hand edge of the pavement and opened the left-hand door thereof in such manner that the *Page 1341
door partially blocked the north half of the pavement." But the petition which framed the issues did not specify where Hedgepath stopped his car. It states: "Hedgepath suddenly stopped his car without signalling; defendant Donald King swerved his truck suddenly to his left and over and upon plaintiff's right-hand side of said highway, immediately in front of plaintiff's car." The findings were well within the issues raised by the petition. The amendment was unnecessary. While the petition did not suggest that the opening of the door was a factor in the accident, the fact remains it did in effect allege Hedgepath's stopped car caused King to swerve to his left. Whether he was made to swerve by a stopped closed car or a stopped car with the left-hand door open is immaterial under the allegations of the petition. The petition was broad enough to cover either event.
[4] While we have reviewed this assignment and held it without merit because the amendment was unnecessary, we desire to point out that a party should raise such an issue in the trial court by either resistance to the motion to amend or a motion to strike the amendment if it is filed before opportunity for resistance. Here there was no written resistance filed to the motion to amend and no written motion to strike the amendment and we are left in doubt as to whether the trial court ever heard the objections which the defendant Hedgepath makes in this court.
Finding no error, the judgment is affirmed against both defendants. — Affirmed.
All JUSTICES concur. *Page 1342 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434332/ | At the close of the evidence defendant filed a motion for a directed verdict. This was overruled and the jury brought in a verdict of guilty against defendant. The only error alleged is that the evidence was not sufficient to sustain the verdict.
[1] During the night of November 6, 1935, about nineteen sheep were stolen from the farm of Harvey Bundy in Howard County, Iowa. There was competent evidence in this record tending to show that a certain Ford truck belonging to the defendant *Page 465
was seen in the vicinity of the Bundy farm on the night of November 6, 1935. The evidence also tends to show that there were two men in this truck at that time. The evidence also tends to show that the defendant, De Kraai, was the owner of the truck and that he never allowed it to be driven or used by anyone except himself, except that it was used on one certain night by a Mr. De Koning, who was later convicted of a similar offense, as shown in the case of State v. De Koning, 223 Iowa 951,274 N.W. 25.
The evidence also shows that the wheel tracks of defendant's truck were found on Mr. Bundy's farm running from the gate up to within a few feet of the door of the barn in which the sheep were kept on the night they were stolen. The evidence also shows that a certain feed lot in the vicinity of Oskaloosa, Iowa, was rented from a farmer by defendant and De Koning for the purpose of sojourning domestic animals for a short time until they were sold. The evidence also shows that such animals were always brought to this feed lot during the nighttime. The evidence also shows that Mr. Bundy's sheep were taken to a stock sale pavilion at Albia, Iowa, where the sheep were sold to a farmer named Moore. These sheep were identified as those stolen from Mr. Bundy's farm on November 6, 1935, and were returned to him.
When the sheep were received at the stock pavilion they had been consigned to Leonard De Koning. There is evidence tending to show that the stolen sheep were brought to the Albia Sales Pavilion by De Koning in defendant's truck, that they were delivered for sale, and when sold they were paid for by a check, introduced in evidence, of the Albia Sale Company payable to Leonard De Koning in the sum of $187. This check was endorsed by Leonard De Koning and Elmer De Kraai, and the evidence tends to show that it was cashed by defendant.
The defendant failed to take the witness stand, and there was no denial on his part that his truck was at the Bundy farm in Howard County on the night of November 6, 1935; he did not deny that he was in his truck with another man on the night of November 6th when it was seen by certain witnesses; he did not deny that he delivered the stolen sheep to the Albia Sales Pavilion, or that he or De Koning had stolen them from the Bundy farm. This evidence was competent as tending to show that the defendant was guilty of the crime charged. *Page 466
[2] Where there is competent evidence tending to support the verdict, the judgment is final. State v. Pray, 126 Iowa 249, l.c. 253, 99 N.W. 1065; State v. Smith, 28 Iowa 565; State v. Wilbourn, 219 Iowa 120, 257 N.W. 571.
[3] The weight and sufficiency of the evidence is for the determination of the jury. State v. Sampson, 220 Iowa 142,261 N.W. 769; State v. Greenland, 125 Iowa 141, 100 N.W. 341; State v. Schenk, 220 Iowa 511, 262 N.W. 129; State v. Manly, 211 Iowa 1043,233 N.W. 110.
In State v. Pray, 126 Iowa 249, l.c. 253, 99 N.W. 1065, 1066, this court, speaking through Justice McClain, said:
"Counsel urge that the evidence is not sufficient to establish the guilt of defendant beyond a reasonable doubt, but that is for the jury to say. We do not pass on the question of reasonable doubt in reviewing a case on the evidence. If there is competent evidence tending to support the verdict, and the jury have been properly instructed with reference to reasonable doubt, their verdict is final on that question."
No complaint is made against the court's instructions and no other errors have been alleged. We are, therefore, constrained to hold that the trial court was right in submitting this case to the jury and in overruling defendant's motion for a directed verdict. For the reasons herein expressed, the judgment of the trial court is hereby affirmed. — Affirmed.
HAMILTON, C.J., and ANDERSON, DONEGAN, PARSONS, and SAGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434336/ | On March 2, 1925, appellants executed a note payable to appellee and on the same day made a mortgage to secure the payment of the note, covering certain land in Warren county, Iowa. The note and mortgage were delivered in due time. Appellants became in default upon the note and mortgage and on the 10th day of January, 1933, a petition to foreclose the mortgage was filed in the Warren district court, for the March term of said court which began on March 14, 1933. On March 11, 1934, and before return day, appellants filed an application asking that the cause be continued under the provisions of House File No. 193, of the Acts of the 45th General Assembly which now appears in the published acts of the General Assembly as chapter 182. Resistance was filed to the application assailing the constitutionality of the statute. The application was summarily overruled by the trial court and decree entered foreclosing the mortgage.
The record fairly brings before the court the question whether the statute is constitutional.
A majority of the court are of the opinion that the act is valid. The reasoning of the majority of the court in the case involving the constitutionality of chapter 179, Acts of the 45th General Assembly (Des Moines Joint Stock Land Bank v. Nordholm,217 Iowa 1319, 253 N.W. 701) sustains the statute under consideration, for the character, objectives, and consequences of the two acts are practically the same. In a sense, the act under consideration can be the more readily sustained for it is more directly applicable to the remedy. This court has for instance sustained the constitutionality *Page 878
of a statute granting continuances to soldiers while in the army. McCormick v. Rusch, 15 Iowa 127, 83 Am. Dec. 401. And see, also, Holland v. Dickerson, 41 Iowa 367; Hannahs v. Felt, 15 Iowa 141; Holloway v. Sherman, 12 Iowa 282, 79 Am. Dec. 537.
The trial court was in error in summarily denying the application for the continuance and in entering decree of foreclosure.
The writer is unable to agree with the majority of the court. The views expressed in my dissent in Des Moines Joint Stock Land Bank v. Nordholm, supra, appear to me to be as cogent now as when written. I am unable to yield controlling force to the thought that the statute is addressed to the remedy and consequently does not impair the obligation of contracts. Thus far we have adhered to the rule that a defendant has the right to make such defense as he may have to any action brought against him. No serious objection has ever been lodged against a statute giving a right to continuance to a defendant unable, for causes largely beyond his control, to present his defense. Matters of this kind are properly subject to legislative regulation. It is in this view that laws granting continuances on account of military service and for other reasons are sustained. The purpose of the present statute is not to permit a defense to be made, it is to cut down the rights of the mortgagee to the present enforcement of his contract. I would affirm.
The decree of the trial court is reversed and the cause remanded to the lower court with directions to set the application for continuance for speedy hearing and to conduct a hearing thereon and for further proceedings conformable with the facts and the statutes applicable thereto, including the one under consideration herein. — Reversed and remanded with directions.
MITCHELL, C.J., and EVANS, KINDIG, ANDERSON, and DONEGAN, JJ., concur in the result announced above. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434337/ | Plaintiff was a customer and stockholder in defendant bank. Smith was defendant's vice president. The contract alleged was oral. Plaintiff's version of the transaction is as follows:
"On August 15, 1923, I had some money come in, and I went over to Mr. Smith, — asked him if he had a few municipal bonds of any kind. He said, `I know what you want, George, but I haven't got them right at the present time. I will make a 1. SPECIFIC note of it, and have them for you in a few PERFORMANCE: days.' He said, `We have got some Muscatine contracts improvement bonds coming in,' and he said, `I performable: will see that you get some of those, if you will repurchase just give me time until they come in.' I said, of `All right.' I told him it would be all right; securities. I would wait until the bonds came. * * * It was about a week later, maybe, somewhere about there, I went to the First National side of the bank, and Mr. Smith called me over, and he said, `George, those bonds that you want won't be ready then for 60, maybe 90, days;' and he said, `I have always kept your money pretty well invested for you, and I know you don't want it laying around in a checking account. I will tell you what you do; you have requested bonds from me several times for some of the other farm mortgages you have got.' `Now,' he said, `I have got a good first mortgage here; if you will just take this for the present, until the bonds come in,' he said, `I will exchange the bonds for them when they come.' I said, `How much is the mortgage?' He says, `Twelve thousand dollars.' I said, `I haven't got money enough to take that mortgage right now.' He says, `I know you haven't, but,' he said, `we can fix that for you all right; you have got the D. McKay mortgage that you have got from us, — you give me that, give me your check for what money you have got, and give me a note for the balance, and,' he said, `as quick as the bonds come, I will let you know, and you bring the mortgage back, and I will give you the bonds in exchange for it.' * * * I said, `Well, you have always done that for me; I will go back and get the mortgage.' I went back and got the mortgage, and gave it to him, out of my box. He wrote out a check to the First Trust Savings Bank for $3,047.88, and a note for $900. He *Page 1107
handed me the mortgage. I never looked at the mortgage. I took it and put it in my box. * * * About November 1, I saw Mr. Benham, the cashier at the bank. * * * Mr. Smith came, with the bonds under his arm, and I could see they were Muscatine bonds, and I said, `Mr. Smith, are those my bonds?' Mr. Smith said to me, in the presence of Mr. Benham, the cashier, `Yes, George, part of these are yours; but I can't make the exchange now, I have left the bank.' I said, `Is that so?' He said, `Yes.' I said, `Well, the bank will take care of it for me, I suppose.' He said, `They certainly will; haven't we always taken care of everything we gave you?'"
For the purpose of the present discussion, we may accept plaintiff's testimony. The McKay mortgage, which plaintiff had previously got from defendant, was turned back to defendant. Plaintiff gave defendant his note and checks for the balance of the note and mortgage which he was taking, and which are called in the record the "Henderson loan." While plaintiff says "there was no discount mentioned," there is other evidence that a discount of $500 was allowed to him. We find nothing in the record with respect to the price to be made to plaintiff for the bonds, or their value. This Henderson paper was owned by Newell, an officer of a bank at Columbus Junction, who sent it to defendant bank for sale. Defendant contends that it did not own the Henderson paper, and that the transaction concerning it was the individual business of Smith, and was not bank business. In the settlement with Newell for the paper, Smith sold and received pay for stock in the Columbus Junction Bank, amounting to $4,400. Defendant, as its officers claim, collected interest on the Henderson paper under plaintiff's instructions, and accounted to plaintiff for it. It appears that the Henderson loan was excessive, in proportion to the security. The plaintiff's attorney testifies that he tendered to defendant's cashier the Henderson paper, "and told him that we wanted the bonds that we had bargained for, or our money. * * * I told him we wanted the bonds we had bought, that we were holding this mortgage for, or we wanted our money back, and the McKay mortgage. He declined to make the exchange, and did not give me any bonds or the McKay mortgage back, nor any money." Evidently plaintiff's concern was to get defendant to repurchase the paper, rather than to sell him bonds. *Page 1108
We do not pause to discuss the validity of plaintiff's alleged contract, nor the merits of the defenses, some of which are suggested by the foregoing statement. Defendant pleads that plaintiff has an adequate remedy at law (Code of 1927, Section 11130), and so urges in argument. Plaintiff contends that "a court of equity will specifically enforce an agreement to exchange or repurchase securities."
When equity awards the remedy of specific performance, it is because of the inadequacy of the remedy at law, and because equity can "do more perfect and complete justice." Richmond v.Dubuque S.C.R. Co., 33 Iowa 422, 480, 485; 4 Pomeroy's Equity Jurisprudence (4th Ed.), Section 1401, where it is said:
"The jurisdiction depending upon this broad principle is exercised in two classes of cases: (1) Where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable substitute for or representative of that subject-matter in the hands of the party who is entitled to its benefit; or, in other words, where the damages are inadequate; (2) where, from some special and practical features or incidents of the contract, inhering either in its subject-matter, in its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law, or, in other words, where damages are impracticable."
See 25 Ruling Case Law 228, Section 26; 36 Cyc. 543.
This court, in McGraw Co. v. Zonta T. R. Co., 194 Iowa 685, 688, said:
"Lest we be misunderstood, it may be said that there are cases in which specific performance of a contract for sale of personal property may be enforced; but they are exceptional. It is not entirely paradoxical to say that the right of a party to an executory contract to violate it and refuse performance is as sacred as the right to make it; but the exercise of such right involves his liability to answer in damages for his default; and in all ordinary cases, the recovery of damages is regarded as an adequate remedy."
We have recently discussed the remedies available at law *Page 1109
for breach of a contract to repurchase securities. Hawkeye Sec.Fire Ins. Co. v. Central Tr. Co., 221 N.W. 486. Neither in the evidence nor arguments do we find suggestion, nor have we discovered any reason, why those remedies which may be so obtained at law are not full, complete, adequate, and speedy. The alleged contract under the facts here is not such a one as may ordinarily be enforced in equity by way of specific performance. Authorities above cited. Plaintiff's cited cases, Miller v.Eller, 192 Iowa 147, and Sickles v. Lauman, 185 Iowa 37, involved contracts for the sale of businesses with the accompanying good will, and they and the other authorities cited 2. SPECIFIC by him in support of his claim to the remedy PERFORMANCE: here sought are not in point. There is neither failure of claim that alternative relief by way of damages proof: should have been awarded nor is there evidence retention of supporting such a claim, if it were made. If a suit to basis for estimating damages were shown, still award plaintiff is not, on the record here, entitled damages. to equitable relief, and equity will not, in such case, retain the suit for the purpose of awarding damages.Braig v. Frye, 199 Iowa 184. — Affirmed.
STEVENS, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434338/ | Melker J. Garner died in 1927 leaving a will devising the real estate involved in this suit to his wife Elizabeth Garner for life with remainder to his four children, Lowell Garner (plaintiff), Myrle Meredith, Dora James, and Elizabeth Simms, in equal shares subject, however, to a contract between Melker J. Garner and wife and Lowell Garner and Myrle Meredith which contract was incorporated in the subsequent will of the testator. *Page 226
The testator was surety on notes executed by Albert James, husband of his daughter, Dora James. The contract stated that Lowell Garner and Myrle Meredith, for a consideration, had assumed and agreed to pay said notes and such of the notes which had been paid by them or on which they remained liable at the time of the distribution of Mr. Garner's estate should be treated as an advancement to Dora James, daughter of testator, and "be deducted from her share in said first party's estate, and the share of each of the two parties, (Lowell R. Garner and Myrle J. Meredith) increased by a like amount." The last paragraph of the contract reads:
"It is the intention of the said Melker J. Garner to subsequently execute a will which shall contain all of the provisions of this contract with reference to charging as an advancement against the share of the said Dora M. James, all said payments or liability for surety debts by the parties to this contract, to or from the said Albert P. James, but that it is deemed advisable in order to make the same effective to recite the same in this contract if for any reason said will shall not be made, to the end that equal distribution may be made among the children of said first party of his estate."
Testator's subsequent will contained the provisions of the contract. Elizabeth Garner was deceased at the time this suit was commenced.
For a proper understanding of the issues in the partition suit, it is necessary to make a preliminary statement of the fact situation at the time it was commenced. Defendant Carrie Sparks originally owned one of the James notes endorsed by Melker J. Garner in the sum of $1,500. When this note became due in 1931, Lowell Garner, pursuant to the provisions of the will, executed on February 1, 1931, a new note to Carrie Sparks in the sum of $1,500, due in one year. On March 1, 1933, Lowell Garner was indebted to the defendant First State Bank of Lynnville, Iowa, and, on said date, he and his mother, Elizabeth Garner, executed to the bank a note in the sum of $900 due in one year, identified as Exhibit B. Lowell Garner was a tenant of Mrs. Garner. On January 4, 1934, Mrs. Garner delivered to the bank a rent note in the sum of $650, which represented cash rent to be paid by Lowell Garner, and the lease. On the *Page 227
same day, the cashier of the bank made the following endorsement on the back of the note: "1-4-34 — $650.00." This endorsement represented the amount of the rent note, the bank claiming it was a credit on the principal of the note on condition that it was paid. Only $70 was paid on this note by the tenant.
On February 23, 1934, the $1,500 note owned by the defendant Mrs. Sparks was two years past due and in the possession of her attorney, George E. Campbell, who was attempting to collect it. The $900 note owned by the bank was due March 1, 1934. The interested parties entered into negotiations for the purpose of securing an extension of said indebtedness of Lowell Garner on terms satisfactory to the two creditors, H.C. Korf acting as attorney for Lowell Garner, Elizabeth Garner and the bank, and Mr. Campbell representing Mrs. Sparks. The result of the conversation was that Lowell Garner, on February 23, 1934, executed and delivered to Elizabeth Garner the following instruments: A note for $1,500 due in three years; a note for $900 due in one year, and a mortgage on an undivided one-third interest in the real estate received from his father. Mrs. Garner, on March 31, 1934, assigned the note for $1,500 to Mrs. Sparks, the $900 note to the bank, and the mortgage to both assignees. This mortgage was subject to a prior mortgage for $1,000 executed by plaintiff and owned by defendants George and Earl Renaud.
Mr. Korf prepared the instruments. In drawing the $900 note, he made the following endorsement:
"2-25-34 This note is herewith credited $ 75.00 and also " $650.00"
This endorsement was identical with the endorsement made on the prior $900 note, Exhibit B, by the bank's cashier.
The $75 credit is not material to this case. That part of the assignment of the mortgage referring to the bank's note reads:
"FOR VALUE RECEIVED, I, Elizabeth Briggs, formerly Elizabeth Garner, do hereby sell and assign unto the First State Bank, Lynnville, Iowa, a certain note signed by Lowell R. *Page 228
Garner, dated February 23, 1934, due one year after date, for Nine Hundred Dollar's ($900.00) subject to credits shownthereon," etc. (Italics supplied.)
Under a consent interlocutory decree the real estate was sold and the mortgage liens transferred to the proceeds in the hands of the referee.
Appellee, Carrie Sparks, concedes that as the bank's note matures first it is entitled to be first paid out of the common security in the amount found due.
There were two main issues presented by the pleadings: (A). Was the endorsement of $650 on the note conditional on the payment of the rent note as claimed by the bank and, if so, was Mrs. Sparks, under all the circumstances, bound by the conditional credit? (B). The first mortgage of $1,000 owned by the Renauds conveyed the undivided interest of Lowell Garner, mortgagor, in the real estate "as received by me under the will of my father." The second mortgage which secured the notes of Mrs. Sparks and the bank conveyed an undivided one-third interest of Lowell Garner in decedent's real estate. Mrs. Sparks contends that plaintiff received a three-eighths interest under the will of decedent which was conveyed by the first mortgage, and, as the first mortgagees had a lien on all of Garner's interest in the real estate and she only had a lien on his undivided one-third interest, the first mortgagees should, under the doctrine of marshaling securities, first exhaust the interest in the real estate on which they alone had a lien. Plaintiff claims he received an undivided one fourth of the real estate under the will and one half of the undivided one-fourth interest devised to Dora James under the decree in partition.
The trial court found and decreed that the bank accepted the rent note as a cash payment of $650 on the $900 note and deducted said cash payment from the principal. The bank appealed from this adjudication. The court also held that plaintiff received a three-eighths interest in the real estate under the will of decedent and that Mrs. Sparks was entitled to a marshaling of securities as prayed. Plaintiff appealed from this part of the decree. We agree with the conclusions reached by the trial court.
[1] I. We will first consider the appeal of the bank and *Page 229
the endorsement of $650 on the two $900 notes given the bank by Lowell Garner. The cashier who made the endorsement of $650 on the first note testified "It was understood" that the credit was given on condition it was paid and that only $70 had been paid on the rent note. The plaintiff, Lowell Garner, gave the same testimony. We will assume that between the parties the endorsement of $650 on the principal of the note was a conditional credit. It is not claimed that either Mrs. Sparks or her attorney had knowledge that the apparent cash payment on the principal was conditional.
Mr. Campbell who held the Sparks note for collection testified that he and his client went to Mr. Korf's office to talk with him about this note. The note of the bank was not then due. Mr. Campbell stated to Mr. Korf that Mrs. Sparks wanted her money. Mr. Korf said that he had a $900 note and a $1,500 note and a second mortgage securing said notes given by Lowell Garner on February 23, 1934, payable to his mother, Elizabeth Garner, and that he would give the $1,500 note to Mrs. Sparks in exchange for her past due $1,500 note and the bank would take the $900 note on which there was credited $725. The witness did not see the notes during this conversation and no agreement was reached. A few days later, Mr. Campbell went to Mr. Korf's office relative to the proposed exchange of notes for his client. Mr. Korf showed him the two notes and the mortgage. Mr. Campbell examined the bank's $900 note and observed the endorsements of $75 and $650. The witness testified:
"He [Mr. Korf] told me at that time that these payments had been made on this note and there was a first mortgage of $1,000.00 to somebody else and I told him at that time that I would make the exchange on that basis and that is about all that took place. Mr. Korf never told me anything about the history of those payments and I did not inquire. At a later time I delivered to Henry Korf the $1,500.00 note marked Exhibit E for Mrs. Sparks and in exchange for that I got the $1,500.00 note marked Exhibit 1 and I got the assignment of the mortgage. I then wrote Mrs. Sparks and mailed her the note, Exhibit 1, and the assignment of the mortgage."
Mrs. Sparks testified that during the first conversation *Page 230
between the attorneys at Mr. Korf's office she heard Mr. Korf say that the $1,000 first mortgage and $175 due the bank on the $900 note were ahead of her. Pursuant to the arrangement made by the attorneys, Mrs. Garner, the mortgagee, assigned the notes and mortgage as heretofore stated. It appears that Mr. Korf copied the endorsement on the new note from the endorsement made by the cashier on the old note, and, if the endorsement were conditional, it is quite apparent that the bank failed to so advise him. Mr. Korf was deceased at the time of the trial.
The bank, through its representatives, wrote on the note that $650 had been paid on the principal. The endorsements were unqualified. Mr. Campbell was led to believe from his examination of the note and the statements of Mr. Korf that only $175 was due the bank on the note and made the exchange of notes for his client on that basis.
The assignment of the mortgage executed by Mrs. Garner, who owned the rent note and delivered it to the bank, expresses the arrangement and contract between the parties, corroborates the testimony of Mr. Campbell and Mrs. Sparks and suggests that Mrs. Sparks and Mr. Korf, who prepared it, thought the rent note was accepted by the bank as a cash payment on the principal, the assignment stating that the assignor sold the $900 note to the bank "subject to credits shown thereon." The bank accepted this assignment which definitely stated by reference the amount due. As Mrs. Sparks surrendered her past due note and entered into the new arrangement with the Garners and the bank, relying on the endorsement and statements of the agents of the bank, the bank is bound by the contract. If the credit were conditional, the bank concealed this fact from Mrs. Sparks and induced her to enter into a contract that she would not have agreed to if she had known the fact concealed. The bank is estopped from asserting the alleged conditional credit to her prejudice.
[2] II. With reference to plaintiff's appeal, the will provides that payments made or liabilities assumed by plaintiff and Myrle Meredith on the James note on which testator was surety would be treated as an advancement to Dora James and would be deducted from her one-fourth share, the share of Garner and Mrs. Meredith to be increased in proportion to the amount of *Page 231
the advancement. As the advancement made exceeded the devise to Mrs. James, the trial court was right in finding that the share of Dora James had been exhausted by the advancement and adjudicating that, under the terms of the will, the one-fourth interest devised to Dora James went to Lowell Garner and Myrle Meredith in equal shares and that Lowell Garner thus received a three-eighths interest under the will.
The first mortgage conveyed all of the interest of Lowell Garner received by him under the will of his father. The second mortgage executed by Garner and assigned to Mrs. Sparks and the bank only conveyed a one-third interest in the real estate. As the first mortgagees had a lien on a share in the real estate not covered by the second mortgage, to which share the second mortgagee could not resort, they should be compelled to first exhaust such share before sharing in the common security with the assignees of the second mortgage in the order of the priority of the mortgages. The decree, recognizing Mrs. Sparks' right to a marshaling of securities, properly provided that the proceeds of the interest of Garner not included in the second mortgage be first applied on the first mortgage.
The contention of plaintiff that he received only a one-fourth interest under the will, that the first mortgage covered such interest, that the one-eighth additional interest was after-acquired property to which he received title under the decree, is not supported by the record. The decree on this issue held that the advancement exceeded the devise to Mrs. James and therefore her one-fourth interest went to plaintiff and Myrle Meredith in equal shares under the terms of the will.
[3] III. In 1937, the bank filed a claim against the insolvent estate of Elizabeth Garner Briggs, one of the makers of the $900 note, in two counts. The first count was based on the $900 note and the second count on a $200 note of Mrs. Briggs to the bank. On January 5, 1939, the estate paid $132.91 on the claim. The bank complains that the trial court erroneously applied this entire sum on the $900 note and claims it should have been prorated on the two notes.
It was conceded in the record that the final report of the administrator in the Elizabeth Garner Briggs estate shows that the $132.91 was credited on the $938.67 ($900) note. The bank *Page 232
states in its argument that "It is true that when the claim was figured in the Briggs Estate, according to the statement in the final report of the estate, only the first Count was considered but it is the contention of the appellant Bank that it had the right to apply the proportionate share received on the second Count." The concession and admission comprise the evidence on this controversy. The only conclusion that can be drawn is that the debtor estate only allowed the $900 claim set out in the first count and directed that the payment be applied on the $900 note. As the bank accepted the payment it is bound by the election of the debtor. See Pospishil v. Jensen, 205 Iowa 1360, 219 N.W. 507. — Affirmed.
SAGER, OLIVER, HAMILTON, MILLER, HALE, BLISS, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434339/ | This is an action involving the Workmen's Compensation Act. It appears that Louis Biggs had been an employee of the First National Bank of Fort Dodge, Iowa, in the capacity of night watch and janitor for a number of years, and on May 18, 1930, while in the course of his employment and the line of his duty, was killed by a fall down an elevator shaft in the bank building. Both employer and employee were under the Workmen's Compensation Act. The bank had insured its liability under the compensation act with the Southern Surety Company of New York. Immediately upon the happening of the accident which resulted in the death of Mr. Biggs, Willis F. Rich, who was assistant cashier of the First National Bank, and who took care of its insurance business, made reports of the accident to the agent of the Southern Surety Company and also to the Iowa Industrial Commissioner upon blanks furnished him for that purpose. The next day after such reports were mailed, an adjuster representing the insurance company came to Fort Dodge, called at the bank, and inquired of Mr. Rich the particulars of the accident. First reports that were made by Mr. Rich seem to have been made upon on old form of blank that was not then in use by the insurance company, and at the time the adjuster called at the bank, new reports were made out on the blanks then currently used. Mr. Rich testifies that the Biggs compensation claim was handled exclusively by him. The adjuster ascertained from Mr. Rich where Sarah Biggs, the dependent widow of Louis Biggs, lived, and announced that he would go out and attend to the matter with her. It appears that a memorandum of settlement was prepared by the adjuster, either upon the first visit to Mrs. Biggs' residence, or at a later date, which was signed by Mrs. Biggs only, and by some one mailed to the industrial commissioner at Des Moines. The memorandum of settlement bears date of May 31, 1930. On June 4, 1930, the memorandum was approved by the industrial commissioner. Soon after this the insurance company mailed a check of $150 to the bank payable to Mrs. Biggs for funeral expenses. This was turned over to Mrs. Biggs by the bank, and, after the receipt of this check, the bank mailed to the industrial commissioner an amended accident report. Mr. Rich says that after the foregoing detailed *Page 50
occurrences, he never heard any more about the matter except indirectly. It appears that following the making of the memorandum of settlement and its filing and approval with the industrial commissioner, the insurance company paid the weekly compensation under the statute, and as indicated in said memorandum of settlement, of $10.38 a week for 89 weeks, or a total of $923.82. Mr. Rich claims that he does not remember ever seeing any of these checks, and that he has no data showing the amount or number of the checks paid to Mrs. Biggs, and that the only information he ever had in reference to the matter was contained in a letter from the receiver of the Southern Surety Company, dated June 16, 1932. However, on June 10, 1932, Mr. Rich wrote a letter to the insurance department of the state of New York, in which he states that Mrs. Biggs was receiving about $42.50 per month, and that the last check was received March 3, 1932; that she was allowed $10.38 a week for 300 weeks, also $150 for funeral expenses. The Southern Surety Company went into receivership soon after the March 3, 1932, payment referred to, and no more payments were made to the dependent Sarah Biggs. Soon after the payments from the insurance company ceased, Mrs. Biggs took the matter up with the bank and asked for "a little money on that compensation", following advice in a letter to her from the receiver of the company in the following language: "You may apply to your employer for payments of amounts currently due to you and he in turn may file his claim in the liquidation proceeding for amounts so paid out." Mr. Rich then wrote to the insurance department of the state of New York, asking that he "send us any papers necessary to be filled out and filed to protect us." A blank for filing claim was received by Mr. Rich and he went out to see Mrs. Biggs and obtained her signature and took her acknowledgment to the claim and then mailed or caused the same to be mailed to the receiver of the insurance company. Much correspondence was carried on between Mr. Rich and the receiver of the insurance company after it became insolvent, in reference to the payment of the claim, first as a preferred one and later as to the amount of dividend that would be realized upon the claim and when paid, but nothing further was paid to Mrs. Biggs, either by the employer bank or its insurance carrier, the Southern Surety Company.
On January 6, 1933, the plaintiff filed in the district court of Webster county a petition in equity reciting the facts detailed above, and asking that the court determine the amount of the liability of *Page 51
the defendant bank, and that the amount so found be commuted to a lump sum, and that payment thereof be ordered as against the bank, or that judgment be entered therefor, and that she have other appropriate equitable relief.
The defendant bank in its answer to the petition of plaintiff stated that the plaintiff did adjust and settle with the Southern Surety Company, the full liability for workmen's compensation and reached an accord in connection therewith, and that the said plaintiff accepted the obligation of said Southern Surety Company assumed by it as the result of the said proofs and the approval thereof by the said Southern Surety Company, and that plaintiff elected to and did accept the settlement so made, and accepted the sole obligation of said Southern Surety Company to pay the amounts agreed upon in such settlement which she might have, thereby releasing and relieving the said defendant bank from any obligation or liability to pay to the plaintiff any such workmen's compensation, and that the plaintiff is estopped to claim that a liability against the bank continued after the said settlement and adjustment made between the plaintiff and the insurance company. And further that the plaintiff has presented and filed her claim with the receiver of the insurance company for compensation in accordance with the adjustment and settlement so made, and has no further rights that can be asserted against the defendant bank. And in an amendment filed to its answer the defendant makes the further claim and defense, that the cause of action declared upon in plaintiff's petition is barred by the statutes of limitation.
A reply was filed to the answer of defendant bank alleging that all matters in connection with the compensation had been handled by the officers of the defendant bank exclusively, and that the plaintiff had no business experience and was not advised as to her rights by the officers of the bank or any one else; that immediately upon the death of the said Louis Biggs, the bank became liable and obligated for the payment of the legal percentage of his wages provided for by the compensation act for the period of 300 weeks, and that whether or not the bank insured such liability is immaterial, and that the carrying of such insurance did not relieve the bank from the primary obligation imposed upon it by statute.
Such are the pleadings and the record upon which the matter was submitted to the trial court and upon which the trial court made a finding against the defendant, First National Bank, and found and *Page 52
determined that there was a balance of compensation unpaid and due to the plaintiff for 211 weeks, or a total of $2,190.18, and that there was an amount past due at the time of such decree of $622.41, and judgment was entered against the bank for that amount. The decree further provided that the bank should make additional payments in the sum of $10.38 per week beginning April 20, 1933, and continuing each week until 153 payments had been made. From such finding, judgment, and decree, the bank has appealed.
[1] The appellant claims that the memorandum of settlement should not have been considered by the court for the reason that it was not a part of the record at the time the controversy was submitted. The record discloses that the memorandum of settlement had been misplaced in the industrial commissioner's office and was not found or made available until after the record was closed, and that upon application of the plaintiff the court permitted the filing of an amendment to the plaintiff's reply attaching and making a part of the record a certified copy of the memorandum of agreement. We are of the opinion that the memorandum of settlement should be considered as a part of the record. Section 1465 of the 1931 Code provides that upon presentation by any party in interest of a certified copy of a memorandum of agreement approved by the industrial commissioner, the district court of the county in which the injury occurred shall render a decree or judgment in accordance therewith. Under this statute the district court would have jurisdiction to enter judgment in accordance with the terms of the memorandum of settlement, and we think that the memorandum of settlement was properly before the court in this proceeding.
[2] The appellant contends that the memorandum of settlement not having been signed by the employer or by the insurance company was not such a memorandum of settlement as is provided for under the provisions of the statute. Section 1436 of the Code provides that if an agreement in regard to the compensation is reached, a memorandum thereof shall be filed with the industrial commissioner by the employer or employee, and when approved by the commissioner shall be enforceable for all purposes, except as otherwise provided. This section further provides that the agreement shall be approved by the commissioner only when the terms conform to the provisions of the statute. The memorandum of agreement in the instant case was prepared by the insurance carrier and was either filed with the commissioner by it or by the employer, the First National Bank. It *Page 53
was approved by the industrial commissioner and subsequent payments made in accordance with its terms. The bank must be held to have known of the preparation and filing of this memorandum of settlement and agreed to or acquiesced therein. There is no specific provision in the statute requiring the memorandum to be executed by any one. In this instance it was executed by the dependent of the employee. The employer had knowledge of payments thereunder, and we are constrained to hold under the circumstances as disclosed by the record in this case that the memorandum of agreement was and is sufficient under the statute and was so accepted and acquiesced in, not only by the insurance carrier but by the employer.
[3] Section 1377 of the Code provides that except where the compensation act has been rejected, every contract of hire shall be construed as an implied agreement between the employer and employee and a part of the contract on the part of the employer to provide, secure, and pay, and on the part of the employee to accept, compensation in the manner as by the Workmen's Compensation Act provided, for all personal injury sustained arising out of and in the course of the employment, and, section 1378 provides that "no contract, rule, regulation, or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this chapter except as herein provided."
Under the foregoing provisions the employer is primarily liable for the payment of the compensation provided and the carrying of insurance cannot relieve an employer from such statutory obligation.
[4] Section 1406 of the Code provides that a written petition for commutation may be made to the district court of the county in which the injury occurred and shall have indorsed thereon the approval of the industrial commissioner. The industrial commissioner did indorse his approval upon the petition of the plaintiff filed in this case. Holding, as we do, that the memorandum of settlement must be held sufficient and valid, the instant proceedings cannot be said to be original proceedings for compensation and therefore is not barred by section 1386 of the Code. The present proceeding is not one for obtaining an award of compensation, but it is one for commutation upon an award or memorandum of settlement already made and approved by the industrial commissioner. Such memorandum of settlement does not in any way enlarge the liability of the defendant bank, but is in strict accord with the provisions of the *Page 54
compensation act, its terms providing for the amount of weekly compensation and the number of weeks it shall be paid.
Section 1467 of the Code provides that an employer, unless relieved therefrom, shall insure his liability in some company approved by the commissioner of insurance. This is a further indication that the legislature intended to make the employer primarily liable.
In American Fuel Co. of Utah v. Industrial Commission of Utah,55 Utah 483, 187 P. 633, 635, 8 A.L.R. 1342, the court had under consideration a question very similar to the one we are considering, and in disposing of it used the following language:
"Reading the statute as a whole, and considering all of its provisions, the plain and unmistakable import of the language of the act compels the conclusion that the right to compensation arises out of the relation existing between employer and employee; that compensation is a tax upon industry or upon the employer's business, a tax that is added to the price of the product and is ultimately paid by the consumer; that the employer is primarily liable for compensation to the employee; that both employer and insurance carrier are liable for the payment of compensation to the injured employee; and that the default of either will not excuse payment by the other."
It follows from the discussion in the foregoing opinion that the ruling of the trial court should not be disturbed. — Affirmed.
CLAUSSEN, C.J., and KINDIG, STEVENS, KINTZINGER, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434340/ | Appellant is a resident of Carroll County. On or about August 2, 1924, he made a proposition in writing to appellee to furnish and install for him, in an apartment building at Carroll, Iowa, 13,000 square feet of terrazzo flooring, at 25 cents per square foot. The proposal was accepted two days later. The written agreement provided for monthly payments to be made at the office of appellee in the city of Des Moines, on or before the 15th of each month, of 85 per cent of the value of the material delivered at the building, ready to be installed, and 90 per cent of the work done on the building during the preceding month. An itemized account is attached to the petition, which shows a total indebtedness of $4,791, and total credits of $3,340.45, leaving a balance due of $1,450.55.
The petition alleged that, on September 29, 1924, appellee orally agreed to do certain terrazzo work on the outside entrance to the basement of the apartment building, for the sum of $633. It is further alleged that, on December 22, 1924, an agreement in writing was entered into between the parties, by which appellant agreed to pay appellee $250 for completing the terrazzo work on the inside stairs of the building, same to be completed before December 30, 1924. No place of payment is specified in this contract.
Appellant appeared, and filed a motion for change of venue to the county of his residence. Resistance being filed to the motion, appellant then, with leave of court, moved that the cause of action based upon the alleged oral contract to do terrazzo work on the outside entrance of the basement to the apartment house, and the cause of action based upon the alleged written contract to do certain work on the inside stairs of the building, be stricken, upon the ground that these causes of action cannot be maintained against appellant in Polk County, either separately or as a part of another action, even if properly brought therein. All of these motions were overruled. *Page 247
I. The first proposition urged by appellee is that direct and immediate appeal does not lie from an order overruling a motion for change of venue. Such is the rule in this state. Allerton v. Eldridge, 56 Iowa 709; Groves v. Richmond, 58 Iowa 1. APPEAL AND 54; Horak v. Horak, 68 Iowa 49; Edgerly Co. v.
ERROR: Stewart Hunter, 86 Iowa 87; Kell v. Lund, 99 Iowa appealable 153; Wagner v. Glick, 177 Iowa 629; Atchison,
orders: T. S.F.R. Co. v. Mershon, 181 Iowa 892; denial of Northwestern Trading Co. v. Western L.S. Ins.
change of Co., 180 Iowa 878. If, however, the defendant venue: has a right of appeal, and appeals from review. subsequent adverse rulings, he may then have the order denying a change of venue reviewed. Allerton v. Eldridge,
supra. This brings us to the second contention of appellee, which is that an appeal does not lie from a ruling denying a motion to strike parts of a pleading. An appeal from an order overruling a motion to strike is, however, in some cases appealable. Daus v.Short, 169 Iowa 1; Birks v. McNeill, 177 Iowa 567; Weeksman v.Powell, 178 Iowa 991; Seiffert Wiese Lbr. Co. v. Hartwell,94 Iowa 576.
In addition to the exceptions noted in the cases just cited, there is another exception. A cause of action not separately maintainable against the defendant in the county where brought, cannot be joined with another cause of action properly brought therein. A cause of action thus joined may, on motion, be stricken. In case of an adverse ruling on the motion, appeal will lie. First Nat. Bank v. Shriver, 152 Iowa 504. The holding in the above cited case is in strict harmony with Section 10960 of the Code of 1924, which is as follows:
"Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights, and if action on all may be brought and tried in that county, may be joined in the same petition."
Leytham v. Hassett, 200 Iowa 199, is directly in point.
Appellant has appealed from all of the adverse rulings of the court.
Two questions remain to be decided. First, does the record in this case show that the action as to all of the matters involved was commenced in the wrong county; and, second, if not, should *Page 248
2. VENUE: the motion to strike have been sustained? If the unallowable first question be answered in the affirmative, place of the second requires no further consideration. suit. The original contract was for the purchase of 13,000 square feet of terrazzo flooring, at 25 cents per square foot. This amounted to $3,250. The remaining items of the account are for labor, patching holes in terrazzo floors, extra work, and the two items represented by the written and 3. PAYMENTS: oral contracts before referred to. The total presumption. amount of credits exceeds the amount of the original contract. The petition does not show the exact amount due each month under the contract, but it does disclose that monthly payments were made. In the absence of some allegation in the petition to the contrary, we think it should be assumed that the credits were applied on the contract until the amount due thereon was fully paid. The contract is specific, and refers to a specific quantity of flooring. It is true that the word "approximately" is used, but it is indicated by the account that the estimate of square feet was accurate.
So far as appears on the face of the petition, there was nothing due on the original contract, and action for the other items of the account and on the later oral and written contracts could be maintained only in the county of the defendant's residence. Sections 11038 to 11040, inclusive, Code of 1924. We conclude, therefore, that the motion for change of venue should have been sustained.
It follows that the order and judgment denying a change of venue is reversed, and the cause remanded to the district court for such further proceedings as may be necessary in harmony herewith. — Reversed and remanded.
EVANS, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434343/ | Vancal Vesely was born in Bohemia and came to this country when quite young. He was a farmer and lived on his own farm for better than a half century. His wife died in 1932, and he died on December 6, 1937. He had six children, all of whom survived him. On September 14, 1937, Vancal Vesely executed a deed to certain real estate to his son James, which was recorded the same day in the office of the county recorder of Washington county, Iowa. On March 2, 1938, this action was commenced by three of the daughters and two of the sons of Vancal Vesely against James Vesely to set aside the deed alleging it to have been procured by undue influence. There was a trial at which a great deal of evidence was offered, and the lower court entered a decree as prayed for setting aside the deed. James Vesely has appealed. *Page 157
The evidence shows that Vancal Vesely was rather eccentric in his manner and way of living. That he had a very limited business experience and that during her lifetime he relied largely on his wife for advice in business matters. That after her death, his son James, the appellant, handled practically all his business. That there was a very friendly feeling between the father and all of his children.
That all the children did what they could to be kind and considerate of him and thoughtful of his welfare.
In the fall of 1937, Vancal Vesely had reached the age of 77 years, his health was not good, and the 7th day of September of that year, he was taken to the home of the appellees. Just 7 days later, to wit, September 14, 1937, James Vesely and his wife took the father to Washington, Iowa, and had the deed prepared, which is sought to be set aside in this action.
The legal principles involved herein are not in real dispute, as the law is well settled. We have recently in the cases of Osborn v. Fry, 202 Iowa 129, 209 N.W. 303; Johnson v. Johnson,196 Iowa 343, 191 N.W. 353; and Ennor v. Hinsch, 219 Iowa 1076, 260 N.W. 26, reviewed the authorities.
It is the application of these legal principles to the facts involved that is difficult.
[1] Constructive fraud does not necessarily negative integrity of purpose and is, "such contracts or acts as, though not originating in any actual evil design or contrivance to perpetrate a fraud, yet by their tendency to deceive or mislead, or to violate a confidence are prohibited by law." The doctrine arises from the very conception and existence of a fiduciary relation, and in every transaction in which the superior party obtains a possible benefit, equity raises a presumption against its validity and casts the burden of proving affirmatively its compliance with equitable requisites, upon the party receiving the possible benefit. This presumption, however, arises only where, as in this case of child and parent, the child is the dominant personage in that relationship and the parent has become the dependent one, trusting himself and his interests to the advice and guidance of the child. *Page 158
[2] The record shows that James Vesely handled his father's business in the last few years of his life. That the father was rather eccentric, and had little to do with his neighbors. That he was not in the best of health, that there was a kindly feeling between the father and all of his children, that on numerous occasions he had said that he was going to divide his property equally among his children.
James Vesely took his father to his home on the 7th day of September, and just 7 days later, James and his wife took the father to Washington to a stranger and had the deed prepared and recorded. The old gentleman did not have the advantage of an independent adviser. There was no consideration for the deed, and by the transfer of the real estate practically all Vancal Vesely's property was taken from him. It did not even contain a clause for the keep of the father during his lifetime. True there is reference to a small amount of personal property, a few hundred dollars and a note for $1,000, but all of this was claimed by James, and the administrator had to commence an action in replevin to secure it.
The appellant claims that in 1915 Vancal Vesely deeded this same farm to his son James, and that in 1918 James had joined the army and was ordered to duty, thus requiring him to leave the farm, and that he conveyed the real estate to his father. He claimed that there was an agreement between his father and himself, that his father was to reconvey the farm to him if he should return from the war alive.
The trouble with this theory is that the consideration for the deed in 1915 was for $9,400. The payments to be made in accordance with a written contract entered into between James and his father. That he did not make these payments is not denied. The 1937 deed was without consideration. Then also James made no effort to secure the return of title for almost 9 years after he returned from the army. One cannot read this record but come to the conclusion that James was anxious to deed the farm back in 1918 in order that he might be relieved from the payments due under the contract.
Here we have a case where a son handled his father's business *Page 159
in the declining years of his life; that the father lived in the son's home at the time the deed was made; that the father did not have an independent adviser; that there was no consideration for the deed; and that it took practically all of the father's property.
In view of this record we believe the lower court was right in setting aside the deed. It necessarily follows that the judgment must be and it is affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4318201/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LEONARD CUMINOTTO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-3372
[October 4, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2008-CF-
008254-AXXX-MB.
Jacob M. Noble, Palm Beach Gardens, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.
PER CURIAM.
Affirmed.
DAMOORGIAN, CIKLIN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 10-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4063526/ | Order filed, July 22, 2015.
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-15-00489-CR
LANCE JULIAN LAURA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case 1314922
ORDER
The reporter’s record in this case was due June 30, 2015. See Tex. R. App. P.
35.1. The court has not received a request to extend time for filing the record. The
record has not been filed with the court. Because the reporter’s record has not been filed
timely, we issue the following order.
We order Arlene Webb, the official (or substitute) court reporter, to file the record
in this appeal, if any, within 30 days of the date of this order.
/s/ Terry Jennings
Acting individually | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4063529/ | FI LED
GREGG COUtlTY. TEXAS
NO. 44069-B
KEITH WILLIAM BENNETT, § FILED IN
IN THE DISTRIC
APPELLANT 6th COURT OF APPEALS
TEXARKANA, TEXAS
vs. § 7/22/2015DISTRICT
124rn JUDICIAL 8:26:00 AM
DEBBIE AUTREY
THE ST ATE OF TEXAS, Clerk
APPELLEE § GREGG COUNTY, TEXAS
NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES KEITH WILLIAM BENNETT, who was Defendant in the above styled and
numbered cause, by and through his counsel, EBB B. MOBLEY, the trial court having granted
permission to appeal, and files this notice that he wishes to appeal from the conviction to the Sixth
Court of Appeals on errors raised by written motion and ruled on before trial and on errors arising
during and subsequent to trial.
Sentence was imposed on July 17, 2015, and this written Notice of Appeal is filed with the
Clerk of this Court within 30 days of that date.
Respectfully submitted,
EBB B. MOBLEY
Attorney at Law
422 North Center Street-Lower Level
P. 0. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (903) 753-8289
ebbmob@aol.com
EBB B. MOBLEY
Attorney for Appellant
State Bar License# 14238000
EBB B. MOBLEY
ATTORNEY AT LAW
422 NORTH CENTER STREET - LOWER LEVEL
P. 0. BOX 2309
LONGVIEW, TEXAS 75606
TELEPHONE: (90.)) 757-3331
FAX: (903) 753-8289
July 21, 2015
FI LED
GREGG COUt1TY, TEXAS
Tina Campbell
Gregg County Court Reporter
124th Judicial District Court
101 East Methvin, Suite 447
Longview, Texas 75601
RE: Cause No. 44069-B
State v. Keith William Bennett
Dear Ms. Campbell:
I have been appointed to represent the above Appellant on his appeal. I need a complete
Reporter's Record of this case, including all pre-trial hearings, arguments of counsel, voir dire of the
jury, and any exhibits entered into the record.
Thank you for your attention to this matter.
Very truly yours,
Ebb B. Mobley
/kk
cc: Mr. Carl Dorrough
Gregg County District Attorney
101 East Methvin. Suite 333
Longview, Texas 75601
V" Ms. Barbara Duncan
Gregg County District Clerk
I 01 East Methvin, Suite 334
Longview, Texas 75601
~ Keith William Bennett
Gregg County Jail
101 East Methvin, Suite 635
Longview, Texas 75601
NO. 44069-B
THE ST ATE OF TEXAS § IN THE DISTRICT COURT
vs. § 124rn JUDICIAL DISTRICT
KEITH WILLIAM BENNETT § GREGG COUNTY, T~E D
GREGG COUNTY, TEXAS
MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
BY
COMES NOW KEITH WILLIAM BENNETT, Defendant, by and throug·~--,.,,.......'--
attorney for appeal, and files this Motion for New Trial in this case.
I.
Defendant would show the Court that there has been material error committed that is
calculated to injure the rights of Defendant.
II.
Defendant would show the Court that both the guilt/innocence verdict and the punishment
verdict are contrary to the law and the evidence in the case.
III.
Defendant would show the Court that the sentence is so disproportionate as to constitute cruel
and unusual punishment in violation of the Texas and U.S. Constitutions. The trial court exhibited
bias in failing to consider the entire range of punishment.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Motion for New Trial
be set for hearing, and, upon hearing, that the Court grant him a new trial.
Respectfully submitted,
EBB 13. MOBLEY
Attorney at Law
422 North Center Street-Lower Level
P. 0. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (?03) 753-8289
ebbmob a ol.com
EBB B. MOBL
Attorney for Defendant
State Bar License# 14238000
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing motion was
forwarded to the office of Zan Colson Brown, Gregg Coufl!)' tssistant District Attorney, 101 East
Methvin, Suite 333, Longview, Texas 75601, on this t . (JV day of July, 2015, by efile.
Isl EB BLEY
EBB B. MOBLEY
NO. 44069-B
THE STATE OF TEXAS § IN THE DISTRICT COURT
vs. § 124rn JUDICIAL DISTRICT
KEITH WILLIAM BENNETT § GREGG COUNTY, TEXA~ \LE 0
GREGG co~TY. TEXAS
DESIGNATION OF RECORD ON APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
I. A complete Reporter's Record of the trial of this cause, the voir dire examination of the jury, the final
argument of counsel, any pre-trial or post-trial hearings, or any other matters connected with this case
where the court reporter was present and transcribing the proceedings.
2. The indictment.
3. Any special pleas and motions of the Defendant and motions of the State.
4. Any written waivers.
5. Court's docket sheet.
6. Charge of Court on both guilt or innocence and punishment.
7. Any special requested charges submitted by the Defendant.
8. The verdict of the jury.
9. Court's Findings of Fact and Conclusions of Law.
I 0. Court's judgment and sentence.
I I. Motions for New Trial.
12. Notice of Appeal.
13. Letter to court reporter requesting preparation of Reporter's Record.
14. Any notes from the jury and the Court's responses thereto.
15. All exhibits.
16. All juror information sheets and information on peremptory strikes.
17. Any other matter contained within the Court's files.
18. Any order appointing a visiting or retired Judge to preside on this case.
19. Any presentence investigation prepared for and used in this case.
20. Trial Court's Certification of Defendant's Right of Appeal.
WHEREFORE, PREM !SES CONSIDERED, the Defendant respectfully requests that these matters be contained
within the record of this appeal.
Respectfully submitted,
CERTIFICATE OF SERVICE
ff
I, the ""de.'{f d, heceby oertHY that a true aod correct copy of the above and focego;"g w"' fon | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434335/ | The Boston Cafe, in Mason City, Iowa, was operated by one Zahariades who owned the stock and fixtures, and who also operated the Luxury Cafe, which was diagonally across the street and above which were living rooms occupied by Zahariades and family. Appellants, George and Eugenia Bazoukas, husband and wife, were the parents of Mrs. Zahariades, and occupied the apartment with them. George Bazoukas worked in Boston Cafe, and had been in charge of it at times during absences of his son-in-law. George Bazoukas was working in said cafe on January 30, 1938. Mrs. Bazoukas came there about midnight, and shortly thereafter Mrs. Zahariades and a waitress departed, and, except for an occasional customer, the two appellants were thereafter the only persons in said cafe. At 1:20 a.m. (January 31) a witness saw the lights turned out in Boston Cafe. About fifteen minutes later the appellants left said cafe together and walked across the street to their living quarters, George Bazoukas carrying a box. A few minutes later flames from a fire, which started in two places in the basement of Boston Cafe, burst through the first floor. After the fire had burned some portions of the building it was extinguished. Examination disclosed the presence of kerosene soaked clothing, rags, papers, floors and fixtures, boxes of matches at strategic points, and various other details on the first floor and basement which indicated incendiarism.
Taken from appellants, at their rooms, were a few packages of gum, candy, peanuts, cigars and groceries, all from the stock of Boston Cafe, also a coat worn by George Bazoukas with sleeve soaked with kerosene. It appeared that the stock and fixtures had been heavily insured by the son-in-law, and that at the time of the fire the stock was very low and some of the fixtures had been removed. The foregoing statement omits many material matters and is intended only as a bare outline of the circumstances relied upon by the state.
Most of said circumstances were not disputed by appellants. Some were explained. It was claimed the presence of kerosene upon the coat sleeve and upon certain papers and clothes in the *Page 1388
cafe resulted from the burning out of the stove pipes by Mr. Bazoukas, at about 10 p.m., on January 30. However, certain customers who were in the cafe at 1 a.m., on January 31, noticed no kerosene or odor therefrom on the clothes of said appellant, or in the Boston Cafe.
Appellants, George and Eugenia Bazoukas, were charged with having set said fire and were jointly indicted, tried and convicted of the crime of arson, from which conviction they prosecute this appeal. At the trial, counsel for appellants in opening statement said:
"I think so far as I am concerned that the fire was placed or set by somebody. We are not going to contest that issue."
Appellants' motion for new trial and exceptions to instructions contained the following:
"Defendants in the opening statement and throughout the trial conceded that the fire had been set by someone but claimed that they had no part in it."
[1] I. Error is predicated upon the admission in evidence, over objection, of certain exhibits which had been presented to the grand jury, but had not been filed with the clerk of the district court as required by Code section 13714. In support thereof appellants cite State v. Howard, 191 Iowa 728, 183 N.W. 482; State v. Burris, 198 Iowa 1156, 198 N.W. 82; State v. Campbell,213 Iowa 677, 239 N.W. 715. The rule of these cases is that said statutory provision is not mandatory but only directory, and that failure to comply therewith does not render such exhibits inadmissible. In State v. Burris, supra, it was said that the trial court, upon application by the defendant, should require the state to permit an inspection, under proper conditions, of such exhibits used before the grand jury as are intended to be offered in evidence upon the trial. Counsel representing appellants in the trial appear to have been advised that the exhibits were in the custody of the sheriff, subject to their inspection. In any event no application was made to the court for such inspection and no prejudice appears to have resulted from the noncompliance with the statute.
[2] II. Error is assigned to rulings of the trial court in overruling objections to questions relative to other fires, propounded to George Bazoukas on cross-examination, and in *Page 1389
refusing to strike said testimony. The record does not show any objections to this line of cross-examination, or motion to strike said testimony. Nor does the record sustain the statement made in argument that the prosecution "persistently" referred to said testimony. No reference thereto by the prosecution is shown.
The only record indication as to what took place is the inference which may be drawn from an instruction requested by appellants that the jurors "have been heretofore admonished that this evidence must not be considered by you at all as against either of the defendants", and that no consideration should be given to such evidence. The court refused the instruction as requested, but did instruct that "this testimony must not be considered".
The record presented to this court leads to the conclusion that the criticized testimony was elicited without objection, that later appellants moved to strike the same and that the court thereupon admonished the jury not to consider it and in his instructions again told the jury to disregard it. No error appears in this connection.
[3] III. Instruction No. 7 is challenged upon the ground that the court failed to define the meanings of direct and circumstantial evidence, failed to tell the jury that the case of the state was based wholly upon circumstantial evidence and permitted the jury to infer or assume that it was based upon both direct and circumstantial evidence.
In support of this assignment of error appellants cite State v. Mikels, 224 Iowa 1121, 278 N.W. 924; State v. Blydenburg,135 Iowa 264, 112 N.W. 634, 14 Ann. Cas. 443, and certain other authorities referred to in said cases.
However, no request for additional or more explicit instructions was made by appellants. In the absence of such request a trial court does not commit reversible error in failing to fully instruct upon the subject of circumstantial evidence. State v. Hart, 140 Iowa 456, 118 N.W. 784; State v. Alley,149 Iowa 196, 128 N.W. 343; State v. House, 108 Iowa 68, 78 N.W. 859; State v. Lynch, 195 Iowa 560, 192 N.W. 423.
The instruction, in this case, stated that the proof need not be the direct evidence of persons who saw the alleged offense committed. Next, reference was made to circumstantial evidence as distinguished from direct evidence. Following this was a *Page 1390
general statement laying down the established rules governing the manner of consideration by a jury of evidence in a criminal case, when wholly circumstantial in character. Lastly, was a statement that if "in this case, there is any essential fact which is inconsistent with the guilt of either of the defendants, such fact is sufficient to raise a reasonable doubt and your verdict in such event should be `not guilty' as to such defendant". The instruction was primarily devoted to the discussion of circumstantial evidence, and mentioned direct evidence only as therefrom differentiated. Although it did not baldly recite that the evidence was wholly circumstantial, we think no other inference could reasonably have been drawn therefrom.
It appears that the criticized instruction required the jury to treat all the evidence as being circumstantial in character. In other words the instruction correctly advised the jurors how to proceed but did not tell them the legal basis and reason therefor. Assuming the evidence to have been wholly circumstantial in character, no request was made for an instruction in that form. Whether the criticized instruction would have been erroneous had such request been made we need not decide.
[4] IV. Another alleged error is based upon the action of the court in not submitting to the jury the offense of attempt to set fire as defined in section 12991-b5, Code of Iowa 1935. The proof showed partial burning of the building. Under the circumstances, the crime of setting fire or aiding therein was fully accomplished. Therefore, the perpetrator would be guilty of arson and not of attempt to set fire. Code section 12991-b2; State v. Spiegel, 111 Iowa 701, 83 N.W. 722.
[5] V. Lastly, it is contended there was no legal or competent evidence to sustain the convictions of each defendant. We have no hesitancy in holding the evidence was sufficient to warrant the conviction of the defendant, George Bazoukas. Of his guilt we are abidingly convinced.
[6] The question as to whether or not the evidence was sufficient to sustain the conviction of Eugenia Bazoukas is very troublesome. True, this court has definitely discarded the rule under which it was formerly presumed that a wife committing a crime in the presence of her husband did so under his coercion. State v. Renslow, 211 Iowa 642, 230 N.W. 316, 71 A.L.R. 1111, and cases therein cited.
[7] However, in the absence of evidence tending to show *Page 1391
the participation of a wife in a crime committed by the husband her guilt thereof may not be presumed. The marital relationship frequently results in her having knowledge of and even her presence at the scene of a crime committed by her husband. That she may fail to actively oppose the same will not, in the absence of conspiracy or participation, render her likewise guilty.
[8] The record shows that George Bazoukas was regularly employed in the premises in question, and had been working there during the greater part of the day of January 30, that he had purchased the kerosene kept in the premises, that kerosene was found upon his clothing, and that his glasses were found in the basement where the fires were started. Eugenia Bazoukas was not employed in said premises. It had been her custom to go there each night shortly before the close of business, visit with her husband and return home with him. On such occasions, and upon the night in question, she did not participate in the work or assist in the business of the cafe. Of her doings otherwise it is shown only that she occupied a chair near the stove in the front room of the establishment. From that position she would not necessarily have known of the preparations and starting of the fires in the basement or of the incendiary preparations in the rear room. Other than her presence in the building as a visitor there are no circumstances from which her guilt might be inferred. The crime was not one of a connected series of offenses and was of such character that it could have been readily committed by one person without aid. Assuming that she had knowledge of the commission of this crime we have grave doubts that under the circumstances there was sufficient evidence to warrant her conviction as a participant. The proposition is very close, but we are constrained to hold that the evidence was insufficient to sustain the conviction of Eugenia Bazoukas.
Wherefore, the case is affirmed as to the defendant, George Bazoukas, and reversed as to the defendant, Eugenia Bazoukas. — Affirmed in part; reversed in part.
MITCHELL, C.J., and SAGER, HAMILTON, STIGER, RICHARDS, HALE, and MILLER, JJ., concur.
BLISS, J., takes no part. *Page 1392 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434341/ | Henry Iwers, the testator, was a son of Hans and Caroline Iwers. Hans Iwers came to this country from Germany as a youth and settled in Cedar County where he engaged in the business of farming. The family consisted of Mr. and Mrs. Iwers, and their sons, William, John, and Henry Iwers. None of the brothers married. They all lived together and accumulated 880 acres of land, residence properties, and a large amount of personal property. Through the death of his brothers, *Page 391
Henry became the owner of all the property accumulated by the family which was valued at his death at $375,000. On June 6, 1935, Mr. Iwers went to the office of his attorney, D.H. Snoke, where the will in question was drawn. It purports to be signed by Henry Iwers and witnessed by Mr. Snoke and Miss Geerts, stenographer for Mr. Snoke. The will gave all of the testator's property to Louis and Mary Voss. Mary Voss was a cousin of the testator.
Henry Iwers lived alone after the death of his brothers until January, 1936, when the proponents, Louis and Mary Voss, who were then living on one of the Iwers' farms, moved into the home of Henry Iwers and lived with him until his death five months later.
The objections to the probate of the will relied on by contestants are that the instrument was not signed and executed by the decedent and was not witnessed and signed by the persons whose names appear thereon as witnesses in the manner required by the laws of the State of Iowa.
The jury found for the proponents and that the will offered for probate was the valid will of Henry Iwers.
At the time of the trial, Miss Geerts was the only surviving witness to the will. She testified to conversations occurring between the testator and Mr. Snoke and further testified that Iwers signed the will in the presence of the witnesses and that they, at his request, signed as witnesses in his presence. The contestants do not question the signature of Miss Geerts.
Two handwriting experts, Mr. Faxon and Mr. Scovill, witnesses for contestants, classified the signature of Mr. Iwers on the will as a traced forgery. Four lay witnesses for the contestants testified that the signature of D.H. Snoke appearing on the will was a simulation. Three handwriting experts, Mr. Gesell, Mr. Courtney, and Mr. Steen, and several lay witnesses testified the signatures of Iwers and Snoke appearing on the will were genuine.
I. The first assignment of error relied on by appellants for reversal is that the surviving witness to the will of the decedent, Mary C. Geerts, was incompetent to testify concerning the making and execution of the purported will under Code section 11257, known as the dead man's statute, and that said will should not have been admitted in evidence because its admission was based upon the evidence of an incompetent witness. *Page 392
Miss Geerts was, at the time of the trial the only surviving witness to the will.
In objecting to the competency of the witness, counsel for contestants stated:
"The proponents base their claim of right in this matter upon the testimony of this witness. My thought on that is this: `It now appears that Snoke (the other witness to the will) is dead, therefore, to sustain the burden upon the proponents in this case they must necessarily depend upon the testimony of this witness, and therefore any rights they have in this matter will depend upon the testimony of this witness, and she is incompetent by reason of the dead man's statute'".
The material portion of section 11257 is as follows:
"11257. Transaction with person since deceased. No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any suchparty or interested person derives any interest or title byassignment or otherwise, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the * * * heir at law * * * of such deceased person * * *." (Italics supplied.)
The contention of contestants is that Mary C. Geerts testified, over objection, to the making and execution of the will, and that proponents base their claim of right to the admission of the instrument to probate solely upon her testimony, and they allege that because the testimony of Miss Geerts was necessary to establish the due execution of the will, under which proponents claim title to the property of decedent, it follows that Miss Geerts was the person from whom proponents derived an interest or title by assignment or otherwise. Contestants especially claim that while proponents did not derive their interest in the subject matter of the action by assignment from Miss Geerts they did derive title from Miss Geerts "otherwise", because she was indispensable to the establishment of the due execution of the will and therefore proponents derived title from her, not by assignment, but "otherwise". In support of their position, contestants rely on the following loose phraseology contained in the case of McClanahan v. McClanahan, 129 Iowa 411, *Page 393 105 N.W. 833, in which case the court purports to define the wordotherwise found in Code section 11257 as follows (page 413 of129 Iowa, page 834 of 105 N.W.):
"It is not necessary that the interest should be derived by transfer or assignment. It may be `otherwise,' and, as used, that word is one of broad significance. It means that, if the right asserted by a claimant depends for its existence and validity upon a transaction between the deceased and a third person, the evidence of such third person shall not be allowed to prove the transaction."
[1] The above language in the McClanahan case is entirely too broad and if the definition of the word "otherwise" is correct, it would prevent to a substantial degree the proof of due execution of wills by the witnesses thereto, for in the great majority of cases, the right asserted by proponents of and beneficiaries under a will depends for its existence upon the transaction between the deceased and the witness or witnesses to his will. The construction found in the McClanahan case is manifestly not in harmony with the express provisions of the statute which provide that in order to render a witness incompetent, the party to the action must derive his interest or title in the subject matter of the action from the witness. Manifestly the proponents did not derive their interest in the subject matter of the action from Miss Geerts or through any transaction with her. Whatever interest proponents have will be derived from the last will and testament of decedent.
We approve and affirm the construction given Code section 11257 and especially that portion that is under special consideration here in the case of Stiles v. Breed, 151 Iowa 86, at page 97,130 N.W. 376, at page 380, in which the court states:
"`From, through or under' has reference to the origin or devolution of property, and, unless some title to or interest therein has been derived by `assignment or otherwise' from the party adverse to the estate, the section has no application. By `otherwise' is meant in another manner or way, as by devise or descent. Contrary to what was intimated in McClanahan v. McClanahan, 129 Iowa 411, 105 N.W. 833, by express provision of the statute, the title or interest must have been derived `from, through or under' the witness, in order to render him incompetent." *Page 394
Further expressing its disapproval of the language found in the case of McClanahan v. McClanahan, supra, the court, in the Stiles case, states:
"In McClanahan v. McClanahan, 129 Iowa 411, 105 N.W. 833, the witness held to have been incompetent was the person through whom the trust fund was acquired, and therefore not in point, though dicta may be found in the opinion contrary to the conclusion here reached. We are of opinion that the evidence of Thompson was admissible."
The conditions that make the statutory prohibition applicable are not present in this case and the trial court was right in ruling that Miss Geerts was a competent witness. See Stutzman v. Crain, 185 Iowa 514, 170 N.W. 806.
[2] II. Another error alleged is that the court erred in failing to instruct the jury upon the issue as to whether or not the purported will was duly and legally executed and witnessed in the manner required by law, which was one of the issues made by the pleadings, and which issue was separate and independent from the issue as to the genuineness of the signatures of the testator and the witness Snoke; that the proponents had the burden of proving that the instrument was executed in the manner required by law and that the court further erred in giving to the jury upon its own motion the last paragraph of instruction No. 3, which, in effect, withdrew the issue of the formal execution of the will from the jury.
Contestants objected to the probate of the will of decedent upon the following ground:
"That said paper purporting to be said Last Will and Testament of Henry Iwers, deceased, was not signed and executed by said decedent or by any other person in his presence and by his express direction writing his name thereto in the manner required by the laws of the State of Iowa, and was not witnessed and signed by the persons whose names appear in said paper as witnesses thereto in the manner required by the laws of the State of Iowa."
It is the contention of the proponents that the only issue presented to the court in the trial of the case was whether the signatures of Iwers, the testator, and Snoke, one of the witnesses to the will, were genuine and that the action will not be reviewed *Page 395
on appeal on a theory different from that pursued in the trial below.
After the proponents had made out a prima facie case by the testimony of Miss Geerts, surviving witness to the will, the contestants offered the evidence of two experts and laymen who testified that the signatures of Iwers and Snoke were forgeries. No other evidence was offered by contestants relative to the execution of the will. Proponents, in their rebuttal testimony, introduced the evidence of expert and lay witnesses who testified that the signatures were genuine.
Contestants requested the court to give a complete set of thirteen instructions all of which were given verbatim by the court. It may be said, for the purpose of this appeal, that all of the instructions given by the court were requested by contestants with the exception that the trial court added a paragraph to instruction No. 3, which they claim withdrew from the jury the issue of the formal execution of the will, and with the further exception of instruction No. 8, which referred only to Exhibit "AT" which was immaterial to any issue in the case.
In the statement of issues to the jury, the instruction states that the ground of the contest is that the will was not signed and executed by Henry Iwers and was not witnessed and signed by the persons whose names appear on said paper, as witnesses thereto in the manner required by the laws of the State of Iowa.
Because of the importance of instruction No. 3 in the determination of the issue presented by this assignment of error, we set it out in the opinion at length.
"INSTRUCTION NO. 3.
"As you have been heretofore advised in the statement of the issues, it is the claim of the proponents, Louis Voss and Margaret Voss, that the paper which has been identified as Proponents' Exhibit `A' is the last will of Henry Iwers, deceased, and that it was actually signed by him as his will and by D.H. Snoke and Mary C. Geerts as witnesses thereto.
"On the other hand, the contestants claim that the paper identified as Proponents' Exhibit `A' is not the will of the said Henry Iwers, deceased, and that the name Henry Iwers appearing on said Exhibit `A' was not placed thereon by the said Henry Iwers, and is not the genuine signature of the said Henry Iwers, and that the name of D.H. Snoke appearing upon said *Page 396
Exhibit `A' was not placed thereon by the said D.H. Snoke and is not the genuine signature of the said D.H. Snoke.
"You are further instructed that a statute of this state provides that a will, to be valid, must be in writing, signed by the testator, or by someone in his presence and by his express direction writing his name thereon, and witnessed by two competent persons. If, therefore, the paper identified as Proponents' Exhibit `A' was not in fact signed by Henry Iwers, if that be the fact, and was not also signed by the said D.H. Snoke, if that be the fact, then said paper would not be the valid will of the said Henry Iwers, deceased.
"In this connection you are further instructed that the burden of proof is upon the proponents, Louis Voss and Margaret Voss, who are seeking to have the paper identified as Exhibit `A' established as the last will of the said Henry Iwers, deceased, and admitted to probate, to prove by a preponderance of the evidence given you upon the whole case each of the following affirmative propositions, to-wit:
"a. That the paper identified as Exhibit `A' was signed by the said Henry Iwers, deceased, and that said paper bears the genuine signature of Henry Iwers.
"b. That the paper identified as Exhibit `A' was signed by D.H. Snoke and that said paper bears the genuine signature of D.H. Snoke.
"If you do not so find affirmatively in favor of the proponents, Louis Voss and Margaret Voss, upon each and all of the foregoing propositions a. and b., or if you find that the proponents, Louis Voss and Margaret Voss, have failed to establish by a preponderance of the evidence, as that term is defined in these instructions, that the paper identified as Exhibit `A' bears the genuine signature of the said Henry Iwers and that said paper Exhibit `A' was actually signed by him, or if you find that the proponents, Louis Voss and Margaret Voss, have failed to establish by a preponderance of the evidence that said paper Exhibit `A' bears the genuine signature of D.H. Snoke and that said paper was actually signed by him, then, in any of such events, you should proceed no further, but at once return a verdict for the contestants in this cause.
"On the other hand if you so find affirmatively in favor of the proponents, Louis Voss and Margaret Voss, upon each and all of the foregoing propositions a. and b., or if you find that *Page 397
the proponents, Louis Voss and Margaret Voss have established by a preponderance of the evidence, as that term is defined in these instructions, that the paper identified as Exhibit `A' bears the genuine signature of the said Henry Iwers, and that the said paper Exhibit `A' was actually signed by him, and if you further find that the proponents, Louis Voss and Margaret Voss, have established by a preponderance of the evidence that said paper Exhibit `A' bears the genuine signature of D.H. Snoke and that said paper was actually signed by him, then, in such event, you should return a verdict for the proponents in this cause."
As above stated, instruction No. 3, excepting the last paragraph, was given at the request of contestants. The instruction was modified by the court by adding the last paragraph. The contestants predicate error on the giving of the last paragraph because they allege it withdrew the issue of the due execution of the will, that is, the instruction presented to the jury only the issue of the genuineness of the signatures of Iwers and Snoke and the court failed to submit the issue of the formal execution of the will.
It will be observed that in this instruction the contestants, in stating their claim, do not mention Miss Geerts nor question her signature. In stating the affirmative propositions that must be established by proponents, there is no statement that proponents must prove that she signed the will as a witness to the signature of the testator. After stating the requirements of a valid will, the instruction tells the jury that in this connection (the validity of the will) the proponents must prove that the signatures of Iwers and Snoke were genuine. Such was the only burden placed on proponents by the requested instruction. The instruction, in substance, tells the jury that if the signatures were genuine the will was valid. The requested instruction, as to contestants, became the law of the case. Grosjean v. R. Co., 146 Iowa 17, 123 N.W. 162.
In all of the requested instructions that pertain to the execution of the will, the sole question considered is whether the signatures were genuine. For example, in instruction No. 5, we find the following language: "It is the contention of the contestants that the name of Henry Iwers, appearing upon the paper identified as proponents' Exhibit `A', is not the genuine signature of *Page 398
said Henry Iwers but that the same is a tracing of said name, etc." Said instruction also states: "It is further contended by contestants in this case that the name D.H. Snoke, appearing on said Exhibit `A', is not the genuine signature of said D.H. Snoke."
We are of the opinion that contestants placed their own construction on their ground of contest that the will was not signed and witnessed as required by law, which was that the will was invalid because the will was not signed by Iwers or the witness Snoke and their signatures were forgeries, and that if they did sign the will, it was a valid will and signed and witnessed as testified to by Miss Geerts.
While the last paragraph of instruction No. 3, added by the court, does state that if the jury found that the signatures were genuine it should return a verdict for the proponents, in view of the requested part of the instruction, which is the law of the case, the modification of the instruction by the court was in harmony with the requested instruction and correct. It may be conceded that if the entire instruction had been given on the court's own motion, that it would have constituted reversible error. But in giving the instruction, the trial court acceded to defendant's theory of their ground of contest and no objections were made to the instructions by the proponents.
[3] A litigant will not be permitted to entrap the court by an invitation to commit error. In the case of Remington v. Machamer,192 Iowa 1098, we stated on page 1102, 186 N.W. 32, on page 34:
"As to all the rest of Instruction No. 8, defendant, because of the offered instruction, in the same language as that given by the court, may not now complain. Grosjean v. Chicago, M. St. P.R. Co., 146 Iowa 17, 23, 123 N.W. 162. Having invited the error, if any there was, defendant may not now take advantage of it."
III. Miss Geerts, after testifying on direct examination to the formal execution of the will, further testified to a conversation between testator and his attorney, Mr. Snoke, which occurred at his office just prior to drawing the will as follows:
"Mr. Iwers stated to Mr. Snoke that he wished to make the Vosses beneficiaries. The talk before any writing was done *Page 399
took 10 or 15 minutes. Mr. Snoke asked Mr. Iwers what the first names were of the Vosses, and Mr. Iwers gave him the names `Louis and Margaret'. After he got this information, he made notations on a slip of paper."
[4] At the close of contestants' evidence, as a part of proponents' case in chief, Miss Geerts was re-called for further direct examination. She identified Exhibit "AT" which was a small sheet of paper containing the words "Louis Voss, Margaret Voss, * * * without bonds". She stated that on her prior direct examination, she had testified that Mr. Snoke had made notations on a slip of paper; that Exhibit "AT" was the paper she referred to and that she saw the attorney write the words appearing thereon at his office on the day the will was executed and that at the time the notation was made, Iwers and Snoke were talking about what would go into the will. She further testified she found the exhibit in Mr. Snoke's office in the files of the John Iwers' Estate and that she left the exhibit in the files and did not know the circumstances of its production at the trial.
Contestants objected to the admission of Exhibit "AT" into the evidence on the ground that it was hearsay, a private memorandum of the witness who had identified it and contestants did not have the privilege of cross-examining the alleged maker of the exhibit because he was deceased at the time of the trial and that the exhibit was not material to any issue in the case. The objection was overruled.
Miss Geerts took no part in the conversation, and it was proper for her to relate the conversation between Iwers and Snoke and the circumstances surrounding the execution of the will. However, Exhibit "AT" does not constitute independent, substantive evidence of the conversation between Iwers and Snoke or the making of the memorandum. What ever probative value it has depends on the credibility of the witness. It is not, as contended by proponents, competent evidence under Code section 11280, which provides that entries and other writings of a person deceased, who was in a position to know the facts therein stated, are presumptive evidence of such facts when the entry was made in the ordinary course of professional conduct, because the exhibit does not contain a statement of fact. No date appears on the exhibit and its meaning is obscure for the reason that the names appearing thereon before the words "without *Page 400
bonds" are as referable to the executors desired by the testator as they are to the persons whom he desired to take under his will. The most that can be claimed for the exhibit is that it tended to strengthen the testimony of Miss Geerts about the conversation and memorandum. This testimony of Miss Geerts was not necessary to the making of a prima facie case by proponents by proving that the will was executed in compliance with the requirements of Code section 11852. Exhibit "AT" had no bearing on the question of the formal execution of the will or on the issue raised by the objections of the contestants to the probate of the will.
While the offer of Exhibit "AT" should have been denied, the uncontradicted testimony of Miss Geerts in regard to the conversation and memoranda made by Mr. Snoke was in the record without objection. The said testimony of Miss Geerts and the exhibit were manifestly immaterial to any issue in the case and the overruling of the objections to the admission of the Exhibit "AT" in evidence does not, under the circumstances, constitute reversible error.
Contestants requested the court to instruct the jury that Exhibit "AT" was withdrawn from its consideration and that it should disregard it in its consideration of the case. The trial court refused to give the requested instruction and in lieu thereof gave instruction No. 8, which reads as follows:
"INSTRUCTION NO. 8.
"You are further instructed that during the progress of this cause the proponents offered in evidence a piece of paper, identified as Exhibit `AT', and the same was admitted in evidence.
"You are instructed that though this testimony is competent, yet, as the right of cross examination does not exist, it is not highly favored by the law, and you are at liberty to give it such weight and value as under the circumstances you think it is justly entitled to."
Instruction No. 8 was the only instruction given on the court's own motion. Appellants contend that the giving of instruction No. 8 constituted reversible error because Exhibit "AT" was not competent to prove any material issue in the case, and that, assuming it was competent evidence, the instruction calls special attention to certain evidence or a class of evidence *Page 401
and thereby tends to magnify the importance of such evidence in the minds of the jury.
It is well established that the trial court should refrain from giving undue prominence and emphasis to the testimony of certain witnesses or to particular facts or the theory of one side or the other, as such practice may mislead the jury. Middleton v. City of Cedar Falls, 173 Iowa 619, 153 N.W. 1040; Simons v. Fort Dodge R. Co., 128 Iowa 139, 103 N.W. 129.
The instruction clearly does not magnify the importance of Exhibit "AT" but minimizes its evidentiary value. If Exhibit "AT" were admissible under Code section 11280 as an entry made in the ordinary course of professional conduct, the instruction would be a correct statement of the rule in regard to such evidence. See State v. Wooderd, 20 Iowa page 541.
[5] Instruction No. 8 is only vulnerable to attack on the ground that the court instructed the jury in regard to an exhibit that was not material to any issue in the case and the instruction requested by contestants should have been given.
As above stated, the only issue raised by the objections to the probate of the will was the genuineness of the signatures. That was the issue tried and submitted to the jury. The verdict of the jury was, "we, the jury, find for the proponents, and that Exhibit `A' is the valid will of Henry Iwers and should be admitted to probate."
We think it is manifest that the jury was not misled or influenced by this instruction about an exhibit that obviously was not material to proponents' prima facie case, or to the issue made by the objections.
Being convinced that no prejudice resulted to contestants, Exhibit "AT" cannot be made a ground for reversal of the case.
[6] IV. Another assignment of error is, "The court erred in overruling contestants' repeated objections to the use of improper memoranda by proponents' witness Francis B. Courtney when giving his testimony, and in permitting said witness over objection to refer to and testify from said memoranda. The action of the trial court in striking Courtney's testimony and then orally admonishing the jury to disregard the same did not cure the error."
Mr. Courtney was one of the three hand-writing experts that testified for proponents. He first testified that, from a comparison of the disputed signature on the will with standard *Page 402
signatures of Iwers and Snoke which had been admitted in evidence, the signatures on the will were genuine. This opinion of the witness was clearly admissible and no objection was made to the testimony by contestants. He then proceeded to state the reasons for his opinion. Early in the examination of the witness it appeared that he was making use of memoranda in his possession in giving the facts and reasons on which his opinion that the signatures were genuine was based. The memoranda contained notations and observations about the letters contained in the name of Iwers as they appeared in enlarged photographs of his genuine signature. Many of the photographs were miniatures or reduced photographs of the genuine signatures and were inaccurate representations. The witness admitted he was unable to give his testimony concerning the reasons on which he based his opinion without consulting the memoranda and that it was prepared solely for use at the trial.
Counsel for contestants at once objected to the testimony of the witness on the ground that he was testifying from the memoranda; that no foundation had been laid for its use and that it was prepared for the sole purpose of giving testimony at the trial; that it appeared that the witness could not testify independently of the memoranda; that many photographic signatures on the memoranda were not in evidence nor were they duplicates of photographs in evidence; that many of the photographs were miniatures or reduced photographs of the original signatures, and that the photographs of genuine signatures were not the best evidence. The objections were overruled. Counsel for contestants persisted in his objections to the method of testifying (from the memoranda) during the examination of the witness.
It also appeared that the witness had examined about 200 signatures of Snoke which were not in evidence and that he based his opinion that the Snoke signature on the will was genuine in part on such examination. At the conclusion of the examination of the witness on Thursday, November 5, counsel for contestants moved to strike all of the testimony of the witness relating to the Snoke signature because his opinion was based on an examination of instruments and signatures not in evidence which motion was sustained. Counsel then renewed his objections and moved to strike the testimony of the witness as to the signature of Henry Iwers for all the reasons contained in *Page 403 his prior objections to the use of the memoranda. The court reserved his ruling on this motion and the next day, Friday, November 6, court adjourned until the following Monday.
When court convened on Monday, and just before the close of the evidence, the court, in the presence of the jury, changed his ruling and sustained the motion to strike the testimony of the witness Francis B. Courtney as to the signature of Henry Iwers, and then orally admonished the jury not to take into consideration any of the evidence of the witness in relation to the signature of Henry Iwers in arriving at their verdict.
We think the trial court was right in ultimately concluding that the objections to the evidence given by Mr. Courtney based on the memoranda should have been sustained. It will be observed that the court struck out not only the inadmissible testimony of the witness but also his opinion that the signature of Iwers was genuine, although the motion to strike the testimony of the witness as to the signature of Iwers was based solely on the reasons urged in the prior objections to the use of the memoranda. The ruling was obviously too favorable to the contestants, but was unchallenged by proponents. There is no complaint made on this appeal to the admission in evidence of the opinion of this expert witness that the signature was genuine. The only proposition submitted by contestants on this assignment of error is that the court erred in overruling the objections to the testimony of the witness based on the memoranda and that the error was not cured by striking it and instructing the jury to disregard it.
The position of contestants is that the action of the court in changing his ruling on the objections to the testimony of Mr. Courtney and in sustaining the motion to strike after the inadmissible evidence had been before the jury five days and just before the arguments were made to the jury and instructing the jury to disregard such testimony did not cure the error in overruling objections to the method adopted by the witness of testifying from the memoranda.
The evidence that contestants claim was erroneously admitted is the testimony of Mr. Courtney giving the reasons and facts on which he based his opinion that the signatures were genuine, which testimony was from the memoranda and not from personal recollection.
The general rule is that, if evidence erroneously admitted *Page 404
during the progress of a trial is distinctly withdrawn by the court, the error is cured, except in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained despite its exclusion and influenced their verdict. 4 C.J. 898, section 2972; McKee v. Iowa, R. L. Co., 204 Iowa 44,214 N.W. 564.
In the case of McKee v. Iowa R. L. Co., supra, we stated on page 48, 214 N.W., on page 567:
"It is the general rule that error in the admission of evidence is cured by subsequently striking it out. Croft v. Chicago, R.I. P.R. Co., 134 Iowa 411, 109 N.W. 723. A fortiori the admission of incompetent evidence is cured by specific instruction to the jury not to consider same, in addition to striking such evidence from the record. There are exceptions to this rule, and consequently the rule may not be invariably applied."
The testimony complained of was merely the basis or reason for the opinion of Mr. Courtney.
Because of the nature of the evidence, we do not think incurable prejudice resulted and are of the opinion that this case is controlled by the general rule and not by its exceptions and that the error in overruling the objections to the testimony complained of was cured by striking it out and the instruction of the trial court to the jury to disregard it.
Finding no error in the case, it is affirmed. — Affirmed.
MITCHELL, SAGER, HAMILTON, KINTZINGER, MILLER, and ANDERSON, JJ., concur.
RICHARDS, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434342/ | The defendant owned the dwelling house in which he was charged with maintaining a nuisance. The record shows that on October 8, 1932, two members of the Sioux City *Page 87
police force, without any search warrant, entered defendant's building in Sioux City. Before entering the building they made a search of the yards, garage, and chicken coops surrounding the house without finding any sign of liquor therein. After entering the dwelling house they searched the premises and found two half-pint, partly filled, bottles of liquor. One was in the possession of Mrs. Cherpakov and one in the possession of her son, a young man over twenty-one years of age. No one else was in the house. The half-pint bottle in the possession of Mrs. Cherpakov was half full. The half-pint bottle in the possession of the son was three-quarters full. The record shows that after the officers came into the house the son ran to the sink with the bottle in his possession and started to dump it when it was taken from him. The record further shows that the bottles contained alcohol liquor, and was described as moonshine whisky. Mrs. Cherpakov told the officers that she had been sick and was using the liquor for her own personal use. This is the substance of the testimony relied on by the plaintiff to justify the injunction.
The defendant had been a resident of Sioux City for twenty or thirty years during which time he had been conducting a grocery store across the street. The defendant had always borne a good reputation and had never been arrested before.
The record also shows that a criminal charge was filed against the defendant in police court based upon the same facts; that such facts were deemed insufficient to hold him, and the case was dismissed. The same facts were submitted to the grand jury for the purpose of securing an indictment against him. The grand jury also considered the facts insufficient to warrant an indictment and dismissed the case.
The record fails to show a single instance of a sale or offer to sell intoxicating liquor by the defendant to any person. The officers found no jugs, corks, bottling machines, stills, or anything else that might be used for manufacturing liquor. They searched the premises outside and inside for over a half hour without finding anything more than two small half-pint bottles, partly filled. The evidence fails to show that this liquor was in the possession of the defendant or that he even knew that it wasin the house. The defendant was not in the house at the time the liquor was found, and there is no testimony that he had been there any time during that day or at any other time. So far as the record shows the defendant might have *Page 88
been living elsewhere. The only evidence offered was that the defendant owned the house.
The finding of intoxicating liquor in the possession of a defendant's wife is not evidence against the husband. State v. Kuhlman, 206 Iowa 622, 220 N.W. 118.
An attempt to destroy liquor by a defendant's son who is over twenty-one raises no presumption that the defendant was in the unlawful possession of such liquor. State v. Dunham, 206 Iowa 354, 220 N.W. 77.
There is no evidence in this case that the liquor found in the possession of the defendant's wife and son was ever declared forfeited in any manner contemplated by section 1966-al, Code. Neither is there any evidence tending to show that the liquor found on the premises was found under and by virtue of a search warrant or other process, as contemplated by section 1966-al.
There is no testimony whatever in this case tending to show that the defendant was using the building in question for manufacturing, selling, or keeping for sale intoxicating liquors in violation of the law.
We have carefully examined the record and fail to find that the evidence is sufficient to sustain the injunction decree entered. The decree is therefore hereby set aside, defendant's bond released, and the judgment of the lower court is reversed.
ALBERT, C.J., and STEVENS, ANDERSON, KINDIG, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434344/ | Upon the filing of the application by the administrator, appellant, the court made an order fixing the time of the hearing thereon at the Clayton county courthouse, and directing service of written notice thereof, with copy of application, upon Orin Ferris, twenty days before the hearing. The notice *Page 962
was served as ordered in Grant County, Wisconsin, directly across the Mississippi River from Clayton County, Iowa. Ferris, whom we will hereinafter refer to as appellee, filed a special appearance, alleging fifteen grounds why the application should be denied and dismissed and the service upon him quashed. This special appearance was not limited to jurisdictional matters but pleaded to the merits of the case in a number of its paragraphs, contrary to section 11088, Code of 1939. The appellant filed an answer to the special appearance alleging fifteen grounds why it should be dismissed and all relief thereunder denied and the prayer of the application granted. The court made an order overruling the special appearance, and granted the appellee ten days to plead further. The appellee took exceptions to the order but never appealed therefrom. Thereafter he challenged the application by filing the aforesaid demurrer and motion to dismiss, which realleged most of the matters set out in the special appearance. For resistance, the appellant, by reference thereto and incorporation of his answer to the special appearance, adopted and realleged all of the matters set forth therein.
The application of the administrator was filed on November 9, 1942. A few months prior he had filed his final report in the estate, with a supplement stating the assets were ready for distribution as soon as the matter of retainer was disposed of. It appears therefrom that Alex Ferris died intestate in Clayton County, Iowa, sometime in 1935, survived by five sons, four daughters, and three children of a deceased son. He died seized of one hundred sixty acres of farm land and two small separate tracts.
The parties agree that the only questions presented on this appeal are the ruling on the demurrer and motion to dismiss, and the consequent dismissal of the application, and judgment against the administrator. The facts, for the purpose of this appeal, must be limited to those properly pleaded in appellant's application as amended, and these must be accepted as true.
Appellant's "Application For Order," as amended, in substance, states: (1) That decedent's estate is now being administered in the district court of Clayton County, Iowa; that the assets thereof consist only of surplus cash proceeds derived from the sale of the estate's real property, sold by the administrator *Page 963
under order of court to pay the estate's indebtedness; that said estate is now fully administered upon and the assets thereof are now in the administrator's hands ready for distribution among the heirs; that on February 25, 1927, at Guttenberg, Iowa, appellee and his wife executed and delivered to Alex Ferris their promissory note for $563, payable to his order, three years after its date, at the Clayton County Bank, Guttenberg, Iowa, with interest at five per cent per annum until paid (2) that Alex Ferris is the intestate (3) that Orin Ferris is one of the heirs of the intestate (4) that said note is in the hands of the administrator and constitutes a part of the assets of decedent's estate, and there was due thereon on September 2, 1942, the sum of $999.98 (5) that the makers thereof, subsequent to its execution and delivery to Alex Ferris and before the statute of limitations of the state of Iowa had run against said note, moved to the state of Wisconsin and have resided there ever since; that under the laws of Wisconsin the statute of limitations has run against said note, which fact the administrator believes, and so charges the fact to be, to have been well known to the said Ferris and his attorney, and that should suit be commenced by the administrator against Ferris on his note in Wisconsin, the administrator believes and charges that Ferris could and would plead the statute of limitations of Wisconsin as a defense to said action and thus prevent judgment against him and avoid the payment of his just obligation to the estate, enabling him to receive more than his legal share of said estate, to the prejudice of the other heirs (6) that although said note is long past due the said Orin Ferris has refused and neglected and still refuses and neglects to pay the same, or to consent or permit the administrator to deduct the amount of said indebtedness from the distributive share due the said Ferris from the estate of his deceased father (7) that upon the refusal of the said Ferris to pay said indebtedness or to permit the deduction thereof from his distributive share, the administrator, under orders of court first obtained, commenced an action for judgment in said court, aided by attachment proceedings, against said Ferris upon said note, to which action said Ferris filed a special appearance attacking the jurisdiction of the court to hear or try said cause (8) that as far as the administrator has knowledge, the said Ferris has no meritorious *Page 964
or legal defense to said claim based upon said note, executed and delivered by him to his father and now the property of the latter's estate (9) that the administrator believes and charges the facts to be that unless the court authorizes and orders him, in making distribution of the estate, to indulge against the said Ferris the right of retainer, from the said cash assets of the estate derived from the sale of real estate required to be sold under order of the court to pay estate indebtedness, of the amount owing by Ferris to said estate, said amount will be a total loss to said estate and to the heirs thereof. In the application the administrator prayed that the court fix the time and place of the hearing on the application and prescribe the notice thereof to be given Ferris, and that upon said hearing the administrator be authorized and directed by the court, in making distribution of said estate, to exercise the right of retainer as against the said Orin Ferris and the indebtedness owing by him to the estate, by retaining from his share of the estate the amount of his said indebtedness. The prayer was also for such other orders as may be just to the end that the rights of the estate, its heirs, and its administrator may be protected and preserved.
The grounds of appellee's demurrer to the application and motion to dismiss it, in substance and so far as pertinent, are as follows: (1) That Orin Ferris is not a resident of Iowa, but is and has been for several years a resident of Wisconsin (2) that a probate court is a court of special and limited jurisdiction and has no jurisdiction to hear the application; that the application is nothing more than a suit on a promissory note; that the court has no jurisdiction of either the subject matter or the person of Ferris (3) that the court had no jurisdiction to make the order setting the hearing on the application and prescribing the notice thereof served on Ferris in Wisconsin (4) that said notice gave the court no jurisdiction of the subject matter or person of Ferris (5) that there is no such proceeding as contemplated by the application known or recognized by the laws of Iowa, and that any procedure under the application would be without any jurisdiction, and null and void (6) that it is essential that the court have jurisdiction of both the person and the subject matter, and that jurisdiction of the subject matter cannot be waived and may be raised at any stage of the proceedings (7) that in *Page 965
the probate court essential jurisdictional facts must be alleged (8) that the application shows on its face that there is another cause pending in this court between the same parties covering the same subject matter (9) that the application shows on its face that the administrator has adequate remedy at law, and that he can sue on the note in Wisconsin where Ferris has a right to live (10, 11) that the application shows on its face that an attempt was made to hold out from the proceeds of the sale of real estate the amount of the alleged claim, and there is no allegation that Ferris is insolvent, which fact is essential to give jurisdiction over the subject matter and the person of Ferris (12) that the court has no jurisdiction or authority to deprive Ferris of a trial on the merits in a law case before a jury on the said claimed note to which the said Ferris claims and has a defense, as is well known to the said administrator (13) that the said administrator has an adequate and complete remedy at law on said note, which is the only and exclusive remedy which he may employ to prove he has a claim, if any, on said note, against Orin Ferris, who is entitled to due process of law, which includes a day in court, in a law court, before a jury (14) that if the administrator does not want to employ his legal remedies in Iowa, there is no reason he may not employ his legal remedies in the state of Wisconsin in the usual procedure, instead of attempting to circumvent Ferris' legal right of a trial by jury and according to due process of law (15) that the application is not a hearing of a final report, and the court has no jurisdiction on such application (16) that the application shows on its face that the said note is barred by the statute of limitations; that by long delay and laches the administrator is now estopped to claim any rights; that he is not coming into court with clean hands; that the said estate has been pending in this court for years and years without any reason or cause for the delay and laches and inattention (17) that the facts alleged do not entitle the administrator to the relief asked (18) (this long paragraph is merely a catch-all realleging the grounds of all previous paragraphs) (19) that before there could be any jurisdiction in the court to pass upon any claimed right of retainer, the administrator must reduce his claim to judgment by a suit at law on the note. *Page 966
[1] I. This is a proceeding in probate triable at law and appellee's pleading attacking the application will be treated simply as a demurrer and not as a motion to dismiss.
We will first eliminate a number of so-called grounds which have no proper place in a demurrer. Such a pleading is but a declaration that the facts alleged in the pleading attacked, conceding them to be true, are not sufficient in law to put the demurring party to the necessity of answering or proceeding further with the cause. As tersely stated by Justice Cole, in Hayden v. Anderson, 17 Iowa 158, 162: "A demurrer admits the facts pleaded, but controverts their legal sufficiency." In the words of Justice Ladd, in Wapello State Savings Bank v. Colton,143 Iowa 359, 364, 122 N.W. 149, 151: "A demurrer is but a legal exception to the sufficiency of a pleading." It neither asserts nor denies the truth of any matter of fact. A demurrer reaches only matters of fact alleged in the pleading attacked. It cannot sustain itself by its own allegations of fact, not appearing in the challenged pleading. As said in Ritter v. Schultz, 211 Iowa 106, 108, 232 N.W. 830, 831:
"It is apparent that the appellant has misconceived the office of a demurrer. The matters urged at this point do not appear upon the face of the petition. A demurrer can apply only as to matters alleged in and appearing upon the face of the petition; it concedes that the averments of fact well pleaded in the petition are true; nothing else is considered by the court in the determination of a demurrer to the petition, other than the averments of the petition and the demurrer."
Our decisions are as one on this proposition. In re Assessment of Stock in Sioux City Stock Yards Co., 223 Iowa 1066, 1070, 1071, 274 N.W. 17; Jefferies v. Fraternal Bankers' Reserve Society, 135 Iowa 284, 289, 112 N.W. 786, 14 Ann. Cas. 346; Melvin v. Melvin, 198 Iowa 1283, 1285, 201 N.W. 7; McPherson v. Commercial Bldg. Sec. Co., 206 Iowa 562, 565, 218 N.W. 306, 307, where we said: "Allegations of fact are no proper part of a demurrer. We must, therefore, ignore these extraneous matters." See, also, Witousek v. Ideal Food Products Co., 197 Iowa 839, 843, 197 N.W. 912; Lenehan v. Drainage District, 219 Iowa 294, 297, 258 N.W. 91. *Page 967
[2] When a demurrer states as a fact that which does not appear on the face of the pleading questioned, it is what Lord Hardwicke, in Brownsword v. Edwards, 2 Ves. Sr. 243, 245, termed a speaking demurrer, which is the office of a plea and not of a demurrer. We have retained this designation of such defective pleading. In Jefferies v. Fraternal Bankers' Reserve Society, supra, 135 Iowa 284, 289, 112 N.W. 786, 788, 14 Ann. Cas. 346, the court said:
"A demurrer which sets up a ground dehors the record, or a ground which to be sustained requires reference to facts not appearing upon the face of the pleading thus attacked, is said to be a `speaking demurrer,' and is never held good. * * * The demurrer under consideration must, therefore, be treated as if the affirmative matter set up therein were entirely eliminated * * *."
See, also, Ruddick v. Marshall, 23 Iowa 243, 246; Stewart v. Wild, 196 Iowa 678, 685, 195 N.W. 266, 269, where we said of a "speaking demurrer": "We can take no notice of its averment." In Grimes v. Taylor, Iowa, 282 N.W. 346, 347, not reported in the Iowa Reports, the court said:
"The appropriate pleading, in which to raise such affirmative defensive issues, is the defendant's answer. This court has many times affirmed with respect to a `speaking demurrer', that we can take no notice of its allegations."
In his demurrer the appellee offended repeatedly against this universal rule of law. In paragraphs 9 and 14 he alleges that the appellant can sue at law in Wisconsin. What the statute or common law of Wisconsin is on this point is an issue of fact and not an issue of law. It is beyond the allegations of fact in the application, and must be ignored. It may be said as obiter, however, that the general rule is that administrators and executors ordinarily have no extraterritorial authority, unless permitted by statute or comity. 34 C.J.S., Executors and Administrators, section 988. See, also, O'Connor v. Root,130 Iowa 553, 558, 107 N.W. 608. But aside from what we have said, whether the appellant can or should sue in Wisconsin is a *Page 968
frivolous and immaterial allegation if the procedure he is using is proper and lawful.
In paragraph 12 the appellee asserts he has a defense to the note. This is an assertion of a fact which has no place in the demurrer. It is an affirmative defense, and is contrary to the fact allegations in the application that the debt is owing and the appellant knows of no meritorious defense to it, and there was due on September 2, 1942, the sum of $999.98, which constitutes a part of the assets of the estate. By his demurrer the appellee admitted these facts. Our system of pleading does not permit a party to answer on the merits and demur to a pleading at the same time and in the same pleading. Fairmount Creamery Co. v. Darger, 178 Iowa 732, 734, 160 N.W. 239; Bliss v. Watson, 208 Iowa 1199, 1202, 227 N.W. 108; Morrison v. Carroll Clinic, 204 Iowa 54, 56, 214 N.W. 705.
In paragraph 16 appellee alleges that the application shows on its face that the note is barred by the statute of limitations. This is contrary to the allegations of the application, which clearly show that the statute of limitations has not run against the note in Iowa. Our statute, section 11141 (6), provides that the bar of this statute may be alleged as a ground of demurrer, but this can only be done when such fact is apparent in the pleading attacked. Goring v. Fitzgerald, 105 Iowa 507, 510, 75 N.W. 358; Wright v. Iowa Southern Util. Co., 230 Iowa 838, 840,298 N.W. 790; Nylander v. Nylander, 221 Iowa 1358, 1361, 1362, 268 N.W. 7.
In paragraph 16 appellee pleads the defenses of laches, estoppel, long delay, and unclean hands. This paragraph and much of paragraph 18 must be ignored for the reasons stated herein. In In re Estate of Baker, 226 Iowa 1071, 1076, 285 N.W. 641, 643, the words of the court, by Justice Richards, are particularly pertinent, to wit:
"In these paragraphs the pleader averred matters that were purely defensive, involving controversial questions of fact, such as ratification, waiver, laches, former adjudication and estoppel. * * * But we are unable to sense a possibility that these pseudogrounds, of such a nature that we take no notice of their averments nor look upon them as grounds at all, may have justified the ruling." *Page 969
The grounds referred to in this division have no place in the demurrer; they do not aid the appellee, and they should have been overruled.
[3] II. In paragraph number 8 of the demurrer the appellee urges the statutory ground, section 11141 (3), that there is another action pending between the same parties for the same cause. It is based upon the allegation of the application that the appellant, under order of court, brought action in the district court of Clayton county against appellee to recover judgment against him on the note, aided by attachment. Just what the status of that action is does not clearly appear in the record. Neither does the manner of service. In view of the special appearance, it was apparently service outside of Iowa on a nonresident of this state, in which event the court would have no jurisdiction to render personal judgment against him. It is an action for judgment against the appellee on his note. The proceeding under consideration is not for the same cause. It is not an action for judgment on the note or for a judgment against the appellee. The appellant, as the administrator of an estate being administered in the district court of Clayton county, is seeking to make distribution of its assets, and the application under attack simply asks for an order to make that distribution, and for an order and authority to retain so much of the distributive share of the appellee as may be necessary to satisfy the obligation which it holds against him and which is part of the assets of the estate. Such an order and authority is necessary before a complete distribution of the assets and the closing of the estate can be had. The proceeding for distribution is not a separate cause of action between the appellant and the appellee.
In a similar proceeding, under statutes very like those of Iowa, the Kansas court, in Holden v. Spier, 65 Kan. 412, 414, 70 P. 348, said:
"Several grounds of error are alleged here, and the first is that the probate court had no jurisdiction to determine the alleged indebtedness of Holden to the estate, nor to render judgments on such ordinary liabilities against living persons.This cannot be regarded as an action by the administrators torecover money from Holden, nor to obtain a judgment in favor *Page 970 of the estate against him. It was within the power of the probate court to ascertain the extent of the estate and in whose hands the funds or assets of the estate were held; and, also, to make such distribution as the law requires. Holden was claiming a share of the estate, and it devolved on the probate court to determine the amount of this share, and whether any portion of it was already in his hands. Before distribution could be made, it was necessary to ascertain the full amount of the fund to be distributed, and this could not be done until it was determined how much of the fund Holden held." (Italics ours.)
Since the court must distribute the estate, it follows as a necessary incident to its jurisdiction that it can determine who is entitled to its funds, and all matters essential to that determination. The administration of an estate, in many phases, is in the nature of a proceeding in rem. Goodrich v. Ferris,214 U.S. 71, 29 S. Ct. 580, 53 L. Ed. 914; In re Estate of Harsh, post, 207 Iowa 84, 87, 218 N.W. 537.
While what we have said is decisive on this point, we call attention to a statement in 21 Am. Jur. 647, section 475, upon the authority of Eureka Bldg. L. Assn. v. Shultz, 139 Kan. 435, 32 P.2d 477, to wit:
"A proceeding to obtain a decree of distribution is not in the nature of a suit between party and party in which one seeks to recover a right withheld by the other, but is analogous in character to a proceeding in rem in which a decision between the parties before the court settles the rights of all parties to the property in question."
The same statement of the law appears in 34 C.J.S., Executors and Administrators, section 513, with other citations in support of it.
This ground of the demurrer is without merit. See, also, Division III hereof.
[4] III. Without specific reference to each separate ground of the demurrer attacking the jurisdiction of the court, we will discuss them as a whole, taking up first the jurisdiction of the person of the appellee. He was personally served with notice of the hearing upon the application in Grant County, Wisconsin. *Page 971
In response thereto he filed his special appearance. This pleading was not limited to jurisdictional matters but pleaded to the merits of the application in several matters. We will pass any contention that by so pleading the appearance was general. But the special appearance was overruled, and he did not appeal therefrom. It was an appealable order, and he was not required to stand upon the pleading or permit entry of judgment against him. Irwin v. Keokuk Sav. Bk. Tr. Co., 218 Iowa 470, 472, 254 N.W. 806. He made the question of his general appearance moot by appearing generally in filing his demurrer, which raised not only jurisdictional questions, but pleaded to the merits on several matters. Irwin v. Keokuk Sav. Bk. Tr. Co., supra, 218 Iowa 470, 472, 254 N.W. 806. We find no applicable authority in our decisions respecting general appearance by demurrer. But see, Johnson Co. v. Tostevin, 60 Iowa 46, 14 N.W. 95, holding that the demurrer of the defendant was a general appearance. But this was because of section 2626 of the Code of 1873, which was superseded by section 3541, Code of 1897, and section 11088 of the later Codes. But any pleading going to the merits of the case constitutes a general appearance. 6 C.J.S., Appearances, section 12f. And a demurrer not addressed solely to the jurisdiction of the court but also raising other defenses constitutes a general appearance, even though it is insufficient as a demurrer, and is overruled. 6 C.J.S., Appearances, section 12 (2). And, aside from these matters, the facts that he had filed a special appearance expressly stating its purpose of questioning only the jurisdiction, which was denied and no appeal was taken from the ruling and a demurrer was then filed without stating that it was intended as a special appearance, all clearly indicate that it was intended as a general appearance. Furthermore, Code section 11088, and the decisions construing it, require that unless the pleading is for the sole purpose of questioning the jurisdiction, and it is so announced at the time it is made, it will be a general appearance. Molsberry v. Briggs, 176 Iowa 525, 530, 531, 156 N.W. 999; Marsh v. Huffman, 199 Iowa 788, 794, 795, 202 N.W. 581; Read v. Rousch, 189 Iowa 695, 699, 179 N.W. 84, 86. As said in the latter case: *Page 972
"A defendant cannot be heard to attack the jurisdiction of a court in which he is sued, and at the same time invoke such jurisdiction affirmatively in his own behalf."
Also, there was no basis for a special appearance. The proceeding by the application was purely in rem against the distributive share of the appellee to subject it to the satisfaction of his obligation to the estate, which obligation was an asset of the estate, and, with the promissory note which was in effect and fact the debt, was within the jurisdiction of the court. The res and every part thereof were in the jurisdiction of the court. The proceeding was not in personam against the appellee. The appellee was bound to appear in response to the notice or suffer default and judgment as prayed in the application. See Fidelity Casualty Co. v. Bank of Plymouth, 213 Iowa 1058, 237 N.W. 234, which states that where notice is served outside of the state, and the plaintiff in the petition asks only for the subjection of property to his claim and does not further ask for any personal judgment, the court has jurisdiction for that purpose and a special appearance would not lie.
The appellee's constitutional rights of due process are not and will not be infringed under the application. Due process of law is commonly recognized as law and procedure in accord with fundamental principles of justice, the essence of which is notice and an opportunity to be heard before judgment.
The court had jurisdiction of the appellee's person.
[5] IV. The court also had jurisdiction of the subject matter in every detail: the estate; its administration and distribution; the distributive share of the appellee; the assets, including the debt of appellee. It had the title to and possession and jurisdiction of the promissory note.
The district court of Clayton county is the probate court of that county, having complete jurisdiction, coextensive with the state, of the administration, settlement, and distribution of estates properly before it. Section 11825, Code, 1939, and chapters 503-509, inclusive; Anderson v. Meier, 227 Iowa 38, 42, 287 N.W. 250, and cases cited. The complete res in this case was properly before it.
Appellee contends that the probate court is a court of limited and special jurisdiction and has no jurisdiction to hear *Page 973
the application (paragraph 2 of demurrer), and that it had no jurisdiction to make the order on the application and prescribe the notice of the hearing (paragraph 3). If the court below has no such jurisdiction, then what court has? See Code section 11822. Another ground (5) is that the proceeding contemplated by the application is not recognized by the laws of Iowa. Is it unheard-of procedure in Iowa for an administrator to apply for an order authorizing distribution of the assets of the estate, and any orders incident thereto?
"Administration of estates of deceased persons is undertaken by the state through its courts, and pursuant to its statutes. The administrator is the officer of the law and of the court, and conducts the administration pursuant to the provisions of the statutes, and under the court's authority and supervision. In re Estate of Meinert, 204 Iowa 355." In re Estate of Harsh, supra,207 Iowa 84, 87, 218 N.W. 537, 539.
The probate court of Iowa is not a separate and distinct court with powers and jurisdiction strictly its own. It is a part of the district court, which has general, original, and exclusive jurisdiction of all actions, proceedings, and remedies, including complete and exclusive administration of testate and intestate estates. Code sections 10761, 10763.
"While proceedings in probate are to be distinguished from others, the court in which they are had is the same. Tucker v. Stewart, 121 Iowa [714] at 715. Iowa no longer has either a law, equity or a probate court. All three are part of the district court." In re Receivership of Magner, 173 Iowa 299, 317, 155 N.W. 317, 323.
While the probate court is not open to ordinary actions at law or suits in equity, it has plenary jurisdiction to hear and determine matters essential to an effective administration of probate business before it, even though they are ordinarily cognizable in law or equity proceedings. In re Receivership of Magner, supra, 173 Iowa 299, 315-318, 155 N.W. 317; In re Estate of Orwig, 185 Iowa 913, 924, 167 N.W. 654; Turner v. Hartford F. Ins. Co., 185 Iowa 1363, 1368, 1369, 172 N.W. 166. *Page 974
See, also, Duffy v. Duffy, 114 Iowa 581, 583, 87 N.W. 500, 501, wherein the court said:
"This is neither a contest of a will nor a dispute as to a claim against the estate, but an application for an order as to the distribution of the estate, as to which no provision is made for trial by jury. There was no error in transferring the cause nor in refusing a jury trial."
See, also, In re Estate of Clifton, 207 Iowa 71, 80, 218 N.W. 926; Covert v. Sebern, 73 Iowa 564, 569, 35 N.W. 636, in which it was held that it was necessary for the probate court to construe a will in order to order a proper distribution of the legacies and property of the estate. To the same effect, see In re Estate of McAllister, 191 Iowa 906, 911, 183 N.W. 596; Jordan v. Woodin,93 Iowa 453, 459, 61 N.W. 948. See, also, Mock v. Chalstrom,121 Iowa 411, 416, 96 N.W. 909; In re Guardianship of Buck, 140 Iowa 355, 357, 118 N.W. 530. In Prouty v. Matheson, 107 Iowa 259, 263, 77 N.W. 1039, 1041, the court said, respecting the share petitioned for in probate by the distributee, without deductions for indebtedness:
"It is clear that, if she was indebted to the estate, the amount of such indebtedness should have been ascertained, and deducted from the amount to which she was entitled. Although the probate court could not decree a foreclosure of the mortgages, it had the power to determine what amount the executors should pay to Mrs. Matheson, and was necessarily required to take notice of her indebtedness to the estate, for the purpose of protecting it against unjust payments. It was certainly proper for the probate court to determine whether the notes constituted a valid claim of the estate against Mrs. Matheson, and to order that proper steps be taken to enforce the claim. We conclude that the plea of former adjudication is sustained."
See, also, Holden v. Spier, supra, 65 Kan. 412, 70 P. 348.
In speaking of the equitable right of retainer to satisfy a legatee's indebtedness to the estate, this court, in In re Estate of Mikkelsen, 202 Iowa 842, 848, 211 N.W. 254, 256, quoted with approval from In re Estate of Lietman, 149 Mo. 112, 120, *Page 975
50 S.W. 307, 309, 73 Am. St. Rep. 374, as follows, respecting the right of retainer:
"`* * * it rests upon wholesome principles of right and justice, which can be administered in probate courts, without the aid of a court of conscience.'"
The same reference appears in In re Estate of Sheeler, 226 Iowa 650, 661, 284 N.W. 799.
We have no doubt that the court had complete jurisdiction of the subject matter.
[6] V. In paragraphs 10 and 11 the demurrer alleges that the application shows upon its face that an attempt was made to hold out from the proceeds of the sale of real estate the amount of the alleged claim, and the application makes no allegation that Orin Ferris is insolvent, which fact is necessary to give the court jurisdiction of his person and of the subject matter.
The application is challenged on these two grounds only because it does not allege the insolvency of the appellee. In other words it impliedly concedes that if that fact were alleged these two grounds would not be good. The application alleges that the assets of the estate consist only of surplus cash proceeds derived from the sale of the estate's real property sold by the administrator under order of court to pay the obligations of the deceased and of the estate, and that these assets are ready for distribution. The application also alleges that the appellee is indebted to the estate in a specified amount, and that he is an heir of the decedent. It is our conclusion that an allegation of the insolvency of the appellee is not essential to the sufficiency of the application or to entitle the appellant to an order to retain and apply the distributive share of the appellee, or sufficient thereof, to the payment of appellee's debt to the estate.
Various phases and applications of the right which the executor or administrator has, in the nature of a right of retainer, to offset or balance indebtedness owing the estate by a beneficiary thereof, against his share therein, have been passed upon by this court. But this is the first time that this particular application of the right has been submitted. The appellee concedes that if the assets for distribution were cash left by the decedent, or were the cash proceeds of personal property owned *Page 976
by him at his death, or which came into the hands of the administrator thereafter, the administrator could rightfully apply the appellee's distributive share thereof to the satisfaction of his debt to the estate, even though the appellee is solvent. In other words, he concedes that it is the holding of this court and of the courts generally that an administrator may retain from the distributive share of the personal property
coming to an heir sufficient thereof to satisfy the heir's debt to the estate, whether the heir be solvent or insolvent. But he contends that this retainer must not be exercised against the distributive share of such debtor heir in cash proceeds from the sale of real estate owned by the decedent remaining after the payment of obligations of the decedent or of his estate, if the heir is solvent. He thus stakes his case upon the proposition that such cash proceeds are not personal property, but are in fact real estate, or are to be considered as such, and that under the decisions of this court the right of retention has no application to any real estate inherited by an heir who is indebted to the estate, unless the heir be insolvent. This proposition comes to the court for the first time.
In discussing this matter we will speak of the right as one of retainer, although it is more correctly designated "as a right in the nature of a right of retainer."
"It is an equitable right of its own nature, and not at all dependent upon any statute. It is the plain, moral as well as legal duty of the debtor to pay his debt to the estate. He has had the value from the estate. He ought in morals and law to restore it." Webb v. Fuller, 85 Me. 443, 445, 27 A. 346, 22 L.R.A. 177, quoted with approval in In re Estate of Mikkelsen, supra, 202 Iowa 842, 848, 211 N.W. 254, 256, and in In re Estate of Sheeler, supra, 226 Iowa 650, 662, 284 N.W. 799.
"The doctrine of equitable retainer is based upon the principle that he who seeks equity must do equity." Sartor v. Beaty,25 S.C. 293, 296. See, also, Falconer v. Powe, Bail. Eq. (S.C.) 156; Leach v. Armstrong, 236 Mo. App. 382, 156 S.W.2d 959, 962. A lucid statement of the principle, although it was applied to a legacy rather than an inheritance, is found in In re Akerman (England), 3 L.R., Ch. Div. 212, 219, where the court said: *Page 977
"It is this. A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. * * * here I am dealing with a case such as I have mentioned — with a general fund made up of proceeds of sale of real estate, and proceeds of conversion of personal estate, and there seems to me to be a principle of general application, and no reason occurs to me, none has been suggested, why I should not apply that principle. Therefore, I think that if there is a debt payable by a residuary legatee under such circumstances as exist here, that debt must, for the purposes of computation, be included in the residue, and — again for the purposes of computation — treated as part of the share going to the legatee debtor."
Of this comment, which it sets out more completely, the Texas court, in an able and often-cited opinion on the matter, said:
"This clear and able exposition, in our opinion, announces the true doctrine and leaves little to be said." Oxsheer v. Nave, 90 Tex. 568, 575, 40 S.W. 7, 9, 10, 37 L.R.A. 98.
The true conception of the principle is thus expressed by the latter court in the same opinion, 90 Tex. 568, 573, 40 S.W. 7, 9, 37 L.R.A. 98:
"The right, in our opinion, rests, not so much upon any rule of set-off or of retainer as upon the broad principles of equity."
That the principle is not based upon any technical rule or distinction, but upon justice, equity, honesty and fair dealing, is stated in Smith v. Kearney, 2 Barb. Ch. (N.Y.) 533, 549, to wit:
"* * * the right to retain depended upon the principle that the legatee or distributee was not entitled to his legacy, or distributive share, while he retained in his own hands a part of the fund out of which that and other legacies, or distributive *Page 978
shares, ought to be paid, or which were necessary to extinguish other claims on that fund. * * * And it is against conscience that he should receive any thing out of the fund without deducting therefrom the amount of that fund which is already in his hands, as a debtor to the estate."
This is the universal expression and conception of the doctrine of retainer as applied to personal property. The courts and authorities uniformly agree that the right of retainer should and does apply to the personal estate coming to the distributee or legatee who is indebted to the estate. A minority of the courts hold that retainer does not apply to the real estate which descends or is devised to one indebted to the estate. The reason commonly given for making this distinction between the two classes of property is that real estate owned by one vests instantly upon his death in those to whom it descends or is devised, while the personalty is taken possession of by the administrator or executor for administration and distribution under orders of the probate court. Such a reason is a throw-back to the old English common-law rule that the lands of the decedent could be subjected neither to the payment of the debts of the decedent nor those of his heirs. If the reason was ever a sound one it has long ceased to exist in the United States because of the statutes of descent which have been passed by the states. There has never been any force to this reason in Iowa. For, under the statutes of descent of this state, the title to intestate property of a decedent, both real and personal, vests instantly upon his death in those to whom it is given by statute, subject to its need for administration purposes. This is also true of devises and legacies. Neither the administration of the estate nor the distribution of the property thereunder creates any new title. It merely ascertains the property and the particular amounts and persons to whom it or its proceeds should be ultimately distributed. Judge Woerner, in his splendid work on American Law of Administration, 3d Ed., vol. 2, 658, section 201, states that the right of creditors to the assets of a deceased person is the principal reason for requiring official administration. The rights of creditors of the decedent or of his estate in and to the property of the estate are paramount to the rights of the heirs or of their creditors. Reichard v. Chicago, B. Q. *Page 979
R. Co., 231 Iowa 563, 578-581, 1 N.W.2d 721; In re Estate of Cooper, 229 Iowa 921, 925, 295 N.W. 448; and cases cited in each. The administrator of an intestate estate takes possession of and administers its assets as an express trustee of the creditors, heirs, spouse, and others properly interested therein. He may have the rights of the legal title holders for administration purposes, but the equitable title and the beneficial interest in the residuum is in the spouse and heirs as fixed by the statutes of descent and distribution. In re Estate of Willenbrock,228 Iowa 234, 239, 240, 290 N.W. 502, and cases cited; Christe v. Chicago, R.I. P. Ry. Co., 104 Iowa 707, 709-713, 74 N.W. 697; Goodman v. Bauer, 225 Iowa 1086, 1090, 281 N.W. 448. The title which the heirs to the real or personal property take on the death of the ancestor is not an absolute title but is a defeasible one, subject to interception, or divestment, in whole or in part, as the needs and purposes of administration may require. The interest of the heir is in the estate, and the estate is superior to that interest. Both realty and personalty are assets of the estate, subject to the payment of its debts, and the heir takes either or both by the same right and in the same manner. Under the statutes of Iowa the realty is on the same footing as the personalty in this respect. All the property of the estate, including the land, chattels, money, or choses in action, constitutes a common fund or rather a body of assets to be used, first for the payment of the obligations of the decedent and the estate, and second for distribution or division among the distributees. The same persons take the realty and the personalty or the proceeds of either, and in the same portions as fixed by statute. The only difference in the treatment in administration of realty and personalty is that the administrator takes immediate charge of the latter and the realty can be taken and subjected to the payment of debts, obligations, and costs of administration only after the personalty, if any there be, has first been exhausted for these administration purposes. In all other respects the realty and personalty are equally chargeable with the debts. The debt which an heir owes the estate is an asset thereof, and is a part of the common property to be administered on and allotted or paid to the distributees. It is a portion of the patrimony of his ancestor, which he has in hand or has *Page 980
already received, and, unless the debt is paid or the portion restored to the estate for redistribution, it should be deducted or retained from the distributive share, whether of real or personal property, which he otherwise would have received. If the right of retainer is not so exercised in the administration of the estate, the heir in default will receive, if the distribution be of real estate, a share larger than the share of any other heir in his class by the amount of the debt which he owes the estate. No sound reason appears to us, nor has any been suggested, why the right of retainer should not be exercised, without difference or distinction, against the distributive share of an heir indebted to the estate, regardless of the kind or character of the property in that share. What sound principle of law, equity, or justice, or what rule of fair dealing and honesty, is served by exercising the right of retention against the personal property to which an heir indebted to the estate may be entitled, and by denying the right when his distributive share consists of real estate? Why should he be required to be honest with his coheirs in the first instance, and permitted to be dishonest with them in the second instance?
The statutes of descent indicate that the legislature intended it to be the public policy of the state that all heirs, in any class, should share equally in the estate of the intestate. When one dies intestate he indicates such intention. To permit the appellee to avoid the payment of his debt, and to receive his statutory share of the estate undiminished by deduction of the amount of the debt, because that share is real estate or bears the impress of realty, would defeat the public policy of the state and the intention of his father. The share which the appellee inherited from his father's estate is not the aliquot or fractional part thereof as determined by the number of his brothers and sisters, but it is only that part of such fractional share as will remain after it is diminished by the amount of his indebtedness to the estate. It is thus expressed by the Missouri court:
"An heir's interest in an estate consists of his distributive or inherited share of the estate less what he owes the estate; or, in other words, what he owes the estate is to be treated as so much of his interest in the estate already received by him, and *Page 981
therefore in the distribution of the property, whether real or personal, he is entitled only to so much thereof as plus what he has already received will make his share equal to the share of the other heirs or distributees." Duffy v. Duffy, 155 Mo. 144, 147, 55 S.W. 1002, 1003.
See, also, In re Estate of Lietman, supra, 149 Mo. 112, 50 S.W. 307, 73 Am. St. Rep. 374; Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41. This could be effected by the return to him of that part of the assets of the estate which consists of his debt or note, as a payment, in the amount thereof, on his distributive share. In re Estate of Kraeuter, 125 N.J. Eq. 120, 4 A.2d 383. Whether solvent or insolvent, he would then have no just complaint in the means or manner of his payment. As said in Oxsheer v. Nave, supra, 90 Tex. 568, 576, 40 S.W. 7, 10, 11:
"The debt due by an heir to the estate is a part of the estate and like other assets is subject to partition and distribution. The heir owing the debt must either pay it or take his share in the debt or the debt as a part of his share, as the case may be."
The great weight of authority in this country, as evidenced by the decisions of the courts and the conclusions of text writers and annotators, fully supports the conclusions above set forth, with unanswerable reasons, and declares that the right of retainer applies not only to a cash surplus existing after the sale of real estate to pay debts of the estate or decedent, or for other administration purposes, but that it also applies to the real estate itself, willed to a devisee or descending to an heir. The decisions following were rendered in proceedings of various kinds — in probate, partition, quieting title, removing cloud upon title, and other actions — and involved real estate devised, real estate descended, and the proceeds of real estate converted, or sold to pay debts, or to effect distribution. In a few of the cases what the heir received was treated as an advancement, but the thought is also expressed that with respect to the right of retainer there is no basic difference between an advancement and a loan or other debt to the estate. As said by Justice Deemer in Wick v. Hickey, Iowa, 103 N.W. 469, 470:
"Whether debts or advancements, they should be deducted *Page 982
from the amount William P., Sr., was entitled to receive from the estate of his father. If debts, by reason of what is called the right of detention or set-off; and, if advancements, they should be brought into hotchpot as provided by statute."
See, also, hereinafter cited, Stenson v. Halvorson Co., 28 N.D. 151, 147 N.W. 800, L.R.A. 1915A, 1179, Ann. Cas. 1916D, 1289; and Keever v. Hunter, 62 Ohio St. 616, 57 N.E. 454. In many of them there is no mention of solvency or insolvency. In some of them insolvency of the heir or devisee is mentioned, but in few, if any of them, is it definitely given as a factor or a basic reason for the decision. See Lester v. Toole, 20 Ga. App. 381, 93 S.E. 55; Whatley v. Musselwhite, 189 Ga. 91, 5 S.E.2d 227, 233, 234; Cox v. Brady, 58 Ga. App. 498, 199 S.E. 242; Nelson v. Murfee,69 Ala. 598; Streety Co. v. McCurdy, 104 Ala. 493, 16 So. 686; Burke v. Cunningham, 217 Ala. 188, 115 So. 182; Kling v. Goodman,236 Ala. 297, 181 So. 745; Oxsheer v. Nave, supra, 90 Tex. 568,40 S.W. 7, 37 L.R.A. 98; Young v. Hollingsworth, Tex. Civ. App., 16 S.W.2d 844; Patranella v. Smith, Tex. Civ. App., 102 S.W.2d 297; Loverett v. Veatch, 268 Ky. 797, 105 S.W.2d 1052, 110 A.L.R. 1378; id. 265 Ky. 532, 97 S.W.2d 47; Brown's Adm'r. v. Mattingly, 91 Ky. 275, 15 S.W. 353, 12 Ky. L. Rep. 869; Stenson v. Halvorson Co., supra, 28 N.D. 151, 147 N.W. 800, L.R.A. 1915A, 1179, Ann. Cas. 1916D, 1289; Aberle v. Merkel, 70 N.D. 89,291 N.W. 913; In re Hornstra's Estate, 55 S.D. 513, 226 N.W. 740, 744; Dickinson's Estate, Cheyney's Appeal, 148 Pa. 142, 23 A. 1053; In re Donaldson's Estate, 158 Pa. 292, 27 A. 959, 23 Pittsb. Leg. J. 260; In re Callery's Estate, 333 Pa. 258,3 A.2d 407; Boyer v. Robinson, 26 Wash. 117, 66 P. 119; In re Estate of Jackson, 200 Wash. 116, 93 P.2d 349, 123 A.L.R. 1281; Fiscus v. Moore, 121 Ind. 547, 23 N.E. 362, 7 L.R.A. 235; Fiscus v. Fiscus,127 Ind. 283, 26 N.E. 831; Barnett v. Thomas, 36 Ind. App. 441, 75 N.E. 868, 114 Am. St. Rep. 385; New v. New, 127 Ind. 576, 27 N.E. 154; Wilson v. Channell, 102 Kan. 793, 175 P. 95, 1 A.L.R. 987; Blackwood v. Blackwood, 120 Kan. 72, 242 P. 451; Peoples State Bank v. Staley, 120 Kan. 650, 244 P. 1061; Duffy v. Duffy, supra, 155 Mo. 144, 55 S.W. 1002; Ayres v. King, 168 Mo. 249, 67 S.W. 1100; Hopkins v. Thompson, 73 Mo. App. 401; Traders Bank v. Dennis, Mo. App., *Page 983
221 S.W. 796; Haley v. Partain, 31 Ga. App. 144, 120 S.E. 14; Goodnough v. Webber, 75 Kan. 209, 88 P. 879; Leach v. Armstrong, supra, 236 Mo. App. 382, 149 S.W.2d 865, 156 S.W.2d 959; Johnson v. Jones, 54 Ga. App. 456, 188 S.E. 279; Warren v. Warren, 143 Misc. 43, 255 N.Y. Supp. 206; In re Van Nostrand's Will, 177 Misc. 1, 29 N.Y.S.2d 857; Trabue v. Henderson, 180 Mo. 616, 79 S.W. 451; Keever v. Hunter, 62 Ohio St. 616, 57 N.E. 454; Lockwood v. Whitlesey, 23 Ohio Cir. Ct. Rep., N.S., 241; Fowler v. Lund, 9 Ohio L. Abs. 688; Eastman v. Sohl, 66 Ohio App. 383,34 N.E.2d 291; Carroll v. Fidelity Dep. Co., Tex. Civ. App., 107 S.W.2d 771; In re Bowers' Est., 196 Wash. 79, 81 P.2d 813; Tobias v. Richardson, 26 Ohio Cir. Ct. Rep. 81, affirmed 72 Ohio St. 626, 76 N.E. 1133; Mulliken v. Mulliken, 1 Bland (Md.) 538; Mullen v. Moore, 156 Md. 420, 144 A. 342; Devries v. Hiss,72 Md. 560, 20 A. 131 (equitable estate in real estate); Frank v. Wareheim, 177 Md. 43, 7 A.2d 186; id. 179 Md. 59, 16 A.2d 851; Gosnell v. Flack, 76 Md. 423, 428, 25 A. 411, 412, 18 L.R.A. 158; Stieff v. Collins, 65 Md. 69, 5 A. 294; Studer v. Harlan, 233 Mo. App. 811, 109 S.W.2d 687, 689, 690; Boise Payette Lumber Co. v. National Surety Corp., 167 Or. 553, 118 P.2d 1066; Stanley v. United States Nat. Bk., 110 Or. 648, 224 P. 835, 838; Slusher v. Coates, 120 Or. 338, 250 P. 617; Ex parte Wilson, 84 S.C. 444,66 S.E. 675; In re Dayton's Estate, 173 Okla. 180, 46 P.2d 933; McNamara v. Ayres, 191 S.C. 228, 196 S.E. 545; Ruiz v. Campbell,6 Tex. Civ. App. 714, 26 S.W. 295; Small v. Usher, 77 S.C. 112,57 S.E. 623.
In 3 Woerner, 3d Ed., The American Law of Administration, pages 1919, footnote, and 1924, section 564, it is said the trend of the authorities is to allow such set-off or deduction against either real or personal property.
In 11 R.C.L. 247, section 279, after referring to the fact that some courts except real estate and the proceeds of the sale thereof from the right of retainer, it is stated:
"In the majority of jurisdictions, however, this exception in regard to real estate as to the general rule that an executor or administrator may retain a debt due from an heir or legatee is not recognized, and hence it is that a debt due to the estate from an heir may be deducted from his distributive share of *Page 984
the proceeds of real estate which has been sold in process of administration. The view taken by the courts that refuse to recognize the exception seems to be that the heir takes his share in the realty of the intestate subject to all equities existing in favor of the estate. And this has been held to be the rule applicable under statutes by virtue of which the real property of an intestate is made chargeable with the payment of the debts equally with the personalty, except that the personalty must first be exhausted."
Perhaps the leading case among those holding that the right of retainer is not applicable to devised or inherited real estate is Marvin v. Bowlby, 142 Mich. 245, 105 N.W. 751, 4 L.R.A., N.S., 189, 113 Am. St. Rep. 574, 7 Ann. Cas. 559. The annotator of the opinion, in the headnote to his annotation in 7 Ann. Cas. 559, 563, in criticising the opinion and the few decisions holding the same way, states that these courts are influenced by the common-law rule that the title to real property vested absolutely in the heirs upon the death of the ancestor and could not be made an asset for the payment of debts.
The authorities cited in Marvin v. Bowlby, supra, in support of its decision are Dearborn v. Preston, 7 Allen (Mass.) 192; Mann v. Mann, 12 Heisk. (Tenn.) 245; Towles v. Towles, 1 Head (Tenn.) 601; Sartor v. Beaty, supra, 25 S.C. 293; Smith v. Kearney, supra, 2 Barb. Ch. (N.Y.) 533; LaFoy v. LaFoy, 43 N.J. Eq. 206, 10 A. 266, 3 Am. St. Rep. 302. There are some later Michigan, Massachusetts, and New Jersey cases supporting that rule, and also In re Estate of Polito, 51 Cal. App. 752, 197 P. 976; Bruce v. Farrar, 156 Va. 542, 158 S.E. 856, 75 A.L.R. 872; In re Von Ruden, D.C., Minn., 22 F.2d 860; Avery Power Machinery Co. v. McAdams, 177 Ark. 518, 7 S.W.2d 770, 771; Blocker v. Scherer,206 Ark. 28, 174 S.W.2d 371; Wheeler Motter Merc. Co. v. Knox,136 Ark. 95, 206 S.W. 46; McClellan v. Solomon, 23 Fla. 437, 2 So. 825, 11 Am. St. Rep. 381.
The Nebraska court, in Stanton v. Stanton, 133 Neb. 563, 276 N.W. 180, basing its decision that the right of retainer rested upon broad principles of equity, held that right was properly applied to an heir's distributive share in realty. But the decision was reversed in 134 Neb. 660, 279 N.W. 336, by a five-to-three decision. In all of these cases the decisions are based *Page 985
strictly on the fact that real estate of the decedent passes directly to the heirs. In none of the cases is the element of insolvency considered as a basic factor in the decision.
The Kentucky court had wabbled somewhat in its determination of whether real estate could be subjected to the right of retainer, which fact is commented upon in Loverett v. Veatch, supra,268 Ky. 797, 105 S.W.2d 1052, 110 A.L.R. 1378. But in that case the court definitely reaffirmed its stand taken in Brown's Adm'r. v. Mattingly, supra, 91 Ky. 275, 15 S.W. 353, 12 Ky. L. Rep. 869, that the distributee's interest in the real estate should be extinguished by the amount he had already received from his intestate. In the Loverett case the court said, in the concluding paragraph of its opinion: "We could no doubt strengthen and fortify the conclusions reached in this opinion by a continued discussion of the question and incorporating a more extensive reference to texts and opinions upholding the right of set-off or retainer as against both inherited personal property and real estate. However, we have said enough to direct the attention of the reader to sources which demonstrate that no such distinction should be drawn, and which conclusion is supported by irrefutable logic, and wherein the alleged distinction is dissipated as being shadowy and unsupported by either reason or justice. We, therefore, conclude that our domestic opinions above referred to, and all others of the same tenor, wherein we denied the superior right of the beneficiaries of the estate to deduct the amount of an heir's indebtedness from his portion of inherited real estate as well as personalty, are unsound and should no longer be followed, and they are now expressly overruled. Likewise, as an inevitable consequence, we conclude that the doctrine of retainer or set-off should apply equally to both inherited personal property and inherited real estate." The whole court was sitting.
Annotations on the matter of retainer may be found in 1 A.L.R. 991; 30 A.L.R. 775; 110 A.L.R. 1384; 7 Ann. Cas. 563; 4 L.R.A., N.S., 189 et seq.
[7] We have discussed the majority and minority rules respecting the right of retainer against real estate at this length because this court agrees with neither group. Of this fact the appellee states: *Page 986
"We wish to call the court's attention to the fact that the exception in Iowa making the rule is peculiar to Iowa; that such a rule is not adopted in other states; the rules in other states are either one way or the other — some states allowing a retainer against real estate or the proceeds thereof, and some states not allowing retainer against real estate or the proceeds thereof. Iowa, as stated, has a rule of its own, only allowing aretainer against real estate or the proceeds thereof when theheir is insolvent, and the reason for that rule is that the realestate descends to the heirs directly, subject only to thepayment of debts of the estate." (Italics ours.)
We agree with the appellee that this court has announced and maintained a rule that is all its own. As remarked in a dissenting opinion in Stanton v. Stanton, supra, 134 Neb. 660, 673, 279 N.W. 336, 342, its adoption may have been "an avoidance of fallacious holdings." The latter reference, no doubt, being to Rider v. Clark, 54 Iowa 292, 6 N.W. 271, and Russell v. Smith,115 Iowa 261, 88 N.W. 361. However, the portion of appellee's statement which we have italicized indicates the unsoundness of this so-called "Iowa rule." If, as stated, the Iowa rule is based upon the contention that the decedent's real estate descends directly to his heirs, it is in exact accord with the minority rule stated in Marvin v. Bowlby, supra. If that rule is sound, it is sufficient unto itself. If it is simply a matter of title, it is wholly immaterial whether the heir is solvent or insolvent. Neither fact has anything to do with the devolution of title. The title descends directly to the heir whether he is solvent or insolvent. The result is that under our holdings the controlling factor is not title, but the solvency of the heir. If he has title and is solvent, retainer does not lie, but if he has title and is insolvent, retainer does lie. With respect to real estate we have cast aside and ignored all of the historic and fundamental reasons for the existence of the right of retainer — the broad equitable principles, equality among the distributees in intestate distribution of both real and personal property, the plain moral and legal duty of the heir to pay his debt to the estate, the equitable principle that an heir should not be permitted to share in an estate until he has discharged his obligation to contribute to it, that one seeking equity must do equity — *Page 987
and have substituted in their stead a foreign excrescence which has no relation to any of them. The only possible basis for our holding is that if the heir is solvent the administrator may sue him in a separate action and recover. But that is also true when the distributive share is personal property, and yet, under our decisions the right of retainer may be exercised against the share in that case without regard to the solvency or insolvency of the debtor heir. There is no need for a separate action in that case. This illustrates the inconsistent and anomalous position into which our decisions have placed the court. It is true that the fact of the heir's insolvency may be a supporting reason for exercising the right of retainer in that particular instance, just as the fact of nonresidence or the bar of the statute of limitations is mentioned in a number of the cases as supporting a reason for indulging retainer. In Cowen v. Adams, 6 Cir., Ky., 78 F. 536, 545, the court said:
"Counsel for the administrator claim that, if William Means owed this debt, as one which survived the testator's death, it was and is a proper set-off against his legacy. And we think this claim is well founded; and the proposition has, in this case, thesupport of an additional equity arising from the insolvency ofthe legatee."
But these incidental matters, while they are supporting and additional equities for exercising the right of retainer in particular instances, should not be made the basic reason or the sine qua non of its exercise, in all cases involving real estate.
There is a practical side to the matter. Why should an administrator be put to the expense of suing in another court, and perhaps in a foreign court, as in this case, by an ancillary administrator, when the probate court of the domicile has full jurisdiction to determine all phases of the matter, thus avoiding all circuity and multiplicity of action? Determining from surface appearances whether one is insolvent is not always easy, particularly if he is a nonresident. Why should an estate which already has property of the heir in its possession be required to take chances on his solvency and pay him his distributive share and then await his payment of the debt? In the end the *Page 988
estate will probably have a worthless judgment, as a solvent and honest heir would first pay his debt or readily assent to an offset.
Of the futility of paying one a sum of money which he is obligated to return to you, the court, in Slusher v. Coates, supra, 120 Or. 338, 351, 250 P. 617, 621, said:
"To hold it against W.A. Slusher, charging him interest on the same, foreclosing and selling his estate, and then paying back to him a sum of money accruing from the same estate would be like taking money from one pocket and putting it into another of the same person, with the added effect, in this instance, that this perfunctory performance could be carried on in the very presence of one having a superior claim against the legatee in the very fund thus being manipulated."
In Rider v. Clark, supra, 54 Iowa 292, 6 N.W. 271, and Russell v. Smith, supra, 115 Iowa 261, 88 N.W. 361, we denied retainer against real estate. In the latter opinion appears the dictum that equity may interfere to protect the estate on account of the insolvency of the debtor or for some other cause. In Senneff v. Brackey, 165 Iowa 525, 541, 146 N.W. 24, 30, 1 A.L.R. 978, all of the fundamental reasons for the exercise of the right of retainer were present. The devisee had possessed himself of a large sum of his father's money before the latter's death, which he refused to restore to the estate and judgment was obtained against him. His father devised him a life estate in a quarter section of land and an equal share in the residuum of real and personal property. It was a case where all of the equities cried out for the exercise of retainer, but the decisions in Rider v. Clark and Russell v. Smith, supra, stood in the way. The court then resorted to the dictum in the later case and granted retainer, with the proviso that the "opinion is not to be taken as a precedent for more than is actually decided." The court also said in Senneff v. Brackey,165 Iowa 525, 536, 146 N.W. 24, 28, 1 A.L.R. 978, in speaking of the injustice of not permitting retainer:
"Such a result should not be reached if there be any way in law or equity for avoiding it." *Page 989
In Woods v. Knotts, 196 Iowa 544, 550, 194 N.W. 953, 956, 30 A.L.R. 768, the court reviewed our earlier cases on the question and the opposing views expressed in other jurisdictions. It stated and cited authority that it was quite generally held that the administrator may charge an heir's indebtedness to the estate against his share in the surplus proceeds of the sale of the real estate of an intestate and that many courts apply the same general rule of retainer to real estate as to personal property. Speaking for the court, Justice Stevens said:
"We have already called attention to the decisions of this court in which the right to offset claims in favor of the estate against the share of a distributee in real property is denied. As pointed out in the Brackey case, the courts are divided upon this question; but it must be confessed that the reasons assigned bythose denying such right are not very persuasive." (Italics ours.)
The decision turned upon the fact that the money was given as advancements.
In In re Estate of Sheeler, supra, 226 Iowa 650, 662, 663, 284 N.W. 799, there was an equitable conversion of realty into personalty under the terms of the will, and we held in that case that the insolvency or solvency of a devisee was not material. In that opinion there was obiter of its writer that there was no sound reason or law for making the fact of solvency an element in determining the right of retainer. In Schultz v. Locke, 204 Iowa 1127, 216 N.W. 617, a case involving retainer against a devise, we definitely held that insolvency of devisee justified the retainer. We have reannounced this holding in Bell v. Bell,216 Iowa 837, 249 N.W. 137; Johnson v. Smith, 210 Iowa 591, 231 N.W. 470; Yungclas v. Yungclas, 213 Iowa 413, 239 N.W. 22; Lusby v. Wing, 207 Iowa 1287, 224 N.W. 554; Kramer v. Hofmann, 218 Iowa 1269, 257 N.W. 361; In re Estate of Flannery, 221 Iowa 265, 276, 264 N.W. 68; Bauer v. Bauer, 221 Iowa 782, 266 N.W. 531; Petty v. Hewlett, 225 Iowa 797, 281 N.W. 731; In re Estate of Morgan,226 Iowa 68, 283 N.W. 267; Wilson v. Wilson, 226 Iowa 199, 283 N.W. 893, in which case retainer was denied because of the solvency of the heirs. There are others of our cases so holding. Insofar as any of those *Page 990
cases, or others, allowed retainer against real estate, their results are right; but insofar as they hold that it was essential to establish that the heir or devisee was insolvent in order to permit the exercise of the right of retainer against real estate, those decisions are erroneous and are overruled. This subject has been quite fully discussed by the bar of the state during the past few years because of an excellent paper entitled, "Right of Retainer Against Real Estate to Offset Indebtedness Due From Heir and Procedure to Enforce Such Right," presented to various law institutes over the state by Judge Paul H. McCoid of Mount Pleasant. An instructive article on the subject, by Richard H. Plock, of Burlington, appears in Vol. V, 8-15, Iowa Bar Association Section of 24 Iowa L. Rev. These articles criticise the court for not adopting the broad equitable theory of retainer as to real estate, instead of allowing it only in cases of the insolvency of the heir or devisee. In the article in the Law Review, supra, the writer states:
"* * * the court may some day have to face the difficult case in which an administrator attempts to exercise the right against real estate passing to a solvent heir from an estate which contains no personal property, in an attempt to `off-set' a debt upon which the period of limitations has expired. Under the authority of cases cited in this article, the heir could validly plead the bar of the statute of limitations as a defense to an action at law for judgment against him on the debt. He could maintain also that the administrator should not be permitted to exercise the right of retainer, the estate containing nothing but realty, and he being solvent. [If there should be another heir who was insolvent, whose debt was outlawed] the court would then be faced with the inequitable situation of permitting the exercise of the right [of retainer] on an outlawed debt against property passing to an insolvent heir, and denying its exercise in the case of a solvent heir."
In such a situation, under our decisions, the insolvent debtor would pay his debt to the estate by having his distributive share diminished by the amount of his debt, while the solvent heir would receive his distributive share without any deduction therefrom, and would have a good defense to an action on his *Page 991
note. The illustration graphically demonstrates the unsoundness of the rule which makes the insolvency of the heir or devisee an essential factor in determining the right of retainer against any real estate inherited by him or devised to him.
The appellant urges that, while the money in his hands came from the sale of real estate, it is, necessarily, no longer real property but is now personal property. Appellee contends, under a well-recognized principle of equity, that this surplus must be treated as real estate. It must be conceded that, unless there are compelling reasons to the contrary, such surplus funds retain the impress of realty and for all purposes of succession or distribution are to be considered as real estate. In support of the appellant's position there is the case of Fiscus v. Moore, supra, 121 Ind. 547, 23 N.E. 362, 7 L.R.A. 235. And, in Nelson v. Murfee, supra, 69 Ala. 598, 604, the court held that, regardless of the fact the source of the money was real estate, it was nevertheless merely money and as such applicable to any debt of the heir to the estate. However, the Alabama court, in the later case of Streety Co. v. McCurdy, supra, 104 Ala. 493, 500, 16 So. 686, 687, in criticising the reasoning of the court in Nelson v. Murfee, on this particular point, said:
"It is clear to us that this conclusion must be rested upon a broader ground than that stated in the opinion. As the proposition is there stated, the right of the administrator to the surplus proceeds of land of the intestate sold for the payment of debts is rested upon the mere fact of his possession thereof, which results from his having, and having exercised, the right to sell the lands and to devote such part as is necessary to the payment of the decedent's debts. * * * To the retention of such surplus * * * there must be some right to it other than can be evolved out of, or rested upon, the mere fortuitous circumstance of possession. And hence we say that Nelson v. Murfee can be sustained only upon the theory, and must be taken to have determined, that the administrator has a right to subject lands of his intestate to the payment of a debt due by the heir to the estate in priority and preference to the claims of a purchaser from the heir and also, of course, to the lien of a creditor of the heir attaching to the land on the death of the ancestor. *Page 992
* * * and, as we have seen, the point decided in Nelson v. Murfee must be rested on this consideration."
We might not hesitate to follow the contention of the appellant and the decisions in the Indiana and earlier Alabama cases if there were no other alternative, but, since preponderating precedent and sound principles of law, equity, and justice clearly sustain our conclusion that the right of retainer is applicable to both real estate and personal estate, without regard to the solvency or insolvency of the heir, we prefer not to place our decision on the narrower and questioned ground.
Grounds 10 and 11 of the demurrer should have been overruled.
[8] VI. The nineteenth ground of the demurrer states that before there can be any jurisdiction in the court to pass upon the right of retainer the administrator must reduce his claim to judgment by a suit at law on the note. For reasons already stated, there is no merit in this ground. Under the admissions by reason of the demurrer, there is nothing before us to indicate that appellee has any defense to the note. Its execution and delivery to the decedent, and its possession by the appellant, and the amount due thereon are all admitted by the demurrer. These make a prima facie case for appellant. In re Estate of Cheney, 223 Iowa 1076, 1080, 274 N.W. 5. The probate court has full jurisdiction and power to determine all facts essential to the relief prayed for and to determine the amount each distributee is entitled to. The right of retainer is an equitable remedy. The question raised has been passed upon by a number of courts. In Stenson v. Halvorson Co., supra, 28 N.D. 151, 162, 147 N.W. 800, 803, L.R.A. 1915A, 1179, Ann. Cas. 1916D, 1289, the court said:
"But one other question need be considered, which is the power and authority of the county court to direct such equitable set-off. Its exercise of such power and authority involves its jurisdiction to determine judicially the fact and the extent of Martin's indebtedness to the estate. We think there can be no question as to such jurisdiction. It clearly has undoubted authority to determine who the proper distributees of the estate are and the portion to which each is entitled." *Page 993
See, also, Holden v. Spier, supra, 65 Kan. 412, 70 P. 348; Head v. Spier, 66 Kan. 386, 71 P. 833; Dickinson's Estate, Cheyney's Appeal, supra, 148 Pa. 142, 23 A. 1053; In re Estate of Dayton, supra, 173 Okla. 180, 46 P.2d 933; Thompson v. McCune, supra, 333 Mo. 758, 63 S.W.2d 41; In re Estate of Lietman, supra, 149 Mo. 112, 50 S.W. 307, 310, 73 Am. St. Rep. 374; In re Sheley's Estate, 35 N.M. 358, 298 P. 942, 947, 948; Slusher v. Coates, supra, 120 Or. 338, 250 P. 617, 621.
It is specifically held in Esmond v. Esmond, 154 Ill. App. 357, and in Greenwood v. Greenwood, 178 Ga. 605, 173 S.E. 858, 862, that it is not necessary that the heir's debt to the estate be first reduced to judgment. In Ex parte Wilson, supra,84 S.C. 444, 447, 68 S.E. 675, 676, the court said:
"The contention that the establishment of the claim against appellant was a denial of the right of a trial before a jury cannot be sustained. This was not `an issue of fact in an action for the recovery of money only, or specific real or personal property' requiring trial by jury, but was a strictly equitable issue, involving the ascertainment of the extent of the right of an estate under settlement to retain from appellant's interest therein the amount due by her to the estate."
See, also, 21 Standard Encyclopedia of Procedure 660, on right of trial by jury in probate courts.
This ground should have been overruled.
We have carefully considered all grounds of the demurrer and all arguments presented and it is our judgment that the trial court was in error in sustaining the demurrer. The judgment is therefore reversed and the cause is remanded for proceedings not inconsistent herewith. — Reversed and remanded.
All JUSTICES concur. *Page 994 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434345/ | The Iowa Employment Security Law proclaims its purpose of "encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment." Section 96.2, Code, 1946.
This "encouragement" is accomplished by establishing a special fund to be administered by the commission (Code section 96.9) and by requiring contributions thereto by the employer "on all taxable wages." Code section 96.7. Benefits to employees are payable from this fund during periods of unemployment. The rules governing such payments and eligibility therefor are worked out in detail but need not be discussed here. See Code section 96.3
et seq.
The question in the instant case is whether plaintiff, as to certain of its employees, is within the terms of the act requiring contribution to this special fund. It operates a poultry hatchery in the city of Fort Dodge. Its twelve or fourteen employees include salesmen, cullers, testers, office clerks, office manager, chick sexer, incubator watcher, incubator operator, and a handy man.
Plaintiff claims all those employees (all admittedly necessary to the conduct and operation of its business, though not all "actually engaged in the manual process of incubating chicks") are within the statutory exclusion of "agricultural labor" from the operation of the act, which defines "agricultural labor" to include "all services performed * * * in connection with the hatching of poultry." Code section 96.19, subsection 7, paragraphg (4).
The defendant, Iowa Employment Security Commission, on the other hand held, and argues here, that "the agricultural exemption refers to services and does not purport to exempt all
employees in appellee's [plaintiff's] commercial enterprise"; *Page 1049
that is, whether there is coverage depends on the nature of the services rendered by the employee and is not governed alone by the fact that the business of the employer is "the hatching of poultry" and that the services are necessary to that business.
The trial court reversed the decision of defendant, Commission, which brings the question to us by appeal.
I. The formal setup of the statute is as follows: Chapter 96 is titled "Employment Security." Section 96.19 is devoted to "definitions" and subsection 7 thereof deals with the term "employment." This subsection has seven divisions lettered froma to g, inclusive. Subsection 7, paragraph g enumerates the services the term "employment" does not include and contains numbered paragraphs (1) to (8) inclusive. Paragraph (4) thereof, so far as deemed material here, is as follows:
"(4) Agricultural labor. The term `agricultural labor', as used in this chapter includes all services performed:
"On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wild life.
"In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm, its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
"In connection with the production or harvesting of maple sirup or maple sugar or any commodity defined as an agricultural commodity in section 15 (g) of the federal agricultural marketing act, as amended, or in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for supplying and storing water for farming purposes." *Page 1050
We have italicized the references to poultry in the foregoing three unnumbered subparagraphs of paragraph (4). There are three more unnumbered subparagraphs not deemed material here. The purpose of setting out the full text of the first three is to present the language "all services performed * * * in connectionwith the hatching of poultry" in its correct context. It will be observed each subparagraph is separate and relates back to the words "The term `agricultural labor' * * * includes all services performed."
It should be said at this point that the statutory language quoted above is identical with the corresponding part of the Federal Social Security Act as amended August 10, 1939. See 26 U.S.C.A. section 1426 (h), (1), (2), (3). Prior to that amendment the term "agricultural labor" was not defined in that Act. See Historical note, 26 U.S.C.A. 87, section 1426; Birmingham v. Rucker's Imperial Breeding Farm, 8 Cir., Iowa, 152 F.2d 837, 839. Prior to that time also our own statute contained no such definition. Code, 1939, section 1551.25G; chapter 77, section 1, paragraphs (a), (b) and (c), Acts of the Fiftieth General Assembly. The definition was added to our statute in 1943.
[1] Considering the sequence in time and the identity of language we must conclude the amendment to our own statute was for the definite purpose of conforming it to the Congressional intent expressed in the Amendment of August 10, 1939, to the Social Security Act. It is of course the intent of our own legislature that controls. But in seeking that intent we have no guidepost except the inevitable assumption that the legislature intended just what Congress intended by the language employed.
Had the language been borrowed from the statutes of a sister state we would go for light to the construing decisions, if any, of that state. Such decisions would not be conclusive on us, especially if not rendered before our legislature adopted the language in question. But even subsequent decisions in the jurisdiction where the legislation originated would be entitled to unusual respect and deference. 50 Am. Jur., Statutes, section 323; 59 C.J., Statutes, sections 627, 628. This is especially true of the statute involved here which was devised by Congress *Page 1051
as a model of uniform social legislation to be adopted by the state legislatures.
[2] II. The identical language of the federal statute has been construed by the Circuit Court of Appeals of the Eighth Circuit contrary to the contention of appellant, Commission, here. In Birmingham v. Rucker's Imperial Breeding Farm, 152 F.2d 837, 840, it was held that services essential to the operation of a hatchery, although not performed in incubation of eggs, constituted "services performed in connection with the hatching of poultry" within the statutory definition of "agricultural labor" in the federal act. That decision affirmed the decision of the United States District Court of the Southern District of Iowa.
The opinion, after referring to departmental rulings to the contrary, says on pages 839 and 840:
"Concededly, Congress was concerned with relieving agriculture of the social security tax burden by including in the term `agricultural labor' certain services which had been held not to be exempt, but which were considered to be in reality an integral part of farming activities." (Citing records of Congressional proceedings.) "It seems clear that Congress, in defining `agricultural labor,' used the broad language * * * advisedly and in the realization that the burden of taxes imposed upon hatcheries which procured their eggs from farmers and sold their chicks to farmers would have to be borne by agriculture. If Congress had intended that agriculture should be relieved of this tax burden only to the extent of the taxes upon wages paid to those rendering services in the incubation of eggs, it would, we think, have selected appropriate language to express that intent."
III. This is persuasive reasoning. Adding to it is at the risk of overemphasis. However, we find internal evidence in the language of the statute itself pointing to the same construction. In the first unnumbered subparagraph of paragraph (4) heretofore quoted it is definitely provided that services performed by an employee on a farm in connection with raising or harvesting any agricultural commodity, "including the raising * * * feeding, caring for * * * and management of * * * *Page 1052
poultry" is included in the term "agricultural labor." This language expressly covers poultry raising as a farming operation.
The subsequent language in the third unnumbered subparagraph,"in connection with the hatching of poultry," is entirely unnecessary therefore unless intended to include in the definition services performed, not on a farm and in connection with farming operations, but elsewhere in the conduct of a new kind of business that is not farming, but intimately related to agriculture. Whoever devised this language — whether Congress or legislature — must have intended to add something to what had been already enumerated. We should not treat the language as superfluous or as surplusage.
The purpose of the exemption or exclusion of "agricultural labor" from the Employment Security Law was surely not to exclude a certain class of employees from the benefits of social security legislation. Presumably an unemployed farm laborer suffers just as much as any other unemployed workman and his unemployment is just as serious a threat to our economy as is any other involuntary idleness. He is not excluded from the benefits because of any lack of merit in himself but because of the unwillingness of Congress and the legislature to burden theindustry in which he is engaged. That seems a necessary conclusion. And if it be assumed, as we think it must, that the purpose here was to broaden the definition of agriculture to include commercial hatcheries, there seems no reason or logic in construing the language to exempt the wages of certain hatchery employees, while taxing the wages of others.
There is other internal evidence pointing to the conclusion that the term "agricultural labor" was not intended to be limited to labor that was strictly agricultural in character or related directly to farming operations.
In both the first and second unnumbered subparagraphs of paragraph (4) which we have set out in full, and in the fourth which we have not quoted, it is made clear the services described are those performed on farms or those directly related to farming operations. In the fourth, which refers to activities not in their nature so closely related to actual farming, it is expressly provided: *Page 1053
"* * * but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable * * * to service performed in connection with commercial canning * * *." Section 96.19, subsection 7, paragraph g(4).
The third unnumbered subparagraph with which we are concerned here contains no such limiting language to exclude commercial enterprises. The fact that it does not and that the other subparagraphs do is significant of the intent of the legislative bodies.
We find no decision precisely in point except the Birmingham case above discussed. However there are two cases cited therein in which the same court construed language of the "Fair Labor Standards Act" (29 U.S.C.A., section 201 et seq.) somewhat analogous to the language we are considering. See Miller Hatcheries v. Boyer, 8 Cir., Iowa, 131 F.2d 283, and Walling v. Rocklin, 8 Cir., Iowa, 132 F.2d 3. They illustrate the tendency of that court toward a broad construction of the term "Agriculture" as used and defined in recent federal social legislation. The language of the "Fair Labor Standards Act" is set out in footnote to the Miller Hatcheries case and the court points out that the administrator of the Wage and Hour Division has consistently interpreted the operation of a commercial hatchery to constitute "the raising of * * * poultry" and holds that employees engaged in the necessary incidents of theseoperations are therefore "employed in agriculture."
It should be pointed out that two of the federal cases cited by appellant as tending to support its contention were decided under the Social Security Act as it stood prior to the Amendment of August 10, 1939. See Jones v. Gaylord Guernsey Farms, 10 Cir., Okla., 128 F.2d 1008, and Larson v. Ives Dairy Co., 5 Cir., Fla., 154 F.2d 701. Another cited case affords no particular comfort to appellant. United States v. Navar, 5 Cir., Tex., 158 F.2d 91. Miller v. Burger, 9 Cir., Cal., 161 F.2d 992, also cited, involved services performed in what the court held to be a "terminal market" within the *Page 1054
meaning of the paragraph of the Social Security Act identical with the fourth unnumbered subparagraph of section 96.19, subsection 7, paragraph g(4) of our statute. It is not in point here.
IV. The interpretation we place upon the phrase in "connection with" is not strained or without precedent. In Wallrabenstein v. Industrial Commission, 195 Wis. 15, 17, 18, 216 N.W. 495, 496, the court construed an insurance coverage of "all employees of whatever nature * * * engaged upon or in connection with such farm," to include a household domestic: "The service performed by appellant in caring for the farm home of her employer was clearly a service necessary to be performed in connection with the farm * * *." (Italics supplied.) The court said it was significant that the coverage was not limited to labor "engaged upon" the farm. It also said an express exclusion of "clerical office force" referred to a class of employees which would otherwise have been included in the phrase "in connection with."
In Gurney v. Atlantic G.W. Ry. Co., 58 N.Y. 358, 371, it was held that a court order directing a receiver to pay wages for labor performed "in connection with that company's railways" was intended to embrace every service rendered in promoting the interest and enforcing and defending the rights of the company in respect to its railways in its possession and under its management.
Doubtless the language must be construed in the light both of its context and its purpose. This we have tried to do. We think the sound reasoning of the Birmingham case and the considerations we have pointed out require an affirmance of the trial court's decision and it is so ordered. — Affirmed.
All JUSTICES concur. *Page 1055 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434346/ | Robert J. Andrews died at Sioux City, on the 17th day of December, 1929, and thirty days later his will was duly admitted to probate. Under the will the wife, Lulu W. Andrews, his two sons, Guy W. Andrews and Robert S. Andrews, and his daughter, Helen A. Swift, were appointed as executors of his estate, without bond, and they duly qualified. For some reason not appearing in the record, no inventory was filed by the executors until January 26, 1933, a few days over three years from the date that the will was admitted to probate. And two days later, on January 28, 1933, the final report was filed by the executors.
It appears that Robert S. Andrews, one of the executors, was in active charge of the estate, as he had been associated with his father in the insurance and real estate business in Sioux City for some years and was thoroughly acquainted with all of the property and business of the deceased, and he proceeded to handle the affairs on much the same basis as the father had been handling the business; said decedent having been engaged in making loans on city real estate and in the general insurance business. In that line of work he had many customers who left their funds with him from year to year, for investment and reinvestment, and the mortgages given as security for the funds loaned by the said Robert J. Andrews were kept in his name, and he paid or advanced the interest and paid the taxes on the property if the same ever became delinquent, for the purpose of protecting his customers. After the father's death the son proceeded to pay out the interest on these funds, and to protect the parties by the payment of taxes and interest, the same as his father had done before, without securing any orders of court. Shortly after the filing of the final report, the executors resigned and A.T. Bennett was duly appointed administrator on February 23, 1933. Under order of court he employed a certified public accountant to go over the final report. And on July 6, 1933, A.T. Bennett filed a report showing that there was a shortage of $1,264.38. The audit further disclosed that the former executors had paid out, in interest items on claims against the estate, *Page 820
a sum of money in excess of $4,000, all of which was done without any order of court. Thereafter objections were duly filed to the report of the former executors by A.T. Bennett, the newly appointed administrator, and by persons holding claims against the estate. Evidence was offered, hearings were held, and on July 6, 1934, the court filed his finding of facts and decree. The former executors on September 8, 1934, filed a motion to vacate and set aside the finding of facts and decree of court, which motion was duly overruled, and this appeal is taken from said adverse ruling.
The abstract which was filed in this case does not set out any of the evidence presented in the lower court. It consists simply of a copy of the will, a statement that same was duly admitted to probate, appointment of the executors, who qualified, a summary of what the inventory contained, a summary of the final report and of the audit, and shows that objections were filed. And then, under the heading of "Evidence;" the following:
"At various times during the early part of 1934 hearings were had upon the final report of the executors and the report of the auditor, hereinbefore mentioned, but on account of the illness of the reporter of that testimony that evidence cannot be set out at this time. It is further the contention of the appellants that the questions raised on this appeal are fully disclosed by the final report, the auditor's report, the exceptions and objections thereto, and that a transcript of that evidence would be very expensive and for the questions presented on this appeal, of no material value. If, however, it should be found necessary, the appellants will furnish a transcript of the evidence which the court may think essential."
It is of course the duty of the appellants to present to this court an abstract of the evidence so that this court will have before it the evidence upon which the lower court entered its decree. This court can not specify or designate to an appealing party what part of the evidence should be transcribed. It is the duty of the party who brings the case here for review to present his record in compliance with the rules of this court.
It is the contention of the appellants that this case can be decided here upon the pleadings which they have set out in their abstract. One of the points they raise is that the court refused *Page 821
to allow the executors, and the attorneys for same, compensation for services rendered. On the question of the rights of the executors and the attorneys for the executors, to compensation for services, the finding of the lower court is as follows:
"The court further finds that the executors have not preserved the assets of the estate, nor faithfully administered the same, nor complied with the requirements of the statutes of Iowa in such cases made and provided, nor with the orders of this court as required by law, and that the said executors are therefore, as against the claims of creditors of this estate, not entitled to compensation for services rendered; and that the attorney for the executors has failed and neglected to comply with the orders of this court in that he failed to make application to the court for orders requiring the executors to comply with the statutory requirements and with the court's orders to the executors, and he is, therefore, as against the claims of the creditors of the estate, not entitled to compensation for services rendered, out of funds of the estate."
There is, of course, no way that we can determine, upon the record which has been here submitted, whether or not the lower court erred in finding that the executors have not preserved the assets of the estate nor faithfully administered the same, for there is no evidence before us. Such finding and judgment cannot be reviewed in the absence of an abstract of the evidence taken at the hearing before the trial court.
The same applies to all other errors argued by the appellants. We are unable, due to the failure of the appellants to abstract and present the evidence, to determine whether or not the lower court erred in its findings, and in the decree which was entered in this cause.
It therefore follows that judgment and decree of the lower court must be, and it is hereby, affirmed.
Chief Justice and Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434347/ | The Peoples State Bank of Humboldt closed its doors on June 26, 1926. Its capital stock was $100,000. Its liabilities at the time of its closing were approximately $300,000. The value of its assets was approximately 50 per cent of its liabilities. It appeared from its stock book that the defendant Sterns was one of its stockholders, and that he held 95 shares of its stock. It is sought herein to recover an assessment on said stock, of 100 per cent. The seven defenses interposed included a general and specific denial of the allegations of the petition, and certain affirmative matters. The separately numbered affirmative defenses serve the function of analyzing the legal effect of certain features of the record. These defenses are summarized in the appellant's brief as follows:
"The defendant denied the insolvency of the bank, denied that the indebtedness paid by the receiver was the valid, legal indebtedness of the bank, denied that legal liability in excess of the sum of $100,000 was incurred during the time it is alleged defendant held stock in the bank. The defendant further answered that he never was the legal owner of the stock, but came into possession of it solely because the officers of the bank asked him to advance a 50 per cent assessment on stock that had been pledged as security for loans, in order that it might be redeemed and sold to subscribers whom the officers of the bank told defendant they had already secured. Further defense was made that the liability of the bank which resulted in its insolvency accrued prior to the time defendant is alleged to have been a stockholder. Defendant also pleaded a settlement, whereby the *Page 651
examiner in charge, representing plaintiff, agreed to accept $4,000 in satisfaction of defendant's alleged stockholder's liability, together with $2,500 in settlement of his alleged liability as guarantor of a note in the bank. Further defense was made by the fifth division of the answer that the 50 per cent assessment paid by defendant in December, 1925, was an involuntary assessment, ordered by the state superintendent of banking, for which defendant was entitled to a credit on his liability, if any, as a stockholder. The last defense was that the bank continued to operate after the expiration of its charter, contrary to law, with the consent of the plaintiff superintendent of banking, and that defendant could not be held for liabilities thereafter accruing."
The defendant became a stockholder, if such, on November 27, 1925, on which date he paid the consideration therefor. The stock was actually issued and delivered to him on December 5, 1925.
I. We deal first with the issues made by defendant's general and specific denials.
This division of the answer put in issue every allegation of the petition. The emphasis of the defense, however, was not concentrated on the mere denial. Without now considering the force and effect of any affirmative defense, we will say that the evidence was quite abundant to show a prima-facie case for plaintiff. The evidence is simplified by stipulations of fact. Pursuant to one of such stipulations, a referee was appointed, who was empowered to prepare and present a detailed summary of the daily business of the bank from November 27, 1925, to the date of its closing. Such a summary was presented by the referee, and was accepted as a verity by both parties. The defendant specifically denied that he was a stockholder. This denial, however, was a mere conclusion of law or fact, or both, and was predicated by the pleader upon facts pleaded in the affirmative defenses. The defendant did purchase 95 shares of stock, and did pay the purchase price thereof to his assignors, and did thereafter receive certificates of stock, pursuant to such purchase, and his name thereafter at all times appeared upon the stock and transfer books of the corporation, as a stockholder. He was, therefore, a stockholder, unless an affirmative avoidance is made to appear.
II. Due consideration being given to the contentions of the defendant, the facts leading up to the transaction under *Page 652
consideration are approximately as follows: Prior to November 27, 1925, the defendant had no connection with, or interest in, the Peoples State Bank, except that a corporation with which he was connected was a depositor in said bank, and was often such to a very large amount. His mother (stepmother) was the owner of 125 shares of its stock, which stock comprised substantially all her means. His father was a debtor to the bank. The bank was infirm financially, and its capital seriously impaired. For the purpose of rehabilitating the impaired capital, an assessment of 50 per cent upon the stockholders, under the provisions of Section 9246, had been directed by the superintendent of banking, and had been ordered by the board of directors. It was apparently believed by all parties concerned that the collection of such an assessment would put the bank on a firm footing. 125 shares of the capital stock had been owned previously by Ayers and Corey. Each of these stockholders became insolvent, and all these shares passed into the hands of their creditors, and were held by such creditors as purported pledgees. Neither Ayers nor Corey was able to pay the 50 per cent assessment, nor able to recover the stock by redemption. It was the plan of the bank officials to obtain new subscribers for the purchase of this stock. Many subscribers had been solicited, and these had tentatively and severally promised to subscribe for a specified number of shares. The aid of the defendant was sought. He was an acquaintance and a friend of the bank officials', and was likewise interested in his mother's welfare and connection therewith. He declared his purpose not to continue as a stockholder, but did agree to become such temporarily, and to purchase the stock from the pledgees, and to pay the 50 per cent assessment thereon. This would enable the bank officials to sell these shares of stock to new subscribers. They had a list of such prospective subscribers, which was apparently sufficient to absorb the entire issue. The bank officials were directed by the defendant to sell such stock to said subscribers and to relieve him thereof, and such was his expectation. Many of the prospective subscribers failed to make the purchase, and only 30 shares of such quota were sold. This left the defendant with 95 shares on his hands. On May 10, 1926, the defendant assigned said shares to his mother, Myra Sterns, and directed her to obtain a transfer thereof on the books of the bank. Her husband took the assignment to Mr. Devine, and requested *Page 653
him to give the same to the cashier of the bank, and to have the same entered upon the books of the bank. Devine was a subordinate employee of the bank, and not an officer. It does not appear that the delivery to him was made at the bank. But Devine did deliver the same to the cashier, who held it for conference with his superior officers. The result of such conference was that the bank officials deemed themselves without authority to enter a transfer upon their books which they believed to be colorable only, and no transfer was entered upon the bank books. The date of the assignment was May 10, 1926. The exact date of its presentation to the bank does not appear. It does appear that it was thus presented shortly after its execution.
Division II of defendant's answer presented his first affirmative defense. This was, in substance, that the bank officials were guilty of fraud in their representations to him, as an inducement to his purchase of the stock. 1. BANKS AND This division of the answer was stricken on BANKING: motion, as presenting no defense. For the stock- purpose of the record, the defendant was holders: permitted to introduce his evidence in support acts of this defense. We therefore read his consti- allegations in the light of his testimony. We tuting. are clear that neither the allegations nor the evidence disclosed fraud on the part of the bank officials. They were confessedly in trouble, and were seeking the assistance of new stockholders, to take the place of Ayers and Corey and their pledgees. No representations were made other than their belief that the 50 per cent assessment would repair their impairment. Their subsequent conduct was consistent with their expressed belief. All of them paid their 50 per cent assessment upon their own stock, and thereby acted to their own hurt, even as the defendant did. Nor did the defendant pay par value for the stock. He paid only $1,032, plus the 50 per cent assessment. This, however, was not to be the selling price to the purported new stockholders. If all the 95 shares had been successfully sold to new stockholders, the sum of $9,500 would have been realized. This sum would be much larger than the investment of defendant therein. Whether the margin was to inure to his benefit does not appear. The fact remains that the defendant necessarily knew that the stock was purchasable at much less than par value. It is to be noted further that the defendant had not, at any time before the closing of the bank, repudiated the *Page 654
transaction nor sought to rescind the same. He realizes that it is too late to ask rescission now, and no rescission is sought in his pleading. Nor has he proved or claimed any damages for the fraud. It is sufficient here to say that the defendant did become a stockholder, and that he did so intentionally. The legal significance of the relation thus created was not affected by his purpose not to continue as a stockholder, nor was it affected by the fact that his act in becoming such stockholder was one of accommodation to his friends. The very method of accommodation which he adopted was to become a stockholder.
III. Another defense pleaded and relied on by the defendant is that, prior to the closing of the bank, and on 2. BANKS AND or about May 10, 1926, he had disposed of his BANKING: stock to his mother, Myra Sterns, and that he stock- had directed his mother to see that the stock holders: was transferred upon the bank books. The transfer of argument devoted to this defense would command stock after our earnest consideration, were it not for expiration another feature of the record, which, to our of charter: minds, is quite fatal to the defendant on this effect. issue.
It appears without dispute that the charter of this bank expired on May 9, 1926. The expiration of the charter terminated the legal existence of the corporation. From that date forward, it had no right to do business, except such as was fairly incidental to its liquidation. In a legal sense it became in process of dissolution upon the expiration of its charter. The duty of its officials from that time forth was to wind up its corporate affairs. M.H. McCarthy Co. v. Dubuque District Court,201 Iowa 912; Rossing v. State Bank of Bode, 181 Iowa 1013, 1024. The method of transfer of stock upon the books of the bank was to cancel the stock of the assignor and to issue a new certificate to the assignee. A corporate official has no authority to issue stock after the expiration of the charter. Neither has a stockholder power thereafter to transfer his stock, in a statutory sense. Where such a transfer of stock is made in form, equity will treat it as an equitable assignment of all the net interest of the assignor in the corporate property after winding up its affairs. Such an assignment is not effective in law to make the assignee a stockholder of the corporation. On this question we quote a few excerpts from *Page 655
Richards v. Attleborough Nat. Bank, 148 Mass. 187 (19 N.E. 353), as follows:
"When a corporation is dissolved and absolutely ceases to exist, that there can be no transfer of stock, as such, would, we presume, be conceded. When liquidation commences, all that is left to the stockholder is the right to a share in the assets, or the sum produced therefrom, proportional to his holding; while, in the case of national banks, he is subjected to a limited proportional liability for the debts the bank may have incurred. The equitable interest which he may have in the funds held by trustees, directors, or receiver, settling the affairs of the corporation on behalf of the stockholders, may be assigned, subject to the rights of creditors or the claims of the bank upon them; but such equitable assignee does not become a stockholder. When, after the expiration of the term for which the bank was chartered to do business, its existence is prolonged, and its franchise `extended,' simply to collect its dues, pay its debts, and divide what remains among its shareholders, the same result must follow. Crease v. Babcock, 23 Pick. 334, 345. The reasons for making the stock, as such, transferable, and allowing the purchaser by virtue of his purchase to become a member of the corporation, cease to exist when there is no profit to be made, no business to be done, and when the property of the bank and its liabilities are fixed, and nothing remains but the adjustment of these. Whether the liquidation of the affairs of the bank be voluntary or involuntary, or whether it proceeds under the authority given to continue the bank in existence in order to close its affairs, it is necessarily implied that the respective rights, not only of the creditors and debtors of the bank, but of the stockholders, are to be determined as of the time when it commences. * * * When a bank is in liquidation, the liability of the stockholder for the debts of the corporation has been fixed. If there is a debt due from the bank, he cannot transfer to anyone else his liability to pay that debt, so as to affect the creditor, or subject him, in seeking such remedies as he may have against the stockholders, to any examination beyond the list of those who were so when the liquidation commenced. No further debts can be contracted thereafter, nor any transaction made, except such as result by implication from the duty of closing up its affairs."
Many authorities are cited in appellee's brief to the foregoing *Page 656
proposition. We find none to the contrary. The rule of law here noted is fatal to the contention of the defendant that he had divested himself of liability as a stockholder by reason of his transfer to his mother on May 10, 1926. We need give no further attention, therefore, to this feature of the record.
IV. The further defense pressed by the appellant is predicated upon the fact that he paid the 50 per cent assessment levied upon the stock pursuant to Section 9246 et seq. The argument is that the levy of this assessment and the order 3. BANKS AND therefor were coercive, and that the payment BANKING: thereof was involuntary on his part, rather than stock- voluntary. It is contended, therefore, that this holders: assessment and the payment thereof should be double deemed a part of the superadded liabilities of liability: stockholders under the provision of Section credit by 9251. It is contended that this feature of the amount of case at bar differentiates it from our holding former in Andrew v. Farmers Tr. Sav. Bank,
204 Iowa assessment 243, and Leach v. Arthur Sav. Bank, 203 Iowa unallow- 1052. It is true that, in the Arthur Sav. Bank
able. case, we held that the stockholder had the option of paying the assessment or of subjecting his stock to sale and forfeiture for failure to pay, and that the payment of the assessment was voluntary, in the sense that the stockholder exercised his option in that direction. Under the statute then in force, there was no personal liability of the stockholder, such as is now provided by Section 9248-a1. We went no further in that case than to hold that the levy was not coercive. In the case ofLeach v. Arthur Sav. Bank, we expressly reserved a holding on the point now urged by appellant. Therein we said:
"Whether such matters, if proven, would constitute a defense, or would entitle the stockholders to an offset against the superadded liability provided by statute, is a matter upon which we express no opinion, as there is no evidence in the record to support this contention."
The record before us precludes our present consideration of the same question. Whatever may be said of the coercive character of the order in the first instance, it was not coercive as to this defendant. He was not then a stockholder. If it be assumed that the then existing stockholders had grievance, yet they did not complain. The defendant purchased his stock voluntarily from *Page 657
his assignors. The consideration which he promised to pay included the 50 per cent assessment as the principal part of the purchase price. He is in no position, therefore, to say that he was coerced into the payment.
It may be added here that the provision of Section 9251 is intended for the protection of creditors in the event of insolvency of the corporation. It is available only in case of insolvency, and only in favor of then existing creditors. It is never available to the corporation, as such. The provision of Section 9246 et seq. is intended for the benefit of the corporation, as such, and as a going concern. Whether the legislative body has exceeded its power in the enactment of this legislation is a question not involved herein. If it were so held, such holding would not aid the defendant in his present defense. If the levy of assessments upon the stockholders of a going concern were held to be in excess of legislative power, yet the collection of such assessments could not satisfy in whole or in part the obligation provided for in Section 9251. The beneficiaries of the two statutes are not identical. An improper award to one beneficiary could not satisfy, either in whole or in part, the legitimate demand of the other.
V. It is the further contention of the defendant that he is not chargeable as a stockholder, under Section 9251, for liabilities incurred prior to November 27, 1925; that he is liable only for liabilities arising after November 27, 1925, and before May 9, 1926; that, in any event, he is only liable for such liabilities as arose between November 27, 1925, and June 26, 1926.
In Andrew v. Commercial State Bank, 206 Iowa 1070, we put a construction upon this feature of the statute. Therein we said:
"The word `accruing,' found in the statute governing double liability, must be construed to mean any liability within the purview of the statute, existing while a stockholder remained a stockholder. Clearly, any creditor of the bank had a right to look to all of the stockholders who were such at the time the debt existed and the bank became insolvent. The right to an assessment did not accrue until the bank became insolvent."
Section 9251 provides:
"9251. Liability of stockholders. All stockholders of savings and state banks shall be individually liable to the creditors *Page 658
of such corporation of which they are stockholders over and above the amount of stock by them held therein and any amount paid thereon, to an amount equal to their respective shares, for all its liabilities accruing while they remained such stockholders."
In the case at bar, it is stipulated that this bank was insolvent on November 27, 1925, and so continued up to the date of its closing. As relates to the period of time preceding the closing of the bank, such stipulation can mean only that the indebtedness of the bank exceeded the fair value of its assets. For the purpose of applying Section 9251, a bank is deemed solvent while it is a going concern. As a going concern, it remains in full control of its assets, and administers the same by its own corporate officials. The liability of the stockholder under Section 9251 accrues when the corporate bank ceases to be a going concern. Up to that point of time, the corporate bank pays all demands upon presentation. When it fails to meet such demands, its doors close. The trend of this argument is against the defendant. But we have no real occasion herein to pursue the argument further. It appears herein from the detailed report of the referee that the defendant could gain nothing by the adoption of his theory at this point. Whichever date be selected for the striking of a balance, the liability of the defendant would equal 100 per cent. Liabilities created and existing liabilities renewed after November 27, 1925, exceeded the liabilities existing on that date. For instance, the checking accounts existing November 27, 1925, totaled, in round numbers, $229,000. On May 9, 1926, these totals were $282,000. On June 26, 1926, they totaled $277,000. New time deposits and renewals of existing time deposits up to May 9, 1926, amounted to $44,000; and up to June 26, 1926, $50,000. Regardless, therefore, of any selection of dates as between May 9 and June 26, 1926, the rate of defendant's assessment could not be less than 100 per cent. The same thing would be true if he should be deemed liable only for debts created or renewed on and after November 27, 1925. We therefore pursue no further this feature of the record.
VI. Other defenses pleaded are not pressed in argument, and we need not consider them.
We are not unmindful of the hardship imposed upon the defendant by the result herein. His adventure in friendship has proved to be a costly one. The result, however, is inevitable under the law. A failing bank means disaster, not only to one, but to *Page 659
many. It is like a falling structure, which casts its missiles in every direction. The defendant generously exposed himself to the attendant danger of this failing institution. The measure of his generosity was the measure of the risk which he assumed. In the emergency, he could not help his friends without risk to himself. The danger was doubtless greater than he supposed. This possibility inheres in every assumption of a risk. Since he voluntarily assumed it, the court has no legitimate power to relieve him from it.
The judgment of the district court is, accordingly, —Affirmed.
FAVILLE, C.J., and STEVENS, De GRAFF, MORLING, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434360/ | This is an action in equity for judgment upon promissory notes and to foreclose a mortgage on real estate securing the same. All defendants default except Frank G., Edna B., and Anna E. Welch. The issues raised by the answers of the named defendants and the counterclaim by Frank G. Welch are: (1) Does the mortgage sought to be foreclosed secure future advances made to the defendant Frank G. Welch? (2) Did the plaintiff bank act illegally in appropriating and applying the proceeds of a check deposited with it for collection, and are the defendants entitled to have the proceeds of such check credited upon certain indebtedness due the bank? The trial court entered judgment and decree upon the indebtedness due the bank at the time the mortgage was executed, but denied a lien for future advancements, and also held that the bank had no legal right to appropriate and make application of the proceeds of the check, and that the defendants were entitled to credit for the amount of the check upon the original mortgage note. The plaintiff appeals.
The material facts as disclosed by the record are not in serious dispute, and are as follows:
[1] On December 28, 1929, the defendants Frank G. Welch and Edna B. Welch, as husband and wife, executed and delivered to the Kirkville Savings Bank a note for $5,000 due December 28, 1932, and on May 10, 1930, the same defendants executed and delivered a mortgage securing the said note upon real estate owned by Frank G. Welch. This mortgage contained the following provision:
"It is also expressly agreed that this conveyance shall stand and be security for all debts or sums additional to those herein expressly named, whether now due or hereafter accruing to said mortgagee, and all advances of money or interest or prior liens." *Page 320
On June 9, 1930, the defendants Frank G. and Edna B. Welch conveyed the mortgaged property to Anna E. Welch subject to the terms and conditions of the mortgage. This deed was recorded June 29, 1931.
On December 29, 1930, the Kirkville Savings Bank, mortgagee, loaned to the defendant Frank G. Welch an additional $600 and took his note therefor due in six months; and on June 10, 1931, the same bank loaned to the same defendant an additional sum of $290 and took his note therefor due in six months. Late in 1931, the plaintiff bank, First Bank Trust Company, was organized and assumed the depository liabilities of four or five other banks, including the Kirkville Savings Bank, and the consolidated banks, including the Kirkville Savings Bank, transferred all their assets to the plaintiff bank. Among the assets so transferred by the Kirkville Savings Bank were the three notes heretofore mentioned. The mortgage in question was assigned to the plaintiff bank on October 26, 1931. It will be noticed that the title to the property covered by the mortgage was conveyed to the defendant Anna E. Welch prior to the execution of the notes for $600 and $290, respectively, although the deed conveying the property was not recorded until after the execution of the last two mentioned notes. It is clear that the wife, Edna B. Welch, had nothing to do with the execution of the two subsequent notes, did not know they had been executed, and received none of the consideration therefor. The defendants claim that the provision in the mortgage quoted above is not sufficient under the circumstances to secure debts other than the original note of $5,000 secured thereby; that while the wife, Edna B. Welch, signed the original note and mortgage, she did so only for the purpose of releasing her inchoate right of dower in the real estate mortgaged for the security of the $5,000 note only. The appellant bank contends that a mortgage given to secure future advancements and after acquired indebtedness is binding and enforceable, and that advances made thereunder must be held secured by the mortgage, and as sustaining this contention the appellant cites and relies upon Corn Belt Savings Bank v. Kriz,207 Iowa 11, 219 N.W. 503; Everist v. Carter, 202 Iowa 498, 210 N.W. 559; Turnis v. Ballou, 201 Iowa 468, 205 N.W. 746; and Corn Belt Trust Savings Bank v. May, 197 Iowa 54, 196 N.W. 735.
In Corn Belt Savings Bank v. Kriz, supra, the mortgage as to future advancements was as follows: *Page 321
"The said mortgagor hereby covenants * * * to pay all other indebtedness that the mortgagee may hold or acquire against said mortgagor, or either of them, and pay any and all notes and other obligations which the mortgagor, or either of them, may at any time be owing the mortgagee during the existence of this mortgage."
It will be noticed that the mortgage involved in the case at bar did not contain the italicized words. The difference in the two clauses is patent. In the clause in the cited case both husband and wife made their interests in the real estate subject to the payment of other indebtedness of either. This was not done in the instant case.
In the case of Everist v. Carter, supra, the question we have under consideration was apparently not involved.
In Turnis v. Ballou, supra, the clause as to future advancements was the same, practically, as that involved in Corn Belt Savings Bank v. Kriz.
In the other cases cited by the appellant, the question here involved does not seem to have been presented or determined.
Provisions inserted in printed blanks or forms of mortgage purporting to secure future advances or indebtedness are carefully scrutinized and strictly construed by the courts. The provision here in question is quite indefinite and uncertain. It will be noticed that it does not specify whose debts it attempts to secure, nor to whom such debts may be payable, nor to whom the advances of money or interest must be made in order that it be secured by this clause of the mortgage. Were we to hold, as the appellant contends, that this clause is security for future debts and advancements acquired against the husband alone, or advanced to the husband alone without the knowledge, participation, or consent of the wife, then the wife could be induced to sign a small mortgage upon a valuable homestead and the husband could proceed without her knowledge, consent, or acquiescence to include in such mortgage future debts or advancements to him alone and thus entirely wipe out the remaining interest of the wife in the mortgaged property. We do not think that equity should countenance such a construction of the mortgage clause here involved.
[2] We have repeatedly held that where the wife signs a mortgage and note with her husband for the purpose only of releasing her dower interest and with no other consideration, she cannot be held liable upon the indebtedness. Insell v. McDaniels,201 Iowa 533, 207 N.W. 533; LeFleur v. Caldwell, 196 Iowa 727, *Page 322
195 N.W. 234; Hinman v. Treinen, 196 Iowa 701, 195 N.W. 345, and Cooley v. Will, 212 Iowa 701, 237 N.W. 315.
In Sullivan v. Murphy, 212 Iowa 159, 232 N.W. 267, we had the question here involved under consideration. In that case, however, the clause as to future advancements was specific and expressly provided that the mortgage should secure any claim held by the mortgagee against the mortgagors, or either of them. The mortgage originally secured a note for $1,200, and it was attempted to include in the foreclosure another note signed by the husband alone for $1,500. In that case we used the following language:
"It is a just inference from this undisputed evidence that the defendants understood that the mortgage did not secure the $1,500 note. The language of the mortgage would justify the ordinary reader in concluding that its purpose was to secure the payment of the $1,200 note named in the condition, the repayment of advances necessary for the protection of the security, and future advances to which the parties might agree. The use of printed forms for promissory notes and mortgages is so universal that we may take judicial notice of the custom. The mortgage is well adapted in its phraseology to misapprehension."
In special concurring opinions by Justices Evans and Kindig, we find this language:
"This proviso purports to secure any `claims held by the mortgagee against the mortgagors or either of them for any future loans, advances or indebtedness accruing from said grantors or their assigns to said grantee or his assigns,' etc. The mortgage did not in terms purport to secure any other presently existing indebtedness than the $1,200 note. In addition to the $1,200 note, it did purport to secure `future indebtedness accruing from said grantors.' Clearly this proviso contemplated a future meeting of the minds of the parties to the contract upon the accrual of the future indebtedness. So far as the presently existing indebtedness was concerned, the minds of the parties met only upon the $1,200 note. So far as future indebtedness was concerned, the meeting of the minds was incomplete and contingent upon a future meeting of such minds upon the creation of such future indebtedness."
See, also, Commercial State Bank v. Ireland, 215 Iowa 241, 245 N.W. 224. *Page 323
Under the rules announced in our prior cases, we are constrained to hold that the mortgage here involved cannot be held to secure the subsequent indebtedness represented by the two notes of $600 and $290, respectively, signed by the husband alone.
[3] The other question involved on this appeal is as to the application of the proceeds of a $443.04 check, and the pertinent facts relative to this question are as follows: In June, 1933, the defendant Frank G. Welch secured a check as the purchase price of some property sold by him, drawn upon a Cedar Rapids bank for $443.04. He took this check to the cashier of the Eddyville bank for the purpose of selling it or obtaining the cash thereon. Welch was not a customer of the Eddyville bank, neither was he a customer of the plaintiff bank. It seems to be assumed in the record that the Eddyville bank was a branch only of the plaintiff bank. A Mr. Bonnifield was president of the plaintiff bank. Mr. Welch had never done any business with the Eddyville bank, and his sole purpose of going to that bank with the check in question was to obtain cash represented by the check. He was told by the cashier that he could not buy or cash the check, but that he would collect it for him, and thereupon Welch indorsed the check and delivered it to Mr. Burton, the cashier. Neither Mr. Welch nor the cashier had any thought, so far as shown by the record, that Welch was parting with the title to the check or the proceeds thereof. It was apparently the thought of both that the cashier would get the money on the check and deliver it to Mr. Welch as soon as collected. It appears that the proceeds of the check in some manner came into the hands of the plaintiff bank, and, instead of returning it to the Eddyville bank to be delivered to Mr. Welch, credited the same upon the $600 note of Welch, which is involved in this action. The cashier of the Eddyville bank attempted to get the money from the Ottumwa bank, so it could be delivered to Mr. Welch. Mr. Bonnifield, the president of the Ottumwa bank, understood the transaction as did Mr. Welch and Mr. Burton. He told Mr. Welch on two different occasions that if he left the check with the Eddyville bank as he claimed, either the check or the money ought to be there for him. Welch never authorized the bank to use or appropriate the proceeds of the check. He never intended it as a deposit in any bank. No officer of either the Eddyville bank or the Ottumwa bank ever suggested to Welch that they had a right to apply the proceeds to Welch's indebtedness, and Welch did not know that such had been done until a long time thereafter. In this case the *Page 324
defendants are asking that the proceeds of the check amounting to $443.04 be credited upon the $5,000 note secured by the real estate mortgage, and the trial court so credited the amount. It must be noticed that Welch was not a depositor or customer of either of the banks involved, and that the check in question was left with the Eddyville bank for the specific purpose of collection and with the understanding and intent that the proceeds should be paid to Welch when the check was collected. Under these circumstances, we are constrained to hold that the deposit or delivery of the check for the special purpose as indicated and, under the special agreement, could not rightfully be appropriated by the plaintiff bank. Smith v. Sanborn State Bank, 147 Iowa 640, 126 N.W. 779, 30 L.R.A. (N.S.) 517, 140 Am. St. Rep. 336; Dolph v. Cross, 153 Iowa 289, 133 N.W. 669; Hanby v. First Sav. Bank, 197 Iowa 150, 197 N.W. 51; Andrew v. County Sav. Bank, 209 Iowa 271, 228 N.W. 55; Townsend v. Athelstan Bank,212 Iowa 1078, 237 N.W. 356; Northwestern National Bank v. Peoples State Bank, 109 Kan. 506, 200 P. 278, 19 A.L.R. 551; Trustees of Elon College v. Elon Banking Trust Co.,182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205.
It follows from the foregoing discussion that the trial court did not err in holding that the mortgage in question did not secure the two subsequent notes, and in allowing a credit upon the $5,000 note for the proceeds of the check in question. An affirmance necessarily follows. — Affirmed.
MITCHELL, C.J., and EVANS, STEVENS, KINDIG, ALBERT, KINTZINGER, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434361/ | In an action by appellee upon a promissory note signed by appellant, an attachment was issued and levied on certain real and personal property belonging to appellant. A 1. HOMESTEAD: motion to discharge the attached property, on abandonment: the ground that it was the proceeds of the sale burden of or exchange of a homestead, intended to be proof. invested in another homestead, was denied.
The concrete facts are not in dispute. The appellant is the wife of H.E. Satre, and they have two minor children. Prior to the transaction here involved, appellant was the owner of a residence in Stanhope, Iowa, which was occupied by the family as a homestead. In 1923, $6,000 was borrowed, secured by a mortgage on the property, and a portion of the amount was invested in a business at Jefferson, Iowa, which was conducted by appellant's husband. On November 7, 1923, the husband rented a dwelling in Jefferson for a term of fourteen months, and the family moved there. Some articles of household furniture were left in the Stanhope house, and it was rented from month to month to a tenant. On January 29, 1924, the Stanhope property was exchanged for a residence property and certain vacant lots in Stanhope, the undivided interest of the person with whom the exchange was made in an unsettled estate, and certain personal property. The attachment was levied on all the property so received in exchange for the Stanhope homestead. *Page 1111
There is no claim that the Stanhope property, so long as it remained the homestead of appellant, was subject to the debt evidenced by the note sued on. It is the contention of appellee that the homestead at Stanhope was abandoned on the removal of the family to Jefferson, and that, in any event, the property levied on is not exempt as the proceeds of the homestead. Appellant, on the other hand, contends that there was no abandonment of the homestead, and that it was, at the time the exchange was made, and is now, her intention to use the property for which the homestead was exchanged in the acquisition of a new homestead, and that such property is, therefore, exempt.
I. The existence of a homestead right does not arise from mere intention. Hostetler v. Eddy, 128 Iowa 401. Actual occupancy of the premises as a home for the family is necessary to create the right, and, save in the case of a temporary absence, to continue it. Maguire v. Hanson, 105 Iowa 215.
The rules of law by which it is to be determined whether there has been an abandonment of the homestead have been often reiterated by this court, and are well settled. A succinct statement of them is to be found in Maguire v. Hanson, supra.
Where the removal is for a temporary purpose, and there is a fixed and settled intention, continuously and in good faith held, to return to the homestead, there is no abandonment. Repenn v.Davis, 72 Iowa 548; Boot v. Brewster, 75 Iowa 631; Ayers v.Grill, 85 Iowa 720; Zwick v. Johns, 89 Iowa 550; Robinson v.Charleton, 104 Iowa 296; Maguire v. Hanson, supra. Where the actual occupancy of the homestead has ceased, there arises a presumption of abandonment, and the burden is upon the one claiming the homestead right to show that there was a fixed and definite purpose to return. Newman v. Franklin, 69 Iowa 244;Maguire v. Hanson, supra; Conway v. Nichols, 106 Iowa 358;Vittengl v. Vittengl, 156 Iowa 41; Shaffer v. Miller, 195 Iowa 891.
The question is one of intention, and that must usually be determined from the testimony of the parties, in the light of the surrounding circumstances.
The appellant testified that she moved to Jefferson with the intention of keeping house and taking care of her family and being with her husband while he was in business there; that *Page 1112
they moved with the intention of coming back to Stanhope; that she had no definite and fixed time for coming back; that it depended on how they "made it out" in Jefferson. On cross-examination she testified that her husband had been charged with bootlegging, and that they decided to move to Jefferson for a while; that she didn't intend to stay there, and didn't know how long they would stay; that they intended to stay for a while, if they could succeed; that they had leased a house for fourteen months, and expected to stay that long. Appellant's husband testified that they moved to Jefferson experimentally — to see how it would go; that they expected eventually to come back to their home in Stanhope; that he and his wife talked about that. He testified on cross-examination that his purpose in going to Jefferson was to take care of the business he had bought there. He said: "Well, our intentions were — we left with the intention of coming back." There is no contradiction of this testimony in the record, and no facts or circumstances shown inconsistent with an intention on the part of appellant to return to the Stanhope homestead.
It appears that both appellant and her husband were desirous of leaving Stanhope because of the trouble the latter had had, and his inability to find employment there; and there had been some talk of selling the home, particularly before the mortgage of $6,000 was placed on it. But it is shown that their object in wishing to sell was to acquire a homestead elsewhere. The desire to sell one homestead for the purpose of acquiring another is not indicative of an intention to abandon the first. Robinson v.Charleton, supra; Vittengl v. Vittengl, supra. At the time of the removal, there appears to have been no present intention to sell the Stanhope homestead, or to return only in the event that they could not sell it, as was the case in Conway v. Nichols, supra. It is shown that a portion of the household goods was left in the Stanhope residence at the time the family removed to Jefferson.
The homestead law, being an exemption statute, is to be liberally construed to effectuate its intent and purpose.Schuttloffel v. Collins, 98 Iowa 576; Cook v. Allee, 119 Iowa 226; Lames v. Armstrong, 162 Iowa 327.
We are of the opinion that the appellant sustained the burden *Page 1113
of establishing that the removal was with the fixed and definite intention of returning to the Stanhope homestead, and that a finding that the homestead was abandoned would be without support in the record.
II. Section 10154, Code of 1924, provides that, where a new homestead has been acquired with the proceeds of the old, the new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former 2. HOMESTEAD: one would have been. We have held that, where a change of homestead is sold with the intention of homestead: investing the proceeds in a new one, the owner exemption of is entitled to a reasonable time within which to proceeds. accomplish the change. Benham v. Chamberlain Co., 39 Iowa 358; Cowgell v. Warrington, 66 Iowa 666; Vittenglv. Vittengl, supra.
In State v. Geddis, 44 Iowa 537, and Schuttloffel v. Collins,98 Iowa 576, it was held that it was not necessary that a sale of the homestead be for money in hand, and that, where the sale is made on credit, with the intention of using the proceeds, when collected, in the purchase of another homestead, and the proceeds are not put to any intervening use, they are exempt while thus intransitu from the old homestead to the new.
In Mann v. Corrington, 93 Iowa 108, we said that a homestead right may exist in vacant land for which a homestead has been exchanged, when the land was thus obtained and is held in good faith for use as a home, although it cannot be improved and a dwelling house erected on it with the proceeds of a former homestead. See, also, Blue v. Heilprin Co., 105 Iowa 608.
In Jones v. Brandt, 59 Iowa 332, we said:
"Whether the proceeds of a homestead shall become liable for debts depends always upon the manner of dealing with it."
Webster defines proceeds as that which results, proceeds, or accrues from some possession or transaction. In Phelps v. Harris,101 U.S. 370 (25 L. Ed. 855), the United States Supreme Court said:
"Proceeds are not necessarily money. This is also a word of great generality."
The legal definition of "proceeds" was said, in Tradesmen'sNat. Bank v. National Sur. Co., 169 N.Y. 563 (62 N.E. 670), to be money or other articles of value obtained from the *Page 1114
sale of property. In Hunt v. Williams, 126 Ind. 493
(26 N.E. 177), it was said:
"The word `proceeds' is one of equivocal import and of great generality. It does not necessarily mean money; its meaning in each case depending very much upon the connection in which it is employed and the subject-matter to which it is applied. Phelps v.Harris, 101 U.S. 370; Thompson's Appeal, 89 Pa. St. 36; Dow v.Whetten, 8 Wend. 160; Haven v. Gray, 12 Mass. 74. Strictly speaking, it implies something that arises or leads out of or from another thing * * *."
The Supreme Court of California has said that it is "a word of loose and varying significance." Kidwell v. Ketler, 146 Cal. 12
(79 P. 514). In Sprecht v. Parsons, 7 Utah 107 (25 P. 730), it was said:
"The term `proceeds' of a disposition of property can be construed to mean money or other property."
In People ex rel. Hanberg v. City of Chicago, 216 Ill. 537
(75 N.E. 239), the question was whether certain land was subject to taxation under a constitutional provision that all lands donated or granted for school purposes and the proceeds thereof should be applied to the objects for which the gift or grant was made, and the court said:
"These premises, having been received in exchange for another portion of School Section No. 16, are to be regarded as `proceeds' of lands granted by the general government for school purposes. * * * What is the meaning to be given the word `proceeds' when lands are the subject-matter to which it is to be applied? If the title of land is disposed of, that which is received therefor, whether money or other lands, is, as we have seen, properly called the `proceeds' of the land."
The meaning of the word in a statute exempting the proceeds of a sale of the homestead for one year was under consideration inChristensen v. Beebe, 32 Utah 406 (91 P. 129), and it was said:
"When we have reference, however, to a voluntary sale or disposition of a homestead, within the provisions of Section 1158, `proceeds,' of necessity, and for the benefit of the owner, must be considered as comprising any tangible thing of value he is willing to accept. The exemption of a homestead, or the proceeds *Page 1115
thereof, is grounded on public policy, and should not be restricted to money only."
The statute is a statute of exemption, and is, as we have said, to be liberally construed, to effectuate its purpose. We are clearly of the opinion that the term "proceeds," as used in the statute, is broad enough to exempt a new homestead actually procured by the exchange for it of property, of whatever kind, received in exchange for the old one, or purchased with money realized from the sale of such property, when that was the purpose of the owner in disposing of the first homestead. It follows from this that property received in exchange for the old homestead with the intention of using it in acquiring another homestead is also exempt for a reasonable time.
The question of the exemption of the proceeds of a homestead intended to be used in acquiring a new homestead is wholly one of the intention of the owner. Creditors who had no right to resort to the old homestead cannot be injured by the exemption of the new one to the extent of the value of the old one entering into it, nor by the exemption for a reasonable time of the proceeds of the old, in whatever form, intended in good faith to be invested in a new homestead. What would be such a reasonable time might depend on many circumstances, but that question is not before us.
Here there can be no doubt, under the record, of appellant's intention at the time of the exchange to use the proceeds of the old homestead in acquiring a new one. Of the property she received in exchange for the old homestead, the personal property was readily convertible into money; the estate in which she took an assignment of an interest would, presumably, be settled by a distribution of money; a purchaser was ready to take the residence property at an agreed price; and the other real estate was of a character to be more or less readily sold. The evidence shows that she had under consideration the purchase of a particular dwelling in Jefferson when the attachment was levied.
We reach the conclusion that there was no abandonment of the Stanhope homestead, and that the property received in exchange for it was, at the time of the levy, and for a reasonable time, exempt, as the proceeds of a homestead intended to be *Page 1116
invested in a new homestead; and that the attached property should, therefore, have been discharged.
The judgment must be and is — Reversed.
FAVILLE, C.J., and EVANS, STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434362/ | The appellants, with others, were signers of a petition to the board of supervisors for the establishment of a drainage district. The appellants signed a bond in the sum of $6,000, conditioned upon the payment of all costs and expenses incurred in the proposed drainage proceedings petitioned for, in the event that the prayer of the petition should not be granted by the board of supervisors. The drainage district was not established; and this action is by the county upon the bond, to recover the amount alleged to have been paid by the county in costs and expenses so incurred.
The cause was tried to a jury, and, at the conclusion of all the evidence, the court overruled the motion of the defendants for a verdict in their favor, and sustained the motion of the plaintiff for a verdict for the amount of the bond, less $750 that had been paid by certain signers of it, and interest. The total cost and expense alleged by the plaintiff to have been paid in connection with the proposed project was $6,334.18, or $334.18 in excess of the amount of the bond.
The defenses presented by appellants, briefly stated, were: 1. An agreement that all signers of the petition should sign *Page 1136
the bond. 2. That the bond had been mutilated by the removal of certain signatures. 3. That the engineer employed to make the preliminary survey departed materially from the project proposed by the petition. 4. That the amount claimed was in excess of the reasonable cost of a proper preliminary survey, as contemplated by the petition.
I. In respect to the claimed agreement that all who signed the petition should sign the bond, there is testimony tending to show the following facts: That the petition and bond were prepared in triplicate for circulation in different 1. DRAINS: localities for signature; that, at a meeting of action on parties interested in promoting the project, and bond: attended by some eight of the thirty-nine violation of signers of the bond, it was stated that no one conditions: should be allowed to sign the petition who did good faith not also sign the bond; and that instructions to of board. that effect were given the persons who circulated the papers for signature. The signers of the bond present at that meeting testified that they would not have signed the bond, but for such agreement. Some twelve persons signed the petition whose names are not on the bond.
It is well settled that, where a bond is delivered in violation of the condition upon which it was signed by the sureties, the plaintiff may recover thereon if it is shown that the bond was received in good faith, for a sufficient consideration, and without knowledge or notice of the condition upon which it was signed. Benton County Sav. Bank v. Boddicker, 105 Iowa 548, and117 Iowa 407; Novak v. Pitlick, 120 Iowa 286.
It is shown that Marquis, a member of the board of supervisors, was present at the meeting, and had actual knowledge of what was there done. He was, however, the owner of land 2. DRAINS: within the proposed district, and was action on disqualified to act as a member of the board of bond: supervisors in passing upon the petition. Stahl
conditional v. Board of Supervisors, 187 Iowa 1342. In signing: Morgan v. Fremont County, 92 Iowa 644, the knowledge rule was laid down that: of board.
"Whether notice to a public officer is notice to the corporation of which he is an agent depends upon the nature and extent of his powers. If the notice pertains to a matter *Page 1137
concerning which it is his duty to act, then, as a general rule, notice to him is, in law, notice to the corporation."
Marquis, being disqualified, by reason of his interest, to act as a member of the board of supervisors upon the question whether the drainage district should be established, obviously had no duty to act in the matter on behalf of the county. Moreover, his presence at the meeting in question was clearly prompted by his personal interest in the success of the project, and this was opposed to the interest of the county in securing a bond to indemnify it for the expense incurred if the district should not be established. Notice to an agent whose interests in the matter in hand are antagonistic to those of his principal is not notice to the principal. Findley v. Cowles, 93 Iowa 389; Van BurenCounty v. American Sur. Co., 137 Iowa 490; Barnes v. Century Sav.Bank, 165 Iowa 141; Watt v. German Sav. Bank, 183 Iowa 346. We are of the opinion that the knowledge of Marquis is not, under these circumstances, to be imputed to the county.
While the burden was upon the appellee to establish that it took the bond in good faith and without notice of the alleged agreement of the sureties, or knowledge sufficient to put it upon inquiry, we think it fully sustained that burden, and that there were no facts or circumstances shown in evidence requiring the submission to the jury of the question of notice. First Nat. Bankv. Dutton, 199 Iowa 468, and cases cited.
But, at all events, it is clear that appellants are estopped to rely upon the claimed agreement for the purpose of escaping liability on the bond. They were all petitioners for the establishment of the drainage district. While it 3. DRAINS: is not shown who actually presented and filed action on the petition and bond in the auditor's office, bond: they were presented together, in the interest of estoppel. the petitioners. The bond was an essential preliminary to action on the petition. Section 1989-a2, Code Supplement of 1913 (Section 7430, Code of 1924). It was accepted as such. The petition was acted on, and a large expense incurred and paid by the county in reliance on the bond. The bond was wholly in appellants' hands until it was filed. When they filed it, or caused it to be filed, for the purpose of securing action on their petition, and thereby induced *Page 1138
the county to act, and expend money in reliance upon it, it does not lie in their mouths to say that, by a secret agreement among themselves, of which the county had no notice, the bond was to be signed by all the petitioners before it should be delivered and filed and they became liable thereon. Helwig v. Fogelsong,166 Iowa 715. Nor can appellants be heard to say, under such circumstances, that they did not know that the bond had not been signed by all the petitioners. It was their bond, — their act; they were both petitioners and signers of the bond. They had the fullest opportunity to know if it did not conform to the alleged agreement among themselves. Under such circumstances, the resulting estoppel is clear. Sweezey v. Collins, 40 Iowa 540;McCormack v. Molburg, 43 Iowa 561; Ross v. Ferree, 95 Iowa 604;Marshall Field Co. v. Sutherland, 136 Iowa 218; Phelps v.Linnan, 174 Iowa 138. In Theobald v. Hopkins, 93 Minn. 253
(101 N.W. 170), it is said:
"If plaintiff could, by proper inquiry, have learned all the facts * * * and neglected to make it, and defendants were misled to their prejudice by his inaction, he would be estopped from afterwards asserting a claim against them."
II. The answer, after setting up the alleged agreement that all the signers of the petition should also sign the bond, proceeds as follows:
"That, if the names of all of the petitioners named, and who signed said petition, were obtained as signers to said bond, said bond has been mutilated and the names of a large number of the petitioners removed therefrom, and said bond is 4. ALTERATION not now in its original condition as when filed, OF and these defendants would be called upon to pay INSTRUMENTS: a much larger share than would have been their burden of just due. That, if said bond has been mutilated, proof. it was done while in the custody of the said plaintiff, and plaintiff is responsible therefor. That, if said bond was filed without said signatures' having been added, as agreed upon, then the same was in fraud of these defendants, and without their knowledge and consent; and plaintiff is not entitled to recover thereon."
This presents no defense based on a claim that the bond was altered by the removal of any signature after its execution and before it was filed; but it is expressly averred that, if the *Page 1139
bond was mutilated, it was while it was in the custody of the plaintiff. No defense coming within the rule announced in Statev. Craig, 58 Iowa 238, or Johnson v. Cole, 102 Iowa 109, is pleaded.
The evidence relied upon to sustain the defense of a material alteration is testimony tending to show that one Craven signed the bond, and that his name does not now appear thereon, and that two sheets have been removed from the packet or bunch of papers fastened together, and consisting of the bond and petition. This packet of papers has been certified to us. It consists of two complete and identical petitions and the last page of a third petition, all bearing signatures, and two identical bonds, with signatures on each. We may say here that there is no contention but that these several copies of both the petition and bond constituted, in effect, a single petition and bond. For convenience, we shall refer to them as copies. There is no evidence that either of the sheets so removed contained a copy of the bond, or Craven's signature to the bond, or, indeed, that anything whatever was written or printed upon them. The position of the sheets, fastened between copies of the petition and bond, and under a single cover, would, perhaps, indicate that they had been intended for signatures to the petition. Blank sheets of this character are in the packet. The copies of the bond on file present no indication on their face of any erasure or alteration, except marks drawn through a name that appears elsewhere on the bond, and concerning which no question is raised. There is no evidence that any other persons except Craven signed the bond whose signatures do not now appear on it. There is no evidence as to who delivered the bond to the county auditor for filing, or that any examination was made of it before it was filed, or as to whether Craven's name was then upon it. There is no evidence whatever that the two sheets were torn out, or that Craven's signature was removed from the bond after it was filed. The auditor testified, and his testimony is uncontradicted, that, to the best of his knowledge, the petition and bond were in the same condition at the time of the trial as when delivered to him. There is testimony that the place where the bond was kept in the auditor's office was accessible to the public, but there is no testimony that anyone had in *Page 1140
fact had the bond. In short, the record is entirely destitute of any explanation whatever as to how or when Craven's signature was removed from the bond, or the two sheets were torn out, or what, if anything, they contained.
It is the settled rule in this state that an alteration apparent on the face of an instrument raises no presumption that it was made after delivery, and that the burden is upon the party alleging a material alteration to establish that it was made after delivery of the instrument. Hagen v. Merchants Bankers'Ins. Co., 81 Iowa 321; Shroeder v. Webster, 88 Iowa 627; McGee v.Allison, 94 Iowa 527; University of Illinois v. Hayes, 114 Iowa 690; Tharp v. Jamison, 154 Iowa 77; Hessig-Ellis Drug Co. v.Todd-Baker Drug Co., 161 Iowa 535; First Nat. Bank v. Patterson,188 Iowa 1237.
Where the instrument itself reveals the fact of an erasure, the burden is upon the one relying on such alteration to show that it is material. University of Illinois v. Hayes, supra. Mere proof that an alteration was in fact made, is not sufficient to cast upon the party relying on the instrument the burden to show that it was made before delivery; but it must be made to appear that the alleged alteration was made after delivery, before any presumption of fraud arises therefrom. Tharp v. Jamison, supra.
A statement in conflict with the rule laid down in the foregoing cases is found in Kauffman v. Logan, 187 Iowa 670. The question was not in that case, and what was there said was by way of argument merely. The earlier cases on the subject were not referred to. The Kauffman case has not been followed on this question in our later decisions, for, in First Nat. Bank v.Patterson, supra, we said:
"The fact that an alteration appears, without showing that it was a material alteration, made after delivery, would not defeat recovery, even though made by plaintiff."
To remove any doubt of the rule to which we adhere, theKauffman case on this point is now expressly overruled.
The utmost that the testimony tended to establish, taking the view most favorable to defendants, was that the bond had been altered by the removal of Craven's name and the removal of two sheets from the packet of which the bond formed a part. *Page 1141
But, in the absence of any proof whatever that Craven's name was removed after the delivery and filing of the bond, or that the sheets removed contained any material part of the bond and were removed after such delivery, there was no question here to submit to the jury. University of Illinois v. Hayes, supra.
III. It is earnestly insisted that the plan or preliminary survey made by the engineer differed to such an extent from the plan proposed in the petition that the appellants cannot be held for the payment of the costs and expenses so incurred.
A reference to controlling statutory provisions, as found in Chapter 2-A of Title X, Code Supplement of 1913, in force at the time of the proceedings in question, becomes necessary. Section 1989-a2 provided, in substance, that, when a 5. DRAINS: petition signed by one or more qualified action on landowners should be filed in the office of the bond: county auditor, setting forth that any lands, unallowable intelligibly described, of the character or in defense. the situation defined by the statute, would be benefited by draining, ditching, tiling, or leveeing, or by changing a natural watercourse, and there was filed therewith a bond, in amount and with sureties approved by the county auditor, and "conditioned for the payment of all costs and expenses incurred in the proceedings in case the supervisors do not grant the prayer of said petition," the board of supervisors should appoint an engineer, and place a copy of the petition in his hands, and he should proceed to examine the lands described in the petition and any other lands which would be benefited by said improvement or necessary in the carrying out of said improvement, and survey and locate such drains, ditches, or improvements as might be practical and feasible to carry out the purpose of the petition. The section further provided for a return by the engineer of his proceedings, and what it should show; that, upon the filing of the return of the engineer, if the plan did not appear to be expedient and was not approved by the board of supervisors, they were authorized to direct the engineer to report another plan; and that, at any time prior to the establishment of the district, the plan might be amended, and as amended should be conclusive, unless appealed from. It was further provided that, when the plan should be finally adopted *Page 1142
by the board, they should direct the auditor to give notice of the date set for hearing on the petition and report.
Section 1989-a5 provided that, on the date set for hearing, the board might, upon certain findings, establish the district or refuse to establish it, as they might deem best, and might order the engineer to make further examination and report.
Present statutes on the subject are found in Chapter 353, Code of 1924.
The petition in question, after describing the lands and their condition as respects the necessity for drainage, and stating that the required public benefits would be secured by their drainage, recited that these results might be "effected and accomplished by the following improvements' being constructed and established, which are suggested and recommended by the Bureau of Public Roads, U.S. Department of Agriculture." There followed a detailed description of thirty-eight distinct proposed improvements within the lands described, including the enlarging of three streams, the improving and cleaning out of existing ditches, the construction of a dam and waste banks, the closing of a ditch and river channel, and the construction of twenty-seven new laterals. The petition prayed that an engineer be appointed "to investigate, examine, and make a survey of the lands embraced within the proposed drainage district, and to make a full report in writing of his doings, * * * and that such other proceedings may be had and done as are provided by law for the organization and establishment of a drainage district." It is apparent that the proposed improvement was of mammoth proportions. It was proposed to drain some 90,000 acres of land, at an estimated cost of more than two and a half million dollars.
There had been, prior to the filing of the petition, numerous surveys of the lands within the proposed district, one of which had been made by the Federal department of agriculture and was referred to in the petition. It is claimed by appellants that the petition contemplated a preliminary report by an engineer, based largely upon these former surveys, particularly the one made by the department of agriculture, and not a new and independent survey such as they claim was made; and they sought to show such an understanding with the board of supervisors *Page 1143
and the engineer. The sufficient answer to this contention is that the prayer of the petition was for the appointment of an engineer to examine and make a survey of the lands, and that such other proceedings be had as were provided by law for the establishment of a drainage district. Under the petition, the duty, and also the power, of the board were as broad as the statute. They were not — if they could be — limited to the particular improvements described in the petition, and could not be limited by any understanding of the parties' contrary to both the petition and the statute. We have said:
"The petition cannot be expected to be exact, as it is drawn prior to the survey, and is merely a preliminary paper. * * * Indeed, about the only office of the petition, aside from alleging the character of the land and the nature of the improvement, seems to be to point out the locality to be drained, in a general way, and to indicate those who are to give security for the preliminary costs and expenses to be paid in event the petition shall be rejected by the board of supervisors." Zinserv. Board of Supervisors, 137 Iowa 660.
See, also, In re Drainage Dist. No. 3, 146 Iowa 564.
The petition, doubtless due to the existence of the previous surveys, described in detail certain proposed improvements. But, as we have seen, the engineer was required by statute to survey and locate such drains, ditches, and improvements as might be practical and feasible to carry out the purpose of the petition.Zinser v. Board of Supervisors, supra.
We have said that, where the same engineer had made a previous survey for another district, and the district was intended to furnish an additional outlet for the old one, and the plat and field notes were still available, there was no occasion for a resurvey of the district. Kelley v. Drainage District, 158 Iowa 735. Here the evidence shows that many of the bench marks of the previous surveys were destroyed, and that cross sections of existing ditches would change, and that an engineer could not safely accept those made three years before. The complaint that a new survey was made is, we think, without merit.
After the engineer made his preliminary report, which was received and adopted by the board, they fixed a day for final hearing. The hearing was continued, to receive an amendment *Page 1144
to his report. After this was filed, the matter was referred back to the engineer for further investigation and report, and the hearing again continued. The engineer filed a substituted preliminary report, recommending changes in the district and improvements, and stating that the variations therein from his previous reports were not due to any revision of opinion on the engineering features involved, but were solely due to changes in financial and economic conditions. Further continuances were had from time to time, and finally, nearly three years after the filing of the petition, the board refused to establish the district.
We shall not extend this opinion by discussing the details of the reports made by the engineer. The chief contention of appellants in this connection is that, in the last report made by him, all lateral ditches were eliminated. This, as we understand, constituted the greatest variance between the plan of improvement as proposed in the petition and that recommended in any of the reports of the engineer. This, we think, was not a departure from the purpose of the proposed improvement, but merely a change of the plan by which that purpose was to be accomplished. It was the duty of the engineer to survey and locate such improvements as would be feasible to carry out, not the plan, but the purpose, of the petition. The board of supervisors was expressly authorized, if the plan proposed by the engineer did not appear to be expedient, to direct him to report another plan, and, if it deemed best, might, even after the adoption of the plan proposed by the engineer, direct him to make further examination and report. But by whatever plan it was proposed to proceed, the purpose was at all times the same as that contemplated by the petition, — the improvement by drainage of the lands described in the petition. Even the plan of the proposed improvement was not, broadly speaking, changed, save by the elimination of the proposed laterals, and that only because of the expense, — a consideration that entered into the question of expediency. Cases cited by appellants involving liability on contractors' bonds are not in point.
IV. The board employed one Moriarity as engineer, to make the preliminary survey and report, and entered into a written contract with him that he should receive $15 per day *Page 1145
6. DRAINS: and car mileage, and that the board would pay action on all help and assistance, Moriarity to employ the bond: help at the lowest reasonable price, and all evidence: parties to pay their own expenses, except as im- otherwise stated. Appellants complain that they materiality. were not permitted to show that Moriarity, after his employment, gave an estimate of what it would cost the bondsmen, if the project was not carried out, and said that the preliminary survey would not cost to exceed $1,400. Such an estimate would not have been binding on Moriarity or the county, and the testimony was properly excluded. Mosnat v. Uchytil,129 Iowa 274; Lane v. Richards, 119 Iowa 24.
V. Complaint is made of the character of proof offered to establish the various items of expense claimed to have been incurred and paid by the county in connection with the preliminary survey and the related proceedings. 7. APPEAL AND The only assignment of error touching this ERROR: subject is "that the court erred in receiving assignment the testimony of the bills and claims of the of errors: engineer as filed, without further proof than fatal that the bills were so filed, audited, and paid, indefinite- the evidence showing" alleged irregularities in ness. the preparation of the claims and in the form of action taken by the board. The assignment is too general to require consideration of the proof with respect to specific claims. The itemized statement of amounts paid, attached to the petition, contained over seventy items. Proof of the audit, allowance, and payment of all of these claims was made. We have said, where reference was made in the assignment of errors only to the pages of the abstract where the alleged error appeared, that we could not be expected to search the abstract to ascertain whether error was committed in receiving testimony. McAdams v.Davis, 200 Iowa 204. Here the alleged errors are not pointed out with even that degree of particularity.
The records of the board of supervisors showed that the claims were audited, allowed by the board, and paid by 8. DRAINS: warrant on the treasurer. In the absence of action on fraud, this was sufficient. Griggs v. Kimball,
bond: 42 Iowa 512; Rock v. Rinehart, 88 Iowa 37; sufficiency Warren County v. Slack, 192 Iowa 275. There is of proof. in the answer an *Page 1146
allegation of fraud on the part of the engineer; but no evidence was offered by appellants upon that issue, save as testimony that excessive car mileage was charged might so indicate. The amount so claimed to be excessive is not shown. The amount expended by the county exceeded the penalty of the bond by over $300, and it does not appear that the alleged excessive mileage could have affected the amount recoverable on the bond. Appellants argue that certain alleged irregularities in the claims themselves, under Section 1300, Code of 1897 (Section 5124, Code of 1924), and in the manner of their allowance, afford evidence of fraud. It has been held to the contrary, in the absence of other suspicious circumstances. Griggs v. Kimball, supra. We held inWarren County v. Slack, supra, where an inter-county drainage district had not been established, and the engineer had apportioned the expense among the counties and certified that the account was correct, and the supervisors had audited and paid the bill so certified, that the expense chargeable to the county had been determined as the law provided, and that, in the absence of fraud, the correctness of the certification and the propriety of the approval by the board of supervisors were not open to question by the sureties on the bond conditioned to pay the expense incurred if the district was not established.
VI. It is contended that appellants were only liable for the fair and reasonable cost of the preliminary survey under the plan as petitioned for, and that the case should have been submitted to the jury to determine the reasonable cost of 9. DRAINS: such a survey. This contention is answered by action on the statute, requiring the bond to be for the bond: payment of all costs and expenses incurred, and unallowable the conditions of the bond conforming to the defense. statute. As we have seen, the board of supervisors and the engineer were not limited to the detailed plan found in the petition.
VII. Error is assigned because, it is said, the action of the board was illegal, in that the member Marquis, who was disqualified by reason of owning land in the district, took part in *Page 1147
10. DRAINS: the proceedings. In appellants' argument, establish- however, it is said: ment and maintenance: "We are not making claim that this of interested necessity would make the action of the board but illegal. We think, before this could be claimed, nondeciding his vote must have been the deciding vote." vote.
This would, perhaps, relieve us from consideration of the error assigned. However, the record discloses that Marquis's vote was not the deciding vote in any action by the board in relation to the allowance or denial of the petition, and that, upon the filing of objection, he took no part in such proceedings. It appears that he did vote on the allowance of three claims, aggregating $69.68. If it should be conceded that recovery could not be had for the amount paid in settlement of these claims, still the amount of the other claims paid exceeded the amount of the bond.
Upon this record, it is needless to say that appellants' motion for a directed verdict was properly overruled. We discover no reversible error, and no question that should have been submitted to the jury. The judgment is — Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434366/ | This controversy involves the question of priority between the first and second mortgagees, to procure the appointment of receiver under and by virtue of the authority 1. MORTGAGES: granted in the respective instruments, upon rents: prio- application therefor. The usual receivership rity between clause is incorporated in each. Appellee, senior and holding the junior incumbrance, filed its junior amended petition September 5, 1925, asking mortgagees. foreclosure and the naming of receiver. Service of the original notice was made on defendant Donahoe, October 12th in said year. Judgment and decree was entered in said cause January 4, 1927, wherein the receivership phase of the litigation was continued.
Appellant commenced her proceeding November 24, 1925, to foreclose her first mortgage, including prayer for designation of said trust officer, and the original notice therefor was served November 25th of said year. For the purpose of preventing such appointment, appellee appeared in appellant's action, February 3, 1926, asserting priority of its own right to said relief in the other case. Accordingly, two days later, judgment and decree of foreclosure was entered in favor of appellant, commissioning a receiver as against all defendants, but continuing the issue as between appellee and appellant. Supplemental decree was entered March 4th in said year, foreclosing the first mortgage as against the second, again, however, preserving the point concerning the rents and profits. Sale was had under special execution under the junior foreclosure suit March 13th, leaving a deficiency; while that growing out of the senior was held April 3d, also showing a shortage. Defendants, the Donahoes, were insolvent, and unable to pay said balance on either judgment. *Page 539
Finally the undetermined contention was heard between the present parties, August 2d, and adjudicated August 12th, in favor of appellee. Wherefore the appeal was taken.
Argument for reversal is founded upon the ground that appellant's mortgage, being the superior, must necessarily carry with it, when in conflict with an inferior, the right stipulated for the selection of said receiver to control the "rents and profits" for the year beginning March 1, 1926. On the other hand, appellee's position is that, because of our previous decisions concerning the general subject-matter, the logic of the occasion requires an affirmance in the case at bar.
The clause relied upon in the written contractual obligations does not create a lien upon the "rents and profits" prior to the right acquired when the litigation is instituted. Kooistra v.Gibford, 201 Iowa 275; First Nat. Bank v. Security Tr. Sav.Bank, 191 Iowa 842; Whiteside v. Morris, 197 Iowa 211; Sheakleyv. Mechler, 199 Iowa 1390; Hakes v. North, 199 Iowa 995; Parkerv. Coe, 200 Iowa 862; Young v. Stewart, 201 Iowa 301; Farmers Merch. St. Sav. Bank v. Kriegel, 196 Iowa 833. Furthermore, until the machinery for the relief is started, no right exists in the specific property. First Nat. Bank v. Security Tr. Sav. Bank,
supra; Farmers Merch. St. Sav. Bank v. Kriegel, supra. Appropriate at this place in the discussion is the following quotation from Sheakley v. Mechler, supra:
"The rights of the mortgagee to the rents under a mortgage pledging the same came into being when the action was commenced."
Said institution of the "action," and not the actual "appointment of the receiver," fixes the time when the individual mortgagee first obtained an interest in the "rents and profits."Kooistra v. Gibford, supra; Young v. Stewart, supra.
So in this case, appellant having no lien upon or interest in the subject of the legal quarrel, appellee, by its vigilance, was the first to procure such equity and privilege therein as to amount to a paramount title. Having thereby established this priority, it became so well confirmed that the future course of appellant was not sufficient to take away the benefits thereof. To hold otherwise would be declaring a lien in favor of a senior mortgage under circumstances already said not to constitute the same. Through the belated assertion of said legal remedy, *Page 540
appellant automatically thereby brought down on said "rents and profits" her contractual rights therein, subject to the burden previously placed thereon by appellee. Again, describing the situation in another way, the result, in reversal, would amount to arming her with a weapon she does not have, suggesting the use of it without license, for the purpose of driving the junior incumbrancer from its established position. True, the lien second in time must yield to the first. Yet this doctrine cannot be sound unless there is a "lien." Consistency, in view of the many adjudicated cases, compels us to say there is no "lien" on the "rents and income," because of the record facts. If no right arose except by the "commencement of an action," and none had been taken by appellant, then there was nothing, so far as the particular paragraph of her mortgage under discussion was concerned, which could become a first, to which appellee's instrument must be a second. Protection for the lender of money is easily afforded by adding suitable words similar to and the equivalent of those contained in a chattel mortgage, and then recording the twofold undertaking as an incumbrance both of personalty and realty.
Authorities cited to show error are: 41 Corpus, Juris 634;Howell v. Ripley, 10 Paige's Ch. (N.Y.) 43; Goddard v. Clarke,81 Neb. 373 (116 N.W. 41); Williamson v. Gerlach, 41 Ohio St. 682;Cross v. Will County Nat. Bank, 177 Ill. 33 (52 N.E. 322);Holland Tr. Co. v. Consolidated Gas Elec. L. Co., 85 Hun (N.Y.) 454 (32 N.Y. Supp. 830); Putnam v. McAllister, 57 N.Y. Supp. 404; 23 Am. Eng. Encyc. of Law (2d Ed.) 1031, 1032. These do not control, in the face of the precedent set in this state. Statutory enactments and the theory prevailing in some jurisdictions that a lien exists under the mortgage, and the peculiar facts and circumstances in each case, furnish a ground for distinguishment. Proper phraseology in the later mortgage to the effect that the special privilege here considered is subordinate to a similar prerogative in the former instrument no doubt would change the result, and furnish a criterion by which a court would be guided in entering a judgment and decree. That enabling clause, however, is lacking in appellee's contract, and therefore its absence cannot inure to appellant's benefit. Without such, timely action is necessary. "Equity *Page 541
aids the vigilant," and appellee should not be denied the fruits of its diligence.
Judgment of the district court should be, and hereby is, affirmed. — Affirmed.
EVANS, C.J., and STEVENS, FAVILLE, and WAGNER, JJ., concur.
Supplemental Opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247170/ | Rufe, United States District Judge
Plaintiff Alice Jajua, a nurse, filed suit against her former employer, Diakon Lutheran Social Ministries, alleging race and national origin discrimination, retaliation, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964,1 the Pennsylvania Human Relations Act,2 and 42 U.S.C. § 1981. Defendant moves for summary judgment on all claims. For reasons that follow, the motion will be granted in part and denied in part.
I. BACKGROUND
The following facts are undisputed, or where parties have presented conflicting evidence, construed in the light most favorable to Plaintiff as the non-moving party.
Defendant is the owner and operator of Twining Village, a nursing home facility that provides health care and rehabilitation services to the elderly and disabled.3 Plaintiff is a licensed practitioner nurse ("LPN") who was born in Sierra Leone, lived in Liberia and Ghana, and immigrated to the United States in 2003.4 She describes herself as black5 and speaks with a discernable accent.6 In October 2009, Defendant hired Plaintiff on an on-call per diem basis.7 Throughout the first five years of her employment, Plaintiff received *649satisfactory performance reviews and raises, and in December 2012, she transitioned to a full-time position.8
The alleged discrimination and retaliation in this case began around November 2014 and lasted until Plaintiff's termination on September 4, 2015.9 Starting in late 2014, a quality assurance nurse named Naomi Salas, who was later promoted to director of nursing, began making derogatory comments to Plaintiff. On two occasions, while Plaintiff was heating her food in the break room, Ms. Salas made derogatory comments about the smell of Plaintiff's food.10 In addition, whenever Plaintiff worked overtime, Ms. Salas repeatedly commented that "Africans come to America and take our working hours and money," and told Plaintiff that "this is not a place for you" if she could not finish her job in eight hours.11 Plaintiff reported these comments repeatedly to the Director of Nursing, Charissa Bermingham, and later to the Executive Director, Amy Bowen.12 In response, Ms. Bermingham simply commented that "maybe Naomi is joking," and management made no efforts to stop the offensive conduct.13 Other African nurses testified that they heard similar comments against Africans made by employees at Diakon.14 Ms. Wangole, another nurse of African origin, witnessed multiple nurses repeatedly telling Ms. Jajua that she "do[es]n't speak English," that Africans "come over here and take our hours," and that she should go back to her own country.15
In January 2015, Plaintiff applied for a transfer from her "second shift" position, which lasted from 3:00 pm to 11:00 pm, to the more desirable "first shift" position, which lasted from 7:00 am to 3:00 pm, so she could care for her son after school.16 Ms. Bermingham interviewed Plaintiff for the position and found her to be qualified, rating her "Communication Skills," "Interpersonal Work Relation," "Job Skills," "Attitude," and "Management Potential," as "Excellent."17 However, Plaintiff was not transferred to her new position for nearly three months.18 During this time, Plaintiff repeatedly asked Ms. Bermingham about the transfer, and was repeatedly told that she would start on the next pay period. At the same time, Plaintiff observed that nurses of other races were being assigned to fill the first shift position.19 Plaintiff had previously witnessed other employees quickly transferred from second shift to first shift, including Plaintiff's Caucasian colleague, Lisa.20 Plaintiff eventually approached Ms. Bermingham and asked her directly why she was not being transferred as promised, and according to the Plaintiff, Ms. Bermingham responded that her transfer was being delayed because "the doctors said because of your accent, they will not understand you."21 Plaintiff reported the situation, including Ms. Bermingham's *650statement, to the Nursing Home Administrator, Cindy Woodward.22 Shortly afterwards, Ms. Bermingham transferred Plaintiff to first shift at the start of the next pay period, on March 18, 2015.23
The transfer did not go smoothly for Plaintiff. The unit manager for first shift was Amanda Leitenberger, whom at least one nurse had heard make derogatory comments concerning African food.24 As part of her role, Ms. Leitenberger was responsible for relieving the nurses under her supervision so they could take breaks, but according to Plaintiff, Ms. Leitenberger consistently refused to relieve Plaintiff, so that she was often required to work an entire eight hour shift without a break.25 Plaintiff complained to Ms. Leitenberger repeatedly that this was unfair and asked her why she refused to relieve Plaintiff but did so for other nurses.26 Plaintiff also complained about the situation to the Executive Director, Amy Bowen.27
Between May and September of 2015, Plaintiff's previously satisfactory performance record devolved into a series of disciplinary investigations and write-ups that ultimately led to her termination. On May 8, 2015, Ms. Bermingham placed Plaintiff on an investigatory suspension based on an allegation that Plaintiff had been "rough" with a resident in repositioning him in his chair.28 The resident's complaint did not refer to Plaintiff by name, but instead described an "African American" nurse or aid who wore a wig and glasses.29 Plaintiff asserts that she did not wear a wig, that she had not moved the resident at issue, and that Ms. Bermingham misidentified her without investigating other nurses who fit the description.30 The allegations were ultimately found to be "unsubstantiated," but Ms. Bermingham nonetheless imposed "disciplinary action and re-education, focusing on gracious hospitality and resident sensitivity," on Plaintiff.31 On May 18, 2015, Ms. Bermingham issued a written warning against Plaintiff on the grounds that she had been "rough" and "aggressive" when providing care.32 When deposed, Ms. Bermingham could not recall whether the May 18, 2015 written warning was based on the same incident reported on May 8, 2015.33
In August 2015, Plaintiff was again suspended based on a separate incident involving Ms. Leitenberger, during which Plaintiff allegedly refused to take a break when Ms. Leitenberger came to relieve her. According to Plaintiff, on August 17, after she asked Ms. Leitenberger to relieve her, Ms. Leitenberger abruptly approached Plaintiff and demanded that she hand over her keys and take her break immediately.34 When Plaintiff requested additional time to complete her required tasks before taking her break, Ms. Leitenberger *651became angry and walked away.35 Subsequently, Ms. Leitenberger issued a suspension report in which she accused Plaintiff of "unsatisfactory job performance, inability to complete task in [a] timely manner, inappropriate/unprofessional conduct at nursing station ... e[.g.] yelling at nursing station" and "refusing to take break."36 The report attaches an "Employee Witness Statement" documenting an interview with the resident's family member who stated that she did not recall hearing anything on the day of the alleged incident, but that Plaintiff had been "abrupt" and "difficult to understand" in the past. The particular family member interviewed was known to be a chronic complainer within the nursing home.37
A few weeks later, on September 4, 2015, Plaintiff was terminated by Ms. Leitenberger and Billie DeRemer, Diakon's Employee Relations Manager. The asserted impetus for the termination was an alleged incident on September 1, 2015, during which a family member of a resident "complained that nurse did not care for resident on 9/1/15 in a professional manor [sic ]" and stated that the "nurse was unable to identify a medication that she gave to a resident."38 According to Plaintiff, on the day in question, she had provided blood pressure medication to the resident and identified the medication when asked.39
Ms. Jajua was replaced by a Caucasian employee, Belinda Janiszeqski.40
II. STANDARD OF REVIEW
"The underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense."41 A court will award summary judgment on a claim or part of a claim where there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."42 A fact is "material" if resolving the dispute over the fact "might affect the outcome of the suit under the governing [substantive] law."43 A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."44
In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor.45 Further, a court may not weigh the evidence or make credibility determinations.46 Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.47 "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."48 Therefore, if, after making all reasonable inferences in favor of the non-moving party, *652the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.49
III. DISCUSSION
Defendant moves for summary judgment on each count of the Complaint, including Plaintiff's claims of race and national origin discrimination, retaliation, and hostile work environment.
A. Race and National Origin Discrimination
Plaintiff asserts race and national origin discrimination under Title VII and the PHRA, and race discrimination under 42 U.S.C. § 1981. A plaintiff may prove disparate treatment discrimination by her employer using either direct evidence of intent to discriminate or indirect evidence from which a court could infer intent to discriminate.50 The court will consider evidence as "direct" when the evidence is "so revealing of [discriminatory] animus" that it is unnecessary to rely on a burden shifting framework.51 Direct evidence "must be strong enough 'to permit the factfinder to infer that a discriminatory attitude was more likely than not a motivating factor in the [defendant's] decision' ... [and] the evidence must be connected to the decision being challenged by the plaintiff."52
In the absence of direct evidence, courts evaluate indirect evidence of discrimination using the McDonnell Douglas Corp. v. Green53 burden-shifting framework. Under McDonnell Douglas , the plaintiff must first establish a prima facie case of discrimination by showing that (1) she is a member of a protected class; (2) she was qualified for the position she sought to attain or retain; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.54 If a plaintiff establishes a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the adverse action against the employee.55 The plaintiff then must establish by a preponderance of the evidence that the employer's proffered reasons were merely a "pretext for discrimination, and not the real motivation for the unfavorable job action."56 A plaintiff may demonstrate pretext, and so defeat a motion for summary judgment, by either "(i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action."57
*653Here, Plaintiff asserts race and national origin discrimination based on 1) Defendant's delay in transferring her to first shift; and 2) Defendant's disciplinary actions against her, culminating in her termination.
1. Discriminatory refusal to transfer
At the outset, Defendant contends that Plaintiff's delay in transferring Plaintiff does not constitute a cognizable adverse employment action as a matter of law. The Court disagrees. An "adverse employment action" is an action that is "serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment."58 To meet this standard, the adverse action must be more disruptive than a "mere inconvenience."59 Here, Plaintiff has provided evidence that for nearly three months, Defendant denied Plaintiff a shift transfer for which she had been found qualified, opting to fill the opening with nurses of other races. Plaintiff has also presented evidence that first shift was generally more desirable for the nurses at Diakon, and that Defendant's refusal to transfer her impeded Plaintiff's ability to care for her son after school. Courts have found similar facts to be sufficient to establish an adverse employment action. Specifically, the Third Circuit has held that a change in shift may materially affect the terms and privileges of an employee's employment,60 and at least one court in this circuit has reached the same conclusion with respect to the denial of a transfer or a delay in promotion.61
In arguing to the contrary, Defendant relies primarily on two cases from other circuits, which the Court finds unpersuasive here. In Amro v. Boeing Co. ,62 the court held that the plaintiff could not assert an adverse employment action based upon the defendant's delay in transferring him to a different position.63 But there, the court found that the plaintiff failed to establish that there had been "actual positions for which he was qualified and which he was denied."64 Similarly, in Ingram v. Brink's, Inc. ,65 the court held that a delay in the plaintiff's promotion was not actionable because it constituted "nothing more than delays in the decision making process."
*65466 There, the court noted that no one else was hired for the management position at issue during the period of delay in promoting the plaintiff. By contrast, in this case, a reasonable fact finder could conclude that Ms. Bermingham's delay in transferring Plaintiff to first shift was more than the result of administrative delays because there was an open position for which Plaintiff had been found qualified, and because Plaintiff observed nurses of other races being transferred into first shift during the period of delay. Accordingly, Plaintiff has presented sufficient evidence that the delay in her transfer constituted an adverse employment action.
Defendant also contends that Plaintiff has not provided sufficient evidence to support an inference of discriminatory intent. Specifically, Defendant asserts that any statement by Ms. Bermingham that Plaintiff's transfer was delayed because of her accent is not direct evidence of discrimination because an employer can legitimately consider an employee's oral communication skills in evaluating his or her qualifications. But in this case, at the time Ms. Bermingham made the alleged statement concerning Plaintiff's accent, Plaintiff had already been found qualified for the transfer at issue, including with respect to her "communication skills."67 Moreover, at the time, Plaintiff had worked at Twining Village for over five years without documented concerns about her ability to communicate, and Defendant has offered no explanation for why her work on an earlier shift would require different oral communication skills than her work on a later shift. Finally, the fact that Ms. Bermingham immediately processed the transfer after her comments were reported to the executive director further supports the inference that her delay was not motivated by legitimate concerns regarding Plaintiff's qualifications.
Moreover, even without direct evidence of discriminatory intent, Plaintiff has provided sufficient indirect evidence to sustain an inference of discrimination based on Plaintiff's race and national origin. Plaintiff was eligible for the transfer, but has adduced evidence that the transfer was delayed for three months while nurses of other races were being transferred to first shift in her place. She also identified a Caucasian colleague, Lisa, who was transferred to another shift without the delay that attended Plaintiff's transfer. Moreover, Ms. Bermingham's refusal to address complaints concerning derogatory comments made by other nurses could further support an inference of discriminatory intent.
Accordingly, a reasonable fact finder could conclude that Defendant's delay in transferring Plaintiff to first shift was an adverse employment action that was motivated by discrimination based on race and national origin. Defendant's motion will be denied with respect to this claim.
2. Discriminatory Disciplinary Actions and Termination
With respect to Plaintiff's discrimination claims based on her termination and the preceding disciplinary actions, Defendant contends that Plaintiff has failed to establish that Defendant's proffered justifications are pretextual. The Court addresses each of the disciplinary actions at issue in turn.
a. May 2015 Disciplinary Actions
Construing the evidence in the light most favorable to Plaintiff, a fact finder could conclude that the May 6, 2015 investigatory suspension and May 18, 2015 written warning against Plaintiff both *655arose from an incident in which a resident complained that a nurse or clinical nurse assistant, who was African American, wore a wig, and had glasses, was abusive in repositioning the resident in his chair.68
Defendant asserts that the resulting disciplinary actions cannot be pretextual because Defendant is obligated by law and its own written policies to investigate and address all allegations of abuse made by a resident. However, Plaintiff contends that regardless of Defendant's duty to investigate, Ms. Bermingham unjustifiably chose to discipline Plaintiff rather than investigate other nurses and aides who were not of recent African origin, and more accurately met the resident's description. Plaintiff's testimony that she was mistakenly identified, in conjunction with evidence of Ms. Bermingham's earlier statements concerning Plaintiff's accent and her refusal to address derogatory comments made against Plaintiff in the workplace, may support a claim of national origin discrimination based on Ms. Bermingham's decision to investigate Plaintiff rather than other nurses who were not of recent African origin. However, the evidence shows that the resident identified the nurse's race, and therefore Plaintiff cannot establish that race discrimination motivated Defendant's investigation.
Accordingly, at trial, Plaintiff will be permitted to assert a claim of national origin discrimination, but not race discrimination, based on the May 2015 disciplinary actions against her.
b. August 2015 Disciplinary Action
Plaintiff was disciplinarily suspended in August 2015 based on Ms. Leitenberger's allegations that Plaintiff yelled loudly across the nursing station, and acted disrespectfully towards patients and their visiting families. During her deposition in this case, Plaintiff testified that the allegations are false, and that on August 17, 2015, after Plaintiff had asked Ms. Leitenberger to relieve her for a break, Ms. Leitenberger abruptly approached Plaintiff while she was administering medication to a resident and demanded that she take a break and hand over her key to her medication kiosk immediately.69 When Plaintiff asked Ms. Leitenberger to wait until she had completed her necessary tasks, Ms. Leitenberger became angry and left the scene.70
Plaintiff's testimony is sufficient to create a genuine dispute of fact over the credibility of the assertions underlying the August 2015 disciplinary action. A reasonable fact finder could choose to credit Plaintiff's version of the events on August 17, 2015 over the account provided in the disciplinary report and conclude that Defendant's allegations were pretextual. Accordingly, Plaintiff will be permitted to proceed with her race and national origin discrimination claims based on her August 2015 disciplinary suspension.
c. September 2015 Termination
Defendant asserts that Plaintiff's termination was based on Plaintiff's past disciplinary actions and triggered by a complaint from a resident's daughter alleging that Plaintiff was unable to identify the resident's medication. In response, Plaintiff testified during her deposition that she correctly identified the medication to the resident, and that the allegations against her are implausible because even if she was not familiar with the resident's medication, she could easily look up the medication on the computer or on her phone.71
*656No written statements or testimony from the family member have been produced, and Ms. Leitenberger has given conflicting accounts of the manner in which she received the family member's complaint.72 In light of the conflicting testimony of Ms. Leitenberger and Plaintiff, there is a genuine dispute of material fact concerning this incident. Moreover, Ms. Leitenberger testified that the only other employee terminated during her tenure was provided with a performance improvement plan and a final warning termination, while Plaintiff was not provided with the same administrative steps.73 This, in conjunction with Plaintiff's extensive history of satisfactory performance reviews and evidence of Ms. Leitenberger's past hostility toward Plaintiff, would allow a reasonable fact finder to conclude that Defendant's grounds for terminating Plaintiff were pretextual.74
B. Retaliation
To establish a prima facie case of retaliation under the McDonnell Douglas framework, Plaintiff must bring forth evidence that (1) she engaged in a protected employee activity; (2) Defendant took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action.75 Activities protected from retaliation include the initiation of formal EEOC proceedings as well as "informal protests of discriminatory employment practices, including making complaints to management."76 For an informal employee complaint to constitute a protected activity, "it must be possible to discern from the context of the statement that the employee opposes an unlawful employment practice."77 If Plaintiff can establish a prima facie case of retaliation, the burden shifts to Defendant to articulate a non-retaliatory reason for the adverse employment action, which Plaintiff can then rebut with evidence of pretext.78
Defendant contends that Plaintiff has failed to establish that she engaged in any protected activity. Plaintiff has testified that she (1) complained to Cindy Woodward regarding the delay in her transfer and informed her of Ms. Bermingham's purported reasons for the delay;79 (2) complained to Ms. Bermingham and Ms. Bowen concerning derogatory comments made by Ms. Salas;80 and (3) complained to Ms. Leitenberger and Ms. Bowen *657concerning Ms. Leitenberger's refusal to relieve Plaintiff for her breaks.81
A reasonable fact finder could conclude that these complaints to management, in context, were discernibly directed to discriminatory conduct. First, Plaintiff's repetition of Ms. Bermingham's and Ms. Salas's statements concerning Plaintiff's accent and food would lead a reasonable person to discern that Plaintiff was alleging discrimination on the basis of national origin. Second, Plaintiff testified that in complaining about Ms. Leitenberger's failure to relieve her, she specifically pointed to Ms. Leitenberger's willingness to relieve other nurses.82 Plaintiff also testified that to her knowledge, she was the "only black full-time nurse there,"83 from which a reasonable fact finder could conclude from this testimony that Plaintiff was making a discernible complaint of race discrimination.84
Defendant also contends that even if Plaintiff could establish a prima facie case of retaliation, Plaintiff has failed to show that Defendant's proffered reasons for disciplining and terminating her were pretextual. This argument fails for the same reasons discussed above with respect to Plaintiff's discrimination claims. Specifically, Plaintiff provides alternative accounts of each of the incidents giving rise to the disciplinary actions that, together with her history of satisfactory performance, and the proximity in time between her protected activities and the disciplinary actions in question, are sufficient to raise genuine disputes of material fact as to pretext.
C. Hostile Work Environment
To prove a hostile work environment claim under Title VII, § 1981, or the PHRA, Plaintiff must establish that (1) she suffered intentional discrimination; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would have affected a reasonable person in the same position; and (5) there is a basis for employer liability.85 In determining whether the conduct at issue is sufficiently severe or pervasive, a court considers "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."86
Here, Plaintiff offers evidence of the following alleged conduct: (1) employees at Diakon, including Ms. Salas, who later became director of nursing, commented that Africans came to America to take the money and jobs of others, and specifically made such comments to Plaintiff when she took on a double shift or stayed past the end of her shift;87 (2) Ms. Salas made derogatory comments about *658Plaintiff's food, and others asked derogatory questions about life in Africa (e.g ., whether Africans lived in trees and whether they wore shoes);88 (3) Ms. Bermingham intentionally delayed Plaintiff's transfer to first shift because of her accent;89 (4) Plaintiff was repeatedly disciplined following her transfer to first shift;90 (5) Plaintiff's unit manager, Ms. Leitenberger, whose role was to relieve the nurses under her supervision on first shift, refused to relieve Plaintiff, forcing her to work eight hour shifts without a break;91 (6) on one occasion, when Plaintiff asked Ms. Leitenberger to relieve her, Ms. Leitenberger harshly ordered Plaintiff to take a break immediately, and disciplined her when she asked for additional time to complete her task.92
Defendant argues that these events are insufficient to establish the third prong of plaintiff's prima facie case. The Court disagrees. First, contrary to Defendant's contention, discriminatory conduct need not be both severe and pervasive to form the basis of a hostile work environment claim. Under the Third Circuit's holding in Castleberry v. STI Group , the "severe or pervasive" element is disjunctive.93 Second, the alleged derogatory comments made against Plaintiff, when coupled with the delay in her transfer and disciplinary actions against her, could lead a reasonable fact finder to conclude that Defendant's conduct was both severe and pervasive enough to alter the conditions of Plaintiff's employment.
Defendant also contends that the disciplinary actions against Plaintiff cannot form the basis for a hostile work environment claim because they were motivated by legitimate reasons. But for the same reasons discussed above with respect to Plaintiff's discrimination and retaliation claims, a reasonable fact finder could conclude that Defendant's stated reasons were not credible.
IV. CONCLUSION
For the reasons discussed above, Defendant's motion will be granted as to Plaintiff's race discrimination claim based on the May 2015 investigatory suspension and written warning against her, and denied in all other respects. An order follows.
42 U.S.C. § 2000e et seq.
43 Pa. Stat. Ann. § 951 et seq.
Stip. Fact ¶ 3.
Stip. Fact ¶ 1; Pl.'s Exh. A (Jajua Dep.) at 9.
Throughout her Complaint, her deposition, and her briefing, Plaintiff refers to her race as "black," and her nationality as "African." Plaintiff does not identify herself as "African American." Out of respect for Plaintiff, the Court will adopt the terms she uses.
Stip. Fact ¶ 1; Pl.'s Exh. H (Bermingham Dep.) at 72.
Stip. Fact ¶ 3.
Pl.'s Exhs. B, C; Stip. Fact. ¶ 4.
Stip. Fact ¶ 5.
Jajua Dep. 40.
Jajua Dep. 47, 149-150.
Jajua Dep. 124-125.
Jajua Dep. 40-42.
Pl.'s Exh. F (Wangole Dep.) at p. 21-24, 35-36; Pl.'s Exh. S (Gboo Dep.) at 19-20, 44-45.
Pl.'s Fact ¶ 55; Wangole Dep. 23-24, 27, 51.
Stip. Fact ¶ 24; Pl.'s Fact ¶ 14; Wangole Dep. at 25, 26.
Stip. Fact ¶ 25-26; Pl.'s Ex. I.
Stip Fact ¶ 26.
Jajua Dep. 38-39.
Jajua Dep. 55, 150-151.
Jajua Dep. 38-39, 136.
Pl.'s Facts 26-27; Jajua Dep. 30-33, 38-39, 127-128, 135; Pl.'s Ex. L (Bowen Dep.) at 33.
Jajua Dep. 30-33, 128; Pl.'s Ex. D (Woodward Dep.) at 20-21.
Stip. Fact ¶ 8; Wangole Dep. 20.
Jajua Dep. 50-52, 61.
Jajua Dep. 51-52; Plaintiff's African colleague, a per diem nurse, observed that Caucasian nurses were regularly relieved to take their breaks, while Plaintiff went without her break. Wangole Dep. 42.
Stip. Fact ¶ 11; Jajua 123-124.
Def.'s Ex. R.
Id. ; Jajua Dep. 82-88; Bermingham Dep. 40.
Pl.'s Fact 37; Jajua Dep. 82-88.
Def.'s Ex. R; Pl.'s Ex. O.
Def.'s Ex. T.
Bermingham Dep. 53-54.
Jajua Dep. 52.
Jajua Dep. 52, 98-99.
Def.'s Exhibit U.
Pl.'s Ex. Q (Wiener Dep.) at 33-36, 62.
Pl.'s Ex. W.
Jajua Dep. 105-109; Exhibit Z.
Pl.'s Exh. X at Rog. No. 7.
Walden v. Saint Gobain Corp. , 323 F.Supp.2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co. , 534 F.2d 566, 573 (3d Cir. 1976) ).
Fed. R. Civ. P. 56(a).
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Id.
Hugh v. Butler Cty. Family YMCA , 418 F.3d 265, 267 (3d Cir. 2005).
Boyle v. Cty. of Allegheny Pa. , 139 F.3d 386, 393 (3d Cir. 1998).
Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
Wisniewski v. Johns-Manville Corp. , 812 F.2d 81, 83 (3d Cir. 1987).
Turgeon v. Marriott Hotel Servs., Inc. , No. 99-4401, 2000 WL 1887532, at *5 (E.D. Pa. Dec. 27, 2000) (citing Pivirotto v. Innovative Sys., Inc. , 191 F.3d 344, 352 n.4 (3d Cir.1999) ).
Anderson v. Wachovia Mortg. Corp. , 621 F.3d 261, 269 (3d Cir. 2010) (quoting Walden v. Georgia-Pacific Corp. , 126 F.3d 506, 512 (3d Cir. 1997) ); Scott v. Genesis Healthcare, Inc. , No. 15-0916, 2016 WL 4430650, at *8 (E.D. Pa. Aug. 22, 2016)
Anderson , 621 F.3d at 269 (quoting Walden , 126 F.3d at 513, 515-516 ) (internal quotation marks omitted) ); Scott, Inc. , 2016 WL 4430650, at *8 (internal citations omitted).
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Sarullo v. U.S. Postal Serv. , 352 F.3d 789, 797 (3d Cir. 2003).
Sarullo, 352 F.3d at 797.
Id.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994).
Storey v. Burns Int'l Sec. Services, 390 F.3d 760, 764 (3d Cir. 2004) (citations omitted).
Glanzman v. Metro. Mgmt. Corp. , 290 F.Supp.2d 571, 582 (E.D. Pa. 2003), aff'd , 391 F.3d 506 (3d Cir. 2004).
Mondzelewski v. Pathmark Stores, Inc. , 162 F.3d 778, 788 (3d. Cir. 1998) ("Assigning an employee to an undesirable schedule can be more than a 'trivial' or minor change in the employee's working conditions."); see also Clemena v. Philadelphia Coll. of Osteopathic Med. , No. 17-428, 2017 WL 3453338, at *5 (E.D. Pa. Aug. 11, 2017) (recognizing denial of transfer claim but dismissing for failure to allege elements with sufficient specificity); Fiocca v. City of Philadelphia , No. 10-1289, 2011 WL 1155880, at *2 (E.D. Pa. Mar. 28, 2011) (recognizing denial of transfer and shift change as adverse action); Salvato v. Smith , No. 13-2112, 2013 WL 3431214, at *8 (E.D. Pa. July 9, 2013) (citing Seldon v. Nat'l R.R. Passenger Corp., 452 F.Supp.2d 604, 609 (E.D. Pa. 2006) ("[F]ailure to transfer an employee to a position to which she was qualified can also constitute an adverse employment action.") ).
See, e.g. , Harley v. Paulson , No. 07-3559, 2008 WL 5189931, at *3 (D.N.J. Dec. 9, 2008) (finding that allegations that an employer delayed promoting the plaintiff until 2006 and refused to adequately accommodate his back injury by permitting a temporary transfer, if taken as true, are sufficient to suggest that he suffered an adverse employment action altering his compensation, terms, conditions, or privileges of employment).
232 F.3d 790 (10th Cir. 2000).
Id. at 797-98.
Id. at 798.
414 F.3d 222 (1st Cir. 2005).
Id. at 231.
Pl.'s Ex. I.
Def.'s Exhs. R, T; Bermingham Dep. 53-54; Jajua Dep. 82-88.
Jajua Dep. 52.
Id. at 52, 98-99.
Jajua Dep. 104-106.
Pl.'s Ex. K (Leitenberger Dep.) at 63-64, 62-63 (testifying that the family called her twice and complained about Plaintiff over the phone); Pl.'s Exh. AA (Leitenberger Unemployment Proceedings Transcript) at 11-12 (testifying that the family member approached Ms. Leitenberger in person, pulled her aside, and asked her to switch assignments for her mother); DeRemer Dep. at 24.
Leitenberger Dep. 38-41.
See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination").
Daniels v. Sch. Dist. of Phila. , 982 F.Supp.2d 462, 482 (E.D. Pa. 2013) (citation omitted), aff'd , 776 F.3d 181 (3d Cir. 2015).
Curay-Cramer v. Ursuline Acad. of Wilmington, Dela. , 450 F.3d 130, 135 (3d Cir. 2006).
Id. (citation omitted).
Daniels v. Sch. Dist. of Philadelphia , 776 F.3d 181, 193 (3d Cir. 2015) ; Dunn v. Mercedes Benz of Ft. Washington, Inc. , No. 10-1662, 2012 WL 424984, at *4 (E.D. Pa. Feb. 10, 2012).
Jajua Dep. 30-33, 38-39, 127-128, 135.
Id. at 40-42, 46-47.
Jajua Dep. at 51-52, 122-123, 143.
Jajua Dep. at 122-123.
Id.
Although Defendant disputes Plaintiff's assertion that there were no other black full time nurses at Diakon, a reasonable fact finder could reach the same conclusion so long as Plaintiff was reasonably perceived to be one of few black nurses whom Ms. Leitenberger was responsible for relieving. Moreover, Defendant has not pointed specifically to other black full-time nurses whom Ms. Leitenberger was responsible for relieving, but instead points generally to other black and African employees at Diakon. Def's Resp. to Sur-Reply at 4 n.2.
Dykes v. Marco Grp., Inc. , 222 F.Supp.3d 418 (E.D. Pa. 2016).
Id. at 430 (citation omitted).
Jajua Dep. 40-41, 45, 47; Pl.'s Exh. S (Gboo Dep.) at 12-13, 18-19, 28-29, 54.
Jajua Dep. at 40, 45; 149-50; Wangole Dep. at 20-25, 27-28, 34-36, 51-52; Gboo Dep. at 42-45.
Jajua Dep. 38-39, 136.
Def.'s Exhs. R, T, U, V.
Jajua Dep. 50-52, 60-61; Wangole Dep. at 42.
Jajua Dep. 52, 98-101.
Castleberry v. STI Grp. , 863 F.3d 259, 265 (3d Cir. 2017). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7247171/ | Rufe, J.
Plaintiff Stellita Martin-McFarlane, a registered nurse, filed suit after she was assaulted by a hospitalized prisoner during his attempt to escape from custody. Defendants, the City of Philadelphia, Correctional Officer ("C.O.") Christopher Cox, C.O. Thomas Doman, Albert Einstein Medical Center ("AEMC"), Albert Einstein Healthcare Network ("AEHN"), Albert Einstein Medical Associates, Inc. ("AEMA"),1 and the Department of Protective Services ("DPS"),2 have moved to dismiss the complaint for failure to state a claim. For reasons that follow, the motions will be granted in part and denied in part.
I. BACKGROUND
The complaint alleges the following facts, which are assumed to be true for purposes of the motions to dismiss. On January 11, 2015, prisoner Justin Mackie was transported to AEMC for a routine medical procedure.3 Mackie had previously been arrested on multiple charges, including, among others, murder, attempted *665murder, aggravated assault, robbery, and resisting arrest.4 At the time he was brought to AEMC, he was being held without bail "because he was such a danger to the community."5
Plaintiff alleges that Mackie should have been treated as a "special security inmate" pursuant to Philadelphia Prisons Policies and Procedures, Policy Number 3.A. 12 ("the policy").6 This policy requires that, when a prisoner is designated as a "special security inmate" and needs to be transported to an outside hospital, the escorting officers will be notified of the prisoner's high escape risk or high violence risk.7 In addition, the policy requires correctional officers to notify the hospital's chief of security of the prisoner's arrival.8 Notably, the policy states that "mechanical restraints should never be removed unless directed to do so for medical treatment."9
As a registered nurse working at AEMC, Plaintiff was assigned to tend to Mackie's medical care.10 Plaintiff alleges that sometime during Mackie's treatment on January 11, 2015, C.O. Cox left the hospital room, leaving C.O. Doman alone in the room with Mackie.11 C.O. Doman then removed Mackie's restraints.12 "Mackie seized upon the opportunity," overpowered C.O. Doman, and began to escape by running down the hallway.13 Plaintiff saw Mackie run past her, yelled for help, and ran towards the nurses' station to call security.14 As she ran, however, Mackie intercepted Plaintiff "and brutally assaulted" her.15 Plaintiff suffered "a concussion[,] back pain, neck pain, bruising, and post-traumatic stress disorder" from the assault.16
On January 10, 2017, Plaintiff initiated this action against Defendants. She alleges that Defendants the City of Philadelphia, C.O. Cox, and C.O. Doman violated her constitutional rights under the First, Fourth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. In particular, she asserts that she was deprived of her "right to be free from unreasonable searches and seizures, excessive force, false arrest, false imprisonment, verbal abuse, to be secure in one's person and property, and to due process and equal protection of the law."17 She also raises state law claims of "assault and battery, false imprisonment, intentional infliction of emotional distress, trespass, interference with state constitutional rights, negligence, gross negligence, and negligent hiring, training, retention, and supervision" against all Defendants.18
II. LEGAL STANDARD
Dismissal for failure to state a claim is appropriate if the complaint fails to allege facts sufficient to establish a plausible entitlement to relief.19 In evaluating Defendants'
*666motions, the Court "take[s] as true all the factual allegations of the [complaint] and the reasonable inferences that can be drawn from them," but "disregard[s] legal conclusions and recitals of the elements of a cause of action, supported by mere conclusory statements."20 Instead, to prevent dismissal, a complaint must "set out sufficient factual matter to show that the claim is facially plausible."21 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."22
III. ANALYSIS
Plaintiff raises several claims against the City of Philadelphia, C.O. Cox, and C.O. Doman, including § 1983 claims and state law claims. She also alleges numerous state law claims against the hospital entities, AEMC, AEHN, AEMA, as well as DPS. The Court will first address the § 1983 claims against the City, Cox, and Doman, and then will analyze the state law claims against AEMC, AEHN, AEMA, and DPS.
A. Section 1983 Claims and the City of Philadelphia, C.O. Cox, and C.O. Doman
Plaintiff asserts two types of Fourteenth Amendment due process claims under § 1983 : a state-created danger claim against C.O. Cox and C.O. Doman, and a Monell claim23 against the City of Philadelphia. In addition, Plaintiff alleges that her First Amendment rights were violated. She also alleges that her Fourth Amendment right to be "secure in ones' person and property" and to be free from unreasonable searches, seizures, and excessive force was violated.24
1. State-Created Danger Claim Against C.O. Cox and C.O. Doman
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States.25 Plaintiff alleges that her substantive due process rights under the Fourteenth Amendment were violated when C.O. Cox and C.O. Doman failed to protect her from Mackie's assault. In particular, she alleges Defendants' conduct afforded Mackie the opportunity to attempt an escape from custody and assault her.
"Generally, the Due Process Clause does not impose an affirmative duty upon the state to protect citizens from the acts of private individuals."26 The state-created *667danger theory operates as an exception to this general rule and requires plaintiffs to meet a four-part test:
(1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.27
Defendants contend that the complaint fails to satisfy the second and fourth elements of this test-that the state actor's behavior "shocks the conscience," and that the defendants' affirmative conduct rendered Plaintiff more vulnerable to danger.
Although "[m]ere negligence is not enough to shock the conscience,"28 acts motivated by harmful intent are likely to rise to the level of conscience-shocking behavior.29 Conduct that falls between these two extremes requires courts to make "closer calls" based on the circumstances of each case.30 Here, Plaintiff alleges that C.O. Cox and C.O. Doman left Mackie, a man charged with murder, attempted murder, aggravated assault, robbery, and resisting arrest, and who was denied bail, unrestrained in a public hospital. C.O. Cox's decision to exit the hospital room and leave Mackie attended with only one correctional officer, and C.O. Doman's decision to remove Mackie's restraints, may "shock the conscience" given the violent nature of the crimes for which Mackie was in custody. Taken as true and construed liberally at this early stage in the litigation, these facts about C.O. Cox and C.O. Doman's conduct in failing to secure a potentially violent prisoner may rise significantly above mere negligence to a level that shocks the conscience.
The fourth element requires state officials to engage in affirmative conduct that renders the plaintiff more vulnerable to danger.31 Plaintiff alleges that the C.O. Cox left the hospital room when he was supposed to be monitoring Mackie and that C.O. Doman removed the restraints securing Mackie to the hospital bed, allowing Mackie to attempt an escape. At this early stage in the litigation, these allegations sufficiently describe affirmative acts that endangered Plaintiff, who was directly engaged in caring for a potentially violent prisoner.
Defendants C.O. Cox and C.O. Doman assert that they are entitled to qualified immunity from Plaintiff's state-created danger claim. "Qualified immunity shields officials from liability when their conduct does not violate 'clearly established' constitutional rights of which a 'reasonable person' would have been aware at the time the incident occurred."32 "Qualified immunity balances two important interests-the *668need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."33
Because qualified immunity results in "immunity from suit rather than a mere defense to liability," determining whether officials are entitled to qualified immunity should be determined as early as possible.34 At the pleading stage, "qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint."35 "The burden of establishing qualified immunity falls to the official claiming it as a defense."36
Establishing qualified immunity involves a two-step inquiry. First, a court must answer "this threshold question: Taken in the light most favorable to the party asserting the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?"37 "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established."38
Accepting all facts in the complaint as true, Plaintiff alleges that her substantive due process rights under the Fourteenth Amendment were violated when C.O. Cox and C.O. Doman brought a prisoner known to be dangerous to a public hospital, maintained only one guard on him instead of two, and removed his restraints, thus creating a dangerous situation for those in the immediate vicinity such as Plaintiff. The next, sequential step is to ask whether this right was clearly established at the time of the incident.39 "The relevant, dispositive inquiry in determining whether a [federal] right is clearly established is whether it would [have] be[en] clear to a reasonable officer that his conduct was unlawful in the situation he confronted."40 Although this is a question of law, the facts inform the Court in making this determination. As the United States Supreme Court has explained, "[t]his inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition."41 In fact, Defendants assert in their motion that "qualified immunity applies unless the particular conduct of an official is clearly unconstitutional in light of the specific context of the case."42 More facts are needed here to determine whether the correctional officers' conduct violated a clearly established constitutional right of which reasonable officials would have been aware at the time the incident occurred.43 For example, discovery as to any *669reason, or lack thereof, for leaving the hospital room or removing Mackie's restraints will inform this determination. Although the Court is aware that it is important to resolve qualified immunity questions at the earliest possible stages of litigation, doing so here would be "in tension with the reality that factual disputes often need to be resolved before determining whether [a] defendant's conduct violated a clearly established right."44 A decision as to qualified immunity now, therefore, is premature.45
2. Monell Claim Against the City of Philadelphia
In a Monell claim, a municipality may incur liability under § 1983 only when its policy or custom causes a particular constitutional violation.46 When "a municipality's failure to train its employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants," such failure to train may itself constitute a policy or custom that is actionable under § 1983.47 However, "a mere showing that a particular officer violated a policy, or that better training would have enabled the officer to avoid the injury-causing conduct, is insufficient to establish a municipality's liability under § 1983 for failure to train."48 Plaintiff alleges that the City had a policy of designating prisoners as "special security inmates" and requiring that medical restraints "should never be removed unless directed to do so for medical treatment."49 Plaintiff also alleges that the City failed to adequately train C.O. Cox and C.O. Doman in accordance with this policy. Accordingly, the policy shows the need for security precautions when a prisoner is hospitalized, and if C.O. Cox and C.O. Doman were not trained in procedures to avoid escape attempts by dangerous prisoners, the City may be liable for the harm Plaintiff suffered. At this preliminary stage in the litigation, Plaintiff has alleged a Monell failure to train claim against the City.
3. Other Section 1983 Claims Against the City of Philadelphia, C.O. Cox, and C.O. Doman
In addition to Plaintiff's § 1983 claim for violation of her substantive due process rights under the Fourteenth Amendment, she also raises violations of her constitutional rights under the First and Fourth Amendments.
a. Plaintiff Fails to State a § 1983 Claim for Violation of Her First Amendment Rights
Plaintiff raises a § 1983 claim alleging that Defendants violated her rights under the First Amendment.50 The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."51 Violations of the First Amendment *670in the § 1983 context often involve allegations of retaliation against the plaintiff for constitutionally protected free speech or free exercise of religion.52 Although the complaint states that Plaintiff's First Amendment rights were violated, there are no facts suggesting any retaliation on the part of Defendants against the Plaintiff, nor are there any facts indicating Plaintiff engaged in constitutionally protected speech during the incident. As it does not appear that amendment of the complaint could cure these defects, this claim will be dismissed with prejudice.
b. Plaintiff Fails to State a § 1983 Claim for Violation of Her Fourth Amendment Rights
Plaintiff asserts a § 1983 claim alleging Defendants violated her Fourth Amendment rights to "be secure in ones' person and property" and to be free from unreasonable searches, seizures, and excessive force.53 Although the Fourth Amendment recognizes "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,"54 Plaintiff alleges no facts suggesting that Defendants searched, seized, or exerted any type of force on her in any way. In fact, she does not suggest that C.O. Cox and C.O. Doman touched her at all. Amendment of the complaint will not cure this defect, and the § 1983 claim for violations of Plaintiff's Fourth Amendment rights will be dismissed with prejudice.
B. State Law Claims Against All Defendants
Plaintiff alleges the following state law claims: "assault and battery, false imprisonment, intentional infliction of emotional distress, trespass, interference with state constitutional rights, negligence, gross negligence, and negligent hiring, training, retention, and supervision."55
1. State Law Claims Against the City of Philadelphia, C.O. Cox, and C.O. Doman
a. Assault and Battery
Plaintiff alleges that the City, C.O. Cox, and C.O. Doman should be liable for assault and battery.56 "Under Pennsylvania law, battery is defined as an intentional 'harmful or offensive contact with the person of another.' "57 "The fact that contact occurs without consent is sufficient to establish that it is offensive, and no intent to harm the plaintiff need be established."58 An assault can be described as "an act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery."59 In other words, battery is an offensive touching without consent, and assault is an action *671that makes a victim believe that a battery is about to occur.
The complaint is devoid of facts showing that Defendants touched Plaintiff or intended to put Plaintiff in reasonable apprehension of an immediate battery. Therefore, the assault and battery claims against the City, C.O. Cox, and C.O. Doman will be dismissed with prejudice.
b. False Imprisonment
Plaintiff asserts a claim of false imprisonment against the City, C.O. Cox, and C.O. Doman. To state a claim for false imprisonment under Pennsylvania law, a plaintiff must plausibly allege that: (1) she was detained; and (2) the detention was unlawful.60 Construed in the light most favorable to Plaintiff, the complaint fails to state that Plaintiff was detained, or how Defendants may have been involved in any detention. This claim will be dismissed with prejudice.
c. Intentional Infliction of Emotional Distress
Plaintiff raises an intentional infliction of emotional distress claim against the City, C.O. Cox, and C.O. Doman.61 Pennsylvania courts recognize a tort for intentional infliction of emotional distress.62 To recover for intentional infliction of emotional distress, a plaintiff must show: (1) extreme and outrageous conduct; (2) that was either intentional or reckless; (3) which caused emotional distress; and (4) that the emotional distress must be severe.63 At the pleading stage, the court is "to decide as an initial matter whether the conduct at issue can reasonably be regarded as sufficiently extreme to constitute 'outrageousness' as a matter of law."64 As a matter of law, outrageousness occurs only when "the case is one in which the recitation of the facts to an average member of the community would arouse resentment against the actor, and lead him to exclaim, 'outrageous.' "65 Courts have limited outrageous conduct to that which goes " 'beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.' "66
Here, Plaintiff alleges that the City failed to properly train its employees in procedures regarding safe transportation of prisoners, that C.O. Cox left the hospital room where he was supposed to be monitoring Mackie, and that C.O. Doman removed Mackie's restraints.67 In sum, the complaint alleges that Defendants let Mackie, a man charged with murder, attempted murder, aggravated assault, robbery, and resisting arrest, unrestrained in a public hospital. At this preliminary stage in the litigation, these facts may suggest Defendants' conduct was extreme and outrageous. Further, construing all inferences in the light most favorable to Plaintiff, the complaint does not suggest that Defendants acted intentionally; however, it may suggest that Defendants' conduct was reckless. The complaint also plausibly *672states that Defendants' conduct may have caused Plaintiff's emotional distress, and that her distress was severe. Therefore, Plaintiff has stated an intentional infliction of emotional distress claim.
d. Trespass
Plaintiff alleges that the City, C.O. Cox, and C.O. Doman should be liable for trespass.68 Under Pennsylvania law, trespass "is defined as an unprivileged, intentional intrusion upon land in possession of another."69 It is unclear how this state tort claim is at all related to the facts of this case. If instead, Plaintiff refers to trespass in the archaic sense of "trespass on the case," the "precursor to ... modern-day tort claims," then it does not stand as an independent cause of action.70 Thus, the trespass claim will be dismissed with prejudice.
e. Interference with State Constitutional Rights
Plaintiff raises a claim of "interference with state constitutional rights" against the City, C.O. Cox, and C.O. Doman.71 However, Plaintiff does not identify any specific state constitutional rights Defendants allegedly violated. Moreover, Pennsylvania courts have not recognized any private right of action for money damages in violation of the Pennsylvania Constitution.72 This claim will be dismissed with prejudice.
f. Negligence Claims
Plaintiff asserts negligence and gross negligence claims against C.O. Cox and C.O. Doman, as well as a negligent hiring, training, retention, and supervision claim against the City.73 Under Pennsylvania law, "[a] successful negligence claim requires a plaintiff to allege facts which establish the breach of a legally recognized duty of the defendant that is causally connected to the actual damages suffered by the plaintiff."74 Gross negligence requires something more than ordinary negligence, but does not rise to the level of intentional indifference to the consequences of one's acts.75 A negligent hiring, training, retention, and supervision claim refers to an employer's breach of its duty to properly train its employees.
Here, Plaintiff alleges plausible facts showing that C.O. Cox and C.O. Doman had a duty to monitor Mackie at the hospital to ensure that he did not cause harm, and breached this duty by failing to monitor Mackie and removing his restraints. By failing to do so, Mackie attempted an escape and assaulted Plaintiff. Therefore, the complaint plausibly states a negligence and gross negligence claim against C.O. Cox and C.O. Doman. The complaint also plausibly states a negligent hiring, training, retention, and supervision claim against the City by alleging facts suggesting that the City failed to properly train C.O. Cox and C.O. Doman on its policy of safely transporting prisoners outside the prison.
Defendants argue that they are entitled to governmental immunity on the negligence claims. Pennsylvania law has long immunized municipal employees from *673civil tort liability unless they act with "willful misconduct."76 Furthermore, Pennsylvania law provides that, with limited statutory exceptions, no municipality or local agency "shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person."77 The limited statutory exceptions include, for example, negligence with respect to vehicle liability.78 None of the statutory exceptions apply to this case. Accordingly, Plaintiff's negligence and gross negligence claims against C.O. Cox and C.O. Doman, and the negligent hiring, training, supervision, and retention claim against the City, will be dismissed on the grounds of governmental immunity.
2. State Law Claims Against Albert Einstein Medical Center, Albert Einstein Healthcare Network, Albert Einstein Medical Associates, Inc., and the Department of Protective Services
Last, Plaintiff asserts the same state law claims mentioned above against her employers, AEMC, AEHN, and AEMA, as well as DPS.79 Defendants argue that the state law claims should be dismissed because Plaintiff's exclusive remedy is a worker's compensation claim. Therefore, according to Defendants, Plaintiff cannot assert state law claims for her work-related injuries.
The Pennsylvania Workers' Compensation Act ("WCA") is the exclusive remedy for work-related injuries suffered by an employee80 and provides employers with immunity from suits for injuries that flow from work-related incidences that are caused by a third party.81 Plaintiff argues that the "personal animus" or "third party attack" exception to WCA preemption applies.82 To fit within this exception, the third party's attack must have been motivated by his animosity against the injured employee and not directed against the injured person because of the employment.83 If the third party would have attacked a different person in the same position as the injured employee, the attack falls outside the exception.84
Even accepting all facts in the complaint as true and drawing all reasonable inferences in Plaintiff's favor, Plaintiff has failed to allege any facts that suggest Mackie assaulted her for personal reasons unrelated to her employment. To the contrary, the facts suggest that Mackie assaulted *674Plaintiff because she was running to call security and impeding his escape from custody during the course of her employment as a nurse. It appears that, if any other medical professionals were in the same position as Plaintiff, Mackie would have assaulted them in the same manner. Accordingly, the personal animus or third party attack exception does not apply here. Plaintiff's state law claims against her employers AEMC, AEHN, and AEMA are preempted by the WCA and will be dismissed.85
It is unclear how the DPS is at all related to the claims asserted in the complaint. In fact, the complaint fails to mention any specific claims against DPS. Instead, DPS is mentioned only in the sense that it is a corporation "located at 1319 Tabor Road, Philadelphia, PA 19141" and that DPS may have "owned leased, rented, maintained, controlled, possessed, managed, maintained, and/or occupied the premises located at 5501 Old York Road," which appears to be the same address at AEMC.86 These facts, without more, do not state any claim against DPS. Consequently, DPS will be dismissed as a Defendant in this case.
C. Amendment of the Complaint
Plaintiff will not be granted leave to amend the complaint. Federal Rule of Civil Procedure 15(a) provides that "leave [to amend] shall be freely given when justice so requires."87 Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.88 "[A] district court need not grant leave to amend if 'the complaint, as amended, would fail to state a claim upon which relief could be granted.' "89 After reviewing the pleadings, it is clear that amendment of the complaint as to the dismissed claims would be futile because these claims either fail as a matter of law or have no factual basis, and amendment of the complaint will not cure the defects.90
IV. CONCLUSION
For the reasons set forth above, Defendants' motions to dismiss will be granted in part and denied in part. An appropriate order follows.
AEMC, AEHN, and AEMA are also referred to as the "hospital entities."
"John Doe Numbers 1 through 10" are also named as Defendants in this case. It appears from the context of the complaint that DPS may be related to the hospital entities.
Compl. at ¶ 32.
Id. at ¶ 28.
Id. at ¶ 29.
Id. at ¶¶ 33-34.
Id. at ¶ 34.
Id. at ¶ 36.
Id. at ¶ 38 (citing Ex. A at 7).
Id. at ¶¶ 50-51.
Id. at ¶¶ 46-47.
Id. at ¶ 48.
Id. at ¶ 49.
Id. at ¶¶ 50-54.
Id. at ¶ 55.
Id. at ¶ 57.
Id. at ¶ 60.
Id. at ¶¶ 72-74.
See Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
Santiago v. Warminster Twp. , 629 F.3d 121, 128 (3d Cir. 2010) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (internal quotation marks omitted).
Fowler , 578 F.3d at 210 (citation and internal quotation marks omitted).
Santiago , 629 F.3d at 128 (citations and internal quotation marks omitted).
See Monell v. Dep't of Soc. Servs. of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Additionally, Plaintiff asserts a right to be free from "false arrest, false imprisonment, [and] verbal abuse" under the Fourth Amendment. Compl. at ¶ 60. There are no facts suggesting a false arrest or verbal abuse on the part of Defendants, therefore, any asserted claim for false arrest or verbal abuse will be dismissed with prejudice. Plaintiff's claim for false imprisonment under Pennsylvania law, not the Fourth Amendment, will be discussed below.
Nicini v. Morra , 212 F.3d 798, 806 (3d Cir. 2000).
Sanford v. Stiles , 456 F.3d 298, 303-04 (3d Cir. 2006) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 198-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ).
Morrow v. Balaski , 719 F.3d 160, 177 (3d Cir. 2013) (citation omitted).
Sanford , 456 F.3d at 311.
Kaucher v. Cnty. of Bucks , 455 F.3d 418, 426 (3d Cir. 2006).
Id. (quoting Cnty. of Sacramento v. Lewis , 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (internal quotation marks omitted)).
Morrow , 719 F.3d at 177.
O'Donnell v. Knott , No. 16-2040, 2017 WL 4467508, at *4 (E.D. Pa. Oct. 6, 2017) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Id. (quoting Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ) (internal quotation marks and emphasis omitted).
Thomas v. Indep. Twp. , 463 F.3d 285, 291 (3d Cir. 2006) (citing Leveto v. Lapina , 258 F.3d 156, 161 (3d Cir. 2001) ).
Burns v. Pennsylvania Dep't of Corr. , 642 F.3d 163, 176 (3d Cir. 2011).
Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Id.
Id.
Id. at 202.
Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal quotation marks and citations omitted).
Mot. to Dismiss (Doc. No. 7) at 8 (internal quotation marks and citation omitted).
See Pearson , 555 U.S. at 239, 129 S.Ct. 808 (noting that the qualified immunity "two-step inquiry is an uncomfortable exercise" where the determination "may depend on a kaleidoscope of facts not yet fully developed").
Curley v. Klem , 298 F.3d 271, 277-78 (3d Cir. 2002).
Id. at 278 (noting that a decision on qualified immunity is "premature when there are unresolved disputes of historical facts relevant to the immunity analysis.").
Kentucky v. Graham , 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citing Monell , 436 U.S. at 690 n.55, 98 S.Ct. 2018 ).
City of Canton, Ohio v. Harris , 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (internal quotation marks omitted).
Marable v. W. Pottsgrove Twp. , 176 Fed.Appx. 275, 283 (3d Cir. 2006) (citations omitted).
Compl. at ¶¶ 34, 38.
Id. at ¶ 60.
U.S. Const., Amend. I.
See, e.g. , Mitchell v. Horn , 318 F.3d 523, 530 (3d Cir. 2003) (holding that a state prisoner stated a First Amendment retaliation claim under § 1983 by alleging that a corrections officer planted contraband near his locker in retaliation for complaints he filed against the officer).
Compl. at ¶ 60.
U.S. Const., Amend. IV.
Compl. at ¶¶ 72, 74.
Id. at ¶ 72.
Nace v. Pennridge Sch. Dist. , 185 F.Supp.3d 564, 584 (E.D. Pa. 2016) (quoting C.C.H. v. Philadelphia Phillies, Inc. , 596 Pa. 23, 940 A.2d 336, 340 n.4 (2008) ).
Id. (quoting Cooper ex rel. Cooper v. Lankenau Hosp. , 616 Pa. 550, 51 A.3d 183, 191 (2012) ) (internal quotation marks and brackets omitted).
Regan v. Upper Darby Twp. , 363 Fed.Appx. 917, 921 (3d Cir. 2010) (quoting Cucinotti v. Ortmann , 399 Pa. 26, 159 A.2d 216, 217 (1960) (internal quotation marks and emphasis omitted)).
Gwynn v. City of Philadelphia , 719 F.3d 295, 304 n.4 (3d Cir. 2013) (citing Renk v. City of Pittsburgh , 537 Pa. 68, 641 A.2d 289, 293 (1994) ).
Compl. at ¶ 72.
See, e.g. , Bartanus v. Lis , 332 Pa.Super. 48, 480 A.2d 1178, 1184 (1984) (citing cases).
Jordan v. City of Philadelphia , 66 F.Supp.2d 638, 642 (E.D. Pa. 1999) (citations omitted).
Smith v. Sch. Dist. of Philadelphia , 112 F.Supp.2d 417, 427 (E.D. Pa. 2000) (citations omitted).
Id. at 428 (internal quotation marks and citation omitted).
Fugarino v. University Servs. , 123 F.Supp.2d 838, 844 (E.D. Pa. 2000) (quoting Clark v. Township of Falls , 890 F.2d 611, 623 (3d Cir. 1989) ).
Compl. at ¶¶ 47, 48, 62.
Id. at ¶ 72.
Boring v. Google, Inc. , 362 Fed.Appx. 273, 280 (3d Cir. 2010) (internal quotation marks and citations omitted).
Black's Law Dictionary (9th ed. 2009) at 1643.
Compl. at ¶ 72.
Mount Airy # 1, LLC v. Pa. Dep't of Revenue , 154 A.3d 268, 280 n.11 (Pa. 2016).
Id.
Simmons v. Simpson House, Inc. , 224 F.Supp.3d 406, 414 (E.D. Pa. 2016) (internal quotation marks and citations omitted).
In re Scheidmantel , 868 A.2d 464, 467 (Pa. Super. Ct. 2005).
See 42 Pa. Const. Stat. Ann. § 8550; see also McNeal v. City of Easton , 143 Pa.Cmwlth. 151, 598 A.2d 638, 642 (1991) (establishing that "a finding of 'willful misconduct' under § 8550 requires a party to have acted with even more than gross negligence or recklessness"); Lancie v. Giles , 132 Pa.Cmwlth. 255, 572 A.2d 827, 830 (1990) (dismissing negligence claims brought against police officers).
See 42 Pa. Const. Stat. Ann. §§ 8541, 8542.
See Lockwood v. City of Pittsburgh , 561 Pa. 515, 751 A.2d 1136, 1139 (2000) (noting that 42 Pa. Const. Stat. Ann. § 8542 permits eight types of negligence suits, such as suits involving vehicle liability).
Compl. at ¶ 74.
See 77 Pa. Stat. § 481(a) ("The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees").
Id. at § 481(b).
Pl.'s Resp. to Mot. to Dismiss (Doc. No. 12) at 5.
Kortyna v. Lafayette College , 47 F.Supp.3d 225, 244 (E.D. Pa. 2014) ; see also Kohler v. McCrory Stores , 532 Pa. 130, 615 A.2d 27, 29-30 (1992).
Kovach v. Turner Dairy Farms, Inc. , 929 F.Supp.2d 477, 496 (W.D. Pa. 2013) (citing Hershey v. Ninety-Five Assoc. , 413 Pa.Super. 158, 604 A.2d 1068, 1072 (1992) ).
Plaintiff also contends that the state law claims against Defendants should not be dismissed "because there are no allegations that Plaintiff worked for the defendant responsible for providing security." Pl.'s Resp. to Mot. to Dismiss (Doc. No. 12) at 4. This argument is unpersuasive. Plaintiff cannot avoid WCA preemption of the claims against her employer merely by arguing that another entity may be responsible for providing security.
Compl. ¶¶ at 13-15.
Fed. R. Civ. P. 15(a).
In re Burlington Securities Litigation , 114 F.3d 1410, 1434 (3d Cir. 1997).
Kundratic v. Thomas , 407 Fed.Appx. 625, 630 (3d Cir. 2011) (quoting Shane v. Fauver , 213 F.3d 113, 115 (3d Cir. 2000) ).
Defendants the City of Philadelphia, C.O. Cox, and C.O. Doman have argued throughout their motion to dismiss that many of Plaintiff's asserted claims are frivolous. Defendants correctly note that Plaintiff raises several claims that have no basis in law or fact. Thus, these claims will be dismissed with prejudice. Plaintiff's novel theories of federal and state law in raising these claims cannot be countenanced here. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3434368/ | Prior to November 3, 1937, appellee Herman operated a freight terminal under the name of Des Moines Motor Freight Terminal which, for convenience, will be referred to as the terminal company. While Herman operated and after he sold the terminal company there were being operated by one Dave Redman, the Redman Freight Lines and the Redman Transfer Company which will be referred to herein as the trucking lines. Appellee Herman sold the terminal company to others who, in turn, sold to Travis. Travis had dealings with the trucking lines with such result that they became indebted to him in a sum in excess of $2,000. During the same time Travis became indebted to the plaintiff and, being pressed, gave to appellant a chattel mortgage on his tangible assets and an assignment of his accounts, among which was the debt of the trucking lines. Travis operating under the name of the terminal company was not able to, or at least did not, keep up his payments to the plaintiff, and to get an extension of time offered to give the two notes in suit. These, it is to be observed, are signed, "REDMAN FREIGHT LINES, REDMAN TRANSFER CO., By Dave Redman." Here arises plaintiff's claim against appellee Herman.
It is alleged in the petition that Herman was either an actual partner with Redman in the trucking lines or had held himself out as an ostensible partner therein; and that plaintiff relied on its belief in this regard and, because thereof, extended the time in which Travis might pay his debt. Travis didn't and couldn't pay. He filed an assignment for the benefit of creditors and a *Page 663
petition in bankruptcy. These proceedings afford the basis of much argument between the parties but it would be a waste of time in the view we take of the case to examine these proceedings.
[1] This cause turns on the question of whether Herman was in fact a partner or whether he held himself out as such in a way that estopped him from now denying that relationship. Notwithstanding the fact that the term "partnership" appears in certain records of the board of railroad commissioners (now Iowa state commerce commission), having to do with applications for transfers of certificates of convenience and necessity, it cannot be seriously contended that Herman was actually a partner in the trucking lines. Appellant argues vigorously that exhibit A-2 establishes a partnership. This is an exhibit filed with the commission in connection with the application for the transfer of certificate No. 301 from the Blue Line Storage Company to the Redman Trucking Company. The exhibit does refer to a partnership between Herman and Redman for the purpose of hauling freight under this certificate, but, when examined, appears to be an agreement only with reference to the certificate. It appears to be an undertaking by Redman to operate the trucking line with an option to Herman to get in if he desired to do so, as is attested by the following from the exhibit:
"It is mutually agreed that Mr. Redman, hereinafter referred to as party of the second part, shall furnish all the equipment necessary to operate under this franchise and pay all overhead and maintenance charges in connection with the operation of this franchise and said party of second part shall receive all revenues derived from the operation of this franchise as long as the said Mr. Redman pays all overhead and maintenance charges of the franchise; it is further agreed that in the event Mr. Herman desires to contribute an equal amount of equipment with Mr. Redman, then and in that event the revenues derived from the operation of this franchise shall be equally divided providing Mr. Herman also pays one-half of the overhead and maintenance charge in connection with the operation of this franchise." *Page 664
There is no proof that Herman took an interest in the trucking under certificate No. 301 except to collect charges for merchandise which went through his terminal. He received no profits nor shared any losses in the business. The instrument in question and the conduct of the parties fail to meet the requirements of an actual partnership. Farmers Merch. Nat. Bk. v. Anderson, 216 Iowa 988, 250 N.W. 214.
[2] Having failed to prove an actual partnership, appellant seeks to hold appellee Herman on the ground that he held himself out as a partner in such a way as to justify appellant in assuming that he was so in fact. It is to be observed that the trucking lines are of that type of business called "nontrading", in which borrowing money and giving negotiable paper is neither a necessity nor ordinary incident. Schumacher v. Sumner Tel. Co.,161 Iowa 326, 142 N.W. 1034, Ann. Cas. 1916A, 201.
[3] Appellant argues as error the exclusion of the testimony of Travis whereby it was sought to show that he told Plummer what the records of the commerce commission purported to show. Plummer is the officer of the appellant who handled the matters under investigation. This quotation from the rejected testimony indicates its character:
"Told Mr. Plummer that the certificates over there were made out in the Redman Freight Lines and Dave Redman and Fred A. Herman co-partners. * * * After I got back from there and found the records were that way I thought that they were partners in this."
It will be noticed that the witness attempted to give his conclusion that the documents on file tended to prove a partnership. It would seem to require no argument to sustain the trial court in its refusal to admit this testimony. Appellant's citations do not support its argument on the point. See Anfenson v. Banks, 180 Iowa 1066, 163 N.W. 608, L.R.A. 1918D, 482; Kinney v. Bank of Plymouth, 213 Iowa 267, 236 N.W. 31. Even if this was not so Plummer in his testimony gave the substance of what Travis sought to tell. He made no examination of the records himself but said he had conversations with a couple of boys he knew at the commerce commission and with Earl Travis. *Page 665
The complaint over the refusal to admit the testimony of Robinson is without merit because there is nothing to show that Plummer heard of the conversation between Robinson and Herman.
Appellant challenges the correctness of the ruling of the court on the motion to direct insofar as it held that appellant had failed to establish a partnership or that Herman had held himself out as a partner or that appellant had relied upon any holding out. Appellant cites Malvern Nat. Bank v. Halliday, 195 Iowa 734, 192 N.W. 843; Veenstra v. Mathews, 194 Iowa 792, 190 N.W. 382; Farmers Merch. Nat. Bk. v. Anderson, supra. We find no support for appellant therein.
[4] Referring again to the fact that if a partnership existed it was a nontrading kind, the trial court rightly denied recovery and directed a verdict against the appellant because of the failure on the part of appellant to use the slightest effort to determine what the nature of Herman's relation to the trucking lines actually was. As we said in Schumacher v. Sumner Tel. Co., supra [161 Iowa 326, at page 333, 142 N.W. 1034, at page 1037, Ann. Cas. 1916A, 201]:
"* * * when it happens that such a concern does desire to borrow or a member or officer proposes to give or tenders a promissory note in its name, it is no hardship upon the lender or creditor to require him to look into the authority of one who proposes to bind others who are not present or consenting."
The principle there announced is amplified in Anfenson v. Banks, supra. This case covers the field under investigation so thoroughly that we are called upon to do more than to direct attention to Plummer's testimony:
"I do not recall when I first became acquainted with Herman. He had a deposit in our bank and was in and out regularly. So far as I know he had a deposit during the year 1933 and conducted a regular course of business with us during all that time. He was in and out of the bank frequently and continued his account after November 3, 1937. I never talked with him about the notes in suit nor mentioned them to him in any way. I never discussed with him his affairs with Redman nor *Page 666
the records at the state commerce commission. I never had any conversation with him at all regarding the operation of any of these truck lines."
Other questions are discussed and citations other than appear herein are made but these have been examined and do not call for special attention. We have referred to appellee Herman as if he were the sole defendant for reasons of convenience but the ruling of the trial court and this opinion dispose of the whole case.
The judgment of the trial court was right and it is affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1782970/ | 163 So. 2d 583 (1964)
Wilma Fern Carter BRELAND, individually and as administratrix of the Estate of her minor son, William Gary Breland, Plaintiff-Appellant,
v.
The AMERICAN INSURANCE COMPANY, Defendant-Appellee.
No. 10147.
Court of Appeal of Louisiana, Second Circuit.
April 1, 1964.
Rehearing Denied April 30, 1964.
Writ Refused June 8, 1964.
Jones, Blackwell, Chambliss & Hobbs, West Monroe, for appellant.
Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellee.
Before GLADNEY, AYRES and BOLIN, JJ.
AYRES, Judge.
By this action plaintiff seeks, in her capacity as administratrix of the estate of her minor son, William Gary Breland, to recover damages for personal injuries sustained by him and, in her individual capacity, to recover hospital and medical expenses incurred for the treatment of her son's injuries, and for property damage to her automobile arising out of a motor vehicle collision of August 29, 1962, occurring at the intersection of the Winnsboro *584 Road and South Ninth Street in the City of Monroe.
Involved were plaintiff's Ford, operated at the time by plaintiff's aforesaid minor son, and an automobile of one Richard Linderman, who was driving the same at the time of the accident. Made defendant is the public liability insurer of the Linderman vehicle.
Both vehicles were proceeding easterly on the Winnsboro Road about 5:30 a. m., with the Breland car in the lead. The accident occurred as Breland began a left-turn movement into South Ninth Street and as Linderman attempted a passing movement to his left. The trial court concluded that both drivers were guilty of negligence, Linderman of negligence constituting a proximate cause of the accident and Breland of contributory negligence.
From a judgment rejecting plaintiff's demands, she has appealed. The defendant has not answered plaintiff's appeal; hence the question of Linderman's negligence is a matter foreclosed and no longer before the court. The sole issue, therefore, concerns the question of Breland's contributory negligence, an issue largely factual in character.
Breland, accompanied by his 12-year-old brother, was driving easterly on the Winns-boro Road at a speed of 25-30 m. p. h., with the intention of making a left turn into South Ninth Street. Immediately on crossing South Eighth Street, Breland looked to his rear and saw the Linderman car approaching at a distance of one-and-a-half to two blocks. At that time, he turned his left-turn signal indicator on. Before reaching the Ninth Street intersection, Breland again made observation to his rear. He then observed the Linderman car at a distance of one-half to three-fourths block behind. Momentarily thereafter, as he approached the intersection, Breland began a slow left turn and, at the same time, took another look and saw Linderman 50-60 feet to the rear beginning a passing movement. Although Breland's car had only partially crossed the center line of the street, he turned his car back to the right, but was nevertheless struck from the rear. The right fender of the Linderman car struck the left side and fender of the Breland Ford. From the force of the impact of the collision, considerable damage was done to the body of the Breland Fordthe gasoline tank, transmission, and driveshaft.
No contention is made that Breland was driving at a speed other than very moderate. Nor can there be any dispute that he timely indicated his intention to make a left turn, as required by LSA-R.S. 32:104(B). Travis Ellard, Linderman's companion, testified that, while he was not paying particular attention, he saw that Breland's left-turn signal was on and operating when Linderman began his passing movement, when Linderman was 50-60 feet to the rear. Linderman, however, made no observation of the signal.
The conclusion is inescapable that Breland, from the observations aforesaid, exercised due and reasonable precautions, that is, his observations and actions were those of a reasonably prudent operator. The law requires no more under the circumstances than that the motorist determine that the left-turn movement can be made with reasonable safety. LSA-R.S. 32:104.
This court, in Faulkner et ux. v. Ryder Tank Lines, Inc., et al., La.App., 2d Cir., 1961, 135 So. 2d 494 (writs denied), emphasized the fact that the general rule that a left turn is not to be undertaken until a driver ascertains it can be made in safety is subject to the exception that a motorist has the unquestioned right to assume the following traffic will observe all the duties imposed upon it by law and common sense, such as that the following traffic is proceeding within the speed limit and will not pass at an intersection where passing is prohibited; and, moreover, that the drivers of such vehicles are keeping a proper lookout. In this connection, in the *585 cited case, we made the following observation:
"In judging whether a left turn can be made in safety, a motorist has the unquestioned right to assume that the following traffic will observe all of the duties imposed upon it by law and common sense, such as that the following traffic is proceeding within the speed limit, will not pass at an intersection, and will not pass over a double yellow line, and is, moreover, keeping a proper lookout. Green v. Plummer, La.App. 1st Cir., 1960, 119 So. 2d 862; Newman v. Southern Farm Bureau Casualty Ins. Co., La.App. 1st Cir., 1959, 110 So. 2d 816; Kelly v. Neff, La.App. 2d Cir., 1943, 14 So. 2d 657; White v. Neff, La.App.2d Cir., 1942, 11 So. 2d 289.
"It is also well recognized that a motorist who desires to make a left turn on a city street is not required by law to wait until there is no traffic in sight before attempting to do so. He has the unquestioned right to move after he has made a close and careful survey of traffic conditions about him and honestly believes, from such survey, that conditions warrant such action; he is entitled to rely upon the presumption that the other motorists in sight are observing and will continue to observe the speed regulations.
* * * * * *
"As to the questions herein presented, it was very appropriately observed in Paggett v. Travelers Indemnity Company, La.App. 2d Cir., 1957, 99 So. 2d 173, 176:
"The general principle, as enunciated and emphasized in the cases cited, that a left-hand turn is a most dangerous operation and is not to be undertaken until a driver ascertains that it can be performed in safety, is now so well established and so firmly imbedded in our jurisprudence as to admit neither question nor argument. But it must be borne in mind that every general rule is subject either to exception or to modification in the light of the facts of a particular case. We very much fear that our courts may have been guilty of some overemphasis in the establishment and reiteration of this rule, which has resulted in the assumption that the driver of a vehicle who undertakes a left-hand turn is guilty of negligence, per se, in the event an accident occurs. Certainly, this result was never intended. Under the facts which we consider to have been well established in the instant case, if it should be held that the driver of the Smedley car was guilty of negligence, it would be difficult to imagine an instance in which a left-hand turn could be made without an imputation of negligence. * * *'
* * * * * *
"A motorist proceeding strictly in compliance with law, as we have heretofore pointed out, has a right to assume that other motorists will likewise observe the law, and such motorist can indulge in this assumption until he sees, or should see, that the other motorists have not observed, or are not going to observe, the law. Henderson v. Central Mutual Insurance Company, 238 La. 250, 115 So. 2d 339; Koob v. Cooperative Cab Co., 213 La. 903, 35 So. 2d 849.
"* * * in Kientz v. Charles Dennery [Inc.], 209 La. 144, 24 So. 2d 292, 295, the Supreme Court quoted, with approval, an observation made in a dissenting opinion in the Court of Appeal by Judge (now Associate Justice) McCaleb who stated (17 So. 2d 506, 513-514):
"`We are living in an advanced stage of the motor age. Heavy and congested vehicular traffic on the streets and highways is a daily rule rather than an exception. In these *586 circumstances, it is vital to the public interest that the traffic rules and regulations be adhered to strictly (particularly with reference to the traffic semaphore system) as the motorist is, to a large extent, compelled to operate his car in the belief that the law will be obeyed by others. Hence, in gauging the fault which is attributed to one, who was operating his car in obedience to positive law, the courts should be convinced that the dereliction was most substantial and that it was such a direct factor that, without it, the accident would not have occurred.'
"See, also, Youngblood v. Robison, 239 La. 338, 118 So. 2d 431." (Emphasis supplied.)
It cannot therefore be said, under the facts of this case, where Breland was operating his motor vehicle in obedience to positive law, that he was guilty of any dereliction of duty of a substantial nature and of such a direct factor that, without it, the accident would not have occurred. In fact, Linderman testified that, in discussing the accident with plaintiff immediately following the accident, he told plaintiff the accident was due to his, Linderman's, fault. The evidence fails, by any degree of preponderance, to establish that Breland was guilty of contributory negligence. The defendant must, therefore, respond to plaintiff in damages.
No question arises as to the extent of the special damages sustained by Mrs. Breland for medical expenses and for damages to her car. Dr. Alfons R. Altenberg's charges were $105.00; the St. Francis Hospital's, $124.35; the damage to the automobile, $267.47aggregating a total of $496.82.
The only question presented as to quantum relates to the award for the personal injuries, pain and suffering of the minor, William Gary Breland. The record discloses that Breland sustained a whiplash-type injury to his cervical spine, the extent of which could not be said to exceed a moderate degree. Breland was seen by Dr. Ernest Hartmann, an orthopedist, on August 31, 1962, on which occasion Breland complained of pain in his neck and right arm. Subjective symptoms of the injuries were noted by Dr. Hartmann. Breland was again seen by Dr. Hartmann on September 7, 1962, at which time symptoms of injury persisted. Another examination was made by the doctor on September 10, 1962, at which time Breland was hospitalized and placed in traction for a period of four days. A further observation was made under date of September 20, 1962, when Breland continued to suffer with intermittent headaches, and another on October 4, 1962, when the patient continued to complain of headaches, although less severe. Muscle spasm was noted in the area of the cervical spine throughout the a period of at least six weeks. Breland nevertheless continued to complain of headaches, even to the date of trial in June, 1963. Dr. Hartmann was of the opinion it was reasonable to conclude that these headaches would persist for an indefinite period of time, and that such headaches were caused by the trauma of the accident of August 29, 1962.
On the question of quantum, plaintiff cites the cases of Hickman v. Bawcom, La.App., 3d Cir., 1963, 149 So. 2d 178; Cassreino v. Brown, La.App., 4th Cir., 1962, 144 So. 2d 608.
Awards for whiplash injuries producing moderate or slight pain, which are cured without residual in a matter of weeks were made in the following cases: Doyle v. McMahon, La.App., 4th Cir., 1962, 136 So. 2d 89 ($2,000.00); Townsend v. Maniscalco et al., La.App., 2d Cir., 1961, 128 So. 2d 906 ($1,500.00); Elder v. Travelers Indemnity Co., La.App., 1st Cir., 1960, 125 So. 2d 694 ($750.00); Degeyter v. Trahan et al., La.App., 1st Cir., 1959, 113 So. 2d 808 ($1,150.00). These cases involved *587 minor or moderate pain; complete recovery followed within two months.
In the event of a recovery, the defendant suggested that an award of $1,150.00, as made in Degeyter v. Trahan et al. case, supra, would be adequate. In giving consideration to all the facts and circumstances, we conclude that an award of $2,000.00 is neither inadequate nor excessive.
Accordingly, for the reasons assigned, the judgment appealed is annulled, avoided, reversed, and set aside; and
It is now Ordered, Adjudged, and Decreed there be judgment herein in favor of the plaintiff, Mrs. Wilma Fern Carter Breland, in her individual capacity, for the full sum of $496.82, and, in her capacity as administratrix of the estate of her minor son, William Gary Breland, for the sum of $2,000.00, against the defendant, The American Insurance Company, with 5% per annum interest on both of said sums from judicial demand until paid, and for all costs, including the cost of this appeal.
Reversed and rendered.
PER CURIAM.
On presentation of a motion for rehearing, our attention has been called to the fact that although this action was instituted by plaintiff in her individual capacity, as well as administratrix of the estate of her minor son, William Gary Breland, by supplemental proceedings, it was prosecuted to judgment by plaintiff in her individual capacity and as natural tutrix of the aforesaid minor. Our decree should be amended to reflect said change.
Therefore, the judgment and decree of this court are amended so as to show the award made in the minor's behalf to be in favor of plaintiff as the minor's natural tutrix.
With this amendment, the motion for a rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3434449/ | I. The quarterly premium due July 24, 1922, was not paid at maturity, or within the 31 days' grace allowed therefor, unless the retention by the defendant of a check therefor, sent to it September 16, 1922, amounted, as plaintiff 1. INSURANCE: claims it did, to payment. On September 16, life 1922, the insured mailed, at Tulsa, Oklahoma, a insurance: letter addressed to the defendant at Boston, premiums: Massachusetts, stating: "Herewith check $22.68 belated quarterly premium policy Number 59914." The receipt of check was drawn upon a bank at Tulsa, Oklahoma, check: in which the insured had sufficient funds for effect. its payment until after his death and the appointment of administrator. The defendant received the letter and check at Boston, September 19, 1922. On September 21, 1922, the defendant, at Boston, Massachusetts, wrote a letter and mailed it, addressed to the insured at Tulsa, Oklahoma, stating:
"We are in receipt of your remittance intended to pay premium due July 24th, but as same was not forwarded until September 21st, it will be necessary for you to sign the enclosed application for reinstatement. If reinstatement is approved, your payment will be accepted."
The insured died at Tulsa, September 24th. Defendant's letter had not come to his knowledge. On October 2, 1922, defendant received a letter from a business associate of the insured's, informing defendant of the death of the insured, and on October 27, 1924, received proofs of death. It is not claimed that the company demanded payment of the check, or treated it as the liability of the insured or of his estate, or that the defendant made any effort to collect it, or did anything evidencing any purpose to accept it in payment of the premium, except (as indicated in the letter of September 21, 1922) if application for reinstatement were made and approved. After the appointment of administrator, defendant offered the check to him, and later offered it to plaintiff. Plaintiff argues that the check was unconditionally tendered; that defendant had no authority to accept it conditionally, or to communicate conditional acceptance by mail; and that the condition expressed in defendant's letter of September 21, 1922, not having come to *Page 807
the knowledge of the insured, cannot operate to impair the retention as an absolute acceptance.
The policy provided that, upon default in payment of premium, the policy should lapse, but might be reinstated on satisfactory evidence of insurability. The insured had, on three previous occasions, defaulted in payment of premiums, and made application for reinstatement, with health certificates, upon which defendant had accepted payment of delinquent premiums and reinstated the policy. Insured could make only tender of the check. He could not require the company to accept it. He knew that the company had not been in the habit of accepting delinquent premiums without satisfactory evidence of insurability. The burden of the argument, on this record, is on the plaintiff, to show not merely a tender of the check, but acceptance. The 2. CONTRACTS: evidence does not show acceptance, but proves proposal and non-acceptance. Rice v. Grand Lodge, A.O.U.W.,
acceptance: 103 Iowa 643, 647. The parties resided in use of distant cities. The insured communicated his mails: tender by mail, thereby inviting and authorizing effect. a response by mail. Lucas v. Western Union Tel.Co., 131 Iowa 669. There is no merit in the claim that the check was accepted, and paid the delinquent premium. Gould v. EquitableLife Assur. Soc., 231 N.Y. 208 (131 N.E. 892); Nelson v. MutualLife Ins. Co., 58 Mont. 153 (190 P. 927); 37 Corpus Juris 537. See, also, Continental Ins. Co. v. Peden, 145 Ky. 775
(141 S.W. 43); Bank of Commerce v. New York Life Ins. Co., 125 Ga. 552
(54 S.E. 643).
II. On his foregoing contention, the plaintiff had no ground for his objection to evidence of the fact of prior defaults and reinstatements, the receipt of which evidence was without prejudice.
III. Plaintiff urges that defendant was bound to apply the cash value of the policy to the payment of the 3. INSURANCE: premium. He bases this contention upon the life provision of the policy that "any indebtedness insurance: to the company on this policy, including any premiums: unpaid premium or portion thereof for the then default: no current policy year, shall be deducted upon duty to settlement of any claim hereunder. If there be apply any such indebtedness, the cash and loan values surrender will be diminished thereby, and the paid-up or value. extended *Page 808
insurance will be such as may be purchased by the cash value so diminished, such extended insurance to be for an amount equal to the face of the policy less such indebtedness." The policy also provides that the premiums are payable in advance; that 31 days' grace is allowed; that, "upon default in payment of any premium * * * this policy shall lapse, and the company's only liability shall be such, if any, as is hereinafter provided."
The policy also provided that, in the event of lapse after payment of three full premiums:
"The policy shall become effective automatically for paid-up insurance, payable as provided on page one hereof * * * In lieu of said paid-up insurance, the insured, on satisfactory release and surrender of this policy within the days of grace, may procure either the cash value or extended term insurance as similarly stated in the table endorsed hereon."
The policy provided for loan values, also for deferring payment of cash or loan values for 30 days; that, if the insured should die within the month of grace, the unpaid premium for the current policy year might be deducted in settlement. Plaintiff pleads, and defendant admits, a Massachusetts statute to the effect that, after payment of three full premiums:
"The holder thereof, within 30 days after any default in the payment of a subsequent premium, may elect, by a writing filed with the company at its home office, (a) to surrender the policy and * * * receive its value in cash, or (b) take paid-up insurance * * * or (c) have the policy continued in force as extended term insurance from the anniversary date last passed for its face amount, including any outstanding dividend additions and less any indebtedness thereon or secured thereby, * * * If the holder shall not within 30 days from default surrender the policy to the company for cash as provided in option (a), or elect, by a writing filed with the company at its home office, to take extended term insurance as provided in option (c), the insurance will be binding upon the company from the date of default without any further stipulation or act as provided in option (b). The paid-up or extended term insurance granted by the terms of the policy shall have a cash surrender value which shall be its net value less any indebtedness to the company.* * *" General Laws of Massachusetts, 1921, Chapter 175, Section 144. *Page 809
By the terms of the policy and the Massachusetts statute, the policy lapsed in the lifetime of the insured. The insured did not, by the policy or otherwise, authorize the use of the cash value to pay the delinquent premium, nor was there any demand that it be so used. He did not die within the period of grace. The unpaid premium was not an indebtedness of the insured's to the company, deductible from the cash value. Goodwin v.Massachusetts Mut. Life Ins. Co., 73 N.Y. 480. The check was not accepted or claimed as a liability or debt of the insured's. The company had no authority, and had made no agreement, to use the cash value in payment of the premium. The insured was entitled to paid-up insurance. He made no contrary election. The liability of the company at the date of the death of the insured was for the amount of the paid-up insurance. Tyson v. Equitable Life Assur.Soc., 144 Ga. 729 (87 S.E. 1055).
IV. It is urged that the policy, on default, was voidable only, and not void, and that formal declaration of 4. INSURANCE: forfeiture and notice should be given to the life insured. The defendant is not a mutual benefit insurance: association. There is no provision for mere ipso facto suspension. The provision is positive: lapse of policy: "Upon default in payment of any premium * * * formal this policy shall lapse and the company's only forfeiture liability shall be such, if any, as is unnecessary. hereinafter provided."
Declaration and notice were clearly not contemplated by the contract, and were not required. 32 Corpus Juris 1313; Munger v.Brotherhood of Am. Yeomen, 176 Iowa 291.
V. Plaintiff claims that the insured died before the expiration of the period for election, and that his death operated as an election most favorable to his estate, which would be to take the extended insurance. The language of the policy 5. INSURANCE: is that, in the event of lapse, the policy life should become effective automatically for insurance: paid-up insurance, etc. The Massachusetts premiums: statute above quoted is that the holder may default: elect by writing filed with the company, but "paid-up" that, if he does not, within 30 days from insurance as default, surrender the policy, the insurance automatic will be binding upon the company as paid-up result. insurance. The default occurred when the premium, due July 24, 1922, *Page 810
was not paid within the 31 days' grace, which expired with August 24, 1922. The insured not only did not elect against the automatic result, but after the expiration of grace sent defendant his check for the premium. As previously stated, the policy, at the expiration of grace, and in the lifetime of the insured, became one for the stipulated paid-up insurance. Neither the insured nor the company did anything to change that result.
Plaintiff says that the beneficiary might make election. The policy is treated as belonging to the estate, in accordance apparently with the provision made by it for the case of predecease of the beneficiary. At the time of the death of the insured, the policy had been converted into paid-up insurance.Tyson v. Equitable Life Assur. Soc., 144 Ga. 729 (87 S.E. 1055). The estate had an admitted claim for the paid-up insurance, for which judgment was entered in the lower court.
We may say that, while objection was made to the offer in evidence of the Massachusetts statute, no point is made in argument on such objection, and the case is pleaded by plaintiff on the theory that the statute is applicable.
Plaintiff files motion to strike amendment to abstract. It is overruled.
The judgment is — Affirmed.
EVANS, C.J., and De GRAFF, ALBERT, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434450/ | Did the trial court err in setting aside verdicts and granting new trial? That is the sole, but difficult, question on this appeal.
The collision (November 8, 1945) was between a truck belonging to plaintiff construction company (hereinafter referred to as the company) and an auto belonging to and driven by defendant Langloss, the appellant. Plaintiff George De Vries was a passenger on the truck and Robert Van Der Meide was its driver. The latter was brought into the case as defendant to the cross-petition of defendant Langloss, who also counterclaimed against the company. *Page 348
It will be seen there were in fact several actions: The company sought property damage against Langloss (herein called defendant) for injury to its truck; De Vries, by next friend, claimed damages against him for personal injuries; and defendant himself, by counterclaim and cross-petition, demanded damages for injury to his person and property from the company and Van Der Meide, owner and driver respectively of the truck.
Issues were joined in all these actions with familiar allegations of negligence and freedom from contributory negligence. At the close of the evidence the only motion to direct was one made by defendant, in the action by the company against him. The only ground therein urged was that the company had not shown its freedom from contributory negligence. The motion was overruled and no error is assigned on the ruling. We must conclude all parties (except defendant) considered the evidence sufficient to go to the jury on all issues in all the actions. A reading of the record clearly supports this conclusion.
Seven forms of verdict were submitted with the instructions: (1) For the company in its action against defendant (2) for defendant on his counterclaim against the company (3) for defendant in the company's action against him (4) for plaintiff De Vries in his action against defendant (5) for defendant in the action against him by plaintiff De Vries (6) for defendant on his cross-petition against Van Der Meide, and (7) for cross-defendant Van Der Meide on said cross-petition.
Approximately four and one-half hours after submission the jury tendered verdict No. 2 with damages assessed at $7,669 in favor of defendant and against the company. This, of course, would dispose of Nos. 1 and 3. After being sent back to complete its work it later returned and tendered verdict No. 5 in favor of defendant on the claim of plaintiff De Vries against him, making No. 4 unnecessary. Again the trial court sent the jury back calling attention to the fact that no decision had been made as to defendant's cross-action against Van Der Meide, driver of the company's truck. A short time later it returned with verdict No. 6 duly signed awarding defendant damages of $7,669 in his cross-action against Van Der Meide. *Page 349
The net result was verdict for defendant in the original actions against him by plaintiffs and in his favor on his counterclaim against the company and his cross-action against Van Der Meide in the sum of $7,669. The verdicts were entirely consistent with each other and with a determination that Van Der Meide's negligence, and no contributing negligence of defendant, caused the collision. There was ample evidence to support such determination. The testimony of one witness will serve to demonstrate this fact.
Frank Van Dieren, a witness for plaintiffs, was driving a tractor pulling a wagon going west along the highway where the collision occurred. All witnesses agree the driving conditions were somewhat treacherous due to weather conditions. Defendant, traveling the same direction, passed Van Dieren just before colliding with the company's truck coming from the west driven by Van Der Meide.
Van Dieren testified that defendant's car:
"* * * pulled onto the north side of the road in front of me so that it was on the north side of the road and heading due west and in its own lane of travel * * * within 100 feet of the front of [my] tractor. * * * After he was back on his own side of the road, he continued to go on west until the time of the collision. The point of impact must have been 250 feet to the west of my tractor. * * * Langloss was back on his own side of the highway within 100 feet ahead of me, and then traveled 150 feet beyond that point to the point of impact. There is no question in my mind but what this accident happened on the north side of the highway and that Kenneth Langloss was definitely on his own side of the road. * * *
"At the time that Langloss went 150 feet from the point where he was fully back on his own side of the road to the point of collision, the truck came at least an equal distance of 150 feet. It appeared to me that if the boys had left the brakes alone, nothing would have happened. The road was clean. It didn't appear that they applied their brakes until Langloss was over on his own side of the road.
"There was no weaving or sliding prior to that time on the part of the truck that I seen." *Page 350
This is the testimony of the only disinterested eyewitness to the collision, with the possible exception of his son, who was driving a truck behind his father but did not in any way contradict this testimony.
The motion for new trial and to set aside verdicts and judgment (by plaintiffs and Van Der Meide) alleged eight grounds. The trial court overruled all except the first, which urged that the amount of damages awarded appellant was "grossly excessive and that said excessive damages appear to have been influenced by passion or prejudice * * * that the evidence * * * does not support or sustain a verdict in the amount granted * * * that the damages are clearly excessive * * *."
No contention is made here by appellees that any of the other grounds overruled by the court should be invoked in support of the ruling granting a new trial. The only questions confronting us therefore are those directly posed by the trial court's ruling, viz.: (1) Does the amount of the verdict indicate passion and prejudice; and (2) were the other circumstances mentioned by the court, in addition to the size of the verdict, sufficient to justify exercise by the trial court of its undoubted discretion to grant a new trial where it deems the trial was not fair?
[1] I. In order properly to determine the significance of the $7,669 verdict it becomes necessary to consider the elements of damage alleged and proved. As usual, some of the elements are possible of fairly exact measurement and the evidence as to these is undisputed: Estimated total loss of net earnings for thirteen weeks, $1,014; partial loss for thirty-eight weeks, $1,216; hospital and doctor bills, $302.50; ambulance service, $17.50; and property damage to automobile, $335. These total $2,885. This leaves $4,784 to cover partial permanent disability and pain and suffering.
The difficulty of placing adequate monetary value upon pain and suffering and of estimating damage suffered by reason of partial permanent disability (estimated in the record as twenty-five per cent) is too apparent to require or justify extended discussion or citation of authority. We are not disposed *Page 351
to say $4,700 in the instant case is of itself so excessive as to indicate passion and prejudice.
Defendant testified that when he got out of his car and attempted to walk his right leg "buckled" and would not hold his weight: "It was very painful. I felt my knee cap and it felt like it had been pushed clear up above where it belonged." He was helped into a truck and started for Hawarden about five miles away.
He says:
"My knee cap was cut up pretty bad and you could see the pieces of knee cap that looked like a `T'. * * * I had a lot of pain, and as we drove along toward Hawarden it seemed to get worse. It was a sharp pain."
The doctor in Hawarden examined the leg and took him to Sioux City to a hospital. X-rays were taken and an operation performed under local anesthetic:
"I suffered a sharp continual pain which seemed to be getting worse. * * * they cut into the knee and as a result of the operation, I have a scar on my knee."
The knee was shown to the jury.
The leg was put in a plaster cast covering from midway between ankle and knee to halfway up on the thigh:
"The sharp pain and ache in my leg continued all of the time * * * and after my arrival at home. I was not able to walk around on my leg and it was necessary that I have help in moving about."
At night he had to put pillows under the leg and take sedatives in order to sleep. The morning after the accident the doctor, being called about 5 o'clock, on account of the pain, cut a window in the cast. The leg had become quite swollen, causing a pressure on the cast and the pressure was causing the pain.
Defendant testified he suffered sharp pain and ache for about six weeks, during which time he took sedatives at night to obtain sleep. "I would usually sit up most of the night."
During the time the cast was on there was drainage which *Page 352
continued for a week or two after the cast was taken off. He used crutches for about ten weeks in getting around while the cast was on.
Defendant was thirty-four years old and a Fuller brush salesman covering five townships in Plymouth county and the west part of Sioux county. He testified (over a year after the injury):
"I am not able at this time to carry on my business in the same fashion and manner as prior to the accident for during bad weather I am not able to get out in the country. My leg bothers me quite a lot so I can't stand too much walking. So when I have to work in town, I can't walk over three or four hours per day on account of the walking. I am not able to make as many calls out in the country for it is harder for me to get in and out of the car and it takes me longer to walk from the car to the house and I tire out a lot quicker. I never put in over eight hours a day now. It's not necessary for me to stop and adjust my leg at the present time while I'm driving my automobile for the reason that I stretch the leg out and use the other foot on the accelerator or the gas feed. This gives me more comfort and rests my bad leg. I am not able to keep my bad leg in a flexed position very long."
The testimony of defendant's wife tends to corroborate his own as to the period while he was confined to his home before and after the cast was removed. We have set out defendant's testimony at considerable length as there seemed no way effectively to brief it. The jury had a right to believe it. We find in it sufficient to absolve the jury from the imputation of passion and prejudice. The verdict may or may not be too large but we cannot say it is so large as to justify a retrial of the complex issues presented. There is in the record no indication of any circumstance or situation calculated to arouse passion or prejudice.
Citation of authorities is not very helpful here. No two injuries are accurately comparable; no two injured persons are similarly situated. The imponderables involved are peculiarly for the jury to estimate. However, see Remer v. Takin Bros. Freight Lines, 230 Iowa 290, 297 N.W. 297. *Page 353
[2] II. We come now to the matters (other than the mere size of the verdict) which the trial court mentions as indicative of such unfairness in the trial as to require an exercise of the "inherent power of the court to act on its own motion" to grant a retrial. There are two such circumstances mentioned:
1. "The defendant * * * with other persons and the attorneys, was in the reporter's room adjoining the court's chambers at each intermission and before and after court sessions. He was observed at such times and in the courtroom. The difference in theappearance of injury before and after he was called to thewitness stand was so obvious as to be distinctly noticeable."
(Italics supplied.)
2. "The order in which the jury returned the verdicts of the 7 submitted to them indicated a primary desire to hold for the defendant on his counterclaim against the plaintiff construction company. It was only after the jury was twice more sent to the jury room that the necessary number of verdicts was returned."
As to the first consideration the suggestion is that defendant's testimony and demeanor on the witness stand was belied by his conduct off the stand, but in the presence of the attorneys and presumably the court, as well as "other persons" unidentified. We are told in oral argument, in effect, that defendant, on the stand, was a sort of supersalesman to the extent of misleading the jury as to the seriousness of his injury. The text of his testimony conveys no such impression.
Witnesses vary in their ability to convince, but we know of no judicial method of eliminating these differences, assuming such leveling process to be desirable. The jury system itself is usually considered the best corrective for any danger of unfairness arising therefrom.
The trial court's conclusion rests upon its observation of things that must have been seen by others, including opposing counsel. The court's thesis must include the assumption that defendant was able to and did maintain in the presence of the jury a deceptive appearance of injury which he could not, or at least did not, maintain in the presence or sight of the judge and attorneys when the jury was not present. *Page 354
We think the conclusion is based upon a too uncertain premise. The possibility of error is too great for it to be the basis for overturning a jury verdict. It is to be remembered that this particular circumstance does not concern the question of whose
negligence caused the accident but only the extent of defendant's injury for the purpose of valuing it.
The other proposition of the court, on the other hand, pertains more particularly to the question of who was liable. The order in which the verdicts were reached has already been stated. It is substantially the order in which the court submitted the forms. The jury felt its way cautiously through a complex legal tangle. By the aid of the court it did a logical job in that the several verdicts, when assembled, were entirely consistent with one another and with a conclusion as to the location of blame for the collision, fairly supported by, if indeed not inescapable under, the evidence. We find no indication of any special desire to "soak" the owner of the truck as a company, or of reluctance to charge the individual driver.
[3] All this brings us to the crucial problem in the case: How far does the so-called "inherent right" of trial courts go in setting aside verdicts and to what extent is their exercise of the right reviewable by the appellate court? The action of the trial court here can only be sustained by according the "inherent right" practical immunity from review.
It must be conceded the language of some of our cases seems almost to go that far. However, even in some which contain the most extreme language there are danger signals which must be observed. Probably the language in Dewey v. Chicago N.W.R.R. Co., 31 Iowa 373, 378, is as much quoted as any decision of this court on the doctrine of "inherent right." But in that case Judge Cole was constrained to add:
"But while the greatest freedom on the part of nisi prius
judges should be exercised in setting aside verdicts, in order to secure and effectuate justice, yet judges ought to use caution in the exercise of the power so as not to invade the legitimate province of the jury when they have manifested a fair *Page 355
and intelligent consideration of the evidence submitted to them, nor to injuriously protract litigation in pursuit of invariable and absolute justice in every case, for this cannot be attained."
In Hensley v. Davidson Bros. Co., 135 Iowa 106, 109, 110, 112 N.W. 227, 228, 14 Ann. Cas. 62, it is said:
"* * * the existence of the power is to enable the court to guard the rights of parties, who, for some cause, have proven unable to protect themselves * * *. But resort to this power willrarely be required, and it should be exercised with great cautionand in aggravated cases only." (Italics supplied.)
In In re Estate of Murray, 238 Iowa 112, 115, 26 N.W.2d 58, 60, it is said the court has the power "after reasonable notice to the parties and opportunity to be heard."
There is nothing mysterious in this so-called "inherent power." It is in effect "a legal discretion — one that must be exercised upon sound judicial reasoning. It is not unlimited." Sparks v. Long, 234 Iowa 21, 23, 11 N.W.2d 716, 718; Eller v. Paul Revere L. Ins. Co., 230 Iowa 1255, 1260, 300 N.W. 535.
"It has been wisely held that a large discretion is lodged in the trial court in granting new trials. That this means a sound judicial discretion, to be exercised with care, judgment, and sound discretion in the light of all the evidence and all the facts in the particular case appearing in the trial, is conceded. That courts have no right to set aside the verdict of a jury through mere caprice or whim, or to reweigh the evidence submitted, or sit in judgment on the credibility of witnesses, is too well recognized to need argument." Post v. City of Dubuque,158 Iowa 224, 226, 227, 139 N.W. 471, 472.
We shall not attempt to review the many cases cited in the briefs. In some the power of the court is emphasized; in others, the cautionary considerations. The term "inherent," as used in this connection, does not mean "arbitrary" or "unreviewable."
It may be conceded we more readily reverse where new *Page 356
trial is denied than where granted. But the danger of unwarranted interference with the jury prerogative must be avoided, as well as the right to a fair and impartial trial to the litigant assured. As has been wisely said: "Everyone is entitled to a fair trial * * * but due regard for our judicial system compels that he be accorded but one * * *." Sparks v. Long, supra.
[4] We are convinced that the granting of new trial here was an abuse of judicial discretion. The decision of the trial court is accordingly reversed. — Reversed.
MULRONEY, C.J., and OLIVER, BLISS, HALE, GARFIELD, MANTZ, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434453/ | On June 27, 1935, plaintiff and the defendant, E.G. Gard, entered into a written contract for the drilling of a well on the defendant's farm. The material provisions of the contract are as follows: *Page 237
"Par. 2. The diameter of the said well shall be 4 inches all the way to the depth of the well.
"Par. 4. First party guarantees an ample supply of water for general farm and stock raising purposes and guarantees the efficiency of said well for one year from date of completion.
"Par. 6. The second party agrees to pay to the first party for the work and material furnished for drilling said well — at the following schedule price as listed below:
$1.25 per foot for the first 100 feet. $1.75 per foot from 100 to 200 feet. $2.25 per foot from 200 to 300 feet. $2.75 per foot from 300 to 400 feet. $3.25 per foot from 400 to 500 feet.
And this raise of fifty cents per foot every 100 feet shall continue to the depth of the well.
"Par. 8. Second party to furnish board and lodging for two men while on the job. Also a small amount of water for drilling purposes.
"Par. 9. In the event it is found that a screen is necessary to properly finish said well, then it must be furnished according to the specifications desired by said driller. The said screen is not included in the above price and is an additional charge."
Plaintiff commenced drilling the latter part of June using a 4-inch casing. At 182 feet, the parties thought an adequate supply of water had been found. The defendant furnished the pump and pump line which was installed by the plaintiff. In September, the defendant notified the plaintiff that the well did not furnish a satisfactory amount of water and in October plaintiff returned to the defendant's farm and drilled to a depth of 394 feet using a three inch casing for the extended depth. At this depth water was found which immediately rose 180 feet and, so far as shown by the record, there has not been less than 180 feet in the well since it was completed in November, 1935, at the extended depth. On test the well furnished about two gallons per minute. At the time of the trial there were about 7 feet of sand in the bottom of the casing.
The well was satisfactory to the defendant from the time it was completed in November, 1935, until May, 1936, at which time this action was pending, having been commenced in March, 1936. In May, 1936, the defendant complained to plaintiff about *Page 238
the well and plaintiff pulled the pump and found the leathers in the plunger were worn out. New valve leathers were installed and plaintiff claims no further objection was made by defendant.
Defendant claims that in September, 1936, the pump began again to fail and then went completely dry.
In November, 1935, after the well was completed, defendant tendered plaintiff a check for drilling 182 feet claiming that he was not obligated to pay the plaintiff for drilling the extended depth of 212 feet because the plaintiff deepened the well under his guaranty.
In March, 1936, the plaintiff brought this action asking judgment against the defendant for $753.68, which was the compensation provided by the contract for a well 394 feet in depth, less certain credits due defendant, and for the foreclosure of his mechanic's lien. Plaintiff made the written contract a part of his petition and alleged full performance under the contract on his part.
Defendant filed a general denial and further answered, stating that:
"They specifically deny that any contract was entered into to reduce the size of the diameter of the well from a 4-inch to a 3-inch pipe. The plaintiff proceeded to change the plan of said well without the consent or agreement upon the part of the defendants. Defendants specifically deny that plaintiff has complied with said contract and state that the plaintiff has failed to comply with the terms of said contract."
The trial court found for the plaintiff and on October 1, 1936, a decree was entered rendering judgment against the defendant as prayed in plaintiff's petition.
Defendant claims that when plaintiff brought his equipment back to the farm in October, 1935, to drill a deeper well, it was for the purpose of making good his guaranty of an ample supply of water for one year from date of completion of the well, and that no charge was contemplated by the parties for drilling by the plaintiff beyond the original 182 feet. The defendant states in his brief and argument; "never could either party have contemplated going down over 200 feet further. Unquestionably, appellee let Gard understand the return in October, 1935, was to comply with his guaranty to furnish water and *Page 239
no charge for same was contemplated." In support of this contention, the defendant relies chiefly on a letter written by plaintiff on September 25, 1935, in reply to letters to plaintiff from Gard stating that the water supply was inadequate. Plaintiff's letter, Exhibit G, reads as follows:
"Your letter came this morning and I have forwarded it on to Mr. H.E. McConnell who is drilling at Sibley, Iowa.
"I am indeed sorry about this well and I just don't understand it. I had been in hopes with pumping that it would continue and finally make a well. Which usually happens to these kind of wells.
"I have urged Mr. McConnell to get busy and get down here and there is only one thing to do and that is to set over it and take a three inch line and go down to water. This we will be prepared to do according to our contract.
"I feel that by going a little deeper — we will strike a real vein and that is what you want is a good well.
"I shall advise you as quickly as possible when hearing from Mr. McConnell.
"So be prepared most any day now when he gets ready to move on to it again."
[1] This letter states that plaintiff will take a 3-inch casing and go down to water according to the contract. Plaintiff did not guarantee an ample supply of water at 182 feet or at any other particular depth. The defendant agreed to pay a $1.25 per foot for the first 100 feet and further agreed that this price should be raised 50 cents per foot for every additional 100 feet "to the depth of the well". The contract did not contain a limitation on the depth of the well and the plaintiff was entitled to compensation under the terms of the contract if he complied with his guaranty. The defendant's contention distorts the clear meaning of the contract.
[2] Defendant also contends that there was no modification of the contract with regard to the use of a 3-inch casing for the extended depth; that the cost of the 3-inch casing was less than the 4-inch casing and no allowance was made by the court for the difference in the cost.
Mr. McConnell, the well driller, and his assistant, Mr. Menage, testified for the plaintiff that when they returned to the farm to extend the depth of the well in October, 1935, they told *Page 240
the defendant that they were back to proceed with the well and try to give him water and that the only thing that could be done to the well was to reduce it to a 3-inch hole because the 4-inch casing was frozen and that Gard replied, "yes, all that can be done is to go down with the 3 inch casing. Any way to suit Mr. McConnell, just so I get a well that will give me plenty of water."
Prior to extending the depth of the well, and on September 25, 1935, the plaintiff wrote defendant in the letter, Exhibit G, that he would take a 3-inch casing and go down to water according to the contract.
Gard testified that he knew the plaintiff intended to use a 3-inch casing in deepening the well; that "I received a letter from the plaintiff stating that he was going to proceed with a 3-inch pipe and I did not object or write and tell them not to. I never entered any objections while they were doing it."
That parties to an agreement may subsequently modify the original agreement by mutual consent needs no citation of authorities. Assent may be implied from the acts of one party in accordance with a change proposed by the other. 13 C.J., 591.
We find that the defendant assented to the modification of the contract and thereby waived that part of the contract requiring a 4-inch casing. No new contract superseding the written contract was created by the modification. The defendant, in assenting to the change, did or said nothing that would lead plaintiff to believe that he would receive less compensation because of the modification and the written contract remained in force and effect as modified by mutual consent, and the compensation agreed upon by the parties to the contract remained the measure of plaintiff's compensation and the trial court was right in basing the amount of plaintiff's recovery on the compensation provided by the contract.
[3] Defendant also urges that the decree was erroneous because plaintiff failed to prove that he had performed the contract in accordance with its conditions.
After the well was completed in November, 1935, it was tested several times, the last time being during the trial of the case. Each time the test revealed that there were 180 feet of water in the well.
We are convinced that the cause of the failure of the well to produce a constant and ample supply of water is not because *Page 241
of a lack of an adequate water supply but is in the pump line and especially in the plunger or bucket. Each time a test or examination was made of the pump line and well it was found that the leathers were worn to an extreme degree. The defendant's position is that the wearing of the leathers is due to sand pumped up in the well. He testified that when the pump was pulled during the trial the leathers and plunger were full of fine, granite-like sand and that the sand cut the leathers like knives. The defendant admitted that if the sand was eliminated from the bottom of the casing he would have a good well. The cylinder of the pump is 47 feet from the sand.
It is the contention of the plaintiff that the trouble is entirely due to an inadequate and impractical pump line. Plaintiff's witnesses testified that when the pump was pulled and examined no sand was found in the plunger, cylinder or bucket.
Mr. McConnell, an expert well driller, testified that he advised Mr. Gard to install a 2-inch cylinder, a 2-inch pipe and a 4-leather bucket and wood rods; that Mr. Gard did not follow his advice but used a 1 1/4-inch pipe, a 1/2-inch pipe, iron lift rods and a 2-leather bucket. Mr. McConnell further testified:
"A 2 leather bucket was not sufficient for the weight of the water that has to be lifted up by the leather bucket. The 4 leather bucket has more wearing surface on the inside of the cylinder, will handle that amount of water and stand up that much longer under the pressure and wood rods practically float in the 2 inch pipe, which makes it easier pumping all the way around. There is a flexibility in the wood rods that will not pull apart like the iron rods, and iron will stretch under strain and break. The 4 leather bucket has got a much longer life than the 2 leather."
He further testified that the pump line furnished by the defendant was impractical.
Mr. Wassmann, general manager for the plaintiff, testified that in May, 1936, he received a telephone call from Mr. Bundy, attorney for the defendant, that the well had gone dry and asked him to fix it right away; that he wanted it taken care of within five days. The witness with Mr. McConnell then went to the Gard farm and talked with Mr. Gard. The witness there stated to Mr. Gard: "Now, Mr. Gard, let's have an understanding. If it is in the pump line or the leathers we don't feel obligated to *Page 242
service that part of it, but if it is the well's fault we do; now when we come up and pull this pump line out and find that it is the pump line then you must pay the bill and if it is the well, we will take care of it." Mr. Gard agreed to this proposition. At this time, the pump had been used continuously for three months. It was found that the leathers had been worn off and the plunger had lost all suction power. Mr. Gard paid $9.00 for the new leathers. Mr. Gard admitted that he had an agreement with Mr. Wassmann that if it was the fault of the pump that he would pay him for the work and material in fixing the pump; that the trouble at that time was due to the leather valves and that he paid for the new leather valves and for the labor in installing them in the plunger. At this time the well had been used for a period of 6 months and we assume that if the examination showed that the leathers and plunger were damaged by sand that the defendant would not have voluntarily paid for the repairs and for their installation.
Mr. McConnell testified, without objection, for the plaintiff that when the pump was pulled on May 26, 1936, the trouble was found to be due to excessive wearing of the leathers.
When the pump was examined in September, 1936, during the trial, the leathers were worn on the inside to such a degree that they were torn apart and were down over the flanges of the bucket. Each time that new leathers were furnished, normal production of water was resumed.
We conclude that the evidence fairly establishes that there was a constant head of water at 180 feet and the plaintiff complied with his guaranty to furnish an ample supply of water for the farm and that the failure of the well to work efficiently was due to the impractical and inadequate pump line furnished by the defendant.
Assuming that, as contended by defendant, sand caused the leathers to wear to such an extent that the well could not be considered efficient, the contract provides that:
"Par. 9. In the event it is found that a screen is necessary to properly finish said well, then it must be furnished according to the specifications desired by said driller. The said screen is not included in the above price and is an additional charge."
The plaintiff's testimony and the testimony of Nichols, witness for the defendant, prove that a proper screen would eliminate *Page 243
the sand problem. McConnell testified that if a proper screen had been placed at the end of the pipe it would have stopped all sand coming into the casing. Mr. Nichols testified for the defendant that an adequate screen properly installed would hold the sand out. Plaintiff claims that the bottom of the pump is open with a screen in the bottom; that the screen is an old one that defendant had lying about the place and is inadequate.
If a screen were necessary it was the duty of the defendant to furnish it according to the specifications of Mr. McConnell. Apparently, neither party thought the situation warranted a resort to this provision of the contract.
In considering the case we may give consideration to the advantages had by the trial court in determining the truth and we are not convinced the district court was wrong in finding for the plaintiff. We find no reason for disturbing the decree of the district court and the case is affirmed. — Affirmed.
HAMILTON, C.J., and PARSONS, RICHARDS, ANDERSON, SAGER, MITCHELL, KINTZINGER, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434454/ | The evidence ranges over an extensive field, and we need not refer to it further than as it is relevant to appellant Van Vliet's contentions that plaintiff should have 1. SALES: Bulk brought his action within seven days after Sales Act: notice of the bulk sale under which Van Vliet failure to got title, and that plaintiff's right to proceed comply: under the Bulk Sales Law is "barred by waiver, etc. limitation, acquiescence, waiver, laches, and estoppel."
Rivers owned a lot and building, in which he kept a stock of merchandise and fixtures. He was owing Burton Company State Bank $8,500. On November 21, 1923, Rivers gave the bank (or its receiver) a note, due March 1, 1926, for this indebtedness, $8,500, and a mortgage on the lot, to secure its payment. On May 4, 1925, he gave a note for $8,500, due May 14, 1926 (we infer from the arguments, "collateral" for the same debt), and to secure it, gave a chattel mortgage on the fixtures. $300 was paid on the principal, reducing it to $8,200. The bank went into the hands of the superintendent of banking, as receiver, — when, does not appear. C.A. Porter was the examiner in charge. H.C. Korf was the attorney for the receiver. On January 8, 1926, Rivers and Kaldenberg made a written agreement, whereby Rivers agreed to convey to Kaldenberg the store building, fixtures, and stock, and Kaldenberg agreed to convey to Rivers his equity in a tract of land, and pay Rivers $3,500 in cash "upon Rivers' completion of payment of the wholesale bills" *Page 345
then "outstanding against the stock." Deeds were to be made on the payment of the wholesale bills, and on payment of the $3,500. The agreement recited that "possession of the premises and stock of goods has been given to" Kaldenberg. The agreement recited the mortgages on the lot, building, and fixtures for $8,200, and required Kaldenberg to pay them, together with interest from January 9, 1926. At the time this agreement was made, Kaldenberg was owing Van Vliet a pre-existing debt of $1,600 (not due), and, in order to get payment of this debt out of the property which Kaldenberg was to get in the trade, Van Vliet advanced Kaldenberg the further sum of $3,000, with which to make the payment to Rivers and enable Rivers to pay his indebtedness to wholesalers. Rivers furnished a list of such debts. Van Vliet advanced the money to pay them, and they were paid accordingly. On January 11, 1926, Rivers gave to Kaldenberg a bill of sale of the stock and fixtures. The same date, Kaldenberg gave to Van Vliet, as security, a bill of sale of the same property. On January 13, 1926, Rivers, in advance of its maturity, paid to Porter the interest to January 9, 1926, on the $8,200. On February 2, 1926, Kaldenberg resold the stock to Boat, and Van Vliet made a bill of sale of it to Boat. As a part of this transaction, Boat gave his check for $3,500 for the money which he was to pay for the stock. On February 3, 1926, Porter notified Boat that plaintiff was a creditor of Kaldenberg's, and was holding a lien on the stock until the indebtedness of Kaldenberg to plaintiff should be paid. Boat thereupon stopped payment on his $3,500 check. Boat seems to be satisfied with the protection he has obtained from stopping payment of his check and from the decree in the lower court, and his interests, are not involved in this appeal. We therefore give the sale to him no further attention.
On February 18, 1926, Porter notified Kaldenberg that the $8,200, with interest, would be due on March 1st, and demanded payment accordingly. On March 5, 1926, this action was commenced.
Appellant Van Vliet assigns error as follows:
"1. The plaintiff failed to commence a proceeding within seven days after notice of the sale, and thereafter is entitled to no relief under the Bulk Sales Law.
"2. The plaintiff failed to commence an action until almost *Page 346
six weeks after notice of the sale, and is now barred by limitation, acquiescence, waiver, laches, and estoppel.
"3. The lien of the appellant J.H. Van Vliet, trustee, under his chattel mortgage is superior to the rights of the plaintiff under the Bulk Sales Law."
Appellant thus summarizes his argument:
"(1) That, due to plaintiff's failure to proceed within seven days after notice of the Rivers-Kaldenberg sale, he is entitled to no relief as a creditor of Richard Rivers', under the Bulk Sales Law, but is left to his ordinary remedies.
"(2) That, due to plaintiff's failure to proceed until almost six weeks after notice of the Rivers-Kaldenberg sale, he is now barred by limitation, acquiescence, waiver, laches, and estoppel to receive relief under the Bulk Sales Law, as a creditor of Richard Rivers', and is left to his ordinary legal remedies.
"(3) That, as between the plaintiff and the appellant, the rights of the appellant under his chattel mortgage are superior to the rights of the plaintiff, (a) for the above reasons, when plaintiff attempts proceedings under the Bulk Sales Law, as a creditor of Richard Rivers, (b) due to the equities between the parties plaintiff and appellant when plaintiff attempts to proceed under the Bulk Sales Law, either as a creditor of Richard Rivers or John Kaldenberg."
The evidence relating to the claim of estoppel, acquiescence, waiver, and laches may be sufficiently outlined as follows: William Terpstra testifies that he represented Kaldenberg in the deal with Rivers; that he asked Porter "whether the bank had any mortgage on the stock of goods, and he said they did not; and the same night, I came down to Kellogg and wanted the fixtures released. You [H.C. Korf] told me you would take $2,500 and release the fixtures. I think Mr. Porter also told me he wouldn't stand for the stock of goods' being moved out of the building. * * * When I said to Rivers, or to Kaldenberg, that the stock of goods was clear, I was simply communicating to him the fact that Mr. Porter had told me the bank had no mortgage on the stock. * * * that is what I meant by telling them that the stock of goods was clear." Terpstra says that Porter told him that he "had a mortgage on this building, and he told me, `Yes,' he had a mortgage on the building of $8,500, and $300 *Page 347
paid; and I wanted to know if he had a lien on the stock, and he said, `no,' the stock was clear." Kaldenberg says that he never talked to Porter or to Korf about the stock of goods in connection with the Rivers deal, but that the contract was prepared in Korf's office, and he thinks with Korf's assistance. He says:
"I signed a contract that indicated he owed the bank $8,200 that wasn't due. The way I understood it was, all that he owed that was due was $3,500. * * * Q. Well, you understood that, because the bank had a mortgage, that the bank had no claim under the Bulk Sales Law, — is that it? * * * A. Yes, sir. I said `yes' a while ago on this account: because Terpstra, my agent, had said that the receiver said this stock was clear. * * * I assumed this debt to the bank, the $8,200 in my contract. I thought he would have money or means to pay it."
Van Vliet testifies:
"We had the understanding through Mr. Kaldenberg that this money was to be applied to the wholesale bills, — the wholesale bills that were outstanding at that time. * * * All the time, I knew there was $8,200 of indebtedness that Rivers owed. I did not know there wasn't any provisions made under the bulk sales to take care of that. I did not even know there was a Bulk Sales Law. * * * I called Mr. Porter, — that wasn't till after somebody had stopped payment on his check. I don't remember the words he used, but the effect of it was, Mr. Porter told me that they had a claim on this stock of goods. Mr. Boat told me the reason why he stopped payment was because Porter was claiming that the bank had a claim on that stock of goods under the Bulk Sales Law."
Porter testifies that Terpstra called on him several times, trying to get a discount, and asking if the stock was clear.
"I told him we had no mortgage, but were holding it under the Bulk Sales Law. I told him that every time he asked me, and he asked me probably a dozen times."
He says that, as soon as the deal was completed, he told Mr. Korf to bring this action, but "the delay was because you [Korf] were busy, and did not have an opportunity to bring this action." Porter had previous knowledge that Rivers was *Page 348
trying to dispose of the stock. He knew that Kaldenberg was one of the prospective purchasers. Porter, however, was away when the trade was made. He found Kaldenberg in possession of the stock about the middle of January.
There was no estoppel by misrepresentation, for a number of reasons. The sale under which Van Vliet claims, was made to Kaldenberg; and the advances by Van Vliet to Kaldenberg and the security given by Kaldenberg to Van Vliet for these advances and for a pre-existing debt were made and taken in the process of concluding the sale from Rivers to Kaldenberg. Kaldenberg and Van Vliet were as fully informed as was the plaintiff of the material facts: namely, that Rivers was indebted to plaintiff; that no detailed inventory or list of creditors was made, or notice given, as prescribed by Section 10008, Code of 1924. Kaldenberg and Van Vliet gave no thought to the Bulk Sales Law, and Van Vliet says he knew nothing about that law. There was no misrepresentation concerning compliance with it, and no concealment of Rivers's debt to plaintiff or of purpose on the part of plaintiff to resort to that law. Kaldenberg and Van Vliet had specific information of Rivers's debt to plaintiff. They knew it was unpaid. Van Vliet omitted no act, changed no position, and sustained no prejudice from anything done by plaintiff. Plaintiff in no wise, expressly or by implication, renounced or disclaimed his rights under the Bulk Sales Law. On the contrary, the testimony of Kaldenberg's agent is that Porter told him "he would not stand for the stock of goods' being moved out of the building," and Porter's undisputed testimony is that he told the agent that plaintiff was "holding it under the Bulk Sales Law." Appellant argues that this statement, made in this form, must have referred to a date after the sale. The evidence does not bear out this contention.
Plaintiff alleges that he is receiver under appointment of the court. Van Vliet takes issue on this allegation. There is no proof whether plaintiff is receiver by virtue of his office as superintendent of banking, or whether he is a 2. RECEIVERS: chancery receiver. He sues as receiver, and the powers: inference would be that he sues as a receiver waiver of in chancery. If the plaintiff is acting as a valuable statutory receiver, by virtue of his office, no rights. authority in Porter, the examiner, to waive plaintiff's rights under the Bulk Sales Law is shown, and *Page 349
none can be presumed. (See Deariso v. Mobley [Ga. App.], 143 S.E. 915.) If plaintiff is a chancery receiver, then the assets of the bank are in custodia legis. Plaintiff is merely an arm or officer of the court, and may not, without authority from the court, waive the provisions of the Bulk Sales Law. No such authority is shown. Neither plaintiff nor the bank examiner had authority to make such waiver. Code of 1927, Section 9239; Sherman v.Linderson, 204 Iowa 532; Baxter v. Baxter, 204 Iowa 1321; Leachv. State Sav. Bank, 202 Iowa 97; Leach v. Farmers Merch. Sav.Bank, 207 Iowa 471; First Nat. Bank v. White Ash Coal Co.,188 Iowa 1227; 34 Cyc. 187, 208, 242, 248, 274. The knowledge which the attorney is claimed to have obtained from drawing the contract, if chargeable to plaintiff, is subject to the same infirmities. But it is not chargeable to plaintiff. It was not gained in the exercise of the attorney's employment by plaintiff, had no reference thereto, and was not within the scope of his authority. 6 Corpus Juris 638 et seq.
There was no equitable or quasi estoppel; for plaintiff has at no time taken inconsistent positions, nor has he expressly or by implication waived his rights under the Bulk Sales Law. Waiver is the intentional relinquishment or abandonment of a known right. Acquiescence is a form of ratification (express or implied) or estoppel. Ratification of the act of another is the adoption or giving validity to it by the one in whose behalf it was done. The sale by Rivers was made in his own behalf, and for himself, — not for plaintiff. If the statutory requirements are not observed, a bulk sale is, by force of the statute, constructively fraudulent as to creditors. One creditor, so far as his own rights are concerned, may waive the infirmity in the sale, and preclude himself from attacking it; but he cannot give it validity as to other creditors for whom he has no authority to act, — cannot, strictly speaking, ratify it. Porter (or plaintiff) did not, by silence or failure to announce his purpose or otherwise, elect to waive the invalidity of the sale or to recognize it as valid; for he was persistently asserting plaintiff's right to pursue the property under the Bulk Sales Law. Acquiescence presupposes knowledge and assent. Acquiescence is equivalent to assent, inferred from silence with knowledge, or from encouragement. One does not assent to an act which he knows not of, or which he cannot prevent. While Porter previously *Page 350
knew of Rivers's efforts to dispose of the stock, he did not know of or authorize or acquiesce in any intended sale in disregard of the Bulk Sales Law. He was not present at, and did not then or previously know of, the sale to Kaldenberg, or of the loans of Van Vliet to Kaldenberg, or of the bill of sale given by Kaldenberg to Van Vliet; nor did he, by any suggestion of waiver of plaintiff's rights as a creditor, or by election not to insist on the invalidity of the sale, encourage sale to Kaldenberg without observing the statutory requirements. For these reasons, as well as for those which have been stated with reference to the claim of estoppel, there was no acquiescence. McKeon v. City ofCouncil Bluffs, 206 Iowa 556; Dwight v. City of Des Moines,174 Iowa 178, 181, et seq.; 21 Corpus Juris 1113 et seq., 1202 etseq., 1216 et seq. Plaintiff was prompt and consistent in the assertion of his rights. Van Vliet was placed in no worse position on account of the delay. The delay was not unreasonable. There was no laches. McKeon v. City of Council Bluffs, 206 Iowa 556.
Appellant Van Vliet urges that plaintiff received full notice of sale, price, terms, and conditions, and that, whether he got that information before or after the sale, he had but seven days in which to elect to avoid it. Appellant relies 3. SALES: Bulk upon Schramm Schmieg Co. v. Shope, 200 Iowa Sales Act: 760, and Lietchfield Mfg. Co. v. Heinicke, 200 non- Iowa 958. Neither of these decisions nor the compliance statute limits creditors to seven days after with act: acquiring knowledge of sale in violation of the duty of Bulk Sales Law in which to make election or creditor. bring action. In the Schramm Schmieg Co.
case, it was found as a fact that plaintiff elected to acquiesce in the sale, and irrevocably waived its statutory right. In theLietchfield Mfg. Co. case, the plaintiff, instead of electing to treat the sale as invalid under the Bulk Sales Law, asserted superior title under a conditional sale contract, and neglected to exercise its right of election to invalidate the sale within a reasonable time. Meantime, others had purchased the stock, and acted to their prejudice. While the creditor, after acquiring, actually and constructively, full knowledge of the facts, and, resultantly, of his rights, must, within reasonable time, determine and announce his course, if he would take advantage of the statute, and while his neglect within reasonable time to manifest an *Page 351
election to hold the sale invalid may, when prejudice results, amount to waiver or estoppel or acquiescence, or call into operation the defense of laches, the question as to what is reasonable time is ordinarily one of fact, and not of law. A period of seven days may, in a particular case, be a reasonable time. It is not necessarily such. In this case, plaintiff's attitude was made known immediately. — Affirmed.
ALBERT, C.J., and STEVENS, FAVILLE, and De GRAFF, JJ., concur.
WAGNER, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434455/ | H.E. Crosser was convicted in the district court of Hardin County, Iowa, of the crime of illegal possession of intoxicating liquor. On May 25, 1926, the following judgment was entered in said cause:
"It is hereby ordered that the defendant be and he is hereby sentenced to pay a fine of $600, and be confined in the jail of Hardin County, Iowa, for a term of six months, providing, however, that, when the defendant shall have served three months, the balance of the jail sentence shall be suspended during good behavior. Appeal bond fixed in the sum of $600."
On the same day, the defendant in said action prosecuted *Page 726
an appeal to this court, and furnished an appeal bond on which the appellant herein was surety. Said appeal bond recites:
"The condition of the above obligation is such that, whereas, an indictment having been found in the district court in the county of Hardin on the 29th day of April, 1926, charging H.E. Crosser with the crime of illegal possession of intoxicating liquor and he having been duly tried on the said charge at the April term, 1926, of said court and found guilty of the crime of illegal possession of intoxicating liquor and the said H.E. Crosser on said conviction to pay a fine of $600 and serve 6 months in the county jail providing that at the end of 3 months the balance of jail sentence be suspended during good behavior and that the bond on appeal be $600 and said H.E. Crosser having appealed from said judgment to the Supreme Court of Iowa, now, therefore, in case the said H.E. Crosser shall well and truly pay the said fine, attorney's fee and costs or such part as the Supreme Court may direct and if the said H.E. Crosser shall surrender himself in execution of the judgment and direction of the Supreme Court and in all respects abide the orders and judgments of the Supreme Court, then this bond to be void, otherwise to be and remain in full force."
Thereafter, the appellant, as surety on said appeal bond, proceeded under the statute, gave the required notices, and surrendered the defendant in said action to the sheriff of Hardin County. Thereupon, the appellant made application to the district court to be exonerated from liability on said bond. The application was denied, and from said order this appeal is taken.
Section 13641, Code of 1924, provides:
"At any time before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner:" (As specified in the giving of notice.)
The sole question is whether or not the surrender of the defendant by the surety, in view of the judgment against the defendant and the conditions of the appeal bond, operated to exonerate the surety.
Section 13617, Code of 1924, is as follows:
"After conviction, upon an appeal to the Supreme Court, the defendant must be admitted to bail, if it be from a judgment *Page 727
imposing a fine, upon the undertaking of bail that he will, in all respects, abide the orders and the judgment of the Supreme Court upon the appeal; if from a judgment of imprisonment, upon the undertaking of bail that the defendant will surrender himself in execution of the judgment and direction of the Supreme Court, and in all respects abide the orders and judgment of the Supreme Court upon the appeal."
Section 14002, Code of 1924, provides that an appeal taken by the defendant in a criminal case does not stay the execution of the judgment unless bail is put in.
It is to be noticed that the judgment in the instant case was of a twofold character. It provided for the imposition of a fine upon the defendant, and, in addition thereto, for imprisonment for a stated time. The imprisonment was not imposed in lieu of failure to pay the fine, but was a distinct and separate part of the judgment. The condition of the bond was that, in case the defendant "shall well and truly pay the said fine" and "shall surrender himself in execution of the judgment" and "in all respects abide the orders and judgments of the Supreme Court," then the bond was to be void. It is perfectly obvious that the condition of the appeal bond complied with the form of the judgment. This was that the fine should be paid, and that the defendant should surrender himself in performance of the judgment of the court.
It does not appear that the precise question presented on this appeal has heretofore been before this court. In State v.Stommel, 89 Iowa 67, the judgment was that the defendant pay a fine of $600. No provision appears to have been made in the judgment for imprisonment in default of the payment of the fine. The condition of the appeal bond was that the defendant should pay and satisfy fully the amount of said judgment. The sureties on the appeal bond surrendered the defendant to the officer. We held that, under the terms of the judgment, the defendant was not subject to imprisonment for non-payment of the fine, and that the sureties could not discharge the obligation of the appeal bond by the surrender of the defendant. If we apply the reasoning of theStommel case to the facts of the instant case, it necessarily follows that, where a judgment imposes both a fine and a separate sentence of imprisonment, and the appeal bond, by its terms, provides for the payment of the fine and surrender *Page 728
of the defendant in satisfaction of the sentence of imprisonment, a surrender of the defendant alone does not fulfill the conditions of the obligation. A performance of one part of the judgment is not a satisfaction of another distinct and separate portion of the judgment. The surrender of the defendant may be an exoneration of the portion of the judgment providing for imprisonment, but it is in no way a satisfaction of the portion of the judgment imposing a fine. Even though the sentence had been one imposing a fine and providing for imprisonment in default of payment of such fine, and appeal bond had been furnished providing that the defendant should pay the fine and surrender himself in execution of the judgment, the surrender of the defendant would not be an exoneration of the bond. It is a well established rule that the undergoing of imprisonment in such a case does not release the surety on the appeal bond from the payment of the fine. State v. Meier, 96 Iowa 375. In State v.Marquardt, 194 Iowa 1311, we considered a case where a judgment was entered imposing a fine and providing for commitment until the fine was paid. An appeal bond was filed, which was conditioned upon payment of said fine. After affirmance of said cause in this court, the defendant was imprisoned for the time specified in the judgment, and the sureties sought exoneration on the appeal bond. We held that the sureties had expressly obligated themselves to perform the judgment if the principal failed to do so, and that the undertaking was to pay the fine, and that they were not exonerated by virtue of the imprisonment of the defendant.
The reasoning of the cited cases is applicable to the instant case. The undertaking of the appellant in this case was that he would pay the fine imposed upon the defendant in the event that the defendant failed to do so, and likewise be bound by the penalty of the bond in case the defendant failed to surrender himself for performance of the portion of the judgment which provided for imprisonment. A portion of the judgment has been performed, to wit, the imprisonment of the defendant. A specific and definite portion of said judgment has not been performed, to wit, the payment of the fine. The appellant has not performed the terms and conditions of his obligation, and is not entitled to be exonerated from said bond until the conditions are performed. *Page 729
The order of the trial court was correct, and the judgment appealed from is — Affirmed.
De GRAFF, C.J., and STEVENS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434456/ | Though the suit, in form, is one of foreclosure, its real objective is quite beside the foreclosure mark. The plaintiff in interest is the Bond Mortgage Company, and for the purpose of our discussion we shall treat it as the sole plaintiff. The real question presented is whether the plaintiff is entitled to recover, by foreclosure decree and sale, or otherwise, a certain alleged easement in other lands, as being appurtenant to land already acquired and owned by the plaintiff. The plaintiff is the owner of a certain tract of land described as the west 60 acres of the north half of the southeast quarter of a certain Section 25, in Polk County, the same being located near the northwestern corporate limits of the city of Des Moines, and in the near vicinity of Camp Dodge. Adjoining this land on the west is a 24-acre tract described as Lot No. 23. This latter tract abuts upon the east line of Beaver Road. In this locality, Beaver Road runs northerly from Des Moines, and somewhat diagonally, bearing to the northwest. The following rough sketch will be an aid to an understanding of the locus quo: *Page 665
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]
The defendants Temple were formerly the owners both of the 60-acre tract, and of Lot No. 23. They also owned and occupied as a home, land abutting on the westerly side of Beaver Road. In March, 1918, they executed a mortgage for $1,000, covering the 60-acre tract, to the Iowa Loan Trust Company. This is the mortgage which the plaintiff now seeks to foreclose. The description of the land in the mortgage contained the following clause:
"Including an easement as right of way sixteen (16) feet in width along the south side of that part of the northeast (NE) of the southwest quarter (SW)," etc.
In June, 1920, Temple sold the 60-acre tract to Herrold, and took two purchase-money mortgages for $3,000 and $1,500, respectively, thereon. These mortgages were negotiated to the plaintiff, which acquired its title to the property under foreclosure of such mortgages. These mortgages contained no reference to any right-of-way easement. The property was acquired by the plaintiff, subject to the first mortgage thereon of $1,000 *Page 666
to the Iowa Loan Trust Company. After acquiring title, the plaintiff purchased this mortgage from the Iowa Loan Trust Company. Temple's grantee, Herrold, "assumed" the payment of the $1,000 mortgage. The plaintiff did not assume payment thereof, but did take its title subject thereto. The plaintiff brought this action to foreclose the first mortgage and to obtain a personal judgment against the Temples upon the promissory note. It asks no foreclosure thereof as against the 60-acre tract. It prays foreclosure and special execution against the alleged easement alone. The conceded purpose of the proceeding is to acquire a right-of-way easement over the line "A" to "B," indicated in the plat, and to render said easement appurtenant to the 60-acre tract.
In April, 1921, Temple sold Lot No. 23 to Franks, who is now the owner of said tract. Franks is not made a party to this proceeding. Temple filed a disclaimer of all interest in the real estate over which the easement is claimed. He defends the action, as against himself, on the ground that the acquisition of the mortgage by the plaintiff, under the facts appearing, operated as an extinguishment thereof, as a matter of law, and upon the further ground that the 60-acre tract in the hands of Herrold, and in the hands of plaintiff, as Herrold's grantee, became the primary fund for the extinguishment of the first mortgage, and that the liability of Temple became secondary, and in the nature of a suretyship, and that he is entitled to have the mortgaged land applied to the payment of the debt, as a condition precedent to his liability; or that, in any event, he is entitled to be subrogated to the lien of the mortgage, in the event that he is required to pay the same.
The evidence shows that the only egress out of said 60-acre tract to the public highway was over a right-of-way easement extending to the south from its southwest corner, at Point A, to the point C, upon the highway. This right of way is 32 feet wide, and is laid upon the west line of the Litchfield tract. There never was any actual egress from said tract to the west along the south line of Lot 23. No right of way was ever opened or used along such line. Moreover, the purported right of way described in the mortgage is and was actually occupied by buildings. Moreover, it appears without dispute that the topography *Page 667
of the ground is such as to render travel thereon impracticable, except through expensive grading.
The foregoing constitute the salient facts from which plaintiff's rights must be ascertained. Much is said in the briefs on the subject of merger of title and mortgage lien. The question is not of controlling importance, except so far as it is incidentally involved in the remedy, if any, to which plaintiff is entitled. If the mortgage in suit created an easement, in legal effect, then it was appurtenant to the real estate described in such mortgage. The plaintiff has acquired such real estate. The acquisition of the real estate carried with it every easement appurtenant thereto. See authorities collated in 19 Corpus Juris 935. In that event, it had no need of a foreclosure. The only person interested in litigating that question with it is Franks. Plaintiff has not made Franks a party to its action. Temple disclaims interest in that issue. Plaintiff urges that Franks bought with notice of its mortgage, and is, therefore, bound by it. But the validity of such a claim can only be determined in an action wherein Franks is a party. Whether the mortgage did, in and of itself, create an easement is a question which plaintiff seems to have taken for granted. That the mortgage provision created an obligation is to be conceded. But it does not follow that it created, in and of itself, a present easement. The mortgage was a mere lien and security for the collection of a debt. If it should become necessary to resort to the security, all its provisions could doubtless be enforced to that end. But until enforced, the mortgagee had no right of possession or entry. He had no right of enjoyment of right of way or of other easement. If the plaintiff, as present holder of the mortgage, is entitled now to convert the mortgage obligation into a present easement over this claimed right of way, it is because such relief is essential to its protection in the collection of its debt. Even so, Franks would be a necessary party to any adjudication purporting to establish such easement. From any point of view, therefore, the question resolves itself into one of remedy. To what remedy is the plaintiff entitled in the collection of its debt, and what, if any, are the limitations upon its remedy? The plaintiff prays personal judgment against the Temples on its note, and prays special execution only against the alleged easement. *Page 668
It thereby seeks to withhold from the operation of the mortgage the 60-acre tract which it has already acquired under the second mortgages. If it may thus eliminate the substantial part of its security, and hold the defendants personally liable for a deficiency judgment, the defendants would thereby be deprived of the benefit of the fund which was primarily liable for the payment of the debt. One of two things must be true: Either the defendant, as surety, would be entitled to have all the mortgaged property first exhausted; or he would be entitled to pay the debt and to be subrogated to the mortgage lien upon all the mortgaged property. If the surety paid the debt, the plaintiff could have no further interest in the easement. The confusion of plaintiff's attitude is that its real interest in the easement does not arise at all out of its ownership of the mortgage sued on. It arose before it ever acquired such mortgage, and arose out of its accomplished ownership of the 60-acre tract. As such previous owner, it had no right to the easement, unless it was actually appurtenant to the 60-acre tract when it acquired it. If it was such, the plaintiff had no need to acquire the $1,000 mortgage; if it was not such, the acquisition of such mortgage serves no function in that direction.
The law is well settled in this state that, where one acquires title to real estate under a junior mortgage, he takes it charged with primary liability for the payment of the prior mortgage. The purchase of such prior mortgage will not avail him as a way of escape from such primary liability of his land. In the absence of some other equitable consideration, it has been usually held that a purchase by him of the prior mortgage amounts to a payment and extinguishment thereof. Moore v. Olive, 114 Iowa 650; McDonald v.Magirl, 97 Iowa 677; Price v. Rea, 92 Iowa 12; Crowley v.Harader, 69 Iowa 83; Byington v. Fountain, 61 Iowa 512; Fuller Co. v. Hunt, 48 Iowa 163; Green v. Turner, 38 Iowa 112.
The following excerpts from Moore v. Olive, 114 Iowa 650, will be a sufficient indication of our previous holding on this question:
"Where land is purchased subject to a mortgage, the purchaser is not personally liable for the mortgage debt, but it remains as an incumbrance on the estate. Jones, Mortgages, Section *Page 669
738. After having paid these debts, a court of equity will not aid him in recovering back the money paid. * * * A purchaser under foreclosure of a second mortgage secures nothing but the interest of the mortgagor, and he cannot, by taking an assignment of the first mortgage, set it up as a source of title, or enforce it against the original mortgagor. To suffer the purchaser to retain possession and title of the premises under a foreclosure and a sale of the second mortgage subject to the first, and then acquire title to the first mortgage, which he covenanted to respect, would be to sanction a palpable fraud. While not personally bound to pay the first mortgage, he acquires property with which to pay it, and in satisfying the debt he is doing no more than his duty."
The same rule is laid down in 25 Ruling Case Law 1373, as follows:
"* * * payment of a mortgage by a mortgagor after he has sold his equity of redemption, subject to the mortgage, does not, in the absence of such intention, extinguish the mortgage, as between him and the grantee; as the mortgagor in such case has assumed the position of a surety, and as such is entitled to be subrogated to the rights of the mortgagee. And if the mortgaged property be sold at a judicial sale, subject to the mortgage, there can be no possible reason why the same principle should not be applied. The purchase price is lessened by the amount of the mortgage, and the purchaser will not be permitted in a court of equity thus to take advantage of the mortgagor."
In obedience to the above rule, it must be held that the plaintiff's purchase of the first mortgage amounted to a payment thereof, so far as the surety was concerned, and thereby a discharge of its own property from its lien, and that it is not, therefore, entitled to pursue personal judgment against the defendants Temple. This is the full extent of the interest of Temple in the litigation.
The decree entered below is, accordingly, affirmed. —Affirmed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur. *Page 670 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434457/ | The Johnson Gas Appliance Company, of Cedar Rapids, Iowa, alleged in its petition that for twenty-five years it had manufactured a bench soldering furnace and spent large sums of money in developing, manufacturing, advertising, and selling said product and "that the size, shape, curved hood, color, appearance and design of the legs, have become distinguishing features associated in the minds of the public with the Plaintiff as its maker." The petition then alleged that the defendant partnership was composed of Revel M. Sayers and Mabel L. Sayers, husband and wife, and that Mabel L. Sayers was formerly office manager and secretary of the manager of the plaintiff company; that upon severing her connection with the plaintiff company about three years before suit, the defendant partnership "designed, manufactured, and sold throughout the United States, and especially within and throughout the State of Iowa, a Bench Furnace substantially identical in size, shape, color and general appearance with the same type of curved hood and the same type of legs as is manufactured and sold by the Plaintiff."
Plaintiff further alleged that Mrs. Sayers took the names and addresses of plaintiff's customers with her when she left plaintiff's employ, and the petition prayed for an injunction restraining the defendants from continuing the manufacture, distribution, and sale of products similar in size, appearance, or design, with hood shaped to resemble that used by plaintiff or with legs resembling those used by plaintiff in the manufacture and sale of its bench furnace, and further that plaintiff be awarded $5,000 damages.
The answer of the defendant partnership was a general denial. The trial court held plaintiff failed to introduce sufficient evidence to establish its cause of action and dismissed the petition.
It is enough to state that the evidence did not establish the allegation that plaintiff's customer lists were pirated by defendants, and counsel for plaintiff in their written brief and argument simply contend that the facts show that defendants imitated plaintiff's product to such an extent as to deceive the buying public generally, and the similarity of appearance *Page 643
was such that it either did, or was likely to, deceive the ordinary and casual buyer. Without conceding the correctness of the rule of law contained in counsel's contention, we will confine our discussion of the evidence to that part of the testimony showing the similarity in appearance of the two bench-soldering furnaces.
A bench-soldering furnace is a gas furnace, weighing fifteen to twenty-five pounds, used to heat soldering irons. Both furnaces have similar legs and both have similar curved hoods over the flame used to turn the flame back over the soldering irons. The selling agent for plaintiff testified that "from an outward look it would take a person that was closely acquainted with the furnaces manufactured by the plaintiff and the defendant to tell them apart." But this same witness testified that the name of Johnson Gas Appliance Company appears on the hood of plaintiff's furnace and the name of Reliable Gas Products Company, Cedar Rapids, Iowa, appears on the bench of defendants' furnace; that the name of Johnson Natural Gas was stamped on the burner and valve of plaintiff's furnace and the name of Reliable Gas Products Company, Cedar Rapids, Iowa, was stamped on the burner tube of defendants' furnace; that the handle on plaintiff's furnace is small and round and the handle on defendants' furnace is flat and heavy; that there is some difference in the way the pilot-light tubing is attached to the manifold in the two furnaces. It also appeared in the testimony that plaintiff's furnace is black, while the defendants' furnace is painted an aluminum color and had been so painted for more than a year and a half before the suit was brought.
Such evidence is not a sufficient showing of similarity of appearance. Indeed, it would seem that the difference in color would alone be a sufficient distinguishing characteristic. In the case of Champion Spark Plug Co. v. A.R. Mosler Co., D.C., N.Y., 233 F. 112, 116, the relief granted by the court in an unfair-competition case was a court order that the color of defendant's spark plug be changed. The court was of the opinion that after the color change "not even a careless buyer would be misled."
But the evidence shows, and we are told in argument, that these furnaces are not usually sold from stock by salesmen, and *Page 644
the prospective customer sees nothing but the black-and-white cut or picture of the furnace he buys; that in many instances the customer buys from a black-and-white picture printed or pasted in a catalog of a distributor. Of course, in such pictures the distinction in color is not apparent, and it is true there is a strong resemblance between the pictures and advertising cuts of the two furnaces. A mail-order purchase made in response to the manufacturer's own advertisement would certainly negative any idea of deception. No purchaser would think he was buying plaintiff's furnace if he purchased by mail from the defendant. There is no similarity in name sufficient to invoke the doctrine of Lytle v. Smith, 204 Iowa 619, 215 N.W. 668, or Atlas Assurance Co. v. Atlas Insurance Co., 138 Iowa 228, 112 N.W. 232, 114 N.W. 609, 15 L.R.A., N.S., 625, 128 Am. St. Rep. 189.
There was no evidence concerning the manner in which a dealer would display the cut or pictures of the furnace in his catalog. One witness testified that he purchased defendants' furnace from a hardware dealer after selecting it from the hardware dealer's catalog. This catalog displayed thousands of articles sold by the hardware dealer, but this witness did not testify that he was deceived when the Reliable Furnace arrived in response to his order. In fact, he said he "never paid much attention to the appearance. They all look like one another to me."
Even if the cut in the dealer's catalog were not accompanied by the manufacturer's name, it would afford no basis for the injunctive relief. The manufacturer who sells to retailers has done all that his competitor can demand when he distinguishes his goods from those of another manufacturer. The competitor cannot found an injunctive right against such manufacturer upon the sole ground that retailers may, or do, palm off his goods as those of the competing manufacturer. See Philadelphia Dairy Prod. Co. v. Quaker City Ice Cream Co., 306 Pa. 164, 159 A. 3,84 A.L.R. 466.
It is apparent that the curved hood is functional and used to turn the flame back over the soldering iron to utilize what would otherwise be waste heat. At one time plaintiff owned a patent on this hood which had expired. Plaintiff may not *Page 645
monopolize the functional parts of an unpatented article. Lennox Furnace Co. v. Wrot Iron Heater Co., 181 Iowa 1331, 160 N.W. 356, 165 N.W. 395. The evidence showed that at least one other bench-furnace manufacturer used a similar curved hood.
There is no evidence that defendants or their representatives made any claim or representation that its furnaces were the furnaces of the plaintiff company, nor any evidence that defendants ever represented that they were the agents of the plaintiff company. There was evidence that, because the two companies were located in Cedar Rapids and the catalog cuts and advertising cuts were similar, purchasers of bench furnaces thought there might be some association between the companies. There is evidence that inquiries were made by such purchasers who thought the defendants might be a selling organization created by the plaintiff company. The fact that both furnace manufacturers are located in the same city is not sufficient to warrant recovery. Plaintiff, by engaging in the bench-furnace-manufacturing business in Cedar Rapids, gained no pre-emptive right in that city sufficient to warrant the exclusion of other bench-furnace manufacturers because some confusion might result.
We have examined the record in the light of the rule contended for by plaintiff that mere similarity of appearance is sufficient if it is likely to deceive the ordinary and casual buyer. The rule finds support in some of the cases cited by plaintiff. Rushmore v. Manhattan Screw Stamping Works, 2 Cir., N.Y., 163 F. 939, 19 L.R.A., N.S., 269; H.E. Winterton Gum Co. v. Autosales Gum Chocolate Co., 6 Cir., Tenn., 211 F. 612; and Enterprise Mfg. Co. v. Landers, Frary Clark, 2 Cir., Conn., 131 F. 240. The rule is probably best illustrated by the following quotation from the syllabus in the Rushmore case [163 F. 940]:
"One who manufactures and sells a well-known article of commerce, like an automobile search light, inclosed in a shell of graceful but unpatented design, may maintain a bill for an injunction, profits, and damages against a defendant who sells an automobile search light inclosed in a similar shell, although his *Page 646
name appears prominently thereon as maker, and he has never represented that his lamps were made by complainant, if it is shown that the similarity of the shells does, or is likely to, deceive purchasers."
But the writer of the majority opinion in the Rushmore case almost apologized for the conclusion when he stated [163 F. 942]:
"We are of the opinion, however, that to answer this question in favor of the complainant carries the doctrine of unfair competition to its utmost limit. If it be pushed much farther those engaged in trade will be encouraged to run to the courts with trivial complaints over the petty details of business and thus will grow up a judicial paternalism which in time may become intolerable."
Moreover, the decision is much weakened by a dissenting opinion where the writer states [163 F. 942]:
"The complainant has no design patent, and his case must stand, if at all, as a case of unfair trading, in which the essential element is deception — the palming off of one's goods as those of another. But how a purchaser could be deceived into buying an automobile lamp plainly marked with the name and trade-mark of the defendant in the belief that it was the complainant's lamp is more than I can comprehend. The mere similarity in the shape of the lamps in my opinion is not sufficient to produce such a result."
There are many cases involving unfair competition decided by the state and federal courts. Many of them are collected in the annotation in 84 A.L.R. 472 to 490. We do not deem it necessary to discuss the decisions of other jurisdictions, except to point out that the writer of the A.L.R. annotation, above cited, states the general rule, at page 484, that:
"The essence of unfair competition consists in palming off, either directly or indirectly, one person's goods as the goods of another, and while this involves an intent to deceive, it is not necessary to prove intent by direct evidence, where it is clearly to be inferred from circumstances." *Page 647
The previous decisions of this court follow the above general rule. We said in the case of Motor Accessories Mfg. Co. v. Marshalltown Motor Material Mfg. Co., 167 Iowa 202, 207,149 N.W. 184, 186, that unfair competition:
"* * * consists in the conduct of a trade or business in such a manner that there is an expressed or implied representation that the goods or business of the one man are the goods and business of another * * * The ground of the action of unfair competition is fraud, and this may be shown by direct testimony, or by facts and circumstances or inferred from the manner in which the business is carried on."
The above rule was again approved in Lennox Furnace Co. v. Wrot Iron Heater Co., 181 Iowa 1331, 160 N.W. 356, 165 N.W. 395, where the defendant who imitated plaintiff's Torrid Zone Furnace was held guilty of unfair competition. But in the Lennox case it was conceded that the "mere fact of imitation" did not make out a case. It was the duplication, plus the marketing plan designed and executed to deceive ordinarily prudent persons into believing defendant's furnaces were plaintiff's, that warranted the court in holding the plaintiff was the victim of unfair competition.
Counsel for plaintiff seem to sense the fact that the evidence would not warrant the injunction under the rules of unfair competition expressed in the previous decisions of this court, for we are asked to extend our rule and adopt the rule of the Rushmore case and other federal cases. The record in this case presents no compelling argument for such extension. We are unwilling to bring into the range of court injunction the business practice where intent to deceive is not shown by direct or indirect proof, nor do we feel we should substitute for the ordinary prudent buyer the test of what would likely deceive the casual purchaser.
Here there was no direct evidence to prove intentional deception, and the circumstances of resemblance and marketing plan are insufficient to establish an intent to deceive upon the part of the defendants. The judgment of the trial court is affirmed. — Affirmed.
All JUSTICES concur. *Page 648 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4035467/ | Order entered September 19, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00537-CV
DALLAS INDEPENDENT SCHOOL DISTRICT, Appellant
V.
FAIRY ALLEN, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-02580
ORDER
We GRANT appellant’s September 15, 2016 unopposed motion for an extension of time
to file a reply brief and extend the time to OCTOBER 12, 2016.
/s/ ELIZABETH LANG-MIERS
JUSTICE | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434458/ | Plaintiff brought this action against his mother, Mrs. T.F. Eggleston, for dissolution of a partnership and for an accounting. Plaintiff alleged in his petition that in May, 1920, he entered into an oral partnership agreement with his father, T.F. Eggleston, and that they carried on the partnership under the name of Guarantee Construction Company; that in 1921, the partnership purchased a lumber yard which it operated under the name of Builders Lumber and Mill Company; that plaintiff and his father continued to operate the construction company, doing a general contracting business in Sioux City and vicinity, and the lumber yard until the death of his father in May, 1923; that T.F. Eggleston left a will naming his wife, the defendant, his sole beneficiary which was admitted to probate; that after the death of his father, the defendant, as sole beneficiary under the will and the plaintiff operated the partnership business in the same manner it was conducted before the death of Mr. Eggleston under the name of Guarantee Construction Company until 1926 when the lumber yard was sold; that the defendant retained the proceeds of said sale in the sum of $49,000 under an agreement that plaintiff was to continue in the active operation of the construction company and that the defendant would use the money as the same was needed in the business; that defendant has refund to recognize *Page 922
the plaintiff as a partner and refused to render an accounting or make any settlement with plaintiff and retains all of the property of the partnership as sole owner. Plaintiff prays for a dissolution of the partnership and for an accounting.
The defendant filed an answer alleging that she was sole beneficiary under the will of T.F. Eggleston; that in the estate proceedings she claimed an undivided one-half interest in the property of the deceased; that the plaintiff did not make any claim to the property of T.F. Eggleston, deceased, during the period of the probate proceedings nor at any time thereafter until the filing of this suit but remained silent and acquiesced in the closing of the estate; that by reason of plaintiff's failure to file a claim in the probate proceedings, he is estopped from claiming any share in the property of T.F. Eggleston or against this defendant by virtue of an alleged partnership with T.F. Eggleston; that the order approving defendant's final report and discharging her as executrix was a complete adjudication of the rights of the parties with respect to the assets of the estate; that though the defendant was discharged and the estate closed in 1926, the plaintiff made no claim against the defendant for more than seven years but acquiesced in the ownership, possession and control of the defendant in the assets set over to the defendant by the final order in the probate proceedings.
Plaintiff's contention is that he and his father were the sole members of the partnership and that defendant had no interest therein, while it is the contention of the defendant that she and her husband were sole members of the partnership and that plaintiff was a mere employee working for wages.
The court found that the partnership consisted of T.F. Eggleston, the plaintiff and defendant and entered a decree adjudging that each of said persons were the owners of an undivided one-third interest in the partnership property at the time of the death of T.F. Eggleston and found defendant liable to the plaintiff for such undivided interest, and ordered defendant to account to the plaintiff and sustained plaintiff's motion for a reference. Neither plaintiff nor defendant was satisfied with the decree and each appealed.
The plaintiff introduced convincing evidence that he was a partner with his father. In a financial statement given by the Guarantee Construction Company to the First. Trust and Savings Bank of Sioux City, dated May 20, 1920, executed by T.F. *Page 923
Eggleston, Mr. Eggleston stated the company was a partnership consisting of Harry A. Eggleston, the plaintiff, and T.F. Eggleston. The statement named the defendant as beneficiary of his life insurance. In an application of the construction company for a contract bond, dated in 1920, also executed by T.F. Eggleston, he stated the partnership consisted of T.F. Eggleston, Mrs. T.F. Eggleston and Harry A. Eggleston. Plaintiff signed notes of the construction company, drew partnership checks, signed proposals and bids of the company for construction of buildings and he and his father signed identification cards at the bank at which the company transacted its business which authorized them to sign and indorse for the construction company.
K.B. White, who had been engaged in the building and construction business in Sioux City for 15 years and who was acquainted with T.F. Eggleston, testified with reference to a conversation he had with Mr. Eggleston about a new school building the construction company had bid on testified that "Mr. Eggleston told me that his son, Harry, had estimated the job. Said he didn't do any of the work at all. He told me he would put his son against any estimator in Sioux City and that he had taken Harry in as a partner". The witness further testified that he bought material from the lumber yard and that most of his relations were with the plaintiffs; that from his experience with Harry Eggleston he would say he was a very competent estimator.
J.J. Keefe, who had been in the contracting and construction business in Sioux City for 35 years, testified that he had been acquainted with the plaintiff and his father since 1918; that when they moved from Cedar Rapids to Sioux City Mr. Eggleston was very sick and not able to do much work; that he told the witness that as soon as Harry finished a Cedar Rapids job he would come to Sioux City and take charge of the work; that Harry was doing most of the estimating. The witness testified: "I asked T.F. Eggleston who was doing his estimating and how he was going to carry on? He was a very sick man when I asked him and he said his son was a partner and would take charge of the work and that would relieve him; that he and Harry were sole partners".
Carl Schroeder, an employee of the Builders Lumber and Mill Company, testified that he was employed by the plaintiff; that plaintiff was in charge of the lumber company; that before *Page 924
anything was sold out of the yard the price quoted was first approved by the plaintiff.
James E. Risden testified that he had been acquainted with the plaintiff and his father for many years; that in 1922, T.F. Eggleston told him he had made Harry a full partner in the business.
After the death of T.F. Eggleston plaintiff and defendant continued in possession of the partnership property until 1926 when the lumber yard was sold for $49,000. Defendant executed the conveyance and the proceeds were paid to her which she retained as sole owner of the property after the death of her husband. Plaintiff claims that he negotiated the sale and that defendant retained the proceeds under an agreement to use the money as needed in carrying on the construction work.
From May, 1920, the date plaintiff claims he went into partnership with his father, he received only his ordinary living expenses leaving the remainder of his share of the proceeds in the business at all times. He exercised a substantial control over the partnership affairs.
[1] We have considered the evidence introduced by the defendant to sustain her contention that during all the years of plaintiff's association with his father he was only an employee. We conclude, after a careful reading of the voluminous record, that the position taken by defendant is not sustained by the record, and that plaintiff became a partner with his father in May, 1920, and that the partnership continued until the death of Mr. Eggleston.
With reference to plaintiff's appeal there is evidence that T.F. Eggleston named the defendant as a partner in the Guarantee Construction Company in a financial statement and in an application for a contract bond. She testified that she paid money into the partnership and it appears that she played a minor role in the management of the business.
We are of the opinion that each of the partners has failed to exclude the other from an interest in the partnership and concur in the conclusion reached by the trial court that the partnership consisted of the father, wife and son, each owning an undivided one-third interest.
II. One of the defenses interposed by defendant is that plaintiff is estopped from maintaining this action by his conduct and by the probate proceedings. *Page 925
The conduct complained of is that plaintiff did not file a claim in the estate for any of the property of decedent but acquiesced in the closing of the estate and the approval of the final report. Defendant listed plaintiff as an heir in the probate proceedings and he waived notice of the final report.
The defendant makes the following statement in her argument:
"If Harry had been the surviving partner, it would have been his right and duty to take possession of the partnership assets and handle and dispose of the same after the death of his father. He made no attempt to do this, but permitted his mother, as administratrix, to take possession of everything as the individual property of his father, and later to dispose of the same as the individual property of Estalenia H. Eggleston. He assisted his mother in operating this business, and in selling this property as her own."
The real basis of the defense of estoppel is that because of the conduct of the plaintiff, defendant was led to believe that plaintiff considered himself merely a servant of his father and claimed no interest as a partner.
[2] We are of the opinion that defendant has failed to establish her defense of estoppel. She was the sole beneficiary of her husband's estate under his will. Plaintiff did not claim an interest in his father's estate as heir; he did not question the validity of the will nor was his father indebted to him personally in any way. Plaintiff had no claim to file against the estate. At the time of the death of his father he considered himself a partner, and, in fact, was a partner. As stated later in this opinion, he did not know that defendant claimed to be a partner with her husband until 1933, seven years after closing of the estate.
After the death of Mr. Eggleston, plaintiff and defendant remained in possession of the property and carried on the business. Instead of dissolving the partnership, the plaintiff continued the partnership with his mother who had received her husband's interest in the partnership under the will and continued his active management of the construction company and also the lumber yard until it was sold in 1926.
Plaintiff testified that he negotiated the sale of the lumber yard and when defendant executed the conveyance of the property *Page 926
and received all the proceeds she agreed to use the proceeds for the benefit of the partnership and as required by plaintiff in the operation of the business of the construction company. Defendant denied all of this testimony and claims to have been the sole owner of the lumber yard at the time of the sale.
In 1926, and prior to closing the estate, defendant and her attorneys were in possession of Exhibit "C-1" which is an application for a contract bond executed by Mr. Eggleston on behalf of the Guarantee Construction Company in which he named the defendant and plaintiff as copartners. This is one of the exhibits that defendant relies on to establish her interest in the partnership. The defendant must have known through her close association with her husband and son of the substantial control that plaintiff exercised over the partnership affairs and property prior to the death of Mr. Eggleston, a control clearly established by the record to have been far more extensive than that exercised by a mere employee.
We are of the opinion that defendant cannot have reasonably thought at the time she closed the estate that plaintiff's status with his father was that of a servant working for wages. Assuming, however, that she did believe at all times that plaintiff was not a partner, we find in the record no conduct or statements of the plaintiff that could have reasonably induced that belief.
Defendant's testimony that after the death of Mr. Eggleston plaintiff permitted her to take absolute possession of all of the property as her own is not sustained by the record.
We conclude that during the long, close business relationship between plaintiff and defendant that there was nothing in the conduct of the plaintiff that could have reasonably lead defendant to believe that he considered himself an employee only and not a partner with his father and that she was the absolute owner of all the property from the date of her husband's death.
[3] Plaintiff was not a party to the probate proceedings as a partner and the final order in probate did not adjudicate plaintiff's rights in the partnership property. The probate court administered only the property owned by Mr. Eggleston at the time of his death.
[4] III. Defendant also claims that plaintiff's action is barred by the statute of limitations and laches. To sustain this defense, defendant refers to plaintiff's testimony that in 1926 *Page 927
she told him that "he did not have anything coming", and contends that plaintiff's cause of action accrued at that time because this statement clearly informed him that she did not and never had considered him a partner.
The testimony of the plaintiff that defendant relies on is that when the lumber yard was sold in 1926 for $49,000 the defendant kept possession of the money and agreed to use it when needed by the plaintiff in the construction business and when he asked her for funds for that purpose "she told me I had everything coming to me. You can have the accounts that are delinquent that hasn't been paid to around $2,400, because if you don't give them creditwe would have to take the loss". Italics supplied. This statement, under all the circumstances, was not a direct repudiation of plaintiff as a partner and he could reasonably have inferred from the statement that defendant recognized him as a partner.
In 1933, plaintiff first discovered in the records of the bank Exhibit "A" which was the financial statement executed by his father in 1920 naming him as sole copartner. A short time later he located Exhibit "C-1" in the files of the attorneys for his mother as executrix which named him and his mother as copartners with Mr. Eggleston. Plaintiff testified that he showed these exhibits to his mother and she stated to him that they didn't mean anything; that he never was a partner and she was the only partner her husband ever had.
We find that plaintiff did not know until 1933 that defendant did not consider him a partner and was claiming to be the absolute owner of all the property. Plaintiff's cause of action accrued when he was advised of the attitude of his mother and he then immediately commenced this action to dissolve the partnership and for an accounting. This action was not barred by the statute of limitations nor was plaintiff guilty of laches.
[5] IV. Another error urged by defendant is that the court erred in overruling her motion to vacate the decree and dismiss the action.
When the May 1936 term of court convened, this case had been pending for more than two years and on May 20, 1936, this cause, with other cases, was dismissed by an order signed by the clerk of the court which recites the cases were dismissed under Division No. 1 of the Rules of Practice of the District Court of Woodbury County. Plaintiff, at the same term, filed *Page 928
an application for reinstatement of the action stating that the case was dismissed for want of prosecution under the rules of the court and that it had been assigned for trial by the plaintiff and that the trial had been delayed solely because of the illness of counsel for the defendant; that the cause had been noted for trial at the March, 1936 term by plaintiff but could not be tried because of the absence of defendant's attorneys from the state. The application also stated that neither plaintiff nor his attorneys received any notice that the action was assigned for dismissal.
On June 24, 1936, Judge Rice found the statements contained in the petition for reinstatement to be true, sustained the motion and reinstated the case.
The motion of the defendant to vacate the decree and dismiss the action recites that she had no notice of the filing of the petition to reinstate the action and by reason thereof the court was without jurisdiction to make the order.
The plaintiff filed a resistance to the application stating that the cause was repeatedly assigned for trial and that the delay was entirely due to the defendant; that the clerk was in error under the rules because the case had been continued and was assigned for trial at the May, 1936 term and that notice to defendant was not necessary. The application to vacate the decree and dismiss the action was overruled. The trial court, who had previously ordered the reinstatement of the cause, in overruling the motion to vacate the decree, must have found that the facts stated in the resistance were true and that the rules of practice did not provide for a dismissal of the case under the circumstances shown by the record. In holding that the clerk acted erroneously, in dismissing the cause, Judge Rice, in reinstating the case, and in overruling the motion to dismiss, was obviously interpreting the court rules of practice. The rules were not introduced in evidence. We are not advised of the record circumstances which will permit a dismissal under the rules of court nor of the provisions of the rules in regard to the notice required prior to the dismissal of a case for want of prosecution, or where an application for reinstatement has been filed.
The trial court was advised when he overruled the motion to vacate the decree that no notice of the proceedings to reinstate the action was served on the defendant and was familiar with the condition of the record and the requirements of the rules. *Page 929
We cannot assume that the court did not have jurisdiction to reinstate the case without notice to the defendant. The case is affirmed. — Affirmed.
SAGER, C.J., and HAMILTON, KINTZINGER, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434459/ | This is an action in equity for the partition of real property. The controversy finds its origin in the will of John H. Smith, who died March 2, 1896. By the terms of his will, which was duly admitted to probate, a life estate was devised to Mary E. Smith, surviving spouse, in three parcels of real estate, with remainders in fee, respectively, to certain named persons.
Mary E. Smith (life tenant) died intestate August 31, 1922. She did not, by a writing filed of record in the probate court, consent to accept the provisions of the will, and it is not shown that any notice was given her by interested parties, requiring her to file such consent, as provided by statute.
The plaintiff-appellees are the heirs at law of Mary E. Smith by her first husband. The defendant-appellants are the children of John H. Smith by his first wife, or their heirs at law, and are the devisees or the heirs at law of such devisees under the will of John H. Smith.
At the outset, it is to be observed that the interest of the widow, Mary E. Smith, in the estate of her deceased husband (testator herein) is determined by the law in force at the time of his death. Van Pappelendam v. Thomas, 157 1. DOWER: law Iowa 358; In re Estate of Bernhard, 134 Iowa governing. 603; In re Estate of Emerson, 191 Iowa 900. We quote the statute then in force:
"The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the *Page 249
proper records of the circuit [district] court." Section 2452, Code of 1873.
Under this law, no election by the widow is effective unless the election was entered of record, or such facts shown as constitute an estoppel.
Appellants, in effect at least, concede that no statutory consent was ever filed by Mary E. Smith to take under the will, but they contend that by her acts and conduct she estopped herself from claiming dower or a distributive share in the estate of her deceased husband. The case, therefore, turns on the question of whether the alleged estoppel is supported by the evidence.
The mere fact that the widow, Mary E. Smith, occupied, took 2. WILLS: charge of, and looked after the real estate rights of involved herein, after the death of her husband devisees: and up to the time of her death, does not create Code of an election on her part to take under the will. 1873: There is no evidence that she was ever called election upon, or that she refused, to account to her between will cotenants for the use or rentals of this land. and dower. It is said in Hunter v. Hunter, 95 Iowa 728:
"It is well settled in this state by a long line of decisions of this court that a widow may take a life estate under a will and also her distributive share, or dower, under the law, in the same real estate."
See, also, Irish v. Steeves, 154 Iowa 286; Byerly v. Sherman,126 Iowa 447; Jones v. Jones, 137 Iowa 382; Parker v. Parker,155 Iowa 65; Pring v. Swarm, 176 Iowa 153; Jackman v. Herrick,178 Iowa 1374; Miksch v. Miksch, 179 Iowa 716.
Turning to the provisions of the will of the testator, John H. Smith, we find that the widow, Mary E. Smith, was given a life estate in a quarter section of land situate in Cherokee County, Iowa, with remainder over in fee to his son John W. Smith, one of the defendants herein; that a life estate was given to the widow, Mary E. Smith, in a quarter section of land situate in Ida County, Iowa, with remainder over in fee to his daughters Martha A. Linton and Harriet L. Chadwick, defendants herein; that a life estate was given to the widow, Mary E. Smith, in certain lots situate in Galva, Iowa, with remainder over in fee to his son John W. Smith and his granddaughters *Page 250
Christine and Anna Petersen, defendants herein. This appeal involves the Ida quarter section and the Galva town lots.
It appears that the devisee John W. Smith filed objections to the probate of the will of John H. Smith, his father, and, to avoid this contest, a written contract, on April 9, 1896, was entered into between him and Mary E. Smith, the widow, by the terms of which he agreed to convey his interest in the Galva property and to secure the conveyance from his tenants in common; and Mary E. Smith conveyed to him all her interest in the Cherokee County quarter section, in words as follows:
"All her right, title and interest, including her right of dower as widow of the said John H. Smith also including all her right, title and interest which she may have or become possessed by virtue of the terms of the will of the said John H. Smith, deceased."
It is contended by the appellants that this contract constituted an election on her part to take under the will. We do not accept this viewpoint. The contract tends to show that she intended to retain her distributive share. In any event, it is not such an election as contemplated by the statute. It is not shown that Mary E. Smith ever stated to anyone that she elected to take under the will or that she did not claim her statutory rights in the property. The contract herein mentioned does not appear to have been filed in probate. Her right of election had not been extinguished at the time the contract was executed. In brief, all she attempted to do was to convey whatever interest she had or might elect to take in the property. None of the elements of an estoppel are present in this transaction.
It is suggested in argument by appellants that the record does not show that the appellees are the heirs at law of Mary E. Smith, or that they have any interest whatever in the property. It is true that the answer denied each 3. APPEAL AND and all of the allegations of the petition not ERROR: otherwise admitted or answered. Whether a review: general denial is sufficient to raise the presumption question, we do not decide. The answer as as to amended does refer to "the said Mary E. Smith or sustaining the plaintiffs, her heirs." However, we do not facts. view this particular question as an issue to be determined on this appeal. We must assume that appellees have as much *Page 251
interest in the title to be conveyed to a purchaser of the property as appellants. The decree recited that the land could not be partitioned in kind, and ordered that it should be sold.
There can be no doubt that all parties viewed the appellees as the heirs at law of Mary E. Smith; and, as all were interested in having a proper decree entered, we think it is safe to assume that, if any or all of appellees were not in fact heirs at law of Mary E. Smith, appellants would, for their own protection, have so shown. There is nothing in the record to indicate that the omission to make strict proof was in any way called to the attention of the trial court. The trial court must have considered the allegation in the answer as an admission on the part of appellants.
We find no error in the record, and the decree is —Affirmed.
STEVENS, FAVILLE, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434462/ | I concur in the result and agree that the case should be reversed on account of the admission of testimony as set out in the majority opinion. I cannot, however, agree with all of the statements in the opinion. Some matters I think should be noticed.
The defendant devotes a great deal of his argument to the application of the criminal-syndicalism statute to the facts charged in the case, and also as to the question of the constitutionality of the statute. These matters are not determined in the majority opinion and it may not be necessary to determine them, but considering the extensive argument of the defendant, I believe it is desirable that we determine the applicability of the statute to the present case. It is my opinion that the statute applies to just such a situation as is charged in the indictment, and that the crime of syndicalism should not be limited to apply only to movements which are nationwide in their extent; that it is the incitement to crime by one who, by word of mouth or writing, advocates or teaches the duty, necessity, or propriety of crime, sabotage, violence, or other unlawful means of terrorism, as a means of accomplishing industrial or political reform, which is condemned by the statute, and that whether the reform sought to be accomplished applies to one controversy or to more than one, or whether it is general or only as to one situation, can make no difference. *Page 617
It has been suggested also that in the instant case the word "reform" could not apply, and that the intent of the legislature was that it should not apply to a case such as this. "Reform," however, has a definite meaning: the amendment of what is defective, vicious, corrupt, or depraved; a removal or correction of an abuse, a wrong, or error; and as a verb: to amend, correct, improve; to amend or improve by change of form; removal of faults or abuses; to restore to a former good state; to bring from bad to good or from worse to better. Webster's New International Dictionary. In its general sense it means "change." It has been legally defined as implying both the lessening of evil and the increasing of good (Little v. State ex rel. Huey, 137 Ala. 659,35 So. 134, 136); to correct, to make new, to rectify (McCorquodale v. State, 54 Tex.Crim. Rep., 98 S.W. 879,211 U.S. 432, 435, 29 S. Ct. 146, 53 L. Ed. 269, 270). Clearly it would seem that practically any change having for its ultimate object an improvement of conditions or an advance in wages would come well within the definition of "reform," and of course, if applied to wages or conditions of people employed in factories, would be industrial reform. Therefore it seems that the acts charged in the indictment come definitely within the provisions of section 12906 of the Code, which defines criminal syndicalism as the doctrine which advocates crime, sabotage, violence, or other unlawful means of terrorism as a means, of accomplishing industrial or political reform, and such acts so charged are within the provisions of Code section 12907, which forbids advocating or teaching the duty, necessity, or propriety of such unlawful acts, and includes controversies between employer and employee, or labor disputes. I would therefore hold that the court was right in its instruction No. 9, and that, as qualified, it brought the offense within the terms of the statute. It is not necessary, and I do not think there is any authority for the statement, that the statute must be so interpreted as to contemplate some fundamental change general or universal in extent. It is true and a matter of general knowledge that the I.W.W. contemplated radical changes in or disruption of the whole industrial structure, but convictions have been sustained where no such question entered into the case. In the present *Page 618
case there was a sit-down strike, accompanied by violence. That the violence and sabotage were not of great extent was fortunate. The only question is whether or not the unlawful acts were inspired, or as the State says advocated, by the defendant. My conclusion must be that the statute applies to the present case; that it is not necessary to show that the defendant advocated the overthrow of the government or the abolition of the capitalistic and wage system, and that the crime of criminal syndicalism does not require any such extreme limitation.
The question of the constitutionality of the statute arose frequently during the trial and is argued extensively by the defendant, who makes his third assignment of error as follows:
"Sections 12906 and 12907, Code of Iowa, 1935, are so generally vague, indefinite and uncertain, and contain no statements of fact or law constituting the offense charged in ordinary and concise language that would enable a person of common understanding to know what was intended by the statute, and are, therefore, void and unconstitutional, and contravene and are repugnant to the rights guaranteed the defendant by the Fifth andFourteenth Amendments to the Constitution of the United States, and sections Nine and Ten, Article One, of the Constitution of the State of Iowa, and therefore, the court was in error when it overruled the defendant's motion to set aside the indictment, the demurrer and motion to direct a verdict of not guilty made at the close of the State's case and at the close of the entire case, upon the grounds therein mentioned."
The principal claim, therefore, in this assignment of error is that the statutes are not so framed as to afford due process of law as required by the constitutional provisions referred to. I think that we should take notice of this assignment of error.
The question of the right of free speech is referred to. I do not think such question enters into the case. No one can or should consent to any abridgment of that right. But such right is not denied by laws which punish its abuse, or interference with the rights of others. We have laws forbidding slander, libel, and conspiracy, immoral plays and books, malicious threats, interference with the administration of justice, and many others, *Page 619
and no one contends that they deprive us of our constitutional rights.
Defendant cites various authorities that criminal statutes are to be strictly construed, and that penal statutes should not admit of such double meaning that citizens may act upon one conception of their requirements and the courts upon another. About this there can be no question. Defendant cites various cases, both in his original and reply argument. I merely refer to them: Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S. Ct. 619,70 L. Ed. 1059, involving a Philippine statute known as the Chinese Bookkeeping Act; State v. Tonn, 195 Iowa 94, 191 N.W. 530, but the constitutional question is not there discussed except in a dissenting opinion in which the writer states that it is unnecessary for the purposes of his dissent. Defendant also cites Connally v. General Construction Co., 269 U.S. 385,46 S. Ct. 126, 70 L. Ed. 322, which involved a statute requiring the current rate of wages; Cline v. Frink Dairy Co., 274 U.S. 445,47 S. Ct. 681, 71 L. Ed. 1146, a price-fixing statute; Collins v. Kentucky, 234 U.S. 634, 34 S. Ct. 924, 58 L. Ed. 1510; International Harvester Co. v. Kentucky, 234 U.S. 216,34 S. Ct. 853, 58 L. Ed. 1284, also a price-fixing statute. None of these cases supports his argument. Neither does Lanzetta v. New Jersey,306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888, in which case a statute providing for the punishment of gangsters is obviously indefinite. The case of Tedrow v. Lewis Son Dry Goods Co.,255 U.S. 98, 41 S. Ct. 303, 65 L. Ed. 524, which follows the opinion in United States v. Cohen Grocery Co., 255 U.S. 81,41 S. Ct. 298, 65 L. Ed. 516, also involving a price-fixing statute, also is cited. United States v. Reese, 92 U.S. 214, 23 L. Ed. 563, referred to appropriate legislation to carry into effect theFifteenth Amendment to the Constitution. None of these cases refers to any holding of any court in regard to criminal-syndicalism statutes. Several other cases are cited, including De Jonge v. State of Oregon, 299 U.S. 353,57 S. Ct. 255, 81 L. Ed. 278, which held that the Oregon statute as applied to the particular charge as defined by the state court is repugnant to the due-process clause of the Fourteenth Amendment. The charge was limited to defendant's participation in a meeting called by the communist party, and the opinion sets out that *Page 620
the court sustained the conviction upon that basis regardless of what was said or done at the meeting. Chambers v. State of Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716, was based on a confession improperly obtained. Carlson v. People of State of California, 310 U.S. 106, 60 S. Ct. 746, 84 L. Ed. 1104, involved a county ordinance forbidding the display of banners. Thornhill v. State of Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, was a picketing case. Fiske v. State of Kansas, 274 U.S. 380,47 S. Ct. 655, 71 L. Ed. 1108, was reversed for the reason that the supreme court will review the finding Of facts by a state court where a federal right has been denied as the result of a finding shown by the record to be without evidence to support it; and the syndicalism act in that case was applied to sustain the conviction on the evidence, without any charge or evidence that the organization in which the defendant secured members advocated any crime, violence, or other unlawful acts, and that thus applied the act was an arbitrary and unreasonable exercise of police power. In Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732,81 L. Ed. 1066, a conviction under a statute of Georgia was reversed, but the application of the statute was what was condemned. It was not the statute which was held to be a violation of the right of free speech so much as the application of it to the facts in the case.
The constitutionality of the criminal-syndicalism statutes has often been assailed, but we do not think that in any case the statutes have been held invalid for the reasons urged by the defendant in his brief. A number of cases have arisen involving their constitutionality, and I merely refer to them here. See, State v. Moilen, 140 Minn. 112, 167 N.W. 345, 1 A.L.R. 331; State v. Quinlan, 86 N.J.L. 120, 91 A. 111; State v. Boyd, 86 N.J.L. 75,91 A. 586; State v. Fox, 71 Wash. 185, 127 P. 1111, subsequently affirmed in 236 U.S. 273, 35 S. Ct. 383,59 L. Ed. 573; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A. 1918C, 304 (relating to a statute making it a criminal offense to advocate that men should not enlist in the military forces); People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 509 (sustaining a statute prohibiting the publication of an article advocating the murder of rulers by poison and dynamite). See, also, People v. *Page 621
Gitlow, 234 N.Y. 132, 136 N.E. 317, 268 U.S. 652, 45 S. Ct. 625,69 L. Ed. 1138; Ex parte McDermott, 180 Cal. 783, 183 P. 437; People v. Malley, 49 Cal. App. 597, 194 P. 48; People v. Steelik,187 Cal. 361, 203 P. 78; People v. Taylor, 187 Cal. 378,203 P. 85; Whitney v. People of State of California, 274 U.S. 357,47 S. Ct. 641, 71 L. Ed. 1095; State v. Worker's Socialist Pub. Co.,150 Minn. 406, 185 N.W. 931; Application of Moriarity, 44 Nev. 164,191 P. 360; State v. Laundy, 103 Or. 443, 204 P. 958. The foregoing cases apply more particularly to what may be termed seditious acts, except as to the New Jersey case. Syndicalism as a crime has been expressly passed upon in various cases and in several states. See State v. Hestings, 115 Wash. 19, 196 P. 13; State v. Hemhelter, 115 Wash. 208, 196 P. 581; People v. McClennegen, 195 Cal. 445, 234 P. 91; People v. Wagner, 65 Cal. App. 704,225 P. 464; People v. Cox, 66 Cal. App. 287, 226 P. 14; Burns v. United States, 274 U.S. 328, 47 S. Ct. 650,71 L. Ed. 1077; State v. Dingman, 37 Idaho 253, 219 P. 760; People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358 (writ of error dismissed,273 U.S. 782, 47 S. Ct. 470, 71 L. Ed. 890); Berg v. State,29 Okla. Crim. 112, 233 P. 497.
For the reasons given and from an examination of the foregoing cases, which assailed the constitutionality of the statute from nearly every angle, I would hold that the statute as enacted is constitutional and is applicable to the charges made in this case.
I am authorized to say that JUSTICES MILLER and OLIVER join in this special concurrence. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434463/ | I concur in the majority opinion. However, I am of the opinion the trial court erred in overruling defendant's motion for a directed verdict on the ground the evidence was insufficient to establish the charge that defendant advocated crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform.
An important issue in this case is the meaning of the words "industrial or political reform."
Appellant contends the Legislature meant the advocacy of a fundamental change by violence and crime in our present *Page 622
industrial system, the abolition of the capitalistic or wage system, the overthrow of our form of government. I agree with defendant's interpretation.
The State asserts that the Legislature intended the phrase to apply to controversies between an employer and employee, to labor disputes, to the attempt of labor to secure higher wages or better working conditions. Plaintiff states:
"The term `reform' meaning to reorganize, to rearrange, to correct, amend, rectify or improve and implies the lessening of evil or increasing of good which, if applied to industry, could mean any change or improvement in the relationship between employer or employee."
On this question, the court, in instruction No. 9, said:
"By the term `industrial reform,' is ordinarily meant some radical change in industry or in industrial conditions, ownership, or management. As used in the statute the words may mean that or somewhat less; as used in these instructions it means the seeking of a change in wages, improvement in working conditions, or a better form of contract of employment. But you should keep in mind that these things of themselves are lawful, and may lawfully be sought by peaceful means, and only become unlawful when accompanied by crime, sabotage, violence or other unlawful methods of terrorism."
I am of the opinion the court erred in holding that the term "industrial reform" was used in the statute in a sense contrary to its ordinary and usual meaning, which, as stated by the trial court, "is ordinarily meant some radical change in industry or in industrial conditions, ownership, or management."
This prosecution grows out of a strike called by the negotiating committee of the Local No. 1116 United Electrical Radio and Machine Workers of America pursuant to a dispute over a new wage contract with the Maytag corporation. Defendant was called to Newton by the committee to assist in settling the dispute and negotiate a new contract.
The record shows that whatever defendant did or said at *Page 623
Newton was for the purpose of obtaining a favorable wage contract for the union.
There is nothing in the statutes or in the history of the statutes that even suggests that the Legislature, in using the words "industrial reform," meant anything less than a fundamental change in our industrial system and such change by violence and crime constitutes "criminal syndicalism."
The criminal syndicalism law was enacted by the 38th General Assembly in 1919, over 21 states adopting similar laws about this time. Some of the syndicalism laws used the words "industrial change or revolution"; some used "industrial reform." It is common knowledge that the laws were enacted in the several states pursuant to an aroused public opinion against the Industrial Workers of the World caused by the conduct of this organization and its members during the World War. Judicial notice should be taken of the fact that the several criminal syndicalism laws, including the Iowa enactment, were directed against this radical subversive group which advocated and sought to bring about violent changes in our industrial and political systems. The Legislature did not contemplate that the criminal syndicalism law would be used as a weapon by the State against workmen and labor unions in labor disputes during which the laboring man or union officers and organizers may have committed acts of violence, unlawful acts, in their attempt to advance the welfare of labor through better working conditions and higher wages.
In A History of Criminal Syndicalism Legislation In The United States by Eldridge Foster Dowell, published by the Johns Hopkins Press in 1939, it is stated on page 21:
"The criminal syndicalism laws of every one of the twenty states and two territories which enacted this type of legislation were passed in the brief period from 1917 to 1920, with the exception of a few amendments enacted later. This legislation was, in practically every case, enacted to suppress a revolutionary industrial union known as the Industrial Workers of the World. The western states in which these laws and bills first appeared were the strongholds and bitterest battlegrounds of the I.W.W." *Page 624
I quote from the preamble of the I.W.W. Constitution, as amended in 1908, found on page 26 of the above authority:
"Between these two classes (employing and working classes) a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, and abolish the wage system.
"We find that the centering of management of the industries into fewer and fewer hands makes the trade unions unable to cope with the ever growing power of the employing class. The trade unions foster a state of affairs which allows one set of workers to be pitted against another set of workers in the same industry, thereby helping defeat one another in wage wars. Moreover, the trade unions aid the employing class to mislead the workers into the belief that the working class have interests in common with their employers.
"These conditions can be changed and the interest of the working class upheld only by an organization formed in such a way that all its members in any one industry, or in all industries if necessary, cease work whenever a strike or lockout is on in any department thereof, thus making an injury to one an injury to all.
"Instead of the conservative motto, `A fair day's wage for a fair day's work,' we must inscribe on our banner the revolutionary watchword, `Abolition of the wage system.'
"It is the historic mission of the working class to do away with capitalism. The army of production must be organized, not only for the every-day struggle with capitalists, but also to carry on production when capitalism shall have been overthrown."
For other references to the preamble, see Fiske v. Kansas,274 U.S. 380, 47 S. Ct. 655, 71 L. Ed. 1108; Anderson v. United States, 269 F. 65.
Syndicalism is defined in Syndicalism, Industrial Unionism and Socialism by John Spargo on page 13 in the following language:
"Syndicalism is a form of labor unionism which aims at the abolition of the capitalist system based upon the exploitation *Page 625
of the workers, and its replacement by a new social order free from class domination and exploitation. Its distinctive principle as a practical movement is that these ends are to be attained by the direct action of the unions, without parliamentary action or the intervention of the State. The distinctive feature of its ideal is that in the new social order the political State will not exist, the only form of government being the administration of industry directly by the workers themselves.
"Here or there may be found a Syndicalist to whom some part of this definition may not be acceptable, for Syndicalism is in the process of making, as it were, and is for that reason not capable of rigid definition. On the whole, our definition will probably be acceptable to the vast majority of Syndicalists.
"It will be seen that Syndicalism is primarily an amalgam of Anarchist and Socialist theories. * * *
"All Syndicalists agree that in the new social order toward which they are striving the political State will have no place. There is complete agreement that the only government which will be necessary will be the government of industry, of production and distribution, and that this will be carried on directly by the workers themselves."
In State v. Tonn, 195 Iowa 94, 120, 191 N.W. 530, 541, defendant was convicted of the crime of criminal syndicalism. Justice Weaver dissented from the conclusion reached in the majority opinion relative to the admissibility of evidence obtained by seizure and search of defendant's property. However, in the course of his dissent, Justice Weaver, though admitting that his remarks about the criminal syndicalism statute were unnecessary for the purposes of his dissent, states in regard to this law:
"It is the product of conditions created by the recent world war — an extraordinary piece of legislation which finds its moral justification, if any it has, in the exercise of the war power of the state for its protection against the machinations of its enemies from within its borders, as well as from without. Since it was devised for such commendable purposes, the average loyal citizen yielded cheerful obedience thereto, and few, if any, were disposed to object to its enforcement. With the return of peace, *Page 626
many have felt that the statute in at least some of its features has outlived its usefulness, and should be repealed or materially modified. In many respects, this statute is not unlike the Alien and Sedition Laws which were enacted by Congress in 1798, in anticipation of a threatened war with France, and which were the subject of much political strife. They were, however, enacted as temporary measures, and expired by their own limitation in two years. Had the present act been made to expire with the return of settled peace, few just criticisms would now be heard of such legislation. It is, nevertheless, true that, as a piece of permanent statutory law, it contains much which is ill adapted to normal conditions of society in a republican or democratic form of government, and many of its provisions, from their very obscurity and vague and boundless generalities, afford material for endless trouble. No conviction under it should be sustained, unless it be upon the clearest and most satisfactory evidence, and in my judgment, the case made by the State falls far short of this requirement."
It is apparent from the record that the defendant in all that he did and said was attempting and attempting only to secure a favorable wage contract for the union with the company and a settlement of the strike and this does not constitute a felony, the crime of criminal syndicalism, although it may be conceded that defendant was responsible for the sit-down strike, the negligible alleged sabotage, and stated that the injunction was not worth the paper it was written on. There is no vestige of evidence that he advocated the overthrow of government or abolition of the capitalistic and wage system. *Page 627 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434464/ | The appellee had a life estate in a farm located in Marshall County. The appellant is his son-in-law, and occupied the premises as a tenant, beginning with the year 1917. One Stewart procured a judgment against the appellee, and levied upon his life estate in said premises. The appellant was owing the appellee an amount of rent in excess of the amount of the Stewart judgment against the appellee. Appellee demanded of the appellant that he should pay the rent that was in arrears, in order that the appellee might satisfy the judgment against him and protect said premises from sale under execution. It was orally agreed between the parties hereto that the appellant would himself pay the amount of said judgment and satisfy the same, and he was to receive credit therefor on *Page 1168
the rent due from him to the appellee. Appellee relied on this promise. Thereafter, the appellant informed the appellee that he had satisfied the judgment, and stated the amount he had paid to do so. This statement was false, and instead of paying the amount of said judgment and satisfying the same, the appellant took a sheriff's certificate of sale, and in due time received a sheriff's deed to said premises. Thereafter, he orally promised the appellee that he would deed said premises to him, but failed and refund to do so; and this action was brought to cancel and set aside the said sheriff's deed. The appellee had no notice or knowledge of the sale under execution, and made no effort to redeem, and had no notice or knowledge that the appellant, instead of paying and satisfying said judgment, had in fact acquired the sheriff's certificate of sale and the sheriff's deed. The appellant offered no evidence upon the trial of the case.
The question for our determination is whether, upon the foregoing state of facts, the appellee was entitled to the relief granted by the trial court. The case is not one of an express trust, which, under our statute, must be in writing. The appellant was owing the appellee a debt in excess of the amount of the judgment of Stewart against the appellee. He agreed with the appellee to pay his said debt to the holder of the judgment against the appellee and to satisfy said judgment. He not only violated his agreement so to do, but, on the contrary, knowing that the appellee relied upon his promise to pay and satisfy said judgment against the appellee, he procured a sheriff's deed to appellee's property under execution issued on said judgment, and falsely represented to the appellee that he had satisfied said judgment. The appellee, relying upon said representations, failed to protect his rights in the premises, and the title to said property under sheriff's deed passed to the appellant.
It would be a sad commentary upon the plenary power vested in a court of equity if it were impotent to deal with such a transaction and to administer equity in such a case. A constructive trust was created by the arrangement and agreement between the appellant and the appellee. The appellant agreed to pay the debt which he was owing to the appellee, in a certain way and for a certain purpose. Appellant knew that the appellee relied upon the promise and agreement of appellant and his assurance that he had performed that agreement. It was *Page 1169
clearly fraudulent for the appellant, under such circumstances, and while the appellee was relying upon his representations, to take the title to the premises in himself. Under the undisputed facts, a constructive trust resulted, and a court of equity has the undoubted power to effectuate the purposes of the trust as can most effectively be done under the conditions that exist. In the instant case, this required the cancellation and setting aside of the sheriff's deed and the revesting of the title to the premises in the appellee. The court properly made an accounting between the parties in regard to the rent due from the appellant and the amount expended by him in the satisfaction of said judgment, and we find no error in the accounting. The statute of fraud does not bar the rights of the appellee to obtain the relief sought under the facts in this case.
The decree of the trial court meets with our approval, and it is — Affirmed.
EVANS, C.J., and STEVENS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434364/ | John R. Bonnett died intestate on June 6, 1935. His surviving spouse, the defendant, Lillie F. Bonnett, qualified as administratrix of his estate, and on June 14, 1935, duly posted notice thereof as directed by the clerk of the Lucas district court. The defendant, Martha Bonnett, a daughter of the deceased, was his only heir. The court costs, expenses of administration, claims filed, and other items of disbursement were paid, and the remaining personal property was fully distributed between the surviving spouse and daughter. On December 18, 1936, the administratrix filed her final report, and on the same day a Judge of the court ordered the report for hearing on *Page 114
December 26, 1936, and directed that notice thereof be given by posting. Notice was given as ordered and on January 4, 1937, the court, by an order, duly made and entered, approved the final report, discharged the administratrix and closed the estate.
On March 23, 1937, the appellee brought this independent suit in equity by filing application in the office of the clerk of the district court of Lucas county for an order vacating its order approving the final report in the estate, and for leave to file its claim for the balance owing on a mortgage indebtedness of $9,000 of Robert Larrington and wife, executed to it, on or about March 17, 1920, which it alleged the decedent had assumed and agreed to pay in a deed of the mortgaged premises executed and delivered to him by the Larringtons, on or about February 27, 1920. As "peculiar circumstances" excusing its default in not complying with the provisions of section 11972, Code of Iowa, 1935, the appellee alleged that it was in complete ignorance of the decedent's death until February 24, 1937; that its claim was valid, the estate solvent in excess of $50,000, and the assets of the estate were traceable into and to be recognized in the hands of the heirs.
The appellants filed a resistance to the application denying knowledge of the execution of the Larrington mortgage, and alleging that the deed from Larrington to the deceased was in fact a mortgage, intended by the parties thereto only as security for indebtedness of Larrington to the decedent, and that there was no consideration for the assumption agreement. Appellants further alleged that the appellee had maintained agencies in Chariton during the pendency of the estate and that those in charge knew of the decedent's death, and that it was guilty of laches and there were no equitable reasons for reopening the estate. All other allegations were denied.
In its reply the appellee denied generally the allegations of the resistance, and alleged that on March 27, 1928, while the decedent was the owner of the land in question, he and his wife executed an agreement extending the maturity of the said mortgage indebtedness at reduced interest.
Trial was had before the judge, sitting as a court of equity, and it entered judgment and decree reopening the estate, setting aside the order approving the final report, and granting appellee a reasonable time to file its claim in the estate. It is *Page 115
from this judgment and decree that the appellants herein appealed.
Thereafter, and on January 7, 1938, the appellee in a separate proceeding in probate, in the reopened estate, entitled The Federal Land Bank of Omaha, Nebraska, Claimant, v. Lillie F. Bonnett, Administratrix of the Estate of John R. Bonnett, Deceased, Defendant, filed petition for the allowance of its said claim. Trial was had at law before a judge and jury, and on motion of the appellee a verdict was directed for appellee, and judgment rendered thereon for $7,763.08. The defendant-administratrix appealed from the judgment in the case last above entitled, and said appeal is No. 44719 in this court,226 Iowa 126, 284 N.W. 105.
I. Before proceeding to the merits of the appeal in this cause it is necessary to dispose of the jurisdictional question raised by the appellee in its motion to dismiss the appeal herein, because, as it alleges and contends, no appeal lies from the judgment and decree appealed from.
It is the contention of the appellee that the order appealed from is not a final judgment within the provisions of section 12822 of the Code of 1935, nor an intermediate order within the purview of paragraph 4 of section 12823 of said Code. It bases its contention upon the decision of this court in the case of Ontjes et al. v. McNider et al., 224 Iowa 115, 128, 275 N.W. 328,330, wherein it was held that no appeal lay from the judgment of the trial court permitting the plaintiffs to file their claim in the estate, after the year allowed by section 11972 of Code of 1935. The holding in the Ontjes case is right, but it does not rule the decision in this appeal. It will be noted that in the Ontjes case the estate was open, and that the action was a probate proceeding at law, in the estate, to which not only the executors but also the surviving spouse and the only heir were made defendants. The order appealed from was not a final judgment, nor an intermediate order "involving the merits or materially affecting the final decision." It was merely an intermediate order inhering in the final judgment on the claim, which could be reviewed in an appeal from this final judgment in the probate proceeding.
[1] The situation in the case now before the court is entirely different. In this case the appellee brought a separate, independent suit in equity, not against the administratrix, but *Page 116
against the surviving spouse and the only heir, praying for a judgment and decree setting aside the final order of the probate court closing the estate, and the final order approving the final report of the doings of the administratrix, in making distribution of the assets of the estate. In this case the estate was closed and the property distributed to the widow and the heir, and by the decree appealed from, the estate was reopened and their property rights were endangered. Certainly this adverse judgment in an independent action was of such finality as to entitle the appellants to appeal therefrom.
Appellee contends that the administratrix as the representative of the widow and heir, and those interested in the estate, is the proper party to appeal and that that appeal should be in the final hearing on the claim, since the judgment and decree was not final as to her, and was an intermediate order which could only be appealed from in the final judgment on the claim. It may be that under the authority of Ryan v. Hutchinson, 161 Iowa 575,143 N.W. 433, and Packer v. Overton, 200 Iowa 620, 203 N.W. 307, the administratrix was a proper appellant from the decision in this cause, even though not a named party defendant. A determination of that question is not necessary to a decision in this case, and we do not determine it, because, as stated, the judgment was one from which the defendants might and did appeal. Appellee's motion to dismiss the appeal is therefore overruled and denied.
[2] II. We come now to the merits of the appeal and to a determination of the question of whether the appellee has established, those "peculiar circumstances" excusing its failure to file its claim and serve notice of hearing thereon, within the twelve-month period specified in said Code section 11972, and thereby entitle it to the equitable relief provided therein.
This special statute of limitations, or nonclaim statute, as it is often called, in some like form, is found in the statutes of most of the states. The purpose of statutes of this kind is to secure the early and final settlement of estates. As stated by the South Dakota court in Davey v. McShane, 47 S.D. 265,197 N.W. 680, 681:
"It is not the policy of the law to extend the time indefinitely for creditors to file their claims against the estate of a deceased *Page 117
person. Under the provisions of the law creditors have it in their power to expedite action on their claims."
The supreme court of Missouri spoke to the same effect, in State ex rel. Buder v. Brand, 305 Mo. 321, 265 S.W. 989, 991, to wit:
"The notice [of administration] prescribed by the statute is a warning notice. Its specific purpose is to start the running of the special statute of limitations which precludes the presentation of demands after a time considerably in advance of the bar of the general statute. The general object is, of course, to speed up the administration of estates, to the end that they may be turned over to the persons beneficially interested in them at the earliest possible moment."
The purpose of this statute and the attitude of this court toward it were well expressed by Chief Justice Wright, in Brewster v. Kendrick, 17 Iowa 479, 481, in language as applicable today as when it was written. We there said:
"We are not disposed to recognize any rule or countenance any practice which will tend to retard the speedy settlement of estates. We believe the spirit of the statute accords with the interest of heirs and all of those interested in the assets of the estate, in requiring administrators to be prompt and expeditious in the discharge of their duties, and creditors to be diligent in the presentation and establishment of their claims. And yet there may be cases, and the section above quoted recognizes them, when the delay shall not operate as an absolute bar, and when, to deny the creditor relief, would be manifestly inequitable and unjust. Negligence, however, can never afford a passport to the relief contemplated by the statute. The creditor should be diligent, and the amount of his diligence is always to be measured by the circumstances surrounding him, taken in connection with the condition of the estate, and its administration at the time the relief is sought. Each case must be determined to a great extent, from its own circumstances, keeping in view the spirit of the law, and the rights and duties belonging to and devolving upon those interested in establishing and resisting the claim."
And within the year this court speaking through Justice Hamilton, in Hagen v. Nielsen, 225 Iowa 127, 131, *Page 118 279 N.W. 94, 96, said: "A statute of limitations should not be lightly set aside."
This court has at different times reiterated the principle that no generalized rule is possible, as the question whether relief will be granted in any particular case depends upon the circumstances of that case. In re Estate of Palmer, 212 Iowa 21,236 N.W. 58; Simpson v. Burnham, 209 Iowa 1108, 229 N.W. 679; In re Estate of Jacob, 119 Iowa 176, 93 N.W. 94; Roaf v. Knight,77 Iowa 506, 42 N.W. 433; Meier v. Estate of Briggs, 221 Iowa 482,265 N.W. 189; Hagen v. Nielsen, supra.
The principle is also recognized by this court that the statute, being a remedial one, is to be liberally construed to effect its purpose and to effectuate justice. Chicago N.W.R. Co. v. Moss, 210 Iowa 491, 231 N.W. 344, 71 A.L.R. 936; Anthony v. Wagner, 216 Iowa 571, 246 N.W. 748; Nichols v. Harsh, 202 Iowa 117,209 N.W. 297; Simpson v. Burnham, 209 Iowa 1108,229 N.W. 679.
Cases of this kind have been before this court so frequently and the general principles of law pertinent thereto have been so often fully stated and discussed with citation of authority in support thereof, that further statement thereof or citation, except as to certain rules particularly applicable to the facts herein, is unnecessary.
Turning to the "peculiar circumstances" alleged by appellee, we find them to be: first, that the estate was and is solvent; second, that the assets of the estate are traceable into the hands of the heirs; third, that since receiving the letter of G.C. Stuart on February 24, 1937, mentioning the administration of the estate, it has been diligent in presenting its claim; fourth, that it had no notice of the death of the decedent, until receipt of that letter; fifth, that the claim is a valid one.
[3] Taking these circumstances in order, it appears, without question, both by proof adduced, and by concession made, that the estate "was and is solvent". However, this fact is not, in itself, a peculiar circumstance entitling a tardy claimant to equitable relief under the statute. This principle has frequently been announced by this court, and quite recently by Justice Stiger, in Bates v. Remley, 223 Iowa 654, 661, 273 N.W. 180, 184, as follows:
"In determining whether a claimant is entitled to equitable *Page 119
relief under the statute, the facts that the claim is just, the estate solvent and unsettled are entitled to consideration, but they are not `peculiar circumstances' within the meaning of the statute. The peculiar circumstances must exist independent of said facts."
See, also, Lucas, Executor, v. Ruden et al., Executors,220 Iowa 494, 260 N.W. 60; Williams v. Schee, Admr., 214 Iowa 1181,243 N.W. 529; Meier v. Estate of Briggs, 221 Iowa 482,265 N.W. 189; Anthony v. Wagner, 216 Iowa 571, 246 N.W. 748; Roaf v. Knight, 77 Iowa 506, 42 N.W. 433; Anderson v. Storie, 208 Iowa 1172,227 N.W. 93, 66 A.L.R. 1410; In re Estate of Palmer,212 Iowa 21, 236 N.W. 58; Doyle v. Jennings, 210 Iowa 853,229 N.W. 853. While this factor is to be considered and is not to be minimized, it is not controlling. Chicago N.W.R. Co. v. Moss,210 Iowa 491, 231 N.W. 344, 71 A.L.R. 936; Smallwood v. O'Bryan et al., 208 Iowa 785, 225 N.W. 848; Peterson v. Johnson, 205 Iowa 16,212 N.W. 138; Nichols v. Harsh, 202 Iowa 117, 209 N.W. 297.
The second circumstance is the fact that the assets may be found in the possession of Mrs. Bonnett and the daughter. In the cases just mentioned it is held that the fact that the estate is unsettled is not alone such a circumstance as entitles a claimant to relief under the statute. With how much better reason can it be said that the fact that the estate has been closed and the assets distributed, even though they may be traced, is not such a circumstance? The fact that an estate is still open and unsettled is mentioned in a number of our cases as an important element in determining whether equitable relief should be granted. Roaf v. Knight, supra; Johnston v. Johnston, 36 Iowa 608; In re Estate of Jacob, 119 Iowa 176, 93 N.W. 94. In Brewster v. Kendrick, 17 Iowa 479, it is said:
"But a most controlling consideration is, that the estate remains unsettled. The assets have not been distributed, and had not when this claim was filed."
In Shomo v. Bissell, 20 Iowa 68, we said:
"In every instance in which we have granted relief in this class of cases, the estate remained unsettled and undistributed; and claimants should be held to very strict proof when they come in after final settlement and seek to interfere, either with payments *Page 120
already made, or to subject still other property to the payment of their debt. The fact of final settlement, and especially when made, as in this case, years after the grant of administration, is a most controlling circumstance under the statute."
In Potter v. Brentlinger and Guinn, Executors, 117 Iowa 536,538, 91 N.W. 809, action was brought against the executors of a closed estate, to establish a belated claim. It was not allowed on appeal. We said:
"One of the reasons for allowing a year only within which to file claims, instead of a shorter time, is that none shall be overlooked or forgotten. * * * The circumstance that an estate is open and unsettled is mentioned in many of the cases as of great importance. Certainly, a stronger showing should be exacted after full settlement, but even then much necessarily depends onwhether distribution has been made." (Our italics)
In Hagen v. Nielsen, 225 Iowa 127, 131, 279 N.W. 94, 96, supra, the court, in granting the claimant relief, said: "A most controlling consideration is that the estate remains unsettled and is solvent."
While the fact that an estate is closed does not bar a claimant under this statute (Manatt v. Reynolds, Admr., 114 Iowa 688,87 N.W. 683; Hazlett v. Burge, 22 Iowa 531) it adds to his burden. Certainly the fact that the distributed assets are traceable has little, if any, weight, as a peculiar circumstance, in the appellee's favor.
The third circumstance urged is that the appellee was diligent after receiving actual notice of the death of Bonnett and the administration of his estate. There is no question about this, but this fact aids the appellee but little.
The fourth circumstance relied upon by appellee is that it had no notice of the death of the decedent. This is a purely fact question and it is necessary to set out the pertinent facts. Appellee in argument states that its action was based upon noactual knowledge of decedent's death in time to comply with the statute. Under section 11890 of the Code, executors and administrators shall publish such notice of their appointment as the court or clerk may direct." The clerk in this case directed the administratrix to publish notice of her appointment by posting. So far as the record discloses the administratrix had nothing to do *Page 121
with this choice of notice. The appellee concedes both the validity and the giving of the notice as directed. It was directed "to all persons, companies, corporations, associations and others interested in the Estate of John R. Bonnett, deceased." Whether they were residents or nonresidents of Iowa would be immaterial. After giving the notice as directed there was no further burden on the appellant, under the record, to give any additional or actual notice to the appellee. The claimant, in Bates v. Remley, 223 Iowa 654, 658, 273 N.W. 180, 182, contended that the representative of the estate should have called his attention to the intestate's death. To this the court, through Justice Stiger, replied:
"Plaintiff's position is untenable. Remley gave a proper, adequate notice of his appointment as administrator. Plaintiff, being a resident of the State of Iowa, was bound to take notice of the appointment and the fact that he did not have actual notice thereof is not a peculiar circumstance entitling him to equitable relief. Hawkeye Insurance Co. v. Lisker, 122 Iowa 341,98 N.W. 127.
"The defendant was under no legal obligation to personally call the attention of this particular creditor of the estate to the death of Mr. Clarke. Mr. Rhinehart, attorney for appellant, and Mr. Roberts, the examiner in charge, were residents of Anamosa at the time of the appointment of defendant as administrator and when the notice of his appointment was published. There is nothing in the record to suggest that Mr. Remley knew that plaintiff and his agents did not know of the death of Mr. Clarke and of the appointment of administrator of his estate."
Under the record it does not lie in the mouth of the appellee to urge that the posting of the notice as directed by the clerk is a peculiar circumstance because as he argues it was the least liable to give him actual knowledge. There is no basis on which to charge the appellee with any ulterior connection therewith.
In Hawkeye Insurance Company v. Lisker, Executor, 122 Iowa 341,98 N.W. 127, the plaintiff, as a ground for equitable relief under the statute, contended that it had no actual notice of the executor's appointment, which was duly published in the proper jurisdiction. This court said:
"It will not do to say that because it had no actual notice *Page 122
thereof it may claim equitable relief, because to so hold would destroy the limitation entirely, except in cases of actual notice, while the statute expressly provides for service by publication."
Bonnett died June 6, 1935. The estate was opened on June 14, 1935, and was closed January 4, 1937 — nineteen months after Bonnett's death. The appellee, during the years 1934, 1935 and until about April 1936, had a fieldman, E.R. Jordan, stationed at Chariton, in Lucas county. His duties were to collect or to service loans and to contact the local secretaries and treasurers of the various National Farm Loan Associations, and to advise with them in reference to different loans that the appellee had in the territory, and to discover the conditions of loans and how they were getting along. There were two such local loan associations in Chariton in 1934, 1935 and 1936, of one of which J.C. Williamson was secretary and treasurer. J.E. Hanson, another fieldman, was in Lucas county for about two months, but the year is not disclosed, although he knew of Jordan being there. These local loan associations solicited loans to be made through the Federal Land Bank. They indorsed the borrowers' notes as guarantors. If there was a loss on a loan the association stood good for it. Mr. Boyles, an attorney for the Farm Credit Administration, of which the appellee was a member, was the only representative of the latter who testified for appellee. The Larrington loan matter first came to his attention March 20, 1937. He testified that he corresponded with the fieldmen on matters pertaining to the Federal Land Bank's business, and the fieldmen gave him the information inquired about; that the appellee, in one department or another, used the local secretaries as a source of information about their different loans; that where the facts warranted it, it was common to have considerable correspondence between the local secretaries and the different departments of the appellee as to the status of some particular loan. J.C. Williamson, the secretary and treasurer of one of the local loan associations, a witness for appellant, maintained an office at Chariton. Appellee's fieldman, E.R. Jordan, used this office for the transaction of his business when in town, and had conferences with borrowers there. Williamson made collections for the appellee, on its loans, current and delinquent, for which the appellee paid him commissions. (Italics are ours.) He knew Bonnett and his wife intimately for over forty years, *Page 123
and knew of Bonnett's death and the pendency of his estate. On September 29, 1933, the collection manager of appellee at Omaha, wrote Bonnett, as follows: "* * * We will ask you to please meet Mr. E.R. Jordan, representative of this bank, Tuesday afternoon, October 3, 1933, at the office of Secretary-Treasurer, Mr. J.C. Williamson, Chariton, Iowa. Kindly arrange to keep the above appointment, as our (Italics ours) Secretary-Treasurer and Representative will cooperate with you." Such meeting was had and the appellee advised of it.
No representative of the appellee testified as a witness for appellee as to his knowledge or lack of knowledge of Bonnett's death or of the administration of his estate. E.R. Jordan, appellee's representative and fieldman, was living at Chariton when Bonnett died, and continued to live there for about eleven months thereafter while his estate was being administered. It is significant that appellee did not call him as a witness. His knowledge was its knowledge. Bonnett had lived in the community for many years. He left a net estate of $53,000. He was a man of some prominence in Lucas county. His death and funeral would naturally be given considerable publicity. His widow as administratrix collected cash receipts of $32,899.43 and disbursed $25,390.06 during the eighteen months of her administration. The numerous transactions involved therein would add to the publicity. It is strange that the appellee or its representatives did not learn of Bonnett's death and the administration of his estate. The exercise of reasonable diligence would have disclosed those facts to the appellee. It has shown neither diligence nor excuse for lack of diligence. Taylor v. Jackson, 213 Iowa 844, 239 N.W. 519; First Trust Joint Stock Land Bank v. Terbell, 217 Iowa 624, 252 N.W. 769; Schlutter v. Dahling, 100 Iowa 515, 69 N.W. 884.
The fifth circumstance relied upon by appellee is that its claim is a valid and just one. This is vigorously denied by the appellants. Whether the claim is valid and just is no more relevant or material as an avoidance of this special statute of limitation, than the same fact would be if interposed as a bar to the general statute of limitations. It is not a peculiar circumstance which in any way aids the appellee. In Doyle v. Jennings, 210 Iowa 853, 856, 229 N.W. 853, 854, Justice Evans speaking for the court, with his accustomed clarity of reasoning and of expression, fully answered appellee's contention, in these words: *Page 124
"The `equity' most forcefully contended for by counsel is the fact that the claim was a just claim; that the Mullin estates were solvent; that no one had suffered prejudice by the delay; that, therefore, equity required that such just claim be paid. The argument has its appeal, but quite independently of the statute. (Code 1927, section 11972). It is an argument for amended legislation. As applied to the existing statute, it is quite subversive of it. If the justness of the claim is a sufficient equity to comply with the requirements of the statute, then the statute itself is an idle one. The requisite of justness is imperative, even when the claim is filed within the period of limitation. It is no less required after the period of limitation, even when peculiar circumstances entitling the plaintiff to equitable relief are approved. In other words, the justness of the claim is not a `peculiar circumstance,' within the meaning of this statute. On the contrary, it is of the very essence of the claim itself."
For later confirmation of this sound principle see In re Estate of Palmer, 212 Iowa 21, 236 N.W. 58; First Trust Joint Stock Land Bank v. Terbell, 217 Iowa 624, 252 N.W. 769; Bates v. Remley,223 Iowa 654, 273 N.W. 180.
Appellee in its argument states this circumstance in this language: "For the purpose and intent of this action The Federal Land Bank has a just claim." The merits of the claim, outside of the allegations of the pleadings and some scattered items of evidence, were not gone into on the trial. While there are separate appeals in this court, they were argued together orally, and the printed arguments in each case are not closely confined to the abstracted records in each case. We have read the record in each case, and inasmuch as the decision in this appeal is necessarily decisive of the appeal in the other case, (No. 44719) we may properly refer to one phase of that case which pertains to this "fifth circumstance" we are discussing. The appellant in that case sought to show by competent witnesses what she claimed was the true situation relative to the Larrington deed to Bonnett, namely, that the deed was in fact a mortgage given to secure Bonnett for a loan of $5,000 which Larrington added to the $9,000 which he borrowed from the appellee to buy this land; that there was no consideration for the assumption clause in the deed; that it was agreed between Larrington and Bonnett that the latter should not be liable for the payment of *Page 125
the $9,000, but that its payment was the obligation of Larrington. The testimony offered by appellant to prove these facts was clearly admissible and if admitted would have carried the case to the jury. It was rejected by the court upon the erroneous theory that it varied the terms of a written contract. The justness of the appellee's claim was very questionable under the appellant's profferred testimony.
[4] The appellee contends that because the administratrix paid all claims against the estate by her check as administratrix except two interest payments to appellee which she paid by draft, that she was attempting to conceal her husband's death from the appellee. She was a witness for the appellee and fully explained this matter. Having vouched for her as a witness, the appellee cannot thus discredit her. Appellee further urges that the administratrix knew this land was worth less than the incumbrance, and that the fact that her attorney delayed writing the letter of February 23, 1937, until that time, advising appellee that the appellants were willing to deed the land to it, all indicate a purpose on their part to mislead the appellee. The record discloses no basis of fact for these inferences.
We have read all of the cases cited by appellee and it is our conclusion that the facts in this case clearly distinguish it from all of the cited cases.
[5] This being an appeal in an equity action it is triable de novo. While we have high regard for the eminent ability of the distinguished judge of the lower court, only lately deceased, it is our judgment that judgment and decree appealed from should be and is hereby reversed and is remanded to the trial court with directions to enter decree in accord herewith, and by restoring of record the former order and decree closing the estate of John R. Bonnett, deceased, and approving the final report and petition for discharge of the administratrix, and entering further order and decree rejecting the filing of appellee's claim. — Reversed and remanded.
CHIEF JUSTICE and all JUSTICES concur. *Page 126 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434551/ | By acceptance dated February 15, 1928, of the proposition of Fairbanks, Morse Company, a contract was made whereby Fairbanks, Morse Company agreed to sell and deliver F.O.B. Factories a designated type and style of "Special Electric Diesel Oil Engine with standard equipment for running water cooling and direct connection to Alternator in accordance with specifications attached" for the price of $18,394, including $6,345.35 cancelled balance of a former contract. The town agreed to erect the proper foundations and buildings and furnish common labor, cartage and materials for erection and operation which was to be done under the superintendence of the seller's engineer. The purchase price was to be paid in forty-eight equal pledge orders beginning 60 days from date, payable in consecutive monthly payments "said orders not to be general obligations of said town but a special obligation payable only from the revenues of the Light Power Plant as provided in appropriation ordinance of said Town of Kimballton," title to remain in company until final payment. The company in case of default was entitled to take possession of the machinery and make sale according to the statutes of the state. It was provided that the machinery should remain personal property. By ordinance reciting the contract there were appropriated monthly from all moneys received from the operation of the electric light plant of the town, over and above operating expenses, such sums as would create a fund sufficient to pay the principal and interest of the orders which were declared by the ordinance to be payable only out of such fund. The ordinance provided that the earnings of the plant were pledged as security for payment of the obligations and would be maintained sufficient for that purpose. Plaintiff alleges, among other matters not necessary to relate, that the contract and pledge orders are void because they were ultra vires and contrary to public policy forbidding municipal corporations to mortgage or create liens upon public property. Defendant took issue upon these allegations.
It was stipulated that the town owns a water works for which there is outstanding bonded indebtedness of $4500; that *Page 386
the electric light and power plant was acquired by popular vote. It is stipulated that the building and improvements for the housing of the engine under the contract involved were "all in place and had been erected for more than five years past." The foregoing for present purposes sufficiently sets out the case.
Owing to misapprehension of the rules the appellant did not set out a stipulation made in the lower court that he was a resident and taxpayer of the town of Kimballton. Defendants have not sought to take advantage of this omission. Hence the former opinion, 231 Northwestern 502, has been withdrawn.
The case is ruled by Van Eaton v. Town of Sidney, 211 Iowa 986, and pursuant to that decision the judgment is — Reversed.
All Justices concur except MORLING and STEVENS, who dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434556/ | Both parties having appealed plaintiff will be designated appellee and C.B. Stull, defendant, as the sole appellant, the other parties named having no substantial interest in the controversy.
On September 19, 1922, appellee signed a note with one Bream, payable to Northwestern Bankers Finance Company a year later. The payee was the trade name of one Blum. On September 8, 1923, a judgment was rendered on this note in the municipal court of Des Moines and transcripted to the district court of Polk County on September 18, 1923. In the district court appellant filed a claim for attorney's lien in the amount of $250. Appellee says he knew nothing of either the judgment or the attorney's lien. He continued to make payment to Blum until the note was fully paid but for some reason the note was never surrendered.
It is appellee's claim that he first learned of the judgment when an execution was levied on October 24, 1940, under which $79 of his money was attached by garnishment in the bank in which it was on deposit. Other executions were issued which caused him trouble, embarrassment and expense. For this, as well as the $79, he asks recovery.
[1] Appellant responds with the contention that notice of attorney's lien on the district court docket was the equivalent of an assignment pro tanto of the judgment and as a consequence he had an existing claim. Appellee argues and rightfully so that appellant, if he once had a claim, not having reduced it to a judgment within the statutory period, is now barred from asserting it by the statute of limitations. See Larned v. City of Dubuque, 86 Iowa 166, 53 N.W. 105. The doctrine there laid down has not been overruled or modified and the cause before us affords no reason for doing it now. In addition to this appellant failed to prove the value of the services for which he claims the lien. It follows that appellant's appeal is without merit.
[2] Turning to appellee's cross appeal, he complains that the court erred in awarding him judgment for only $27 instead of $79. Apparently the $27 was determined by applying approximately $50 of the amount attached by garnishment to pay court costs including statutory attorney fees. The statute of *Page 204
limitations had not run against such items. The action of the court was right.
Appellee's motion to dismiss appellant's appeal might well have been sustained for failure to serve notice of appeal on the administrator of Blum, the owner of the judgment, but having had to resort to rather a confused record to see just what the situation was, we concluded to decide the case on its merits.
Accordingly, the cause is affirmed on both appeals. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211510/ | District of Columbia
Court of Appeals
No. 14-CV-819
JUN - 9 2016
BRANDI NAVE,
Appellant/Cross-Appellee,
v. CAB-9433-12
HOWARD A. NEWMAN,
Appellee/Cross-Appellant,
and
No. 15-CV-143
IN RE HOWARD A. NEWMAN, CAB-2582-08
Appellant.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: THOMPSON and EASTERLY, Associate Judges; and FERREN, Senior
Judge.
JUDGMENT
This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgments of the trial court are
affirmed in both matters.
For the Court:
Dated: June 9, 2016.
Opinion by Associate Judge Phyllis D. Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
6/9/16
No. 14-CV-819
BRANDI NAVE, APPELLANT/CROSS-APPELLEE,
V.
HOWARD A. NEWMAN, APPELLEE/CROSS APPELLANT,
Appeal from the Superior Court
of the District of Columbia
(CAB-9433-12)
(Hon. Michael L. Rankin, Motions Judge)
and
No. 15-CV-143
IN RE HOWARD A. NEWMAN, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(CAB-2582-08)
(Hon. Judith N. Macaluso, Motions Judge)
(Submitted November 12, 2015 Decided June 9, 2016)
Stephen J. Stine was on the brief for appellant/cross appellee.
Howard A. Newman was on the brief for appellee/cross appellant.
Before THOMPSON and EASTERLY, Associate Judges, and FERREN, Senior
Judge.
2
THOMPSON, Associate Judge: Before us are appeals from Superior Court
orders in two related actions. The first, a breach-of-contract action, proceeded
before the Honorable Judith N. Macaluso, who, in the appealed-from rulings,
declined to alter or strike certain language she had used in an order denying a
motion for sanctions. The other action, raising primarily a claim of abuse of
process against both an adversary and the adversary‟s attorney, proceeded before
the Honorable Michael L. Rankin. In the challenged rulings, Judge Rankin
dismissed the claims against the attorney but declined to otherwise sanction the
plaintiff. For the reasons discussed below, we affirm the trial court‟s judgments in
both matters.
I. Judge Macaluso’s denial of Mr. Newman’s First and
Second Rule 60 Motions
The matter that was before Judge Macaluso stems from a contract dispute in
which Keith Britt, represented by Howard A. Newman, Esq., sued Brandi Nave,
Esq., his former girlfriend, to recover money he had advanced to her. During the
proceedings in that matter, Mr. Newman, as Mr. Britt‟s counsel, filed a motion for
sanctions against Ms. Nave. On March 16, 2011, Judge Macaluso denied the
motion for sanctions in an order (the “Sanctions Order”) that explained that even if
sanctions against Ms. Nave were otherwise warranted, the court would not impose
3
the requested sanctions because Mr. Britt did “not come to resolution of the issue
he presents with clean hands.”1 Mr. Britt appealed the order denying sanctions,
and this court affirmed the order in a January 2013 Memorandum Opinion and
Judgment (the “MOJ”). After our affirmance, Mr. Newman, now proceeding on
his own behalf, filed a July 3, 2014, Motion for Relief (purportedly) pursuant to
Super. Ct. Civ. R. 60 (b) (the “First Rule 60 Motion”) in which he asked Judge
Macaluso to strike certain passages from the Sanctions Order (passages that this
court, in the MOJ, termed “non-load bearing” and therefore declined to review).
Judge Macaluso denied Mr. Newman‟s First Rule 60 Motion on August 13, 2014.
Thereafter, on August 18, 2014, Mr. Newman filed a Motion to Alter and Amend
the August 13, 2014, Order, pursuant to Super. Ct. Civ. R. 59 and R. 60 (the
“Second Rule 60 Motion”), again asking Judge Macaluso to delete from the
Sanctions Order language that Mr. Newman argued “unfairly attacked his
integrity” and was a “black eye” on him. Judge Macaluso denied the Second Rule
60 Motion on February 3, 2015. This appeal by Mr. Newman (in No.15-CV-143)
1
On August 12, 2011, Judge Macaluso did issue a subsequent order (the
“Reconsideration Order”) granting in part Mr. Britt‟s Motion for Reconsideration
and Clarification, thereby striking certain statements she was persuaded were
inaccurate.
4
followed. He argues that Judge Macaluso erred in not granting relief under Rules
60 (a) and (b). We review for abuse of discretion.2
Super. Ct. Civ. R. 60 (a) provides in pertinent part that “[c]lerical mistakes
in judgments, orders or other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time of its own
initiative or on the motion of any party” (emphasis added). Super. Ct. Civ. R. 60
(b) provides in pertinent that “the court may relieve a party or a party‟s legal
representative from a[n] . . . order” (emphasis added).
Mr. Newman was not a party to the Sanctions Order from which he sought
relief in his First Rule 60 Motion (and, as Judge Macaluso noted in her order
denying the motion, Mr. Newman — who referred to himself as the “movant” —
sought relief from the Sanctions Order “on his own behalf[,]” not on behalf of Mr.
Britt). It appears, therefore, that Mr. Newman lacked standing to apply for Rule 60
2
As Mr. Newman acknowledges, we review the denial of a Rule 60 motion
for abuse of discretion. Johnson v. Lustine Realty Co., Inc., 640 A.2d 708, 709
(D.C. 1994) (reviewing the ruling on a Rule 60 (b) motion). It appears that this
court has not previously stated specifically in a published opinion that abuse of
discretion is our standard of review with respect to rulings on Rule 60 (a) motions.
We now join other courts in so stating. See, e.g., Garamendi v. Henin, 683 F.3d
1069, 1077 (9th Cir. 2012) (“„The standard of review for [a] Rule 60(a) claim is
abuse of discretion.‟”).
5
relief from the Sanctions Order through his First Rule 60 Motion. Cf. Western
Steel Erection Co. v. United States, 424 F.2d 737, 738-39 (10th Cir. 1970)
(declining to relax the standing requirement of Fed. R. Civ. P. 60 (b), reasoning
that “[i]f the threshold bar were not restricted, rule 60(b) could be opened to the
broadest claims of ancillary jurisdiction and thereby thwart the finality of principal
judgments and established procedures to correct fundamental legal errors[,]” and
also holding that “an attorney does not have standing to move under rule 60(b) as a
„legal representative[]‟”).3 We affirm the denial of the First Rule 60 Motion on
that basis. See Riverside Hosp. v. District of Columbia Dep’t of Health, 944 A.2d
1098, 1103 (D.C. 2008) (“Questions of standing may be raised sua sponte by this
or any court.”); Outlaw v. United States, 632 A.2d 408, 411 (D.C. 1993) (“A court
may consider an issue antecedent to . . . and ultimately dispositive of the dispute
before it, even an issue the parties fail to identify and brief.” (quoting United States
Nat’l Bank of Oregon v. Independent Ins. Agents of Am., 508 U.S. 439, 447 (1993)
(internal quotation marks omitted))); Sheetz v. District of Columbia, 629 A.2d 515,
519 n.5 (D.C. 1993) (“[T]he judgment of the trial court may be affirmed on a
ground not raised or considered below.”).
3
This court looks to decisions of the federal courts interpreting the
counterpart federal rules as persuasive authority in interpreting our local civil rules.
See Puckrein v. Jenkins, 884 A.2d 46, 56 n.11 (D.C. 2005).
6
For a related reason, we affirm Judge Macaluso‟s denial of the Second Rule
60 Motion. Because Mr. Newman lacked standing to pursue the First Rule 60
Motion, there can be no abuse of discretion in Judge Macaluso‟s refusal to alter her
ruling that denied that motion.
Notwithstanding the foregoing, we acknowledge that some courts “have
permitted a non-party to bring a Rule 60(b) motion . . . when its interests are
strongly affected[.]” In Re Lawrence, 293 F.3d 615, 627 n.11 (2d Cir. 2002)
(collecting cases). But see Baker v. Gates, No. 14-4371-cv, 2015 U.S. App.
LEXIS 22870, at *4-5 (2d Cir. Dec. 28, 2015) (explaining that this exception is
“factually cabined” and applies only in “extraordinary circumstances,” and
declining to extend its reach “more broadly”); Grace v. Bank Leumi Tr. Co., 443
F.3d 180, 189 (2d Cir. 2006) (referring to the “exceedingly narrow exception to the
well-established rule that litigants, who were neither a party, nor a party‟s legal
representative to a judgment, lack standing to question a judgment under Rule
60(b)”). Even if we were to follow the case law recognizing this exception, we
would agree with Judge Macaluso that Mr. Newman was required to present a
“strong justification” for being allowed to pursue Rule 60 relief from the Sanctions
Motion to which he was not a party. He did not do so. The First Rule 60 Motion
7
discussed at length the claimed errors in the Sanctions Order but did not discuss
how Mr. Newman had been substantially harmed. In the section of his Second Rule
60 Motion discussing how his “substantial rights have been harmed,” Mr. Newman
stated in a conclusory fashion that “[t]here can be no question that [his] reputation
before [the Superior Court], other judges, and other individuals has been harmed as
a result of . . . dicta” in the Sanctions Order, but he provided no specific facts
supporting that assertion. Accordingly, we discern no basis for saying that Judge
Macaluso erroneously exercised her discretion in concluding that Mr. Newman
showed no such strong justification or extraordinary circumstance, and that Rule
60 (b) relief was not warranted because he failed to describe specifically what
substantial rights of his had been harmed by the Sanctions Order.
As for Mr. Newman‟s argument that Judge Macaluso erred in denying him
relief under Rule 60 (a), we similarly can find no abuse of discretion. Mr.
Newman‟s argument is that Judge Macaluso erred by not changing the language in
“the decretal paragraph” of the Reconsideration Order, which mistakenly referred
to striking language from a different March 16, 2011, order (that denied Mr. Britt‟s
motion for fees and costs) instead of from the Sanctions Order (which is what
8
Judge Macaluso clearly intended4). We note that although the prayer for relief
section of the First Rule 60 Motion asked the court to make that change, the
motion cited only Rule 60 (b)(6) as authority for the requested relief and did not
direct Judge Macaluso‟s attention to Rule 60 (a); thus, Judge Macaluso reasonably
understood that Mr. Newman “ask[ed] for this relief [only] under Super. Ct. Civ.
R. 60 (b)(6).” The Second Rule 60 Motion was no less opaque; in it, Mr. Newman
stated (quite weakly) that his “request perhaps should have been under Rule
60 (a).” In any event, because Mr. Newman acknowledges that the
Reconsideration Order “was clear in what it intended to do — modify the
Sanctions Order[,]” we discern no harm to Mr. Newman — and thus no abuse of
discretion — from Judge Macaluso‟s denial of relief. 5
4
Despite using the name of the other order issued on the same day, Judge
Macaluso clearly intended to edit the Sanctions Order. In her Reconsideration
Order, she ordered that language on “page 10” be stricken, but the mistakenly
referenced order had only two pages whereas the Sanctions Order had twelve.
5
See Johnson v. United States, 398 A.2d 354, 366, 367 (D.C. 1979)
(explaining that in reviewing a trial court‟s exercise of discretion, this court “must
determine, first, whether the exercise of discretion was in error and, if so, whether
the impact of that error requires reversal” i.e., whether the error “caused [any]
significant prejudice[,]” and clarifying that it is only “when both these inquiries are
answered in the affirmative that we hold that the trial court „abused‟ its
discretion”).
9
II. Judge Rankin’s dismissal of the complaint against Mr. Newman and
denial of “defendant’s motion” for sanctions against Ms. Nave
The matter that was before Judge Rankin commenced when Ms. Nave
turned the tables by suing both Mr. Newman and Mr. Britt, alleging abuse of
process, malicious use of process, defamation, injurious falsehood/disparagement
of title, intentional infliction of emotional distress, and civil conspiracy — claims
premised on actions Mr. Britt and Mr. Newman took in the prior breach-of-
contract litigation and a related bankruptcy case. Defendant Britt responded by
filing motions for Super. Ct. Civ. R. 11 sanctions against Ms. Nave. Judge Rankin
dismissed Ms. Nave‟s claims against Mr. Newman and denied the “Defendant‟s
motion” for sanctions. Ms. Nave appeals from the order dismissing Mr. Newman,
and Mr. Newman appeals from the ruling denying Rule 11 sanctions.
A. The dismissal of Ms. Nave’s claims against Mr. Newman
Ms. Nave argues that the dismissal of Mr. Newman was improper because
the causes of action against Mr. Newman were legally cognizable and because
Judge Rankin “made no findings whatsoever as to why [he] dismissed” Mr.
Newman. She seeks a ruling that Judge Rankin “clearly erred in dismissing [Mr.]
Newman[.]”
10
The following background is pertinent. On March 7, 2013, defendants Britt
and Newman moved to compel Ms. Nave to respond to their discovery requests,
which, inter alia, asked Ms. Nave to identify the basis for her including Mr.
Newman, Mr. Britt‟s counsel, as a party. Judge Rankin granted the defendants‟
motion and ordered Ms. Nave to “fully respond” by April 5, 2013. At a June 26,
2013, hearing, Judge Rankin emphasized that, to establish the viability of her
claims against Mr. Newman, Ms. Nave would need to persuade the court that Mr.
Newman‟s actions went beyond doing “the kinds of things that one would think
that a lawyer can [do] without having to be charged with abusing process and
misusing the court.”
Ms. Nave eventually responded to the defense discovery requests, stating
that her basis for suing Mr. Newman was his conduct in the previous litigation
before Judge Macaluso and in the bankruptcy court. Ms. Nave stated that Mr.
Newman “acted with bad faith in making multiple misrepresentations of fact and
law on behalf of Mr. Britt” in both matters, and that he “harass[ed]” Ms. Nave‟s
former counsel by calling and emailing them to discuss matters that were
previously settled and “attempted to re-litigate each and every facet of the
underlying Superior Court case” instead of “limiting the issues only to those issues
11
that the bankruptcy court set forth[,]” thus “caus[ing] Ms. Nave‟s legal bills to be
excessive.”
At a status hearing on September 20, 2013, Judge Rankin ruled from the
bench, dismissing Mr. Newman as a party. The same day, the judge memorialized
those rulings in a short written order.6 Although Judge Rankin‟s oral and written
rulings stating that Mr. Newman was dismissed as a defendant were not
accompanied by an explanation for the ruling, the record, including the judge‟s
comments from the bench, leaves little doubt about why he ruled as he did. As
described above, Ms. Nave‟s discovery responses make clear that her basis for
suing Mr. Newman was his conduct in the previous litigation before Judge
Macaluso and in the bankruptcy court. At the September 20, 2013, status hearing,
after Ms. Nave‟s counsel asserted that both Judge Macaluso and the bankruptcy
judge understood that the conduct by Mr. Britt and his counsel involved “bad
faith” and “harassment,” Judge Rankin told the parties that he was “not sure [he]
would‟ve used those characterizations[.]”7 Judge Rankin‟s remarks signify that he
6
Judge Rankin permitted the suit against Mr. Britt to proceed. However,
Mr. Britt later settled with Ms. Nave and is no longer a party.
7
Judge Rankin also asked why Ms. Nave did not seek sanctions from those
courts rather than filing her lawsuit.
12
was unpersuaded that Mr. Newman‟s conduct as counsel had gone beyond doing
“the kinds of things that one would think that a lawyer can [do] without having to
be charged with abusing process and misusing the court.”
Ms. Nave argues that Judge Rankin‟s assessment was wrong as a matter of
law. Actually, the opposite is true. “Only in rare circumstances will a party be
justified in suing his opponent‟s lawyer.” Goldschmidt v. Paley Rothman
Goldstein Rosenberg & Cooper, Chartered, 935 A.2d 362, 381 (D.C. 2007). If
“[a]n attorney . . . pursues in good faith his . . . client‟s interests on a matter fairly
debatable in the law[,] [he] cannot be held liable to an opposing party.” Id.
(quoting Fischer v. Estate of Flax, 816 A.2d 1, 6 (D.C. 2003) (internal quotation
marks omitted)). Further, “there can be no conspiracy when an attorney acts
within the scope of his employment . . . [that is,] where an attorney‟s advice or
advocacy is for the benefit of his client and not for the attorney‟s sole personal
benefit.” Id. (internal quotation marks omitted). “„[S]o long as the lawyer acts or
advises with the purpose of promoting the client‟s welfare, it is immaterial that the
lawyer hopes the action will increase the lawyer‟s fees or reputation as a lawyer or
takes satisfaction on the consequences to a nonclient.‟” Shenandoah Assocs. v.
Tirana, 322 F. Supp. 2d 6, 11 (D.D.C. 2004) (quoting Restatement (Third) of the
Law Governing Lawyers § 57 cmt. g (2003)). “On the other hand, an attorney may
13
be liable if he possesses a desire to harm which is independent of the desire to
protect his client.” Goldschmidt, 935 A.2d at 381 (internal quotation marks and
brackets omitted). “This would constitute actual malice and therefore substantiate
a [claim against the attorney].” Id. (internal quotation marks omitted); see
Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1080 (2d Cir. 1977) (“[A]n
attorney . . . cannot be held liable to third parties for actions taken in furtherance of
his role as counsel unless it is shown that he did something either tortious in
character or beyond the scope of his honorable employment.”) (internal quotation
marks omitted).
Here, the order dismissing Mr. Newman was warranted because Ms. Nave
failed to allege facts from which it could legitimately be inferred that Mr. Newman
acted with malice, i.e., with a desire to harm Ms. Nave that was independent of his
desire to protect Mr. Britt. With one exception, the entirety of Ms. Nave‟s
complaint as it pertains to Mr. Newman alleges that the “[d]efendants” committed
tortious acts (e.g., by filing a “superabundance . . . of motions” against Ms. Nave
and filing pleadings that alleged “false facts” and “unfounded and unsubstantiated
allegations”). The only allegation against Mr. Newman alone is that he
“repeatedly harassed Plaintiff‟s attorneys[] . . . and attempted to rehash matters that
were previously dismissed or settled in a further[] attempt to excessively increase
14
costs of litigation for the Plaintiff.” This allegation nevertheless relates to Mr.
Newman‟s work in service of his client. Ms. Nave‟s brief on appeal likewise
emphasizes that her claims were brought against both Messrs. Newman and Britt
because “[Mr.] Newman was at all times [Mr.] Britt‟s attorney in [prior] litigation”
and acted “on behalf of his client . . . [Mr.] Britt” in the proceedings before Judge
Macaluso in Superior Court and before the Bankruptcy Court. Ms. Nave‟s
allegations, that Messrs. Newman and Britt (as attorney and client) together
committed various torts, fail to satisfy the Goldschmidt requirement that the
attorney be acting in a different capacity from his client to be liable. See
Goldschmidt, 935 A.2d at 381.
Moreover, although Ms. Nave made conclusory allegations about the
defendants‟ having harassed Ms. Nave‟s colleagues, employers, and friends and
having made false statements to third parties outside the litigation context about
Ms. Nave‟s integrity, she alleged no specific facts indicating that her claims
stemmed from anything other than legal proceedings, and she failed to provide any
basis for her claim that Mr. Newman “acted with malice” in carrying out the
alleged torts.8 She failed to do so even though, before dismissing the action against
8
Existence of malice is ordinarily a factual issue for jury, see Alfred A.
Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 290 (D.C. 1977),
(continued…)
15
Mr. Newman, Judge Rankin repeatedly admonished her that she must allege facts
establishing (at least prima facie) the viability of her claims against Mr. Newman.
B. The denial of “defendant’s motion” for sanctions against Ms. Nave
Mr. Britt filed verified motions for Rule 11 sanctions against Ms. Nave, and
Mr. Newman subsequently filed motions to “Adopt and Conform” to Mr. Britt‟s
motions. On March 27, 2013, Judge Rankin issued an Omnibus Order in which he
ruled that the court “will consider defendant Britt‟s motions as having been filed
by both defendants.” However, during the September 20, 2013, status hearing,
Judge Rankin first ruled that Mr. Newman would be dismissed from the suit, and
thereafter denied Mr. Britt‟s — the remaining “defendant‟s” — motions for Rule
(…continued)
but failing to allege any facts supporting a conclusory assertion of actual malice
requires dismissal of a complaint, Mazur v. Szporer, No. Civ.A. 03-00042, 2004
U.S. Dist. LEXIS 13176 (D.D.C. June 1, 2004). Ms. Nave asserts that Judge
Rankin never explained why her allegations “could not state claims against
Newman, but could state claims against Britt.” We think it is obvious, however,
that while the facts alleged in the complaint (e.g., that Nave ended a romantic
relationship with Britt, that the two had a “a minor disagreement” at a birthday
party, that Britt filed a Bar grievance against Nave, that Nave allegedly owed Britt
substantial sums of money, and that Britt “publicized false allegations that [Nave]
. . . suffered from . . . alcoholism”) make plausible the claim that Britt bore malice
toward Nave, none of these alleged facts suggests malice on the part of Newman,
acting as Britt‟s attorney, toward Nave.
16
11 sanctions (rulings that Judge Rankin memorialized in a brief written order). Mr.
Britt filed a motion for reconsideration. On November 8, 2013, Judge Rankin
issued an Omnibus Order again declining to impose Rule 11 sanctions, but
“provid[ing] a record detailing [the reasons for his] decision to deny sanctions.”
The Omnibus Order set out nine reasons — all of which, we note, are persuasive
on their face — why, in Judge Rankins‟s view, “none of the defendant‟s
allegations constitute sanctionable behavior that would require the Court to impose
sanctions.”
Mr. Newman nevertheless argues that because Ms. Nave could not establish
a prima facie case against her adversary‟s attorney, sanctions were required.9 We
conclude for the following reason that we need not delve into the particulars of
whether Nave‟s filing of the lawsuit against Mr. Newman was sanctionable under
9
“We review the trial court‟s rulings as to [Rule 11] sanctions for abuse of
discretion.” Wilkins v. Bell, 917 A.2d 1074, 1082 (D.C. 2007).
17
Rule 11.10 It appears to us that Judge Rankin believed that, to the extent that any
sanction against Ms. Nave was warranted based on her suit against Mr. Newman,
that sanction had effectively been accomplished through the dismissal order. The
judge explained in his November 8, 2013, Omnibus Order that, because Mr.
Newman had been dismissed from the case, the claim that sanctions were
warranted against Ms. Nave for improperly suing Mr. Newman was “moot.” Main
Line Fed. Sav. & Loan Ass’n v. Tri-Kell, Inc., 721 F.2d 904, 907 (3d Cir. 1983)
(noting that a matter is moot when there will be “nothing gained by reaching a
decision”). Just as important for our analysis, in his First Rule 60 Motion (in the
case that was before Judge Macaluso), Mr. Newman asserted that his dismissal
from the case brought by Nave was the “relief requested in [his] Rule 11
motion.”11 Mr. Newman‟s brief on appeal similarly acknowledges that Judge
Rankin “denied the Rule 11 Motions (except for dismissing Newman)” (emphasis
added). Mr. Newman‟s statements show that he, too, recognizes that his dismissal
from the case was effectively a sanction against Ms. Nave. We recognize that in
10
We also observe the fact that a lawsuit is dismissed as not viable does not
compel a conclusion that sanctions are warranted for filing the suit. Cf. Burtoff v.
Faris, 935 A.2d 1086, 1091 (D.C. 2007) (“[A]lthough we have affirmed the trial
court‟s dismissal of [Burtoff‟s suit] on the . . . ground . . . of statute of limitations,
it is not obvious to us that an award of Rule 11 sanctions would be compelled, or
even justified, by Burtoff‟s untimely filing of that suit.”).
11
Specifically, the Rule 11 motion asserted that Judge Rankin was “free to
. . . dismiss Nave‟s action”).
18
his motions to “Adopt and Conform,” Mr. Newman also specifically asked Judge
Rankin to award as sanctions “Defendant‟s attorneys‟ fees . . . arising out of [Ms.
Nave‟s asserted] multiple Rule 11 violations[.]” However, the record strongly
suggests that Mr. Newman did not incur any attorneys‟ fees in responding to the
suit by Ms. Nave;12 Judge Rankin understood that Mr. Newman would hold off on
retaining counsel until the court determined whether the suit against him could go
forward (which it did not after the September 20, 2013, ruling).13 In addition,
although Mr. Newman asked for “punitive damages” when he joined Mr. Britt‟s
motions for Rule 11 sanctions, we see no authority in the rule for an award of such
damages. See Super. Ct. Civ. R. 11 (c)(2) (stating that a Rule 11 “sanction may
consist of, or include, directives of a nonmonetary nature, an order to pay a penalty
into court, or, if imposed on motion and warranted for effective deterrence, an
order directing payment to the movant of some or all of the reasonable attorneys‟
12
Mr. Britt presumably incurred fees and expenses, but, as already noted,
he settled with Ms. Nave and has not appealed the denial of Rule 11 sanctions, and
Mr. Newman lacks standing to challenge the denial of a sanctions award that
would have benefitted Mr. Britt. See In re C.T., 724 A.2d 590, 595 (D.C. 1999)
(“[A]n appellant has standing to appeal from an order of the Superior Court only if
his legal rights have been infringed or denied by that order.”); cf. Garvy v. Seyfarth
Shaw LLP, 966 N.E.2d 523, 532 (Ill. App. Ct. 2012) (holding that law firm
defendant lacked standing to appeal the denial of its codefendant‟s motion, even if
it had an interest in the outcome of the motion).
13
Cf. Peer v. Lewis, 571 F. App‟x 840, 845 (11th Cir. 2014) (“Circuit
precedent indicates that a pro se litigant cannot recover attorney‟s fees under Rule
11.”).
19
fees and other expenses incurred as a direct result of the violation”); cf. Bus.
Guides, Inc. v. Chromatic Communs. Enters., 498 U.S. 533, 553 (1991)
(explaining that district courts are not to use Rule 11 sanctions “as substitutes for
tort damages”).
In light of all the foregoing, we cannot say that Judge Rankin abused his
discretion in declining to further sanction Ms. Nave.
***
For the foregoing reasons, the judgments on appeal are
Affirmed. | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211520/ | MEMORANDUM DECISION FILED
Jun 09 2016, 6:31 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Ann C. Coriden
Madison, Indiana Dominic W. Glover
Columbus, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.C.B., June 9, 2016
Appellant-Petitioner, Court of Appeals Case No.
72A04-1511-AD-2034
v. Appeal from the Scott Circuit
Court
D.E., The Honorable Roger L. Duvall,
Appellee-Respondent. Judge
Trial Court Cause No.
72C01-1502-AD-4
Altice, Judge.
Case Summary
[1] D.D. (Mother) and D.E. (Father) are the biological parents of B.K.E. (Child),
born in 2010. Mother married A.C.B. (Stepfather) in December 2012. About
two years later, Father initiated a paternity action. Mother and Stepfather
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 1 of 12
responded with Stepfather filing a petition to adopt Child, and Father objected
to the petition. Following a hearing, the trial court denied the adoption
petition. Stepfather now appeals arguing that Father’s consent was not required
because Father had not provided support for Child or communicated
significantly with Child for the two years prior to the filing of the adoption
petition.
[2] We affirm.
Facts & Procedural History
[3] Mother and Father were in a relationship that resulted in the birth of Child in
May 2010. The couple lived together off and on due to financial issues, but
they actively raised Child together until the relationship ended in February
2012, when Father was unfaithful. Thereafter, Mother began a relationship
with Stepfather and married him in December 2012.
[4] Although bitter toward Father after the break up, Mother maintained a good
relationship with Father’s parents (Grandparents) and would leave Child at
their house at least once a week while she was at work. Through December
2012, Mother allowed Father to see Child only at Grandparents’ home, which
Father did regularly. Mother also made it clear to Father that he was not to
contact her directly. For example, in response to a text message from Father,
Mother wrote on June 2, 2012: “[Child] is perfect as always! Next time you
want to know how she is doing I will let your parents know and you can ask
them. I’m going to tell you ONE more time .. [sic] do not contact me you lying
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 2 of 12
piece of crap.” Exhibits at 52. Other text messages and calls were ignored by
Mother, including a text from November 2012 in which Father sought
information in order to continue covering Child on his insurance in 2013.
[5] Father and his family celebrated Christmas with Child on December 23, 2012,
just over a week after Mother married Stepfather. The following month,
Mother met with Grandparents and “made it very clear to [Grandparents] that
[Father] was not to be in physical contact anymore with [Child]”. Transcript at
37. Grandparents were visibly upset by this request. While Mother did not
directly threaten to withhold visits if they did not comply, Grandparents felt
that this was implied and therefore honored her request in order to maintain a
relationship with Child.
[6] Beginning in January 2013, Father no longer visited Child due to Mother’s
request. His texts to Mother inquiring about visitation went unanswered.
Father regularly asked Grandparents about Child and on at least two or three
occasions spoke with Child directly while she was with Grandparents. Father
also bought gifts for Child that were kept at Grandparents’ home and kept
secret from Mother. On a few occasions, Father provided envelopes with
money for Grandparents to give to Mother, which Mother refused. She
consistently rejected anything from Father.
[7] Father testified that he was devastated when Grandparents told him that
Mother would no longer permit his visits. He believed this would be short term
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 3 of 12
and that once he got his finances in order1 he could hire a lawyer to go to court
and establish parenting time and child support. He relied on indirect contact
through Grandparents in the meantime and last spoke directly with Child in
July 2014.
[8] In the fall of 2014, Father learned that he could establish child support in
coordination with the prosecutor’s office and without having to hire an
attorney. Accordingly, on December 4, 2014, Father filed an application for
Title IV-D child support services and initiated an action in January to establish
support for Child under cause no. 72C01-1501-JP-1 (the Paternity Action).
[9] One month later, on February 17, 2015, Stepfather filed a petition to adopt
Child, who was four years old at the time. Mother consented to the stepparent
adoption, and Father filed an objection to the petition. Around this same time,
Mother stopped Child’s visits with Grandparents.
[10] The trial court held an evidentiary hearing on July 17, 2015. At the beginning
of the hearing, the trial court noted the pending Paternity Action but indicated,
with agreement of the parties, that the instant adoption case should be
addressed first due to its potentially determinative effect. Mother, Father,
Stepfather, and Grandparents testified at the hearing. The trial court then took
the matter under advisement and issued its order on October 30, 2015, denying
Stepfather’s petition for adoption. In its order, the trial court issued detailed
1
Father filed bankruptcy in 2014.
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 4 of 12
findings and ultimately found that for the two years prior to the filing of the
adoption petition, Father had no significant contact with Child and made no
significant effort to support her. The court further found it apparent that after
December 2012 Mother wanted to end all involvement by Father in her and
Child’s lives. In determining whether Father’s consent to the adoption was
required, the court indicated that the “critical issue [was] whether Mother’s
actions thwarted Father’s communication with the child and the effect of her
refusal to accept any offered support.” Appendix at 19. The court continued:
26. It is not sufficient for Mother to maintain that Father
could have physically come over to [Grandparents’] house or that
she never explicitly stated that [Grandparents’] visitation would
be cut off if Father visited. The fact is that over the period from
Christmas, 2012 until [Stepfather] filed his petition for adoption,
the Mother made very clear that she wanted Father to stay away
from the child and insisted that Father stay away from the Child.
27. The parties and family fell into a routine where the
grandparents could visit, Father would stay away and Mother
was content with Father having nothing to do with the child and
refused the limited offers of support and insurance.
28. Father certainly could have been more attentive to his
parental duties and should not have taken what the Court would
characterize as the easy way out by acquiescing to this
arrangement. But, the burden is upon [Stepfather] and Mother to
show that Father’s consent is not required and it is a very high
burden.
29. This Court on other occasions has found that a non-
custodial parent’s consent is not required even when the custodial
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 5 of 12
parent and adopting step parent have interfered with the efforts of
communication. Those cases, however, have been characterized
with behavior by the non-custodial parent that justified that
interference such as drug use or criminal activity.
30. Mother’s anger over Father’s affair and the breakup of the
relationship, no matter how understandable on Mother’s part or
inexcusable on Father’s part, do not constitute a reason to sever
from the Father his relationship with his child.
31. It is somewhat ironic that when Father finally takes the
steps to assert his rights with his daughter in December, 2014,
which [sic] fact then prompted the adoption action a month later.
32. The Court finds that Mother’s actions to restrict Father’s
contact with the Child and her refusal to accept the few offers of
support and insurance benefits are such that Father’s consent to
the adoption may not be dispensed with and is required. The
petition for adoption is denied.
Id. at 19-20. Stepfather now appeals, arguing that the trial court erroneously
determined that Father’s consent was required.
Standard of Review
[11] We will not disturb a trial court’s ruling in an adoption proceeding unless the
evidence leads to but one conclusion and the trial court reached an opposite
conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). On review,
we presume the trial court’s decision is correct and consider the evidence in the
light most favorable to that decision. Id. Where, as here, a trial court enters
findings of fact and conclusions of law, we determine whether the evidence
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 6 of 12
supports the findings and then whether the findings support the judgment. Id.
We will not set aside the findings or judgment unless clearly erroneous. Id.
Factual findings are clearly erroneous only where the record contains no facts
or inferences to support them and a judgment is clearly erroneous when it is
unsupported by the findings of fact and the conclusions relying on those
findings. Id.
Discussion & Decision
[12] Stepfather argues that it was erroneous for the trial court to require Father’s
consent where Father had only three phone calls with Child and provided no
support for her during the two years prior to the filing of the adoption petition.
While acknowledging that actions by the custodial parent to thwart or rebuff a
non-custodial parent’s communication and support efforts are a relevant
consideration, Stepfather argues that Father had the opportunity for direct
access to Child at all times through Grandparents and, further, that Father only
made a few offers of support.
[13] In Indiana, the consent of a biological parent to the adoption of their child is
not required under certain exceptions enumerated in Ind. Code § 31-19-9-8.
The exceptions relevant here provide that consent is not required from:
A parent of a child in the custody of another person if for a
period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate
significantly with the child when able to do so; or
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 7 of 12
(B) knowingly fails to provide for the care and support of
the child when able to do so as required by law or judicial
decree.
I.C. § 31-19-9-8(a)(2). As this provision is written in the disjunctive, consent is
not required if either failure to communicate or failure to provide support is
established. In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App. 2007).
The burden rests squarely upon the petitioner seeking to adopt, here Stepfather,
to prove the statutory criterion by clear and convincing evidence. See In re
Adoption of T.L., 4 N.E.3d at 662.
[14] On appeal, Stepfather expresses agreement with the vast majority of the trial
court’s findings of fact and indicates disagreement with only one. Specifically,
he disagrees with the trial court’s view that Mother’s statement to Grandparents
was an effort to thwart Father’s contact with Child via an implied threat to
Grandparents. Stepfather, however, does not ask us to review this finding
because he recognizes that would constitute an improper request to reweigh the
evidence. Rather, he argues that a single statement made by Mother in early
2013 cannot constitute a sufficient justification for Father’s two years of failure
to communicate significantly with Child.
[15] As recognized by Stepfather, “[e]fforts of a custodial parent to hamper or thwart
communication between a parent and child are relevant in determining the
ability to communicate.” In re Adoption of A.K.S., 713 N.E.2d 896, 899 (Ind. Ct.
App. 1999) (trial court incorrectly determined that father’s consent for
stepparent adoption was not required where evidence showed that mother
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 8 of 12
refused out-of-state father’s attempts to communicate with son via letters), trans.
denied. See also D.D. v. D.P., 8 N.E.3d 217, 221 (Ind. Ct. App. 2014) (trial court
did not err by finding that mother hampered and thwarted father’s attempts to
communicate where over a six-year period mother ignored almost all of father’s
emails and seemed interested only in terminating father’s parental rights).
[16] Contrary to Stepfather’s assertion on appeal, Mother’s attempts to hamper and
thwart communication between Father and Child went beyond a single
statement and began well before January 2013. When Mother and Father’s
relationship ended before Child’s second birthday, Mother placed significant
limitations on Father’s time with Child, allowing him to see his daughter only
during her weekly visits at Grandparents’ home. Further, in 2012, Mother
angrily rebuffed Father’s attempts to directly communicate with her regarding
their young child and, on other occasions, simply ignored his communications.
After marrying Stepfather, Mother met with Grandparents and made it clear to
them that Father was not to be in physical contact with Child anymore and
could not visit during their time with Child. Grandparents regretfully complied
with this request because they believed that their visits would be cut off if they
did not.2 Thereafter, Mother ignored Father’s texts regarding seeing his child.
As the trial court observed, it was apparent that “Mother wanted to end all
involvement by Father in her and the child’s life.” Appendix at 16.
2
In fact, Mother ceased visits with Grandparents after the adoption petition was filed because Grandparents
indicated that they should have just let Father come over all along.
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 9 of 12
[17] Despite Mother’s efforts, Father continued to maintain some minimum contact
with Child through his parents. He spoke with her on at least three occasions
while in Grandparents’ care, sent her gifts for use at Grandparents’ home, and
regularly checked in with Grandparents regarding Child’s wellbeing.
[18] With respect to support, the record establishes that Mother similarly rebuffed all
efforts by Father. He attempted to send money through his parents, but Mother
refused the envelopes and indicated that she did not want anything from him.
Father sent a text to Mother seeking information to continue to cover Child on
his insurance in 2013, but she did not respond. Mother emphasized at the
hearing that she did not want or need his money.
[19] Without Mother’s knowledge, however, Father did give gifts to Child on her
birthday and holidays to keep and use at Grandparents’ house. During this
time, Father worked on getting his finances in order and in late 2014 began
efforts to establish child support and parenting time through the court. This
endeavor was then met with Stepfather’s petition to adopt Child.
[20] Under these facts and circumstances, we cannot say that the trial court erred by
concluding: “Mother’s actions to restrict Father’s contact with the Child and
her refusal to accept the few offers of support and insurance benefits are such
that Father’s consent to the adoption may not be dispensed with and is
required.” Id. at 20. While Father certainly could have done more, it was
within the trial court’s discretion to determine that Mother’s interference and
outright refusal to work with Father should not be rewarded by dispensing with
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 10 of 12
his consent. Accordingly, the trial court did not err in denying Stepfather’s
petition for adoption.
[21] Father asks that in affirming the trial court we also award appellate attorneys’
fees to him. He argues that Stepfather’s appeal was a “frivolous effort to ‘out
litigate’ Father” and, therefore, fees are appropriate under Indiana Appellate
Rule 66(E). Appellee’s Brief at 12.
[22] Appellate Rule 66(E) provides, in pertinent part, that an appellate court “may
assess damages if an appeal…is frivolous or in bad faith. Damages shall be in
the Court’s discretion and may include attorneys’ fees.” Our discretion to
award attorneys’ fees under this rule is limited to “instances when an appeal is
permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or
purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App.
2003). We must use extreme restraint when exercising our power under the
rule because of the “potential chilling effect upon the exercise of the right to
appeal.” Id. Further, with respect to claims of substantive bad faith, as asserted
here by Father, the party seeking attorneys’ fees “must show that the appellant’s
contentions and arguments are utterly devoid of all plausibility.” Id. Father
has not made such a showing here, and we decline his request for an award of
appellate attorneys’ fees under Appellate Rule 66(E).
[23] Alternatively, Father asks that we remand with instructions for the trial court to
determine an award of appellate attorneys’ fees pursuant to Ind. Code § 31-14-
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 11 of 12
18-2.3 His argument is not well developed. Moreover, because Father appears
to have never requested an award of attorneys’ fees below, we agree with
Stepfather that the issue is not properly before us.
[24] Judgment affirmed.
[25] Bailey, J. and Bradford, J., concur.
3
I.C. § 31-14-18-2(a) provides that a trial court may order a party to pay:
(1) a reasonable amount for the cost to the other party of maintaining an action under this
article; and
(2) a reasonable amount for attorney’s fees, including amounts for legal services provided and
costs incurred, before the commencement of the proceedings or after entry of judgment.
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 12 of 12 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211521/ | ATTORNEY FOR PETITIONER: ATTORNEY FOR RESPONDENT:
STUART T. BENCH MARILYN S. MEIGHEN
BENCH LAW OFFICE ATTORNEY AT LAW
Indianapolis, IN Carmel, IN
______________________________________________________________________
IN THE FILED
INDIANA TAX COURT Jun 7 2016, 12:42 pm
CLERK
______________________________________________________________________
Indiana Supreme Court
Court of Appeals
and Tax Court
KATHRYN GILLETTE, )
)
Petitioner, )
)
v. ) Cause No. 49T10-1305-TA-00053
)
BROWN COUNTY ASSESSOR, )
)
Respondent. )
ON APPEAL FROM A FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
June 7, 2016
WENTWORTH, J.
Kathryn Gillette challenges the final determination of the Indiana Board of Tax
Review that valued her real property at $592,000 for the 2009 tax year.1 Upon review,
the Court affirms the Indiana Board’s final determination.
FACTS AND PROCEDURAL HISTORY
Gillette owns rental property on Sweetwater Lake in Nineveh, Indiana. In 2009,
1
While Gillette maintains she is appealing her 2008 through 2012 assessments, her Petition for
Review to the Indiana Board and the Indiana Board’s final determination address the propriety
of her 2009 assessment alone. (Compare Pet’r V. Pet. at 3 and Pet’r Br. at 4, 7, 13 with Cert.
Admin. R. at 2-4, 18-25.) Consequently, the Court will review only Gillette’s 2009 assessment.
See IND. CODE § 33-26-6-3(b) (2016) (limiting the Court’s review to the issues raised by litigants
during the Indiana Board proceedings or the issues considered in the Indiana Board’s final
determination).
that property was assigned an assessed value of $636,500 ($102,400 for land and
$534,100 for improvements). Believing this value to be too high, Gillette appealed her
assessment first to the Brown County Property Tax Assessment Board of Appeals and
then to the Indiana Board.
On January 8, 2013, the Indiana Board conducted a hearing during which it
determined that the Brown County Assessor bore the burden of proof because Gillette’s
assessment had increased by more than 5% from 2008 to 2009. (See Cert. Admin. R.
at 99-103.) The Assessor indicated, however, she could not make a prima facie case to
support the 2009 assessment and asked the Indiana Board to reinstate Gillette’s 2008
assessment of $592,000. (See Cert. Admin. R. at 113-15.)
Gillette, on the other hand, claimed that her 2008 assessment of $592,000 was
too high because her property was only worth about $440,000 in 2009. (See, e.g., Cert.
Admin. R. at 115, 142.) In support of her claim, Gillette testified that her land was worth
about $40,000 because 80% of it abutted the road instead of the lake, and as a result, it
often collected leaves and garbage. (See Cert. Admin. R. at 131-36.) Regarding the
improvements, Gillette presented her rental insurance policy declarations, which
indicated that for 2005 through 2012 the liability limits to rebuild her house were
between $275,300 to $475,215. (See Cert. Admin. R. at 68-78, 124.) Gillette also
presented two appraisals prepared for mortgage companies that valued her property at
$260,000 as of September 1, 1998 and $482,000 as of April 21, 2006. (See Cert.
Admin. R. at 40-67.) Finally, Gillette maintained that she could not sell her property for
more than $600,000 and could not rent it for $2,500 per month, which indicated that its
rental value was less than $250,000. (See, e.g., Cert. Admin. R. at 36, 81, 83, 90-94,
2
122, 135-43.)
On April 5, 2013, the Indiana Board issued its final determination stating that the
Assessor had “admitted [that Gillette’s] assessment should be reduced to $592,000[,]”
the amount of the 2008 assessed value, for the 2009 tax year. (Cert. Admin. R. at 24 ¶
20.) In addition, the Indiana Board found that Gillette had “failed to make a prima facie
case for any assessed value less than that amount” because she “did not provide
substantial, probative evidence to support her claim[.]” (See Cert. Admin. R. at 22-24
¶¶ 19-20 (emphasis added).) Accordingly, the Indiana Board changed the 2009
assessed value to the prior year’s assessed value of $592,000, “consistent with other
Board final determinations where the Respondent failed to satisfy the burden imposed
by Ind[iana] Code § 6-1.1-15-17.2.” (Cert. Admin. R. at 22 ¶ 18.)
On May 20, 2013, Gillette initiated this original tax appeal. The Court heard oral
argument on June 2, 2014. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
The party seeking to overturn an Indiana Board final determination bears the
burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane
Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). The Court will reverse an Indiana
Board final determination if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; contrary to constitutional right, power, privilege or
immunity; in excess of or short of statutory jurisdiction, authority, or limitations; without
observance of the procedure required by law; or unsupported by substantial or reliable
evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2016).
3
ANALYSIS
On appeal, Gillette claims that the Indiana Board’s final determination must be
reversed for two alternative reasons. First, Gillette contends that the Indiana Board
erred in adopting a valuation derived from the cost approach rather than the income
approach. (See Pet’r Br. at 1, 6-14.) Alternatively, Gillette claims that the Indiana
Board erred in rejecting her entire evidentiary presentation.2 (See Pet’r Br. at 1, 12-15;
Oral Arg. Tr. at 8-10.)
I.
This Court has previously explained that Indiana assesses real property on the
basis of its market value-in-use: i.e., “the value ‘of a property for its current use, as
reflected by the utility received by the owner or a similar user, from the property[.]’”
McKeeman v. Steuben Cnty. Assessor, 10 N.E.3d 612, 614 (Ind. Tax Ct. 2014) (quoting
2002 REAL PROPERTY ASSESSMENT MANUAL (Manual) (incorporated by reference at 50
IND. ADMIN. CODE 2.3-1-2 (2002 Supp.)) at 2). See also IND. CODE § 6-1.1-31-6(c)
(2009). Although three generally accepted appraisal techniques (i.e., the cost, sales
comparison, and income approaches) may be used to appraise an individual property’s
market value-in-use, “the cost approach has historically been used in mass appraisal by
assessing officials” because “often times [they] do not have the data or time to apply all
three approaches[.]” Manual at 3; see also REAL PROPERTY ASSESSMENT GUIDELINES
FOR 2002 – VERSION A (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 & 2
(explaining how property is to be valued under the cost approach).
2
Gillette also claimed that the Brown County Property Tax Assessment Board of Appeals
(PTABOA) erred in basing her assessment on her property’s listing price because her home
never sold. (See Pet’r Br. at 8-9, 11, 13.) The Tax Court, however, only reviews the actions of
the Indiana Board and not the PTABOA. See Ind. Tax Court Rule 2.
4
Gillette contends that the Indiana Board’s final determination is contrary to law
and must be reversed because during the Indiana Board’s proceedings she established
that she owned a rental property. (See Pet’r Br. at 7.) As a result, Gillette argues that
the Indiana Board was required to adopt a valuation derived from a variation of the
income approach, i.e., the gross rent multiplier, rather than a valuation derived from the
Assessor’s application of the cost approach. (See Pet’r Br. at 8-11.)
To support a reduction in her property’s assessed value, Gillette had the burden
to provide the Indiana Board with market-based evidence (e.g., sales data, appraisals,
or actual construction costs) that demonstrates that the assessment does not provide
an accurate reflection of the property’s market value-in-use. Manual at 5. Gillette’s
argument that the Indiana Board erred in adopting a valuation derived from the cost
approach rather than one derived from the income approach, however, attacks merely
the methodology used to determine the 2008 assessed value and does not address the
key issue – whether $592,000 was a reasonable reflection of the property’s market
value-in-use. Accordingly, the Court finds no basis for reversing the Indiana Board’s
final determination with respect to this issue. See P/A Builders & Developers, LLC v.
Jennings Cnty. Assessor, 842 N.E.2d 899, 900-01 (Ind. Tax Ct. 2006) (providing that
Indiana’s current assessment system focuses on whether the assessed value is actually
correct, not on methodology), review denied.
II.
Gillette has also claimed that the Indiana Board’s final determination must be
reversed because it improperly rejected her entire evidentiary presentation. (See, e.g.,
Pet’r Br. at 12-15.) Gillette explained that she presented market-based evidence to the
5
Indiana Board that included her rental insurance policy declarations from 2005 to 2012,
a 1998 appraisal, and a 2006 appraisal that established the value of her rental property
as $440,000 for the 2009 tax year. (See Pet’r Br. at 12-15.) Gillette also testified that
she was unable to rent her house for $2,500 or sell it for more than $600,000. (See
Pet’r Br. at 11.) Nonetheless, the Court finds this evidence is not probative, as did the
Indiana Board.
Indiana’s assessment regulations require the 2009 assessed value of property to
reflect its value as of January 1, 2008. See 50 IND. ADMIN. CODE 21-3-3(b) (2009) (see
http://www.in.gov/legislative/iac/) (explaining that prior to 2010, a property’s March 1
assessment was to reflect its market value-in-use on January 1 of the preceding year)
(repealed 2010). Consequently, Gillette was required to relate her evidence to the
January 1, 2008 valuation date. See, e.g., Monroe Cnty. Assessor v. Kooshtard Prop. I,
LLC, 38 N.E.3d 754, 757 (Ind. Tax Ct. 2015). The certified administrative record
reveals, however, that Gillette did not do so. (See generally Cert. Admin. R. at 96-182.)
As a result, the Court cannot find that the Indiana Board erred in finding that Gillette’s
entire evidentiary presentation failed to make a prima facie case for any assessed value
less than $592,000.
CONCLUSION
For the above stated reasons, the Indiana Board’s final determination in this
matter is AFFIRMED.
6 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4318203/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KIMBERLY JEAN KLEINHENZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1246
[October 4, 2018]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge;
L.T. Case No. 2013CF000741A.
David M. Lamos, Fort Pierce, for appellant.
No appearance required for appellee.
PER CURIAM.
Affirmed.
GROSS, DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 10-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3434478/ | Plaintiff's petition is in two counts alleging substantially the same slanderous statements claimed to have been made on two occasions: the first, on January 14, 1946, at the annual meeting of stockholders of the bank of which plaintiff was president and defendant a stockholder; and the second, on June 18, 1947, at a country crossroad where a group was discussing a drainage project on a near-by farm.
The statements were made directly to plaintiff and accused him of stealing certain elevator stock, taking five thousand dollars from the bank, and of being a thief and a liar. Others were present on both occasions and heard some, at least, of the statements. Those who testified said their opinion of plaintiff was not changed by defendant's charges. The sufficiency of the evidence of the making of the alleged statements is not questioned.
Plaintiff testified he spent "many sleepless nights over some of the incidents that has happened" between defendant and himself and that the same was true of the incident of June 18, 1947. His wife said "he was a wreck" that evening.
Plaintiff, sixty-nine years old, had been president of the Aredale State Bank over twenty years and was re-elected at *Page 176
the January 14, 1946, meeting. He was a man of considerable property and presumably of considerable prominence in the community. Defendant, seventy-eight, was a farmer, apparently of substantial means, had been a director of the bank for several years, and president of the Co-operative Elevator Company, the stock of which it is alleged he accused plaintiff of stealing. Plaintiff's daughter had married defendant's son and his son had married defendant's daughter. There had been earlier friendship between the families but "it began to ebb" in 1928 when plaintiff was a member of the board of township trustees and defendant accused the trustees of putting into their own pockets money that had been paid by the town of Greene for some road improvement. These facts appear from the testimony of plaintiff and are not denied.
No evidence was offered to contradict the testimony of the making of the statements complained of. Defendant's attorneys offered proof that he was under voluntary guardianship — not, however, for the purpose of substituting the guardian as defendant, but to claim defendant was an incompetent against whom a judgment could not be rendered. The alleged appointment was May 12, 1948, the trial June 9, 1948. The court ruled the offered evidence did not show defendant was incompetent, he having himself signed the application for guardianship. No error is assigned on this ruling.
His attorneys then offered Dr. Roder as a witness to show that defendant, because of his physical and mental ailments, was incapable of appearing as a witness. When the offer was made the doctor had already, without objection, testified: "I don't believe I can say whether he [defendant] could be able to appear * * * as there are sometimes when I am sure he is rational and others when I am sure he isn't." The court sustained the objection to the offer. Error is predicated on this ruling.
I. Defendant-appellant first argues that the court erred in refusing to permit Dr. Roder to testify to the defendant's condition at the time of trial as explaining his (defendant's) failure to testify and as "bearing upon the background of the affair." It is urged: "There being no actual damages shown the *Page 177
only question, if any, remaining would be one of malice, and the physical and mental condition of the defendant at the time of trial and for several years prior * * * would have been a help to the court in determining whether or not any malice was in fact established as there was none plead or proved."
Two points are involved in this argument: (1) That defendant's condition at time of trial was material as explaining his failure to be present and testify, in order that no inference be drawn "that his testimony if available would be unfavorable to his cause"; and (2) that his condition at the time the alleged slanderous statements were uttered might be shown to disprove malice.
As to the first it should be said no contention is made that defendant's presence at the trial was necessary to the proper conduct of his defense. There had been no request for delay on the theory he might be present and able to testify or assist in the defense at a later time.
It is not clear what unfavorable inference it is thought the court may have drawn from defendant's absence and failure to testify since there was no suggestion or showing as to what he would testify to, such as would have been made if postponement were being sought on account of the absence of an important witness whose presence might be possible at a later time. However, the argument indicates that malice was the one issue upon which it was feared unfavorable inference might be indulged by the court — whether implied malice or actual malice is meant does not appear. The distinction between them is pointed out in Ryan v. Wilson, 231 Iowa 33, 51, 300 N.W. 707.
[1,2] The issues here were simple. Plaintiff did not ask for exemplary damages or plead actual malice as he would have had to do to recover them. Implied (or legal) malice, necessary to establish a right of action, arises from the mere absence of legal excuse where the alleged defamatory words were, as here, actionable per se. It is not necessary to allege or prove such malice. See 53 C.J.S., Libel and Slander, sections 8, 76, 166, 187, as bearing on these propositions. See also Berger v. Freeman-Tribune Pub. Co., 132 Iowa 290, 293, 109 N.W. 784; Morse v. Times-Republican Print. Co., 124 Iowa 707, 719, *Page 178
100 N.W. 867; Brandt v. Story, 161 Iowa 451, 457, 143 N.W. 545; Burghardt v. Scioto Sign Co., 191 Iowa 384, 392, 179 N.W. 77.
[3] The second point urged in favor of Dr. Roder's testimony must refer to actual or express malice. The malice implied from the fact that the words spoken were actionable per se (as e.g., charging plaintiff with criminal conduct), in absence of a plea of privilege, could be met only by evidence in justification or, perhaps, mitigation. These issues were defensive and were not pleaded by defendant as they would have to be to make such evidence admissible. Rhynas v. Adkisson, 178 Iowa 287, 295, 159 N.W. 877; sections 619.7, 619.8, Code, 1946; Rule 101, Rules of Civil Procedure; Mielenz v. Quasdorf, 68 Iowa 726, 730, 28 N.W. 41; Hahn v. Lumpa, 158 Iowa 560, 562, 138 N.W. 492; Brandt v. Story, 161 Iowa 451, 458, 143 N.W. 545.
[4] As already pointed out, there was no allegation of actual malice nor any prayer for exemplary damages. "Actual malice or malice in fact is only material as establishing a right to recover exemplary damages or to defeat plea of privilege." Bond v. Lotz, 214 Iowa 683, 686, 243 N.W. 586, 587. No evidence was required or permissible to disprove what was not alleged. Consequently no unfavorable inference could arise from not producing it.
Furthermore, there was no offer to prove defendant's conditionat the time the alleged slanderous statements were made. That seems to be an afterthought in argument. Counsel for defendant in response to an inquiry by the trial court as to whether the only question was as to defendant's ability to appear as a witness replied: "That is what I am getting at." The offer itself was clearly so limited: "Well the defendant offers to prove by the witness Dr. C.F. Roder, that the defendant is now under guardianship and that the defendant Ebling was and is now incapable of appearing as a witness because of his physical and mental ailment."
This was not a trial to a jury. We are not prepared to assume, under the issues and proof shown, that the trial court drew any unfavorable inferences from defendant's failure to appear and testify, or that there was any reversible error in *Page 179
limiting the doctor's testimony. The authorities cited by defendant are not applicable here. They pertain to the well-established rule prevailing as to the inferences arising when a party fails to produce evidence within his control.
[5] II. The defendant urges that the damages allowed in the sum of $500 were excessive. We cannot think this contention is well founded. The case was tried to the court. It is not triable here de novo. Assuming, as we must, that there was sufficient competent evidence to support a judgment for damages we cannot say the amount allowed or the circumstances of the trial indicate any such abuse of discretion as to require or justify reversal.
[6] Defendant-appellant inaccurately assumes there was no evidence of actual damages. It is true there was no evidence of actual monetary damage. But the accusations leveled at plaintiff imputed criminality and were actionable per se. Damages from the publication of such charges are presumed. Burghardt v. Scioto Sign Co., supra (191 Iowa at page 392, 179 N.W., page 77); Simons v. Harris, 215 Iowa 479, 245 N.W. 875. They were uttered in the presence of plaintiff's friends and neighbors. Plaintiff and his wife testified in effect that they caused plaintiff mental suffering. Even if all who heard them testified to disbelief (but all did not) plaintiff could not know his friends were unimpressed. There is no evidence that they, or any of them, ever assured him of their unshaken confidence in him. Worry and mental pain were practically inevitable and proper elements to be considered. Davis v. Mohn, 145 Iowa 417, 421, 124 N.W. 206.
It was for the trier of fact to measure in dollars and cents, as best he could, the extent and value of the damage. Such damage is not capable of mathematical computation. Jensen v. Damm,127 Iowa 555, 559, 103 N.W. 798. We think there was no error in fixing the amount.
The judgment is affirmed. — Affirmed.
All JUSTICES concur. *Page 180 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4261141/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JORDAN FUSS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-327
[April 4, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Tim Bailey, Judge; L.T. Case No. 15-002834 CF10A.
Patrick J. Curry, Fort Lauderdale, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
The defendant appeals his sentence of 14.625 years, arguing that the
trial court erred by denying his motion for downward departure under
section 921.0026(2)(j), Florida Statutes (2014), and specifically
challenging the trial court’s finding that, by a preponderance of the
evidence, the incident was not isolated.
“Whether an incident is isolated is an issue of fact to be determined
by the trial court and will not be reversed if there is competent
substantial evidence to support it.” State v. Fontaine, 955 So. 2d 1248,
1251 (Fla. 4th DCA 2007) (Warner, J., concurring). Based on the record
before us and the arguments made on appeal, we conclude that the trial
court’s finding was supported by competent substantial evidence and we
affirm.
Affirmed.
WARNER, CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3211522/ | NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11849
COMMONWEALTH vs. ADMILSON RESENDE.
Plymouth. December 10, 2015. - June 9, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Firearms. Practice, Criminal, Motion to suppress, Sentence.
Indictments found and returned in the Superior Court
Department on August 26, 2011.
Pretrial motions to suppress evidence were heard by Charles
J. Hely, J., and a motion for reconsideration was considered by
him; and the cases were heard by Frank M. Gaziano, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. In a jury-waived trial in June, 2014, a
Superior Court judge found the defendant, Admilson Resende,
guilty of several firearms offenses, each of which had
2
associated with it an armed career criminal sentence enhancement
charge under G. L. c. 269, § 10G (§ 10G), the Massachusetts
armed career criminal act (Massachusetts ACCA). After a
separate jury-waived trial on the enhancement charges, the judge
sentenced the defendant under § 10G (c) to a mandatory minimum
State prison term of from fifteen years to fifteen years and one
day. In his appeal from these convictions, the defendant
presents an unanswered question about the proper interpretation
of § 10G, which provides sentence enhancements for designated
firearms offenses where a defendant previously has been
convicted of one or more "violent crimes" or "serious drug
offenses," or a combination of the two. For reasons we shall
explain, we interpret § 10G to mean that where the previous
convictions of predicate offenses forming the basis of the
sentence enhancement charge were all part of a single
prosecution, they properly should be treated as a single
predicate conviction. In this case, therefore, the defendant's
previous drug offense convictions, which were part of a single
prosecution, should have been considered as one previous
conviction that would be punishable under § 10G (a) rather than
§ 10G (c).1
1
In addition to his claim concerning the sentence imposed
under G. L. c. 269, § 10G (§ 10G), the defendant challenges the
denial of his pretrial motions to suppress evidence. We
3
1. Background. a. Prior drug convictions. On August 22,
2006, when the defendant was nineteen years old, he was arrested
and charged with five counts of distribution of cocaine and one
count of possession of cocaine with intent to distribute, G. L.
c. 94C, § 32A (a). The five distribution counts arose from
hand-to-hand transactions that took place on five different days
within a seventeen-day period from August 5 through August 22,
2006; the possession with intent count arose from the
defendant's actions on August 22, 2006. All of the counts were
included in a single set of charges. On January 23, 2007, the
defendant pleaded guilty to the distribution charges as part of
a single plea proceeding, and received concurrent house of
correction sentences.2
b. Convictions at issue in this appeal. i. Procedural
history. On August 26, 2011, a grand jury returned indictments
against the defendant for unlawful possession of a firearm,
G. L. c. 269, § 10 (a); unlawful possession of a loaded firearm,
G. L. c. 269, § 10 (n); unlawful possession of a firearm or
ammunition without a firearm identification card, G. L. c. 269,
§ 10 (h); and unlawful possession of cocaine with intent to
distribute, subsequent offense, G. L. c. 94C, § 32A (c) and (d).
conclude in this opinion that the defendant's motions to
suppress were properly denied.
2
The possession with intent charge was placed on file.
4
Each of the firearms offenses carried a concomitant sentence
enhancement charge under § 10G. On May 7, 2012, the defendant
filed motions to suppress the physical evidence seized by the
police and his postarrest statements. After an evidentiary
hearing, a Superior Court judge (motion judge) denied the
motions on December 4, 2012. On June 30, 2014, at the
conclusion of a bench trial on all charges other than the
sentence enhancement charges, a different Superior Court judge
(trial judge) found the defendant guilty of unlawful possession
of a firearm, unlawful possession of a loaded firearm, and
unlawful possession of a firearm or ammunition without a firearm
identification card; he found the defendant not guilty of
possession of cocaine with intent to distribute. Thereafter,
the trial judge in a separate bench trial found the defendant
guilty of two of the armed career criminal sentence enhancement
charges as a person previously convicted of three or more
serious drug offenses, and imposed the mandatory minimum
sentence.3,4
3
The defendant's conviction of unlawful possession of a
loaded firearm and the accompanying armed career criminal charge
were dismissed by agreement.
4
At the conclusion of the trial on the sentence enhancement
charges, the trial judge denied the defendant's request for a
required finding that each of the previous drug charges did not
constitute a separate predicate offense under the Massachusetts
armed career criminal act (ACCA).
5
ii. Facts.5 On May 28, 2011, State police Trooper Erik
Telford was on patrol in Brockton with Sergeant Michael
McCarthy. Telford had substantial experience working as a
member of law enforcement units focused on individuals involved
in guns, violence, and drugs in urban areas, and he had worked
specifically in Brockton and with the Brockton police. At
approximately 11:40 P.M., Telford and McCarthy, driving in an
unmarked police vehicle, were near the intersection of Ames and
Intervale Streets, where, on one corner, a bar was located. The
neighborhood was an area where Telford had been assigned to work
since 2003, and he had made numerous arrests for gun offenses as
well as drug offenses in this area. Telford saw a young man,
the defendant, walking with two women on the opposite side of
Intervale Street, and believed that the defendant made eye
contact with him. The defendant was wearing a long polyester
jacket that extended past his hips and covered his pants
pockets. Telford noticed the jacket because it was not a
particularly cold night and Telford himself was not wearing a
jacket. Telford saw the defendant move his hand under the
jacket and into the waistband area underneath his shirt, and
5
The facts are taken primarily from the findings made by
the motion judge in ruling on the defendant's motions to
suppress; the judge's findings are themselves based primarily on
the testimony of Trooper Erik Telford and Sergeant Michael
McCarthy of the State police, witnesses whom the motion judge
found to be "highly credible."
6
became suspicious that the defendant was carrying a gun.
Telford also believed that the defendant appeared similar to a
man depicted in a bulletin that had been posted at various
locations in the Brockton police station.6
Telford turned his vehicle around, "and waited in the
vicinity of the [bar]." As he did so, the defendant and the two
women walked through the bar's parking lot toward the front door
of the bar.7 Telford and McCarthy left their vehicle and
approached the defendant, while wearing clothing marked "State
Police," with their badges and guns clearly visible. As he
approached, Telford noticed that the defendant had his right
hand out of his pocket and at his waist area. Telford asked the
6
On or about May 25, 2011, Brockton police Officer Robert
Saquet posted bulletins containing a photograph of a young
African-American man holding a "TEC-9" automatic pistol in the
Brockton police station detectives' office and the report room,
where uniformed officers write their reports; the name of the
man depicted in the photograph was not provided. Trooper Erik
Telford had seen one of the bulletins while in the Brockton
police station within a few days of May 28, 2011. Although at
some point the Brockton police learned the name of the person
depicted, who was not the defendant, and added the name to the
bulletin, the original version viewed by Telford had not had a
name added to it.
The motion judge found that the defendant shared similar
basic characteristics with the man in the bulletin, including
height, approximate age, facial hair, and wearing of a baseball
cap, and noted that these similarities could apply to many men
in the Brockton area.
7
The motion judge did not make any finding about precisely
when the two police officers drove into the bar parking lot
itself, or about where the officers parked their vehicle in
relation to the entrance to the bar.
7
defendant his name, and the defendant gave his correct name in
response. Telford then remembered that he had encountered the
defendant in connection with a search of a residence pursuant to
a warrant -- a search that had resulted in the discovery of two
guns. At this point, Ryan Guinta, a bouncer at the bar, came
out of the bar and told the officers that the defendant had been
in the bar all night. Telford knew that this was not true, and
told Guinta to go back inside, which he did.
Telford motioned to the defendant to follow him to a
different part of the parking lot where they could speak
further. As the defendant walked to this location, Telford
noticed that the defendant had his right hand in his pocket but
was holding it close to his body at the waistband area, and that
the defendant "bladed away" from him.8 During the ensuing
conversation, the defendant, with his right hand in his pocket,
made movements that appeared to Telford to be retention checks -
- touching the area where a weapon or heavy object is located to
ensure it stays in place because it is not holstered. Telford
recognized these types of movements as being consistent with
someone who is carrying a weapon in his waistband. Telford
asked the defendant to remove his right hand from his pocket,
8
Telford testified that "blading away" refers to the action
of creating a thin profile of oneself with respect to another
viewpoint, effectively hiding one side of the body from the
other person's view.
8
which the defendant did briefly, before putting it back into the
pocket. Telford asked the defendant again to remove his right
hand from his pocket, which he did, and then the defendant
touched an area near his waistband, consistent with another
retention check. After noticing that the defendant was looking
from left to right, as if to attempt to flee, Telford asked him
to lift his shirt, twice. The defendant did so, but both times
exposed only the left side of his waistband, where Telford saw
nothing. At this point, because the officers were convinced
that the defendant was carrying a gun, they decided to handcuff
him, but before the handcuffs were applied, Telford reached to
the right side of the defendant's waistband and retrieved a gun
containing one round of ammunition in the chamber and at least
one other round in the gun magazine. The officers arrested the
defendant for unlawfully carrying a firearm and advised him of
the Miranda rights. After stating that he understood his
rights, the defendant said that he had obtained the gun in
Providence, Rhode Island, the cost was $750, the gun was not
stolen, and it had serial numbers. In a subsequent search of
the defendant incident to his arrest, the officers found plastic
bags containing cocaine and, when asked if the bags contained
more than fourteen grams, the defendant responded that they did
not.
9
2. Discussion. a. Motions to suppress. On review of a
ruling on a motion to suppress, "we accept the judge's
subsidiary findings of fact absent clear error 'but conduct an
independent review of his ultimate findings and conclusions of
law'" (citation omitted). Commonwealth v. Scott, 440 Mass. 642,
646 (2004). We "make an independent determination of the
correctness of the judge's application of constitutional
principles to the facts as found" (citation omitted). Id.
The defendant argues that the denial of his motions to
suppress was error because he was seized without reasonable
suspicion -- a contention turning primarily on the propriety of
the motion judge's ruling that no seizure of the defendant
occurred at least until the defendant was directed to go speak
with Trooper Telford in a different area of the parking lot from
where the officers first encountered him. The defendant
contends that this ruling was incorrect because, contrary to the
motion judge's findings, the uncontradicted testimony of Telford
showed that as the defendant approached the front door of the
bar, the officers "cut off [the defendant's] path of travel and
immediately got out of their car and approached him" with their
guns and badges displayed. In doing so, the defendant argues,
the officers effectuated a seizure of his person at that point,
because a reasonable person would not have felt free to leave
under those circumstances. The defendant contends further that,
10
at this point in time, the officers did not have a reasonable
suspicion of any criminal activity, and accordingly, all of the
officers' actions that followed, culminating in the defendant's
arrest, were constitutionally prohibited and his motions to
suppress should have been allowed. The Commonwealth argues that
the motion judge correctly concluded that there was no seizure
of the defendant until he was directed to a different area of
the parking lot, at which time the officers had a reasonable
suspicion that the defendant was illegally carrying a gun, and
their subsequent, measured actions fit well within the scope of
a permissible stop, frisk, and seizure pursuant to Terry v.
Ohio, 392 U.S. 1 (1968). We agree with the Commonwealth.
We reject the defendant's challenge to the motion judge's
factual findings. As previously stated, the judge did not make
a specific finding as to when the two officers drove into the
parking lot,9 but insofar as the findings may suggest that the
officers entered the parking lot and came to a stop before the
defendant and his two companions reached the bar's door and at a
distance that permitted them to do so, the testimony of Sergeant
McCarthy supports that view.10 Accordingly, we do not agree with
9
See note 7, supra, and accompanying text.
10
McCarthy testified that "when [he] pulled into the
parking lot with Trooper Telford, . . . the defendant and the
two females continue[d] to walk towards the entrance of the
[bar]."
11
the defendant that the judge made clearly erroneous findings
concerning the initial encounter between the defendant and the
two officers. Rather, our review of the motion record persuades
us that the judge was warranted in concluding that the officers'
exit from their vehicle with their State police identification
and weapons visible, followed by Telford's question asking the
defendant for his name, was not itself a stop or seizure in the
constitutional sense. See, e.g., Commonwealth v. Narcisse, 457
Mass. 1, 5-6 (2010) (no seizure where officers pulled alongside
defendant and got out of vehicle, asking defendant's name and
what he was doing in vicinity); Commonwealth v. Gomes, 453 Mass.
506, 510 (2009) (defendant not seized when police got out of
vehicles quickly and approached him as he stood in doorway; no
indication that police activated blue lights); Commonwealth v.
Lopez, 451 Mass. 608, 610-614 (2008) (two uniformed officers in
two marked patrol cruisers followed defendant on bicycle late at
night; one officer emerged from cruiser, and asked, "Can I speak
with you?" after which defendant approached him; officer's
actions did not constitute seizure); Commonwealth v. DePeiza,
449 Mass. 367, 370-371 (2007) (no seizure where police got out
of unmarked vehicle and approached defendant, while engaging in
brief conversation).
The motion judge determined that a limited "intrusion" --
i.e., seizure -- occurred when Telford requested or directed the
12
defendant to walk to a different part of the parking lot to talk
to the trooper, and that this seizure was justified in the
circumstances. We agree. By that point, Telford had observed
the defendant holding his hand at his waist in a manner that
Telford believed from his training and experience was consistent
with someone holding a gun in the waistband of his pants.
Moreover, before speaking with the defendant at the new location
in the parking lot, Telford had observed the defendant "blading"
away from him and making motions with his hand that were
consistent with weapon retention checks. We also agree with the
motion judge that Telford's series of increasingly intrusive
actions that followed -- asking the defendant to take his hands
out of his pocket, then asking the defendant to raise his shirt,
then reaching for the defendant's hands and putting them behind
his back, and then grabbing a gun from the defendant's waist
area on his right side -- were all reasonable responses to new
information supplied by the defendant's actions that provided an
increasingly robust basis for suspecting the defendant was
holding a concealed gun in his pants on the right side of his
body. The seizure of the defendant effectuated by Telford and
McCarthy was constitutionally proper. See DePeiza, 449 Mass. at
371. Cf. Commonwealth v. Torres, 433 Mass. 669, 675 (2001)
(officer's actions no more intrusive than necessary at each
13
phase of increasingly suspicious interaction with defendant and
passengers in vehicle during traffic stop).
b. Defendant's armed career criminal status. The
defendant argues that his armed career criminal convictions
cannot stand because his five previous drug convictions were
encompassed in a single prosecution. As such, he claims, the
convictions should be counted as a single predicate offense for
purposes of § 10G, and therefore within the scope of level one,
see § 10G (a), rather than level three, see § 10G (c). The
Commonwealth takes the position that, under § 10G, similar to
the enhancement scheme under 18 U.S.C. § 924(e) (2006), the
Federal armed career criminal act (Federal ACCA), each
qualifying violent crime or serious drug offense of which a
defendant has previously been convicted represents a separate
predicate offense for purposes of determining sentence
enhancement levels, regardless of whether those previous
convictions were the result of a single or several prosecutions.
Although this court has considered questions concerning the
proper interpretation of § 10G in prior cases,11 the issue raised
here is one of first impression.
11
See, e.g., Commonwealth v. Eberhart, 461 Mass. 809
(2012); Commonwealth v. Anderson, 461 Mass. 616, cert. denied,
133 S. Ct. 433 (2012); Commonwealth v. Johnson, 461 Mass. 44
(2011); Commonwealth v. Furr, 454 Mass. 101 (2009). The Appeals
Court has as well. See, e.g., Commonwealth v. Colon, 81 Mass.
14
Section 10G provides in relevant part:
"(a) Whoever, having been previously convicted of a
violent crime or of a serious drug offense, both as defined
herein, violates the provisions of paragraph (a), (c) or
(h) of [§] 10 shall be punished by imprisonment in the
state prison for not less than three years nor more than
[fifteen] years.
"(b) Whoever, having been previously convicted of two
violent crimes, or two serious drug offenses or one violent
crime and one serious drug offense, arising from separate
incidences, violates the provisions of said paragraph (a),
(c) or (h) of said [§] 10 shall be punished by imprisonment
in the state prison for not less than ten years nor more
than [fifteen] years.
"(c) Whoever, having been previously convicted of
three violent crimes or three serious drug offenses, or any
combination thereof totaling three, arising from separate
incidences, violates the provisions of said paragraph (a),
(c) or (h) of said [§] 10 shall be punished by imprisonment
in the state prison for not less than [fifteen] years nor
more than [twenty] years." (Emphasis added.)
G. L. c. 269, § 10G (a)-(c).12
The question of interpretation before us relates to the
meaning of the phrase, "having been previously convicted of
three [qualifying crimes] arising from separate incidences,"
that appears in § 10G (c), and more specifically the meaning of
App. Ct. 8, 12 (2011); Commonwealth v. Ware, 75 Mass. App. Ct.
220, 222 (2009).
12
Under § 10G (d), any sentence imposed under the statute
shall not be reduced to less than the minimum mandatory sentence
or suspended, and the defendant is not eligible for probation or
parole until he has served the minimum term.
15
the phrase, "arising from separate incidences."13 To answer that
question, we consider first the meaning of the actual language
used by the Legislature. See Commonwealth v. Robertson, 467
Mass. 371, 376 (2014). However, "we also seek guidance from
[the statute's] legislative history, . . . the language and
construction of related statutes, . . . and the law of other
jurisdictions" (citations omitted). Commonwealth v. Welch, 444
Mass. 80, 85 (2005).
The word "incidences" or "incidence" is not defined in
§ 10G. Dictionary definitions of "incidence" include "an act or
the fact or manner of falling upon or affecting: occurrence,"
the "rate, range, or amount of occurrence or influence,"
Webster's Third New International Dictionary 1142 (1993), and
"[t]he frequency with which something occurs, such as crime" or
"the number of times that something happens," Black's Law
Dictionary 879 (10th ed. 2014). The word thus appears to focus
more on the measurement of something's frequency of occurrence
than on the definition of the "something" itself. In that
sense, it is distinct from the word "incidents," or "incident."14
13
At issue in this case are the defendant's convictions
under § 10G (c), but our analysis applies with equal force to
§ 10G (b).
14
The word "incident" is defined as "a separate unit of
experience: happening," Webster's Third New International
Dictionary 1142 (1993), and "[a] discrete occurrence or
16
But the fact that the Legislature chose not to use the word
"incidents" provides little direct guidance as to what the
Legislature meant by selecting "incidences." Nor is the
statute's legislative history illuminating on this point.
Section 10G was enacted in 1998 as one section of an omnibus
piece of legislation entitled, "An Act relative to gun control
in the Commonwealth," that was designed to provide a stricter
gun control regime by adding a wide variety of new statutory
provisions.15 It appears that from the earliest drafts, the
phrase "arising from separate incidences" was included in what
is now § 10G, and nothing in these drafts or any other
legislative materials available for review offers any
explanation or guidance as to the reason for this choice of
happening; an event, esp. one that is unusual, important, or
violent," Black's Law Dictionary 879 (10th ed. 2014).
15
Section 10G was inserted by St. 1998, c. 180, which,
among other things, enacted into Massachusetts law the Federal
assault weapons ban; created negligence liability for gun owners
who improperly stored guns; created a new category of large
capacity weapons, see G. L. c. 140, § 121, and G. L. c. 269,
§ 10F; created a new licensing structure for all guns, see G. L.
c. 140 § 123; established a firearms record-keeping trust fund;
prohibited the possession or sale of "sawed-off" shotguns, see
G. L. c. 269, § 10 (c); required that gun dealers operate out of
a location separate from their residence; prohibited mail order
gun sales within the State, G. L. c. 140, § 123; established
penalties for possession of a weapon while intoxicated, G. L.
c. 269, § 10H; and required all new gun license applicants to
pass a gun safety course, G. L. c. 140, § 131P.
17
words, or the meaning that the Legislature ascribed to them.16
However, three separate considerations lead us to conclude that
the phrase "arising from separate incidences" is best understood
to mean that each previous conviction serving as a predicate
offense under § 10G must result from a separate prosecution, and
not simply from a separate criminal event. The three
considerations are the Legislature's departure from the language
used in the Federal ACCA, the analysis of cases from other
jurisdictions, and the rule of lenity.
The Federal ACCA provides:
"In the case of a person who violates [18 U.S.C.
§922(g)] and has three previous convictions . . . for a
violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with
respect to the conviction under [§] 922(g)" (emphasis
supplied).
18 U.S.C. § 924(e)(1). The language "committed on occasions
different from one another" was added to the Federal ACCA by
16
The legislative record of the omnibus bill's enactment
includes two recommendations from the Governor's legislative
director to his legislative office and a House of
Representatives "Executive Bill Summary" memorandum, both of
which provide summaries of the bill by section. With respect to
§ 10G, the documents state that if a defendant has "three
previous felony convictions the punishment shall be imprisonment
in a [S]tate prison for not less than [fifteen] nor more than
[twenty] years," but do not address the timing of those
convictions in relation to each other, or the statutory phrase
"arising from separate incidences."
18
amendment in 1988. See Pub. L. No. 100-690, 102 Stat. 4181,
§ 7056 (1988). In United States v. Letterlough, 63 F.3d 332,
335 (4th Cir.), cert. denied, 516 U.S. 955 (1995), the United
States Court of Appeals for the Fourth Circuit articulated the
test that it noted was used by the courts of almost every
Federal Circuit for determining whether the Federal ACCA applies
to a defendant's prior crimes: "Convictions occur on occasions
different from one another 'if each of the prior convictions
arose out of a 'separate and distinct criminal episode"'"
(emphasis in original). Id., quoting United States v. Hudspeth,
42 F.3d 1015, 1019 (7th Cir. 1994), cert. denied, 515 U.S. 1105
(1995).
The Legislature enacted the Massachusetts ACCA ten years
after the Federal ACCA was amended to include the phrase
"committed on occasions different from one another" and three
years after the Letterlough decision. The Massachusetts ACCA
adopts the definitional language of the Federal ACCA.17 See
Commonwealth v. Colon, 81 Mass. App. Ct. 8, 12 (2011). See also
Commonwealth v. Eberhart, 461 Mass. 809, 815 (2012). However,
we disagree with the Commonwealth that the Massachusetts statute
17
A comparison of the definitions of "violent crime" and
"serious drug offense" in the Massachusetts ACCA with the
language used by Congress to define "violent felony" and
"serious drug offense" in the Federal ACCA indicates that the
two definitions are virtually identical in substance; the
inference that the Legislature had the Federal ACCA in mind when
enacting the Massachusetts ACCA appears inescapable.
19
"largely replicates," Colon, supra, the entire structure of its
Federal counterpart. In fact, § 10G departs from the Federal
ACCA precisely in relation to the language in contention here,
namely, the description of what makes a prior violent crime or
serious drug offense qualify as a predicate offense. That is,
§ 10G does not incorporate the Federal ACCA language that the
crimes be "committed on occasions different from one another,"
18 U.S.C. § 924(e)(1), to qualify, but rather requires that the
predicate crimes be ones "arising from separate incidences."
Considering the Legislature's obvious awareness of the language
used in the Federal ACCA (witness the § 10G definitions) and the
Legislature's presumptive knowledge of the nearly uniform
judicial interpretation of the phrase "committed on occasions
different from one another,"18 its decision to use different
words to refer to qualifying offenses suggests that the
Legislature affirmatively intended to enact a sentence
enhancement scheme that did not march in lock step with the
Federal ACCA. Differences in language between a State statute
and a previously enacted, analogous Federal statute "reflect a
conscious decision by the Legislature to deviate from the
standard embodied in the Federal statute." Globe Newspaper Co.
18
Cf. Commonwealth v. Callahan, 440 Mass. 436, 441 (2003)
(we "presume that the Legislature is aware of the prior state of
the law as explicated by the decisions of this court" [citation
omitted]).
20
v. Boston Retirement Bd., 388 Mass. 427, 433 (1983). See
Commonwealth v. McGhee, 472 Mass. 405, 413 n.8 (2015). We
therefore reject the Commonwealth's argument, adopted by the
dissent, that in § 10G the Legislature simply employed different
words to convey the exact same meaning as the Federal ACCA.
That the Legislature had a sentencing scheme different from
the Federal ACCA in mind when it enacted § 10G is made even more
clear when the structures of the Massachusetts and Federal
statutes are compared. The Federal ACCA imposes only one level
of enhancement that comes into play after three qualifying
offenses; in contrast, § 10G provides for three separate levels
of enhancement, each with an increasing mandatory minimum
sentence depending on the number of predicate offenses
committed, up to a maximum of three -- i.e., a graduated
approach to enhanced penalties. Again, given its familiarity
with the Federal statute, the Legislature's rejection of the
single, "three strikes, you're out" model of 18 U.S.C. § 924(e)
and the adoption of a graduated approach is significant.
In terms of structure, the Massachusetts ACCA shares less
in common with the Federal ACCA than it does with a large number
of armed career criminal sentencing statutes with graduated
penalty provisions that have been enacted by other States. The
language of these statutes varies, but a majority of State
appellate courts have interpreted statutory provisions providing
21
progressively longer sentences for crimes a defendant commits
after having been previously convicted of one, two, or three
qualifying offenses to require that the prior convictions be
sequential -- i.e., that the first conviction (and imposition of
sentence) occur before the commission of the second predicate
crime, and the second conviction and sentence occur before the
commission of the third crime. See, e.g., Commonwealth v.
Shiffler, 583 Pa. 478, 480, 492-495 (2005). See also Hall v.
State, 473 A.2d 352, 356-357 (Del. 1984); State v. Lohrbach, 217
Kan. 588, 591 (1975); State v. Ellis, 214 Neb. 172, 174-176
(1983).19 See generally Annot., Chronological or Procedural
Sequence of Former Convictions as Affecting Enhancement of
Penalty under Habitual Offender Statutes, 7 A.L.R. 5th 263,
§§ 2(a), 7(d) (1992 & Supp. 2015).20
19
But see, e.g., Watson v. State, 392 So. 2d 1274, 1279
(Ala. Crim. App. 1980) (no requirement that prior convictions be
sequential); Knight v. State, 277 Ark. 213, 215-216 (1982)
(same); People v. District Court in & for the County of Larimer,
643 P.2d 37, 38-39 (Colo. 1982) (same); Stradt v. State, 608
N.W.2d 28, 29-30 (Iowa 2000) (same).
20
It bears noting that despite the actual language and
judicial interpretation of the Federal ACCA -- which, as we have
discussed, focuses on whether the prior convictions involved
distinct criminal episodes -- the United States Sentencing
Commission has adopted guidelines providing that simultaneous
convictions, i.e., convictions charged in the same charging
instrument or for which sentences are entered on the same day,
should qualify only as a single predicate offense under the
Federal ACCA, unless the offenses were separated by intervening
arrests. See Federal Sentencing Guidelines Manual § 4A1.2(a)(2)
(updated Nov. 2015).
22
The rationale underlying the majority view that graduated
sentence enhancement statutes should be interpreted to require
sequential prosecutions and convictions of the predicate crimes
is well expressed by the Pennsylvania Supreme Court in Shiffler,
583 Pa. at 494:
"'[T]he point of sentence enhancement is to punish
more severely offenders who have persevered in criminal
activity despite the theoretically beneficial effects of
penal discipline.' . . . Particularly salient here is the
implicit link between enhanced punishment and behavioral
reform, and the notion that the former should
correspondingly increase along with a defendant's foregone
opportunities for the latter. Any other conception would
ignore the rationale underlying the recidivist philosophy,
i.e., that the most culpable defendant is 'one, who after
being reproved, "still hardeneth his neck."' . . . The
generally recognized purpose of such graduated sentencing
laws is to punish offenses more severely when the defendant
has exhibited an unwillingness to reform his miscreant ways
and to conform his life according to the law" (emphasis in
original; citations omitted).21
Decisions in other States reflect similar reasoning. See, e.g.,
State v. Ledbetter, 240 Conn. 317, 328-330, 332 (1997) ("We
agree with the defendant that the legislative purpose of [the
State's armed career criminal statute] is fulfilled only by
requiring a sequence of offense, conviction and punishment, thus
allowing a felon the opportunity to reform prior to being
labeled a persistent felony offender"); Buckingham v. State, 482
21
Accord Commonwealth v. McClintic, 589 Pa. 465, 483 (2006)
("Following the recidivist logic, each strike that serves as a
predicate offense must be followed by sentencing and, by
necessary implication, an opportunity for reform, before the
offender commits the next strike").
23
A.2d 327, 330-331 (Del. 1984) (punishment enhanced only for
individuals who failed to reform after separate encounters with
criminal justice system); Lohrbach, 217 Kan. at 591 ("The basic
philosophy underlying recidivist statutes might be expressed in
this fashion: where the punishment imposed against an offender
for violating the law has failed to deter him from further
infractions, a harsher and more severe penalty is justified, the
idea being, hopefully, that the greater punishment may serve as
an object lesson and cause him to accomplish his reformation,
where the lesser penalty had failed in that respect").22
As noted, the available legislative history of the
Massachusetts ACCA does not reveal the Legislature's specific
rationale or purpose for eschewing the Federal ACCA's approach
and establishing a graduated penalty structure tied to the
number of a defendant's previous convictions of predicate
offenses. But the Legislature having done so, we are persuaded
that the most logical interpretation of § 10G (a)-(c) is one
22
See also State v. Ellis, 214 Neb. 172, 175-176 (1983)
("We believe that the purpose of enacting the habitual criminal
statute is to serve as a warning to previous offenders that if
they do not reform their ways they may be imprisoned for a
considerable period of time, regardless of the penalty for the
specific crime charged. . . . We believe we should join the
majority of jurisdictions in their interpretation of the
habitual criminal statute, and now, therefore, declare that in
order to warrant the enhancement of the penalty under the
Nebraska habitual criminal statute . . . the prior convictions,
except the first conviction, must be for offenses committed
after each preceding conviction, and all such prior convictions
must precede the commission of the principal offense").
24
that reflects and implements the principle that penal discipline
can have (or should have) a reforming influence on an offender,
with enhanced consequences if prior convictions and sentences do
not have such an effect.23 As a consequence, the most logical
and appropriate interpretation of § 10G (c) is that its sentence
enhancement of a mandatory minimum of fifteen years applies only
when a defendant's previous convictions of three qualifying
crimes "arising from separate incidences" were the results of
separate, sequential prosecutions.
Finally, insofar as the meaning of "arising from separate
incidences" in § 10G (c) is ambiguous,24 the rule of lenity
supports the interpretation we have adopted here:
23
This rationale reflects what the Pennsylvania Supreme
Court terms a "recidivist philosophy." See Commonwealth v.
Shiffler, 583 Pa. 478, 494 (2005). The dissent contends that
there is little to no support for our conclusion that a
recidivist philosophy underlies the Legislature's enactment of
§ 10G. Post at . Certainly the scant legislative history
relating to § 10G contains no evidence that the Legislature used
that term. But the Legislature's express adoption of a
graduated penalty structure in § 10G, increasing the mandatory
minimum sentence as the defendant acquires more "strikes," and
the decisions of other State courts construing habitual offender
statutes akin to § 10G in a manner consistent with the
substantive tenets of a recidivist philosophy work together to
support our interpretation. See Commonwealth v. Welch, 444
Mass. 80, 85 (2005) (court may use language and construction of
related statutes and law of other jurisdictions to determine
legislative intent).
24
The dissent states that § 10G is not ambiguous and
asserts that the statute's plain meaning is that "previous
convictions are convictions occurring prior to the ACCA
violation for offenses 'arising from separate' criminal
25
"Under the rule of lenity, 'if we find that the
statute is ambiguous or are unable to ascertain the intent
of the Legislature, the defendant is entitled to the
benefit of any rational doubt.' Commonwealth v.
Constantino, 443 Mass. 521, 524 (2005). 'This principle
applies to sentencing as well as substantive provisions.'
Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982)."
Commonwealth v. Richardson, 469 Mass. 248, 254 (2014). See
Commonwealth v. Hamilton, 459 Mass. 422, 436-437 (2011). The
Commonwealth posits that § 10G's requirement that qualifying
convictions "aris[e] from separate incidences" is satisfied so
long as the defendant's conduct underlying the convictions
involved distinct criminal offenses even if all the convictions
were the result of a single prosecution. This interpretation is
not compelled by the language and particularly the structure of
§ 10G.25 Accordingly, in this case -- where the defendant's
previous drug offense convictions were the result of counts that
incidents." Post at .However, this construction of the
statute conflates the terms "incident" and "incidence," which,
as discussed previously, have distinct definitions. See note
14, supra. Where the Legislature used the term "incidences" in
§ 10G, we will interpret the statute with that word in mind, and
will not substitute for it a word that means something else.
25
It is clear that the defendant could not have been
sentenced as an armed career criminal under § 10G during the
prosecution of the crimes committed in 2006 because those
convictions were simultaneous –- i.e., none of the convictions
could be considered a previous conviction in relation to any of
the others. Allowing the defendant to be sentenced as a third-
time repeat offender under § 10G (c) here, despite the fact that
he could not have, at any previous time, been charged as even a
first-time repeat offender under § 10G (a), is a result that we
do not believe the Legislature intended. Cf. Shiffler, 583 Pa.
at 492.
26
were brought at the same time, combined in a single set of
charges, prosecuted and handled as a single criminal
prosecution, and resolved by guilty pleas in a single plea
proceeding -- the convictions represented a single "incidence"
for purposes of § 10G. The defendant, therefore, could not be
prosecuted or sentenced under § 10G (c) (or § 10G [b]), but
could be prosecuted and sentenced pursuant to § 10G (a).
3. Conclusion. The motion judge properly denied the
defendant's motions to suppress evidence, and the order denying
the motions to suppress is affirmed. With respect to the
defendant's appeal from his convictions as an armed career
criminal pursuant to G. L. c. 269, § 10G (c), those convictions
are vacated, and the case is remanded to the Superior Court for
further proceedings consistent with this opinion.
So ordered.
CORDY, J. (dissenting in part, with whom Spina, J., joins).
I agree that the defendant's motions to suppress were properly
denied. I disagree that the Massachusetts armed career criminal
act, G. L. c. 269, § 10G (ACCA), is ambiguous, and would adopt
what I perceive to be the plain meaning of its words: previous
convictions are convictions occurring prior to the ACCA
violation for offenses "arising from separate" criminal
incidents. Crimes arising from separate incidents are crimes
committed on different occasions as contrasted with multiple
crimes arising out of a single occasion or criminal episode.
The issue is purely one of legislative intent at the time
of enactment, and, absent any evidence to the contrary, I would
not read into the statute a "recidivist philosophy," rather than
an intent to ensure public safety by significantly increasing
the penalties for persons who commit crimes with firearms after
having been convicted of multiple serious felonies.
In my view, the Massachusetts statute should be interpreted
as the Federal ACCA statute has been by virtually every Federal
Circuit and District Court to undertake the task.1 18 U.S.C.
§ 924(e) (2006) (offenses "committed on occasions different from
one another"). So long as the prior offenses of which the
1
See, e.g., United States v. Elliott, 703 F.3d 378, 383
(7th Cir. 2012), cert. denied, 133 S. Ct. 2359 (2013), and
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir.), cert.
denied, 516 U.S. 955 (1995), and the numerous cases cited
therein.
2
defendant has been convicted arise out of different criminal
episodes (whether termed different occasions, occurrences,
incidents, or incidences), they should qualify as separate
previous convictions for purposes of the Massachusetts ACCA
statute.
The court's interpretation would essentially incorporate
all crimes, no matter how separate in time, victim, or nature,
into a single conviction (for ACCA purposes) if they were
eventually resolved by guilty plea or trial in the same
prosecution. For example, a person who commits a string of
armed robberies in Suffolk County over a period of months and
who is eventually apprehended, linked to, charged with, and
convicted of all of the robberies, in a combined prosecution,
would have only "one" prior felony conviction for purposes of
the Massachusetts ACCA statute -- no matter how many robberies
he is convicted of committing.
Further, the court suggests that prior convictions must be
sequential. In other words, the first conviction must occur
before the second predicate crime and its prosecution and
conviction, and the second conviction must occur before the
commission and prosecution of the third crime, and so on --
apparently, so that the recidivist felon has multiple
opportunities to correct his criminal behavior before facing far
greater punishment when he once again commits a serious felony,
3
this time with a firearm. Hence, by way of example, if the
armed robber is prosecuted in Suffolk County, and, subsequent to
his conviction, it is determined that before his conviction he
had committed a series of armed robberies in Hampden County and
is, accordingly, now prosecuted and convicted of those armed
robberies, he would still only have one prior conviction under
the Massachusetts ACCA statute when and if he commits his next
armed felony. This could not have been what the Legislature
intended.2
The fact that some State courts have interpreted their own
armed career criminal statutes (variously worded) differently
(and as this court now would), based on their view of what their
Legislatures intended to punish, is not terribly relevant or
revealing.3 Other State courts have concluded the opposite.4
2
The court's interpretation would also result in the
following: An individual is arrested for a serious drug offense
and is released on personal recognizance. He is then arrested
for another serious drug offense and is released on bail. He is
finally arrested for an armed robbery and is held without bail.
All three separate crimes (for which he has been separately
arrested and charged) are eventually resolved by guilty pleas
and sentencing in a single plea and sentencing proceeding.
Result -- one prior conviction only.
3
For example, the court cites a Nebraska case, State v.
Ellis, 214 Neb. 172, 175 (1983), in support of its proposition
that habitual offender statutes should be interpreted in a
manner that allows felons the opportunity to "reform their
ways." The Nebraska Supreme Court was, of course, interpreting
the meaning and legislative intent behind its own statute, which
provided that a habitual criminal is one who has previously
"been twice convicted of crime, sentenced and committed to
4
There is no consensus as to how such statutes, no matter how
differently worded or intended, must be interpreted.
I would not infuse our analysis with hindsight doubts about
whether the statute has served as an effective deterrent, or
whether it might seemingly prove unduly harsh in some
circumstances. That is the Legislature's responsibility, not
ours. And I would not use the modest facts in this case, in
which the defendant's prior convictions were for five drug
sales, each occurring on a different day during a three-week
period, as an excuse to broadly transplant a new policy that has
no traceable origin in legislative history, onto a statute
plainly intended to protect the public from felons with multiple
felony convictions who use firearms in committing new crimes.
prison." Id. at 172-173. See Neb. Rev. Stat. § 29-2221. The
court, in a four-to-three decision, concluded that where the
defendant was convicted of two crimes (robbery and the use of a
firearm in the course of the robbery), occurring on the same
day, and for which he was sentenced on the same day, he had only
one prior conviction and sentence under its statute. Ellis,
supra at 172-173, 175-176. The court went on to more broadly
endorse the "recidivist philosophy" behind its habitual offender
statute, see id. at 175, over a vigorous dissent noting that the
court had "chosen to substitute doubtful sociological
assumptions (without legislative history to show that the
Legislature shared its view) for the logical construction of
[the] statute." Id. at 177 (White, J., dissenting).
4
See, e.g., Watson v. State, 392 So. 2d 1274, 1279 (Ala.
Crim. App. 1980); Linn v. State, 658 P.2d 150, 152 (Alaska Ct.
App. 1983); Knight v. State, 277 Ark. 213, 215-216
(1982); Stradt v. State, 608 N.W.2d 28, 29-30 (Iowa 2000);
Rushing v. State, 461 So. 2d 710, 713 (Miss. 1984). | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434480/ | This is an action for a declaratory judgment, seeking to have the court find and declare unconstitutional chapter 133, Acts of the Fifty-first General Assembly (chapter 285, Code, 1946), which appropriated $2,000,000 from the general fund, as augmented by the three-point tax fund, to be used to reimburse the several school districts of the state for expenses incurred by them in furnishing transportation to and from school for pupils living more than two miles from the school attended, and also that it find and declare unconstitutional chapter 134, Acts of the Fifty-first General Assembly (chapter 286, Code, 1946), which appropriated $1,000,000 from the same funds to be used for supplemental aid to school districts whose available funds, as defined in the act, are insufficient to meet a fixed educational cost of $75 per grade pupil and $125 per high-school pupil. The petition asserted that each statute violated sections 3 and 7 of the Second Division of Article IX of the Constitution of Iowa in that each appropriated money to the support and maintenance of common schools without regard to the enumeration of youths between the ages of five and twenty-one years, residents in said school districts.
The defendants filed a motion to dismiss the action which asserted that the appropriations made by the two statutes from the three-point tax fund through payment from the general fund of the state did not violate the provisions of sections 3 *Page 1162
and 7, division 2, Article IX of the Constitution of Iowa, because neither the three-point tax fund nor the general fund of the state constituted a portion of the school fund contemplated by division 2 of said Article IX; nor did they constitute "other means" within the contemplation of section 3, division 2 of said Article IX; and they did not constitute "money subject to the support and maintenance of common schools", within the contemplation of section 7, division 2 of said Article IX.
The trial court determined that the constitutional provisions relied upon are not applicable to the statutes here challenged or the funds appropriated thereby and dismissed the action. Plaintiff appeals to this court.
[1] Article IX of the Constitution of Iowa is divided into two divisions. The first division is entitled "Education and School Lands." Section 1 thereof, provides:
"The educational interest of the State, including Common Schools and other educational institutions, shall be under the management of a Board of Education."
Section 12 thereof provides:
"The Board of Education shall provide for the education of all the youths of the State, through a system of Common Schools and such school shall be organized and kept in each school district at least three months in each year. Any district failing, for two consecutive years, to organize and keep up a school as aforesaid may be deprived of their portion of the school fund."
Section 15 thereof provides, as follows:
"At any time after the year One thousand eight hundred and sixty three, the General Assembly shall have power to abolish or re-organize said Board of Education, and provide for the educational interest of the State in any other manner that to them shall seem best and proper."
Pursuant to said section 15, the Tenth General Assembly in 1864, by section 1 of chapter 52 of its Acts, abolished the *Page 1163
board of education provided for in said Article IX of the Constitution and has made other provision for the educational interests of the state. The provisions thus enacted are now codified in Title XII, Code, 1946, chapters 257 to 305, inclusive. Of course, many of these chapters deal with educational projects other than the common schools. However, a large number of them deal with the common schools. Chapters 285 and 286, which are challenged in this action, appear in said title and were obviously enacted by the legislature under the theory that such legislation was authorized by section 15, division 1, Article IX, of the Constitution, after the legislature had abolished the original board of education in 1864.
Division 2 of Article IX of the Constitution is entitled "School Funds and School Lands." Section 1 thereof provides as follows:
"The educational and school funds and lands, shall be under the control and management of the General Assembly of this State."
[2] Section 3 of said division 2, Article IX, one of the sections relied upon by appellant herein, provides as follows:
"The General Assembly shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement. The proceeds of all lands that have been, or hereafter may be, granted by the United States to this State, for the support of schools, which may have been, or shall hereafter be sold, or disposed of, and the five hundred thousand acres of land granted to the new States, under an act of Congress, distributing the proceeds of the public lands among the several States of the Union, approved in the year of our Lord one thousand eight hundred and forty one, and all estates of deceased persons who may have died without leaving a will or heir, and also such per cent. as has been or may hereafter be granted by Congress, on the sale of lands in this State, shall be, and remain a perpetual fund, the interest of which, together with all rents of the unsold lands, and such other means as the General Assembly may provide, shall *Page 1164
be inviolably appropriated to the support of Common schools throughout the State."
Section 7 of said division 2 of Article IX, the other provision relied upon by appellant herein, provides as follows:
"The money subject to the support and maintenance of common schools shall be distributed to the districts in proportion to the number of youths, between the ages of five and twenty-one years, in such manner as may be provided by the General Assembly."
It will be noted that section 3, above quoted, provides for a perpetual fund and, because it is a perpetual fund, only the interest thereof is to be used for school purposes. The language on which appellant relies, appearing in the latter part of section 3 above quoted, "and such other means as the General Assembly may provide," is used in connection with interest on the perpetual fund and rents of unsold lands. It clearly indicates that the general assembly could augment the income from the permanent fund and, under section 7, above quoted, the funds which were used to augment such income would be distributed on an enumeration basis as provided by said section 7.
However, the first sentence of said section 3 provides that, "The General Assembly shall encourage, by all suitable means, the promotion of intellectual * * * improvement." The support of the common schools obviously promotes intellectual improvement. This promotion can be accomplished "by all suitable means." We are convinced that the "suitable means" adopted by the legislature to promote intellectual improvement through support of the common schools could be in addition to the support of common schools accomplished through augmenting the income from the perpetual fund by "such other means as the General Assembly may provide" pursuant to the latter part of said section 3.
The permanent school fund was originally produced primarily by liberal grants of public lands to the state to foster and encourage the maintenance of common schools of the state. This permanent fund is "inviolably appropriated to the support *Page 1165
of Common schools throughout the State," and under said section 7 must be distributed among the school districts on an enumeration basis. The income therefrom alone is not sufficient to support the common-school system. Appellees contend that, in construing said sections 3 and 7 together, the words "such other means as the General Assembly may provide" in section 3 mean in effect that only "other such means as the General Assembly may provide" must be distributed on an enumeration basis. This interpretation gives a logical and reasonable meaning to both the words "such" and "other," makes the broad and liberal provisions of the first sentence of section 3 applicable to common schools as well as other phases of our educational system, and makes possible a reasonable application of the language in section 15 of division 1 of said Article IX as applied to the common schools.
Appellant contends that in construing said provisions of sections 3 and 7 together we should hold that "any other means as the General Assembly may provide" for the support of the common schools must be treated as augmenting the income from the permanent school fund and must be distributed among the school districts solely on the enumeration basis prescribed by said section 7. This interpretation would change the word "such" in section 3 to "any" and change the word "as" to "which," would render the words "by all suitable means" in the first sentence of section 3 meaningless as to the common schools, and would place a severe restriction upon the words "in any other manner that to them shall seem best and proper" in section 15 of division 1 of Article IX when applied to the common schools.
Appellees' theory means that if funds appropriated by the legislature are intended to augment the income from the permanent fund so as to become a part of the permanent fund they constitute "other such means" for the support of common schools and must be distributed on an enumeration basis. The legislature has made many appropriations of this character. Those made by the Seventh to the Thirty-ninth General Assemblies inclusive exceed $600,000. Appellees concede that, "There is no question that the appropriations made into the interest fund of the permanent school fund must be distributed on an *Page 1166
enumeration basis" (under section 7, division 2, Article IX, of the Constitution). But, under appellees' theory, if the appropriation for school purposes is one that is not intended to augment the income from the permanent school fund so that said appropriation does not become a part of the permanent school fund, it may be distributed as the legislature may provide under the broad authority given it by the first sentence of section 3, division 2, Article IX, to "encourage, by all suitable means, the promotion of intellectual * * * improvement," and that given by section 15, division 1, Article IX, to "provide for the educational interest of the State in any other manner that to them shall seem best and proper." Appropriations so made need not be distributed solely on an enumeration basis. Appropriations of this character have been made in the past and specific provision has been made for their distribution on a basis other than that of enumeration of youths between five and twenty-one years of age as stated in said section 7. Illustrative are those made pursuant to section 293.7, Code, 1946, providing state aid to standard rural schools, which were $100,000 per year from 1919 to 1933, and have been $90,000 per year since then. This interpretation of the constitutional provisions is logical, reasonable, and sound, and it is our duty to adopt it herein. Other courts, in dealing with somewhat analogous constitutional provisions, have repeatedly so held.
In 56 C.J. 191, the general rule is stated thus:
"Constitutional provisions relative to the distribution and apportionment of the income from the school fund have no application to the disposition of moneys appropriated by the state for school purposes out of other funds; and a constitutional provision that the school fund shall remain inviolate relates only to the school fund as established by the constitution and not to other funds which may be appropriated for school purposes."
One of the cases cited in support of the foregoing statement is Marrs v. Mumme, Tex. Civ. App., 25 S.W.2d 215, 219, wherein the court states:
"If our construction of section 3 of article 7 be correct, *Page 1167
then the provisions of section 5 of the same article are in no manner assailed by the Rural School Act. The money appropriated under the act was no part of the available school fund provided by the Constitution, and the constitutional provisions as to distribution of the school fund should not be consulted in testing the constitutionality of the act. Section 5 relates to the permanent school fund, and to the appropriation of that fund and the available school fund, and, as the money covered by the act now being considered is not stamped with the characteristics of either, the section has no application to it whatever, and the provisions as to distribution of the permanent or available school fund can have no reference to the appropriation of the $5,000,000.
"The Constitution makers never contemplated that any appropriation of general funds to assist certain neglected school districts would in some magic way convert the appropriation into available school funds and defeat the purposes of the legislation by rendering necessary a per capita distribution of the money to every scholastic in Texas. Some hard things have been charged to the Constitution, but we do not believe that it can be so warped and distorted as to prevent the more than 300,000 children in the rural communities from receiving aid, which all students of our public school system realize is absolutely demanded, if the system is made to serve, not a favored portion, but all the children of the state."
Other cases to similar effect include: Miller v. Childers,107 Okla. 57, 238 P. 204; Miller v. State ex rel. Russell, 130 Miss. 564,94 So. 706; In re Opinions of the Justices, 215 Ala. 524,111 So. 312; State ex rel. Clark v. Gordon, 261 Mo. 631,170 S.W. 892.
Of course, we must construe the specific language of our own constitution. Giving consideration to all the matters heretofore set forth, we hold the statutes here challenged are constitutional. The trial court was clearly right in holding that the appropriations made by the legislature, in the two statutes here challenged, from the general fund of the state, as augmented by transfers to it from the three-point tax fund, were not made from the permanent school fund and were not stamped with the characteristics of that fund and were not required to be *Page 1168
distributed on the enumeration basis stated in section 7, division 2, Article IX of the Constitution.
Much of the argument of appellant herein is based upon the holding of this court in the early case of District Township of Dubuque v. County Judge, 13 Iowa 250, 251, decided in 1862. That case involved an interpretation of sections 3 and 7, division 2, Article IX of the Constitution, as applied to the provisions of sections 31 and 32, chapter 52, Acts of the Seventh General Assembly, which required the county judge of each county, in levying county taxes, to levy a tax for the support of schools within the county and distribute the same among the school districts of the county. One half of the tax was to be distributed in equal sums to each school district and the other half of the tax was to be distributed on the enumeration basis stated in section 7, division 2, Article IX of the Constitution. The plaintiff contended that all of the tax was required to be distributed on an enumeration basis. The trial court held for the defendant. On appeal, this court reversed the case, stating as follows:
"We suppose that it is §§ 3 and 7 of the second division of Art. 9 of the Constitution, in relation to school funds, and school lands, upon which the plaintiff relies, as showing the invalidity of the act above referred to. The first of these sections, that is, § 3, defines what shall constitute a perpetual fund for educational purposes, and then concludes with these words: `The interest of which (meaning the interest arising from the permanent school fund,) together with all rents of the unsoldlands, and such other means as the General Assembly may provide,shall be inviolably appropriated to the support of commonschools, throughout the state.'
"The expression `and such other means as the General Assemblymay provide,' must include, ex vi termini any other funds than those named which the Legislature should authorize to be raised for the support of schools. Under the authority of the aforesaid act of 1858, the County of Dubuque levied and collected a school tax of $4,445, for the support of schools in that county. The same act declares how this fund shall be used and distributed, namely, one-half in equal sums among all the districts of the county, the other moiety to be distributed to the districts *Page 1169
in proportion to the number of youths between the ages of five and twenty-one. But the seventh section of the 9th Art. of the Constitution above referred to, provides that `the money subject to the support and maintenance of common schools, shall be distributed to the districts in proportion to the number of youths between the ages of five and twenty-one years, in such manner as may be provided by the General Assembly.'
"It is impossible for us to perceive how the act of the Legislature referred to can stand with this provision of the Constitution. They seem to be irreconcilable. The Constitution has ordained one rule, and the General Assembly has adopted and authorized a different rule, for the distribution of the same fund. The latter, of course, must yield to the former."
The foregoing pronouncement supports the theory of appellant herein and cannot be reconciled with appellees' theory. The opinion recites that the question was submitted "on the papers without argument from counsel." This court was not supplied then with elaborate briefs like those with which we have been favored on this submission. We have been unable to find any subsequent decision of this court which has cited or referred to said holding. Because of the matters set forth in this opinion, we now hold that our decision in District Township of Dubuque v. County Judge, supra, 13 Iowa 250, is unsound and is expressly overruled.
The decree is — Affirmed.
GARFIELD, C.J., and MULRONEY, SMITH, WENNERSTRUM, OLIVER, HALE, and MANTZ, JJ., concur. *Page 1170 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434481/ | Appellant, on October 20, 1941, filed its petition alleging that appellee, with intent to injure appellant's business and destroy competition, had paid and was paying higher prices for grain, particularly corn, at Sheldon, Iowa, than it paid at certain other stations operated in Iowa, and that appellee had been and was selling feed at Sheldon for less than the price at which it sold the same feed at certain other stations in Iowa; that the acts complained of were in violation of sections 9885 and 9886 of the Code of Iowa, 1939; alleging irreparable and special injuries to appellant, no adequate remedy at law, and asking injunction restraining appellee from the commission of such acts. Appellee filed motion to dismiss the petition on the grounds, among other things, that the acts complained of constituted criminal acts; that the statute, chapter 432, Code of Iowa, 1939, provides an exclusive remedy for its enforcement, and that an injunction could not be granted because of such exclusive remedy. Appellee's motion to dismiss was sustained and from such ruling this appeal is taken.
Chapter 432, Code of Iowa, 1939, comprises sections 9885 to 9894 inclusive. Section 9885 relates to unfair discrimination in sales and provides that anyone who shall, for the purpose of destroying the business of a competitor in any locality, or creating a monopoly, discriminate between different sections, localities, communities, and towns by selling such commodities at a lower price or rate in one section, locality, community, or town than such commodity is sold by such seller in other sections, localities, communities, or towns, with certain allowances as to telephone service, quality, and transportation, shall be deemed guilty of unfair discrimination. Section 9886 is similar except that it relates to unfair discrimination in purchases. The sections following provide for punishment by a fine or imprisonment. Section 9889 makes contracts in violation of these provisions void. Section 9890 makes it the duty of county attorneys, in their counties, and the attorney general, to enforce the provisions of sections 9885 to 9889 inclusive by appropriate actions. Section 9891 provides that if complaint shall be made to the secretary of state of such unfair discrimination by any corporation, it shall be his duty to refer the matter to the attorney general, who may, if in his judgment the facts justify it, institute *Page 703
proceedings in the courts against such corporation. Under section 9892, if any corporation is found guilty of unfair discrimination, the secretary of state shall immediately revoke its permit. Under section 9893, if such corporation continues to attempt to do business in this state, it will be the duty of the attorney general, by proper suit in the name of the state of Iowa, to enjoin such corporation from transacting business in this state. The final section of chapter 432, section 9894, provides that nothing in the chapter shall be construed as repealing any other act, or part of act, but the remedies therein provided shall be cumulative to all other remedies provided by law.
There are two principal questions raised in this case. First, under the facts pleaded, can an injunction be granted against a violation of sections 9885 and 9886, which are criminal in character? Second, if so, may it be brought by any citizen, or is the institution of such suit restricted to the county attorney or the attorney general?
[1] I. We shall consider first the question of whether or not, under the facts pleaded, the appellant was entitled to an injunction. Many authorities are cited by appellant. As a general rule injunction will not lie to restrain a merely criminal act. The rule is so stated in 28 Am. Jur., Injunctions, 336, section 148, as follows:
"The aid of the injunctive powers of equity is frequently sought against acts of a criminal or penal character, and the availability of the remedy for such purpose is a matter which has received much judicial attention. It may be observed at the outset that equity is in no sense a court of criminal jurisdiction, and its reluctance to intervene in matters purely criminal or penal is recognized universally. Something more than a mere offense against the laws of the land is necessary to justify the exercise of its powers. There must be some interference, actual or threatened, with property or other rights which chancery will undertake to protect, or some additional element bringing the case within the domain of that court."
See, also, 1 C.J.S., Actions, 996, section 12; annotation 52 A.L.R. 79.
The courts are not uniform in the application of the general rule to the facts. Appellant cites a large number of cases which *Page 704
merely exemplify the rules laid down in American Jurisprudence and Corpus Juris Secundum above cited and the general rule. All cases must necessarily depend upon the facts.
In a criminal case, State v. Standard Oil Co., 150 Iowa 46,129 N.W. 336, it was held that the intention of the legislature was to create an offense against the public and not against any particular individual. The court held that the ultimate wrong described by the statute is that of destroying competition, not that of injuring a particular competitor. Citing State v. Leasman, 137 Iowa 191, 114 N.W. 1032. The chapter under consideration was chapter 169, Acts of the Thirty-first General Assembly (1906), which was substantially the same as the present chapter 432, except that it provided only for unfair discrimination in the sale of petroleum products. It afterward became section 5028-b of the 1913 Supplement to the Code and was extended to include all the commodities now mentioned in chapter 432 of the 1939 Code by amendment of the Forty-seventh General Assembly (chapter 222), which made no changes in the wording or effect so far as the matters here under consideration are concerned. It was originally included in the Code as a part of the criminal law, but by editorial change became a part of Title XXIII relating to trade and commerce but has remained unchanged so far as discrimination for the purpose of destroying the business of a competitor or creating a monopoly is concerned.
The statute here under consideration is criminal in character, and, as such, ordinarily a writ of injunction would not lie to restrain its violation unless the acts complained of entitle the plaintiff to some form of equitable relief other than that based solely upon violation of the statute.
Appellee cites In re Debs, 158 U.S. 564, 15 S. Ct. 900,39 L. Ed. 1092; Crawford v. Tyrrell, 128 N.Y. 341, 28 N.E. 514; and Port of Mobile v. Louisville N.R. Co., 84 Ala. 115, 4 So. 106, 5 Am. St. Rep. 342, which, in substance, refer to the general rule heretofore set out. Daniels v. Portland Gold Mining Co., 8 Cir., Colo., 202 F. 637, 45 L.R.A., N.S., 827, certiorari denied229 U.S. 611, 33 S. Ct. 771, 57 L. Ed. 1351, in substance holds that while a writ of injunction may be employed to protect rights of property, it should not be made a vehicle for invading the legitimate legislative province of government or a means of *Page 705
establishing a system of rules for the regulation of the business of a community, nor should it be used as an ordinary supplement to the criminal laws of the state. Also cited by appellee is Motor Car Dealers' Assn. v. Haines Co., 126 Wash. 267,222 P. 611, 36 A.L.R. 493, which holds that injunction does not lie at the suit of a private citizen against the keeping open on Sunday, contrary to statute, of a business which is competitive of his own; and that a businessman does not suffer special injury from the keeping open of a competitive business on Sunday in violation of statute so as to be entitled to maintain an action to enjoin such act as a nuisance. In Campbell v. Jackman Bros., 140 Iowa 475,485, 118 N.W. 755, 759, 27 L.R.A., N.S., 288, which involved the violation of the intoxicating-liquor law, the court held that the sale of liquor was not a nuisance per se and that the function of courts of equity is the protection of private property and civil rights, except when enlarged by statute, and they will not interfere by injunction to prevent or punish criminal or immoral acts unconnected with the violation of a private right; nor will they enforce moral obligations or duties. Reference is made therein to the statute authorizing a court of equity to enjoin the maintenance of a place of business for the sale or keeping of intoxicating liquors as a public nuisance, and states:
"Except in cases brought in pursuance of this particular statute, this court has repeatedly adhered to the generally accepted doctrine that injunction will not lie at the suit of an individual to restrain a public nuisance which affects him only as one of the general body of citizens."
See, also, Home Sav. Tr. Co. v. Hicks, 116 Iowa 114,89 N.W. 103; Ewing v. City of Webster City, 103 Iowa 226, 72 N.W. 511; Moir v. Moir, 182 Iowa 370, 165 N.W. 1001; Wabash R. Co. v. Peterson, 187 Iowa 1331, 175 N.W. 523; Snouffer Ford v. City of Tipton, 161 Iowa 223, 142 N.W. 97, L.R.A. 1915B, 173; and Hathaway v. Benton, 172 Iowa 299, 154 N.W. 474. These cases indicate that it has uniformly been held that the mere violation of the law, unaccompanied by some recognized ground of equitable relief, is not ground for injunction. But, as stated in 32 C.J. 227, section 440:
"Notwithstanding the general rule stated above, it is well *Page 706
settled that where the intervention of equity by injunction is warranted by the necessity of protection to civil rights or property interests, and the inadequacy of a criminal prosecution to effect this purpose, the mere fact that a crime or statutory offense must be enjoined as incidental thereto will not operate to deprive the court of its jurisdiction."
This, however, is a motion to dismiss, and for the purposes of the motion the facts properly pleaded in the petition will be taken as true. Appellant's petition not only alleges that the acts complained of were with the intention of injuring the business of the appellant, destroying competition and preventing appellant from purchasing grain and selling merchandise, but also alleges in general: malice, irreparable injury, and special injury to appellant different from any injury that might be sustained by the general public as the result of such acts. These are equitable grounds which may be recognized as a basis for a claim for injunction independent of the statute.
Aside from the provisions of the statute in question, this court has recognized the right of a citizen to protection from unfair competition. See Dunshee v. Standard Oil Co., 152 Iowa 618,132 N.W. 371, 36 L.R.A., N.S., 263, and cases cited. This was an action to recover damages for unlawful interference with trade. Reeves v. Decorah Farmer's Cooperative Soc., 160 Iowa 194,201, 205, 140 N.W. 844, 847, 848, 44 L.R.A., N.S., 1104, was an action to restrain and enjoin defendant from demanding or receiving any amount under a contract which it was claimed was monopolistic in character, invalid because in restraint of trade, and unfair because it was intended to drive all competitors from the market. The prayer was granted in part and the cause affirmed by this court. In the opinion is quoted the monopoly statute, chapter 225 of the Acts of the Thirty-third General Assembly, but the court says:
"Without reference to this chapter, monopolies have always been odious at common law, and all contracts, arrangements, or agreements in restraint of trade or of free competition are void."
It is true that case does not cover the situation here since it referred to contracts or arrangements designed to create a *Page 707
monopoly, but the right to injunctional relief is recognized therein, and the court concludes as follows:
"Next, it is contended that, conceding the arrangement and agreement is illegal [this refers to contracts of defendant with its customers], plaintiff is not entitled to an injunction to restrain the defendants from carrying it out. It seems to us that plaintiff has suffered a wrong and that he is threatened with further injury to his business, growing out of defendant's illegal acts. In virtue of his being a competitor with the defendant association, he has the right to free and untrammeled competition with it, and if through illegal means he has been made to suffer in the past, and will do so in the future, he is entitled to the protective arm of the court." Citing Bear v. City of Cedar Rapids, 147 Iowa 341, 126 N.W. 324, 27 L.R.A., N.S., 1150. "If, for no other reason, he is entitled to an injunction to avoid a multiplicity of suits. In at least two cases it has been held that one circumstanced as plaintiff may maintain an action to enjoin the illegal acts." Citing Jackson v. Stanfield,137 Ind. 592, 36 N.E. 345, 37 N.E. 14, 23 L.R.A. 588; Employing Club v. Blosser Co., 122 Ga. 509, 50 S.E. 353, 69 L.R.A. 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694.
Boggs v. Duncan-Schell Furniture Co., 163 Iowa 106,143 N.W. 482, L.R.A. 1915B, 1196, was a law action involving unlawful competition not brought under this nor any criminal statute. The plaintiff was a sewing-machine agent and the defendant a retail merchant in the same city, and defendant, for the purpose of injuring plaintiff in his business, wrongfully and maliciously advertised to the public that it would sell the same machines handled by the plaintiff at half the price for which plaintiff was offering them for sale; and plaintiff alleged that the sole purpose of the defendant in so doing was to ruin plaintiff in his business. A verdict for the plaintiff was sustained by this court. See cases cited therein. In Beardsley v. Kilmer, 236 N.Y. 80, 140 N.E. 203, 27 A.L.R. 1411, the annotator in American Law Reports cites and quotes from the Boggs case and the Dunshee case, supra.
It seems to us apparent from the rule laid down by the foregoing authorities that this court has sustained the right to a *Page 708
recovery or to equitable relief, even where a statute such as the statute here referred to makes the acts complained of a crime, where there is pleaded and established injury to the plaintiff different from that sustained by the general public. In the present case the facts entitling the appellant to equitable relief are fully pleaded, and as such, for the purpose of a motion, may be taken as true. We think that appellant has set out a cause of action such as entitles him to a hearing thereon in court. We find our answer to the first question in issue must be that if the facts sustain the allegations of the petition such injunction can be granted.
[2] II. The second question, May it be brought by any citizen? presents a different question. Appellee argues that the remedies provided in chapter 432 of the Code are exclusive and that a private litigant has no right to institute suit to enforce any of the provisions of said chapter.
It was held in Iowa in the recent case of Doebler v. Dodge,223 Iowa 218, 272 N.W. 144, an action in equity involving violation of the liquor law, brought by plaintiff as a private citizen to enjoin defendant from maintaining an alleged liquor nuisance, that the right to bring such action was exclusive in the officers entrusted with that duty. In that case, however, there was no question as to the right to equitable relief on the part of a citizen who had sustained an injury separate and apart from the general public, and no other issue involved than the violation of the law. The doctrine laid down in the Doebler case does not deprive the citizen of his right to either damages or some other form of relief for his personal or individual injuries. We think our ruling under Division I herein, in which we hold that the individual has a personal cause of action for the injuries suffered by him individually, also gives him the right to bring such action as a natural sequence.
III. Our holding under the first two divisions herein renders it unnecessary to discuss appellant's contention that remedies other than criminal may be invoked to carry out the provisions of chapter 432, referring to the final clause thereof which states that the provisions of said chapter shall not interfere with other remedies. Since we hold that he has both the right to such action on his own behalf, and to institute such action, *Page 709
consideration of the final clause of the unfair-competition law is unnecessary.
Our holding must be that the motion to dismiss should have been overruled, and the cause is therefore reversed. — Reversed.
GARFIELD, C.J., and MILLER, OLIVER, MULRONEY, BLISS, SMITH, and MANTZ, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434491/ | This action arises out of the provisions of the Workmen's Compensation Act, Code 1935, § 1361 et seq.
On December 5, 1933, the claimant, Glenn Hamilton, while an employee of the defendants, was engaged in mixing lime. A piece of the lime lodged in his right eye causing an injury which resulted in its removal about a month later. Plaintiff sought compensation for permanent, partial disability under Code section 1396, subsection 16, which reads as follows:
"16. For the loss of an eye, weekly compensation during one hundred weeks."
In November, 1922, the claimant, while employed by the C.B.
Q.R.R. Co., received an injury to his right eye (the one for which compensation is now sought) by being struck by a flying nail. Hamilton filed a claim under the Workmen's Compensation Act, Compiled Code, 1919, § 807 et seq., and in 1924, the railroad company paid him $1,000 as a compromise settlement. Full compensation under the act would have been $1,500. After said injury, Hamilton continued to be industrially employed until he received the injury on December 5, 1933. Claimant's left eye is normal.
Hamilton filed his petition for compensation for the injury occurring December 5, 1933. Arbitrators were waived and the case was submitted to the deputy industrial commissioner as sole arbiter, who held that claimant was not entitled to recover because the right eye was industrially blind at the time of the injury; all practical vision having been previously, permanently lost. Claimant filed a petition for review by the industrial commissioner and additional testimony was taken. The commissioner sustained the arbitration decision. Claimant then appealed to the district court which reversed the finding and decision of the industrial commissioner and awarded weekly compensation for one hundred weeks to the claimant against the defendants under Code section 1396, subsection 16.
One of the positions taken by appellants is that the claimant's eye was injured in November, 1922, while an employee of the Burlington Railroad Company, to the extent that no useful, industrial vision remained; that such injury constituted a loss *Page 1100
of the eye under Code section 1396; that when the injury occurred December 5, 1933, the claimant did not receive a compensatable injury because he had lost his eye in the first accident.
The commissioner in his decision on review held:
(1) As a result of his injury on July 5, 1933, claimant sustained no loss of useful vision.
(2) If necessary to hold that in such injury useful vision was lost, it must necessarily follow that payment required be based upon the measure of loss actually resulting therefrom.
He made the following statement in his review decision:
"Six doctors testify in this proceeding, all to the effect that only limited vision remained in the right eye after the first injury. In order to accept the testimony of the claimant and the brother-in-law or to give credence to the Ford card it is necessary to decide that all these doctors are wrong — radically wrong. This choice must be made in reaching conclusion."
The district court found that:
"The evidence does show without dispute that the claimant prior to the last injury had considerable vision in this eye and that he used it in his daily labor in driving a truck and other work. In my judgment the finding of the Commissioner that the claimant did not sustain any loss of useful vision as the result of the injury complained of is not only contrary to the great weight of the evidence but is without any support in the evidence."
The trial court reversed the finding of the commissioner and entered judgment for claimant for compensation for the loss of the right eye for one hundred weeks under Code section 1396, subsection 16.
Code section 1453, subsection 4 reads as follows:
"1453. Decision on appeal. Any order or decision of the industrial commissioner may be modified, reversed, or set aside on one or more of the following grounds and on no other: * * *
"4. If there is not sufficient competent evidence in the record to warrant the making of the order or decision."
[1] The question is whether there is sufficient, competent evidence in the record to warrant the decision made by the commissioner. If there are not sufficient facts in the record to *Page 1101
support the finding and decision of the industrial commissioner, it will be set aside. Enfield v. Certain-Teed Products Co. et al.,211 Iowa 1004, 233 N.W. 141; Butz v. Hahn P. V. Co., 220 Iowa 995,263 N.W. 257.
If there is any support in the evidence for the decision of the commissioner that the right eye had no useful vision at the time of the last injury, it must be found in the medical testimony. Several lay witnesses testified to facts showing claimant had substantial industrial vision.
Dr. Sells, a witness for claimant, testified that he came to him in 1924, after the accident in the Burlington shops and after claimant had been to Dr. La Force, who had performed an iridectomy, or a cutting out of a portion of the iris of the right eye. The witness testified that the pupil was oval, that there was a beginning cardom (curtain) or form of cataract coming in the right eye; that Hamilton had about one-fifteenth vision but with glasses had one-third vision; that he could have an operation for the cardom but Hamilton was helped with the glasses prescribed for him. The last time the witness saw Hamilton he hadone-third vision.
Dr. La Force, oculist for the Burlington Railroad Company, testified for appellants that in November, 1922, he treated the wound in the eyeball resulting from the injury to claimant received in the Burlington shops. The witness stated that at that time it would be impossible to tell the result of the injury and whether or not the vision in the right eye was seriously impaired until later. Dr. La Force saw claimant again in 1924. The witness testified that at the time, the pupil was more or less elongated; that there was a cyst of the iris or ciliary body as a result of the injury; that a cyst has a tendency to enlarge; that if thecyst would increase in size, the formation of a cataract or glaucoma would be a natural development of the injury as he observed it in 1924. The witness further testified that claimant in 1924 had only one-tenth vision and that the tendency would be for the vision to gradually decrease.
Dr. Pearson examined Hamilton at the request of the industrial commissioner in July, 1924. After testifying to the nature and extent of the wound and condition of the eye the witness stated that there was one-sixth vision in the right eye which could not be improved with lens; that ten per cent vision is not practical vision; that if one eye was normal, the injured eye, *Page 1102
with only ten per cent vision, would not be used at all, and a person would be for practical purposes blind as a workman; that degenerative changes are prone to develop. The witness further testified:
"When I saw this man, it appeared to me he should see better, he had received a shock and it appeared to me he should see better, but I have to report what I found and this subsequent note carries with it that feature of uncertainty which I cannot say yes or no to."
The above medical testimony refers to the condition of claimant's right eye in 1924. The witness stated that acute glaucoma was curable, and that the hazy cornea could be caused by the lime burn. So far as shown by the record, claimant was not again examined by a physician or specialist until 1927. On September 19, 1927, Hamilton consulted Dr. Stroy, who treated the injured eye until November 30, 1927. Dr. Stroy testified for claimant as follows:
"The first day I saw him (September 19) he had a very steamy or hazy cornea which is characteristic of acute glaucoma. I saw him again on September 23, 1927, and his eye had improved, the tension was going down and his cornea was clearing up. I was then able to see a floating object just behind the iris and in front of the lens which was noticeable when he moved his eye quickly from side to side. But when his eye was stationary, straight ahead, it didn't seem to obstruct his line of vision. I presumed it to be a cyst. On September 26, he was much improved, his vision was improved, his tension had gone down and he didn't have so much pain. The cyst was about the size of an ordinary match-head. I cannot give an opinion as to how long that cyst had been there. My opinion would be it succeeded his first injury. On November 30, 1927, the tension was normal, the cornea had cleared up, he had no pain and had about 30 per cent or one-third vision in that eye. He had his first injury in 1922; he had no cataract in 1927 and in the lapse of five years the cataract should have showed up. He had a complete recovery from glaucoma. He certainly had a useful eye."
"Q. And what would you say as to whether or not the physical condition of the eye, that is the elongated shape of the pupil because of the iridectomy and this cyst and the haziness *Page 1103
of the cornea had reached its maximum extent at the time you saw him in 1927? A. In view of the fact it was stationary for three years, it is reasonable to presume it was stationary."
The witness further stated that the cyst would bother him only as he moved his eyeball.
"I mean if he would focus his vision, look at it long enough for the cyst to float away, then it would not cloud over again until he shifted the eye. When he shifted the eye it would take a fraction of a second for the cyst to get out of the eye."
Dr. Yocom testified for the claimant. Hamilton consulted Dr. Yocom after receiving the injury on December 5, 1933. The witness testified that he watched the eye from December 6, and until the cornea became so ulcerated and inflamed and the eyeball so damaged that in order to protect the vision of the left eye it was necessary to remove the eyeball, which was done on December 30, 1933. The witness testified on cross-examination that on December 13, 1933, he made a report to the insurance company in which he stated that the eyeball had previously been injured with a scarring of the cornea and that he would judge that Hamilton had no vision of value previously to the lime burn of the eyeball, and the witness testified that he was still of the same opinion. The witness further testified on cross-examination that he did not try to make a vision test because of the pain Hamilton was suffering; that he had suffered damage to the eye; that it was greatly hampering his vision. "I'll put it that way inasmuch, as I didn't make a test of his vision to get an accurate opinion, but that vision had been greatly disturbed. It was in that belief that I made my medical report that in my opinion he did not have vision previously."
On direct examination, the witness testified:
"I had never seen or examined the eye prior to the time that he came to me on December 6, in this inflamed condition. I was notable to tell the extent of the old injury in detail. I was only able to judge that there was a hazing of the cornea with some lack of roundness of the pupil and with evidence of attachment of the iris to the surrounding tissues of the eye with evidence of blurring of the cornea. The eye was so reddened when I got hold of it I could not make an exact test as to how it *Page 1104
was before the injury. I couldn't attempt to do that, but there was evidence of an old injury."
The witness further testified that the amount of vision Hamilton had before the last injury could only be tested by test charts to give an accurate test of his vision.
The witness ultimately stated that Hamilton's vision was impaired and that he had some vision and just how much he was unable to determine; "I don't think he had normal vision but he could have had some vision."
We think a fair analysis of the testimony of Dr. Yocom is that the right eye had some vision prior to the last injury and he was unable to determine the extent of the vision because of the inflamed condition of the eye.
The medical testimony reveals that while claimant may have had only one-sixth or one-tenth vision in 1924, the prediction that the condition might grow worse and result in ultimate blindness did not come true. Dr. Sells, who examined the eye in 1924, testified that glasses improved his vision and the last time he saw him, which must have been some time after the examination by Dr. La Force and Dr. Pearson in 1924, that Hamilton had thirty-three per cent vision. The cyst did not increase in size. In 1927, Hamilton had thirty-three per cent vision without the use of glasses.
Dr. Pearson stated in answer to a hypothetical question that:
"If I found on examination in 1927 or 1928, the structure floating in the eye the size of an ordinary match-head, I would question it being a complete cyst."
A careful examination of the record leads to the conclusion that there was no cataract.
[2] The Workmen's Compensation Act does not prescribe a standard of industrial, useful vision, and whether there is a percentage of vision that will constitute industrial vision is a question of fact. There is no requirement that the eye be a normal one. The degree of defective vision is not the statutory measure for compensation. Though an eye may have subnormal vision at the time of the injury for which compensation is sought, due to injury or natural defects, if there is useful industrial vision and such vision is lost there is a "loss of an eye" *Page 1105
under section 1396, subsection 16. See Diederich v. Tri-City R.R. Co., 219 Iowa 587, 258 N.W. 899; Daugherty v. Scandia Coal Co.,206 Iowa 120, 219 N.W. 65; Swim v. Central Iowa Fuel Co.,204 Iowa 546, 215 N.W. 603.
[3] While there is evidence that Hamilton did not have industrial vision in 1924, the medical testimony shows there was a gradual improvement in vision from 1924 to 1933. The prediction that the injured eye might gradually lose vision and degenerative processes develop did not come true. In 1927, Hamilton had thirty-three per cent vision and the medical evidence is that such vision is useful vision. We cannot infer from Dr. Yocom's testimony that he had less than one-third vision in 1933. The commissioner based his finding that Hamilton sustained no loss of useful vision on the testimony of the physicians. We agree with the trial court that the decision of the commissioner was without support in the evidence. Hamilton testified that he had fifty per cent vision at the time of the injury. He did not have a "blind side" and as above stated, the testimony of the lay witnesses showed that Hamilton had substantial useful vision on December 5, 1933. We find no conflict in the evidence. The decision of the commissioner on review being without support in the evidence, the trial court was right in reversing the decision and rendering judgment for claimant.
[4] Another proposition presented by appellants is that the following part of the judgment entry of the district court constitutes error:
"It is further ordered and adjudged that in computing the compensation to be paid to the claimant the same shall not be reduced on account of any injury or disability which the claimant suffered previous to the injury complained of in this action. That paragraph 8 of section 1397, Code 1935, does not apply to the situation of the claimant in the present case."
Appellants state that the above part of the judgment entry constitutes error "for the reason that if claimant had useful industrial vision, as found by the district court, the defendants had no greater obligation than the compensation value of such vision as claimant lost in defendants' service; that defendants were entitled to deduct the vision lost in the former accident, for which claimant had been paid, and the court should have so held." *Page 1106
This assignment of error is in accord with the second finding of the commissioner that "if necessary to hold that in such injury useful vision was lost it must necessarily follow that payment required be based upon the measure of loss actually resulting therefrom."
The contention of appellants is that in view of the medical evidence the claimant did not have over ten or fifteen per cent vision in the right eye at the time of the second accident on December 5, 1933, and that the compensation for the subsequent injury should be apportioned according to the proportion of disabilities caused by the respective injuries.
This position taken by appellants involves a construction of Code section 1396, subsection 20, and Code section 1397, subsection 8; that is, appellants rely on these two Code sections to sustain their contention.
Code section 1396, subsections 16 and 20, read as follows:
"1396. Permanent partial disabilities. Compensation for permanent partial disability shall begin at the date of injury and shall be based upon the extent of such disability, and for all cases of permanent partial disability included in the following schedule compensation shall be paid as follows: * * *
"16. For the loss of an eye, weekly compensation during one hundred weeks.
"20. In all other cases of permanent partial disability, the compensation shall bear such relation to the periods of compensation stated in the above schedule as the disability bears to those produced by the injuries named in the schedule."
Because of our holding in this opinion that the claimant sustained the loss of an eye from his last injury, the express provision of subsection 16 of section 1396 covers the claimant's loss, and subsection 20 which applies to "all other cases of permanent, partial disability" is not applicable to the situation.
Where a permanent partial disability is not specifically defined in subsections one to nineteen, inclusive, Code section 1396, compensation will be paid under subsection 20.
Code section 1397 provides the basis of computation for compensation. Subsection 8 of Code section 1397 provides that:
"8. In computing the compensation to be paid to any employee who, before the accident for which he claims compensation, *Page 1107
was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries which he shall have suffered."
Subsection 8 of section 1397 applies only when the employee is disabled and drawing compensation under the Workmen's Compensation Act at the time of accident for which he claims compensation. Oldham v. Scofield Welch, 222 Iowa 764,266 N.W. 480, 269 N.W. 925; Cain v. State Industrial Accident Commission,149 Or. 29, 37 P.2d 353, 96 A.L.R. 1072.
The claimant Hamilton received a lump sum settlement of $1,000 in 1924. At that time his wages entitled him to $15 per week compensation so that the lump sum award divided into weeks would give him an award for sixty-six and two-thirds weeks, which period of compensation expired in 1925.
As claimant was not receiving compensation under the provisions of the act at the time of the last injury, the trial court was right in refusing to reduce compensation by the percentage of disability suffered by claimant from his first injury.
[5] Appellants further complain of the ruling of the trial court suppressing a part of the deposition of their witness, Dr. La Force, as privileged and confidential information obtained by a physician from his patient and inadmissible under Code section 11263.
The portion of the deposition suppressed referred to information obtained by the specialist while the relation of physician and patient existed between him and Hamilton. Appellants invoke Code section 1441.
"1441. Liberal rules of evidence. While sitting as a board of arbitration, or when conducting a hearing on review, or in making any investigation or inquiry, neither the board of arbitration nor the commissioner shall be bound by common law or statutory rules of evidence or by technical or formal rules of procedure; but they shall hold such arbitrations, or conduct such hearings and make such investigations and inquiries in such manner as is best suited to ascertain and conserve the substantial rights of all parties thereto. Process and procedure under this chapter shall be as summary as reasonably may be." *Page 1108
Appellants state that section 11263, found in the chapter on evidence, chapter 494 of the 1935 Code, is a rule of evidence and not of substantive law and that this rule of evidence has no application to a claim under the Workmen's Compensation Act because of the provisions of section 1441.
In the case of Renner v. Model L.C. D. Co., 191 Iowa 1288, at page 1295, 184 N.W. 611, 614, the court, in considering section 1441, stated:
"That the statute clothes the industrial commissioner with wide discretion to inquire into the `substantial rights of the parties,' and emancipates him from observance of the common law or statutory rules of evidence and from `technical and formal rules of procedure,' is to be conceded; but it is to be observed that this relates solely to manner and methods of procedure and to common law and statutory rules of evidence, and the commissioner is thereby authorized to make his official investigations and inquiries in a manner best suited to ascertain `the substantial rights of the parties.' In manner and method of making such inquiries, the commissioner is not to be hampered by formal or technical rules of procedure or of evidence, but may proceed in the manner which he believes best suited to develop the truth and thus to protect the substantial rights of the parties. But he is not clothed with power or authority to change or ignore the substantive law of the jurisdiction. As bearing on this point, see the case of Carroll v. Knickerbocker Ice Co.,218 N.Y. 435 (113 N.E. 507, Ann. Cas. 1918B, 540), where the court, construing a statute quite like our own in this respect says:
"`The act may be taken to mean that, while the commission's inquiry is not limited by the common law or statutory rules of evidence or by technical or formal rules of procedure and it may in its discretion accept any evidence that is offered, still, in the end, there must be a residuum of legal evidence to support the claim, before an award can be made. * * * "There must be in the record some evidence of a sound, competent, and recognizedly probative character, to sustain the findings and award made, else the findings and award must, in fairness, be set aside by the court."'"
We stated in the case of Flint v. Eldon, 191 Iowa 845, at page 847, 183 N.W. 344, 345: *Page 1109
"The purpose, intent, and scheme of workmen's compensation legislation is well understood, and its historical significance has been frequently expressed in decisions. The fundamental reason for the enactment of this legislation is to avoid litigation, lessen the expense incident thereto, minimize appeals, and afford an efficient and speedy tribunal to determine and award compensation under the terms of this act."
We agree with the appellants' contention that section 11263 is a statutory rule of evidence and that the evidence suppressed was admissible under the provisions of section 1441.
In connection with this issue we refer to Code section 1399.
"1399. Examination of injured employees. After an injury, the employee, if so requested by his employer, shall submit himself for examination at some reasonable time and place within the state and as often as may be reasonably requested, to a physician or physicians authorized to practice under the laws of this state, without cost to the employee; but if the employee requests, he shall, at his own cost, be entitled to have a physician or physicians of his own selection present to participate in such examination. The refusal of the employee to submit to such examination shall deprive him of the right to any compensation for the period of such refusal. When a right of compensation is thus suspended, no compensation shall be payable for the period of suspension."
The above section compels the employee, upon request, to submit to an examination to a physician selected by the employer. It gives the employee the privilege of having a physician of his own selection present at such an examination. If information obtained under this section by a physician is not available to the employer, the statute would serve no practical purpose. When Dr. La Force made his first examination of the claimant, soon after the injury was received at the Burlington shops, he was the oculist of the Burlington Railroad Company and we assume that Hamilton was sent to the company doctor by the employer.
We are of the opinion, however, that no evidence of value to the appellants was included in the depositions suppressed and the action of the trial court was without prejudice to the appellants. The evidence stricken referred to an examination immediately after the injury in 1922. *Page 1110
After reciting the condition of the eye, and the nature and cause of the wound, the witness stated that, "It necessarily impaired the vision following an injury of that nature, but it would be impossible to tell the outcome, tell the result, because there might be a more serious injury than you really thought might have happened — occurred — the eye would be clouded from the hemorrhage so that you couldn't see for the time being so that it would be a matter of time until you could tell whether or not the vision was seriously impaired."
In 1924, the witness again examined the claimant. He was interrogated in detail by appellants' counsel about this latter examination and the witness repeated and elaborated on the suppressed testimony all of which was admitted in evidence and considered by the trial court. The suppression of a part of the deposition did not, under the circumstances, constitute prejudicial error.
[6] Another error asserted is that the court erred in holding the medical reports of Dr. Yocom and Dr. Pearson were inadmissible because they were hearsay statements. On December 5, 1933, Dr. Yocom made a report to the insurance carrier in which he stated:
"Diagnosis: lime burn of eyeball. This eyeball had previously been injured with a scarring of the cornea. I would judge he had no vision of value previously."
This report was hearsay and there was no error in the court's ruling. Swim v. Central Iowa Fuel Co., 204 Iowa 546,215 N.W. 603. Furthermore, appellants did not suffer damage by the exclusion of the report because the witness made the same statement on cross-examination that he made in the report.
[7] With reference to the report of Dr. Pearson to the industrial commissioner offered in evidence by appellants no objection was made to the offer on the ground that it was hearsay evidence. In the absence of objection, relevant hearsay evidence may be given consideration. Reid v. Automatic E.W. Co., 189 Iowa 964,179 N.W. 323.
Though this report in the absence of objection was admissible, Dr. Pearson gave the same testimony in his direct examination which was considered by the court and no prejudice resulted to appellants.
[8] Appellants also complain of the action of the trial *Page 1111
court in holding that the exhibits from the commissioner's file regarding the former compensation claim of Hamilton v. C.B.
Q.R.R. Co., Exhibits "2 to 2 P", inclusive, were inadmissible.
The sixteen exhibits, 2 to 2 P, were from the commissioner's file in the former compensation case. With three or four exceptions, none of the exhibits has any bearing on the merits of this case. With regard to the exhibits that were material to defendants' theory of the case, the record discloses that the trial court gave them full consideration. We find no prejudicial error in this assignment or in the case.
Because there was not sufficient evidence in the case to support the finding and decision of the commissioner that Hamilton did not have useful, industrial vision at the time of the last injury, the judgment of the district court is affirmed. — Affirmed.
HAMILTON, C.J., and MITCHELL, SAGER, KINTZINGER, ANDERSON, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434492/ | I. The pleadings are somewhat obscure. On its face, the petition does not disclose concretely what the 1. EMINENT trouble is about. Some phases of the case have DOMAIN: hitherto been presented to us under an compensa- application for a restraining order suspending tion: the operation of the decree, pending the appeal. protection We granted such application, upon condition that of right: a bond for $25,000 be filed, for the protection injunction. of the appellee.
The background (as well as the foreground) is a condemnation proceeding initiated by the appealing defendant, and afterwards dismissed. The appealing defendant is a public service corporation, organized for the purpose of manufacturing and distributing electric light and power. The other defendants were contractors and servants of the appealing defendant, who were engaged as such in carrying out the enterprise of the appealing defendant. The Iowa Electric Company is the sole defendant in interest before us on this appeal, and will be referred to in our discussion as "the defendant."
Very many years ago, a dam was constructed in Henry County across the Skunk River, and the same has been maintained continuously since its construction. It is referred to in *Page 193
the record as the "Wilson" dam, and as the "old" dam. This dam and the rights and privileges appurtenant thereto were acquired by the defendant, or its corporate predecessor, more than fifteen years ago. Up to that time, the dam had maintained a water level of seven feet. By certain proceedings had in 1911 to 1913, the defendant established its right to maintain a water level of nine feet. In 1924, the defendant obtained from the executive council permission to rebuild its dam to a higher level, conditioned upon making compensation to the upper proprietors of land who would be affected by the higher level. The plaintiff is one of such upper proprietors, and is the owner of two or three farms so situated, as alleged, that each would be flooded to a substantial extent by the higher level proposed by the defendant.
The defendant initiated a condemnation proceeding, wherein it named the plaintiff and others as upper proprietors whose land would be affected by the improvement. The sheriff's jury awarded damages to the plaintiff. The defendant neither paid the damages thus awarded, nor did it deposit the amount thereof with the sheriff. It did prosecute an appeal from such award to the district court. In the district court, a controversy arose whether the plaintiff was entitled to claim damages for other acreage of his land than that specifically described by the defendant in its application for a sheriff's jury. That controversy, as such, is not before us on this appeal. Some time after the initiation of the condemnation proceedings, the defendant applied to the executive council for the further permission to build a dam at a location 300 feet downstream from the "old" dam. This permission was granted, subject to the same conditions as before. Thereupon, the defendant dismissed the pending condemnation proceeding, and in effect refused to initiate another. In the meantime, it had commenced work upon the construction of the new dam, and had incurred large expenditure thereon. Such was the status when the decree appealed from was entered in the district court. This decree found that the proposed dam in course of construction by the defendant, as indicated by the plans and specifications pursuant to which the construction was proceeding, would result in damage to the plaintiff, and injunction was ordered against its erection or maintenance. The order of injunction, however, was made provisional, in that the defendant *Page 194
was permitted to avoid the same by paying into the hands of the sheriff the amount of damages previously awarded by the sheriff's jury to this plaintiff, and by initiating further condemnation proceedings involving other lands of the plaintiff's, which had been excluded in the first proceeding. Such is the decree from which this appeal was taken.
At the time of the trial, the dam proper had not been built to a higher elevation than the "old" dam. But the plan of construction was such that the additional elevation provided for in the plans and specifications could be readily superimposed. Moreover, a power house had been constructed, which extended 110 feet into the bed of the stream, and operated as a dam, to that extent, to an indefinite height above that of the "old" dam. All the abutments which were to support the floodgates were erected to a height much in excess of the "old" dam. The construction actually made, including the power house and the abutments and piers, reduced the flowage space to 60 feet; whereas the flowage of the "old" dam was more than 300 feet. This restriction of itself tends, in time of flood, to raise the water level higher than the lower level of the dam itself.
The application for a stay order, which we granted, was pressed upon us with much force, upon the ground that the defendant had no intention to build its new dam to any higher level than that of the "old" dam, and that all its construction work was consistent with this intention on its part.
Upon the record now before us, no such declaration of intent was made in the court below, nor is any such now made in this court. Apart from a question of jurisdiction, to be considered herein later, the only defense presented for our consideration is predicated upon the following portion of the answer:
"That the plaintiff is not entitled to the relief demanded, for the reason that plaintiff has an adequate remedy at law for the recovery of the damages, if any, they will suffer, as alleged in his petition.
"Plaintiff's petition is without equity, and no facts are alleged therein which entitle the plaintiff to equitable relief; wherefore, they ask that said action be barred, and that they have judgment for costs." *Page 195
The proposition is set forth in appellant's brief as follows:
"2. Where the rights of the plaintiff are bottomed upon injury which may be compensated for as damages and in money, may he by injunction stop what he says will cause him such injury, where he makes no claim that the defendants are insolvent, and sets forth no fact showing or tending to show that a suit at law to recover his damages is not an adequate remedy?"
Upon the merits of the appeal, therefore, the sole question presented for our consideration is whether, upon the facts pleaded and found, the plaintiff was entitled to the remedy of injunction, in the absence of an allegation of the insolvency of the defendant.
In the consideration of this question, we must assume, as the lower court found, that the construction of the dam by the defendant is for the purpose of raising the water level substantially above that caused by the "old" dam, and that such will be the result, not only of its finished construction, but of its present construction, in times of flood.
The argument for appellant is that the plaintiff has a "plain, speedy, and adequate remedy" at law for damages, and that, therefore, of necessity he is entitled to no relief in equity by injunction. The distinction is urged as between an accomplished and continuing trespass, on the one hand, and a mere threatened trespass, on the other. It is urged that, though injunction will lie in the first instance, it will not do so in the second. This broad proposition upon which the appellant predicates its argument is subject to many qualifications.
Whether the right to prosecute an action for damages in a jurisdiction perhaps remote is a "plain, speedy, and adequate remedy" to a landowner whose property is seized or about to be seized under the power of eminent domain is a question which has not hitherto been specifically raised in this court. Sufficient, perhaps, at this point to say that such right has never heretofore been so regarded in this state. The Constitution expressly provides:
"Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, * * *" Article 1, Section 18. *Page 196
Pursuant to the foregoing requirement, the legislature has provided the method of condemnation proceedings. Under these proceedings, the public corporation is required to pay the amount of the award of the sheriff's jury before it enters into possession of the land in the exercise of the power of eminent domain. Until such payment is made, the owner is not required to submit to any invasion of his land. The acts of the appellant, as described by this record, amount to an evasion on its part of the obligations imposed upon it by the provisions of Constitution and statute as a condition precedent to its exercise of the power of eminent domain. Under our previous decisions, we have always protected the landowner against evasion of this procedure. This constitutional and statutory requirement is equally obligatory upon the corporation, whether it be solvent or insolvent. It cannot be said that the injunction in this case is directed against a mere threat of trespass, as argued by appellant. On the contrary, it is directed to the protection of a summary remedy vouchsafed to the plaintiff by Constitution and statute. Such was the effect of the provisional terms of the decree entered by the court below. That an injunction may properly issue, upon application of the plaintiff, to protect his constitutional and statutory remedy, has been frequently recognized by us heretofore, and has seldom been challenged. Iowa Power Co. v.Hoover, 166 Iowa 415; Irish v. B. S.W.R. Co., 44 Iowa 380;Hibbs v. C. S.W.R. Co., 39 Iowa 340; Richards v. Des MoinesV.R. Co., 18 Iowa 259; Henry v. Dubuque P.R. Co., 10 Iowa 540. In Hibbs v. C. S.W.R. Co., we said:
"If the corporation enter upon the land without the assent of the landowner, or without having taken the course prescribed by law, it is a trespasser. Its occupancy of the land will raise the presumption of its intention to continue to use it; the landowner may waive the trespass, refrain from ejecting the trespasser, and treat the corporation as though it desired to enter into and occupy lawfully the land, and require it, under the provisions of the statutes above cited, to make just compensation. If this course be pursued, no reason can be given for limiting the remedy to any time prior to the corporation, acquiring the right, by possession or otherwise, to hold the land. Daniels v. C. N.W.R.Co., 35 Iowa 129.
"IV. After a condemnation of the land under the statute *Page 197
in proceedings instituted by the railroad company, it will be restrained by injunction from operating its road over the land condemned, until payment of the damages awarded. Richards v. TheD.M.V.R. Co., 18 Iowa 260; Henry v. D. P.R. Co., 10 Iowa 540. It is plain that the same rights will accrue to the landowner in case he institutes the statutory proceedings for assessing damages."
We hold, therefore, that the injunctional decree entered below was properly conditioned, and that, in the absence of performance of such condition by the appellant, the injunction should be operative against it.
II. The defendant entered a special appearance in the district court for the purpose of objecting to the jurisdiction of the court. The challenge to the jurisdiction was by motion to quash the service of the original notice on the 2. APPEARANCE: ground that it was not effective. The challenge special was supported by affidavits, and resisted by appearance: counter affidavits. The trial court held the subsequent service sufficient. Thereupon, the defendant plea to pleaded to the merits, and participated in the merits: trial on the final hearing. Appellant asks in effect. argument that the ruling of the lower court on its motion to quash be now reviewed and reversed. The appellee contends that, because of the general appearance thus entered by the defendant, it is in no position to ask for a review of the ruling of the court on the sufficiency of the service of the original notice. This contention is resisted by appellant.
The question whether a defendant who appears specially to object to the sufficiency of notice may have the adverse ruling of the trial court reviewed on appeal, notwithstanding a general appearance entered by the defendant after an adverse ruling, and notwithstanding his participation in the trial, is one upon which there is a diversity of decision in the various states. The question is largely controlled by the respective statutes of the states, and in the main, judicial decision thereon consists in a construction of the particular statute. The statutes of this state have for many years looked with disfavor upon the special appearance as a dilatory procedure, as indicated by Section 2626, Code of 1873, and Section 3541, Code of 1897. In 1911, the legislature enacted our present Section 11088 (Code of 1924), which is as follows: *Page 198
"11088. Any defendant may appear specially for the sole purpose of attacking the jurisdiction of the court. Such special appearance shall be announced at the time it is made and shall limit the party to jurisdictional matters only and shall give himno right to plead to the merits of the case."
The contention of the appellant is that, in the procedure adopted by it, it was wholly within the protection of the foregoing statute. That it had a right to enter its special appearance and thereby to challenge the jurisdiction of the court without submitting to such jurisdiction, is undeniable. The question is not at that point. The question is whether, under this section, it could plead to the merits, and yet remain outside of the jurisdiction of the court.
It is frankly conceded by the distinguished counsel for appellant that, under Section 3541 of the Code of 1897, which was a re-enactment of Section 2626 of the Code of 1873, an appearance by the defendant for any purpose became a general appearance, and rendered the question of defective service of original notice quite immaterial. This Section 3541 was amended by the thirty-fourth general assembly (1911). By this amendment a special appearance for the purpose of challenging jurisdiction was permitted, as set forth in Section 11088 above quoted. Whereas the original Section 3541 provided that a special appearance should be deemed a general appearance, the amendment repealed such proviso, and in lieu thereof authorized a special appearance for the limited purpose therein indicated. The contention for appellant now is that by this amendment the statute ceased to speak on the question now under consideration, and that it left such question open to judicial decision. We do not think that it can be said that the statute has surrendered its control over this subject. Section 11087 provides that the mode of general appearance to an action may be:
"2. By entering an appearance in the appearance docket or judge's calendar or by announcing to the court an appearance which shall be entered of record.
"3. By taking part either personally or by attorney in the trial of the case."
To plead to the merits of the case is necessarily a general appearance. We have always so held, and we know no authority *Page 199
to the contrary, nor does counsel for appellant contend otherwise. Its contention is that, having appeared specially, by permission of the statute, and having suffered an adverse ruling on its challenge to the jurisdiction, it then had the alternative right to plead to the merits of the case, without subjecting itself to the jurisdiction of the court. It is not claimed that Section 11088 contains any affirmative statement in support of the foregoing position. The most that is claimed is that such is the implication of the statute, as amended. We do not think that the statute will bear such construction. On the contrary, it negatives in express terms the very right thus contended for, as indicated by its final clause, which we have italicized above. InState v. Knapp, 178 Iowa 25 (1916), we held that, by filing an answer to the petition, and thereby joining issue thereon, the defendant waived his prior special appearance. In several states, such alternative right is recognized, and in quite as many others, it is denied. In virtually all of such states, however, the question pro and con is determined by the respective statutes thereof. In such jurisdictions, judicial decision goes no further than to construe the respective statutes by which the question is controlled. It would serve no useful purpose, therefore, to compare or review these various decisions. Since the enactment of Section 2626, Code of 1873, this state has always been aligned with those states which denied to a defendant the right to plead to the merits of a case under cover of a special appearance. Section 11088 does not change that alignment.
If it were deemed desirable to suggest reasons in support of the statutory policy, these are by no means wanting.
Under the statutes of this state, an original notice has never been deemed "process." Its service is simply one of the methods of conferring jurisdiction over the defendant. It is not indispensable to jurisdiction. If jurisdiction 3. ORIGINAL be otherwise acquired, such as by appearance, NOTICE: such notice and the service thereof may be service: wholly ignored, as immaterial. The challenge in general this case is that the original notice was not appearance: effectively served upon the defendant. Let it effect. be assumed that the challenge ought to been sustained. If it had been sustained, it would have devolved upon the plaintiff to effect a legal service. The fact, if such, that the trial court erroneously overruled the challenge, rendered it no *Page 200
less incumbent upon the plaintiff to effect a legal service. This requisite would rest upon him as long as the defendant remained outside of the jurisdiction of the court. If, in the meantime, the defendant should make a general appearance in such court, then the personal jurisdiction of the court over it would be complete, as a matter of law. The subsequent service of original notice would add nothing to it. The question whether the first service was effective would become wholly moot. Decision upon it could have no effect whatever upon the rights of the parties. It is not so much a question of waiver of special appearance or of the service of notice (although such is the argument in many of the cases) as it is of the moot character to which the question of effective service is reduced, when a general appearance is entered.
Upon the challenge of the special appearance, the most that the court could have required of the plaintiff was that he accomplish an effective service. The case would remain upon the docket, to await his efforts in that direction. The moment that the defendant put itself under jurisdiction of the court by general appearance, a new status was created. The defendant being in court, it was thereafter useless for the plaintiff to search for it, as being outside of court. The plaintiff could not thereafter ignore such general appearance of the defendant, and he was bound then and there to meet the issue made by the defendant's pleading. It would not then avail the plaintiff to say: "I want a continuance, in order that I may obtain service of original notice upon the defendant." It became obligatory upon the plaintiff at once to meet the issue made by the defendant's pleading, under the rules of procedure. If he then desired delay, he could obtain it only for cause other than the necessity of serving original notice. To sustain the contention of the defendant, we should have to hold that, notwithstanding its pleading to the merits and its participation in the trial, it was, nevertheless, still incumbent on plaintiff to serve notice on it.
Another reason may be suggested, which operates against the position of the defendant. The suit is in equity, and was tried upon its merits, and upon complete issues, including a general denial. The appeal is necessarily from the decree. Such, in terms, was the purport of the notice of appeal. It is triable here de novo only. Mere errors at the trial are not reviewable, upon such an appeal. We do not, in such a case, reverse on errors and *Page 201
remand for a new trial. Our finding here becomes a final disposition of the case. The error, if any, of the trial court in overruling the motion to quash service of original notice, as made by special appearance, could be reviewed by us only under an assignment of error. To sustain the assignment would be to reverse an equity case on mere error, and to remand it for a new trial. We have, in a very few exceptional cases, remanded even an equity case to the lower court, with special directions. But such is not the rule. If we should reverse the case on such ground, and should remand the same to the district court, upon what form of procedendo should it be remanded? Should we direct the district court to quash the service of original notice and to defer trial until an effective service was had? Manifestly not. Could we properly reverse the case on this error, and dismiss the plaintiff's case in this court? Such an order would award to the defendant more than it was entitled to in the district court.
We do not overlook appellant's citation of Federal authority on the question under consideration. The contention of the appellant is sustained by practice in the Federal courts. This, however, can be no reason for the abrogation of the statute or for a change in our construction thereof. There is, too, a reason for the Federal practice, which is peculiar to, and consistent with, the nature of Federal jurisdiction. Federal power is a delegated one, and the jurisdiction of Federal courts is subject to the limitations of Federal power. Federal courts are not courts of general jurisdiction, as are the courts of record of the various states. Even a general appearance by a party-defendant in the Federal court does not necessarily confer jurisdiction over him. A Federal court on its own motion challenges its own jurisdiction at the threshold of every case, and the question of jurisdiction is not foreclosed pending the action. Manifestly, therefore, the reason which underlies the attitude of the Federal courts toward the question of jurisdiction is not existent in state courts of record.
Appellant cites for our consideration the case of Elvin v.Powell, 179 Iowa 899. The point is made that in that case we reviewed an order by the district court overruling a challenge to the jurisdiction, notwithstanding that the challenging parties had defended the main case upon its merits.
In that case, the appellants were minors, aged 12, 10, and 6, *Page 202
respectively, and residents of Montana. Personal service of notice had been made upon them in Montana, in accord with statutory method. Their attorney entered a special appearance for them, to challenge the jurisdiction of the court, on the ground that there was insufficient proof of the service of original notice upon them. Manifestly, without such service, the court would have no jurisdiction to appoint a guardian ad litem. The district court overruled the challenge, and appointed an attorney as guardian ad litem, who thereafter defended the case upon its merits. On appeal here, the attorneys for the appellants presented for our consideration the single question whether theproof of service of notice was a sufficient compliance with the law. We held that it was. The argument that such holding on our part carried an implication which sustains this appellant's position is not warranted. If the district court erred in holding the proof of service sufficient, then its jurisdiction failed intoto. Such minors could not cure the defect of jurisdiction by subsequent general appearance. That is to say, they could not enter a general appearance, nor could anyone enter a general appearance for them. Jurisdiction could not be acquired over them by a voluntary appearance on their part. It required a formal service of notice upon them, in order to give the district court the initial jurisdiction to appoint a guardian ad litem. If such court had jurisdiction to appoint the guardian ad litem, then it had jurisdiction to hear the case on its merits. If it had no jurisdiction to appoint the guardian ad litem, it had no jurisdiction to hear the case. In the case at bar, the defendant was not under disability to confer jurisdiction upon the court by general appearance.
III. Finally, we think it must be said that, upon this record, the ruling of the court below upon the motion to quash the service is not before us for review. The appeal in express terms purports to be from the decree. The ruling of 4. APPEAL AND the court on the motion to quash did not inhere ERROR: in the decree. The answer filed by the review: defendant made the issues upon which the case scope: was tried on its merits. Such answer contained ruling on no allusion to the motion to quash, nor to the special ruling of the court thereon. The ground of such appearance. motion to quash made under the special appearance was not included in the answer, as a plea in abatement or *Page 203
otherwise. The decree appealed from, therefore, involved nothing but a determination of the issues made by petition and answer.
We hold, therefore, that, upon pleading to the merits, the defendant entered a general appearance, and conferred full jurisdiction upon the court, and that, therefore, the question of effective service of the original notice became moot; that Section 11088 afforded no permission to the defendant to plead to the merits of the case and yet withhold itself from the jurisdiction of the court; that the answer of defendant under its general appearance did not plead want of jurisdiction by way of abatement; that the appeal was from the decree; that the ruling of the court on the motion to quash did not inhere in the decree; and that the case must be disposed of here de novo on the issues as made by petition and answer.
The decree below must, accordingly, be — Affirmed.
ALBERT, J., dissents from the second division, and otherwise concurs. All the other justices concur fully. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434495/ | There is evidence in the record on which the jury could base a finding that, sometime in June, 1928, the plaintiff-appellee and Albert Carzoli were prospecting for coal near Des Moines, and had an established business known as the Spalti Mining Company. About June 1st thereafter, the defendant-appellant and one Campbell, desiring an interest in the coal-mining business, commenced negotiations with appellee and Joe Carzoli to obtain the same. So, one evening prior to June 13th, appellee, appellant, and Campbell met at Carzoli's home, where the negotiations were continued. As a result of that conference, appellee and Carzoli sold Campbell a one-fifth interest and appellant a two-fifths interest in and to the foregoing business. Appellant retained one fifth himself, and gave the other fifth to his son. The net result of said transaction was that appellee, appellant, his son, Carzoli, and Campbell each held a one-fifth interest in the business.
In addition to the foregoing, the jury could well find, on the evidence, that Campbell agreed to pay appellee and Carzoli $200 for the one-fifth interest. Likewise, the fact-finding body could conclude, on the record presented, that appellant agreed to give appellee and Carzoli $400 for the two-fifths interest purchased by him. It is asserted by appellant that the evidence does not sustain the foregoing facts, but both appellee and Carzoli testified substantially as above set forth. Therefore, it will serve no good purpose to here make extensive quotations from their testimony. Before the suit was commenced, Carzoli assigned his interest in the claim against appellant to the appellee. Now, appellee in this proceeding seeks to recover against appellant the entire $400.
Appellee, in his petition, set forth the facts above related, *Page 244
and appellant, in his answer, made a general denial. A sharp controversy arose over the existence of the aforesaid agreement, but the jury found in appellee's favor; and, so far as the determination of the facts is concerned, we cannot interfere with the result. However, appellant asks for a new trial, because: First, the verdict is based upon perjured testimony; second, the trial court erred in submitting the issues to the jury; and third, certain exhibits were wrongfully excluded from the evidence.
I. At the trial in the case at bar, Carzoli testified that he had assigned his interest in the controverted claim to the appellee, under an agreement known in the record as Exhibit A. According to the written assignment, appellee was invested with all title to the funds, and authorized to collect and receipt for the same. Carzoli's evidence in reference to that assignment was corroborated and sustained by the testimony of appellee himself.
About a week after the trial in this case, an action was tried by the present appellee, as plaintiff, against the said Charles Campbell. On cross-examination in the Campbell case, Carzoli seems to have said that he did not sign Exhibit A aforesaid, but that he executed exhibits known as 1 and 2. Exhibit 1 indicates that Carzoli received $40, of which $25 was in cash, and the remaining $15 represented by a check, known as Exhibit 2. From the matters set forth in Exhibits 1 and 2, appellant concludes that, rather than assigning his interest in the $400 claim against Smith, Carzoli transferred to appellee certain "holdings, equipment, and material in the mining company." Because Carzoli, in the Campbell case, denied the execution of Exhibit A, appellant maintains that perjury was committed in the case at bar. Here, as before indicated, Carzoli testified that he did execute Exhibit A and transfer his interest in the $400 claim to appellee.
Upon many occasions, this court has said that, when a new trial 1. NEW TRIAL: is sought upon petition, false swearing, or grounds: perjury, will not be sufficient to obtain the perjury: relief. Holmes v. Holmes, 189 Iowa 256; Abell v.
justifiable Partello, 202 Iowa 1236; Sudbury v. Sudbury, 179 refusal of Iowa 1039; Croghan v. Umplebaugh, 179 Iowa 1187; new trial. Sullivan v. Herrick, 161 Iowa 148; Graves v.Graves, 132 Iowa 199. Notwithstanding the foregoing rule, it has been established *Page 245
that the district court, on a motion for a new trial, may, in its discretion, grant the relief where the party prevailing perjured himself, or knowingly used the perjured testimony of other witnesses. First Nat. Bank of Shenandoah v. Wabash, St. L. P.R.Co., 61 Iowa 700; Cleslie v. Frerichs, 95 Iowa 83; Guth v. Bell,153 Iowa 511; Moore v. Goldberg, 205 Iowa 346. Whether it would be within the discretion of the trial court to grant a new trial for perjured testimony not given by the party prevailing, or some other witness, with his knowledge or consent, we do not decide.
Under the record before us, however, there is no claim that the appellee himself gave perjured testimony, nor is it shown that he knew perjured evidence was given by the witness Carzoli. Within the purview of that record, we cannot say that the municipal court abused its discretion in refusing the new trial. Moreover, the trial court was justified in finding that perjury had not been proven. While from the brief excerpts in the record of the Campbell trial it appears that Carzoli denied executing Exhibit A, yet the remaining record in that case is not before us. If it were, the whole record might justify a different conclusion. Anyway, Carzoli may have erroneously testified in the Campbell case, and correctly stated the facts in the present controversy. In this suit, Carzoli was corroborated by appellee. Even without Carzoli's testimony, the jury could well find that the aforesaid interest in the contract with appellant was assigned to appellee. Manifestly, the preponderance of evidence is against the perjury and in favor of the proposition that the assignment was made, as claimed.
Clearly, then, under the foregoing facts and circumstances, the municipal court did not abuse its discretion in denying the new trial.
II. When submitting the issues to the jury, the municipal court 2. PLEADING: in effect told that body that it was necessary variance: for the appellee to establish an agreement, as pleading and alleged in his petition. Appellee proof as to declared in said petition the following: entering into "That, on or about the 1st day of June, 1928, contract. plaintiff [appellee] entered into a verbal agreement with the defendant [appellant] *Page 246
whereby the plaintiff [appellee] and one Albert Carzoli (above named) sold, and the defendant [appellant] bought, a two-fifths interest in the business known as the Spalti Mining Company, for the sum of four hundred ($400.00) dollars; that the said sum was payable on demand."
Following that allegation, the petition recited the assignment from Carzoli to appellee. Complaint is made by appellant because there is no evidence to sustain the allegation in the petition and the requirements of the court's instruction that appellee entered into a contract with the appellant.
Enough has already been said in the preliminary statement in this opinion to indicate that such an agreement was consummated between appellee and Carzoli, on the one hand, and appellant, on the other. All interests held in that contract by Carzoli were assigned by him to appellee. Consequently, the contract belonged to appellee, for the practical purposes of the suit. For it cannot be said that Carzoli, rather than appellee, made the contract. They, in co-operation with each other, made it, and Carzoli's interests, as before related, were, at the time of the trial, held by appellee.
Necessarily, then, there was no substantial variance between the pleadings and the proof, or between the court's instruction, on the one hand, and the pleadings and proof, on the other. This alleged grievance is not sufficient to warrant the court in granting a new trial.
III. Furthermore, it is urged that there should be a new trial because the municipal court in its instruction did not require the jury to find that Carzoli's interest in the contract had been assigned to appellee. Only portions of the 3. TRIAL: court's instructions are set forth. That part instruc- concerning the burden of proof is omitted, but tions: indication is made that it is a stock failure to instruction. However, the omission leaves us submit without any indication concerning the burden of uncontested proof required of the appellee by the trial question. court. A stock instruction may mean one thing to the appellant and another to someone else. Anyhow, there was no dispute in the record that the assignment was made from Carzoli to appellee. Plain, direct, emphatic, and uncontradicted evidence was introduced to show the assignment, and, under the circumstances, the municipal court properly could consider that *Page 247
appellee was the real party in interest, because of the assignment. No abuse of discretion appears because the municipal court did not allow a new trial upon the foregoing complaint.
IV. Objection is next made because the trial court refused to 4. TRIAL: admit Exhibits 1 and 2 into the record. It will reception of be recalled that these exhibits related to a evidence: receipt or agreement concerning "holdings, immaterial equipment, and material in the mining company" and sold by Carzoli to appellee, and the check given irrelevant in partial payment therefor. Such transaction matters was neither directly nor indirectly involved in properly the case at bar. These exhibits, therefore, were excluded. both immaterial and irrelevant.
Appellant claims that the exhibits should have been admitted to test the issue whether Carzoli's interest in the claim sued upon had been assigned under Exhibit A. Plainly, the announced purpose was irrelevant and immaterial, for there was no serious dispute concerning the assignment's existence in this case. After having discovered that Carzoli denied signing Exhibit A in the Campbell case, before mentioned, appellant conjectures that, if confronted with the same instrument in the retrial of this cause, he would also disclaim the execution thereof. We have difficulty in understanding why Carzoli needed Exhibits 1 and 2 in evidence to cause him to deny the execution of Exhibit A. They have no relation to, or association with, each other. If Carzoli did not sign Exhibit A, he could and should have denied it, regardless of whether Exhibits 1 and 2 were in the record.
No such proposition as now assigned for the admission of Exhibits 1 and 2 was before the municipal court when it ruled, nor can we assume that the introduction of these exhibits on retrial would cause Carzoli to deny executing Exhibit A; for, in view of the record now before us, the undisputed evidence is that he did execute the exhibit.
Under all the circumstances, then, appellant has no just cause for complaint because the exhibits were not admitted.
Wherefore, the judgment of the municipal court should be, and hereby is, affirmed. — Affirmed.
MORLING, C.J., and EVANS, FAVILLE, and GRIMM, JJ., concur. *Page 248 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434497/ | This is the second appearance of this case on appeal in this court. For the former decision, see 207 Iowa 162. It appears from the record, or the concessions of counsel, that, in 1926, appellee cultivated, under an oral lease, a farm 1. INJUNCTION: owned by appellant. The rent for that year, upon preliminary final compromise of the parties fixed at $780, and has not been paid. Claiming to have an oral interlo- lease for the same premises for the succeeding cutory year, appellee attempted to go upon the premises injunctions: for the purpose of cultivation. To prevent her automatic from doing so, this action for an injunction was dissolution: commenced, and a temporary writ procured. In due unnecessary time, appellee moved for the vacation and order of dissolution of the temporary writ. The motion dissolution. was supported by affidavits. A hearing was had on the motion to vacate and dissolve the temporary writ, and, upon April 28, 1927, an order conditionally dissolving the writ was allowed by the court. The court in its order found that appellant had agreed orally to lease the premises to appellee for the year 1927, and "ordered and decreed that, if the defendant Mary McCarthy shall, by the 3rd day of May, 1927, pay said plaintiff bank the said $780, being the rent for 1926, *Page 954
and also pay the costs of certain action now pending in this court, being Case No. 4842, for collection of said 1926 rental, that said motion for vacation of temporary injunction be and the same is sustained, and defendant entitled to possession of premises, and that writ of possession issue, to put defendant in possession."
Appellee, within the time designated, paid the required costs, and tendered appellant the full amount of the agreed rental for the preceding year. Appellant, however, declined to accept the offered payment, and appealed from the order and decree of the court, and, upon application to one of the judges of this court, a stay, preserving the status quo, pending appeal, was granted. The argument for appellant on that appeal dealt almost exclusively with questions in no shape or form raised or considered upon the hearing to dissolve the temporary writ. This court so stated in the opinion filed.
After the decision of this court was announced, affirming the order and decree of the district court, appellee filed an additional motion in that cause, praying the final vacation and dissolution of the temporary writ. A hearing was had upon such motion, in which it was the contention of appellant that no final order vacating and dissolving the temporary writ should be granted, for the reason that appellee had wholly failed to keep good her tender of the rent due for 1926.
It is conceded that appellee did nothing to keep the alleged tender good, and that appellant did not subsequently notify her that the offer of payment would be accepted. Apparently, counsel for appellant have overlooked in their argument 2. INJUNCTION: the further order of the court on the motion preliminary asking the final vacation and dissolution of the and writ dismissing the action. Necessarily, the interlo- dismissal of the action would carry with it the cutory final dissolution of the temporary writ. The injunction: omission is sought to be covered in a reply dissolution argument. In view of the nature of the issues by dismissal joined, and the sole question presented in the of action. court below and in this court by appellant for decision, we shall, for the purpose of this appeal, treat the order of dismissal as before us for review. The obvious purpose of the filing of the motion praying the final vacation and dissolution of the order granting the temporary writ was to make *Page 955
a record showing full and complete compliance by appellee with the conditional order of dissolution, dated April 28th. The order conditionally dissolving the writ became effective for that purpose immediately upon full compliance by appellee with the conditions contained therein. The effect of the stay order granted on appeal was to maintain the status quo until final decision of the appeal. The affirmance by this court of the order and decree appealed from operated as a final and complete dissolution of the temporary writ. The statement in the opinion on the first appeal that the order of dissolution amply protected the appellant was a mere observation of the court as to the terms and conditions thereof. Nothing said in the opinion was intended to carry an implication inconsistent with the conclusion reached. The present appeal, except as the same may be construed as a challenge of the order of the court dismissing the case, in reality is technically without merit. The theory of appellant that the so-called final order dissolving the temporary writ was improper for the reason that appellee had not kept good her offer, complying with the order of the court, to pay the rent for 1926, is without merit, both upon the record and on the equities of the case. The court, by requiring appellee to pay the rent agreed upon for 1926, together with the costs incurred in the district court in the action to recover the same, did not assume to act in the capacity of a collection agency. The evidence taken on the hearing clearly showed that appellant had agreed to lease the premises to appellee upon condition that the rent for the preceding year was paid. The order of the court was designed to compel appellee to comply with this agreement on her part as a condition precedent to the relief asked, and also to fully protect appellant on its part, under the terms of the oral agreement. The option accorded to appellee required full compliance on her part with the conditional order of dissolution. To avoid the effect of such order, it was necessary that appellant accept the offer of payment made by appellee. In other words, the dissolution of the temporary writ was made conditional upon the consummation of the oral agreement between the parties, so far as any obligation was imposed thereby upon appellee.
Furthermore, time was an element to be considered in the transaction. The oral agreement entered into by the parties was for the rental of the premises for the year 1927. The final *Page 956
3. DISMISSAL order of dissolution was entered in 1929, AND NONSUIT: approximately two years after the term involuntary: contemplated by the oral agreement had expired. dismissal It was then impossible for appellee to perform because of its part of the agreement. lack of subject- matter.
The order dismissing the case by the court, we think, should be sustained. There could be nothing, under the issues tendered, upon which a final trial could be had. The dissolution of the temporary writ on April 28, 1927, supplemented by the order and decree from which this appeal is taken, together with the lapse of lime, left nothing for trial. Appellant does not contend otherwise, but bases its whole argument upon the alleged error of the court in its order and decree finally dissolving the temporary writ without requiring, as a condition precedent thereto, the payment by appellee, of the $780 for rent. No question as to the status of the claim for the $780 rent is before us, and nothing said herein shall be interpreted as affecting the original rights of the parties relative thereto.
We think, clearly, the order and decree complained of was right, and the only one that, on the issues and the record, could have been entered. — Affirmed.
MORLING, C.J., and FAVILLE, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434778/ | Pocahontas and Humboldt Counties of this *Page 17
state are both within the fourteenth judicial district, and the Honorable D.F. Coyle is one of the judges of that district. On the 14th day of February, 1925, there was 1. INDICTMENT presented to said judge, sitting in chambers at AND Humboldt, a county attorney's information, INFORMATION: charging the appellant with violation of the sufficiency: intoxicating liquor laws in Pocahontas County. waiver. It is so entitled, and is signed by W.W. Harris, county attorney of Pocahontas County. The appellant was present before said judge, and thereupon the judge indorsed his approval of said county attorney's information. The appellant entered the following plea:
"Comes now Carl Voss, the defendant named in the within information, and waives arraignment, and says he is prosecuted in his right name, and enters a plea of guilty of the crime of nuisance, as charged in the within information."
Whereupon said judge sentenced the appellant to pay a fine of $500 and costs, together with $50 attorney's fee, and in default of payment he was ordered committed to the county jail in Pocahontas County for 165 days, and his bond fixed at $1,000. On the same day, a judgment entry was made and entered of record, in accordance with the above sentence.
Section 13646, Code of 1924, requires that:
"Such information shall be indorsed `a true information,' which indorsement shall be signed by the county attorney."
This was not done in this case.
Section 13647 requires that the names of the witnesses whose evidence is to be used, are to be indorsed on said information, together with a minute of the evidence of said witnesses relating to the guilt of the accused. Neither of these things was done in the instant case, nor were such minutes of the evidence filed with the information.
Section 13650 provides that, before the filing of such information, a district judge shall indorse his approval thereon. The record in the case shows that the above proceeding took place in Humboldt County on the 14th day of February, 1925, but the county attorney's information was filed in Pocahontas County on the 16th day of February, 1925. The appellant assigns each and all of these matters as error.
Section 13659 of the Code of 1924 provides: *Page 18
"A motion to set aside the information may be made on one or more of the following grounds:
"1. When it is not indorsed `a true information,' and the indorsement signed by the county attorney.
"2. When the minutes of evidence have not been filed with the information.
"3. When the names of the witnesses named in such minutes of evidence are not indorsed on the information.
"4. When the information has not been verified or filed in the manner herein required.
"5. When the information has not been approved as required."
Section 13660 provides:
"Such motion must be made before a plea is entered by the accused. If not so made, the objection shall be deemed waived. If an objection is shown to be true, the court shall sustain said motion, unless the defects are corrected within such time as the court may order."
It is apparent, under these two sections of the Code, that the matters about which complaint is made, are deemed to be waived.
It is further complained that the judge sitting in chambers in Humboldt County had no authority to pronounce this sentence, because of the entire lack of jurisdiction.
2. INDICTMENT Section 13666 provides for arraignment, as AND follows: INFORMATION: County "An accused prosecuted on information may, in Attorney vacation, be arraigned by any judge of the Information district court, and, in vacation, be required to Act: plead to the information before any such judge." jurisdiction during vacation.
Section 13667 provides the place of arraignment, as follows:
"Arraignments can be made and pleas required, in vacation, only before such judge sitting in chambers at the usual place of holding court in the county in which the information was filed, or in any other county of the judicial district, or in any county to which the cause may be sent on change of venue."
Section 13669 provides for judgment on written pleas of guilty. *Page 19
Section 13670 reads:
"Said written plea of guilt, together with the judge's entry of judgment in reference thereto, shall be forthwith filed with the clerk of the court of the county wherein the information was filed and entered at length in the records of said court, and, after such entry, be executed as in case of judgments on indictment."
It is quite apparent, under the above quoted sections, that Judge Coyle was empowered, in chambers in Humboldt County, to arraign the appellant and take his plea, and, in event that he filed a written plea of guilty, the judge had a right to pronounce sentence thereon.
Section 13672 provides that the record of such proceedings and judgment be returned to the office of the clerk of the district court of Pocahontas County, and therein filed and entered of record, with the same force and effect as if made and entered by the court in Pocahontas County. The judgment in the instant case was not entered without jurisdiction. As bearing on these questions, see State v. Fortunski, 200 Iowa 406.
The appellant further insists that the information is void because duplicitous, in that it charged more than one offense. To this complaint we have to say that a careful 3. INDICTMENT reading of the information shows that the intent AND of the county attorney in preparing the same was INFORMATION: to charge appellant with the crime of duplicity: maintaining a nuisance; and to such charge he waiver. pleaded guilty. Section 13655, Code of 1924, provides:
"The information shall be drawn and construed, in matter of substance, as indictments are required to be drawn and construed. All provisions of law applying to prosecutions on indictments * * * arraignments, pleadings, * * * and all other proceedings in cases of indictments, * * * shall in the same manner and to the same extent, as nearly as may be, apply to information and all prosecutions and proceedings thereon."
The claim of duplicity in an indictment cannot be raised for the first time on appeal. Further than this, the appellant *Page 20
has his remedy against duplicity by a motion to quash or to elect. State v. Von Kutzleben, 136 Iowa 89.
We find no error in the record. — Affirmed.
EVANS, STEVENS, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434541/ | The note in suit is for $5,000, bearing date September 10, 1920, signed by W.T. Dow, and indorsed by J.H. McCarty and Ed. Keller. The specifications of error by the appellant are directed to the admission of certain evidence and to certain instructions given by the court. In order to appreciate the pertinency of the rulings complained of and of the objections thereto, a general statement of the principal facts involved is desirable.
The four persons who figure in the evidence are Dow, McCarty, Keller, and Mott. Dow was the purported maker of the note; McCarty was a purported indorser; Mott was the cashier of the plaintiff bank; Keller is the defendant. McCarty was president and general manager of the Stockport Savings Bank. This bank and the plaintiff bank were located in the same county, six miles apart, and more or less business was transacted between them and between their managing officers. Keller was a farmer, who had bought a farm from Dow, and who made settlement therefor on March 1, 1920, at the Stockport Savings Bank. He appears to have prepared himself with cash resources sufficient to pay the purchase price, including a $10,000 mortgage on the farm. The mortgage was not due by its terms until March 15, 1920, and Keller was advised that he could not pay it before that date. Dow and McCarty proposed to him that they would borrow the money in his hands ($10,000) for 15 days. They tendered him a joint note accordingly, which he accepted. Upon the maturity of the note, the makers failed to pay the same. Some months later, it was agreed between the makers and Keller that they should make a payment of $5,000 upon the note, and that the remainder thereof should be extended to March 1, 1921. Shortly thereafter, while Keller was in the plaintiff bank, he was advised by Mott that he had arranged with Dow and McCarty to loan them $5,000 for the purpose of payment upon Keller's note, and for that purpose Mott had prepared a purported note for $5,000, drawn to Keller, as payee, and signed by Dow. This was presented by Mott to Keller for his indorsement, which indorsement Keller then and there made. The same note was later indorsed by McCarty. Thereupon Keller received credit upon his account at the plaintiff bank for the sum of $5,000. A credit of $5,000 also was indorsed as a payment on the $10,000 note held by Keller against Dow and McCarty. This *Page 274
action is brought upon Keller's indorsement of the $5,000 note herein described. This note fell due on March 10, 1921. Shortly prior to such date, Keller, in a conversation with Mott at the bank, expressed his insistence that the $5,000 note signed by Dow should be paid promptly when due. Mott promised that he would insist upon prompt payment. Shortly after the due date of the note, Keller returned to the bank, and asked Mott whether the note had been paid, and was assured by Mott that it had been paid. He thereupon, as he claims, dismissed the subject from further attention, fully believing that the indebtedness had been collected. The note had not in fact been collected, but this fact was never disclosed to Keller until November, 1922, though he was frequently at the bank in the transaction of other business, he being a regular customer of the plaintiff bank.
It appears also that, at Mott's suggestion, and on March 14, 1921, Keller drew a sight draft upon Dow for the full amount of the balance due him on the $10,000 note. He received credit at the bank on the same date for the amount of the sight draft, which was honored in due course. It is the contention of Keller that this method of collecting that note was pursuant to some arrangements between Mott and McCarty and Dow, or between Mott and one of them. The testimony of Keller as to representations made by Mott was not denied by Mott, but was avoided by an explanation. This explanation was that his statement had reference to the payment of the sight draft above referred to, and not to the $5,000 note.
Prior to November, 1922, when Keller discovered that the $5,000 note had not been paid, as was claimed by plaintiff, both Dow and McCarty had become insolvent. The foregoing is a sufficient statement to indicate the nature of the estoppel pleaded, and to enable a consideration of the alleged errors discussed by the appellant.
The foregoing is Keller's version of the facts. His evidence tended to support it.
I. The first complaint of appellant is directed to the admission of certain evidence by the witness Dow and certain other evidence by the witness Mrs. Dow. Both Dow and McCarty were made parties defendant. McCarty defaulted, and judgment was entered against him. Dow interposed defense, *Page 275
and the cause is still pending as to Dow. The trial had, however, was upon the issue with defendant Keller alone.
Keller testified, as heretofore indicated, that he had a conversation with Mott, shortly prior to the maturity of the note in suit, wherein Mott assured him that he would press the note to prompt payment upon its maturity; that he had a further conversation shortly after the note had matured, wherein he asked Mott whether the note had been paid; and that he was then and there assured by Mott that it had been paid. This evidence, it will be noted, tended to sustain both the plea of estoppel and the plea of payment. Mott testified that he understood the conversation to refer to the balance of the $10,000 note, which had been collected through sight draft. Mott did not in terms deny the conversations. Dow testified to a conversation with Mott in the early part of the year 1922, wherein Mott said that an arrangement had been made with McCarty to take care of the note. Dow was claiming that the debt was McCarty's, and should be paid by him. Mrs. Dow testified to a conversation had with Mott, subsequent to that had with her husband, wherein Mott told her, in substance, that McCarty had paid the note.
The complaint directed against this evidence by appellant is that Keller had no knowledge of these conversations, and was not influenced by them, and that, therefore, the evidence would not tend to sustain his plea of estoppel, which was the only defense submitted to the jury.
When this evidence was received, the defense of payment was in the case. The evidence did tend to support that plea. It was properly received for that purpose, if for no other.
When the court later withdrew this defense, the plaintiff moved to withdraw all such evidence from the consideration of the jury, on the ground that it did not tend to sustain 1. PLEADING: the plea of estoppel, in that the issues: representations then made were remote in time, withdrawal: and were not known to Keller. The court effect on overruled this motion. Some of the plaintiff's testimony exceptions are predicated on such ruling. The introduced. argument in support of the motion is renewed here. However, the ground of the motion overlooks one feature of the record which, in our judgment, rendered the testimony objected to admissible. Keller had testified that, sometime *Page 276
after the note was due (March 10, 1921), he had been assured by Mott that the note had been paid. Without denying the conversation testified to by Keller, Mott met it with an avoidance, to the effect that his assurance referred to the $5,000 sight draft which had been previously collected. If this testimony of Mott's were accepted by the jury as true, the evidence of Keller would thereby become wholly nugatory. It was permissible, therefore, for Keller to sustain his testimony, if he could, by the subsequent conduct of Mott with reference to the same transaction. One such circumstance was that Mott never again mentioned the note to Keller, though the note was past due, and though Mott continued as cashier until November, 1922, when he was succeeded by another cashier. Keller's first information of the nonpayment of the note came from the new cashier in November, 1922. During all such intervening time, Keller had continued as a customer of the bank, and was frequently therein, transacting business with Mott, and was known by Mott as a prompt payer, according to his own testimony. We think, therefore, that the conduct of Mott in the intervening time, including his statements to Mr. and Mrs. Dow in February, 1922, had a proper bearing on the conflict of evidence between him and Keller, and that they did tend to support Keller in his version of the conversation which he had with Mott following the due date of the note. It is true that these statements did not, of themselves, operate as an estoppel, but they did tend to strengthen the previous testimony of Keller, upon which he relied in support of his plea. In the conflict of testimony between Keller and Mott, this evidence bore upon the respective weight and credibility of each. This being so, the ruling of the court was not erroneous, even though it were predicated upon untenable ground.
II. The appellant complains of Instruction No. 6, given to the jury. This instruction is an abstract statement of the law as to the legal recourse of one who is secondarily 2. TRIAL: liable upon an instrument. This instruction did instruc- not deal with any fighting issue involved in the tions: case, and might well have been omitted. But we abstract see no reason for saying that it contained statements anything prejudicial. The same is to be said of law. concerning Instruction No. 7.
III. The more serious objection is made to the method *Page 277
adopted by the court in its instructions in submitting to the jury the plea of estoppel.
The facts pleaded by defendant were, in substance, that, prior to the maturity of the note, Mott had promised to collect it promptly; and that, after said time of maturity, he stated that he had collected the same. So far as the 3. TRIAL: estoppel was concerned, the preceding promise instruc- and the subsequent statement of facts were parts tions: erro- of the same thing. The preceding promise was not neous but enforcible as such, nor was the defendant non- seeking to enforce the same. The promise was not reversible binding, as such. Section 9583, Code of 1924. It error. could have been corrected or withdrawn at any time. But in so far as it operated in connection with the subsequent statements of fact to mislead the defendant and to lull him into security, it was properly pleadable, as a part of the estopping facts. There was but one plea of estoppel. The court in its instructions, however, set forth the preceding promise in one instruction and the subsequent statements of fact in another instruction. This method gave an appearance of setting forth two separate and independent pleas of estoppel. The preceding promise was set forth in Instructions 11 and 12. The specific exception to these instructions is that the court permitted the jury to find that the defendant had relied upon them, notwithstanding the undisputed testimony that he afterwards inquired about the note and relied only upon the alleged statement of Mott that it had been paid. The point is not without its force. If the change in the financial condition of Dow and McCarty had occurred in the intervening time between the preceding promise and the subsequent statements of fact, we should deem the instruction prejudicial in its method of submitting the issue. But the record discloses no change in the financial condition of Dow and McCarty in the intervening time. The evidence is that they were solvent, and that the note was collectible from them at the time that the subsequent statements of fact upon which Keller relied, were made. This being so, we think that the error complained of should not work a reversal.
IV. After verdict, the plaintiff filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Some days thereafter, it filed an amendment to its motion for *Page 278
4. PLEADING: judgment notwithstanding the verdict, setting issues: forth the additional ground therefor that litigation defendant's answer contained no allegation that of issue the defendant had relied upon the statements of without Mott. This point was thus raised for the first plea: time. Evidence of such reliance was introduced effect. at the trial without objection, and the issue thus tendered was submitted to the jury in the instructions, without objection. The issue was, therefore, voluntarily litigated, and we think it was too late to attack the pleading at this time. Under Section 11557, Code of 1924, the court could have required an amendment to cure the defect, if it had deemed it necessary. In view of the evidence and the instructions on the subject, an amendment to the pleading would have been a mere formality, at best. It would, perhaps, have been the more appropriate way for the court to have required an amendment. On the other hand, we have frequently held that parties will be held to the result of the litigation where they have voluntarily litigated issues not in the pleadings. The evidence of Keller that he did so rely has very substantial corroboration in the circumstances. He was a regular customer of the bank's and a frequent borrower. Mott testified that he was always a prompt payer, and that he never allowed his obligations to become overdue. The evidence is without dispute that, after the conversation relied on by him, neither he nor Mott ever reverted to the subject in their conversation. The note called for semiannual interest. No interest was paid or demanded, though four semiannual dates were passed within the overdue period, before demand was finally made upon the defendant, in November, 1922. This demand was made by a new cashier, who succeeded Mott. The general attitude or conduct, therefore, of both Mott and Keller was clearly consistent with the claims of Keller in this regard. We think, therefore, that the issue of reliance should be deemed to have been voluntarily litigated, and that the defect in the pleading will not avail the appellant as reversible error.
Other points argued need not be considered in further detail. They are substantially met by what we have already said. The case is essentially a fact case, and presents no especially debatable *Page 279
questions of law. We discover in the record no proper ground for our interference with the verdict.
The judgment below is, accordingly, affirmed. — Affirmed.
De GRAFF, ALBERT, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434544/ | I. Appellant contends that the corpus delicti was not proven. It is unnecessary that we set out the evidence of the State. It was sufficient, however, to establish the fact that the chickens in question were stolen from the premises of the witness Haulsworth at the time and place charged in the indictment, and therefore the corpus delicti was established.
II. One Brant was jointly indicted with the appellant. The appellant had a separate trial, and Brant was a witness *Page 1318
for the appellant. On cross-examination by the county attorney, the following took place:
"Q. You sold a lot of chickens during the spring, didn't you, Lawrence? (Mr. Yeaman: That is objected to as not cross-examination. It has got nothing to do with this case at bar, — not cross-examination. The Court: He may answer that. To which ruling defendant duly excepts.) A. Yes, I sold some. Q. You sold chickens at least fourteen times in the town of Anthon, didn't you, last spring? (Mr. Yeaman: Objected to as not cross-examination. The Court: He may answer that. To which ruling the defendant duly excepts. A. I don't know just how many times. Q. Is that about correct? A. No, I don't think that many. Q. You sold chickens at Correctionville several times, didn't you? (Mr. Yeaman: Objected to as not cross-examination, having nothing to do with this case. The Court: He may answer. To which ruling defendant duly excepts.) A. No, I never sold any in Correctionville. Q. Were you ever with the defendant, Julius Huss, when he sold chickens at Correctionville? A. No, sir. (Mr. Yeaman: Objected to as not cross-examination. The Court: He may answer. To which ruling defendant duly excepts.) Q. Then, if he so stated to the sheriff, you would think he was mistaken, would you? (Mr. Yeaman: Objected to as not cross-examination. The Court: It will be sustained. To which ruling the State duly excepts.) Q. You sold chickens at Oto, also, didn't you, in the spring? (Mr. Yeaman: Objected to as not cross-examination. The Court: He may answer. To which ruling the defendant duly excepts.) A. Yes, sir. Q. How many times did you sell them there, Lawrence? A. I believe twice. Q. How many times did you sell chickens in Sioux City? (Mr. Yeaman: Objected to as incompetent, irrelevant, and immaterial, not cross-examination, and assuming something not in the record. The Court: He may answer. To which ruling defendant duly excepts.) A. I don't know. Q. You don't know how many times? So many times you wouldn't remember, — isn't that a fact? A. No. Q. Did you ever sell any at Lawton? A. No. Q. You tried to sell them there, didn't you? A. Yes. Q. Where did you get all these chickens? A. From my mother. Q. How many did she have? A. I don't know. Q. She held them all over during the winter, — *Page 1319
didn't sell any for fries the year previous? A. No. Q. Saved them all the winter and spring of 1929? (Mr. Yeaman: Objected to as not cross-examination. The Court: I think you have gone into that far enough.)"
The objection to this line of testimony that it was not proper cross-examination should have been sustained. There was nothing in the direct examination of the witness that rendered such cross-examination proper. The State does not attempt to sustain the rulings of the trial court in this matter except on the theory that a wide discretion is allowed in the cross-examination of a witness, and that, if error was committed, it was without prejudice.
The State relies upon State v. Graham, 203 Iowa 532. Said case discloses an entirely different situation. In the case at bar, it is to be remembered that Brant was a co-indictee with the appellant. The contention of the State was that the appellant and the witness Brant stole the chickens in question together and disposed of them together; in other words, that the entire transaction was a joint enterprise engaged in by Brant and the appellant. The cross-examination of the witness Brant was for the obvious purpose of attempting to discredit him in the eyes of the jury as a witness, and to carry the insinuation and suggestion that he was engaged in the business of stealing chickens and selling them at various points. This also reflected on the appellant, who was indicted with him. Such cross-examination could have had no other purpose. It cannot be said that it was without prejudice to the appellant. The matter of the latitude of cross-examination is largely within the discretion of the trial court; but, in view of all of the circumstances surrounding this case, the character of the charge, and the relationship of the witness to the appellant, we think that the prosecutor exceeded the bounds of a fair and legitimate cross-examination, and that the result was necessarily prejudicial to the appellant.
Other errors are argued upon appeal. It is quite likely that they will not occur upon a retrial of the case, and in respect to them we make no pronouncement. *Page 1320
For the reason pointed out, the case must be, and it is —Reversed.
MORLING, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434567/ | At about 9 a.m., or shortly thereafter, on September 7, 1934, the Cumberland Savings Bank of Cumberland was held up and robbed of about $1,000 by four men. Two of the men remained on the outside of the building, and two entered the bank. The cashier, assistant cashier, and a customer were in the bank when they entered. One of the two holdup men had a gun in each hand and held up the occupants of the bank. One of the men took the money while the man with the two guns held up the occupants, and while so doing fired one shot at one of the officers of the bank. After securing the money, the holdup men took the two bank officials out of the bank, placed them on their get-away car, and took them out into the country where they were released.
In December thereafter, the defendant, William Papst, was arrested in Chicago, brought back to Iowa, and was identified as one of the holdup men who held up the officials at the point of two guns and fired a shot from one of the guns.
On January 23, 1935, the grand jury of Cass county returned an indictment against the defendant, accusing him of the crime of entering the Cumberland Savings Bank at Cumberland, Cass County, Iowa, on September 7, 1934, with intent to *Page 772
rob. On his arraignment, January 23, 1935, he had no counsel, and John R. De Witt, an attorney, was appointed to defend him. On January 23, 1935, he entered a plea of not guilty and the case was assigned for trial for January 26, 1935. On January 25, 1935, defendant filed a motion for a continuance until the next term of court. This motion was based upon the alleged fact that one Francis Harper, who was then in custody of the Federal officers at Lexington, Kentucky, would testify, if present, that he was the party who held up the bank officers with two guns and fired one shot, and that the defendant was not present at that time. The court refused a continuance of the case until the next term of court, but postponed the trial until February 7, 1935.
The motion for a continuance also showed that the prospective witness would not be returned to within 100 miles of Atlantic until some time after the first of February, and that if a continuance was granted until the next term of court, defendant would be able to secure his deposition. Shortly thereafter, it appeared that said Harper had been returned to Lincoln, Nebraska, and was there in custody of the Federal officers.
On the 5th day of February, it was stipulated by agreement of both parties that "the deposition of the said Francis Harper may be taken orally at Lincoln, Nebraska, on the 5th day of February, 1935." Pursuant to that stipulation, the deposition of said Francis Harper was taken at Lincoln, Nebraska, on February 5, 1935, and was presented and read in court subject to objections.
The evidence on the part of the State consisted of the two bank officials and a customer who were held up in the bank at the time of the robbery. These three witnesses positively identified the defendant as being the man who carried the two guns and fired the shot referred to.
The defendant denied this testimony and said that he was not in the town of Cumberland at the time of the robbery, that he knew nothing of it until later, and didn't even know of the existence of the town of Cumberland at the time of the robbery. He also offered the evidence of his mother, of Council Bluffs, his sister, of Omaha, and his wife, tending to establish an alibi. He and his wife and mother all testified that they were at his mother's home in Council Bluffs on the night of September 6, 1934, remained there all night, had breakfast there on the *Page 773
morning of September 7, 1934, and left there about 9 o'clock a.m. on that date. He and his wife testified they went from there to Omaha to visit his sister in Omaha, and that they arrived there between 11:30 and 12 o'clock a.m. on September 7, 1934.
The record also shows that the defendant had previously been convicted and served time for the commission of two or three different felonies.
The purpose of securing the deposition of the witness Harper was to show that Harper was the man who held the two guns and fired the shot during the holdup in the bank. The witness Harper failed to give this testimony, but on the contrary he, in substance, refused to so testify on the ground of incriminating himself.
The case being submitted to the jury on the evidence offered, a verdict was returned finding the defendant guilty, and he was sentenced to life imprisonment. Hence the appeal.
I. One of the errors alleged for a reversal was the refusal of the lower court to sustain the motion for a continuance to the following term of court. The reason given for a continuance was to secure the deposition of a witness named Francis Harper, who at that time was outside of the state of Iowa and in custody of Federal officers for the commission of a public offense.
The court refused to grant a continuance to the next term of court, but granted a postponement for ten days to enable defendant to get the deposition of the witness Harper, who was in Lincoln, Nebraska. On February 5, 1935, the deposition of said Francis Harper was taken at Lincoln, Nebraska, on an agreed stipulation signed by both parties. This deposition was on file in the lower court before the trial was reached, and was used at the trial. The reason for a continuance to the following term of court no longer existed when the case was reached for trial.
[1] The granting or refusing a continuance in a criminal case is generally within the discretion of the trial court. State v. Walker, 192 Iowa 823, 185 N.W. 619; State v. Candler, 204 Iowa 1355,217 N.W. 233; State v. Griffin, 218 Iowa 1301,254 N.W. 841.
It is not necessary, however, in this action to determine whether or not the refusal of the court to grant a continuance to the next term was an abuse of its discretion, because the reasons for the continuance no longer existed after the deposition of the witness Harper was taken. It necessarily follows that no *Page 774
prejudice resulted from the court's ruling on the motion, and we find no error therein.
[2] II. Defendant also contends that the court erred in refusing to permit the jury to view the premises. Section 13856 of the Code of 1931 provides that:
"When the court is of the opinion that it is proper the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted * * * to the place * * *."
There was no question about the fact of the commission of the holdup and robbery. The chief question in the case related to the identity of the defendant as being one of the participants therein. Three of the State's witnesses positively identified the defendant as being one of the holdup men. Defendant offered to prove an alibi by the testimony of three witnesses tending to show that at the time the offense was committed, he was either at Council Bluffs or Omaha. This raised a pure question of fact as to identity, and the lower court held that a view of the premises was not necessary for that purpose.
The exercise of the authority of the lower court to allow the jury to view the premises under the statute referred to rests in the discretion of the trial court. King v. Iowa Midland R. Co.,34 Iowa 458; Clayton v. Chicago, etc., Ry. Co., 67 Iowa 238,25 N.W. 150; State v. Carr, 200 Iowa 306, 204 N.W. 218.
We have carefully considered the evidence and fail to find that there was any abuse of the court's discretion in not allowing the jury to be taken from Atlantic to Cumberland to view the premises. The court held that a view of the premises would not materially aid the jury in determining the identity of the defendant. It necessarily follows that no prejudicial error resulted.
[3] III. Defendant testified that he was first told of the robbery of the bank by his nephew, Francis Harper, at Chicago, some time in October. The defendant was then asked the following question: "Q. And what did he tell you about the robbery of the Cumberland Savings Bank?" This was objected to as immaterial and hearsay, and the objection was sustained.
Defendant contends that the court's ruling in sustaining the objection was erroneous. No reason is alleged in the error why the ruling of the lower court was not correct. The question *Page 775
clearly called for immaterial and hearsay testimony, and we find no error in the court's ruling thereon.
[4] IV. Other errors alleged relate to the action of the court in not permitting the defendant, and also the witness Harper to answer certain questions. The witness Harper testified in substance that he would not say that he was the person who participated in the bank robbery, or that he was the man who held the two guns and fired the shot in the bank at the time of the holdup. The evidence of Harper did not tend to establish that he was guilty of the crime charged against the defendant. On the contrary, he refused to so testify. Under such circumstances, the evidence was not admissible. State v. Brooks, 192 Iowa 1107, loc. cit. 1115, 186 N.W. 46; State v. Banoch, 193 Iowa 851, loc. cit. 855, 186 N.W. 436.
In State v. Banoch, 193 Iowa 851, loc. cit. 855, 186 N.W. 436,437, this court said:
"It is further claimed that the court deprived the defendant of his right to prove that the crime charged was in fact committed by another person. A sufficient answer to this contention is that the evidence introduced and offered does not even tend to establish that another person committed the crime."
No reasons are given as grounds for the alleged errors. However, we have examined the errors so alleged carefully, and find no merit therein.
[5] V. The defendant also contends that the court erred in refusing to permit the introduction of a certain photograph of Francis Harper in evidence, as part of its rebuttal evidence. The State objected to the offer of Harper's picture on the ground that it was immaterial, irrelevant under any issue in the case, and did not tend to prove or disprove the guilt or innocence of the defendant. This objection was sustained.
The defendant, in assigning this action of the court as error, simply states: "Error 10. That the court erred in refusing to admit in evidence Exhibit `A,' a picture of Francis Harper." No reason whatever is given why this ruling of the court was erroneous.
No testimony was introduced showing that the man who held the two guns and fired the shot during the holdup was the witness Harper. The picture was not shown to the witnesses, who identified the defendant as the two-gun man; nor were they *Page 776
asked if that was the picture of the man who held them up with the two guns and fired the shot during the holdup. If they had so testified, the evidence would have been admissible. The record discloses no such state of facts. The three occupants in the bank testified positively that the defendant was the man who held the two guns and did the shooting. We are constrained to hold that the ruling of the court was correct.
There was a clear conflict in the evidence as to the guilt or innocence of the defendant, and the case was properly submitted to the jury. We have examined the record carefully and find no error therein. It necessarily follows that the judgment of the lower court must be and is affirmed. — Affirmed.
DONEGAN, C.J., and HAMILTON, ANDERSON, PARSONS, STIGER, ALBERT, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4067654/ | 10/26/2015 TDCJ Offender DetailS % O(M l 01
T§); | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434779/ | The Northern Securities Company is an Iowa corporation, and is the owner of the real estate involved in the case at bar, which is known as the Hanwood business and apartment building, located at 1401-1419 Locust street, in the city of Des Moines, Iowa. The building is three stories in height, and covers the entire area of two lots, having a frontage of 101 feet on Locust street and 167 feet on the proposed opening, extension, and widening of Fourteenth street. There is a brick party wall running north and south on the party line between the two lots, with openings for passageway, making it practicable to operate the building as a whole or to divide it into two separate buildings. The east lot is owned in fee by the Northern Securities Company, and is incumbered by a deed of trust and a supplement thereto, including furniture, in the aggregate sum of $117,600, securing first mortgage bonds known as series "B". The fee title to the west lot is owned by J.A. Wagner, and is leased to the Northern Securities Company under a 99-year lease, at a monthly rental of $187.50. The west lot is incumbered by a mortgage of $40,000 to the Equitable Life Insurance Company of Iowa. No foreclosure has been asked of this mortgage. Covering both halves of the building, in other words, the entire building is a second deed of trust, securing $50,000 of bonds, known as series "A". On the 18th day of October, 1924, the Northern Securities Company made to the Valley National Bank a trust agreement and deed for the purpose of obtaining for the use and benefit of the Northern Securities Company certain funds then in the hands of said bank. No rights are claimed by any one under this instrument. On the 13th day of August, 1927, the appellees Perry E. Canfield and Lee Canfield, who were the owners of certain of the series "B" bonds, commenced an action in the district court of Polk county, *Page 749
Iowa, alleging that the Northern Securities Company was insolvent, asking that a receiver be appointed to take charge of the realty pledged in the deed of trust which was given to secure the bonds which the said appellees owned, and that said receiver be placed in possession of said property and administer the same under the direction of this court. Thereafter there were petitions of intervention filed by certain owners of series "B" bonds. And on the 19th day of November, 1927, the Northern Securities Company and some of the other defendants filed answer to the petition of appellees and the petitions of intervention which were filed. On the 28th day of November, 1927, the matter came on for hearing before the district court of Polk county, Iowa, upon the petition of the appellees and the petitions of intervention, and, after the hearing, the court entered the following order:
"ORDER APPOINTING TEMPORARY RECEIVER.
"Now on this 28th day of November, 1927, this matter comes on for hearing on the plaintiff's application for the appointment of a temporary receiver, and the Court being fully advised in the premises, finds that a temporary receiver should be appointed for Lot 4, Block 1, and Lot Five (5), Block One (1), of J.C. Savery's Park Addition now included in and forming a part of the City of Des Moines.
"It is therefore ordered, considered and adjudged, That R.A. Crawford be and is hereby appointed a temporary receiver of said property, together with the building situated thereon and all the furniture and fixtures in said buildings; that said R.A. Crawford is to rent said property, collect the rent and operate the same under the orders of this Court, and that the income from that part of the property located on Lot Four (4) shall be kept in one account and the income from that part of the property located on Lot Five (5), shall be kept in one account and one-half of the operating expense paid out of each account. All other distributions are to be made as the Court may from time to time order.
"Bond of R.A. Crawford as temporary receiver is fixed at $3,000.00 to be approved by the Clerk."
Thereafter, to wit, on December 22, 1932, the Northern Trust
Savings Bank, trustee, filed its duly verified petition of intervention, asking foreclosure of the deed of trust securing the bond issue of $50,000, known as series "A" bonds. On the 7th day of March, *Page 750
1933, the Northern Securities Company filed an application for continuance, setting up in its application that it was entitled to a continuance of this case until March 1, 1935, under the provisions of the Emergency Debtors' Relief Act passed by the Forty-fifth General Assembly of the state of Iowa (chapter 182). The Northern Securities Company in said application for a continuance asked the court for an order, continuing the case to the 1st day of March, 1935; that said receivership should be discontinued and the receiver discharged; that the defendant be given possession and control of said real estate and the furniture and equipment therein; that the court determine fair rental terms to be paid by the defendant and the application and distribution of the rents, income, and profits from said real estate, and make such provision for the preservation of said property as will be just and equitable during the continuance of said cause. To this application the appellees and the intervenors filed a resistance. The matter came on before the court for hearing on the 17th day of March, 1933. The court advised the appellant that it was ready to hear evidence if the appellant desired to offer any evidence, and the appellant, through its attorney, who also appears to be the president of the Northern Securities Company, informed the court that they did not desire to offer any evidence.
The court listened to the argument of counsel on both sides, and, after a full and complete hearing, entered an order overruling the motion of appellant, and from said order overruling said motion the appellant has appealed to this court. The appellant relied entirely in its application for continuance of said cause to March 1, 1935, upon the provisions of the Emergency Debtors' Relief Act, which was passed by the Forty-fifth General Assembly.
The appellant in its application asked the court to remove the receiver and to place the appellant in possession of the property. The original action which was brought in this case prayed for the appointment of a receiver of the Northern Securities Company, alleging that said Northern Securities Company was insolvent, and that a receiver be appointed to take charge of its property and to administer the same under the direction of the court, and to take charge of the realty pledged in the deed of trust pending the foreclosure by the trustee of the trust agreement which was given as security for the bonds, part of which were owned by the appellees. Certain petitions of intervention were filed by other bondholders, praying for the same relief as asked for in the original petition. In 1927 the *Page 751
lower court determined the rights of the holders of the "B" bonds secured by the mortgage, and the rights of the Northern Securities Company as the owner of the real estate and as the artificial person liable on the first mortgage, deed of trust, the bonds secured thereby, and at that time found and held that the appellant was not entitled to the possession of the real estate or to the rents, income, and profit therefrom. Instead, the district court of Polk county in November, 1927, took possession of said real estate through its receiver, and ever since has been operating and managing the same, collecting the rents, income, and profits and making disbursements thereof. Thus it appears that, as the lower court appointed a receiver almost six years ago to take possession of the said property and to collect the rents and profits therefrom, the very thing which the appellant now desires to have done has already been done by this court more than six years ago, and that the same is now res adjudicata. The court is already in possession of the property through its receiver, and has been for almost six years. If the acts and doings of the present receiver have not been or are not satisfactory to the court, it is the business of the court to see that such receiver or any other appointed in his stead, if necessary, act in such a way as to meet with the complete satisfaction of the court, pending the hearing of this suit upon its merits. The receiver who was appointed almost six years ago is an officer of the court, and his conduct can be controlled and regulated by the court not only to the satisfaction of the litigants but to the satisfaction of the court. In the case at bar the court is already in possession of the real estate through its receiver, and the matters which the appellant now desires to have determined, first, the right of possession, and, second, the right of income, already have been adjudicated by this court in the order entered in 1927. For almost six years this case, for reasons not shown in the record, has been continued. The court through its receiver is in possession of the property. The court controls the income and distribution of same. This case was advanced by this court with the understanding that the Emergency Debtors' Relief Act was properly raised in this case, and an early decision as to the constitutionality of this act would be of great benefit to the bar and people of Iowa. It appears clearly from this record that, as this is a case covering the appointment of a receiver for an insolvent corporation, the Emergency Debtors' Relief Act does not apply, and that therefore this court cannot at this time pass upon said act. *Page 752
The order, judgment, and decree of the lower court is correct, and the same must be, and it is hereby, affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434662/ | The question is whether or not, when a city treasurer deposits city money in a bank which has not been designated as a depositary, and where no depositary bond is put up, and the bank fails, the city treasurer is absolutely liable under the statute; or whether it is a question of due diligence on his part in selecting the bank in which he has deposited the money.
The first case of this character before our court was Ross v.Hatch, 5 Iowa (Clarke) 149. It was there held that, where the county treasurer used reasonable care and diligence in the preservation of the public funds, and the same were stolen, he was not liable for the loss. This ruling was bottomed upon the wording of the bond, which, so far as material, was, "`to pay over promptly to the person or officer entitled thereto all money which may come into his hands by virtue of his office,'" but which also contained a provision that he would exercise diligence and care.
In County of Johnson v. Hughes, 12 Iowa 360, the county treasurer neglected to cancel certain warrants received by him, which were afterwards stolen from his office, without his fault or negligence. It was held that he was liable to the county for the amount thereof on his official bond.
In District Township of Taylor v. Morton, 37 Iowa 550, the school treasurer kept money in his residence, which was broken into and the money stolen. It was held that the treasurer was liable, and that negligence on his part was no defense.
In District Township v. Smith, 39 Iowa 1, the money of the district township in the hands of the treasurer was accidentally consumed by fire, without want of care and diligence on his part. The treasurer was held absolutely liable, and the claim that it was accidentally destroyed by fire, without want of care and diligence on his part, was held to be no defense.
In District Township v. Hardinbrook, 40 Iowa 130, the district township treasurer deposited money in a bank, taking a certificate of deposit in his own name. It was held that the treasurer's liability was absolute, and could not be varied or diminished by the cause or manner of the loss.
In Lowry v. Polk County, 51 Iowa 50, it was held that, *Page 141
where the county treasurer deposited money in a bank, such deposit was a loan, and in violation of Section 912, Code of 1873.
In Long v. Emsley, 57 Iowa 11, the township clerk deposited public funds in his individual name, which was held to be a loan to the bank, and amounting to a conversion.
In Independent District of Boyer v. King, 80 Iowa 497, it was held that a deposit by the treasurer of a school district of its funds was contrary to law.
The sum total of the holdings of this court up to this point in its history is that, where a treasurer of any of these bodies deposits money in a bank and it is lost, he does so at his own hazard. Or, to put it in another way, the respective treasurers were, in effect, held to be insurers of the safety of the funds that came into their hands. This doctrine resulted, in many instances, in grave injustice, and this court changed front on the question of the liability of such officers under certain conditions. The first case under the new line of authorities isOfficer v. Officer, 120 Iowa 389, where we held that an executor was warranted in leaving his trust funds with a bank for preservation.
In Hunt v. Hopley, 120 Iowa 695, we said:
"A trustee may take the precaution of leaving the trust funds with a bank for preservation (Officer v. Officer, 120 Iowa 389), and we can see no reason for denying a school treasurer the right to equal protection in placing the moneys of his district within the safe-keeping of a solvent bank, also. * * * Must he, at his peril, carry the large sums of public money coming into his keeping on his person, or stow them away at his home or place of business, thereby taking risks of loss, destruction, or larceny not to be thought of in the care of his own property? A number of courts apply precisely the same rules with respect to public officers as to trustees, and not only hold that they may make general deposits of public moneys coming into their hands, but are liable in event of loss only when failing to exercise due care and diligence. * * * We are not ready to so declare. Better that Lowry v. Polk Co., in so far as holding the general deposit of money a loan, be overruled."
In that case, the treasurer was held not liable.
In State ex rel. Carroll v. Corning State Sav. Bank, 128 Iowa 597, we held that the receiver of a defunct bank may deposit *Page 142
the funds of his insolvent estate, as such, in the hands of a bank of good standing and repute.
In Rhea v. Brewster, 130 Iowa 729, where a fund was deposited with the clerk of the court, to abide the result of litigation, we reiterated the doctrine of Hunt v. Hopley, and held that the clerk had the right to deposit the money for safe-keeping.
In Hanson v. Roush, 139 Iowa 58, a school treasurer deposited money in a private bank. We there held that such deposit was not wrongful.
In School Township v. Stevens, 158 Iowa 119, the school treasurer deposited, in his name as treasurer, money in a bank which afterwards became insolvent. We there discussed these two lines of authority in Iowa, and said, with reference to the latter pronouncements of this court:
"It is held, in effect, in the foregoing cases, that the adoption of this method of caring for public funds, their identity being carefully preserved by separate and distinct accounts, as such, is not only permissible, but commendable. In the light of modern methods of business, it would be difficult to specify a safer method of care and custody than is thus provided. Indeed, it might be a fair question whether, in the absence of excusing circumstances, a treasurer could properly ignore such facilities and subject public funds to the risk of loss naturally incident to a personal custody of currency. Where such course is followed, we can see no reason of public policy to be subserved by declaring for a rule of absolute liability of the treasurer, notwithstanding the exercise of all diligence and the observance of every legal duty. We adhere, therefore, to the rule followed in Hanson v. Independent District [155 Iowa 264], supra, and foreshadowed in the cases of Officer v. Officer, Hunt v. Hopley,Hanson v. Roush, and Brown v. Sheldon Bank, cited above, and Rossv. Hatch, supra. In so far as the other cases cited by appellant should appear to be inconsistent herewith, they must be deemed to be overruled to that extent. The trial court therefore rightly held against the claim of absolute liability on the part of the defendant."
In the case of Incorporated Town of Conway v. Conway, 190 Iowa 563, the city treasurer deposited money in the bank in *Page 143
the name of the "town of Conway." We there said, with reference to the conduct of the treasurer, that he had the right to deposit the funds of the town in a bank believed by him, acting as a person of ordinary prudence, to be reasonably safe and trustworthy. The contention made in that case was that the deposits were all contrary to law, relying on District Townshipv. Farmers' Bank of Fontanelle, 88 Iowa 194, and IndependentDistrict v. King, 80 Iowa 497, and other like decisions. With reference thereto we said, "These have been overruled by the cases previously cited;" and it was held that the deposit was not wrongful.
The substance of our later holdings, beginning with the Officer
case, is that, when one of these officers deposits public money in a going bank which he believes to be safe and sound, and he uses reasonable diligence and prudence in selecting the bank, he is not liable for loss caused by a failure of the bank. This is the rule in this state at the present time, unless it be that, by reason of Chapter 55 of the Acts of the Thirty-fifth General Assembly, this rule is changed. The material part of this act reads as follows:
"That treasurers of cities of the first and second class, * * * shall, with the approval of the city council as to place and amount of deposit, by resolution entered of record, deposit all city funds in any bank or banks in the city to which the said funds belong, at interest at the rate of not less than 2 per cent per annum on 90 per cent of the daily balances payable at the end of each month, * * * but before such deposit is made in any bank it shall file a bond for double the amount deposited with sureties to be approved by the treasurer and the city council and conditioned to hold the treasurer harmless from all loss by reason of such deposit or deposits; provided that in cases where an approved surety company's bond is furnished said bond may be accepted in an amount of 10 per cent more than the amount deposited."
Does this enactment wholly supersede the rule that previously existed in this state with reference to the deposit of city funds? We are led to inquire what the reason was for the enactment of this statute.
It would seem, on the face of it, that it was intended to keep *Page 144
the funds with some bank or banks, so that the municipality might benefit by the monthly interest provided for in said statute. There can be no question, under this section of the statute, that the city council shall designate the proposed depositories and the amount of bond, and approve the bond to be given by such depository. There can be no question that, when this has been done by the city, then the treasurer has no option whatever but to deposit the city funds, to at least the amount of the bond, with the depository thus designated; and the city treasurer would be prohibited from depositing such funds, up to the amount of the bond, in any other bank than one of the depositories thus named.
I do not think this question is debatable; and if the treasurer insisted upon depositing in some other bank, in disregard of the resolution of the town council, he does so at his own hazard, and if a loss is suffered, he is personally liable, as would be his bond.
But suppose that the city council refuses or neglects to designate a depository for such public funds, — is the treasurer compelled to carry it around in his pocket, or keep it in his home or place of business, and do this at his own hazard? Or would it be the more safe and sane rule to say, as we have said since the Officer case, that business sense and judgment demand that he should not do this, but should deposit it in some safe bank, using due diligence in his selection of the bank?
On the other hand, suppose that the city treasurer has more money coming into his hands, as such, than the depository bonds cover, is it possible that, if he deposits one dollar more than is covered by the depository bond, he becomes personally liable? Is he compelled to carry this surplus around on his person or keep it at his home or place of business, or would it be wiser to say that he should do as any other reasonably careful business man would do, under like circumstances, and deposit it in some bank which appears to him to be safe and sound, until such time as that the council, by resolution, shall designate another depository, or until the bonds of the designated depository have been increased sufficiently to cover the excess amount; on the happening of which event, of course, he must then deposit in accordance with the resolution of the city council?
The city council had recommended the bank in controversy, by its resolution, as a safe depository, and in pursuance of such *Page 145
resolution, he deposited the money in the bank in question. The amount on deposit concededly was some $11,000 in excess of that covered by the bond; and until a new bond was required by the city council, or until one could be procured, I am of the opinion that he had a right to deposit this money in this bank.
As to what the record shows with reference to his use of due diligence in selecting the bank, I have given no attention, as I am only trying to deal with the general rule that should govern in cases of this kind. I would reverse.
De GRAFF, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434664/ | A case similar to the one under consideration, involving almost identical facts between the same parties, was before this court under opinion reported in 200 Iowa 204, the title being McAdamsv. Davis. In that case damages were recovered for flooding the plaintiff's land in 1919, while the present action is for alleged damage to crops during the years 1920 and 1921.
The plaintiff is the owner of 80 acres of land. He rented 25 acres on the east thereof. His farm is bounded on the south by the defendant railroad, and on the east by the Northwestern Railroad.
The defendant company maintains a steel bridge and trestle, approximately 466 feet long, in its line on the south of plaintiff's land. There were some washouts, and, to protect its bridge and trestle, the defendant placed, at one end of the trestle and around the abutments to the bridge, quantities of stone. The plaintiff's claim is that the negligence of the company consisted of filling in the stone around the abutments and trestle.
The North Skunk River crosses plaintiff's land in a southerly direction, and passes under the bridge. In June, 1920, plaintiff's land was flooded when his corn crop was about four inches high. In May, 1921, his land was flooded, but he had not put in his corn crop at that time. About the first of October, 1921, his land was again flooded, when he claims that his crop was practically matured, and this last flood destroyed his crop. *Page 734
This is a sufficient statement of facts material to the questions considered.
In the trial of the case, the plaintiff offered the testimony of various witnesses as to their opinion of what the fair and reasonable value of the corn, as it stood in the field, was in 1920, immediately preceding the high water, and what its worth was immediately following the flood in 1920. The same evidence was offered as to the damage done by the flood in October, 1921. To both of these questions objection was made on the ground that they did not call for the proper measure of damages. Plaintiff offered numerous witnesses on this proposition, and they were all permitted to testify as to their opinion of the difference in the value of the crop before and after the flood as to both years.
As heretofore noted, the only negligence charged against the railroad company was the placing of the stone about the abutments to the bridge and trestle. The court gave Instruction 11, which reads:
"It is established beyond controversy that the Skunk River would have overflowed the lands of the plaintiff in the years 1920 and 1921 at the times the plaintiff claims his crops were damaged, and would have done damage to plaintiff's crops regardless of the presence of rock about the bridge and trestle. And for such damage the defendant is not liable. You will only consider such additional damage, if any, resulting to plaintiff's crops from the acts of the defendant, if you find that defendant was negligent, as to which you have been heretofore instructed."
This instruction properly covers the situation as it existed in the evidence in the case. All parties concede that, even if the rocks had not been so placed, the crops would have been damaged by overflow; and it is conceded, or at least is the law, as stated in the instruction, that the defendant could only be liable, in any event, for the additional damage caused to said crop by reason of the placing of the said rocks about the bridge and trestle. With this situation, the court gave Instruction 13, as follows:
"If you find the plaintiff is entitled to recover, the measure of his recovery will be the fair and reasonable value of the crop destroyed, if any, as it stood in the field at or immediately before the time of its destruction, if you find it was destroyed, *Page 735
and its value immediately after, and as to so much of it as you find was destroyed by the negligent acts of the defendant, if any, and no more."
This instruction was duly excepted to as not stating the correct rule or measure of damages. The evident intention of the court was to state to the jury that, in measuring the damages, they should take the difference in the reasonable value of the crop before and after the flood; and that whatever that difference was, would be the measure of damages. The instruction, however, does not state the rule. More than that, if it had been so stated, it would not be a correct measure for the jury, under the peculiar facts in this case, it being conceded, as it was instructed, that, if these rocks had not been placed as they were, the plaintiff's crop would have suffered some damage by the flood. Plaintiff cannot charge against the defendant company the damage to the crop by the flood which was not caused by the alleged negligent acts of the defendant. So long as this instruction was given to the jury as their absolute guide in determining the damages, we do not think it is such a clear and fair statement of the rule as the law requires. The danger of giving such an instruction under the situation in this case is made apparent when attention is called to the fact that the testimony of the plaintiff in the case was devoted wholly to the consideration of the difference in value of these crops before and after the flood. The action of the jury herein in returning a verdict against the defendant in the full sum claimed shows on its face that the jury did not comprehend and understand the rule laid down by the court for ascertaining the extent of the defendant's liability. This is not a case where the ordinary rule, that the instructions should be read together and harmonized, applies.
Some other errors are assigned and discussed, but they will probably not arise in a retrial of the case, and we give them no further attention. — Reversed.
FAVILLE, C.J., and EVANS and MORLING, JJ., concur. *Page 736 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434853/ | The appellants, who are the children of John A. Crouse, deceased, commenced an action in equity to quiet title to a one-third interest in 500 acres of land in Boone county, Iowa, claiming in their petition that the appellee, the surviving spouse of John A. Crouse, feloniously caused the death of John A. Crouse and by reason thereof the appellee took no interest in the property of the estate under Code, section 12032. The appellants claim that their father, John A. Crouse, came to his death because of the unlawful acts and willful negligence of appellee in the operation of an automobile driven by appellee, upon the running board of which John A. Crouse was standing in a perilous position, from which peril the appellee had the means of protecting him by the exercise of ordinary care, and that she willfully omitted to do so, and that at the time in question the appellee was engaged in an unlawful act in transporting the said John A. Crouse against his will, with the purpose of securing $3,500 in currency which he then had in his possession. The lower court denied the relief prayed for by the appellants, and from said order and decree appeal has been taken to this court.
This case has had a very long and notable career. John A. Crouse fell from the running board of an automobile on March 4, 1927, and died a few hours thereafter. Within a few days after that the appellants in this action commenced an action in partition, asking that the title to the real estate left by said deceased be quieted in them and that a decree of partition be entered, which said action in equity was later dismissed. See Crouse v. Crouse, 210 Iowa 508, 229 N.W. 850. After the dismissal of the equity action above mentioned, the appellants immediately filed their petition at law, claiming the immediate possession of said real estate so left by said deceased, claiming that appellee was guilty of manslaughter in causing the death of said deceased, and by reason thereof she took no interest in his said estate. In this law action there were three trials *Page 816
to a jury. In the first two the jury disagreed; in the last the jury found for the appellants, which said cause was upon appeal reversed by the Supreme Court in an opinion reported in 214 Iowa 725, 240 N.W. 213. Following the decision of the Supreme Court, which reversed the action of the lower court on the grounds of insufficiency of the evidence, the appellants herein filed their substituted petition in equity, praying that the appellee be adjudged guilty of having feloniously caused the death of the said John A. Crouse, stating that she therefore took no rights or interest in or to any part of his estate; that the title to the real estate left by the deceased be quieted in the appellants; that a writ issue placing them in possession of the real estate; and asking for an accounting from the appellee by reason of her having occupied the homestead so occupied by her and her husband at the time of his death. The appellants moved to transfer the cause to the equity side of the calendar. The appellee filed a written resistance. The lower court sustained the appellants' motion to transfer to the equity side of the calendar, and the cause was tried as an equitable action. Shortly after the death of John A. Crouse the appellee herein was indicted by the grand jury of Boone county, Iowa, charged with the crime of manslaughter, growing out of the death of her husband, in that she willfully, unlawfully, and feloniously drove a motor vehicle with gross negligence and recklessness so as to cause the death of her husband. She was arrested pursuant to said indictment, pleaded not guilty to the crime charged, and was upon trial to a jury under said indictment duly acquitted of the charge of manslaughter by direction of the court to return a verdict of acquittal, which verdict of acquittal was returned and judgment entered accordingly, acquitting, releasing, and discharging the appellee.
John A. Crouse at the time of the accident was approaching his sixty-fourth birthday. He had married young. His first wife died in 1908. They had eight children, the appellants. During the eighteen years he was a widower he kept his children together on the farm. As they grew up, they married and left home, establishing their own homes. Only Ella, the youngest, was left at home. She lived with her father in a large house on the 500 acres of land owned by him close to the city of Boone, the title to one-third of which is involved in this action. The record shows that John A. Crouse was a substantial, hard-working, honest man, who had raised a large family and educated them. The appellee, Elizabeth Crouse, *Page 817
spent her early years on a farm in Boone county. Reaching about the fifth grade in country school, she was taken out to help her mother at home. At 17 she came to town to work. She soon married a man by the name of Woodward. This romance ended in a few days, when her brother found that Woodward had a wife and children. The marriage was annulled. Shortly thereafter she married a man by the name of Peterson. By him she had a son. This marriage lasted but a short time, and she was divorced. She then married a man by the name of Lyons. They moved onto a farm, and, as in the former cases, soon there was a separation and divorce. In the latter part of August, 1926, appellee applied for and was given a position as housekeeper in the Crouse home at a weekly wage. In about three months, to wit, on December 8, 1926, Crouse and the appellee were married. Crouse, as a husband, was very indulgent. Soon after the marriage he purchased a grand piano. Draperies and rugs adorned their home. A maid answered the doorbell. The day before the wedding he bought her an expensive grey squirrel coat, and in February, 1927, he bought her a Buick sedan.
On February 26, 1927, Crouse deposited $3,500 in a checking account in the City Trust Savings Bank. Mrs. Crouse had always had the right to check upon his bank account, but on the evening of March 3d Crouse telephoned to an official of the bank not to honor any checks drawn on his account except his own. On the morning of March 4th Mrs. Crouse came to the bank and asked to withdraw the money which Crouse had deposited there, to wit, the sum of $3,500. The official at the bank informed her that Crouse had given the bank instructions not to permit any one to withdraw the money. She said she would get Crouse and bring him to the bank. Shortly thereafter they both came to the bank. Crouse stated to the official who waited upon them that he wanted to send the money to a relative in California, and there was some dispute then at the bank as to whether Crouse should take a draft, a cashier's check, or the money. Mrs. Crouse insisted that he should take the amount in currency and secure post office money orders to send the money to the relative in California. There also appears in the record evidence of some dispute which had taken place between Crouse and his wife on the evening before and the morning of the accident. However, the evidence does not show this to be of a serious nature. Crouse took the money in $20 bills, walked across the street to where they had parked the Franklin car. The Franklin car was *Page 818
Crouse's car, and, being an open car and as the day was rather breezy the side curtains were on. Mrs. Crouse sat on the left-hand side of the front seat, in the driver's position. The exact position that Crouse was in at the time the car started on the fatal journey is somewhat in dispute, and will be referred to later in this opinion. The evidence shows that Mrs. Crouse turned to the west at the corner and proceeded to drive the old Franklin car, according to the various witnesses, from twenty to thirty-five miles an hour; that the car swerved and zigzagged as it proceeded west. Behind the Crouse car was a car driven by a witness by the name of Curtis. He testified that when he first saw the Crouse car he did not see any one standing on the right running board. When the car was in front of the post office Crouse fell or stepped off, striking the pavement and fracturing his skull, from the effects of which he died a few hours later. There is no evidence in the record to show that Mrs. Crouse pushed him off the running board. Mrs. Crouse drove the car a short distance ahead, stopped, and came back to the scene of the accident. She immediately grabbed the money which Crouse had in his hands, to wit, the $3,500 which he had secured at the bank, made one or two short remarks to some of the people standing there, and then got into the Franklin car and drove home, where she put the money, part of it, under a carpet and part of it under the mattress on the bed. She stayed at the home for some time and did not go to the hospital, where Crouse was taken by others, until she was notified of the serious condition of her husband, that afternoon. She stayed but a short time at the hospital. It is needless to say that the record shows Mrs. Crouse did not act as a loving and dutiful wife should, for, instead of staying with her husband to assist him and do what she might to help him in his suffering, she seemed more interested in securing the money and rushing it to what she believed was a safe place, namely, under the carpet in her own home.
It is conceded by the appellants that the opinion of the Supreme Court upon the former appeal, to wit, the opinion in214 Iowa 725, 240 N.W. 213, must be regarded as the law of this case so far as the facts are identical upon the two appeals. The record made by the appellants is the transcript of the evidence offered in the former case, which was decided by this court, with the exception of two additional witnesses and the exception that the speed ordinance of the city of Boone was introduced in this case.
So we must look to the evidence of the two witnesses to see *Page 819
whether or not there is in this record now sufficient additional testimony to take it beyond the decision of the Supreme Court reported in 214 Iowa 725, 240 N.W. 213.
One of the two new witnesses introduced by the appellants was a Mrs. Nellie Brown, a lady along in years, who was well acquainted with both John and Elizabeth Crouse. On the day of the accident she passed John and Elizabeth Crouse on the street after they had left the bank and before they entered their car. She testified that she heard John Crouse say to the appellee: "I will stop at the post office and leave that money." She looked as they started from where the car was parked, and Elizabeth Crouse, the appellee, was driving and John Crouse was standing on the right running board, hanging onto the side of the Franklin car. She watched the car as it turned the corner and started west. She said she watched the car as it traveled west, as far as Keeler street, and that all of this time John Crouse was standing on the right running board, and that he was just holding on to the top of the door.
The other new witness that was offered was Margaret Covi, who was in front of the hotel, walking in the direction of the post office at the time the Crouse car passed the hotel. And at that time she testified there was a man standing on the running board. She watched the car until the man fell off.
Thus we see the evidence offered by the new witnesses does not introduce any new theory in the case, but is in the nature of cumulative evidence upon one of the theories that was urged at all times in the various trials of this case. The most that can possibly be said for the new evidence is that it puts John Crouse on the running board of the car for a greater distance than the other evidence did. Upon this there is a dispute in the evidence, for certain witnesses who were driving behind the Crouse car testified that they did not see anybody on the running board at the time they saw the Crouse car, which was after the time that Mrs. Brown had seen the Crouse car. The new evidence, together with the transcript evidence that was introduced by the appellants, is not of such a character that this court can find there was sufficient evidence of recklessness or reckless conduct on the part of the appellee as to show that she was guilty of manslaughter. The able and learned trial court had before him the witnesses and had the opportunity to observe their demeanor upon the witness stand and their manner of testifying, and no good *Page 820
reason now appears why the finding of the lower court should be disturbed.
Many other interesting questions are raised by the appellee, but, in view of our holding as announced in this opinion, it follows, therefore, that the judgment and decree of the lower court must be and it is hereby affirmed.
CLAUSSEN, C.J., and EVANS, KINDIG, STEVENS, ANDERSON, DONEGAN, KINTZINGER, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434666/ | It appears without dispute that, on May 14, 1921, the appellant purchased of the appellee bank for $400 the latter's draft on a bank located at Rome, Italy, for 6,861 lire, payable to himself. On June 6, 1923, appellant presented the draft to the drawer bank, and demanded payment thereof, which was refused. The appellant thereupon indorsed the draft, turned it over to the bank, and accepted the bank's receipt therefor. *Page 702
The receipt stated that it was deposited "to be sent for sale and credit." The bank sent the draft to Knauth, Nachod Kuhn, of New York, dealers in foreign exchange, with instructions to sell it and remit the proceeds. Knauth, Nachod Kuhn sent to the bank their check for $316.98, as the proceeds of the sale of the draft. On receipt of this check, the appellee gave appellant credit on its books and on his pass book for the amount of the check, and the check was forwarded to the Hanover National Bank, of New York, for collection. Knauth, Nachod Kuhn failed before the check was presented, and it was not paid. On being advised of the nonpayment of the check, appellee canceled the credit of $316.98 given appellant on its books and on his pass book. The action is by appellant to recover from the bank that amount, with interest from the date of such cancellation.
The answer pleaded that the draft was received from appellant for sale, and that the credit given appellant on the receipt of the check for the proceeds of the sale was, under a general custom of banks, a conditional credit only, conditioned upon its payment in the ordinary course of business, and that, when the check was not so paid, the credit was canceled, in accordance with such custom.
There is some conflict in the testimony as to what was said when appellant presented the draft for payment. The relation of the parties with respect to the draft at that time was fixed by the receipt given for it. Moreover, the judgment below in favor of the appellee is conclusive here upon any disputed question of fact, where there was evidence to sustain it. There was testimony tending to show that the bank refused to pay the draft because it had made a remittance to the bank at Rome to cover it, and because of the fluctuation in the rate of foreign exchange, a depreciation in the value of the lire, measured in dollars, and the bank's ignorance of its then value; that these facts were explained to appellant, who was informed that he would have to sell the draft; and that he then requested the bank to send the draft to New York for sale for him. It is clear that the relation of the parties at that time, and in respect to the draft, was that of principal and agent. The bank was appellant's agent to sell the draft.
Appellant contends that, as the bank was the drawer of the *Page 703
draft, it was liable thereon, and that the transaction amounted to a payment of it when appellant was given credit for the amount of the check. The $316.98 represented the proceeds of the sale of the draft, the draft belonged to appellant, the bank took it for the specific purpose of selling it, and the proceeds of the sale belonged to appellant. The transaction had no aspect of payment of the draft by the bank. There is nothing in the Negotiable Instruments Law that impresses the transaction with the character of payment. Section 9521, Code of 1924, provides that the maker of a negotiable instrument "engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder." There is no evidence that the draft had been presented to the drawee, or dishonored, and appellee was under no present obligation to pay it. There is no basis for saying that, with respect to the draft, the transaction was other than the receipt given to, and accepted by, appellant showed it to be, — an agency on the part of the bank to sell the draft for appellant. It does not appear, except perhaps by inference, to whom the check received from Knauth, Nachod Kuhn was payable. If it be assumed that it was payable to the bank, it nevertheless clearly belonged, not to the bank, but to the appellant.
Appellant relies strongly upon the fact that he was given credit as a depositor for the amount of the check. That fact is a circumstance to which different courts attach greater or less importance, in determining whether title to a check or draft passed to a bank taking it, or it was taken for collection only; but they all agree that such fact alone does not establish that the bank is the owner of the paper, as against the express agreement of the parties, or proof of circumstances from which an understanding to the contrary may be inferred.
We have adhered to the rule that, where a check or draft is deposited by a customer, and credit given by the bank on his account as cash, against which he has an immediate right to draw, in the absence of an understanding as to how it shall be treated, or proof of circumstances from which such an understanding may be inferred, prima facie the title to the paper passes to the bank. In Acme H. M.F. Co. v. Metropolitan *Page 704 Nat. Bank, 198 Iowa 1337, where we had occasion to consider the question and review the authorities, we so held. See, also, PaloAlto County v. Ulrich, 199 Iowa 1.
We have seen that, by the express agreement of the parties, the draft was not taken by the bank as purchaser, but to be sold for appellant, and that the proceeds of the sale, in the form of the check, belonged to appellant, and not to the bank. There was included in the authority to sell the draft the authority to receive or collect the proceeds of the sale. In the absence of instruction to the contrary, this authority might be executed in the manner usual and customary in the banking business, and appellant's assent thereto will be presumed.
"While the agent may not accept anything but the actual cash in satisfaction of the claim, he may receive a check or draft, negotiable and payable on demand, which he has good reason to believe will be honored on presentation, as a ready and more convenient means of obtaining the money in conditional satisfaction of the debt." Griffin v. Erskine, 131 Iowa 444.
See, also, Bellevue Bank v. Security Nat. Bank, 168 Iowa 707.
There is no claim that the bank exceeded its authority, or was guilty of negligence or breach of duty in accepting the check and forwarding it for collection.
It is clear that, at this point in the transaction, the bank, as agent for appellant, received a check belonging to appellant which it was its duty to collect. Nothing then occurred to change the relation of the parties, as fixed by their express agreement.
The fact that the bank gave appellant credit as a depositor for the amount of the check is a circumstance to be considered in determining the relation of the parties, and one that may, in the absence of proof of an understanding to the contrary, give rise to an inference that the bank became the owner of the check and the debtor of the appellant for its amount; but it is not alone conclusive upon the question, and does not establish that the relation of debtor and creditor existed, as against the express agreement of the parties to the contrary. Where it appears by the agreement of the parties, or by legitimate inference from the other circumstances shown in evidence, that the bank did not become the owner of the paper, a credit given *Page 705
the depositor for the amount thereof is provisional, and may be canceled by the bank in the event that the check is not paid. This is in accordance with the general custom pleaded, and established by the evidence, and is well recognized by the authorities. See Acme H. M.F. Co. v. Metropolitan Nat. Bank,
supra, and authorities there cited.
The fact that the check was payable to the order of the bank, if it was, merely raises a presumption that it was the owner.Acme H. M.F. Co. v. Metropolitan Nat. Bank, supra. Any such presumption would be overcome by the established facts.
There was a clearly established agreement that the draft was taken by the bank for sale. The effect of this was that the bank did not become the owner of the draft. Nothing whatever appears to show that there was thereafter any change in fact in the relation of the parties to the whole transaction or to the check representing the proceeds of the sale.
The judgment 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/3434670/ | Marie Hubbell died testate on the 6th of January, 1921. Letters testamentary were issued under her will on the 20th day of the same month. She made seventeen special bequests in her will, and named Sarah Lawson, of Greeley, Iowa, residuary legatee; also named W.H. Norris as executor thereof. He was appointed by the court, took charge of the estate, and proceeded to administer thereon. Before he completed the administration of the estate, he died, on the 20th day of August, 1922, and Martha B. Norris, his wife, was appointed executrix. She published statutory notice of her appointment, the first publication being on September 9, 1923. On November 29, 1922, F.B. Wilson was appointed administrator de bonis non of the estate of Marie Hubbell, deceased, and qualified as such on the next day.
On September 6, 1923, the claimant herein filed his claim *Page 868
in the district court, and on the 7th, a copy of this claim was served upon Martha B. Norris. Among the assets of the Hubbell estate that passed into the hands of Norris as executor was a note for $10,000, made by John Derr, and secured by mortgage for $15,000 on 153 acres of land in Clayton County. The undisputed record is that this mortgage was executed to Norris, and covered a note for $10,000 and a note for $5,000. The $10,000 note had been negotiated to Mrs. Hubbell, during her lifetime, by Norris. The $5,000 note had been negotiated to one Mrs. Carhart. There was another mortgage and note in the Hubbell estate, known as the "Ipswich mortgage loan," of $7,500. On the 28th day of February, 1922, Norris filed what he designates as his "Executor's Final Report," which was, however, not acted upon by the court. In this he reports on hand the two loans, the John Derr loan and the Ipswich loan, as assets of the estate. The evidence in the case shows that, subsequent to the last named date, Norris traded the Ipswich mortgage and note to Mrs. Carhart for the second note belonging to the Derr loan, she paying him the difference in cash. This brought into the Hubbell estate both notes secured by the said $15,000 mortgage of Derr. Norris then negotiated with Derr, and took from him a new mortgage and note for the said $15,000, made payable to Sarah Lawson, and thereupon Norris released the original mortgage securing the Derr loan. This transaction is the storm center of the contentions about this claim.
It is claimed at this point, on behalf of the Norris estate, that the taking up of the $5,000 note from Mrs. Carhart and the making of the new mortgage and note in favor of Mrs. Lawson were at Mrs. Lawson's request and solicitation. The record in the case shows that all of the special legacies were paid, except one, and that there were sufficient funds in the hands of the administrator of the estate to pay the same. It is apparent, therefore, that Sarah Lawson is the only party really interested in this question. She being such, if she made an arrangement of this kind with Norris, she would be bound by it. The question, therefore, at this point in the case, — and it is controlling, if found against her, — is, Did she make such an agreement? The lower court held against the administrator of the Hubbell estate, thus holding that she did make such an agreement. *Page 869
Little good could be accomplished by setting out the evidence in the case in detail. Suffice to say that, in addition to the above matters, the evidence fairly shows that, like all land values in Iowa, the land had depreciated, and the value of the real estate covered by the mortgage was undoubtedly less than the face of the mortgage; and this was probably true at the time the second mortgage was taken by Norris.
The evidence shows further that Norris' wife was the guarantor of the $10,000 note; that he had been the banker and confidential adviser of Mrs. Hubbell during her lifetime. It is the claim of the executor of the Norris estate that, in various conversations with Mrs. Lawson and her husband, John, the matter was discussed as to this mortgage, and the Lawsons expressed themselves as not caring to have what they called a "split" mortgage, saying that it would be to their best interest to have the Carhart note, so that they would hold both notes secured by the mortgage; and it was in pursuance of this talk that Norris did secure the Carhart note, and procured a new mortgage directly to Mrs. Lawson. The administrator of the Hubbell estate had started foreclosure of the second mortgage and note, which foreclosure is still pending. A stipulation was drawn up, in anticipation that all of the parties concerned would sign the same, to the end that the mortgage might be foreclosed, which stipulation provided that the foreclosure should be without prejudice to the rights of any of the parties. This stipulation is of no value in this case, because it was not joined in or signed by the executor of the Norris estate. This second mortgage and the notes accompanying it were turned over to the present administrator of the Hubbell estate shortly after he was appointed, and he has retained the same ever since. Lawson and wife both testified that there never was any agreement that the Carhart note should be bought, nor that the second mortgage and note should be taken from Derr. All such talks and agreements which are testified to by the witnesses for the Norris estate are flatly denied by Mrs. Lawson and her husband. On the other hand, witnesses who are wholly disinterested in this case testify that they were present, and heard the various conversations between Norris and Mr. and Mrs. Lawson in which the whole matter was discussed, and Norris *Page 870
was told to secure the Carhart note and execute a new mortgage with Derr, covering the $15,000.
There is serious dispute in the record between counsel as to whether this case is at law or in equity. Without passing upon this question, however, we have reached the conclusion, after a review of all of the record and the testimony in the case, that the district court was right in holding that Mrs. Lawson did make such an agreement with Norris prior to his death, and that, in pursuance of that agreement, Norris took this second mortgage and notes. Since we have reached a conclusion in agreement with that of the district court, Mrs. Lawson is in no position to complain about Norris's carrying out the agreement between them.
Numerous other questions are raised and discussed in the case, especially that of the statute of nonclaim; but, under the conclusion we reach in the case, they become immaterial. —Affirmed.
EVANS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434716/ | The appellants vendee and wife present three points for reversal: Error (1) in establishing mechanics' liens as superior to vendor's lien, (2) in failing to establish homestead rights in "the dwelling flat in the building in question," (3) in appointing a receiver of the rents and profits.
The contract of sale by the McConns to Ebinger fixes the purchase price at $25,000, "payable $5,000 cash in hand * * * the balance of said consideration $20,000 as follows, to wit: (the party of the second part contemplating making extensive improvements during the year 1923), $1,000 on March 10, 1924, and $2,500 per annum thereafter on each succeeding March 10, together with interest * * *." Ebinger proceeded to make improvements to the amount of many thousand dollars, which he was unable to pay for; after which a supplemental agreement was made between the vendors and vendee, reciting that the original contract "provides for the time and manner of making payment of the consideration therein specified and interest on sums remaining unpaid; and, whereas, there are certain parties who claim mechanics' liens on said Orpheum Theater, growing *Page 268
out of the remodeling of the said Orpheum Theater in 1923 by the said Waldo Ebinger. Now, therefore, in order that the said Waldo Ebinger may better adjust and meet the payment of said mechanics' liens and also pay the consideration and interest under said contract, out of funds and income as they become available to the benefit of all concerned, we, the undersigned, hereby agree and consent that the said Waldo Ebinger may pay one hundred and fifty ($150.00) dollars per month in place of making the payments and paying interest as specified in said contract; provided, however, that the said Waldo Ebinger shall make payments of at least one thousand dollars per year towards liquidating any valid mechanics' liens against said Orpheum Theater, and when the same are paid off again begin with his annual payments as provided in the contract, until the entire consideration and interest is fully paid."
I. The issue of priority between the vendors' lien on the one hand and the mechanics' liens on the other was made between the vendors and the mechanics' lien holders. Priority was decreed to the holders of the mechanics' liens. The holders of vendors' lien have not appealed. Appellants, as their reason for claiming the right to be heard on the question of priority, argue that, in the adjustment of their alleged homestead rights, they would be entitled to have the vendors, whose lien upon the homestead is admitted, proceed against the non-homestead part of the premises before resorting to the homestead, and are therefore interested in the question whether such resort of the vendors' must be subject to prior liens. If it is not subject to prior liens, the vendors might procure satisfaction from the non-homestead part of the premises, thereby leaving the homestead clear of the vendors' lien, as well as exempt from mechanics' liens.
Inasmuch as we are holding that the appellants have no homestead exemption, they are not concerned in this question of priority. As the vendors have not appealed, the question is not before us.
II. The property sold is a theater building, which has in the second story an apartment or flat for dwelling purposes. Appellants contend that, at the date of the contract of purchase, *Page 269
1. HOMESTEAD: March 10, 1923, before and after, they were in abandonment: the actual occupancy of the apartment as their evidence: home. The court found, however, that any sufficiency. homestead they might have had had been abandoned. Defendants' testimony is to the effect that removal was made necessary by the remodeling for which the mechanics' liens are here claimed; that such removal was intended to be temporary; that they moved temporarily into the flat occupied by the husband's mother, and lived with her; that, in preparation for moving back into the apartment after the improvements were completed, they replaced there some of their furniture; that Creem then wanted to rent the apartment, and so appellants decided to stay for a while with the husband's mother and to rent the flat temporarily to Creem, who moved in in November, 1923; that Creem, complaining about the heat, left, and appellants moved into the apartment with all their furniture about January, 1925; that the furniture has remained there ever since; that defendant wife was assisting her husband in the management of the theater, the work of which, with the taking care of the children, was too much for her; and that her mother, to assist her in taking care of the children, permitted appellants to move into her home with her, where appellants lived from April, 1925, to the time of the trial, in May, 1928. The testimony of the appellants is that they rented the apartment furnished, from month to month, temporarily, intending to retain it as their permanent home, and to move back into it, and that they intended to move back the fall following the trial; that they voted in the ward in which the theater building was located.
Removal from the homestead was prima-facie abandonment. The flat, before the remodeling, was composed of seven rooms, three of which, including toilet, were taken to obtain more space for the opera house. The toilet was changed to the opposite side of the hall. The remodeling was of the entire property, for the purpose mainly of increasing the seating capacity and changing the stage in the opera house. The heating appears to have been installed for the use of the entire building, flat included.
The improvements for which the mechanics' liens are claimed appear to have been completed in the summer or fall of 1923. Appellants' reason for renting the flat to Creem, as *Page 270
given by the husband, is that Creem stated that "it would be close to his business, and he would like to have the flat; and, as we were receiving rent, we decided to take the proposition, and the flat we were living in at my mother's made it a little better for the children. I had one child at that time." Appellants operated the theater until May, 1924. Another person operated it from May until November, 1924. About January, 1925, appellants leased the theater to a concern which was operating three houses, all of which defendant Waldo seems to have then taken the management of, for the operators. Defendant Waldo testifies that his wife was assisting him in the management of the business; that, when they moved from the flat in April, 1925, it was "on account of the wife's health going down, she being required to assist me in the business, and taking care of the children, too. My wife's mother helps take care of the children now, and has ever since we moved up there to their house." It seems that a second child was born during this interval.
While appellants' testimony of intention to return to the flat and make it their home is admissible, it is not conclusive, and its truthfulness must be tested by its reasonableness and consistency, in the light of the circumstances. The wife testifies, in response to question how it came that appellants made the flat their permanent home: "We expected to make our living from the Orpheum Theater the rest of our lives," and "expected to live there the rest of" their lives. In view of the management by another and lease to others, and of Waldo's employment to manage three theaters for the proprietors, and in view of the nature of the property, and of the presence of little children in the family, for whom a better home was evidently found with the parents, we are not convinced of the truth of appellants' claimed intention.
Light is thrown on the real motive of the appellants by their attitude toward the holders of the mechanics' liens. They contested at least seven of the liens. These contests were for alleged failure to perform contracts, for inferior workmanship, and for additional payments alleged to have been made, which would amount to several thousand dollars. The court allowed two reductions, one of $25 and one of $65. A great part of the testimony in the record is directed to the claims for reductions, *Page 271
but all such claims are here abandoned. Appellants attempted to make settlement with the mechanics' lien holders at 65 per cent of their claims. One claim was assigned to appellant Nora, and judgment was asked by her, and allowed.
Appellants' claim that the flat was their permanent home and their removal was temporary is not sustained. The court properly found that the homestead was abandoned.
III. Appellants, in the effort to compromise with the lienors, obtained from the vendors the modification of contract above set out. The vendee Waldo Ebinger is undoubtedly insolvent. The evidence fairly shows that the property is 2. RECEIVERS: inadequate security. It was rented. The purpose appointment: of the modification of the contract and the mechanics' intention of the parties to it were to reduce lien the amount of the payments to the vendor so that foreclosure: the vendee would have more of the income from insolvency the property with which to pay mechanics' liens. and It was, we think, without doubt, the purpose, inadequate and is the proper interpretation of the security. modification agreement, that at least $1,000 per year for four years, from the income from the property should be used in paying off mechanics' liens. By the contract and modification, the rents and profits to the extent of at least $1,000 per year for four years were, in effect, pledged for the payment of the mechanics' liens, and correspondingly for the benefit of the vendors. Equity and good faith toward the vendor and the mechanics' lien holders require that the income to that extent should be so used. The vendee, however, has not done this. He has received the income, but expended it largely for other purposes, and has, as he says, only about $200 left. The mechanics' lien holders and vendors joined in a petition for the appointment of a receiver of the rents and profits. By the decree, a receiver for the rents and profits was appointed. He was required to pay the necessary expenses, but to make no disbursement of the net rentals until he should have received $4,000 net, when he was required to report to the court. The decree provided that the defendant vendee might prevent the appointment of receiver by depositing with the clerk $4,000, to be held until further order. The vendee is the equitable owner. The vendors, under the statute, are entitled to the position of mortgagees. Code, 1897, Sections 4297, 4298. The vendee is insolvent, and the security is inadequate. *Page 272
The receivership, therefore, to the limited extent provided for, was authorized and proper. Davenport v. Thompson, 206 Iowa 746.
No objection is raised here that the receiver was appointed by the final decree, instead of awaiting the result of the execution sale.
Appellants move to tax costs of additional abstract to appellees. The motion is denied. — Affirmed.
ALBERT, C.J., and EVANS, STEVENS, De GRAFF, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434539/ | Petitioner, Bruce Transfer Company, is an Iowa corporation with its principal place of business in Polk county. As a common carrier it was operating a line of motor vehicle freight trucks of semitrailer type upon a fixed schedule and over a regular route, with Des Moines, Iowa, and Kansas City, Missouri, as termini. Suit was instituted against petitioner in the district court of Clarke county, Iowa, for damages resulting from a collision between an automobile and one of said trucks travelling over a public highway through said county upon said regular route. Petitioner had no office or agency in said county, venue therein being based solely upon section 11041, Code of Iowa 1935, which permits the bringing of an action against certain common carriers "in any county through which such road or line passes or is operated." Contending that the statute was not applicable to a company engaged only in the operation of motor freight trucks, Bruce Transfer Company moved for change of venue to Polk county. The motion was overruled by the trial court, whereupon said company, as petitioner, instituted herein this original action in certiorari to test the legality of said ruling.
But one question is involved, viz: were the operations of Bruce Transfer Company of such character that the venue in said action was correctly fixed in Clarke county? Solution of this question rests upon the meaning of the aforementioned statute which reads as follows:
"11041. Common carriers — transmission companies. An action may be brought against any railway corporation, the owner of stages, or other line of coaches or cars, express, canal, steamboat and other river crafts, telegraph and telephone companies, or the owner of any line for the transmission of electric current for lighting, power, or heating purposes, and the lessees, companies, or persons operating the same, in any county through which such road or line passes or is operated." *Page 52
[1] Among other things, the statute refers to "any railway corporation, the owner of stages, or other line of coaches or cars". This clause has been a part of the statute in substantially the same form ever since 1872, and since 1897 has been unchanged. Motor cars, trucks or trailers have never been specifically named therein. Therefore, interpretation is necessary to determine whether or not the intendment of the legislature as expressed in the statute included operations of the character of those conducted by petitioner.
Obviously this interpretation should be made as of the times when the provisions in question were adopted in order that the surrounding conditions and the apparent purposes of the legislation as well as the contemporary meaning of words used may be properly taken into account. Cherokee v. N.W. Bell Telephone Co., 199 Iowa 727, 202 N.W. 886; Platt v. Union P.R. Co.,99 U.S. 48, 25 L. Ed. 424; 59 C.J. 1014, 1015.
During that period the only general mechanized means of transporting freight and passengers overland was by conveyances travelling upon rails. Practically all vehicles using roads and highways were drawn by animals. Few people, if any, envisioned the tremendous changes in highway traffic which were to result from automotive development. The legislatures could not have foreseen that concerns such as petitioner would one day be operating as common carriers of passengers and freight in intrastate and interstate commerce with regular established routes comparable to the railways of those times, handling a tremendous volume of traffic and furnishing the sternest of business competition to the railways.
[2] The statute was apparently based upon the thought that the public interest and convenience would be promoted by permitting, suits against common carriers in any county on their lines. In passing it may be said this legislation has in general proven to be sound and has tended to serve the convenience of litigants and witnesses, and that the hardships or abuses resulting therefrom have been relatively unsubstantial.
That the statute does not in so many words specifically describe the operations and business of petitioner will not necessarily prevent its applicability thereto.
[3] "* * * It is a rule of statutory construction that legislative enactments in general and comprehensive terms, *Page 53
prospective in operation, apply alike to all persons, subjects and business within their general purview and scope coming into existence subsequent to their passage. Thus, an automobile may come within the provisions of an act relating to vehicles generally, although the statute was passed before the invention of automobiles. * * *" 25 R.C.L. 778.
This rule finds support in the following authorities: Commonwealth v. Quaker City Cab Co., 287 Pa. 161, 134 A. 404; In re Fox Film Corp., 295 Pa. 461, 145 A. 514, 64 A.L.R. 499; Haselton v. Interstate Stage Lines, 82 N.H. 327, 133 A. 451,47 A.L.R. 218; Baker Strawn v. Magnolia Petroleum Co., 124 Okla. 94,254 P. 26; Burton v. Monticello, etc., Turnpike Co., 162 Ky. 787,173 S.W. 144; Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32,21 N.W. 828; Iowa Union Telephone Co. v. Board of Equalization,67 Iowa 250, 25 N.W. 155; Franklin v. Northwestern Telephone Co.,69 Iowa 97, 28 N.W. 461; 59 C.J. 973, 974. Therefore, if the terms of this statute are comprehensive enough to include petitioner and its business, they will be subject to its provisions.
[4] The first class of carriers listed is "any railway corporation", followed by "the owner of stages, or other line of coaches or cars". What was the meaning of the word "line" as so used, at the times in question? Century Dictionary — 1889 — Line: "A series of public conveyances, as coaches, steamers, packets and the like, passing to and fro between places with regularity". Commonwealth v. Walton, 1907, 126 Ky. 523,104 S.W. 323, "`Stageline', `railroad line' and `automobile line' are expressions which are ordinarily understood to mean a regular line of vehicles for public use operated between distant points, or between different cities, * * *."
Unquestionably petitioner's trucks were operated as a "line" as then defined.
However, petitioner contends the language of the statute should not be interpreted to include motor freight trucks. As above noted the construction of this language should be based upon its meaning at the times of the enactments.
The word "stage" has been defined as a place of rest on a journey, or where a stage coach changes horses. It also means a stage coach. Century Dictionary — 1889. "Coach" is a generic term. It is a kind of carriage. A. E. Encyclopedia of *Page 54
Law, 2d Ed., 1898, Vol. 6, page 170. A note on said page 170, cites certain cases discussing coaches and various kinds of stages. Stages and stage coaches were usually passenger vehicles, although mention is made of mail coaches which were principally for the carriage of mail, and wagon stages which handled freight only. The expression "mail stages" was formerly used in this statute. A car generically or in its broadest meaning was a "wheeled vehicle", though the word "car" at the time in question was more frequently used to refer to a vehicle running on rails. Century Dictionary — 1889. The term "coach" was applied both to vehicles travelling over roads and upon rails.
In view of these and other definitions then applied to "stage", "coach" and "car" the context should be taken into account in determining the proper interpretation of the meanings of such words as used in this statute. Code of Iowa 1935, section 63, rule 2. In the year 1889, the Court of Appeals of New York, in discussing the interpretation of an instrument containing these terms, said:
"* * * Neither the word `coach,' `stage,' or `car' can be said to be words of art, or to have any legal or fixed meaning distinguishing one from the other, or any one of them from several other terms implying a vehicle or conveyance. We are therefore to look at the context of the resolution, and the circumstances under which it was adopted, and especially at the matter which the parties had in contemplation." New York v. Third Ave. Ry. Co., 117 N.Y. 404, 646, 22 N.E. 755, 756.
It will be noted that the statute in controversy first refers to and disposes of "railways". Next mentioned are "stages, or other line of coaches or cars." Under correct grammatical construction the phrase "other line of coaches or cars" does not refer back to the first clause which deals with railways or vehicles travelling upon rails. Instead it properly refers to the intervening phrase containing the word "stages" which immediately precedes it and to which it is coupled directly by the disjunctive "or". Therefore, the expression "other line of coaches or cars" comprehends all coaches and cars other than stages, but having no relation to railways. Cincinnati, etc., Turnpike Co. v. Neil, 1839, 9 Ohio 11. The motive power of such coaches and cars is not material. Lames v. Armstrong, 162 Iowa 327, *Page 55
144 N.W. 1, 49 L.R.A., N.S., 691, Ann. Cas. 1916B, 511. To say that the word "cars", as here used, should be limited to vehicles running on tracks or should be limited to vehicles carrying passengers or any other particular things would not accord with the approved meaning of the language used when construed in connection with other related portions of the statute. The word "cars" appears to have been here used in its generic sense as meaning "vehicles that * * * run by turning on wheels." Mayor, etc., of City of New York v. Third Ave. Ry. Co., supra; East St. Louis Connecting Ry. Co. v. O'Hara, 1894, 150 Ill. 580, 587, 37 N.E. 917. As so used we think it fairly includes freight carrying trucks.
In 1886, this court passed upon an analogous proposition in Franklin v. Northwestern Telephone Co., 69 Iowa 97, 28 N.W. 461. Prior to 1897, the statute included "telegraph companies", but did not contain the words "telephone companies".
In that case the court interpreted the words "telegraph companies", as used in the statute to include "telephone companies", and held that telephone companies were subject to the provisions of the act although not specifically mentioned therein.
We conclude that the trucks of Bruce Transfer Company, operating as common carriers of freight on a fixed schedule and over a regular route between Des Moines and Kansas City, did constitute a "line of cars" within the intent and purview of Code section 11041. Therefore, the venue of the action was properly fixed in Clarke county, and the overruling of petitioner's motion for change of venue was correct. — Writ annulled.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434542/ | The accident involved in this case occurred at about 3:25 p.m. on November 21, 1935, within the city limits of Ottumwa, on the south approach to the Vine Street bridge crossing the Des Moines river, at a place where a driveway, leading from a rock quarry, enters the approach.
Vine Street runs in a northeasterly and southwesterly direction, but in the record is usually indicated as north and south, and that is the way we will refer to it. Where it crosses the Des Moines river there is a bridge that has a roadway for two-way traffic but is hardly wide enough for three cars to pass at the same time. Along the east side is a sidewalk, about five feet wide, provided for pedestrians. The girders are on the west of the walk and on the east it is protected by a metal fence or guard rail. Extending south from the bridge for a considerable distance (approximately several blocks) is a dirt-fill, which is used as the south approach. It has a fence or guard rail on either side. The road for vehicular travel is an extension of the roadway of the bridge. On the east side of the fill there is a sidewalk, which extends south from the sidewalk of the bridge. The roadway where the vehicles travel on the approach is seventeen feet in width and the sidewalk to the east of it is five feet in width. Commencing at a point 77 feet south of the south end of the bridge proper, on the east side, there is an opening which extends about eighteen and a half feet north and south, to give access to a driveway leading east from the approach to what is designated *Page 445
as the rock quarry. The quarry driveway as it extends east from the opening is filled ground and not surfaced, and the traveled portion of it is sixteen feet and six inches from shoulder to shoulder. Leaving the approach of the bridge, going east, the quarry driveway slopes downward. This road is used as an access to the rock quarry which has for some time been operated by Wapello County to secure materials used in building and repairing highways. On the day of the accident a truck, owned by Wapello County and driven and operated by Fred McMillin, was returning to the quarry to secure another load of crushed rock after having delivered one to the place where the highway improvements were being made.
Verne Montanick, who was sixteen years of age, and a student at the Ottumwa High School, was returning to his home on the south side of the Des Moines river, the high school being on the north side. He was riding a bicycle which he had for some time used in going back and forth from home to school. He was accompanied by William Dungan, a boy of about the same age, also a student at the high school, who too was riding a bicycle. As they crossed the bridge these two boys were riding on the sidewalk provided for pedestrians, on the east side of the Vine Street bridge, Verne being ahead of his companion about fifteen or twenty feet. "They were traveling about as fast as a boy could run," is the way they described it. There is, of course, a dispute in the testimony, which we will later go into in detail. According to the boys' story, as they crossed the bridge and approached the south end thereof, they noticed a dump-truck traveling west, coming out of the quarry to the approach of the bridge. At that time Verne was just leaving the bridge, which was about 77 feet north of the opening to the quarry road. He slowed down so that the truck could pass out of the quarry driveway onto the approach.
Fred McMillin was driving a truck belonging to Wapello. County. It was a Ford V-8, 1 1/2-ton, 1933 model, with a long wheel base. It had a home-made bed, with a bottom drop, and was capable of hauling about four yards of rock at a time. The length of the box was nine feet, four inches. The sides were made of two-inch boards, set with 4 x 4 braces. The bed was attached to the chassis of the truck by clamps. There was a cab, the back of which was about four inches in front of the bed. The cab was enclosed and protected like any truck. There was *Page 446
a window in the back, which was stationary, and there were windows at the sides. There was a door on either side. McMillin was driving south on the west side of the bridge, and, he testified, before he turned the truck he opened the door on the left-hand side and looked back. However, there is evidence from which the jury could find that this was some ways back on the bridge, for McMillin testified that he did not see the boy. In addition to this, the negligence alleged was the failure to maintain a proper lookout at the time he drove across the sidewalk, where this accident happened. Had McMillin looked to the left at that point he was bound to have seen the boy, but according to his testimony, he never did see the boy. When he drove into the opening of the quarry road he noticed quite a bump, which he said he thought was unusual, stopped the truck, got out, and found that he had run over Verne Montanick. He immediately took the boy to the hospital, where it was ascertained that Verne was very severely injured, having several fractures. He was confined to the hospital for a period of weeks.
As a result of the accident this lawsuit occurred. It was brought by Verne Montanick by his next friend, John Montanick, his father, against Fred McMillin, the driver of the truck, and Wapello County, seeking damages in the amount of $27,075. There was a trial to the jury. Before the case was submitted plaintiff dismissed the cause of action as against Wapello County. The jury returned a verdict of $5,000 against Fred McMillin. Being dissatisfied, he has appealed.
I. The first question that confronts as here is appellant's contention that the lower court erred in not sustaining the motion to direct a verdict, because "the evidence showed that Verne Montanick was guilty of negligence which contributed to the accident and the injuries sustained by him."
[1] It is the contention of appellant that there is little dispute in the evidence. True, there is not the dispute in this case we usually find in automobile cases. However, in regard to how the accident really happened there is a sharp conflict between the parties and the witnesses. It is the appellant's claim that when he drove across the Vine Street bridge, into the entrance of the driveway to the rock quarry, he made a sharp turn and that that put his truck in front of the boy as he came along on the bicycle. The peculiar thing about this theory is that if he, McMillin, made that sharp turn and drove directly into the *Page 447
entrance he should have been able to see the boy as he rode along the sidewalk. It must be kept in mind that the boy had a perfect right to ride upon the sidewalk; and that appellant knew he was going to cross a sidewalk used by pedestrians and others; and that he did not see the boys on their bicycles. It is the contention of the appellee, and there is evidence to bear it out, that appellant curved into the opening to the approach to the quarry, and that by so doing he drove up behind Verne Montanick rather than in front of him. The boys both testified they did not see the truck until Verne's bicycle was practically up against the truck. He was riding slowly, grabbed the box of the truck and hung on for some little distance, finally losing his hold and falling under the rear wheel.
Appellant places great reliance upon the fact that the boys testified there was a sharp, cold wind blowing from the southwest and that Verne, in order to keep his ears warm, put his hand to the side of his head. He would have you understand the evidence shows the boy was covering his eyes. We do not so read it. In fact, Verne testified that he changed hands, putting his hand over his right ear at one time and then shifting to the other hand and putting it over the other ear. Clearly, there is a dispute in the record in regard to this, and it was for the jury to pass upon.
In the case of Perkins v. Schmit Co., 215 Iowa 350, at page 353, 245 N.W. 343, at page 345, this court said:
"Under the assumption aforesaid, it now becomes necessary to determine whether Milford Perkins at the time in question was guilty of contributory negligence. Generally speaking, contributory negligence is peculiarly a question for the jury, rather than for the court to decide. Murphy v. Iowa Electric Company, 206 Iowa 567, 220 N.W. 360, and cases therein cited."
We read, in the case of Holderman v. Witmer, 166 Iowa 406, at page 410, 147 N.W. 926, at page 928:
"It is urged by the appellee that the plaintiff failed to prove want of contributory negligence. This question was not considered by the trial court. If the point were well taken, however, it would furnish a sufficient reason for refusing a new trial and affirming the case. We are satisfied, however, that the point is not well taken. * * * The fact that the automobile came *Page 448
from behind, that it was turning in from Locust street, that it was widening the zone of danger by moving diagonally southeast, are all circumstances favorable to the decedent on the question of contributory negligence. It is sufficient to say briefly that, the evidence being sufficient to go to the jury on the question of Larson's negligence, and no conclusive contributory negligence being disclosed, the case was clearly for the jury."
This court, in the case of Smith v. Spirek, 196 Iowa 1328,195 N.W. 736, 737, said:
"The controlling question in the determination of the instant appeal involves the doctrine of contributory negligence. The decisive fact questions relate to the credibility of two sharply defined and diametrically opposed versions of the circumstances and occurrences of the accident giving rise to the claimed damages."
In the very recent case of Huffman v. King, 222 Iowa 150,268 N.W. 144, we find the following at page 154,268 N.W., at page 147:
"It is the well settled rule of law in this state that if there is any evidence tending to establish plaintiff's freedom from contributory negligence, that question is one for the jury. Allender v. Railroad Co., 37 Iowa 264; Fitter v. Telephone Co.,143 Iowa 689, 121 N.W. 48; Holderman v. Witmer, 166 Iowa 406,147 N.W. 926; Nelson v. Hedin, 184 Iowa 657, 169 N.W. 37; Barnes v. Barnett, 184 Iowa 936, 169 N.W. 365; McSpadden v. Axmear,191 Iowa 547, 181 N.W. 4; Read v. Reppert, 194 Iowa 620, 190 N.W. 32; Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432; McWilliams v. Beck, 220 Iowa 906, 262 N.W. 781; Enfield v. Butler, 221 Iowa 615,264 N.W. 546; Roberts v. Hennessey, 191 Iowa 86,181 N.W. 798."
Verne Montanick was on the sidewalk, in a place of comparative safety. He was proceeding at a slow rate of speed, looking ahead. He saw the truck that came out of the driveway from the quarry. He and his companion both testified that they did not see the truck driven by appellant until it cut in behind them. Appellant, the driver of the truck, did not see the boys and yet he says he was watching. Clearly, in view of such a record the question of whether the boy was guilty of contributory *Page 449
negligence was for the jury. The jury had an opportunity to observe the witnesses on the stand, and, after being fully instructed by the court, found the appellee was not guilty of contributory negligence.
[2] II. It is claimed the court erred in not withdrawing from the jury the specification of negligence charged in the petition that McMillin did not keep a proper lookout.
Again we must call attention to the difference in the theories of how this accident happened. It is appellant's theory that he made a square turn and that he was across the sidewalk before Verne Montanick ran into him, whereas it is the appellee's theory that he reached the crossing first and that McMillin's truck came from behind him. There is the evidence of these two boys, who are the only eye witnesses to just what happened, altho there was one witness, who was down near the quarry, some distance away, who claimed to have seen part of the accident. Both of the boys testified that the truck came up from behind them. If it did, then, clearly, McMillin did not maintain the proper lookout, for he himself testified that he did not see the boys. He must have come from behind the boys unless he made an absolutely square turn when he headed into the approach to the quarry. He was on the opposite or west side of the approach, and it was necessary for him to cross to the east side to reach the road to the quarry. He did not stop before he started to cross. It is true, he testified that he looked back along the bridge to see if anyone was coming behind him, and that he opened the door to show he was going to make a turn. He sounded no horn, and his own testimony shows that he did not see the boys. Clearly, the question of whether he maintained a proper lookout was one for the jury to pass upon.
[3] III. It is next claimed by the appellant the court erred in permitting counsel for appellee to ask the sixteen jurors then in the box on voir dire examination whether they or any of their family were stockholders, officers or employees of a certain insurance company, and again asking the same question of Mrs. Anna Bissell, subsequently called for examination.
It must first be noted that the objection was made to the question, but there was no motion made to discharge the jury and for a new trial.
This question has been before us on many recent occasions. *Page 450
In the case of Raines v. Wilson, 213 Iowa 1251, 239 N.W. 36, this court said at page 1262, 239 N.W., at page 40:
"The question which we are now considering has been passed upon by numerous courts, including our own. The overwhelming majority of the courts sustain the right of counsel for the plaintiff, in a personal injury case, so long as he acts in good faith for the purpose of obtaining information upon which to exercise his peremptory challenges of the jurors, and not for the purpose of informing the jury that an insurance company is back of the defendant of record, to interrogate prospective jurors by one form or another of questions, with respect to their interest in, or connection with, insurance companies. See 56 A.L.R., pages 1456, 1457, 1458. Twenty-seven of our sister states have passed upon the question and sustained the plaintiff's right to propound an inquiry such as was the one propounded in the instant case. See Note in 56 A.L.R., pages 1456-1458, and cases there cited. It is clearly apparent that, if a litigant were denied the right to propound the question asked the jurors in the instant case, he might be compelled to accept a juror who is a stockholder in an insurance company, and probably the very one having defendant's liability insured. In the instant case, plaintiff's counsel who propounded the interrogatory was a nonresident of the county in which the case was tried. There is nothing unusual for jurors to own stock in corporations. Appellee in his written argument brings us the information that the Financial World of March 25, 1931, shows that of the families in the United States 27.2% thereof own stock in corporations. There was nothing odious in the general question propounded. We think it was a proper question to be asked, for the purpose of informing counsel relative to his right in exercising peremptory challenges, and, as held by our prior cases hereinbefore cited, that there was no abuse of discretion on the part of the trial court. There is nothing in the record to show want of good faith on the part of plaintiff's counsel; nothing to show a willful, diligent or persistent course or effort to impress upon the jury the fact that defendant's liability was insured."
In Olson v. Tyner, 219 Iowa 251, at page 255, 257 N.W. 538, at page 540, we read:
"Appellants' counsel desired to have the question continued *Page 451
over until all of the prospective jurors had been questioned. Counsel for appellee, however, asked all of the sixteen jurors whether or not they were interested in any liability insurance company, and asked that if anyone was interested he should hold up his hand. No hands were raised. The selection of the jury then proceeded, and, after five peremptory challenges had been exhausted, three on the part of the appellee and two on the part of the appellants, the counsel for appellee proceeded to examine the additional six called to the box as to whether they were connected with any liability insurance company."
And at page 256 of 219 Iowa, page 540 of 257 N.W.:
"Attorneys for the appellee had a right to ascertain whether or not any of the prospective jurors were interested in liability insurance companies. The necessity of this is proven in this case by the fact that the agent of the company that carried the liability insurance the appellant Thomas Tyner had on his car was one of the prospective jurors called. The manner in which the attorneys for the appellee handled this matter seems to us to show that they had no desire to inject the question of insurance into this case, but they had a desire, and rightly so, to determine whether or not any of the prospective jurors were interested in liability insurance companies, and, as it happened, the very agent of the insurance company that wrote the liability policy was one of the prospective jurors. We believe that the lower court was right in overruling the motion to discharge the jury and continue the case."
There is no evidence in this record that counsel for appellee was guilty of any persistence in bringing up the matter of insurance. Wapello County, where the case was brought, is a comparatively small county, with the greater proportion of its population living in Ottumwa, a city of some thirty thousand residents. In such a city attorneys do not know the occupation of the prospective jurors, and naturally they desire to ascertain same before selecting them for jury service.
IV. We come now to the difficult question involved in this case, and in the solution of same we have been greatly assisted by the able briefs filed by the friends of the court on both sides. *Page 452
In this case the court had more friends than in any case that has been submitted in years.
It must be conceded that this case is on all fours with the case of Hibbs v. Independent School District, 218 Iowa 841,251 N.W. 606, and that, unless this court, as it is now composed, is in favor of overruling that case, the lower court erred in not sustaining the motion for a directed verdict on this ground alone.
[4] Liability of Fred McMillin is not predicated upon any relationship growing out of his employment, but is based upon the fundamental and underlying law of torts, that he who does injury to the person or property of another is civilly liable in damages for the injuries inflicted.
[5] Every case which allows recovery against a servant can be based upon the fundamental proposition that that servant violated or breached some duty that he owed to the person injured. It may be an act of misfeasance, nonfeasance or malfeasance. An example of the dilemma in which the courts finally arrive in their effort to apply the rule, is shown in the case of Southern Railroad Company v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am. St. Rep. 191. Here a railroad engineer was held personally liable for one injured at a highway crossing by his failure to give the required signals, and when it was argued that the failure to give the required signal was an act of nonfeasance the court said:
"The engineer having once undertaken in behalf of the principal to run the train, it was incumbent upon him to run it in the manner prescribed by law; and a failure to comply with the law, although it involved an act of omission, was not an act of mere nonfeasance, but was an act of misfeasance."53 S.E., at pages 245, 246.
How much better it would have been in the above-cited case merely to have stated that the failure to blow the whistle was a breach of a duty owed to the injured person and consequently the engineer, who was guilty of this breach of duty, was liable.
There is a very interesting and able discussion by Justice Faville in the case of Emery v. American Refrigerator Transit Co., 193 Iowa 93, 184 N.W. 750, 20 A.L.R. 86.
Here an action was brought against a refrigerator company to recover damages claimed to have been suffered by the plaintiff *Page 453
because of the negligent and careless manner in which the refrigerator company performed its work of loading and icing cars. The carrier was not sued, and the refrigerator company was under a contract with the carrier to load and ice the cars. The action was in tort, and there was no contention that there was any privity of contract between the plaintiff, shipper, and the defendant refrigerator company. Many cases are reviewed in that opinion, which held that an action against the refrigerator company could be maintained. The court quotes extensively from a number of cases, including Delaney v. Rochereau, 34 La. Ann., 1123, 44 Am. Rep. 456:
"Everyone, whether he is principal or agent, is responsible directly to persons injured by his own negligence in fulfilling obligations resting upon him in his individual character and which the law imposes upon him, independent of contract. No man increases or diminishes his obligations to strangers by becoming an agent. If, in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either, by his negligence, in respect to duties imposed by law upon him in common with all other men." Page 104 of 193 Iowa, page 754 of 184 N.W.
The court finally held:
"We therefore hold that for misfeasance in the performance of its contract with its principal, which misfeasance caused injury to appellee's property, the latter had a right to action in tort against appellant." Page 105 of 193 Iowa, page 754 of 184 N.W.
[6] The doctrine of respondent superior, literally, "let the principal answer," is an extension of the fundamental principle of torts, and an added remedy to the injured party, under which a party injured by some act of misfeasance may hold both the servant and the master. The exemption of governmental bodies and their officers from liability under the doctrine of respondeatsuperior, is a limitation or exception to the rule of respondeatsuperior, and in no way affects the fundamental principle of torts that one who wrongfully inflicts injury upon another is liable to the injured person for damages.
In the case at bar we are confronted with an act of misfeasance on the part of an employee of a county. *Page 454
[7] In the case of Hibbs v. Independent School District,218 Iowa 841, 251 N.W. 606, this court made no distinction between acts of misfeasance and acts of nonfeasance. However, it is interesting to note that the cases cited and relied upon in the Hibbs case are all cases of nonfeasance and there is not a single case cited that holds the agent or employee is not liable for an act of misfeasance. It is a well-established rule in this state that counties are not liable for torts growing out of the negligent acts of their agents or employees. Hilgers v. Woodbury County, 200 Iowa 1318, 206 N.W. 660. Nowhere, except in the Hibbs case, do we find that the agent or employee himself, when sued as an individual, rather than in his official capacity, is not liable for acts of misfeasance, that is, a positive negligent act which caused injury and damage to another.
In Iowa there is an exceptionally good statement of the law in the case of Rowley v. Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375. Here the City Commissioner was looking after business of the city, and the plaintiff was struck by an automobile alleged to have been operated under the personal direction of the defendant commissioner. Both the city and the defendant commissioner filed demurrers to the petition. The trial court sustained both demurrers. On appeal the ruling of the trial court sustaining the demurrer as to the city was sustained, but the ruling sustaining the demurrer as to the defendant commissioner was reversed. In that case the court said at page 1250, 212 N.W., at page 160:
"If it should be conceded, as the demurrer assumed, that Kennedy was engaged in the performance of a governmental duty in proceeding from one point to another on the city's business, still we think the demurrer on his behalf was improperly sustained.
"We have held, it is true, that an agent who performs a governmental function on behalf of a county is no more responsible for negligence in so doing than the corporation for which he acts. Snethen v. Harrison County, 172 Iowa 81,152 N.W. 12; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80. In these cases, negligence was charged on the part of the members of the board of supervisors in respect to permitting various defective conditions to exist in a public highway. In great measure, the acts charged as negligence were acts of nonfeasance, *Page 455
and they all related to alleged negligence in respect to the condition of the highway and the things done or omitted in preparing it for use. In Wood v. Boone County, 153 Iowa 92,133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070, where it was said that it would be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act, done under express authority, the act complained of was one of nonfeasance, — the failure to furnish relief to a pauper. We recognizearguendo that, if the agent undertook to furnish relief, he might be personally liable for a negligent performance, although the county would not. We think that these cases and the doctrine there announced have no application to the facts pleaded here. Aside from the distinction between a county and a city, which would perhaps not be controlling where the officer of a city was engaged in the performance of a governmental duty, there is a well recognized distinction between acts of nonfeasance and those of misfeasance, and also, we think, so far as the personal liability of the agent is concerned, between an act of negligence which is committed while the agent or officer is engaged in the performance of an official duty, but which is otherwise unrelated to such duty, and the negligent performance of the duty itself. Could it be said that a member of the board of supervisors, when traveling in performance of his official duty to repair a highway, could escape personal liability for an injury negligently inflicted upon one whom he met on the way, because of the official character of his errand, although he would not be liable for a negligent performance of his mission to repair the highway? In Goold v. Saunders, 196 Iowa 380, 194 N.W. 227 we said:
"`A public official may be guilty of negligence in the performance of official duties for which his official character gives him no immunity.'"
Public service should not be a shield to protect a public servant from the consequences of his personal misconduct.
The New Jersey court in the case of Florio v. Mayor and Aldermen of Jersey City, 101 N.J.L. 535, 129 A. 470, at page 471, 40 A.L.R. 1353, at page 1356, said: *Page 456
"But it would be a travesty upon both law and justice to hold, that, because of the gravity and importance of the duties cast upon him, he has become clothed with the privilege, while in the act of performing such duties, to thrust aside all ordinary prudence in driving along the public streets to the great hazard of life and limb of men, women, and children of all classes and conditions, who may be upon the public highway. He must answer for his negligence, though in the performance of a public duty, in the same manner as if he were an individual in private life and had committed a wrong to the injury of another. The servant of the municipality is required to perform his duty in a proper and careful manner, and when he negligently fails to do so, and in the performance of his duty negligently injures another, his official cloak cannot properly be permitted to shield him against answering for his wrongful act to him who has suffered injury thereby."
The Connecticut court in Voltz v. Orange Volunteer Fire Association, Inc., 118 Conn. 307, 172 A. 220, 222, said:
"This claim involves a misconception of the doctrine of governmental immunity, which does not extend to the protection of the employee of the municipality from the consequences of his own negligence. The driver of a fire truck is liable to one injured by his negligent driving, though the municipality employing him is exempt from liability. Florio v. Jersey City, 101 N.J.L. 535,129 A. 470, and cases cited in the annotation to that case in40 A.L.R. 1358."
Very recently the Court of Appeals of the City of New York had occasion to consider this question in Ottmann v. Incorporated Village, 275 N.Y. 270, 9 N.E.2d 862, 863, 864, where it was held:
"Sound public policy requires that one injured by the negligent act of another engaged in a public service should be permitted to recover the damages suffered as a result of such misconduct. Public service should not be a shield to protect a public servant from the result of his personal misconduct. How inequitable the contrary rule would be is illustrated by the case at bar. Although the jury has found that intestate met his death as a result of the negligence of the respondent driver of the fire truck, the municipality is not liable and we so decided. *Page 457
If it be held that the driver is also free from liability, there would be no liability on the part of any one for the negligent act which caused decedent's death. We believe the law to be that a servant, agent or officer of a municipality is required to do his work in a reasonably careful manner and that if he fails to do so and another is injured because of his negligence he is personally responsible, the same as any other person who has by his misconduct caused injury."
It is interesting to note that the New York court in that decision quoted from this court's opinion in the case of Rowley v. Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375.
In the case of Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473, in a well-considered opinion in which authorities are extensively reviewed, the supreme court of Massachusetts said the principle underlying the rule that exempts public officers from liability for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasance of their servants or agents, but that:
"For a personal act of misfeasance, we are of opinion that a party should be held liable to one injured by it, as well when in the performance of a public duty as when otherwise engaged."188 Mass. 301, 74 N.E., page 369, 108 Am. St. Rep., page 477.
The California court in Perkins v. Blauth, 163 Cal. 782,127 P. 50, while recognizing that municipal corporations are not liable for dereliction or remissness of municipal officers or agents in the performance of public or governmental functions of the city, said that the agent would be responsible for his tortious acts, although the municipality would not.
In Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A.L.R. 192, where a police officer on a motor cycle struck and injured a child, that court said:
"Nor is a peace officer exonerated from liability for an injury inflicted while in the discharge of official duties on another on the ground of public necessity if the officer failed to exercise reasonable care for the protection of those whom he knew or by the exercise of reasonable judgment should have expected to *Page 458
be at the place of the injury, although he may not be criminally liable." 191 Ky. 532, 230 S.W., page 920, 18 A.L.R., page 194.
There is a well marked distinction between an act of an employee, agent or officer of the state or arm thereof, which is done as an act per se governmental in its nature and an act which, tho performed by the agent or officer while he is engaged in a public duty, is nevertheless unrelated to the performance of the duty in any other way. An employee of the county may, for instance, during the hours of darkness step into the driver's seat of an automobile, and without turning on the lights and on the wrong side of the street, with the lights at an intersection set against him, at an excessive speed, collide with a pedestrian lawfully crossing at the intersection. The fact that the negligent person is a governmental employee should certainly not exonerate him from the consequences of his negligence.
The distinction between acts of nonfeasance and misfeasance has been pointed out by this court. In the recent case of Smith v. Iowa City, 213 Iowa 391, at page 395, 239 N.W. 29, at page 31, this court said:
"It is a general rule that the neglect of a public officer to perform a public duty will constitute an individual wrong only when the person complaining is able to show that the act of the officer involved a duty owing to him as an individual, and that by the failure of the officer to perform his duty, the complainant has suffered a special and peculiar injury. The negligence, if any, of the individual members of the park board was the failure on their part to maintain the device or instrumentality in question in repair and in a safe condition for the use of the public; that is, they are guilty, if at all, of nonfeasance only. The distinction between acts constituting nonfeasance and acts constituting misfeasance is well pointed out in Rowley v. City of Cedar Rapids, supra."
An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved, and this general obligation to injure no man by an act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation. *Page 459
The laws of the state and nation must keep pace with conditions that exist. Where a rule has its origin in the decisions of courts it may be changed by the courts in the light of experience unless it has become fixed by constitutional or legislative provision. If the old rule is found to be unsuited to present conditions, or is unsound, it should be set aside and a rule declared which is in harmony with these conditions and meets the demands of changes. That the common law has within itself the quality and capacity for growth and of adaptation to new conditions, has been one of its most admirable features. The law has the inherent capacity to meet the requirements of the new and various experiences which arise out of the development of the country.
[8] Upon the question of the duty of courts to correct their own decisions when they are found to be wrong, no matter how long those decisions have stood and notwithstanding there has been no legislative change in the law as originally construed, we have the authority of the Supreme Court of the United States in an opinion handed down on April 25th of this very year, in the case of Erie Railroad Company v. Harry J. Tompkins, 304 U.S. 64,58 S. Ct. 817, 82 L. Ed. 1188.
In that opinion the Supreme Court of the United States overruled the case of Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, decided in 1842, which has been supported by such recent cases as Black White Taxicab Transfer Co. v. Brown Yellow Taxicab
Transfer Co., 276 U.S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A.L.R. 426. The rule in that case could have been changed by legislative enactment. In fact, many bills were introduced to change it, but Congress failed to act, and the Supreme Court of the United States, believing the decision wrong, by a 6 to 2 opinion, reversed the holding of that same court more than one hundred years before and followed continuously to the present time.
[9] And so this court, as now composed, after careful consideration, has come to the conclusion that the rule announced in Hibbs v. Independent School District is wrong, and the opinion in that case is overruled; that an employee of a city, county or state who commits a wrongful or tortious act, violates a duty which he owed to the one who is injured, and is personally liable. *Page 460
It necessarily follows that this case must be, and it is hereby, affirmed. — Affirmed.
STIGER, C.J., and RICHARDS, DONEGAN, MILLER, and SAGER, JJ., concur.
ANDERSON, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434543/ | [1] The appellee Baker is the owner and proprietor of the Baker Institute located at Muscatine, Iowa. The Baker Institute was established and is maintained for the purpose of treating certain diseases, particularly cancer, tumors, goiter, prostate gland troubles, stomach ulcers, rheumatism, gall stones and diabetes. None of the parties named as defendants in this action are, or have ever been, licensed to practice medicine in this state. As none of the defendants who were enjoined have appealed, we have only to consider the case against the appellee Baker. A brief recital of some of the more prominent facts in the case will help to more clearly understand the scope of the issue involved.
It is conceded that appellee is the owner of a secret formula, liquid in form, for the treatment of cancer and other diseases which was administered to patients in the Institute hypodermically. It is also conceded that the defendant Hoxsey was the owner and proprietor of a secret formula in the form of a powder which was also used in the Institute for the treatment of patients afflicted with cancer and other diseases. Some of the defendants and others employed at the Institute were known, and are designated in the record, as "treaters." It was the duty of the treaters to administer all treatments to the various patients in the Institute or housed in other buildings. Each prospective patient seeking entrance to the Institute underwent a medical examination by a licensed physician who entered his findings upon a blank diagnosis chart printed on yellow paper supplied for that purpose, which included the name of the patient, the history and previous treatment of the disease, so far as possible, and a statement of the nature, character and specific location of the disease from which the patient was suffering. The chart contained no blank space to be filled in showing the medicine or treatment to be administered. A number of the original charts duly filled out were introduced in evidence, to each of which there is attached a white card containing the signature of a *Page 573
licensed physician, which is designated as a treatment card. This blank card has a column headed "ailment," and one headed "treatment." Each of the treatment cards is signed by the physician in dark ink and the designation of the medicine to be used is written in the proper column in red ink or pencil. All of the treatment cards before us bear the signature of Dr. Bair, except one, which is signed "J.L. Statler, M.D." Statler was a licensed physician employed at the Institute. The diagnosis chart shows that patients were examined by Statler, some by Bair and some by Leffler. The secret formula of appellee is a liquid and designated on the treatment cards as "intra Int." No. 1 or No. 2. The Hoxsey formula is designated on the treatment cards as "powder No. 1."
So far as the record shows, the liquid and powder referred to were the only medicines used in the treatment of cancer, goiter and other diseases. No physician employed at the hospital knew the formula for compounding either the liquid or the powder. These compounds were strictly secret and, so far as shown, known only to Baker and Hoxsey respectively.
Drs. Arey, Bair, Barewald and Norton employed at the Institute at different times for brief periods all testified that they did not prescribe the treatment administered to the patients. Dr. Barewald testified that he visited some of the patients and to some extent observed the treatments given. The treaters did not administer the treatments under the direction or supervision of a physician. The quantity of the liquid to be administered and the place where the hypodermic needle was to be inserted were determined by them. The only aid they had was the general instructions. Perhaps this statement should be modified to the extent of saying that, generally, the treatments were administered without the aid or direction of a licensed physician.
A very large percentage of the patients treated were afflicted with cancer. The head nurse employed at the institution and other practical and trained nurses and some of the treaters testified that they had been given general instructions and understood from the location of the cancer or other disease as indicated on the chart where the treatment should be administered hypodermically without the specific aid or direction of a physician. It should perhaps be stated that the treaters and nurses understood that the secret compounds were always to be used in *Page 574
the treatments administered. The patients were, so far as possible, housed and treated in the Institute.
As stated, the sole question of fact to be determined by this court is: Has the appellee engaged in the practice of medicine without a license from the health department of the state of Iowa? It being admitted that appellee is not a licensed physician, the question of fact further reduces itself to the one inquiry: Does the record show that appellee was, or has been, engaged in the practice of medicine in the state of Iowa? Before proceeding further with the statement of the remaining facts, we desire to consider briefly what constitutes the practice of medicine in this state and what it is that is prohibited by the statute. The statutes of this state, so far as material, are as follows (Code, 1927):
"Sec. 2439. No person shall engage in the practice of medicine and surgery, podiatry, `osteopathy,' `osteopathy and surgery,' chiropractic, nursing, dentistry, dental hygiene, optometry, pharmacy, cosmetology, barbering, or embalming as defined in the following chapters of this title, unless he shall have obtained from the state department of health a license for that purpose.
"Sec. 2528. The opening of an office or place of business for the practice of any profession for which a license is required by this title, the announcing to the public in any way the intention to practice any such profession, the use of any professional degree or designation, or of any sign, card, circular, device, or advertisement, as a practitioner of any such profession, or as a person skilled in the same, shall be prima facie evidence of engaging in the practice of such profession.
"Sec. 2538. For the purpose of this title the following classes of persons shall be deemed to be engaged in the practice of medicine and surgery:
"1. Persons who publicly profess to be physicians or surgeons or who publicly profess to assume the duties incident to the practice of medicine or surgery.
"2. Persons who prescribe and furnish medicine for human ailments or treat the same by surgery."
The foregoing statutes have been repeatedly interpreted and construed by this court. State v. Bresee, 137 Iowa 673; State v. Edmunds, 127 Iowa 333; State v. Kendig, 133 Iowa 164; *Page 575
State v. Adkins, 145 Iowa 671; State v. Frutiger, 167 Iowa 550; State v. Zechman, 157 Iowa 158; State v. Corwin, 151 Iowa 420; State v. Hueser, 205 Iowa 132; State v. Hughey, 208 Iowa 842.
Interpreting and construing the statutes just quoted, we said in State v. Bresee, supra:
"The statute, as we have seen, specifically and separately enumerates each of these acts: (a) Publicly professing to be a physician and assuming the duties of the profession; (b) prescribing medicines for the sick; (c) prescribing and furnishing medicine for the sick, and provides that any person making a practice of either shall be held to be practicing medicine within the meaning of the law. It is quite clear from the statute that the Legislature did not understand that these phrases are merely different expressions of the same idea. Both expressions appear to have been used in order to bring within the scope of the act both the person who professes to be a physician and assumes the duties of that profession and the person who, while not claiming to be a physician, and not assuming the duties of the profession generally, yet undertakes to prescribe and furnish remedies for the sick and afflicted."
Similar statutes and definitions exist in most jurisdictions and are contained in the following cases: Fason v. State, 98 So. (Ala.) 702; Gobin v. State, 44 L.R.A. (N.S.) 1089; People v. Cole, 113 N.E. (N.Y.) 790; Commonwealth v. Zimmerman, 108 N.E. (Mass.) 893; Swarts v. Siveny, 85 Atl. (R.I.) 33; Ex Parte Greenall, 96 Pac. (Cal.) 804; Frazier v. State, 97 So. (Ala.) 251; Ex Parte Wideman, 104 So. (Ala.) 440; Williams v. Scudder, 131 N.E. (Ohio) 481; State v. Van Doran, 14 S.E. (N.C.) 32; State v. Smith, 135 S.W. (Mo.) 465; Smith v. People, 117 Pac. (Colo.) 612.
The record disclosed no occasion on which appellee actually administered or directly prescribed treatment to any patient, unless possibly those hereafter to be referred to. Proof of the actual treatment of patients is not, however, indispensable and other acts and things come within the prohibition of the statute. It is enough if it be shown that appellee prescribed the medicine or the treatment to be given the patients. It is contended by appellee, and the contention may be admitted, that he had a right to sell a proprietary medicine without a license to practice *Page 576
medicine. This right does not, however, authorize him to either prescribe or administer such proprietary medicine to patients.
There is, it seems to us, an effort on the part of many of the employees of the Institute who were called as witnesses to maintain an attitude of secrecy as to the actual internal working of the Institute.
Dr. Bair, a licensed physician, testified that he entered the Institute on May 31, 1930, for the purpose of examining prospective patients to determine their ailments and that he remained at the Institute, performing such duties, until the thirtieth of June following. Many of the treatment cards attached to the original diagnosis charts offered in evidence show that the patient was, in fact, examined prior to Bair's employment at the Institute. Bair testified that he signed hundreds of blank treatment cards and that he never signed one on which the designation of the disease or treatment prescribed was written.
Dr. Statler, said to be a licensed physician, who was not called as a witness by either side, was employed at the Institute and diagnosed many of the cases designated on the original charts that are in evidence. The evidence shows without conflict that the memorandum on the treatment cards is not in the handwriting of either Dr. Statler or Dr. Bair. The practice of having Dr. Bair sign blank treatment cards for some one else to fill out with the name of the ailment and the prescription to be observed in the treatment was obviously a mere effort to evade the law. Bair testified that he signed the treatment cards at the request or direction of appellee. No argument is necessary to demonstrate that the foregoing method constituted a violation of the statute. Dr. Bair could not, by affixing his signature to a blank treatment card to be pasted upon a diagnosis chart, made up many days before the same was signed by him, give any validity to the treatment previously or thereafter prescribed by some one else wholly without his knowledge. No one called as a witness by either party was, apparently, able to explain the exact course of procedure by which the secret formula of either appellee or Hoxsey was procured and furnished to the treaters for their use. There was a medicine room in the Institute presided over by some one or more persons not distinctly designated in the evidence. No licensed physician employed at the Institute knew *Page 577
the formula used in compounding either the Baker liquid or the Hoxsey powder.
The inference to be drawn from the established facts must be that appellee compounded the liquid and Hoxsey the powder. Neither was sold by the proprietor to the Institute. They were prepared and designed to be used by the treaters in the treatment of the various diseases to which we have already referred. We think it may be safely assumed as a necessary inference from the evidence that the drugs were furnished to the treaters by either the appellee or Hoxsey. Appellee received all of the compensation paid by patients at the Institute and we gather from the testimony that all contracts were made either with him or Hoxsey or by some one authorized by them to do so. Arrangement with each patient contemplated that either the Baker or Hoxsey treatments of the various diseases specified, and none other, would be used. The Institute was not and could not be licensed to practice medicine. State v. Bailey Dental Co., 211 Iowa 781; People v. Painless Parker Dentist, 275 Pac. (Colo.) 928; People v. California Protective Corp., 244 Pac. (Cal.) 1089.
Appellee is also the owner and publisher of a magazine known as "TNT". Numerous advertisements of the Baker Institute appear in this magazine in which the words "Our treatment for cancer" and similar expressions are employed. In the December 1929 issue of the magazine appears a page article under the caption "Chats with our Doctor" purporting to have been written by Charles Gearing "of the Baker Institute." Appellee must have known that Gearing was not a physician. In none of the advertisements does it appear that appellee, in terms, stated that he is a licensed physician or that he personally treats diseases. The purpose of the advertisements was obviously to inform the public concerning the Institute, its purpose and accomplishments. The inducement thus held out to the public was naturally designed to attract patients to the Institute for treatment. No instance is shown in the testimony in which appellee professes to diagnose or treat patients. The following particular occasions are emphasized by appellant as specific violations of the statute:
(1) Magnus Johnson, a patient at the Institute, was treated by Hoxsey who performed a surgical operation upon his head. The exact character of the operation is not shown but the wound *Page 578
or incision was sprinkled with a powder. The witness testified that appellee, as a part of the treatment, directed Johnson to go bare-headed in the sun.
(2) Hoxsey, called as a witness by appellant, testified that a patient complained to him that he had been given the hypodermic treatment with the result that he was rendered numb. The witness testified that he reported the incident to appellee who said "Go down and get the bottles at the treating room and stop them from using it." "More than likely the medicine was too strong." Appellee took the bottle, rubbed some of the liquid on his own hands and said "Well, no doubt, it is too strong." He then sent into the little drug room, up stairs, his private place known as the medicine room, took three bottles from the shelf, weakened the medicine and said "Take this back to them and tell them to give this to the patients this morning and you watch closely, Harry, and see if any of them are paralyzed."
(3) That on another occasion, appellee took a bottle of liquid to a party by the name of Webb who had sought admission to the Institute for treatment but, on account of his boisterous conduct, had been denied entrance, and gave it to him with oral directions to take it three times a day.
(4) A patient whose disease was diagnosed as appendicitis testified that she was told by appellee that, in the event of pain, to rub her abdomen downward and was advised by letter to put a plaster on it.
Appellee not having taken the stand in his own behalf, none of the above incidents were denied in testimony by him. Other witnesses to the Webb and Magnus Johnson transactions gave different versions thereof. Mrs. Webb, for instance, testified that the directions for administering the medicine were written upon a slip of paper pasted on the bottle and that she, and not Baker, administered the liquid to her husband.
It is strongly urged in behalf of appellee that he had a right to own, operate and control the Institute which they contend is, in fact, a hospital, and to employ licensed physicians to diagnose and treat patients therein. It is strenuously denied that appellee at any time or under any circumstances held himself out as a physician or claimed to be able to treat diseases or that he assumed to do so.
Appellee relies in support of his contention upon the following *Page 579
authorities: Tarry v. Johnston, 208 N.W. (Neb.) 615; State Electro-Medical Institute v. Platner, 103 N.W. (Neb.) 1079; In re Carpenter's Estate, 162 N.W. (Mich.) 963; Messner v. Board Dental Examiners, 262 Pac. (Cal.) 58.
Except Messner v. Board Dental Examiners, none of the foregoing cases are closely in point. They are readily distinguishable upon their facts. Appellee, as owner and proprietor of the Institute, was not a registered physician authorized to practice medicine, nor did he attempt to employ licensed physicians to diagnose, prescribe and treat patients in the Institute in accordance with their skill and judgment. All that was required of the licensed physicians employed by appellee was the diagnosis of the disease.
It was said in the district court of appeals, in Messner v. Board Dental Examiners, supra:
"A reasonable construction of the quoted provisions of the statute appears to be that, to come within the terms thereof, one must in some manner, to some extent, directly or indirectly, control or direct some professional service of the kind that dentists are licensed to render."
This language is pertinent to our discussion in this case. Dr. Bair testified that during the time he was at the Institute he observed appellee directing the treatment of patients; that he heard him say that he wanted the secret remedies used and none other. The veracity and good faith of Dr. Bair are challenged by appellee, but his testimony is, much of it, undisputed.
The right to lawfully practice medicine in this state is a personal one. To attain such right, certain statutory requirements must be complied with. The violation of the statutes quoted within the proper scope of the present inquiry to justify a decree herein as prayed must necessarily also be personal. In other words, to justify a permanent injunction, under the provisions of Section 2519 of the Code of 1927, against this appellee it must appear by a fair preponderance of the evidence that appellee has directly or indirectly done, or performed, such act or acts as fall within the definition of practicing medicine. Clearly, if the incident referred to in the testimony of Hoxsey concerning the effect of the Baker treatment upon certain patients is to be believed, then appellee prescribed the medicine and, in effect, *Page 580
directed the treatment to be administered. The liquid used in the treatment was diluted by appellee and Hoxsey was directed to return it and to take other bottles of the liquid given him by appellee to the treater in charge. The particular instances referred to above seem at least to illustrate somewhat the methods pursued at the Institute and the part taken by appellee therein. They are circumstances to be considered with all the rest of the testimony in determining the ultimate facts of the case.
To recapitulate, every patient in the Institute was there for treatment under some form of contract or arrangement with appellee. All of the medicine used in the treatment of the numerous diseases scheduled in the advertisements of the Institute consisted of a secret preparation owned by and known only to appellee, or powder furnished by Hoxsey. None of the treaters were licensed physicians, and, except in a few possible instances, the treatments were administered by the treater in accordance with his or her own judgment and in obedience, at best, to general instructions previously issued to the employees of the Institute and were not performed under the direction or control of a licensed physician. So far as appears from the original diagnosis charts offered in evidence, neither treatment nor medicine was prescribed by the examining physician. The treatment charts on which the disease and treatment were specified were not written by a licensed physician, nor does the record disclose by whom this was done. The medicine room in the Institute is designated by at least one witness as the private room of appellee. The secret of the formulas used at the Institute was carefully and scrupulously guarded by both Hoxsey and appellee. The compound used was not sold to physicians or to patients by appellee as the owner thereof, but was furnished by him, under his contract with the patients, directly to them without the aid of medical skill or advice.
The secret liquid preparation must have been furnished to treaters by appellee and this was without a prescription or by direction of a licensed physician. The preparations thus supplied were administered by treaters to hundreds of patients of the Institute. The trial court rightly held that, under the evidence, the co-defendants who were treaters in Baker's Institute were all practicing medicine within the purview of the statute. As already stated in this opinion, all of the defendants admitted *Page 581
that they did not have a license from the department of health of this state. The right of one neither a pharmacist nor licensed physician to manufacture and sell a proprietary medicine neither permits nor authorizes such proprietor to prescribe or administer the same to patients. State v. Cornelius, 200 Iowa 309; Gouy Shong v. Chew Shee, 150 N.E. (Mass.) 225. Medical practice acts are enacted for the protection of the public against the unskilled treatment of the sick or diseased by persons having neither the preparation nor the skill to diagnose diseases or to administer powerful and poisonous drugs. The welfare of the public is of the utmost concern in the enforcement of laws designed to guard and protect the public health. The merits of the secret formulas used in the treatment of cancer and other diseases is not of controlling importance in the decision of this case. Our concern is with the statute, which should be strictly observed. The legislature has seen fit to provide that any person engaging in the practice of medicine, without having first procured a license, may be permanently enjoined. The duty, upon a proper showing to grant such relief, is imposed upon the court by act of the legislature. It seems to us that the only conclusion to be drawn from the evidence shown in the record is that appellee was continuously engaged in the violation of certain definite provisions of the statutes of this state. Both the letter and the spirit thereof are being violated.
[2] II. Appellee pleaded a misjoinder of causes of action and of parties. While to justify an injunction against any one or more of the defendants, it was incumbent upon appellant to prove that such defendant personally performed some act or acts in contravention of the statute, it is nevertheless true that all of the defendants were engaged jointly and in co-operation in the furnishing or administering of the liquid and powder used in the treatment of patients in the Institute. The court did not, therefore, err in refusing to dismiss the petition upon the ground of a misjoinder either of parties or causes of action.
[3] III. A motion filed by appellee to dismiss the appeal was submitted with the case. The ground of the motion is that not all of the evidence taken upon the trial is contained in the abstract and, therefore, the cause may not be tried de novo. Appellee filed an amendment to the abstract. The transcript of the evidence is also before us. No doubt, much testimony deemed *Page 582
immaterial as against the appellee Baker is omitted from the abstract. The motion upon the showing made should be and it is overruled.
We feel that further discussion of any of the propositions urged and discussed by the respective parties is unnecessary and that the judgment of the court dismissing the petition as to appellee Baker cannot be sustained. The judgment and decree is, therefore, reversed and the cause remanded to the district court for decree in harmony with this opinion, or, if counsel prefer, a decree may be entered in this court permanently enjoining appellee from practicing medicine in this state without a license. — Reversed and Remanded.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4316784/ | Matter of Pilot Travel Ctrs., LLC v Town Bd. of Town of Bath (2018 NY Slip Op 06440)
Matter of Pilot Travel Ctrs., LLC v Town Bd. of Town of Bath
2018 NY Slip Op 06440
Decided on September 28, 2018
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 28, 2018
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. (Filed Sept. 28, 2018.)
MOTION NO. (539/18) CA 17-01703.
[*1]IN THE MATTER OF PILOT TRAVEL CENTERS, LLC, PETITIONER-APPELLANT,
vTOWN BOARD OF TOWN OF BATH, TOWN OF BATH PLANNING BOARD, MICHAEL LUFFRED, IN HIS OFFICIAL CAPACITY AS CODE ENFORCEMENT OFFICER OF TOWN OF BATH, LOVE'S TRAVEL STOPS & COUNTRY STORES, INC., RESPONDENTS-RESPONDENTS, ET AL., RESPONDENTS. (APPEAL NO. 1.)
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-03-2023 | 09-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3434546/ | DISSENT: Mitchell, J.
For convenience the appellant will be designated as the "Board". In July, 1939, and later, such proceedings were had by the appellee's board of directors as resulted in the certification of a tax levy for the general fund of $909,575. From this certification an appeal was taken to the Board by more than 170 taxpayers. After a hearing the levy was reduced in the sum of $28,555, leaving it at $881,020, the same amount it had been the year before. It should be noted that the expenses budgeted were $6,555 more than for the year before. The average monthly balance in the general fund for the first seven months of 1939 was $226,470 and the amount on hand in that fund on June 30th of that year was $298,675. The monthly balance in this fund averaged for the year 1938, $202,972.89, and for 1937, $115,919.74. In 1937 there was transferred from the general to the sinking fund, $50,300.
Much of the argument is devoted to a discussion of the question as to whether the appellee was required to operate on the fiscal or on a calendar year basis and the effect on the financial status of the appellee under the one or the other. Appellee argues that the fiscal year ends on June 30th and that if it were to operate on that basis there would be a deficit because taxes levied in 1939 would not be available until July 1, 1940.
Appellant in effect concedes this in this language:
"On this theory there perhaps might be a deficit in the general fund even though, as a practical matter, if the District maintained its present financial position there would always be an average monthly cost [cash] balance of $200,000.00 or better."
[1] We deem it unnecessary to discuss this phase of the case. Whether appellee's contention be sound as a matter of bookkeeping we need not determine; but when tested by the canons of plain common sense the argument that appellee, having on hand on June 30th a cash balance of nearly $300,000, is, on July 1st (not having spent a dollar meanwhile), "in the red" as the saying goes, is not persuasive. There is no claim made that the Board acted corruptly or with any intention or purpose other than to discharge the duties imposed upon it by law. Appellee argues in effect that because the Board's decision did *Page 926
not square with the views of the appellee's board of directors it was "illegal" and as a consequence could be challenged by a writ of certiorari. The trial court took that view and as a result we have the judgment of the district court substituted for that of the agency the legislature set up to determine and finally pass on such matters.
We hold that the trial court was in error. The reason for our conclusion will be more readily apparent if the character of these litigants be kept in mind. Both are creatures of the state, with the appellee in a position subordinate to that of the Board so far as its tax levies are concerned. The appellee is a school corporation. "It is a legislative creation. It is not organized for profit. It is an arm of the state, a part of its political organization. It is not a `person,' within the meaning of any bill of rights or constitutional limitation. It has no rights, no functions, no capacity, except such as are conferred upon it by the legislature. The legislative power is plenary. It may prescribe its form of organization and its functions today, and it may change them tomorrow." Waddell v. Board of Directors,190 Iowa 400, 406, 175 N.W. 65, 67. See also Scott County v. Johnson,209 Iowa 213, 222 N.W. 378; McSurely v. McGrew, 140 Iowa 163,118 N.W. 415, 132 Am. St. Rep. 248; C. Hewitt Sons Co. v. Keller,223 Iowa 1372, 275 N.W. 94; Boyd v. Johnson, 212 Iowa 1201,238 N.W. 61.
The case before us has its foundation in the action of the appellee under chapter 24 of the Code, 1939, the Local Budget Law. By chapter 91, Acts of the Forty-seventh General Assembly, section 390.5, Code, 1939, was added to the law as it theretofore existed. This declared, among other provisions:
"Review by and powers of board. It shall be the duty of the state board to review and finally pass upon all proposed budget expenditures, tax levies and tax assessments from which appeal is taken and it shall have power and authority to approve, disapprove or reduce all such proposed budgets, expenditures and tax levies so submitted to it upon appeal, as herein provided; but in no event may it increase such budget, expenditure, tax levies or assessments or any item contained therein."
And this too was added: *Page 927
"Decision certified to county. After a hearing upon such appeal, the state board shall certify its decision with respect thereto to the county auditor, and such decision shall be final. The county auditor shall make up his records in accordance with such decision and the levying board shall make its levy in accordance therewith." Section 390.7, Code, 1939.
The language of the statute brings it within the principles announced in Home Owners L. Corp. v. District Court, 223 Iowa 269,272, 272 N.W. 416, 418, and cases therein cited. We there quoted from Gisin v. Farmers Automobile Inter-Insurance Exchange,219 Iowa 1373, 1377, 261 N.W. 618, 620, as follows:
"`The legislature writes the laws, we construe them, and in that construction we are bound to follow the laws as laid down by the legislature, if we can discover what the legislation meant.'" See also State ex rel. Fletcher v. Webster County, 209 Iowa 143,227 N.W. 595.
[2] We are not unmindful of the provisions of section 12456, Code, 1939, which deals with certiorari nor do we overlook the fact that we have said that is a proper remedy where no appeal is provided for and there is no plain, speedy or adequate remedy elsewhere. But we have not decided in any case like this where the contending parties are agents of the state that the subordinate may question the decision of the superior agency when the decisions of the latter are by the very terms of the legislative mandate, final. These cases are cited by appellee and are distinguishable:
Jones v. Fisher, 156 Iowa 582, 137 N.W. 940; Haas v. Contest Court, 221 Iowa 150, 265 N.W. 373; Woodbury Conference v. Carr,226 Iowa 204, 284 N.W. 122; State Appeal Board v. District Court,225 Iowa 296, 280 N.W. 525; Bremer County v. Walstead, 130 Iowa 164,106 N.W. 352; and Lowden v. Woods, 226 Iowa 425,284 N.W. 155.
Of the above, Woodbury Conference v. Carr, supra [226 Iowa 204,209, 284 N.W. 122, 125], while seemingly an authority for appellee is not so in fact. We there considered the provisions of the statute requiring the board to finally dispose of appeals by October 15th of each year. Justice Miller, speaking for the court, said this provision appears "to have been *Page 928
enacted to secure the orderly and prompt discharge of the duties of the various officials and bodies involved. The time defined should be regarded as a command and obeyed. However, a mere delay of a few days will not invalidate the action of the board, defeat the purposes sought to be obtained and deprive the government of funds, essential to the discharge of its functions."
We conclude that the decision of the State Board being final, the trial court erred in attempting to nullify its action. Appellee's motion to dismiss this appeal has been considered and is overruled. — Reversed.
MILLER, C.J., and OLIVER, GARFIELD, BLISS, WENNERSTRUM, STIGER, and HALE, JJ., concur.
MITCHELL, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434548/ | The mortgage in suit was made January 5, 1928, and was for $8300. The mortgaged property consists of about two acres of ground, divided into many lots, and situated upon East 14th Street in the city of Des Moines. It comprises two residence houses, one of which was, at the time of the conveyance, occupied by the Boudinots as a homestead, and the other was rented to a tenant. This occupancy was begun by Lewis V. Boudinot and his then family in 1917. Prior to the year 1924 his wife died, survived by her husband and two children. In 1924 Boudinot married his present wife (Genevieve) and has continued to occupy the property with his family since that time. In December, 1926, this husband and wife conveyed this property, including both houses, to Birdie V. Chapman (sister of Lewis V. Boudinot), by a warranty deed with full covenants, subject, however, to liens of record. While holding the title thus conveyed, Birdie V. Chapman and her husband executed the mortgage in suit. There was no controversy or friction of any kind between the Chapmans and the Boudinots, either prior to, or since, the execution of the mortgage. They all testified that they acted in good faith in the negotiation and delivery of said mortgage. If they have since been guilty of bad faith, it is not as against each other, but against the plaintiff, and jointly. The contention of the Boudinots now is that the warranty deed was intended as a mortgage, to secure a debt owing to Birdie V. Chapman; that there was no intention on the part of the Boudinots to part with their homestead rights; that by the continued possession of the property they maintained their homestead rights; that the mortgage in suit was void as to them because they did not sign the same.
It appears on behalf of plaintiff that Chapman, the husband of Birdie, solicited this loan from the plaintiff, and that Boudinot was with him when he did it. Chapman represented to the plaintiff that his wife was the owner of the property. This was done in the presence of Boudinot, as the latter testified. *Page 740
The plaintiff went with them to view the property. Boudinot conducted him through the house which he was occupying. The other tenant conducted him through the other house. By this conduct the plaintiff was led to believe, and did believe, that Boudinot was the tenant of his sister on this property and that the other was tenant of the same purported owner. Upon the trial herein, Boudinot testified that he was not the tenant of his sister, but was in control himself of both properties, and collected rent from the other tenant.
Ignoring some of the facts herein suggested, the defendants contend broadly that they never parted with their homestead right, and that in some way they reserved it, and that it is superior to any rights accruing either to Birdie V. Chapman or to her mortgagee.
[1] Concededly it is open to a grantor to prove that his warranty deed was intended as a mortgage. The proof, however, of such a contention must be clear and convincing. At this point we defer the consideration of that issue, and consider first another feature of the case. For that purpose, and for the moment, we assume as true the following testimony of Mrs. Chapman as a witness for the defendants:
"Q. You tell in your own words what the agreement was at the time you took that deed. A. My brother owed us about $1800.00, and his health was not good, and so he wanted to secure us, andhis banker advised him to secure us, and he trusted me in thebelief that if anything should happen to him that I would care for the rest of the property for his children, what was left of it, and that is the way it was. Q. If Mr. Boudinot paid you the indebtedness which he owed you and your husband, what were yougoing to do? A. To deed it back."
It may be laid down as a self-evident proposition that the rights conferred upon Clark by the Chapman mortgage were at least equal to the rights conferred upon Birdie V. Chapman by the warranty deed. The evidence discloses that the property was incumbered for $8300, and that the purpose of the loan negotiated with the plaintiff was to meet that incumbrance, which had matured. The transaction was closed at the Peoples Savings Bank, where the other incumbrance was held. The *Page 741
plaintiff's check was turned in by the parties to the Peoples Savings Bank, and the previous mortgage was cancelled and delivered to the plaintiff. Not a dollar of the proceeds of the loan was diverted to any other purpose than to take up the existing incumbrance and thereby to conserve the property. Boudinot was present at this closing transaction. But even if he were not present, and even if he knew nothing about it at that time, could he challenge the transaction as against his sister and repudiate the right in her to effect this change of creditors or mortgagees for the purpose of conserving the property? If she had a claim upon her brother for $1800, it was nevertheless inferior to the existing mortgage. Her claim could not be saved to her out of the property unless she first paid the prior lien. If she had paid the lien out of her own funds, could Boudinot challenge her right to reimbursement? These questions quite answer themselves. The fact that there was an existing mortgage upon the property and that the loan from plaintiff was made for the purpose of discharging it and that it was thus discharged, is entirely ignored in appellant's opening argument. The question is met in the reply argument by the statement that:
"Nowhere in the record is there any testimony that the appellant Genevieve Boudinot ever signed any mortgage or deed
other than the mortgage which was signed in favor of Birdie V. Chapman."
Mrs. Chapman testified:
"Q. And you knew Mr. Clark was furnishing the money? A. Yes. Q. You was present up at the bank, were you, at the Peoples Savings Bank, when he turned the money over? A. Yes. Q. He turned over $8,300.00 and then that was used to pay off the incumbrances on the place? A. Yes."
Boudinot testified:
"Q. Was there anything said there by the Chapmans while you were present about how much money they would have to have? A. Yes. He told him he would have to have around $8,000.00; the loan was $8,000.00, and that he would have to have a little better than that. Q. It was going to take up another mortgage loan that you had made before you deeded it to Birdie? A. I presume so." *Page 742
The plaintiff testified in substance that the contemplated loan was to be for $8000, but was increased to $8300 because such an amount was necessary to discharge the existing mortgage. The denial in appellant's reply brief that there was any mortgage which had been signed by Genevieve is inconclusive. At the time the deed was made to Mrs. Chapman, the marriage of Genevieve was comparatively recent. Her husband had owned the property since 1917. If the existing incumbrance antedated the marriage, it was no less valid and enforceable because of the marriage. The marriage imposed no infirmity upon existing mortgages. Appellants make this further response in their reply argument:
"Appellants deny that there was a mortgage on the property which was a valid lien against the appellants' homestead, and appellants state that there has never been a mortgage againstthe homestead which could be validly enforced against it."
This denial presents only a legal conclusion, and is predicated wholly upon the mere absence of data from the record. The burden was upon the appellants, and not upon the appellee. The evidence shows that all the parties treated such mortgage, at all times prior to this suit, as valid and enforceable. That of itself is quite sufficient for our present consideration.
It is plain to our minds that, if Birdie V. Chapman had paid off the existing mortgage, she would have been entitled in equity to reimbursement. Nor would she be entitled to any less if she were to discharge the present judgment entered against her in favor of the plaintiff. And this is so on the theory of her testimony above quoted. The indications of the record are that she and her husband are safely insolvent and are quite fearless of the judgment. As witnesses, they have lent their aid freely to their brother. The right of plaintiff, as mortgagee under Mrs. Chapman, is quite equal to what her own rights would have been if she had advanced the funds herself.
Under the facts herein disclosed, plaintiff would have been clearly entitled to the remedy of subrogation, if he had asked it. That remedy doubtless would have furnished the simplest solution of the problem. Nevertheless the facts which would have justified such remedy are equally effective to repel the affirmative defense pleaded by the defendants. *Page 743
[2] II. Is the evidence sufficiently persuasive to support the contention that the warranty deed was intended only as a mortgage to secure $1800? An important burden of proof rests upon the appellants at this point. Only clear and satisfactory evidence can be accepted to warrant the conversion of a warranty deed into a mortgage security. It was incumbent upon the defendants to prove in such manner: (1) That the consideration for the warranty deed was an existing indebtedness, together with the amount of such indebtedness; and (2) that such indebtedness was not extinguished by the conveyance, but was kept alive. We have already quoted in the preceding division hereof the evidence of Mrs. Chapman on this subject. Boudinot testified as follows:
"Q. What was the purpose of the execution of the deed? A. To secure them for some money that I owed them. Q. Secure them? A. My sister and brother-in-law, her husband. Q. How much did you owe your sister? A. About $1,800.00. Q. What was the agreement you had with Birdie V. Chapman at the time you made the deed to her? A. She was to deed it back to us in case we paid her."
Chapman, the husband, testified as follows:
"Q. Do you remember what the agreement was with Mr. and Mrs. Boudinot with reference to these properties? A. Why, yes, she was to deed the place back to him when he paid the balance he owed. What he owed, I think was $1,800. A note that we had paid at the bank and the other bill that he owed me amounted to about $1,800."
The foregoing constitutes the entire evidence on this pivotal question. The existence of an eighteen hundred dollar debt is not ordinarily difficult of satisfactory proof. It is unlikely it could exist without some written evidence of it. If the indebtedness was the consideration for the warranty deed, then it was presumptively extinguished by the delivery of the deed. If otherwise, then the evidence of the debt must be in existence. Presumably the note, if any, would be drawing interest, and would be protected against the running of the statute of limitations. Under the testimony in this record, each witness testified to the amount of the note only as a matter of approximation. *Page 744
Why should the amount of the note be guessed if the note itself is in existence? No reason is suggested in the record why the note was not offered in evidence or produced. Sufficient to say at this point that the evidence as to the existence of the indebtedness at any time, and especially at the present time, is not clear and satisfactory. If the indebtedness ever existed, and if no note representing it is in existence at the present time, then inferentially it was extinguished by the conveyance of the property. The testimony, such as it is, fails to show that Boudinot was under any obligation to pay the alleged debt which formed the consideration of the warranty deed.
As against this frail evidence, we may consider the conduct of the parties as indicating their mutual understanding. As already indicated, all of them testified to their good faith in their dealing with the plaintiff. We may fairly accept their statement in that regard. Their conduct, however, was contradictory to their present testimony. They all declared in effect that Mrs. Chapman was the owner of the property. The mortgage, which was signed, recited such fact definitely. Under their present contention she was not the owner of the property. If she was not the owner of the property, her negotiation of the mortgage was a fraud, both upon her brother and upon the plaintiff. It could not have been a fraud upon her brother, because he was active in the negotiations with the plaintiff. If the present contention be true, then Boudinot himself perpetrated a fraud upon the plaintiff. Taking their conduct, therefore, as it appears from their own testimony, as the truer indication of what their understanding was as between themselves, it must be said that they regarded the deed as an absolute conveyance.
[3] III. Furthermore, let us assume for the moment that there was an oral reservation amounting to an equitable title binding upon the grantee. Did the plaintiff have notice of it? The argument for defendants is that their possession was notice of their rights. The legal proposition is sometimes so put in the books. It is not quite accurate as applied to all cases. Possession is ordinarily sufficient notice to put the purchaserupon inquiry. If the purchaser ignores the possession and fails to inquire, then he is charged with notice of such facts as an inquiry would have discovered. The rule under consideration is intended to bring to the party in possession full knowledge of *Page 745
pending negotiations, whereby he may assert his rights and impart notice to a proposed purchaser. When that opportunity is withheld from him, then his possession is deemed notice of all facts which he would have imparted if inquiry had been made. The rule has no function under the evidence in the present case. Boudinot and Chapman acted jointly in their application to the plaintiff. They asserted the ownership of the property to be in Mrs. Chapman, the wife of one and the sister of the other. Having imparted to him that information, they brought him to the property. Boudinot conducted him through the house in which he lived. At this point it is urged by the appellants that the plaintiff did not "inquire" of Boudinot what his rights were. This was a reason given by Boudinot, as a witness, why he did not tell him. This rule of law does not rest upon a merely categorical question and answer. In their first negotiations with the plaintiff they had anticipated all inquiries on his part on that subject. When they told him that Mrs. Chapman was the owner, he accepted the statement and relied on it. They knew that he was relying on it. Was he bound to distrust the statement and to cross-examine them upon it? Manifestly not. When the assertion of Mrs. Chapman's ownership was made to plaintiff in Boudinot's presence, for the very purpose of acquiring a loan upon the property, Boudinot became under duty to speak, if he believed the fact to be as he now claims. The legal effect of this circumstance is not so much that it operates as an estoppel, but that it operates as aperformance by the plaintiff of whatever duty he owed to the person in possession. Having performed that duty, and having failed thereby to elicit any warning from the party in possession that indicated any infirmity in the title of the proposed mortgagor, he is entitled to stand as a purchaser for value without notice. We hold at this point that the acts and attitudes of all the defendants clearly indicated their mutual understanding that there was no infirmity in the title of Mrs. Chapman; and that they imparted no notice or warning to the contrary.
[4] IV. Up to this point we have assumed, for the purpose of the discussion, that the possession of the property by Boudinot was sufficient of itself to put the plaintiff upon inquiry and to charge him with notice of all facts which such inquiry would have discovered. We now revert to the question whether such *Page 746
possession was effective to that end, and whether the rule of notice under consideration has any application to the grantors in a warranty deed who hold over after the execution and delivery of such deed. In McClenahan v. Stevenson, 118 Iowa 106, and later in Luckhart v. Luckhart, 120 Iowa 248, we held that a grantor in a warranty deed who continues to hold possession after the delivery of his deed is presumptively deemed to hold the same in subordination to the deed, and not in hostility thereto. The alleged possession, in order to constitute notice, must be in fact an adverse possession and hostile to the holder of the record title. In the McClenahan case (p. 112) we said:
"In such cases a grantor in possession is presumed, in the absence of a contrary showing, to be holding in subordination to the title of his grantee. McNiel v. Jordon, 28 Kan. 7. Of course, such a grantor may acquire title by adverse possession, even as against his warranty deed; but he must explicitly disclaim holding under his grantee, and openly assert his title in hostility to the title claimed under his own previous deed. Knight v. Knight, 178 Ill. 553 (53 N.E. Rep. 306); Stearns v. Hendersass, 9 Cush. 497 (57 Am. Dec. 65). But the mere fact that the grantor and his heirs remain in possession, enjoying the property in the same manner as they did before the conveyance was made, does not bind the grantee with notice of an adverse claim. Hennessey v. Andrews, 6 Cush. 170; Van Keuren v. Railroad Co., 38 N.J. Law 165; Paldi v. Paldi (Mich.), 47 N.W. Rep. 511; Ivey v. Beddingfield (Ala.), 18 South. Rep. 139; Evans v. Templeton, 6 S.W. Rep. 843 (5 Am. St. Rep. 71). Of course, if the grantor and his heirs remain in possession for the statutory period, openly claiming the land as their own, and this claim is made known to the grantee, either expressly or by implication, title may be acquired through such possession. Meeks v. Garner (Ala.), 8 South. Rep. 378 (11 L.R.A. 196); Knight v. Knight, supra. But he must openly claim the land as his own, and not under or by the permission of his grantee. The presumption, as elsewhere stated, always is that a grantor who remains in possession holds without claim of right, and by sufferance of his grantee."
The foregoing pronouncement was reaffirmed in the Luckhart *Page 747
case. In each of the cited cases, the grantor had continued in possession for many years after the delivery of his deed.
It was therefore incumbent upon the Boudinots not only to show their continued possession, but to show also that such possession was openly hostile to Mrs. Chapman. If the defendants in their possession recognized their subordination to Mrs. Chapman, as their grantee, then such possession could not be deemed hostile to her mortgagee. Otherwise the Boudinots could render the property immune from their own debts, by the execution of their warranty deed, and further immune from the debts of Mrs. Chapman by oral reservations wholly concealed from the public eye and wholly withheld from the public ear.
[5] V. Though the defendants Boudinot claim the mortgage to be invalid as to all the mortgaged property for want of authority to execute the same, yet the emphasis of their contention is directed to the homestead. Notwithstanding the execution of the warranty deed, they claim that in some way they carved out and reserved to themselves the homestead right. Manifestly there can be no homestead right without ownership, legal or equitable, of the homestead property. If their contention could be sustained as against their grantee, that their warranty deed was intended as a mortgage only, then they would be the equitable owners of the property, and their right to homestead could be predicated on such ownership. But even so, their right of homestead would not become superior to their alleged mortgage, nor superior to the rights arising thereunder, nor superior to the existing liens, nor superior to the rights of mortgagees or purchasers from Mrs. Chapman, for value without notice. For the purpose here indicated, the warranty deed, duly signed by both husband and wife, was a complete subordination and waiver of all the rights of both husband and wife, including homestead and dower. Code Section 10051. That is to say, if they had successfully retained, by oral reservation, an equitable ownership upon which the right of homestead could be predicated, yet such equitable ownership would be subordinate to the power conferred by the warranty deed upon its grantee.
[6] Appellants rely upon one circumstance as being sufficient evidence of the reservation and of notice thereof to the appellee. The deed was duly recorded. The public record thereof was put in evidence. It appeared therefrom that the recording *Page 748
of the deed was done by copying the same into a blank form upon a page of the public record. The printed portion of this blank form upon the record in its original condition included language by which a wife affirmatively relinquished all right of dower and homestead. The word "homestead" was erased upon such form. It is contended by the appellants that this erasure upon the record is evidence that the same erasure or alteration was made upon the deed itself; that therefore the erasure operated as a reservation of the homestead, and as notice to the plaintiff of such reservation. The point is clearly untenable. If such an erasure upon the deed itself could operate as an affirmative reservation contradictory to the covenants of the deed, then the deed itself should have been produced and offered in evidence. It was not produced. The erasure on the printed form of the record was no evidence that a like erasure existed upon the deed. The erasure upon the record may have been made in conformity to the original condition of the printed form of the deed, and thus we must presume, in the absence of a showing otherwise. Moreover, the erasure of such word, even though it were made in the deed itself, could have no legal effect whatever. It was entirely immaterial whether the word "homestead" was included or not, in the recitals of the deed. Whether included or omitted, the legal effect of the conveyance was the same.
The district court entered decree for the plaintiff. Its decree is accordingly — Affirmed.
FAVILLE, C.J., and MORLING, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434550/ | Appellee is a resident of the city of Fort Dodge, Iowa. At the time which is pertinent appellee had written contracts with a number of merchants in Fort Dodge by which he agreed to deliver parcels of merchandise to the customers of such merchants. The parcels of merchandise were gathered from the various merchants and were brought to a building maintained by appellee where the parcels were sorted into routes after which the packages for the various routes were loaded in trucks and delivered by appellee. Appellee rendered this delivery service only to merchants who were under contract with him. The business in which appellee was engaged had been in operation for a number of years and the record leaves no doubt but what at the time this action was commenced it was being operated on the same plan under which it had been operated for a number of years. There is nothing in the record to suggest that the plan of operation was a subterfuge adopted for the purpose of enabling appellee to avoid regulation by the state as a common carrier of goods.
This action is prosecuted in the name of the state of Iowa for the purpose of restraining appellee from continuing his enterprise until after he has complied with the provisions of the Code requiring the operator of trucks used for the public transportation of freight for compensation to secure a permit and has complied with the various provisions of the Code relating to such transportation.
In argument counsel for appellant say:
"The question in the case at bar is whether the defendant is engaged in the public transportation of freight and subject to chapter 252-C1, Code 1931."
The first section of chapter 252-C1 is given over to a definition of terms. It provides:
"The term `motor truck' shall mean any automobile * * * used for the public transportation of freight for compensation, not operating between fixed termini, nor over a regular route."
This definition narrows the question which must be answered, and in the last analysis the vital question is whether appellee is engaged in the public transportation of freight.
When this question is resolved into terms having accepted legal significance, it becomes a question whether appellee is a common carrier of goods. State v. Campbell, 76 Iowa 122, 40 N.W. 100. *Page 856
It is not contended by appellant that the question should be considered in any other form.
Appellee contends that he is not a common carrier of goods because he renders his service only for the individuals, firms, and corporations with whom he has contracts. Appellant says that even though it is true that appellee performs his services only for those under contract with him, that fact is not controlling. It may be conceded as an abstract proposition that the position of appellant in this respect is correct for it is recognized by the courts that a carrier who renders his services under contract may still be a common carrier.
Appellee also contends that under all the facts he is not a common carrier. As the situation appeals to us, the vital consideration is whether the appellee has so provided and used his facilities as to give to others, than those under contract with him, the right to command the use of his transportation services. If under all facts and circumstances the situation is such that others have the right to use appellee's transportation facilities, he is a common carrier. If, on the other hand, appellee is under no duty to perform his services, except for those with whom he elects to contract, then he is not a common carrier of goods. In United States v. Louisiana P. Ry. Co.,234 U.S. 1, 34 S. Ct. 741, 746, 58 L. Ed. 1185, the Supreme Court of the United States says:
"It is the right of the public to use the road's facilities and to demand service of it, rather than the extent of its business, which is the real criterion determinative of its character."
The courts of last resort of practically every state have recognized that a right on the part of the public to demand service must exist before one engaged in transporting freight becomes a common carrier. See 10 C.J., page 39, section 9, and page 65, section 54, where decisions of more than 35 of the states are collected.
The record indicates that appellee has contracts to deliver parcels of merchandise for many of the merchants of Fort Dodge, but it does not indicate that he has a substantial monopoly of the business. The record does not indicate a situation in which any merchant in the city of Fort Dodge would encounter any particular difficulty in delivering or securing the delivery of his merchandise to his patrons without using appellee's facilities. It is commonly known that in cities like Fort Dodge many means for the solution of *Page 857
the delivery problem are available. In this situation neither public necessity nor convenience require that any merchant have appellee's facilities subject to his command. The record indicates nothing from which it can be inferred that the enterprise was intended for general public service at the time it was instituted, nor does it contain anything to suggest that the policy of the business has been changed in this respect in the interim. The only aspect in which appellee's enterprise can be said to be public is that the deliveries are made to the customers of appellee's patrons without distinction as to their identity or place of residence, other than that the service is confined to the city of Fort Dodge. But the delivery service is not performed for the individuals to whom delivery is made. Such service is rendered to the merchants who made the original sales. From the inception of the business, its service has been available only to those who contracted with appellee for it and in actual operation its service has been limited to those under contract for it. Appellee testified that he could handle more business and would be willing to contract to render his service to others, but he has never held himself out as being willing to perform his services for all merchants who might ask for it. He has clearly reserved to himself the right to contract with whom he desires. The manner in which the business was conducted has not been changed for the purpose of evading regulation, or for any other purpose. There is nothing in the physical situation or in the manner in which the business was either created or operated which gives the public the right to use appellee's facilities, and consequently it must be held that the appellee is not a common carrier of goods.
Appellant urges with vigor that the legislature intended, by the act under consideration, to regulate transportation facilities such as are furnished by appellee in the interest of public safety and in order that some revenue might be derived from the use of the highways furnished by the public. An examination of the acts of the legislature reveals that the field of motor transportation has been carefully examined and regulated by the legislature. If, in truth and in fact, it had been the design of the legislature to regulate transportation services of the character supplied by appellee, such intention would no doubt have been plainly expressed in the law. The act under consideration relates to the public transportation of freight. The transportation service rendered by appellee is purely *Page 858
private, notwithstanding the fact that the service is performed for a number of individuals.
Upon the trial of the issues in the lower court, the court found that the appellee was not a common carrier and dismissed appellant's petition. We have reached the same conclusion, consequently the decree of the trial court is affirmed. — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1749980/ | 646 F. Supp. 569 (1986)
Harold B. FINK, President Judge, Fifty-Fifth Judicial District, Potter County; People for Justice, Plaintiffs,
v.
SUPREME COURT OF PENNSYLVANIA; et al., Defendants.
Civ. No. 86-1405.
United States District Court, M.D. Pennsylvania.
October 30, 1986.
*570 Clifford A. Rieders, Rieders, Travis, Mussina, Humphrey and Harris, Williamsport, Pa., for plaintiffs.
Howland W. Abramson, Philadelphia, Pa., for defendants.
ORDER
MUIR, District Judge.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
I. Introduction.
On October 7, 1986, the Honorable Harold B. Fink and the People for Justice filed a complaint and a motion for a temporary restraining order. Judge Fink and the People for Justice request that we immediately restore Judge Fink to his full duties as President Judge of the Fifty-Fifth Judicial District, Potter County, Pennsylvania, and enjoin all proceedings of the Judicial Inquiry and Review Board of the Supreme Court of Pennsylvania (the Board) until such time as we rule upon whether a preliminary injunction should issue. A hearing after notice to the Defendants was held on Plaintiffs' request for a temporary restraining order on Thursday, October 9, 1986. Judge Fink testified that he has for all practical purposes been suspended without a hearing and that his decision whether to seek retention at the spring primary in 1987 is being thwarted by the inaction of the State authorities. We declined to issue such an order from the bench at the conclusion of that hearing because defense counsel had not had an opportunity to research the complex questions before us and because of the care we deem advisable to exercise in a matter of this delicacy. As Plaintiffs had filed a brief in support of their motion on October 9, 1986, we allowed the Defendants to file a responsive brief and the Plaintiffs to file a reply brief. The briefing was completed on October 22, 1986 and the motion is ripe for our consideration.
II. Discussion.
Before we issue a temporary restraining order we must determine (1) whether the Plaintiffs have made a strong showing that they are likely to prevail on the merits, (2) whether the injury is imminent, (3) whether the injury is irreparable, (4) whether granting the injunction will substantially harm other parties interested in the proceedings and (5) whether such an injunction will adversely affect the public interest. See Pennsylvania v. United States Department of Agriculture, 469 F.2d 1387, 1388 (3d Cir.1972); Northern Pennsylvania Legal Services, Inc. v. County of Lackawanna, 513 F. Supp. 678, 681 (M.D.Pa.1981) (Nealon, C.J.). If the movants cannot establish each element of the above-mentioned test, a temporary restraining order should not issue. See Skehan v. Board of Trustees, 353 F. Supp. 542, 543 (M.D.Pa.1973). (Muir, J.). We shall discuss the above-mentioned criteria as they apply to the two requests made by Judge Fink and the People for Justice in their motion. A temporary restraining order *571 is equitable in nature and discretionary with the trial judge. See United States Steel Corp. v. Fraternal Assoc. of Steelhaulers, 431 F.2d 1046 (3d Cir.1970).
A. The Pennsylvania Supreme Court Order.
The Pennsylvania Supreme Court issued the following order:
AND NOW, this 29th day of July, 1986, it is ORDERED, that HAROLD B. FINK, President Judge, Fifty-Fifth Judicial District, Potter County, be and hereby is assigned to perform administrative and non-decisional judicial duties until further Order of the Court. By the Court: Robert N.C. Nix, Chief Justice.
A restoration by us of Judge Fink to his full duties would in effect be a reversal by us of an order of the Supreme Court of Pennsylvania. The power to do so exists. Gershenfeld v. The Justices of the Supreme Court, 641 F. Supp. 1419 (E.D. Pa.1986) (Bechtle, J.); see also, Id.; Stay order, (3d Cir. June 27, 1986) (Pennsylvania Supreme Court given 30-day stay, which expired July 27, 1986). We will exercise such an extreme power only with the greatest of care.
It is our duty in reviewing a motion for a temporary restraining order to determine first whether Plaintiffs have made a showing that they are likely to prevail on the merits in federal court. Several obstacles to prevalentness in federal court exist in this case.
The abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), may preclude us from acting. That doctrine requires federal courts to be wary of intervening by way of an equitable action in ongoing state proceedings.
For example, in the case of Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.1972), an attorney sought to enjoin a state court from conducting disciplinary proceedings against him. The Court of Appeals applied the Younger doctrine to that case. The Court stated that the principles of Younger applied to a court's disciplinary proceedings against a member of its bar. Erdmann, 458 F.2d at 1209. The Court further stated, citing Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971), that state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct to be observed by their court officers. Erdmann, 458 F.2d at 1210. The Younger doctrine makes it difficult for the Plaintiffs to show that they are likely to prevail on the merits at least until both the Pennsylvania Supreme Court and its disciplinary arm have failed to act within a reasonable time. Additionally, other abstention doctrines apply.
The Supreme Court in the case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) ruled that a company which was seeking to enjoin enforcement of an order of the Texas Railroad Commission could not prevail in federal court because the state court had not been given a fair opportunity to address the issue. The Court noted that a federal court should not be asked in an equity matter to decide an issue which may be mooted by a ruling of the state court. Thus, the doctrine in Pullman which is grounded in comity may well apply to the case before us. We should not reach the constitutional issue if upon a motion for rehearing or a motion to vacate made in the Pennsylvania Supreme Court that court decides to reinstate Judge Fink pending a review of any recommendation made by the Board.
One other abstention doctrine may apply to this case. The Supreme Court in the case of Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943) held that a federal court should abstain to avoid needless conflict with the administration by a state of its own affairs. The Burford decision was based in part upon the availability of adequate state court remedies. The Supreme Court has often held that where a situation might otherwise rise to a level of constitutional deprivation there is *572 no deprivation when adequate pre or post deprivation remedies exist at the state level. E.g. Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We do not hold that Burford and its progeny actually will bar us from action in this matter. Nevertheless, for the purposes of a temporary restraining order, the difficulties presented by Burford, Younger and Pullman are sufficient for us to conclude that the Plaintiffs are not likely to prevail on the merits.
The Plaintiffs cite to us the opinion of Judge Bechtle in Gershenfeld vs. Justices of the Supreme Court, E.D.Pa. Civil No. 86-3473 (August 19, 1986), for the proposition that we are not precluded from enjoining the disciplinary board and vacating an order of the Supreme Court of Pennsylvania in regard to a disciplinary matter. In Gershenfeld an attorney was prohibited without a hearing from practicing law pending further action by the Pennsylvania Supreme Court. Like the case before us the order of the Pennsylvania Supreme Court in Gershenfeld was issued without a background or reasoning under a Pennsylvania rule which allowed for emergency suspension of attorneys. Judge Bechtle held that the Pennsylvania Rule under which the Supreme Court of Pennsylvania suspended an attorney from the practice of law without a full adversarial hearing was unconstitutional on its face because it did not allow for a speedy post deprivation resolution of the attorney's right to practice. Although Judge Bechtle's opinion in Gershenfeld is helpful, it is not directly on point.
First, the matter was not before Judge Bechtle by way of a motion for a temporary restraining order. Second, the discipline involved was the immediate suspension of an attorney, not the "reassignment" of a Judge. Judge Bechtle based his opinion on the substantial due process interest an attorney has in being allowed to practice. See Gershenfeld, At 1428. In the case of the immediate suspension of an attorney the due process required by the Constitution is greater than that in the case before us. Judge Bechtle stated "[t]he delay is in large part unreasonable because of the severe and irreparable effect on the plaintiff each day he is suspended....plaintiff is deprived of his livelihood." and his reputation is greatly diminished. Gershenfeld, At p. 1428. Judge Fink's income has not been reduced and he is still President Judge of Potter County. Although his reputation may be diminished by the pending action of the Board and the Pennsylvania Supreme Court and although his reassignment is tantamount to a suspension, he remains a salaried judge and has minimal non-adjudicatory powers. The loss to the People for Justice is de minimus. The Pennsylvania Supreme Court has the power to assign other judges to hear cases in Potter County pending the final resolution of this matter. Third, unlike the Gershenfeld matter, the Board has held a hearing about 2-½ months after the suspension. Whether this is sufficiently prompt and whether the proceedings against Judge Fink will be promptly concluded should not be determined on the limited record before us and is better left to another day. The Pennsylvania Supreme Court undoubtedly is aware that an interim or temporary emergency deprivation of a liberty interest is constitutional only so long as a pending and prompt judicial or administrative hearing will definitively determine the issues involved. Barry v. Barchi, 443 U.S. 55, 64, 99 S. Ct. 2642, 2649, 61 L. Ed. 2d 365 (1979). Last, Judge Bechtle based his opinion in part on the state interest involved in suspending an attorney. See Gershenfeld, At 1428. Judge Bechtle was of the view that there was no compelling state interest in the immediate suspension of an attorney who is merely suspected of disobeying state disciplinary rules. The state interest in its judiciary stands on a different footing. Thus, because this matter is before us by way of a request for a temporary restraining order and because of the types of interests involved, we are of the view that Gershenfeld is not dispositive in regard to the temporary "reassignment" of a Common Pleas Judge pending a speedy disposition of the matter in the state courts.
*573 In light of the many procedural obstacles in the Plaintiffs' path, we are unable to conclude for purposes of a temporary restraining order that they would be likely to prevail on the merits. Therefore, we shall not enter a temporary restraining order on their request that the order of July 29, 1986 of the Supreme Court of Pennsylvania be vacated. Because Plaintiffs are unable to meet the first part of the test for a temporary restraining order, we shall not address the other parts of the test.
B. Proceedings of the Board.
Insofar as the motion for a temporary restraining order requests that we enjoin all further proceedings of the Judicial Inquiry and Review Board of the Supreme Court of Pennsylvania until such a time as we rule upon whether a preliminary injunction should issue, we are of the view that the above discussion of abstention under the Pullman, Burford, and Younger doctrines applies equally to that issue.
Although a federal court may enjoin a state disciplinary proceeding if bad faith or exceptional circumstances exist, Middlesex Cty. Ethics Comm. v. Garden State Bar Association, 457 U.S. 423, 102 S. Ct. 2575, 73 L. Ed. 2d 116 (1982), no evidence of bad faith is before us and the delay in the state proceedings is not presently so egregious as to constitute exceptional circumstances. As noted by Judge Bechtle in Gershenfeld, federal courts should intervene when the state process does not provide for a prompt final disposition of a temporary or emergency suspension. See also Barry v. Barchi, 443 U.S. 55, 64, 99 S. Ct. 2642, 2649, 61 L. Ed. 2d 365 (1979). It is our view that enjoining the Board's proceeding would unduly thwart the proceedings rather than encourage their prompt and final resolution. Indeed, a fair reading of this order and the cases cited herein puts the Board and Supreme Court on notice that under the Constitution it would be prudent to act promptly to resolve this matter. We shall decline to issue a temporary restraining order regarding the proceedings of the Board.
Having resolved the motion for a temporary restraining order we shall schedule a hearing on the issue of whether a preliminary or permanent injunction should issue.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Denial of Temporary Restraining Order. Plaintiffs' motion for a temporary restraining order filed October 7, 1986 is denied.
2. January 1987 Trial List. The above case is placed on our January, 1987 trial list.
3. Pre-trial Conference. The pre-trial conference will be held at Williamsport, Pennsylvania on Monday, January 5, 1987 at a time to be announced.
4. Jury. Juries will be drawn at Williamsport, Pennsylvania, beginning Tuesday, January 6, 1987 at 10:00 A.M. for those cases on the list which are to be tried to a jury in whole or in part.
5. Motions. All motions to dismiss or for summary judgment shall be filed by November 15, 1986. All other motions shall be filed by December 1, 1986. All motions shall be supported by briefs filed contemporaneously with the motions.
6. Discovery. All discovery in the above case shall be completed on or before December 26, 1986.
7. Consolidation for Trial. Pursuant to Fed.R.Civ.P. 65(a)(2), the trial of the above-captioned action on the merits is consolidated with the hearing regarding the application for a preliminary injunction.
8. Modification of Scheduling Order. The provisions of this scheduling order may be modified by the Court sua sponte or upon motion timely filed for good cause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3434660/ | On October 18, 1933, the appellee, a woman of sixty-three years of age, was riding with the appellant in a car owned by the latter and driven by her. They were on their way from Iowa City to Fairfield to attend a women's club, appellee going with the appellant on the latter's invitation. Mrs. Case was driving a Chevrolet coupe and the parties to this action were the only occupants thereof and the only eyewitnesses to the attempt to pass the truck mentioned herein. At approximately thirty miles south of Iowa City, as they were proceeding southward on No. 161, a paved highway, they started down a hill of some considerable length and, as they reached the bottom, apparently attempted to pass a truck going in the same direction as the ladies were driving.
There is a dispute between appellee and appellant as to the movements of the car from the time it started down the incline. Appellee claims it was moving from fifty-five to sixty miles an hour when they attempted to pass the truck, and the appellant says it was going thirty-five to forty. Appellee says that the truck was over on the left-hand side of the road, leaving not sufficient room to pass, while the appellant says it was on its right-hand side of the road. Appellee says that no warning of the attempt to pass was given to the driver of the truck, whereas the appellant claims to have sounded her horn to signal her intention to pass. Appellee claims that before they attempted to pass she told appellant that they could not pass at that point and that she would have to wait, testimony which is again contradicted by Mrs. Case.
It appears from the record that there were other ladies leaving Iowa City on the same mission, who were traveling a few hundred feet ahead of the parties to this action, and one of them saw the car after it had passed the truck and before it went into the ditch, but not what happened before that time. From the record it appears that in attempting to pass the truck Mrs. Case hit what is designated as a "water sluice" and then turned to the right side of the pavement and back again to the left, over the shoulder and into the ditch. The movement of the car after it hit the sluice was described by both the appellee and one other witness as "weaving," though there is nothing definite as to the course of the car other than as has been indicated. The muddy tracks left by one or more wheels of the car after it returned to the pavement and before going into the ditch would seem to *Page 54
indicate that, in attempting to pass the truck, appellant's car went off the pavement slab onto the muddy shoulder. Mrs. Case is not very clear as to the movements of the car before the accident happened, and makes her statement as to speed at which she was driving without having noticed the speedometer. She testified that she took no notice of the hill down which she was driving, or her movements especially, except that she was driving along the pavement and listening to the conversation of the appellee. She made no estimate of the distance she turned out to go around the truck, but stated it was the "usual distance when I drive out to go around a car"; that she turned out just as she usually did and took no note of the distance she was behind the truck when she attempted to pass. From the time she made the attempt she seems to have no recollection of what happened.
Appellee testified that the speed of the car was accelerated from the time it started down the hill toward the truck and that gas was fed to it unevenly, and that from the time the attempt to pass was made appellant seemed to have lost control of her car.
This substantially completes the record in the case, except for various plats and measurements and a description of the grievous injuries sustained by appellee when the car was overturned.
We have then the question whether, under the facts, appellant was guilty of such recklessness as to make her liable for the unfortunate injuries which her guest sustained. This court has too frequently passed upon the legal principles involved to call for any extended citation of authorities and we do not attempt it. It is sufficient to call attention to a few of them in which reference will be found to most of the others.
This court, in the recent case of Wright v. Mahaffa, 222 Iowa 872,877, 270 N.W. 402, 405 (opinion by Justice Kintzinger), quoting from Siesseger v. Puth, 216 Iowa 916, 923, 248 N.W. 352,356, on the question whether the issue of recklessness in cases of this kind is for the jury or court, said:
"The true rule seems to be, that * * * if from such evidence all minds could not reasonably agree on whether recklessness has been established or not, then the question should he submitted to the jury. In most * * * cases relied on by defendant as supporting the rule contended for, it was found by the court, as a *Page 55
matter of law, that there was not sufficient evidence offered to make out a prima facie case. Under such condition it would naturally be the court's duty to direct a verdict. But if under the proven or admitted facts different minds might reasonably reach different conclusions, the question then is one of fact for the determination of the jury. [Citing cases.]"
The Siesseger case is one cited and relied on by both parties to this cause.
If then we seek to apply the rule thus announced we are confronted with the question, What is recklessness within the meaning of the statute as has been heretofore decided by this court? This quotation (Shenkle v. Mains, 216 Iowa 1324, at page 1329, 247 N.W. 635, 637, quoting from Neessen v. Armstrong,213 Iowa 378, 383, 239 N.W. 56, 59) will make our position clear:
"This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of or concern for consequences. See Siesseger v. Puth, 213 Iowa 164,239 N.W. 46. In order for conduct to be reckless, within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others. We find nothing in the record hereinbefore set out which evinces a heedless disregard of the rights of Neessen, who was seated by the side of the driver. We do not think that it could reasonably be said from the evidence that the defendant's conduct, though negligent it may have been, was such a heedless disregard of the rights of Neessen as to justify a verdict in favor of the administratrix. See Silver v. Silver, 108 Conn. 371, 143 A. 240, 65 A.L.R. 943; Ascher v. (H.E.) Friedman (Inc.), 110 Conn. 1, 147 A. 263. The mind is prone to look upon the result, but, unless the acts of the defendant would have been reckless within the meaning of the law without the resulting injury to Neessen, they are not reckless merely because Neessen lost his life."
In the same volume, the case of Brown v. Martin, 216 Iowa 1272, at page 1275, 248 N.W. 368, 369 (opinion by Justice Donegan), thus announces the view of this court:
"Prior to its enactment [Code, sec. 5026-b1] the owner or operator of an automobile was liable for all damages sustained by a passenger not for hire in such automobile, which were due *Page 56
to negligence of the driver. The effect of the amendment to the statute is to release the owner and operator from all damages to a guest who is a passenger not for hire, except in cases where the damages are caused as the result of the driver being under the influence of intoxicating liquor or because of the reckless operation of the motor vehicle by the driver. There is no claim that the defendant in this case was under the influence of intoxicating liquor, and the only question we have for consideration is whether the damage done to the plaintiff was caused by the defendant's reckless operation of his automobile. The effect of the change of the statute and the meaning of the term `reckless operation' were first considered by this court in the case of Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54."
One more quotation will be sufficient, that from Welch v. Minkel, 215 Iowa 848, at page 851, 246 N.W. 775, 777 (Justice Kintzinger delivering the opinion):
"The guest statute, known as Section 5026-b1 of the Code, has been considered by this court in several late cases. In the case of Siesseger v. Puth, 213 Iowa 164, [239 N.W. 46] this court has defined the meaning of the term `reckless' to be something more than negligence. In this case the court made an exhaustive review of the authorities in which the term `recklessness' has been construed. The authorities have been fully set out, and it will be unnecessary to do more than refer to that case here. This court has therein defined the term `reckless' as meaning `proceeding without heed of or concern for consequences.' To be `reckless' one must be more than `negligent.' Recklessness may include `wilfulness' or `wantonness,' but if the conduct is more than negligent, it may be `reckless,' without being `wilful' or `wanton,' but to be reckless in contemplation of the statute under consideration, one must be more than negligent. Recklessness implies `no care, coupled with disregard for consequences.'"
[1] In the light of this record, and these and other authorities which might be cited, we have been unable to reach any conclusion other than that the appellee has failed to make out a case of recklessness. The apparent confusion of Mrs. Case as she attempted to pass the truck, in our opinion could not be any more than negligence, if it amounted to that; neither would appellee's *Page 57
statement (if we took her word as against that of Mrs. Case) that she (Mrs. Popham) expressed the view that the truck could not be passed where the attempt was made. In any event, Mrs. Case as the driver of the car, had to use her own judgment as to whether she could safely make the attempt to pass or not, and, unless her conclusion in that regard was so far unwarranted by conditions as they were then, or appeared to her to be, as to amount to recklessness, she would not be liable in damages to her guest. On the whole record we fail to see any elements of recklessness and think that appellant's motion for a directed verdict should have been sustained.
Appellant makes various complaints about the error of the court in overruling her motion to take from the consideration of the jury various specifications of recklessness, which need not be considered, being disposed of by what we have already stated. Neither is it necessary to analyze her complaint about the instructions.
[2] While it may not be necessary to a determination of the questions presented by this appeal, the writer of this opinion wishes to express his disapproval of the use of that mongrel expression which finds place in the pleadings: "and/or".
We do not stop to cite quotations upon this subject, from distinguished jurists, which appear in appellee's brief, but it does seem to us that in pleading the specifications of recklessness or negligence, the party who brings the action should have a tolerable idea whether he wishes to charge this or that specification, and not subject the court to the labor of deciding whether it is this or something else.
It follows, therefore, that this case is reversed. — Reversed.
RICHARDS, C.J., and MITCHELL, ANDERSON, DONEGAN, PARSONS, HAMILTON, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434700/ | This litigation arose out of a dispute between the plaintiff, owner of a farm, and the defendants, as tenants occupying the farm under a fifty-fifty arrangement by which each party was to own one-half of the poultry and livestock, and each receive one-half of the proceeds of produce, stock or crops, and extended over a period of two years. Not being able to agree upon a settlement, this suit was started on February 3, 1936, based upon three distinct counts. In count 1, plaintiff alleged that the defendants had sold personal property which was owned jointly and failed to account to plaintiff for his share in the proceeds, and he prayed for an accounting and for an injunction restraining further sale of property and establishment of his landlord's lien. Count 2 was based on a promissory note in the sum of $409.85, given for money advanced by plaintiff, and for purchase price of a one-half interest in certain personal property owned by plaintiff and then upon the premises, in which *Page 226
he prayed for judgment on the note and for the establishment of his lien under the contract covering the amount of the note and interest. Count 3 was for money advanced since the execution of the note, with prayer for an accounting and for judgment for whatever amount was found to be due for money so advanced. W.S. Frazier was attorney for plaintiff, and Marvin C. Levsen was attorney for the defendants. They were unable to come to an amicable adjustment of the matters in dispute as to the partnership property involved in counts 1 and 3 of the petition, and defendants' counsel stated that there were some matters of defense which he wished to urge against the note and desired further time to investigate the matter, and the first of March being upon them, the landlord desiring to gain possession of the premises, and the tenant desiring to move and engage in farming operations elsewhere, the attorneys, with the consent of the parties, appeared before the presiding judge, H.C. Ring, and there orally agreed and consented that as to the matters contained in counts 1 and 3, involving an accounting, the court should refer these matters, and that the issue involving the promissory note should be later tried to the court. With this understanding the court, on March 9th, made an order of reference, in which it is stated that "the court having examined the pleadings * * * and being informed by counsel of the matters involved finds that there is involved an accounting * * * that there is a dispute and controversy as to the accounts of plaintiff and defendants * * * that this is a proper case to be referred to a referee for finding of facts." The court appointed Francis Shimanek, a practicing attorney as referee. The attorneys explained to the referee that only the matters involved in counts 1 and 3 involving an accounting between the parties was to be taken into account by him. The parties appeared before the referee without the aid of counsel, and a hearing was had, but no record was kept.
On March 12, 1936, the referee made his report, containing an itemized account, and after striking a balance there was found to be due the plaintiff the sum of $85.26. A perusal of the items of the report conclusively shows the note and interest were not included in the referee's calculations. It appears that neither side was satisfied with the findings. Defendants procured new or additional counsel in the person of George C. Lawrence. Up to this time no answer had been filed. Mr. Lawrence caused an *Page 227
answer to be filed on March 14, 1936. After some wrangling between the parties, the court on May 25, 1936 entered judgment on the report for $85.26. At this time His Honor, John T. Moffit, was the presiding judge and had no personal knowledge of the matters above referred to, and apparently the new counsel for defendants, no doubt acting on instructions from his clients, refused to recognize or abide by the previous oral understanding and agreements had with former counsel, and elected to stand upon the record as made, and apparently insisted that the judgment of the court settle the entire controversy, including count 2 involving the promissory note. Plaintiff promptly, to wit: on May 27, 1936, two days after the judgment was entered, and at the same term of court, filed a motion in which he set up the agreement and understanding which had been entered into at the time of the reference, and asked the court to modify and correct his entry and judgment so as to show that the referee's findings pertained only to counts 1 and 3 of plaintiff's petition. No resistance was filed to this motion, but defendants' counsel, before the introduction of any testimony, dictated into the record an objection to the introduction of any testimony as to what matters were referred to the referee, or as to any oral agreements or understanding of the respective parties, or their counsel as to what should be considered by the referee or what not considered by the referee, or tending in any wise to impeach or change or alter the reference, or tending in any way to explain or change or alter the report of the referee, as wholly irrelevant, incompetent and immaterial and without warrant in law, and not in accordance with the procedure of the courts of the State of Iowa. The plaintiff placed upon the witness stand his own attorney, Mr. Frazier, the defendants' former counsel, Mr. Levsen, and the referee to whom the matters were referred, all of whom testified unequivocally to the matters above set forth. The referee expressly and positively stated that he understood from the attorneys that he was only to make an accounting and finding of fact with reference to the matters contained in counts one and three, and that count 2, involving the promissory note was not to be taken into account at all, and that he did not include the matters contained in count 2 in his calculations, and his testimony in this regard is borne out by the report itself. These facts are in no way contradicted. Appellees make no claim that the promissory note was in fact included in the calculations of the referee. It *Page 228
also appears in the record that in order to permit the tenants to move off the premises and the landlord to gain possession thereof, pending the final determination over these disputed matters, certain money that was then in the hands of Mr. Lawrence as attorney for defendants was to be retained by him until final determination of the matters in dispute, and also until the final determination of the controversy involving the promissory note, and that he still has this money.
Under this state of the record we are unable to understand upon what theory the eminent trial court refused to modify or set aside this judgment and permit a hearing upon count 2 of the petition. It must be conceded, of course, that the record of the procedure in referring the matter was irregular, indefinite and not in accordance with statutory provisions. This omission of formal compliance with all the legal requirements is referable to the amicable understanding and agreement that existed between the original attorneys for the respective parties. This explains why no formal written objections were filed to the report of the referee, why all these matters of agreement were not carefully made of record. The parties understood among themselves that this report did not include the note sued upon under count 2 of the petition, no doubt regarding their spoken, oral agreement as binding, as if made in writing and entered of record. No mention of this agreement is found in the record. The order of reference does not specifically limit the matter in accordance with the agreement, but when these matters were all presented to the trial court at the same term at which the judgment was entered, he should have promptly sustained the motion. Parties should not be permitted to thus flout their solemn agreements made in the presence of the court, and about which there was no dispute. Ordinarily, motions of this kind are supported merely by affidavits, and when a clear mistake of fact, due to misunderstanding honestly made, is presented to the court at the same term at which the entry is made, both statutory authority (section 10801, Code of 1935) and inherent power is vested in the court to change, modify, or even expunge the record. Streeter v. Gleason, 120 Iowa 703, 95 N.W. 242; Dimick v. Munsinger, 202 Iowa 784,211 N.W. 404; Todhunter v. De Graff, 164 Iowa 567, at page 574, 146 N.W. 66.
The contention of appellee that this matter can only be presented by motion for new trial or under the provisions of *Page 229
chapter 552 of the Code is untenable. Chapter 552 has reference to proceedings instituted after the term at which judgment is entered.
In the interest of justice and fair play and a proper regard for the plighted word of counsel and in the exercise of proper judicial discretion vested in him, the trial court should have granted the motion. The order of the court in overruling the motion is reversed and the cause remanded with instructions to enter an order not inconsistent with this opinion. — Reversed and remanded.
RICHARDS, C.J., and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247172/ | Rufe, District Judge
Plaintiff Antoine Kornegey filed suit alleging that he was assaulted by another inmate and that the City of Philadelphia and its employees failed to protect him from harm. After an earlier partial motion to dismiss was granted, Defendant filed an Amended Complaint.1 Now, the City of Philadelphia, former Commissioner of the Philadelphia Prison System Louis Giorla, Warden William Lawton, Correctional Lieutenant Kevin Sizer, and Correctional Officer Ervin Young (collectively, the "City Defendants"), move to dismiss all claims asserted against them for failure to state a plausible claim to relief. For the following reasons, the motion will be granted in part and denied in part.
I. BACKGROUND
The Amended Complaint alleges the following facts, which are presumed to be true for the purposes of the motion to dismiss. On July 19, 2014, Plaintiff, an inmate on the C-1 cell block at the Philadelphia House of Correction, was assaulted by another inmate, Defendant Allen Tumblin, in the presence of Sizer, Young, and other unnamed correctional officers. While Plaintiff was being attacked by Tumblin, his head hit protruding water pipes, which lacerated his forehead, causing permanent facial nerve damage and scarring. Plaintiff was first sent to the prison medical officials, and then to a hospital, where he received fourteen stitches.
At the time of the attack, Tumblin was a pretrial detainee being held on charges including simple assault, robbery while inflicting bodily harm, possession of an instrument of crime, and terroristic threats. The day before Tumblin assaulted Plaintiff, Tumblin had physically injured another inmate, Nicholas Williams. Plaintiff alleges, upon information and belief, that Defendants Giorla, Lawton, Sizer, and Young knew that Tumblin's July 18 assault of Williams was unprovoked and not based on personal animus. Nevertheless, the corrections officers took no action to segregate Tumblin from the general population.
*679Plaintiff further alleges that, after the assault, Sizer, Young, and other corrections officers conspired to cover up the incident by creating false write-ups blaming Plaintiff for the incident and placing him in solitary confinement. Plaintiff asserts that the conspiracy was motivated by discrimination against him based on his race and ethnicity. Plaintiff also asserts that the City had a policy and custom of condoning racial and ethnic discrimination in prison disciplinary proceedings. Plaintiff further claims that the Defendants intentionally inflicted emotional distress upon him and that he was falsely imprisoned. Plaintiff seeks relief in the form of monetary damages, including compensatory damages, punitive damages, treble damages, consequential damages, delay damages, and attorney's fees and costs.
II. LEGAL STANDARD
In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."2 Federal Rule of Civil Procedure 8(a) requires " 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.' "3 This pleading standard does not mandate " 'detailed factual allegations,' " but it requires more than an "unadorned, the-defendant-unlawfully-harmed-me accusation."4 "Factual allegations must be enough to raise a right to relief above the speculative level."5 Therefore, in order "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "6 This standard " 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element."7 Consequently, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."8
III. ANALYSIS
A. Count I ( 42 U.S.C. § 1983 and Eighth Amendment Violations)
Plaintiff asserts that Giorla, Lawton, Sizer, and Young violated his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution. Specifically, Plaintiff asserts that Defendants acted with deliberate indifference to *680the substantial risk of serious harm that Tumblin's presence on the C-1 cell block posed to Plaintiff, and failed to protect Plaintiff when Tumblin attacked.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must plead that an individual acting under the color of state law deprived him or her of a constitutional right.9 In this context, a prison official does not violate the Eighth Amendment unless (1) "the deprivation [is], objectively, sufficiently serious,"10 such that it "result[s] in the denial of 'the minimal civilized measure of life's necessities,' "11 and (2) the official has a "sufficiently culpable state of mind."12 For the first factor, an inmate must demonstrate that "he is incarcerated under conditions posing a substantial risk of serious harm."13 For the second factor, an inmate must show that the prison official's state of mind is "one of deliberate indifference to inmate health or safety."14 Put differently, a prison official may not be held liable under the Eighth Amendment for denying an inmate adequate conditions of confinement unless "the official knows of and disregards an excessive risk to inmate health or safety," and "the official [is] both [ ] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [ ] also draw[s] the inference."15 Furthermore, to prevail in a civil rights action, a plaintiff must demonstrate that the defendant was personally involved in the alleged wrongful conduct; liability cannot be predicated solely on the operation of respondeat superior .16 "[P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence."17
At the outset, Defendants Giorla and Lawton argue that Plaintiff has failed to state a claim against them because he has not plausibly alleged that they were personally involved in any wrongful conduct, or that they were aware of a substantial risk of serious harm to Plaintiff's safety. The Court agrees. The Amended Complaint fails to allege any specific duties breached by Giorla and Lawton other than the general assertion that "Defendant Tumblin should and would have been removed from the general prison *681population" under "appropriate prison procedures" and the conclusory statement that all City Defendants "were aware" of Tumblin's prior charges and unprovoked assault against Williams.18 However, a claim of deliberate indifference may not be based solely on "the risk that an inmate with a history of violence might attack another inmate for an unknown reason," and Plaintiff has alleged no basis for concluding that Giorla and Lawton deliberately violated any specific prison procedures.19 Accordingly, Count I will be dismissed as to Defendants Giorla and Lawton.
In contrast, Plaintiff's allegations are sufficient to state a § 1983 claim against Defendants Sizer and Young. Specifically, the Amended Complaint alleges that both officers were present when Tumblin assaulted Plaintiff and failed to intervene to stop the assault. The Third Circuit has stated that if an officer witnesses an inmate assault and fails to intervene, "his actions would seemingly constitute a paradigm case of deliberate indifference," if Plaintiff can show that the officer had "a realistic and reasonable opportunity to intervene" and "simply refused to do so."20 At this stage of the proceedings, Plaintiff is entitled to additional discovery to determine whether Sizer and Young's alleged failure to intervene was unreasonable under the circumstances. Accordingly, Plaintiff will be permitted to proceed with Count I as to Defendants Sizer and Young.21
B. Count III (State Law Negligence)
Plaintiff alleges that the City negligently maintained exposed water pipes at the Philadelphia House of Correction that posed a hazard to inmates' safety, failed to cover the pipes, and failed to warn Plaintiff and other inmates of the hazard. The City moves to dismiss on the grounds of immunity.
While state municipalities are generally immune from liability for state tort law claims, Pennsylvania's Political Subdivision Tort Claims Act ("TCA")22 waives this immunity under certain conditions,23 including the failure to properly maintain real property in the "care, custody or control" of the local agency.24 The City asserts that Plaintiff's claims fall outside this "real property exception" because the exception only applies to cases where "the artificial condition or defect of land itself causes injury, not merely when it facilitates injury by acts of others."25
The Court disagrees. The facts as alleged in this case are distinguishable from cases in which courts have held that real property merely facilitated a plaintiff's injury.
*682In Williams v. Philadelphia Housing Authority ,26 the Pennsylvania Commonwealth Court held that a municipal agency was immunized from suit where it did not adequately maintain security cameras on its property, which would have alerted employees to a third party illegally residing at the housing project who shot the victim.27 There, the court reasoned that the victim's injuries were not caused by any physical defect of the property, but rather by a superseding cause-the unforeseeable shooting by the third party.28
In contrast, the same court has held that under the real property exception of an analogous immunity statute, a Pennsylvania state agency can be held liable for injuries set in motion by the action of a third party when the negligently maintained property proximately caused the injuries.29 In Wilson v. Philadelphia Housing Authority , the Commonwealth Court held that a municipal agency could not assert immunity where the victim was "injured on [government] property when a third party pushed her, causing her to fall and hit the stump of a metal pole protruding from the ground, thereby injuring her ankle."30 The court held that, even though a third party "set the action in motion that caused [the] injuries," the agency could still be held liable for causing Plaintiff's injuries when it could not show that the "plaintiff's injuries would have been the same even without its negligence."31
Here, like in Wilson , Plaintiff alleges that a third party forcibly caused him to collide with an exposed fixture of municipal real property, thereby causing injury. Assuming the truth of Plaintiff's allegations, it is plausible that Plaintiff's injuries would not have been of the same magnitude if not for the protrusion of the pipes, and further factual development is needed. Therefore, Plaintiff has plausibly alleged that his negligence claim against the City falls within the real property exception to the Act.
C. Count IV (False Imprisonment)
In support of his state law false imprisonment claim, Plaintiff alleges that the City, Sizer, and Young created false prison write-ups and unlawfully placed him in solitary confinement in "the hole" for two weeks. To state a claim for false imprisonment under Pennsylvania law, a plaintiff must plausibly allege that (1) he or she was detained, and (2) the detention was unlawful.32
The Court is unaware of any cases in which a prisoner who was lawfully incarcerated was permitted to proceed with a false imprisonment claim under Pennsylvania law based on the conditions of his or her confinement. Nonetheless, the Court need not decide whether such a claim can ever proceed, because the elements of detention and unlawfulness in this context would require, at the very least, the deprivation of a cognizable liberty interest without due process, and Plaintiff's allegations have failed to meet that burden.33
*683The Third Circuit has held that "an administrative sentence of disciplinary confinement, by itself, is not sufficient to create a liberty interest."34 Rather, a plaintiff asserting a deprivation of due process must allege facts sufficient to show a deprivation of a protected substantive right that is "atypical and significant hardship in relation to the ordinary incidents of prison life," such as denial of access to the courts, or retaliation against the exercise of such a right.35 In addition, a plaintiff must also establish the denial of a basic opportunity to be heard and to defend against the allegations against him.36 Plaintiff has made no such allegations in his Amended Complaint. Specifically, he has not alleged the deprivation of any substantive right other than confinement in administrative custody for two weeks, which courts have held does not deprive a plaintiff of a liberty interest as a matter of law.37 Nor has he alleged facts indicating any intent by the City, Sizer, or Young to prevent Plaintiff from exercising-or to retaliate against any attempt by him to exercise-a protected right. Finally, Plaintiff has not alleged that he was denied an opportunity to challenge the allegedly false evidence against him. Accordingly, Claim IV will be dismissed.
D. Count V (Malicious Prosecution)
Because Plaintiff has withdrawn his malicious prosecution claim, Count V of the Amended Complaint will be dismissed.38
E. Count VI (Intentional Infliction of Emotional Distress)
Plaintiff asserts that Defendants intentionally caused him to suffer severe emotional distress alongside his physical injuries. An action for intentional infliction of emotional distress ("IIED") requires a plaintiff to show that (1) the conduct is extreme; (2) the conduct is intentional or reckless; (3) the conduct caused emotional distress; and (4) the distress is severe.39 To state a claim for IIED in Pennsylvania, a plaintiff must demonstrate that the defendant's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society."40
The only ground Defendant asserts for dismissing Plaintiff's IIED claim is that the Amended Complaint does not specifically allege "competent medical evidence" of emotional distress. Defendants rely on Kazatsky v. King David Memorial Park, Inc.,41 in which the Supreme Court of *684Pennsylvania affirmed the trial court's decision to grant compulsory nonsuit on the grounds that the plaintiffs introduced no competent medical evidence of emotional distress during trial. However, most federal district courts in this circuit have declined to require specific allegations of medical evidence at the motion to dismiss stage, and there is nothing in the text of Kazatsky itself that suggests the court intended to create a heightened pleading requirement.42 Accordingly, the Court declines to hold that Kazatsky bars Plaintiff's IIED claim at this stage. The City Defendants' motion to dismiss will be denied as to Count VI.
F. Count VII ( 42 U.S.C. § 1985 ) and Count VIII ( 42 U.S.C. § 1981 )
Plaintiff asserts that Defendants conspired to interfere with his right to be free from invidious discrimination based on race and ethnicity, in violation of 42 U.S.C. § 1985, and implemented discriminatory prison disciplinary customs and policies, in violation of 42 U.S.C. § 1981. Section 1985(3) permits civil actions against conspiracies that are formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws...."43 In order to survive dismissal, Plaintiff's § 1985(3) claim must allege "that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious,"44 and that there was a "meeting of the minds" among co-conspirators.45
Similarly, § 1981 of the Civil Rights Act prohibits discrimination on the basis of race or alienage and secures the protection of certain civil rights, such as the right to file a lawsuit, make and enforce *685contracts, and to give evidence.46 In order to state a claim under this section, a plaintiff must allege that (1) he or she is a member of a racial minority, (2) the defendant intended to discriminate on the basis of race, and (3) the discrimination concerned one or more of the activities enumerated in § 1981.47 "The discriminatory intent necessary for a valid section 1981 claim can manifest in disparate impact, departure from procedural norms, a history of discriminatory conduct, or other relevant facts, but may not be established by conclusory allegations of generalized racial bias."48
The City Defendants assert that Plaintiff has failed to allege specific facts evidencing discrimination based on any protected classes. The Court agrees. Beyond mere speculation and conjecture, Plaintiff has not alleged any facts that indicate any of the City Defendants engaged in any conduct evidencing animus or discrimination based on race or ethnicity,49 or of disparate treatment based on these classifications.50 Plaintiff's bare assertion that "it was the policy and/or custom" of the City to "tolerate racially and ethnically discriminatory motives" is insufficient to state a claim in the absence of any plausible facts supporting the existence of such a policy or custom.51 Accordingly, Plaintiff has failed to state a claim against the City Defendants under § 1981 or § 1985.
G. Count IX (Claims Under the Pennsylvania Constitution)
Plaintiff seeks monetary damages for violation of his rights under the Pennsylvania Constitution to be free from unreasonable seizure of one's person and equal protection under the laws and freedom from invidious discrimination on the basis of race and ethnicity. However, the Pennsylvania Commonwealth Court has held that "neither Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution."52 While the Pennsylvania Supreme Court has not specifically addressed the issue,53 federal courts have adhered to the reasoning of the Commonwealth Court in refusing to recognize such claims for money damages.54 Accordingly, Count IX of *686Plaintiff's claim will be dismissed.
H. Leave to Amend
In civil rights cases, "district courts must offer amendment-irrespective of whether it was requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile."55 Here, Plaintiff seeks leave to amend his § 1983 claim in order to plead in the alternative that Plaintiff was a pretrial detainee and should be covered under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment prohibition against "cruel and unusual" punishment. However, courts in the Third Circuit have applied the same "deliberate indifference" standard to "failure to protect" claims involving prisoners under both the Due Process Clause and the Eighth Amendment.56 Accordingly, any attempt to add a due process theory to Plaintiff's § 1983 claim would be futile with respect to Defendants Lawton and Giorla. Moreover, Plaintiff is represented by counsel and has already had an opportunity to amend his claims based on his assault and administrative confinement with the benefit of the Court's order and opinion on a prior motion to dismiss. Accordingly, the Court concludes that leave to further amend would be futile and would not serve the interest of justice.
IV. Conclusion
For the foregoing reasons, the City Defendants' Motion to Dismiss will be granted in part and denied in part as follows. With respect to Count I of the Amended Complaint, the Motion will be granted as to Giorla and Lawton and denied as to Sizer and Young. The Motion will be denied with respect to Counts III and VI. Count V will be dismissed as withdrawn. The Motion is granted with respect to Counts IV, VII, VIII, and IX. An order follows.
The case at that time was assigned to the docket of the Honorable Legrome D. Davis, and has since been reassigned to this Court's docket.
Pinker v. Roche Holdings, Ltd. , 292 F.3d 361, 374 n.7 (3d Cir. 2002) (citation omitted).
Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ); see also Santiago v. Warminster Twp. , 629 F.3d 121, 128 (3d Cir. 2010) (internal quotations and citation omitted) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable to the misconduct alleged.").
Phillips v. County of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ); see also Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997) (reasoning that "bald assertions" or "legal conclusions" will not suffice).
See Nicini v. Morra , 212 F.3d 798, 806 (3d Cir. 2000) ; Kneipp v. Tedder , 95 F.3d 1199, 1204 (3d Cir. 1996).
Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter , 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) ).
Id. (quoting Rhodes v. Chapman , 452 U.S. 337, 342, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) ); see also Bistrian v. Levi , 696 F.3d 352, 367 (3d Cir. 2012) ; Beers-Capitol v. Whetzel , 256 F.3d 120, 125 (3d Cir. 2001).
Farmer , 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson , 501 U.S. at 297, 111 S.Ct. 2321 ).
Farmer , 511 U.S. at 834, 114 S.Ct. 1970 (citing Helling v. McKinney , 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ); see also Wilson , 501 U.S. at 298, 111 S.Ct. 2321 (noting that a constitutional violation occurs where the conduct is, objectively, "sufficiently serious").
Farmer , 511 U.S. at 834, 114 S.Ct. 1970 (internal quotations and citations omitted) (noting that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment").
Id. at 837.
See Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1988) ; see also Shaw by Strain v. Strackhouse , 920 F.2d 1135, 1147 (3d Cir. 1990) ("Only those defendants whose inactions or actions personally caused [Plaintiff's] injury may be held liable under § 1983.").
Rode , 845 F.2d at 1207 (noting that such allegations must be made with "appropriate particularity").
Am. Compl. at ¶¶ 18-25.
Bistrian , 696 F.3d at 371.
Id. (quoting Smith v. Mensinger , 293 F.3d 641, 650-51 (3d Cir. 2002) ).
Defendant also moves to dismiss the City from the case based on the requirement that any municipal liability must be based on allegations of specific policies or customs under Monell v. Dep't of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, Monell applies specifically to § 1983 claims, and Plaintiff has not asserted a § 1983 claim against the City.
See 42 Pa. C.S.A. § 8541, et seq. ("Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.").
Id. at § 8542(b).
See id. at § 8542(b)(3).
Mascaro v. Youth Study Ctr. , 514 Pa. 351, 523 A.2d 1118, 1124 (1987) (emphasis in original).
873 A.2d 81 (Pa. Commw. Ct. 2005).
Id. at 87-88.
Id.
Wilson v. Phila. Hous. Auth. , 735 A.2d 172 (Pa. Commw. Ct. 1999).
Id. at 175-76.
Id. ; see also Crowell v. City of Phila. , 531 Pa. 400, 613 A.2d 1178, 1184-85 (1992) (holding that a local agency could be found liable where a misplaced road sign contributed to a fatal car crash).
Gwynn v. City of Philadelphia , 719 F.3d 295, 304 n.4 (3d Cir. 2013) (citing Renk v. City of Pittsburgh , 537 Pa. 68, 641 A.2d 289, 293 (1994) ).
Ollie v. Brown , No. 12-67, 2013 WL 6154417, at *10 (W.D. Pa. Nov. 22, 2013) (citing Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("The sort of unlawful detention remediable by the tort of false imprisonment is detention without legal process").
Mensinger , 293 F.3d at 653.
Id. at 652-54.
Id. ; Scerbo v. Lowe , 326 Fed.Appx. 652, 655 (3d Cir. 2009).
See, e.g. , Israel v. Superintendent of S.C.I. Fayette , No. 08-428, 2009 WL 693248, at *5 (W.D. Pa. Mar. 13, 2009) (citing Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997) ).
See Plaintiff's Brief at 7.
See Arnold v. City of Phila. , 151 F.Supp.3d 568, 579 (E.D. Pa. 2015) (citing Chuy v. Phila. Eagles Football Club , 595 F.2d 1265, 1273 (3d Cir. 1979) ); see also Kazatsky v. King David Memorial Park , 515 Pa. 183, 190, 527 A.2d 988 (1987) ; Restat. 2d of Torts, § 46 (2nd 1979).
McGreevy v. Stroup , 413 F.3d 359, 371 (3d Cir. 2005) ; see also Fugarino v. Univ. Servs. , 123 F.Supp.2d 838, 844 (E.D. Pa. 2000) (citing Cox v. Keystone Carbon Co. , 861 F.2d 390, 395 (3d Cir. 1988) ); Smith v. Sch. Dist. Phila. , 112 F.Supp.2d 417, 428 (E.D. Pa. 2000) (noting that outrageousness occurs as a matter of law where a recitation of facts to an average member of the community would "arouse resentment against the actor," and lead him to exclaim "outrageous").
515 Pa. 183, 527 A.2d 988 (1987).
See, e.g., Silver v. Mendel , 894 F.2d 598, 607 n.19 (3d Cir. 1990) (internal quotations and citation omitted) ("The plaintiff's allegations are sufficient in this case to withstand a motion to dismiss. However, to survive a motion for summary judgment, the plaintiff must still present competent medical evidence of causation and severity of his emotional distress...."); Carbone v. City of New Castle , No. 2:15-CV-1175, 2016 WL 406291, at *12 (W.D. Pa. Feb. 3, 2016) (denying motion to dismiss despite lack of allegations of competent medical evidence); St. Clair v. Borough of New Brighton , No. 2:16-00667-TFM, 2016 WL 4396171, at *5 (W.D. Pa. Aug. 18, 2016) (same); Mascarini v. Quality Employment Servs. & Training , No. 1:10-CV-1546, 2011 WL 332425, at *9 (M.D. Pa. Jan. 31, 2011) (same); Schultz v. Hughesville Borough , No. 4:10-CV-0262, 2010 WL 5147519, at *7 n.9 (M.D. Pa. Dec. 13, 2010) (same) (internal citations and quotations omitted); E.N. v. Susquehanna Twp. Sch. Dist. , No. 1:09-CV-1727, 2010 WL 4853700, at *19 (M.D. Pa. Nov. 23, 2010) (same); Sullivan v. Warminster Twp. , No. 07-4447, 2010 WL 2164520, at *10 (E.D. Pa. May 27, 2010) (same); Hall v. Raech , No. CIV.A. 08-5020, 2009 WL 811503, at *7 (E.D. Pa. Mar. 25, 2009) (same). But see Rosenberg v. Thomas Jefferson Univ. Hosp., Inc. , No. 15-4208, 2016 WL 2766504, at *2 (E.D. Pa. May 13, 2016) ; Buttermore v. Loans , No. CV 15-1514, 2016 WL 308875, at *9 (W.D. Pa. Jan. 25, 2016) ; McComb v. Morgan Stanley & Co. , No. 07-1049, 2007 WL 4150786, at *8 (W.D. Pa. Nov. 19, 2007) ; Doe v. Equifax Servs., Inc. , No. CIV. A. 88-3872, 1989 WL 57348, at *9 (E.D. Pa. May 26, 1989).
42 U.S.C § 1985(3).
Farber v. City of Paterson , 440 F.3d 131, 134 (3d Cir. 2006) (internal citation omitted); see also McCleester v. Mackel , 2008 WL 821531, at *26, 2008 U.S. Dist. LEXIS 27505, at *92 (W.D. Pa Mar. 27, 2008) (citing Griffin v. Breckenridge , 403 U.S. 88, 101, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) ("The language requiring intent to deprive of equal protection...means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy...must aim at a deprivation of the equal enjoyment of rights secured by the law to all.").
See Startzell v. City of Phila. , 533 F.3d 183, 205 (3d Cir. 2008).
See 42 U.S.C. § 1981(a).
See Brown v. Philip Morris, Inc. , 250 F.3d 789, 797 (3d Cir. 2001).
Bailey v. Harleysville Nat'l Bank & Trust Co. , 2005 WL 2012024, at *5, 2005 U.S. Dist. LEXIS 175277, at *14-15 (E.D. Pa. 2005) (citing Flagg v. Control Data , 806 F.Supp. 1218, 1223 (E.D. Pa. 1992) ); see also Boykin v. Bloomsburg Univ. , 893 F.Supp. 378, 394 (M.D. Pa. 1995) (reasoning that conclusory allegations are insufficient to establish racially discriminatory intent).
C.f., e.g. , Dantzler-Hoggard v. Graystone Acad. Charter Sch. , No. 12-0536, 2012 WL 2054779, at *9 (E.D. Pa. June 6, 2012) (declining to dismiss a claim under, inter alia , § 1981, when Plaintiff had pleaded allegations of racially derogatory and insensitive comments sufficient to raise an inference of discriminatory intent).
Moreover, with respect to Plaintiff's § 1985 claim, Plaintiff has not demonstrated how or to what extent the City, Giorla, or Lawton were involved in a conspiracy to deprive him of his civil rights. Plaintiff fails to point to an agreement or concerted action among or between the City, Giorla, and Lawton that might provide some basis for finding the existence of a conspiracy.
Am. Compl. at ¶ 89.
Jones v. City of Phila. , 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006).
See Mount Airy # 1, LLC v. Pa. Dep't of Revenue , 638 Pa. 140, 154 A.3d 268, 280 n.11 (2016).
See, e.g. , Ibn-Sadiika v. Cnty. Allegheny Dep't Ct. Rec. , 647 Fed.Appx. 60, 62 (3d Cir. 2016) ; O'Donnell v. Cumberland Cnty. , 195 F.Supp.3d 724, 730-31 (M.D. Pa. 2016) ; Mawson v. Pittston City Police Dep't , 2017 WL 4324840, at *16, 2017 U.S. Dist. LEXIS 8953, at *43 (M.D. Pa. Jan. 20, 2017) ; Hadesty v. Rush Twp. Police Dep't , 2016 U.S. Dist. LEXIS 32831, at *15 (M.D. Pa. Mar. 15, 2016).
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Bistrian , 696 F.3d at 367 ; Paulino v. Burlington Cty. Jail , 438 Fed.Appx. 106, 109 (3d Cir. 2011) ; Gibson v. Steelton Police Dep't , No. 12-1328, 2012 WL 3686775, at *5 (M.D. Pa. Aug. 7, 2012), report and recommendation adopted , No. 12-1328, 2012 WL 3687887 (M.D. Pa. Aug. 27, 2012). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4261092/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
EARL ALLEN POTEAT, III, )
)
Appellant, )
)
v. ) Case No. 2D17-621
)
JULIE ANNE POTEAT, )
)
Appellee. )
)
Opinion filed April 4, 2018.
Appeal from the Circuit Court for Pinellas
County; Amy M. Williams, Judge.
Joy Ann Demas of Steven J. Glaros and
Associates, Tampa, for Appellant.
Julie Anne Poteat, pro se., Appellee.
PER CURIAM.
Affirmed.
VILLANTI, MORRIS, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4035475/ | Order entered September 16, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00363-CR
ALIREZA NIKMANESH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-80085-2015
ORDER
The Court REINSTATES the appeal.
On August 15, 2016, we ordered the trial court to make findings regarding why the
reporter’s record had not been filed. We ADOPT the September 14, 2016 findings that: (1)
appellant desires to pursue the appeal; (2) appellant is indigent and is represented by John
Schomburger; (3) the court reporter was Karla Kimbrell; and (4) the trial court recommended an
extension until September 16, 2016. We ORDER court reporter Karla Kimbrell to file the
reporter’s record in this appeal no later than September 19, 2016.
/s/ ADA BROWN
JUSTICE | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068634/ | MANDATE
THE STATE OF TEXAS
TO THE PROBATE COURT NO 1 OF BEXAR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on September 9, 2015, the cause upon appeal to
revise or reverse your judgment between
Estate of Rebecca Quirin Marshall, deceased, Appellant
V.
No. 04-15-00521-CV and Tr. Ct. No. 2014-PC-3055
was determined, and therein our said Court of Appeals made its order in these words:
In accordance with this court’s opinion of this date, the petitioner’s
request for permission to appeal an otherwise non-appealable order is
DENIED, and this cause is remanded to the trial court. Costs of court for this
petition for permissive appeal are taxed against petitioner Rebecca Genevieve
Hanna, as Independent Executrix of the Estate of Rebecca Quirin Marshall,
Deceased.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.
WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of
Texas, with the seal of the Court affixed and the City of San Antonio on November 18, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853
BILL OF COSTS
TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO
No. 04-15-00521-CV
Estate of Rebecca Quirin Marshall, deceased
v.
(NO. 2014-PC-3055 IN PROBATE COURT NO 1 OF BEXAR COUNTY)
TYPE OF FEE CHARGES PAID BY
STATEWIDE EFILING FEE $20.00 E-PAID LISA YBARRA
SUPREME COURT CHAPTER 51
FEE $50.00 E-PAID LISA YBARRA
FILING $100.00 E-PAID LISA YBARRA
INDIGENT $25.00 E-PAID LISA YBARRA
Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00
Court costs in this cause shall be paid as per the Judgment issued by this Court.
I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF
TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of
THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and
payments, in the above numbered and styled cause, as the same appears of record in this office.
IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for
the Fourth District of Texas, this November 18, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853 | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434697/ | Action for specific performance of a real estate contract between plaintiff-vendor and defendant-vendee. Defendant refused performance contending the title, as submitted, is not merchantable. The trial court held otherwise, ordered specific performance, and defendant appeals.
While the case is triable de novo, it being in equity, the facts are not in dispute. The questions raised on this appeal are strictly legal. The real estate involved is described as "Lot 94 in Capitol Heights, No. 2, an Official Plat in Polk County, *Page 1077
Iowa." On September 1, 1941, title to said property appears in the name of T.J. Nolan. On that date Nolan contracted to convey the same to Arthur A. Bristow. Warranty deed was executed by Nolan to Bristow December 20, 1946, and recorded January 15, 1947. The contract of sale between Bristow and Pagano, entered into in November 1946, was the usual form of real estate contract and called for merchantable title in seller.
The abstract of title shows that in August 1946 Arthur A. Bristow brought suit for divorce from his wife, Beulah M. Bristow. Service was by publication. In the petition Bristow alleges that he is a resident of Polk County, Iowa; that he owns the property here involved, and asks that he be granted a divorce and title to the property quieted in him.
Default decree was entered October 12, 1946. On October 18, 1946, the attorney for Bristow filed an affidavit of nonmilitary service of Beulah Mary Bristow, alleging in part that she is not entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. § 501 et seq., and amendments thereto. On January 7, 1947, a similar affidavit was filed by Arthur A. Bristow.
Appellant alleges the title is not merchantable for three reasons, all based upon the divorce action. They are: (1) No jurisdiction over defendant (2) decree invalid as two causes of action were joined, contrary to law, and (3) failure to file an affidavit of nonmilitary service prior to the decree clouds the title.
[1] I. As to the trial court's jurisdiction: The petition alleges plaintiff is a resident of Polk county, but does not state what township thereof. This constitutes the alleged error. Chapter 598, Code, 1946, on Divorce, section 598.1, thereof, says:
"The district court in the county where either party resides has jurisdiction of the subject matter of this chapter."
Section 598.3, states in substance that, except where the defendant is a resident of the state and served by personal service, the petition must allege that plaintiff has been a resident of the state for the last year, specifying the township and county. This section deals with what the petition must contain. *Page 1078
It does not in any way, go to the question of jurisdiction over the person of the defendant, which in this case, is controlled by Rule 60, Rules of Civil Procedure. The petition states plaintiff is a resident of Polk county, which under section 598.1 confers jurisdiction over the subject matter. See Gelwicks v. Gelwicks,160 Iowa 675, 142 N.W. 409. There is no merit in this claimed error.
[2] II. Was there a misjoinder of causes of action? Section598.2, Code, 1946, provides:
"An action for a divorce shall be by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith."
In the divorce petition, plaintiff stated he owned the property and asked that title be quieted in him. In substance he asks that, on a divorce being granted, defendant's inchoate dower interest be cut off. The granting of the divorce alone would accomplish this purpose without any prayer therefor. We consider this prayer "that title * * * be quieted in his name" is in a sense surplusage and certainly not a "misjoinder of another cause of action" within the intent of section 598.2. Under section598.14, the court has express authority to deal with this property. This section states:
"When a divorce is decreed, the court may make such order in relation to the * * * property * * * of the parties as shall be right."
[3] III. What is the effect of not filing a nonmilitary affidavit until after the decree was entered? Under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App., section 520, in the event of a default of appearance by a defendant, the plaintiff before entering judgment is required to file an affidavit showing whether or not such defendant is in the military service. Irrespective of the affidavit, if a judgment is entered against one in military service and it appears he has been prejudiced by reason of such service from making a defense, such person may within ninety days after termination of the military service, upon showing a meritorious or legal defense, *Page 1079
have the cause reopened. However, vacating, setting aside or reversing any judgment because of any provisions of the section does not impair any right or title acquired by any bona fide purchaser for value under such judgment.
It has been consistently held that this affidavit is not jurisdictional. That a default judgment is not void but merely voidable at the behest of the serviceman. Hynds v. City of Ada ex rel. Mitchell, 195 Okla. 465, 158 P.2d 907; State ex rel. Smith v. District Court, 55 Mont. 602, 179 P. 831; American Law of Veterans, section 894; Snapp v. Scott, 196 Okla. 658,167 P.2d 870. If the affidavit had been filed, the same right of reopening would exist as in case of no filing. In all cases where default judgments are entered, during the continuance of the Soldiers' and Sailors' Civil Relief Act, there is a possibility that they may be reopened where a nonmilitary affidavit is filed. Does this possibility create a cloud on title such as to render a title nonmerchantable? The rule as to merchantable title as stated in Smith v. Huber, 224 Iowa 817, 277 N.W. 557, 115 A.L.R. 131, is whether a man of reasonable prudence, familiar with the facts and familiar with the questions of law involved, would, in the ordinary course of business, accept such a title as can again be sold to a reasonable purchaser. If an affidavit had been filed reliance upon the sanctity of the oath would have satisfied any question as here raised, although the same "alleged cloud" existed. The affidavit here filed, although late, states that defendant is not entitled to the benefits of the act. Presumably this affidavit is true.
[4] The mere possibility of a defect, which, according to ordinary experience, has no probable basis, does not show an unmarketable title; the mere possibility or suspicion of a defect is not sufficient if the title is such that it ought to satisfy a man of ordinary prudence. 55 Am. Jur., Vendor and Purchaser, section 167; Buchan v. German American Land Co., 180 Iowa 911, 164 N.W. 119, L.R.A. 1918A, 84.
Finding no error, the decree of the trial court should be and is affirmed. — Affirmed.
OLIVER, C.J., and BLISS, HALE, GARFIELD, SMITH, MANTZ, and MULRONEY, JJ., concur. *Page 1080 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434714/ | This case is before us on resubmission after granting a rehearing, our opinion appearing in 282 N.W. 540.
The information upon which appellant was tried charged that on February 9, 1937, in Johnson County, Iowa, he willfully, unlawfully, deliberately, premeditatedly, feloniously, designedly, with malice aforethought, and with the specific intent to kill, murdered Mrs. Mabel Rhodes, his wife, in the following manner: the said Walter H. Rhodes willfully deposited in a shotgun dynamite or other explosive material and thereafter and then and there did induce Mrs. Mabel Rhodes, his wife, to use and explode the said gun, thereby killing the said Mrs. Mabel Rhodes, his wife.
[1, 2] Appellant interposed a demurrer to the information, claiming in substance, that (1) the information was duplicitous and (2) that the information did not charge the appellant with first degree murder as defined by Code section 12911, but if any crime is charged in the information it is the crime defined by Code section 12961, which reads:
"12961. Death caused by high explosives. If any person wilfully deposits or throws in, under, or about any dwelling house, building, boat, vessel, or raft or other inhabited place, where its explosion will or is likely to destroy or injure the same, any dynamite, nitroglycerin, giant powder, or other material, and by reason of the explosion thereof any person is killed, he shall be guilty of murder."
The trial court overruled the demurrer. Appellant's first assignment of error is based on the action of the court in overruling the demurrer. There is no merit in appellant's contention and the assignment does not warrant a discussion.
[3] The remaining assignments of error complain of the rulings of the trial court in overruling appellant's challenges to the jurors for cause. Appellant exhausted his peremptory challenges and strikes, and was compelled to accept the juror, J.A. Zenishek.
Code section 13830 reads:
"13830. Challenges for cause. A challenge for cause may be made by the state or defendant, and must distinctly specify the facts constituting the causes thereof. It may be made for any of the following causes: *Page 335
"* * *
"11. Having formed or expressed such an opinion as to the guilt or innocence of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial."
The question to be determined on this appeal is whether the trial court erred in overruling appellant's challenge to juror Zenishek for cause; that is, had this juror formed or expressed such an opinion as to the guilt of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial?
On direct examination, Mr. Zenishek stated that he did not know of any reason that would prevent him from sitting as a trial juror in the case and to serve as such fairly and impartially; that he would give the evidence introduced by both the state and defense thoughtful, careful and diligent consideration; that he would be guided by the instructions of the court; and that he would be willing to arrive at his verdict based solely on the evidence introduced in the trial of the case.
On cross-examination, he testified that "if the crime charged in the information is that this defendant killed his wife" he would make the state prove, beyond a reasonable doubt, what act defendant did to kill his wife; that he would be a fair and impartial juror in the case. On further cross-examination, he testified:
"Q. Have you read the accounts of this alleged crime in the various newspapers? A. Some.
"Q. Have you ever heard it discussed or discussed it? A. Some.
"Q. I suppose the facts alleged in the newspapers were set out therein as being the facts in this case, weren't they? A. I don't know.
"Q. So far as you know, I suppose? A. Yes.
"Q. From reading the papers and from the discussion that you have heard and had, have you formed an opinion which has been fixed in your mind as to the guilt or innocence of this defendant? A. Well, some.
"Q. In other words, you have fixed an opinion from reading the newspapers and from the discussion you have *Page 336
heard, as to the guilt or innocence of the defendant, haven't you? A. Yes, sir.
"Q. And that opinion is such an opinion as would require some evidence to the contrary to remove it, wouldn't it? A. Yes, sir.
"Q. And I suppose you would have to hear evidence from some witnesses different from what you have already heard before you would be willing to change this opinion, is that correct? A. Well, I suppose.
"Q. In other words I suppose, Mr. Zenishek, if you entered the jury box with that opinion in your mind that you have already formed, that it would remain with you unless you heard some evidence to the contrary? A. Yes, sir.
"Q. And that if no such evidence were introduced to change that opinion you would still have it during the trial? A. Yes, sir.
"Q. And this opinion you have already formed would influence your verdict in this case if you sat as a juror? A. Well, it may."
Appellant then challenged the juror for cause for the reason that the above examination showed that he had a fixed opinion as to the guilt or innocence of appellant. Mr. Zenishek again testified on re-direct examination that he, under his oath as juror, would decide the case solely upon the evidence introduced and the instructions of the court.
He further testified:
"Q. Now this opinion you have, that you say you have, is one that is based solely upon what you have read in the newspapers? A. Yes, sir.
"Q. So that you don't know whether or not this opinion — what you have read about, is true or not? A. No, sir.
"Q. Do you understand, Mr. Zenishek, that there exists a presumption of innocence which exists in behalf of the defendant? A. Yes, sir.
"Q. If you have taken this oath as a juror and you sit on the trial of this case, could you lay aside that opinion and try this case solely and entirely upon the evidence introduced in the trial of this case? A. Yes, sir.
"Q. And you could do that? A. I think so. *Page 337
"Q. And would you do that? A. I think so.
"Q. Would you lay aside that opinion? A. I think so.
"By the court: Do you feel that this opinion which you may have formed, would in any manner interfere with your rendering a fair and impartial verdict if you are chosen as a juror? A. I don't think so.
"Q. You don't think so? A. No.
"The court: The challenge for cause is overruled."
The juror was asked, "from reading the papers and from the discussion that you have heard and had, have you formed an opinion which has been fixed in your mind as to the guilt or innocence of this defendant?" He answered, "well, some." Prior to this place in the examination, the juror had testified that there was no reason why he could not sit as a fair and impartial juror on the case and that he would rest his verdict solely on the evidence introduced and the instructions of the court. Nothing had been said about a "fixed" opinion. The question called for an affirmative answer and the answer given was "well, some."
In the case of State v. Vatter, 71 Iowa 557, 32 N.W. 506, a prospective juror first stated that he did not have an opinion which would prevent him from rendering a true verdict. On cross-examination, in answer to the question whether his opinion was unqualified, he stated that it was. The court then states in 71 Iowa on page 558, 32 N.W. on page 507:
"But all through their examination they appeared to adhere to the belief that they had no opinion which would prevent them from rendering a true verdict according to the evidence. It is a very rare thing that a person called as a juror, who has heard the facts connected with the case, and has formed some kind of an opinion in reference thereto maintains entire consistency in his examination as to his qualifications as a juror. The difficulty arises from the fact that many of them do not understand the difference between a qualified and an unqualified opinion, and, the questions being put to them in a leading form, there is often an apparent contradiction in the answers given. We think, when the whole examination of the jurors in question is considered, the court did not err in overruling the challenge for cause." *Page 338
In the case of State v. Burzette, 208 Iowa 818, 823,222 N.W. 394, 396, Justice Evans, speaking for the court, stated:
"In response to the examination of defense counsel, the juror said he had such an opinion as would require evidence to remove. The state of mind thus described is incorporated in the question. It is a stock question, and is too hoary to be condemned. It must be said, nevertheless, that it serves little function in ascertaining the real state of mind of a juror. The question calls for an affirmative answer, and always receives one. The problem is then laid upon the juror to harmonize such answer with other answers to the effect that he can lay his opinion aside and render a verdict upon the evidence and the instructions, uninfluenced by such opinion. The skill of counsel in such a dialogue is usually superior to that of the juror, and this fact is not to be ignored by the court in determining the qualification of a juror. This juror answered repeatedly that he could lay aside the opinion he formed, and that he could try the case upon the evidence and the instructions, without regard to such opinion. We think the examination as a whole brought the question fairly within the discretion of the trial judge, and within the rule which we have heretofore laid down in many of our prior cases."
Mr. Zenishek testified that he knew that there was a presumption that the appellant was innocent. It does not appear that he had a conviction that appellant was guilty or that he believed that what he read in the newspapers was true. He stated he did not know whether what he had read or heard was true or not.
The entire examination of Mr. Zenishek satisfies us that he had not formed an unqualified, fixed opinion as to the guilt of appellant. His opinion was based solely on hearsay and on the hypothesis that what he had read and heard was true. He repeatedly testified that he could and would lay aside his opinion and decide the case solely on the evidence and the instructions of the court. The fact that he had an opinion which would require evidence to remove does not, in the light of the entire examination of the juror, establish that he had formed an opinion as to the guilt of appellant that would prevent him from rendering a true verdict upon the evidence *Page 339
submitted on the trial of the case. State v. Lawrence, 38 Iowa 51; State v. Bruce, 48 Iowa 530, 30 Am. Rep. 403; State v. Sopher, 70 Iowa 494, 30 N.W. 917; State v. Vatter, 71 Iowa 557,32 N.W. 506; State v. Smith, 73 Iowa 32, 34 N.W. 597; State v. Bone, 114 Iowa 537, 87 N.W. 507; State v. Brown, 130 Iowa 57,106 N.W. 379; State v. Ralston, 139 Iowa 44, 116 N.W. 1058; State v. Hassan, 149 Iowa 518, 128 N.W. 960; State v. Teale, 154 Iowa 677,135 N.W. 408; State v. Williams, 197 Iowa 813, 197 N.W. 991; State v. Harding, 205 Iowa 853, 216 N.W. 756; State v. Reed,205 Iowa 858, 216 N.W. 759; State v. Wheelock, 218 Iowa 178,254 N.W. 313.
In the case of State v. Lawrence, 38 Iowa 51, the juror testified that he had read the newspaper accounts of the killing of decedent; that he believed the man had been murdered and that the defendant did it and that it would take some evidence or explanation to remove that opinion from his mind; that he had no prejudice against defendant and based his opinion entirely on rumor and newspaper reports; that he had no personal knowledge of the facts and that he could decide the case with the same impartiality that he would have if he had never heard of the case. The court states [38 Iowa 51, 54]:
"It is scarcely possible in a community where an act has been done which startles and attracts the public mind, to obtain a juror, who should be entrusted with so grave a matter as the determination of the question of the guilt or innocence of the accused, whose mind has received no impression with regard to the case. Either from public rumor, or newspaper reports, almost every person competent to serve as a juror, will have learned something in regard to the circumstances attending the commission of the alleged offense. And, as some impression, more or less strong is almost invariably made by such reports, the rule which would demand a juror with no opinion respecting the case, would in cases attracting public attention, and in which intelligence is most needed, practically exclude every intelligent man from the jury."
In State v. Reed, 205 Iowa 858, 216 N.W. 759, a juror testified that he had formed an opinion on the assumption that what he had heard and read was true; that his opinion was qualified; that he would lay it aside, and expected to lay *Page 340
it aside, when he got evidence to change it, but not until then. He testified that he could decide the case solely upon the evidence and the court's instructions, lay aside all that he had heard and would disregard any opinion which he had formed. The court states in 205 Iowa on page 859, 216 N.W. on page 759:
"The trial court was the trier of fact on the question of the existence of this ground of challenge. He must be, and is, invested with discretion in passing upon the question of disqualification for such reason. The testimony here is quite different than that presented in the former appeal, 201 Iowa 1352. There, the juror testified that he did not think that he could enter the trial of the case, knowing what he did about it, and still give the benefit of the presumption of innocence to the defendant. The court was within his province in overruling the challenge, and we ought not to interfere with his action. State v. Teale, 154 Iowa 677; State v. Krampe, 161 Iowa 48, 52; State v. Hassan, 149 Iowa 518; State v. Harding, 205 Iowa 853."
It must be conceded, and it is conceded, that the trial court had a large discretion in allowing or disallowing the challenge and that this court will not interfere with the ruling unless there has been a clear abuse of discretion. The ruling of the trial court overruling appellant's challenge was well within his judicial discretion and there was clearly no abuse of the discretion reposed in the trial court.
Appellant cites, among other cases, State v. Crofford, 121 Iowa 395,96 N.W. 889; State v. Teale, 154 Iowa 677, 135 N.W. 408; State v. Reed, 201 Iowa 1352, 208 N.W. 308.
In the case of State v. Crofford, supra [121 Iowa 395,96 N.W. 891], the juror testified on his voir dire examination that he lived in the same township as the girl that was alleged to have been murdered; that he had discussed the circumstances and heard the circumstances of the crime discussed; that he had read all the testimony of the defendant and believed it to be true; that he had "made up his mind." He stated that he was not unprejudiced and believed that what he had heard was true. After persistent cross-examination, he stated. "I think I would render an impartial verdict." The court held that the *Page 341
challenge to this juror should have been sustained. The court, in the Crofford case, supra, recognizes the rule established in the cases of State v. Lawrence, State v. Sopher, supra, and other cases cited above in the following language:
"In these days when the story of every alleged crime of a serious nature is promptly heralded by the newspapers, and comes quickly to the knowledge of the great body of intelligent citizens of the county, it is scarcely possible, even if it were thought desirable, to obtain a jury of average men having no impressions or opinions as to the merits of the case. In view of this fact we have in numerous cases refused to sustain an appeal based upon the overruling of challenges, where, notwithstanding such impressions or opinions, it fairly appears that the juror is fair-minded and unprejudiced, and is able and willing to render an impartial verdict. * * *. It is readily conceivable that an opinion of a defendant's guilt may be so qualified in the juror's mind as not to be a sufficient ground of challenge. For instance, a juror who says that, if the statements he has heard or read be true, then, in his judgment, the accused is guilty, is not necessarily subject to challenge. * * *. In such case the opinion of guilt is based upon the hypothesis that certain facts exist, but the truth of the hypothesis itself is a matter upon which the juror's mind is still open and undetermined. Where, however, the juror discovers that he has become convinced of the truth of the alleged evidence, and therefrom has reached a satisfactory conclusion of the guilt of the accused, a very different situation is presented."
[4] The court in the Crofford case, supra, distinguishes, and we think properly so, the state of mind of a juror who believes the hearsay is true and has made up his mind and has a conviction that the defendant is guilty and the state of mind of a juror who does not know whether the rumors are true and who bases his opinion on the mere assumption that the hearsay is true. In the former case, the following statement in the Crofford case in 121 Iowa on page 400, 96 N.W. on page 891, is applicable:
"A person accused of crime should bear no greater burden than is created by the evidence produced against him on the trial, and the juror who passes upon that evidence should come *Page 342
to its consideration unhampered, and unembarrassed by any ready-formed convictions as to the vital fact or facts in controversy." (Italics supplied.)
The case of State v. Crofford, supra, may be distinguished from the instant case on the facts.
Appellant especially relies for reversal on the dictum found in the case of State v. Teale, 154 Iowa 677, 681, 135 N.W. 408, 410. In the Teale case, the juror testified that he had formed an opinion as to the guilt of the defendant based upon what had been told him and that "it might be hard to lay the opinion aside, and that it might, to some extent, influence his verdict." A challenge was then interposed. The juror subsequently testified that he thought he could lay aside the opinion he already had and try the case and render his verdict solely on the evidence. The court then states:
"In the examination of jurors as to their qualifications to try a case, the sole question to be determined by the trial court is whether they can fairly and impartially hear the evidence, and render a verdict thereon which shall be entirely free from the aid or influence of previous knowledge or preconceived opinions. And in the very nature of the situation the trial court must be given discretion in such matters which will not be interfered with, unless an abuse of discretion be shown. State v. Hassan,149 Iowa 518; State v. Bone, 114 Iowa 537; State v. Brown,130 Iowa 57.
"A person is qualified to act as a juror when it is apparent from his entire examination that, notwithstanding his present knowledge of the facts or any opinion which he may have formed therefrom, he can try the case fairly and impartially on the evidence alone. State v. Rohn, 140 Iowa 640; State v. Ralston,139 Iowa 44. In this case we think it apparent from the examination of the juror that he did not have such a fixed and unqualified opinion as to disqualify him. Under the rule of the cases supra, we think there was no error in overruling the challenge."
After the court overruled the challenge, it uttered the dictum on which appellant relies which we quote:
"We are constrained to say in this connection, however, that we see no occasion in the ordinary administration of the *Page 343
criminal law in this state for the close rulings on the qualifications of jurors that are constantly brought to our attention. Although a ruling may be technically right, if it must be so doubtful as to raise a fair question as to its correctness, it is far better to give the accused the benefit of the doubt, to the end that he and all other men may be satisfied that his rights have not been invaded. Confidence in the fairness and impartiality of each member of a jury, which shall be sworn to try a man of a charge involving his life or liberty, is of the greatest importance to the welfare of the state. Indeed, it is of such paramount importance to every citizen that the time and expense necessary to secure jurors as to whom no doubt may rightly exist is an insignificant consideration."
The quotation relied on by appellant is obviously in conflict with the holding in the case which is in harmony with the rule adhered to in this case and established by a long line of decisions of this court.
In State v. Reed, 201 Iowa 1352, 1353, 208 N.W. 308, 309, the juror testified, among other things, that "`I don't think that I could enter the trial of this case, knowing what I do about it, and still give the benefit of the presumption of innocence to the defendant.'" The juror manifestly had a fixed, unqualified opinion of the guilt of the defendant based on his own knowledge. See State v. Reed, 205 Iowa 858, 216 N.W. 759.
Appellant refers us particularly to the following portion of the juror's examination:
"Q. If you have taken this oath as a juror and you sit on the trial of this case, could you lay aside that opinion and try this case solely and entirely upon the evidence introduced in the trial of this case? A. Yes, sir.
"Q. And you could do that? A. I think so.
"Q. And would you do that? A. I think so.
"Q. Would you lay aside that opinion? A. I think so."
[5] With reference to the answers "I think so" appellant states in argument "is there any doubt in anyone's mind but that juror Zenishek had distinct misgivings as to his own capacity to do the things that he was asked if he could do by the state?" The first answer was a positive "yes, sir." It was *Page 344
the duty of the trial court, in the exercise of his discretion, to decide the question, not from isolated answers, but on the entire examination of the juror. The construction of the answers "I think so" is necessarily influenced by other answers of the witness and his voice, manner and bearing while testifying. We think it is manifest that the witness did not intend to imply that he had a doubt of his ability to decide the case solely on the evidence. The trial court heard and observed the witness, and, after careful examination of the transcript, we find no reason for interfering with his conclusion.
In view of our prior decisions, we hold that the trial court did not abuse its discretion in holding that juror Zenishek had not formed such an opinion as to the guilt of appellant that would prevent him from rendering a true verdict upon the evidence submitted on the trial.
Finding no error, the case is affirmed. Our prior opinion, appearing in 282 N.W. 540, is withdrawn. — Affirmed.
OLIVER, C.J., and HAMILTON, MILLER, BLISS, and HALE, JJ., concur.
SAGER, MITCHELL, and RICHARDS, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434718/ | There is much contention between the parties as to the issues, but in the view we take of the case it will not be necessary to discuss or decide the precise nature of the pleadings.
Defendant admits the issuance of the policy and the loss but denies liability, on grounds which may be summed up as alleging: (1) That the ownership of plaintiff was not unconditional, as the policy required it to be; (2) that the property was not kept on the location described in the policy but was moved to another; and (3) increased hazard by reason of such removal. For these reasons and the deductions drawn therefrom the policy did not cover the destroyed property and the risks assumed.
The parties argue vigorously about conditions precedent and conditions subsequent, but this, like the discussion of the pleadings, calls for little attention — this because of the theory upon which the case was tried.
The court submitted the case to the jury on the theory upon which it was tried, to wit: Did or did not defendant waive the stipulations and conditions of the policy by its conduct after loss? If the submission on this theory was sound, (and an examination of the record satisfies us that it was), there would *Page 849
be no profit in scrutinizing what had gone before. The policy undertook to pay, in case of loss, $2,500 on "stock of merchandise consisting chiefly of New Farm Implements, new andold cars, tools, equipment, and such other merchandise as is usually kept for sale in an automobile garage and repair shop; and, provided the insured is legally liable therefor, this item shall also cover such merchandise held in trust, or on commission, or sold but not delivered; all only while contained in the above described building. This item shall also cover said merchandise within one hundred (100) feet of the above described building while on sidewalks, streets, alleys, yards, detached platforms and in or on vehicles or railway cars; also on said merchandise while on platforms in contact with above described building." (Italicized portion is the typewritten part.)
As has been said, the loss is admitted, and no question of proof of loss or of its sufficiency is presented. Its value was proven sufficiently as the record is made up.
The case turns on the question raised by the reply, that all the matters asserted as a defense had been waived. Under proper instructions the court presented all the contentions made by the defendant. Thus, it appearing that the plaintiff was not the sole and unconditional owner, he was required to prove by a preponderance of the evidence that the defendant, with full knowledge of the facts in this regard, disclosed to its agent by plaintiff, admitted its liability and waived the provisions of the policy on this point. So, too, with reference to the defense of the location on lot 13 when the policy covered the property only on lots 9 and 10 in Havelock, with the qualification appearing in the portion quoted above.
[1] Plaintiff was held by the instructions to the full measure of proof required by law; and there was excluded from the consideration of the jury, as being waived, anything of which the defendant had full knowledge. The jury was charged in effect that plaintiff must meet every defense of defendant and that he could not recover unless waiver was proven by a preponderance of the evidence.
The court in instruction No. 5 succinctly sums up the focal point in the trial in this language:
"The defendant would not be liable under the policy for tractors kept in any other place, than as provided in the policy, *Page 850
unless it, with full knowledge of the facts, waived its right to insist that it was not liable for the loss occasioned to these tractors because of the provisions of the policy quoted in connection with the second, third, and fourth separate defenses, as set forth in Instruction No. 1. The plaintiff claims that in this connection he and his attorney went to the office of the defendant association in Le Mars, Iowa, and there was a conference between them and R.J. Koehler, the Secretary of the Association; that after a discussion of matters in dispute, the Secretary of the Association, with full knowledge of all the facts, admitted the liability of the association for the loss and requested plaintiff to furnish proof of loss and report on salvage, if any, from the damaged tractors, and if you further find that plaintiff incurred expense in making proofs and obtaining a report as to the salvage, then you will be warranted in finding that the defendant association waived the provisions in the policy set out in connection with the second, third, and fourth separate defenses, to which your attention was directed in Instruction No. 1."
The second, third, and fourth defenses referred to are: Removal to a location other than that specified in the policy; that the property was not in fact in the location described; and increased hazard, respectively.
[2] We are not concerned here with what our own views may be as to the sufficiency of the evidence to sustain the verdict, nor with how we would decide were the matter before us. There was clearly a disputed fact question, which was for the jury, and its decision controls.
[3] We do not overlook the complaint of refusal to give a requested instruction, but its substance is fully covered in those given. An examination of the instructions as a whole leaves a distinct impression of fairness, and we find no ground of complaint on the part of defendant.
What has been said disposes of the question raised by the various motions and complaints made by the defendant. If we seem to avoid herein an extensive examination of the points, we confess that it is done advisedly. This cause calls for no pronouncements of value to anyone but the immediate parties thereto. We have given the briefs and arguments of the parties the attention which the diligence and learning of counsel deserve.
Many cases are cited to sustain contentions sound in their *Page 851
proper application but not pertinent here. For example, defendant quoted from Pierce v. Homesteaders Life Assn., 223 Iowa 211, 217,272 N.W. 543, 546, this:
"It has been repeatedly held that while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all."
To the same effect are cited many other cases. It seems scarcely necessary to point out that under the record before us, and as the case was tried, the principle announced may be admitted without changing the result.
So, too, are the citations of plaintiff. They announce familiar and well established rules. These cases are cited to support the rule that in cases of doubt a construction favorable to the insured should be adopted; that a company may waive any conditions of the contract in its behalf; that a party may not complain of an instruction which embodies the substance of one asked for.
The parties hereto contend not so much over the rules of law as they do over their correct application.
On a careful examination of the record we are satisfied that the court correctly submitted the issues as the parties made them. It submitted under proper instructions a question of fact properly for a jury to decide. On its decision is based the judgment from which the appeal is taken. Finding no error, the case should be, and it is affirmed. — Affirmed.
MITCHELL, HAMILTON, ANDERSON, DONEGAN, KINTZINGER, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434719/ | The charge against the defendant is that of rape, alleged to have been committed upon the prosecutrix, forcibly and against her will.
One of the contentions of the appellant is that the place of the commission of the offense was not established by the evidence as being in Polk County. One of the witnesses for the State testified, in substance, that the place of the 1. CRIMINAL crime was about one mile west of Fort Des LAW: venue: Moines, and that it was about two blocks south evidence. and one block east of the paved road which runs in a westerly direction from said fort, and that she knows that said place is in Polk County. Thus, the venue is clearly established as being in Polk County, and the aforesaid contention of the defendant is devoid of merit.
The defendant complains that the evidence is insufficient to support the verdict. The crime charged involves force on the part of the assailant, and the utmost resistance on the part of the prosecutrix. State v. Ward, 73 Iowa 532. The 2. RAPE: phrase "the utmost resistance" is a relative elements: one, and the resistance may be more violent and resistance. prolonged by one woman than by another, or in one set of attending physical circumstances than in another; but whatever the circumstances may be, there must be the greatest effort of which the woman is capable, to foil the assailant and preserve the sanctity of her person. State v. Morrison, 189 Iowa 1027.
"From the authorities as a whole, it fairly appears (1) that resistance by the female is an issue in a trial for rape only as it is involved in the necessary proof of her want of consent; (2) that, to show such unwillingness, her resistance must be proportionate to the occasion, under the circumstances, and at the time of the act complained of: that is to say, in ordinary cases, there *Page 124
must be resistance to the utmost, or at least to the extent of her ability * * *." State v. Cowing, 99 Minn. 123 (9 Ann. Cas. 566).
Therefore, if, under the aforesaid rules of law, the jury were warranted in finding force on the part of the defendant, and resistance on the part of the prosecutrix to the extent of her ability, under the existing facts and circumstances, then the evidence is sufficient to support the verdict. There is no question of the want of evidence corroborative of the prosecutrix, tending to connect the defendant with the offense.
The prosecutrix testified as to the completed act of sexual intercourse, while the defendant denies the same. That question was certainly for the determination of the jury.
We have read the record with care, and no useful purpose would be served by setting out the evidence in detail. It is sufficient to say that, from the facts, as revealed by the record, the jury could well find, as they did, force on the part of the defendant, and resistance on the part of the prosecutrix to the extent of her ability, and by reason of such resistance, lack of consent by her.
The defendant lays great stress, in his argument, on the fact that the dress of the prosecutrix was not torn. It is apparent that, in cases of forcible rape, with the dresses the length which is in accordance with the fashion of to-day, they are not nearly so apt to become torn as in the olden days, when Dame Fashion brought the dresses to the ankles. What is said about torn garments in the early cases when the long dress prevailed, can hardly be applicable to the present-day fashions. The untorn short dress of the prosecutrix is not sufficient to overcome all of the other evidence tending to establish the guilt of a depraved character in making a forcible attack upon the virtue of womanhood.
The evidence in the case is much stronger as against the defendant than was the testimony in State v. Geier, 184 Iowa 874, wherein we held the evidence sufficient for conviction. The defendant relies upon Reinwaldt v. Hulsebus (Iowa), 195 N.W. 216 (not officially reported), and the cases therein cited; and so does the State. It is true that in that case we disregarded such expressions as "pulled me" and "dragged me," and said that *Page 125
such expressions should not be permitted either to take the place of evidence of facts or to override the detailed facts described by the witness. It is obvious from the record of the evidence that the instant case is clearly distinguishable from that case: for, all such expressions being disregarded, there was evidence that the prosecutrix in this case screamed for help and fought with her hands; that he had forced her legs apart, and, over all protestations and pleadings, he held his hand over her mouth and nose, smothered and overpowered her, and accomplished his evil purpose. Under the facts and circumstances of this case, it was for the jury to say whether the act was committed by force, and against every resistance which, under the circumstances, she was capable of rendering.
The sole remaining complaint of the appellant is that the county attorney, in his closing argument to the jury, was guilty of misconduct which was prejudicial to the defendant. The alleged objectionable language is: 3. CRIMINAL LAW: trial: "Mr. Baker [attorney for appellant] called the argument: defendant a man. Call that man a man? Yes, I noninflamma- will call him a man, because it would be an tory insult to a brute to call him a brute. Why, he argument. would get down in the grass and wiggle around on his belly with the snakes; he would get down and crawl with the snakes and let them spit in his face and spit venom on his body."
This much of the county attorney's argument was made of record, and the defendant excepted thereto, and asked that the jury be instructed not to consider such argument in arriving at their verdict; but the court made no ruling thereon, saying, "You may proceed with the argument." This matter was again presented to the trial court in the motion for new trial, which was overruled. No record was made of the argument that was made to the jury in behalf of the defendant. However, it is apparent that the foregoing argument by the county attorney was in response to language used in argument by the attorney for the defendant; but what language was used by the attorney for the defendant, to which this argument was made in reply, is not shown, other than what the reply itself discloses. Also, this response by the county attorney was undoubtedly prompted by the testimony relative to the act of intercourse by force with the *Page 126
prosecutrix during her menstrual period, and the indecent alternative proposition submitted by the defendant to the prosecutrix, wherein he said: "I will show you I am a man, andgive you a choice between two things," etc. In People v. Lambert,144 Mich. 578 (108 N.W. 345), State v. Allen, 174 Mo. 689 (74 S.W. 839), State v. Riggio, 124 La. 614 (50 So. 600), being cases somewhat similar to the instant case, the attorney for the State in his argument referred to the defendant as a brute; and it was held that the alleged abusive language, under the circumstances, as disclosed by the evidence, did not constitute reversible error. In 16 Corpus Juris 910, it is appropriately stated that the better rule seems to be that, if the facts are in evidence which prove, or tend to prove, that defendant is a bad character, it is not error for the prosecuting attorney to employ epithets, although abusive, in referring to him. It can hardly be claimed that the defendant, as shown by his conduct revealed by the record, is possessed of the principles of manhood. It is not claimed that there was any misstatement of the testimony by the county attorney. In State v. Biewen, 169 Iowa 256, we said:
"We may well assume that counsel for defendant had appealed to the jury in behalf of their client, and had marshaled every fact and inference in his behalf; and we are not ready to say that it is improper practice for the State to meet them with argument of like character. `Within reasonable limits, the language of counsel in argument is privileged, and he is permitted to express his own ideas in his own way, so long as they may fairly be considered relevant to the case which has been made. No lawyer has the right to misrepresent or misstate the testimony. On the other hand, he is not required to forego all the embellishments of oratory, or to leave uncultivated the fertile field offancy.'"
The trial court heard the testimony, and the argument of defendant's attorney, both of which prompted the reply argument of the county attorney; and while it would have been more in keeping with his official character if the county attorney had refrained from using some of the words which he did use, yet, under the facts, as disclosed by the record, the language was not such as to justify us in ordering a new trial of the case. Statev. *Page 127 Brandenberger, 151 Iowa 197; State v. Thomas, 135 Iowa 717; Statev. Burns, 119 Iowa 663.
Prosecutors should refrain from heaping unnecessary abuse upon the defendant. The language used by the county attorney was indeed strong and forceful. It is impossible to draw a dividing line as between proper and improper argument which is applicable to all cases. What may be proper argument under the record of one case may be improper language under the record of another case. All that we hold at this point is that, under the record of this case, the claimed improper argument by the county attorney is not sufficient to justify a reversal of the case and the ordering of a new trial.
Since we find no reversible error in the record, the judgment of the trial court is hereby affirmed. — Affirmed.
STEVENS, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434720/ | The instant appeal is from a supplemental order and decree in a proceeding in probate involving the estate of one William Lear, deceased. Lear, a bachelor, died intestate February 4, 1922, in Hamilton County, Iowa. He had no known heirs. He died possessed of considerable personal property, and subsequently to the appointment of an administrator, a controversy arose between different lines of claimants to the estate. Petitions were filed by the various claimants, and, on October 20, 1924, the cause proceeded to trial.
On December 16, 1924, the trial court entered its findings, to the effect that the claims in the petition known as the Diana Lehr Lurch petition should be established, and that a judgment entry in harmony with the findings should be prepared by John J. Dwyer and Martin Alexander, attorneys for this line of claimants. On January 14, 1925, a judgment and decree so prepared was filed, which found and determined that the plaintiffs, Diana Lehr Lurch et al., were entitled, in the distribution of the estate of William Lear, to an undivided six sevenths of said estate, and decreed that six sevenths of said estate belonged to said claimants absolutely, and dismissed the claims of all other petitioners, as unfounded and unsustained by the evidence.
It was further ordered, after providing for payment of costs and inheritance taxes, that:
"In making distribution of the funds and property due said claimants, the amount due shall be paid to the attorneys of record for said claimants, and the receipt of said attorneys for said amounts shall be a sufficient receipt for the closing of this estate as to the claimants represented by them, and shall constitute proper vouchers in settlement by the administrator."
At this point it may be observed that the appellants herein were not parties to the original action, nor were they represented by counsel. They are present, if at all, on the theory of virtual representation. *Page 348
The record further discloses that, on April 29, 1925, the administrator filed his final report, in which are shown the disbursements made in conformity to the decree entered, and wherein it is further recited that:
"The heirship to the remaining one seventh of the estate had not been established or adjudicated by a decree of the court, and therefore we request that such kinship be first found and established by the court."
It is further recited in said report that the sum of $1,418.18, representing one seventh of the estate, to which the heirship was not established, was turned into the office of the clerk of the district court.
The administrator asked that the report be approved, the administrator discharged, and his bond exonerated. No order of this character was entered by the court; but, on April 30, 1925, the attorneys for the claimants named in the Diana Lehr Lurch petition filed their unverified petition to adjudicate heirship as to the one seventh of the estate of William Lear, and establish, by a decree, attorneys' fees in favor of the said attorneys. In this petition the said attorneys recite the work done by them in proving the identity of the heirs, the character of the original contest, and the result thereof, as defined by the terms and provisions of the decree entered, and it is further recited:
"That the heirs to said remaining one seventh, as shown by the testimony and proof adduced by said undersigned attorneys, are as follows: Charles Lehr, Hellerstown, Pennsylvania, nephew; Perman Lehr, Reading, Pennsylvania, nephew; Carrie Lehr Ehret, Mount Carmel, Pennsylvania, niece; and Lola Lehr Strawn, Bethlehem, Pennsylvania, niece; that said heirs are the children of Amos Lehr, deceased, brother of William Lehr, deceased; that each of said heirs is entitled to an undivided one twenty eighth of said estate; that the services of said attorneys in securing the proof of heirship and in presenting the same to this court was done with the knowledge of said heirs, and inured to their benefit; that said heirs stood by and permitted said services to be performed, knowing that the same would be to their advantage, and purposely refused to join with other heirs of their common ancestor in establishing their claims, in order to avoid their proportionate share of the expenses connected with the said proceedings; that a fee of 50 per cent of all the amount *Page 349
due each of said heirs is a fair and reasonable compensation for said Martin Alexander and John J. Dwyer, attorneys, for said services."
The said petition prayed that the remaining one seventh of said estate be established as set forth in the petition; that the attorneys' fee of the undersigned attorneys be fixed and established; and that the amount so fixed be decreed to be a lien on the respective distributive shares. No notice of this petition was ever served on the alleged heirs named in the petition, or upon the administrator of the estate, or upon any attorney.
On the 13th day of May, 1925, an ex-parte supplemental order and decree adjudicating heirship and establishing attorneys' fee was entered in the probate court, and in said supplemental order it was determined that the four persons heretofore named were entitled, in equal shares, to a distributive share, as heirs in the estate of William Lear, deceased, to the remaining one seventh of the estate; that the attorneys were entitled to 50 per cent of the amount due each of said heirs, as compensation for the services of said attorneys in securing the proof of heirship and presenting the same to the court; and that said services were performed with the knowledge of said heirs and for their benefit. It was ordered that the clerk of the court pay to the attorneys the sum of $709.09, taking their receipt therefor, and hold the balance, of $709.09, until such time as said heirs should file a proper receipt therefor.
On the 24th day of July, 1925, a motion was filed on behalf of the four persons heretofore named as heirs, to set aside the supplemental order and decree of May 13, 1925, on the following grounds: (1) That there is no jurisdiction on the part of the court to enter said order, for the reason (a) that no notice whatever was served upon the movants of the filing of said petition for supplemental order or of the hearing of said order, and that the movants neither consented to nor appeared thereto, and were in no wise represented therein; (b) that said petition was not filed as required by law; (c) that said hearing involved a property right, and by said supplemental order entered as aforesaid, the movants were deprived thereof without notice, and without due process of law, and in violation of the Constitution of the state and of the United States. (2) That the records and files in the original case, and especially the decree entered January 15, *Page 350
1925, show that the said attorneys were not acting for or on behalf of these movants, and that frequently the said attorneys asserted in open court that they did not appear for these movants, and stated in open court, as a reason for omitting the establishment of the kinship of these movants in said decree, that these movants refused to employ these attorneys, and that said attorneys would not represent the movants, and would do nothing in their behalf, but purposely prepared the decree with a specific design of omitting any benefits therein to these movants, and hence are not entitled to compensation for their alleged services. (3) That all of the services performed by said attorneys connected with the establishment of the heirship in said estate were performed under express written contract with other heirs of said estate, for which they received a sum equal to one half of the amount recovered for the heirs that were actually represented, including all expenses of said attorneys in and about the trial and investigation of said cause; and that said attorneys, up to and including the preparation and filing of the original decree, expected at no time to receive any compensation other than the compensation for which they had specifically bargained with the heirs they then represented, and for which they recovered over $4,500, or more than half of the amount recovered for said heirs. These are the primary grounds recited in the motion, which was duly served upon all adverse parties in interest.
On the 2d day of September, 1925, an amendment to said motion to set aside the supplemental order was filed on behalf of the movants, in which it is denied that the claimed services of said attorneys were rendered for and in behalf of said movants, but is asserted that said attorneys did act on behalf of other heirs, and that the said movants had no intimation that any such services were being rendered for and on their behalf, or that payment for said services would be demanded from them; that said movants had no knowledge of any services performed by said attorneys on their behalf, but that, on the other hand, the said attorneys refused to represent said movants in said proceedings, and that said attorneys, after refusing to represent said movants, later sought employment as attorneys for said movants, but were refused, because of the terms demanded for said services. *Page 351
On the 4th day of September, 1925, a motion for continuance was filed by said attorneys, to which a resistance was filed by the movants. The motion to continue was sustained, and on the 8th day of September, 1925, a notice of appeal was filed by the said movants, and due notice thereof was given. This notice recites that Charles Lehr et al. "have appealed from the order of the district court rendered in favor of Martin Alexander and John J. Dwyer * * * entitled Supplemental Order and Decree, adjudicating heirship and establishing attorneys' fee. * * * and also from the ruling of the court on a motion for a continuance. * * *"
It is sufficient to state that the motion to strike the supplemental order and decree was never ruled by the trial court, but that, subsequently to the appeal, to wit, October 20, 1925, it appears that the motion to set aside supplemental order came on for hearing, and at said time the court ruled that:
"It appearing to the court from the records and files in this case that Charles Lehr et al. have appealed from the orders and findings of this court, including the order just mentioned, and that notice of appeal has been served on opposing counsel and on the clerk of this court and now on file in this court; that this court has lost jurisdiction to hear and determine the matters raised by said motion; and that jurisdiction in this case has been transferred to the Supreme Court of Iowa, by said notice of appeal duly made and filed in this court."
It further appears that formal offer of proof to sustain the allegations of the motion was presented by the appellants, to which objection was made, and it was said at that time in open court by adverse counsel:
"There is nothing to try here. Everything is in the Supreme Court of Iowa."
Counsel for the movants did make a formal offer of evidence on behalf of the movants, and also on behalf of the administrator, who had filed motion challenging the supplemental order, subsequent to the taking of the appeal. The offer was objected to, and the objection was sustained by the court on the primary ground that "the court was without jurisdiction to determine anything in the case."
A cursory review of the abstract discloses that the record before us is not only in a peculiar, but in a precarious, condition. *Page 352
These appellants were not, in fact, nominal parties in the original action. They were not, in fact, represented by counsel. It may be that the trial court in the first instance did not establish and adjudicate the one-seventh interest, for the reason that the persons entitled to the one-seventh interest were not before the court, or named in the Diana Lehr Lurch petition, and that the proof advanced was not sufficient to identify these parties by name, and their relationship to Amos Lehr, brother of William Lear, deceased.
It appears from appellants' amendment to abstract of record herein that William Lear had two sisters and five brothers. This explains the division of the estate fund into sevenths. One of these brothers was named Amos, who, at the time of the trial, was deceased, but left surviving him a widow and four children. Who the children were, or where they lived, if living, the original record did not disclose, so far as we are at the present moment advised.
May it be said that, if it be assumed that the four appellants are the living children of William Lear's brother Amos, deceased, they were in court on the theory of virtual representation? The original decree entered in this cause must be viewed as a finality. In order that a person not technically a party to a judgment may claim the judgment as having been the effect of resjudicata in his favor, it is generally necessary that he should appear openly in the case, to the knowledge of the adverse party. 15 Ruling Case Law 1011. However, the six-sevenths interest was not strictly adverse to the one-seventh interest. A judgment is conclusive of the issues involved in a controversy, as between the parties and those standing in privity of them. It cannot be said, as between the heirs of a common ancestor, that the interests of one heir are necessarily adverse to those of another heir. There was, as between the brothers and sisters of William Lear and the heirs of any deceased brother or sister, a privity of estate. They all come in by succession to property under the statute of descent.
The trouble in the instant matter is that the evidence failed to disclose who these particular heirs (appellants herein) were, and the court, therefore, was not in a position to establish and decree the particular share in the one-seventh interest of the estate of William Lear. This was a question of proof. It is true *Page 353
that the Diana Lehr Lurch petition attempted and intended to establish rights which were common to all of a class, but it was necessary that due proof be offered, to establish the claims of the respective claimants.
The original petition asserted rights or claims upon a particular fund then in existence and in the hands of an administrator. The original decree expressly determined the rights as to certain parties who had appeared in the action and made due proof. A supplemental decree was necessary.
The question is, Did the attorneys who represented the claimants to the six-sevenths interest, which was established, have the right to secure a supplemental decree ex parte,
establishing the one-seventh interest in favor of these appellants, and impress the fund so established with an attorneys' fee of 50 per cent thereof, on a recital in their application that the services which they had performed in securing the proof of heirship upon the original hearing were done with the knowledge of appellants, and for their benefit?
The theory of appellees and the proposition advanced to support the action of the trial court in the premises are to the effect that the attorneys created, by their labors, a fund which others were entitled to claim pro tanto, and that, therefore, a person or persons who had taken the risk of costs and expenses of litigation should not bear the entire burden. In other words, where meritorious results were actually achieved, that those who stood idly by in an action should not be allowed to await the result, and escape all expenses if the case be lost, but if successful, share the actual benefits, by receiving their portion of this success, without contributing their share of the expense, including attorneys' fees. This is the common-fund doctrine, and is peculiarly applicable to equity jurisdiction. See Buell v.Kanawha Lbr. Corp. (D.C.), 201 Fed. 762; Trustees v. Greenough,105 U.S. 527 (26 L. Ed. 1157); Princeton Coal Min. Co. v.Gilchrist, 51 Ind. App. 216 (99 N.E. 426); Weigand v. AllianceSupply Co., 44 W. Va. 133 (28 S.E. 803).
The rule finds expression and application in Graham v. DubuqueSpecialty Mach. Wks., 138 Iowa 456. That case involved the value of the services of an attorney in prosecuting a stockholders' suit for a breach of trust by the officers of the corporation after the refusal of the corporation to act. It was held that, *Page 354
although the plaintiff-stockholders had no authority to bind the corporation by a contract to pay attorney's fees for the prosecution of the action, they were entitled, in case the suit was successful, to reimbursement from the amount recovered, for all reasonable expenses, including attorney's fees. It is said:
"The action is, to all intents and purposes, the suit of the corporation, and is for the benefit of all parties interested, to protect a trust fund; and on this ground, the stockholder is reimbursed from such fund for all proper expenditures made or liabilities incurred."
A study of the cases cited and of similar cases will disclose the rule that, where a fund is brought into a court of equity through the services of an attorney who looks to that alone for his compensation, although his interest cannot technically be called a lien, he is regarded as the equitable owner of the fund, to the extent of the reasonable value of his services.
In the case at bar, the fund was not created by any action taken or efforts put forth by the attorneys. The fund existed, and was in the hands of the administrator, awaiting legal claimants. Furthermore, the fund was not in equity; and, although a probate court will take cognizance of equitable principles, under proper circumstances (Mock v. Chalstrom, 121 Iowa 411), the common-fund doctrine, to which reference has been made, does not find application, under the instant facts and circumstances.
There is no allegation that the attorneys had any contract, expressed or implied, with these appellants. Though we concede (no claim to the contrary is made by either party to this application) that the movants were present in the original cause by virtual representation, this in itself would not authorize the attorneys who represented the petitioners, whose rights were adjudicated and established, to secure an ex-parte order and establish a claim and lien for attorneys' services, as prayed, especially so when they did not represent the appellants upon the original trial. The decree entered in the first instance discloses that the attorneys now claiming the right to compensation represented, as attorneys, the claimants and plaintiffs in the Diana Lehr Lurch petition, and none others.
The property rights of these appellants are involved, and due process of law requires notice of the claim and of the hearing. *Page 355
It was an adversary proceeding, and involved the question of employment and payment for services alleged to have been rendered. No contract liability is pleaded or shown, and it is clear that an attorney cannot claim compensation for voluntary services to another, and it is denied by the appellants that the attorneys were authorized to take any action on behalf of the appellants. An unverified affirmation cannot be considered as having higher evidentiary value than the negation thereof by the adverse party. It must be remembered that the fund in question was in the hands of the administrator, although it was, for the moment, in the custody of the clerk of the court.
We deem it unnecessary to pursue the inquiry further. The right of the appellants to take this appeal is not questioned. It is urged, however, by the appellees that, since the movants attempted to secure a ruling on their motion subsequent to the appeal, and tendered evidence in support thereof, the appeal must be dismissed. We cannot concur in this viewpoint. The appellees insisted in the court below that the only rights which the appellants had, were based on their appeal to this court; and, upon the objection of appellees, the trial court ruled that it had no jurisdiction after the appeal was taken. The appellees are bound and estopped by their action in the trial court to say to the appellants now that they are precluded from prosecuting their appeal.
The supplemental order and decree entered, so far as it establishes a lien on the fund of the appellants in favor of the appellees, is void, and there must be a restoration of this fund to the hands of the clerk or administrator, to await further proceedings in the administration of the estate of William Lear. The supplemental order of the district court in the premises is — Reversed.
EVANS, C.J., and ALBERT and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434721/ | The electors of the school township involved in this suit, at their regular meeting in March, 1927, voted a schoolhouse tax for the election of a new schoolhouse in Subdistrict Number 1. No site was specified. The existing schoolhouse was on the southeast corner of the southeast quarter of the southwest quarter of Section 16. At the regular meeting of the board on July 1, 1927, a petition to relocate the site on the southeast corner of the southeast quarter of the southeast quarter of Section 16 *Page 770
was presented. The petition recited that James R. Soukop was willing to donate one-half acre of land for the new site. It was signed by Soukop and wife and others. The record of the meeting is quite informal. It recites: "There was a petition to locate the new schoolhouse Number 1 one-half miles east, to the southeast quarter of the southeast quarter of Section 16. Four votes for the new site and three against it." At a meeting of the board held April 18, 1928, the following proceedings were had:
"Motion by Ernest Hannaman that we rescind the action of the old board of the 1st day of July, 1928 [1927?] meeting, and seconded by Henry Anderson, to change the schoolhouse site from the new site back to the old site. Five votes for the old site and two votes against. Motion to elect a building committee. Louy Rue, John G. Kirschman, Clarence Sanderson was duly elected."
At this meeting Edward Espeseth asked to be set over from District 5 to District Number 1. The minutes recite: "But as he had no petition, the board didn't take no action." Under date of April 27, 1928, 14 persons, residents and taxpayers of Subdistrict Number 1, not including Espeseth, gave notice of appeal to the county superintendent from the action of the board of April 18, 1928, in changing back the site. The affidavit for appeal attached to the notice was by Espeseth. The notice and affidavit were delivered to the county superintendent, who mailed the secretary of the school township notice dated April 20, 1928, that an appeal had been made to her "concerning the changing of site of school April 18, 1928, from site as voted upon July 1, 1927. Please send me within ten days a complete certified transcript of the record and proceedings relating to the decision appealed from." On the date of writing the letter, the president of the board of directors was in the office of the county superintendent, and was verbally notified by her of the appeal and of the date of hearing, May 14th. He was told by her that she was writing him a letter, "and asked him if it was necessary to mail it to him, and he said `no;' and I said, `What about the other members of the board?' and he said he would notify them." At the hearing May 14th, all members of the board of directors appeared, with their attorney, and filed a motion to dismiss the appeal, on grounds that will be considered later. The county *Page 771
superintendent took evidence, apparently that offered principally, if not wholly, by the board of directors. The county superintendent made elaborate findings, sustaining the appeal, and ordering:
"That the action of the board of April 18, 1928, in changing the said schoolhouse site from the S.E. corner of the S.E. 1/4 of the S.E. 1/4 of Section 16, Township 98 north, Range 10 west of the 5th P.M., to the S.E. corner of the S.E. 1/4 of the S.W. 1/4 of said section, be and the same is hereby rescinded, annulled, and set aside; and the schoolhouse site as fixed by said board at its meeting in July, 1927, is hereby affirmed, and the location of said schoolhouse at the S.E. corner of the S.E. 1/4 of the S.E. 1/4 of Section 16 is hereby established and fixed. Motion to dismiss. Appeal overruled."
Pursuant to resolution at meeting of the board on June 8, 1928, the board took appeal to the superintendent of public instruction, who, on August 14, 1928, affirmed the decision of the county superintendent. On March 17, 1928, Soukop and wife, the owners of the proposed new site, executed and gave to the secretary a deed to the school board for one-half acre in the southeast corner of the southeast quarter of the southeast quarter of Section 16 for schoolhouse site, to revert when no longer used as such. On June 24, 1929, petition in this action was filed.
I. Defendants concede in argument that, "if the county superintendent and the state superintendent, 1. SCHOOLS AND having acquired jurisdiction, pass upon a SCHOOL question of facts within their discretion, their DISTRICTS: decision is final." Defendants urge that, property: because Espeseth, who made the affidavit for appeal: appeal to the county superintendent, did not affidavit: live in the subdistrict, he was not aggrieved, sufficiency. and could not appeal to the county superintendent.
Section 4298, Code, 1927, provides:
"Any person aggrieved by any decision or order of the board of directors of any school corporation in a matter of law or fact may * * * appeal therefrom to the county superintendent of the proper county; the basis of the proceedings shall be an affidavit filed with the county superintendent by the party aggrieved within the time for taking the appeal, * * *"
The appeal was taken by 14 residents of the subdistrict. *Page 772
Though the affidavit was not made by any of them, they adopted the affidavit and filed it. The statute does not say that the affidavit shall be made by the appellant, but that "the basis of the proceedings shall be an affidavit filed * * * by the party aggrieved * * *" Espeseth was a resident and taxpayer of the school district, and, we infer, a taxpayer in Subdistrict Number 1. It seems that, when he built a new residence, instead of building it in Subdistrict Number 1, where his then residence was, he changed the location to a point in Subdistrict Number 5. However, he had continued to send his children to the school in Subdistrict Number 1. We are of the opinion that the affidavit was filed by the party aggrieved, within the meaning of the statute, and further, that Espeseth was aggrieved.
II. Defendants contend that the county superintendent did not acquire jurisdiction because a complete certified transcript of the records relating to the decision appealed 2. SCHOOLS AND from was not filed; that the county SCHOOL superintendent did not notify the persons DISTRICTS: adversely interested, as required by Section property: 4299, which provides: appeal: appearance "The county superintendent shall, within five in lieu of days after the filing of such affidavit in his notice. office, notify the secretary of the proper school corporation in writing of the taking of such appeal, who shall, within ten days after being thus notified, file in the office of the county superintendent a complete certified transcript of the record and proceedings relating to the decision appealed from. Thereupon, the county superintendent shall notify in writing all persons adversely interested of the time when and place where the matter of appeal will be heard by him."
The evidence shows that the secretary was notified by letter; that the board of directors were orally notified; that the directors appeared and were heard. While the county superintendent stated in the course of the trial that the transcript was not filed with her, it appears that she overlooked it. It is satisfactorily shown by her later statements and from the facts in the record that the transcript was filed with her. The secretary was notified and the board of directors were notified. They appeared. The basis of the appeal is the affidavit. Thereby the county superintendent obtained jurisdiction. The purpose of *Page 773
the requirement of notice is to give the parties adversely interested opportunity to be heard. They were given that notice, and took advantage of it by appearing and participating in the trial. Notice was not jurisdictional. See Durand v. NorthwesternLife Sav. Co., 112 Iowa 296. Defendants were not prejudiced by the mere informality of the notices. They had accepted and enjoyed all the benefits that they would have had if the statute had been strictly complied with. The county superintendent was fully informed of the record, had it before her, and reviewed it.
III. Defendants contend that there was no resolution of the board locating a new site; that, until the board, by proper resolution, locates a new site by metes and bounds, their proceedings are so indefinite and uncertain as 3. SCHOOLS AND to be void; that the board never established a SCHOOL schoolhouse site, and the resolution of DISTRICTS: rescission was meaningless. The minutes of the property: proceedings of the board of directors, as is not change of unusual, are quite informal. This is not fatal. schoolhouse Kinney v. Howard, 133 Iowa 94. We find no site: statute providing for a record of the record: proceedings of the board, or what it shall suffi- contain. A record, of course, should be kept, ciency. and one was kept. There can be no doubt from this record that the board of directors understood, at their meeting on July 1, 1927, that they were petitioned to locate the new schoolhouse one-half mile east of the then location, and on the southeast corner of the southeast quarter of the southeast quarter of Section 16, and that the owners were willing, and were then by their written petition offering, to donate. There can be no doubt that they voted upon this proposition, and that the majority favored it. There can be no doubt that the board understood and intended that the proposition had carried. It was not necessary that they have at the time a conveyance of the new site. The owner and other petitioners might want to know, before going to the trouble of making and tendering a formal conveyance, whether the proposition would be accepted. It is not debatable, on this record, that the board, when they met April 18, 1928, understood and assumed that the board had previously changed the site; for they then took action to rescind, and "to change the schoolhouse site from the new site back to the old site. Five votes for and two votes against." They understood *Page 774
that they had previously acted, and had changed the site. They rescinded that action. The board by their proceedings April 18, 1928, made a decision. Appeal was taken from such decision by persons aggrieved. The county superintendent made her decision on the appeal, reversing the board, and locating the schoolhouse at the southeast corner of the southeast quarter of the southeast quarter of Section 16. Defendants appealed to the superintendent of public instruction, who affirmed the decision of the county superintendent. There can, on this record, be no doubt of the jurisdiction.
IV. It is claimed that the decision of the county superintendent was meaningless; "that she did not establish a site, — she fixed the location of the schoolhouse at a point, the S.E. corner of said Section 16, which is 4. SCHOOLS AND nothing but an angle in a straight line and in SCHOOL the middle of a four-rod road;" that, for the DISTRICTS: same reason, the state superintendent, in property: affirming her decision, did not fix any site. It schoolhouse is beyond dispute that the board of directors, site: the county superintendent, and the state order: superintendent were acting on a proposal to suffi- change the site and to erect the schoolhouse ciency. one-half mile east of the then location, and on the southeast corner of the southeast quarter of the southeast quarter of Section 16. The board made no objection on account of any alleged indefiniteness. They were not misled. They knew that they were offered a half acre in the southeast corner of the quarter section. They did not question this offer or its sufficiency in description or otherwise. Deed has been delivered. While the deed describes the conveyed premises as "one-half acre in the southeast corner of the southeast quarter * * *," it says that said grounds are deeded for schoolhouse site, and covenants that the grantors " are lawfully seized of said premises; that they are free from all encumbrance, that we have good right and lawful authority to sell and convey the same, and we do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever." Clearly, it was agreed that the owners were conveying a site for schoolhouse, one which they had the right to convey, and which was free from encumbrance, and the title to which they warranted. Neither the owners nor the directors ever understood that the directors were required to locate the school in the public road, or that the land occupied by *Page 775
the public road was to be deducted from the grant. While technically the grantors owned the fee to the land occupied by the highway, clearly they did not intend to convey the reversion in the highway. The highway was necessary, to make the school site available. Neither the grantors nor the grantees ever had any doubt, or raised any question, as to just what was intended. There is, on this record, no merit in the contention of uncertainty either in the action of the board of directors or in the decree appealed from.
V. The decree here appealed from directs the "defendants to proceed, with reasonable dispatch, to construct a new school building upon the location fixed by the board of directors of said school township at its meeting July 1, 5. SCHOOLS AND 1927, as affirmed * * * in the southeast corner SCHOOL of the southeast quarter of the southeast DISTRICTS: quarter of Section 16 * * * and to procure, by property: gift, conveyance, condemnation, or otherwise, as schoolhouse provided by law, sufficient land for the purpose site: of said schoolhouse site, not less than one-half permissible acre, nor more than two acres, exclusive of the order of public highways." Defendants argue that the court. district court had no jurisdiction to order the board to select the schoolhouse site. The site had been selected and conveyed, and there is no prejudice in this respect.
VI. The abstract and amended abstract are unnecessarily prolix and full of repetitions. They have required much useless labor, and taken unnecessary time in their examination. While it may make no material difference in this case, we think that no costs should be allowed to either party for printing abstract or amendments. — Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, De GRAFF, ALBERT, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434726/ | Plaintiff alleges reckless driving, high and *Page 1101
dangerous speed, and as a witness in her own behalf testified "fast driving is what caused it." A statement signed by her in which she said, "We weren't going fast at all. * * * I don't think there was anything Mr. Walker could have done to avoid the accident. * * * The reason the accident happened was because the detour wasn't properly marked" was received in evidence on her cross examination without objection. The signed statement of two witnesses inconsistent with their testimony was likewise received. The statements were marked respectively Exhibits 1 and 2. The issue of recklessness, not having the car under control and turning while going at such speed that the car was turned over was submitted to the jury. Defendant requested that Exhibits 1 and 2 be sent to the jury room. They were "handed to the jury when the jury were leaving the room." Plaintiff's counsel objected that they were not proper "to be in the hands of the jury during their deliberations," and that they were taken "before we had time to make objections." The court ruled: "I was expecting this question to be raised and the question was raised just as the jury left the court room. I think under all the circumstances those exhibits should not remain in the jury room." The court directed the bailiff "Get the two papers, other than the instructions and bring them back. Now you can make whatever exceptions or record you want to." Defendant took exceptions. The jury returned a verdict for plaintiff. Motion for new trial made on various grounds was overruled except as the court held, "I am convinced that an error was made by the court to the prejudice of the defendant in the matter of the Exhibits 1 and 2. * * * No mention had been made of the exhibits, that is as to whether or not they should go out with the instructions to the jury room, until after the reading of the instructions when the jury retired with the instructions and the exhibits; plaintiff's counsel then suggested that those exhibits should not go out; there was some argument * * * and the court being of the opinion that these statements being simply a detailed statement of what the plaintiff and some witnesses had once said, ought not to have gone out with the jury, and directed the bailiff to get them, which was done after they had been actually delivered to the jury by the bailiff, and after the jury had been locked in their room and within not to exceed five minutes after the jury had left the box. If the *Page 1102
ruling had been made before that the exhibits would not go out I do not believe any prejudice would have resulted, but under the circumstances, the withdrawal after the jury had gone into the room, I am afraid was prejudicial in that the jury would be apt to believe that these exhibits amounted to nothing. * * *" The motion for new trial was accordingly sustained on this ground.
The trial court exercises a wide discretion in granting a new trial and this Court is very reluctant to overrule its action in granting new trial. Werthman v. Railway Co., 128 Iowa 135; Ellyson v. Peden (Iowa), 146 N.W., 759 (not officially reported); Jelsma v. English, 210 Iowa 1065; Utilities Holding Corporation v. Chapman, 210 Iowa 994; McQuillen v. Meyers, 211 Iowa 388. Though it will do so if abuse of discretion is clearly shown. Stockwell v. The C.C. D.R. Co., 43 Iowa 470; Utilities Holding Corporation v. Chapman, 210 Iowa 994.
It is ordinarily within the discretion of the court to send to the jury the exhibits other than depositions (Code, 1927, Section 11503; State v. Ling, 198 Iowa 598; Barker v. Perry, 67 Iowa 146), though sometimes a matter of right. State v. Young,134 Iowa 505. But refusal to send them out is not error unless prejudice is shown. McMahon v. Ice Co., 137 Iowa 368; Evans v. Oskaloosa T. L. Co., 192 Iowa 1, 9. But when the trial court, who has had personal oversight of all the proceedings of the trial, has determined that prejudice has resulted from his ruling we will be at least very slow in overturning his determination. Appellant argues that all the statements in the exhibits were before the jury; that they were merely cross examination admissible only for impeachment, and if there was error it was without prejudice. Plaintiff's statement was admissible not only for impeachment purposes. It was an admission and substantive evidence. The court was within its province in holding that the jury might have got a wrong and prejudicial impression as to the admissibility and importance of the exhibits from the fact that they were withdrawn summarily from their consideration without explanation. The trial court was the observer of many circumstances that cannot possibly be reproduced here. We can not, on this record, hold that the court abused its discretion in granting a new trial. This *Page 1103
result renders it unnecessary to consider cross errors filed by appellee or appellant's motion to strike them. — Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434727/ | George and Inger Werling were married December 22, 1923, and Marian, whose custody is involved, was *Page 909
born about 11 months later. The mother, after a protracted illness, died of tuberculosis, July 30, 1927. The parents of Marian lived together only a portion of the time. The cause of their estrangement does not appear from the record, but it was finally complete. The mother was for a time a patient at the Oakdale Sanatorium, but, for several weeks preceding her death, was at the home of her parents. The estrangement between the husband and wife appears to have extended to their parents, and, at the time of the trial, no sort of communication existed between them.
Marian was born with some defect in her heart, which all of the physicians agree will result in her death before maturity. This fact, with other circumstances in the case, presents a pathetic situation. The right of the father, both moral and legal, to the society and control of his motherless child is paramount, save only when it has been lost by his voluntary relinquishment, or by judicial decree based upon the best interests of the child.Winter v. Winter, 184 Iowa 85; Risting v. Sparboe, 179 Iowa 1133. There has been no voluntary surrender of Marian by her father to the maternal grandparents. The father is employed by, and resides with, his parents. He has no other home. So far as the record discloses, he is in good health, and able, in every way, to provide for the child proper medical care and all other necessities. His mother was present as a witness upon the trial, and expressed her willingness to receive the child into her home and to give it the best care of which she is capable.
It is not claimed by appellee that the paternal grandparents are not proper persons to have the custody of Marian. It is appellee's contention that Marian has been in her care for some time before, and at all times since, the mother's death; that the child has formed attachment to, and found comfort in, her present situation.
While not wholly persuasive, the testimony of the physicians as to the possibility of serious consequences that might ensue if the child should be removed from her present surroundings to another place, strange to her, does impel caution in dealing with the situation. The child has, at times, fainting periods, which are said to be the direct result of the physical defect referred to. It was the opinion of the medical experts that Marian should be carefully guarded against everything that will tend to excite or make her nervous. Neither the father nor his parents visited the *Page 910
mother during her illness, nor have they had anything to do with Marian since her mother's death. More than a year elapsed at one time during which the father did not see his child. The problem presented is one of the greatest difficulty. Neither the wishes nor the welfare of the grandparents is in any controlling sense involved. On the one hand is the moral and legal right of the father, and on the other, the welfare of the child, which the law, when properly invoked, will always guard and maintain. Well might both the maternal and paternal grandparents in this case relent the bitterness that has made them enemies, and unite in tender solicitude and devotion for the comfort and welfare of this frail child, already under sentence of death. Could the father know the loneliness and grief that will forever clutch his heart when this frail flower has permanently faded, the causes which estranged him from his wife's family would seem small, indeed.
Our decision must be responsive to the question: What is for the best interest of Marian? The father has, so far, declined absolutely to visit Marian in her present home. She is entitled to his love and care. His father, while on the stand, said that appellee and the members of her family would not be welcome at his home, and that, if the father should be awarded custody of Marian, they could come there only for the purpose of visiting her. The expression of the maternal grandparents was somewhat more generous. Although opportunity has on a few occasions been presented, neither the father nor his parents have manifested a disposition to speak to, or become familiar with, Marian. Possibly these manifestations should not be attributed to any lack of affection for or interest in the child. While the mother was a patient at the Oakdale Sanatorium, her husband wrote her a letter, in which he said: "You're just as dirty a liar as ever." When testifying as a witness, he admitted writing the letter, and said: "I have not changed my opinion a bit." Whatever may be the facts or the provocation for the feeling manifested, it does not indicate that sort of kindliness or spirit so imperatively essential to Marian in her unfortunate condition. No financial aid has been contributed by the father since the death of the mother to the support of Marian, nor has he in any way sought openly to otherwise aid in her comfort and happiness.
Two actions were commenced by the wife for divorce. One *Page 911
was dismissed, and the other, commenced a few days before her death, was still pending. No presumption should be indulged against the husband because of these actions, neither of which was ever tried. They do, however, indicate somewhat the feeling of the wife in her extremity. Shortly before her death, she signed an agreement with her mother, relinquishing Marian to her, and expressing the desire that she be left in her care and keeping. The same wish and desire were expressed in her will. We shall assume that the father and paternal grandparents who so earnestly desire the custody of Marian possess the normal affection for her, and that, if received in their home, she would receive the best of care.
Speaking from the bench, the trial court, when all of the interested parties were present, reviewed and analyzed the evidence at considerable length. What was then said is set out in the record. This summing up of the evidence in the presence of the parties makes unnecessary further recitals therefrom. If Marian were in normal health, there would be far less reason for the conclusion reached than in the present circumstances. No doubt, Marian has become strongly attached to her grandmother and the other members of the family. She is provided with a good home. Her paternal grandparents, as well as her father, are almost strangers to her. Her delicate health must be given great weight in arriving at our conclusion. We are persuaded that, all considered, the welfare of Marian will be best conserved by leaving her in the home where she now is. The restraints placed upon the father by the decree were as liberal as they could be made, consistent with the child's welfare. If properly cultivated, in due time the father may win the affection of his daughter, and thereby contribute most generously to her, and his own, happiness. The maternal grandparents should put nothing in his way that will prevent him from freely exercising all of the privileges granted by the decree.
Of course, our discussion is directed to conditions as shown by this record. What modification, if any, future conditions might justify, is not involved in this decision. — Affirmed.
ALBERT, C.J., and FAVILLE, De GRAFF, and MORLING, JJ., concur. *Page 912 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434728/ | One E. Boysen operated an unincorporated bank at Brunsville, Iowa, prior to and until January 1, 1925. On September 21, 1929, a receiver was appointed for the bank by the Plymouth County District Court, because of the institution's insolvency. Immediately preceding the appointment of the receiver, that is to say, on September 20, 1929, the defendant-appellee, Hans Erickson, conveyed to his daughter, the defendant-appellee Anna Erickson, 240 acres of land in Plymouth County. So, the plaintiff-appellant, as receiver of the aforesaid bank, commenced this action on September 24, 1929, to obtain the following relief: First, a judgment against the defendant-appellee Hans Erickson on behalf of the bank's creditors, on the theory that the bank was operated by an actual or ostensible co-partnership consisting of the said Erickson and the above-named Boysen; and, second, a nullification of the conveyance from the appellee Hans Erickson to the appellee Anna Erickson, on the theory that the transfer was without consideration and made to defraud creditors.
Thereafter, on April 14, 1930, a petition of intervention was filed by the intervener-appellant, J.G. Miller. In his petition, the intervener sought, on behalf of certain creditors whose claims had been assigned to him, relief similar to that claimed by the appellant receiver against both appellees. It is alleged in the petition of intervention that the right to maintain the aforesaid action is personal to the intervener and his assignors, and therefore different and more complete than the power of the appellant receiver so to do. Furthermore, the intervener in the petition of intervention states "that he waives objection and consents to the granting to the receiver," appellant, "the benefits of the relief asked in the" original "petition." Such waiver and consent, however, is expressly limited to the claims named *Page 450
in the petition of intervention and does not purport to apply to all creditors. Moreover, it is to be noted that the intervener does not assign his rights to the receiver, nor does he waive objection and give consent absolutely that the receiver may recover; but rather the intervener waives objection and consents to the granting of the power to recover to the receiver. Following the petition of intervention, the appellant receiver amended his petition: First, by making a part thereof the petition of intervention by reference; and, second, by dismissing from his petition all right to recover on any claims not assigned to the intervener. Obviously, then, neither the receiver nor the intervener purport to represent all the creditors but only those whose claims had been assigned to the intervener.
An attack was made upon the original petition and the petition of intervention by the appellees, Hans Erickson and Anna Erickson. The attack on the petition of intervention was by motion to strike, filed October 9, 1930. This motion was based on the ground that the petition of intervention attempts to join issues at law with issues in equity. Other matters are mentioned in the motion, but we find it unnecessary to discuss them. Appellees' motion to dismiss the petition was filed September 22, 1930, and, so far as material, makes the following attacks upon the receiver's pleading: First, that there is a misjoinder of causes of action, one in equity and the other at law; second, that it does not appear in the petition that the receiver was authorized when appointed to bring this suit against the appellants; third, that the receiver does not have the authority or capacity to maintain this proceeding against the appellants; fourth, that the receiver has an adequate remedy at law which he has not pursued; and, fifth, that the receiver should first obtain judgment against the appellee, Hans Erickson, before he can maintain an equitable proceeding to set aside the conveyance of the aforesaid land to the appellee, Anna Erickson.
That, in a general way, sets forth the controversy here involved.
[1] I. For convenience, the appellee Anna Erickson's motion against the receiver's petition is first considered.
Manifestly, according to the petition, the receiver has obtained no judgment against the appellee Hans Erickson. No adjudication has been made that the appellee Erickson was a *Page 451
partner in the banking business before described. Nevertheless the receiver attempts in his petition to set aside the conveyance of land from the appellee Hans Erickson to the appellee Anna Erickson. If the receiver did not obtain a judgment in the premises against Hans Erickson, there would be no occasion or basis for setting aside the conveyance. It is obvious that the receiver is not proceeding against the land under an attachment, but rather he seeks to set aside the conveyance in a general equitable proceeding. His action is in the nature of a creditor's bill. Under these circumstances it is necessary that the receiver first obtain, if he can, a judgment against the alleged debtor Hans Erickson, the appellee, or have a lien on the real estate involved. Drahos v. Kopesky, 132 Iowa 497; Peterson v. Gittings,107 Iowa 306; Smith v. Nursery Seed Co., 109 Iowa 51; Clark v. Raymond, 84 Iowa 251; Goode v. Garrity, 75 Iowa 713. Section 11815 of the 1927 Code contains this provision:
"At any time after the rendition of a judgment, an action by equitable proceedings may be brought to subject any property, money, rights, credits, or interest therein belonging to the defendant to the satisfaction of such judgment." * * *
Thus it is seen that the proceeding contemplated in the foregoing statute only can be had after "the rendition of a judgment." Faivre v. Gillman, 84 Iowa 573. Other methods for reaching property fraudulently conveyed are provided by sections 12104 to 12106, both inclusive, of the 1927 Code, which do not require a prior judgment. That statutory method is by attachment. Porter v. Wingert, 200 Iowa 1371; Pace v. Mason, 206 Iowa 794
(local citation, 803).
Upon the subject under discussion, we said in Federal Reserve Bank v. Geannoulis, 203 Iowa 1385, reading on page 1388:
"A number of our early Iowa decisions held that, under these circumstances (where there was no prior judgment), the original claim must be put into judgment before an action on a creditor's bill could be maintained. Later, we held that, under certaincircumstances, the proceedings for judgment on the original claim and an action to subject the property could be brought in the same proceeding." (The italics are ours).
No situation amounting to the exceptions referred to in the *Page 452
Federal Reserve Bank case (203 Iowa 1385), supra, is present in the proceedings now under review.
Therefore, the district court properly sustained the motion of the appellee Anna Erickson, filed against the receiver's petition. This is true because the receiver had failed to obtain a prior judgment against the appellee Hans Erickson.
II. Consideration will now be given to the motion of the appellee, Hans Erickson, directed against the receiver's petition.
Briefly, the appellee Hans Erickson's motion, as that of the appellee Anna Erickson, attacks the appellant receiver's petition because no judgment was obtained by the latter against the said Hans Erickson. Without such judgment against Hans Erickson, it is claimed by this appellee that the appellant receiver cannot maintain this action to set aside the aforesaid conveyance to the appellee Anna Erickson. The petition, then, has misjoined two separate and distinct causes of action. See cases cited under Division III. Everything that was said in Division I above concerning the appellant receiver's failure to first obtain judgment against Hans Erickson, the principal debtor, likewise applies in this action against said debtor, and repetition of the discussion is not necessary here.
So, the district court properly sustained the appellee Hans Erickson's motion to dismiss the receiver's petition.
[2] III. Appellees, as before said, filed a motion to strike the intervener's petition. As a basis for that motion it is said that there is a misjoinder of causes of action. According to the petition of intervention, a judgment is sought against Hans Erickson on the theory that he is a partner and therefore liable to the creditors for the firm debts. Also it is sought in the petition of intervention to overcome the aforesaid conveyance of land from the appellee Hans Erickson to the appellee Anna Erickson. Two actions, therefore, are involved. One to recover a money judgment and the other to overcome the conveyance of land aforesaid on the theory that the same was fraudulent. Therefore, the intervener has joined an action in equity with one at law. Section 10960 of the 1927 Code provides:
"Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights, and if *Page 453
action on all may be brought and tried in that county, may be joined in the same petition."
The aforesaid actions joined in the petition of intervention cannot be prosecuted by the same kind of proceedings, for the one is at law and the other in equity. Neither are those causes of action held by the intervener against the same parties, because the law action is against the appellee Hans Erickson while the equitable action is against the appellee Anna Erickson. Stevens v. Chance, 47 Iowa 602; Faivre v. Gillman (84 Iowa 573), supra; Prader v. National Accident Association, 107 Iowa 431; Faville v. Lloyd, 140 Iowa 501; Smith v. Waterloo, Cedar Falls Northern Railway Co., 191 Iowa 668; McPherson v. Commercial Building
Securities Co., 206 Iowa 562.
[3] Likewise the receiver improperly joined an action at law and a suit in equity in his petition above discussed. It is proposed then that the intervener, through his petition of intervention, would join his cause at law with the cause in equity named in the receiver's petition. Clearly that would be a misjoinder. Again it is proposed by the petitioner of intervention to join the proceedings in equity, named in his petition, with the suit at law named in the receiver's petition. Plainly that also would be a misjoinder. In fact, the intervener is not such at all, but rather he is a mere interloper. As intervener, the petitioner does not join the plaintiff, nor does he join the defendant. Furthermore, the intervener does not ask for relief antagonistic to both the plaintiff and defendant. What the intervener in fact does ask is independent relief in what really amounts to an independent action. That does not constitute the intervener a party as such, but makes him a mere interloper. An intervener, by instituting an independent action through his petition of intervention, cannot insist upon a change in the form of the original proceedings between the plaintiff and the defendant. Van Gorden v. Ormsby Bros. Co., 55 Iowa 657; Des Moines Insurance Co. v. Lent, 75 Iowa 522; Kauffman v. Phillips,154 Iowa 542. Manifestly, then, the district court did not err in striking the intervener's petition.
IV. No consideration is given to that part of the appellee's motion attacking the receiver's petition on the theory that the latter did not have authority to sue the individual partners.
Under the circumstances, no consideration is given to that *Page 454
subject for the reason that the receiver's petition is fatally defective in the manner and way previously pointed out.
Wherefore, because of all the matters above discussed, the judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed.
FAVILLE, C.J., and EVANS, ALBERT, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434743/ | We shall refer to the administratrix as appellant, and to the claimant as appellee.
The decedent executed and delivered a note to the appellee. On March 10, 1925, the appellee filed a claim for the amount due on said note with the clerk of the district court of Hamilton County. Said claim was in proper form, duly verified, and a copy of said note was attached thereto. The record shows that appellant approved said claim after it was filed, and on May *Page 53
18, 1925, paid to the clerk of said court the sum of $2,255.99, which amount was turned over by said clerk to the appellee, and indorsed upon said note. Thereafter, to wit, on November 27, 1926, the appellant called at the office of the clerk of said court, for the purpose of paying the balance due on said claim. At said time, the deputy clerk telephoned to appellee bank, for the purpose of ascertaining the balance due on said claim at said time, and was informed by the bank that the balance due was $1,540.24. This information was then communicated to the appellant, who thereupon gave to the said clerk her personal check for said amount, payable to said clerk. Said check was drawn upon the appellee bank, and proper entry was made on the record in the clerk's office. The clerk deposited said check in his account as clerk in the Hamilton County State Bank. The check was given to the clerk on Saturday, November 27th, and said deposit was made on the following Monday, November 29th. The check was cleared by the said Hamilton County State Bank, and duly charged to the personal account of the appellant in the appellee bank. The Hamilton County State Bank closed its doors on December 1, 1926.
Upon this state of facts, the question is whether or not the payment made to the clerk upon the admitted claim in the manner described is binding upon the appellee bank. It may be a matter of surprise to the profession in this state to discover that there is no statute in this state which in express terms provides that claims established against the estate of a decedent can be paid through the clerk's office, by paying the amount thereof into the hands of the clerk.
Under the Revision of 1860, the county judge was "invested with the usual powers and jurisdiction * * * of a judge of probate." Revision of 1860, Section 241. Under the Revision, there was no specific provision for payment of claims in estates to said county judge. Revision of 1860, Section 2402 et seq. Under these statutes, the case of Wright Co. v. Harris, 31 Iowa 272, arose. That action was against the county judge and his bondsmen. The plaintiffs sought to recover on account for money received by the county judge in the discharge of his official duties, from the administratrix of an estate, which had been paid upon a claim against the estate in favor of the plaintiffs in said action. By way of answer, it was averred "that the *Page 54
collecting and receiving claims due from estates were no part of his official duties." It appeared of record that the county judge, in his official capacity, had received from the executor of an estate a certain sum in payment of a claim due to the plaintiffs in the action, which claim had been properly allowed and filed. We held that the county judge was authorized to act as his own clerk, and keep his own record. We said:
"This court has held that the clerk of the district and circuit courts is authorized to receive money in satisfaction of judgments in those courts, though there is no statute expressly prescribing that it is his duty to do so. Morgan v. Long et al.,29 Iowa 434. Now, in case of a judgment entered by the county judge, the defendants therein would have had the right to pay it. In case of the nonresidence of the party entitled to the money, and in other cases, it could not have been satisfied unless by the receipt of the money by the clerk or by the judge. So in case of the return of an execution by the sheriff with the amount of the judgment collected thereon. It was the sheriff's duty to pay over the money with the writ, and there must have been someone authorized to receive it. In such cases, as the judge was clothed with authority to act as his own clerk, it was his duty to receive the money. If he was authorized to receive money, he was liable, with his securities, upon his official bond, for failure to pay it over to the party entitled to receive it. For the very same reasons, it was his duty to receive money in proper cases from an executor, upon claims filed and allowed against the estate, and he was liable therefor in the same manner."
The question again arose under the Revision of 1860, in Dooganv. Elliott, 43 Iowa 342, 343, where we again recognized the rule that a county judge was authorized to receive money paid by an executor upon claims filed and allowed against the estate.
The office of county judge was abolished by Chapter 160, Acts of the Twelfth General Assembly, and now the district court has original and exclusive jurisdiction of the administration of estates. Section 10763, Code of 1927. The clerk of the district court has certain general duties that are described in Code of 1927, Chapter 479. Section 11832 imposes certain additional powers and jurisdiction upon the clerk in regard to certain *Page 55
matters in probate, but does not make any reference with regard to receiving payment of claims filed in an estate. Code Section 12778 provides for the deposit of funds by an administrator, guardian, trustee, or referee, with the clerk, where the place of residence of the party entitled to the same is unknown; and subsequent sections make provision for the disposal of said funds so deposited. Appellee contends that said last-mentioned sections are the only provisions in the statute directly authorizing the deposit of funds in the hands of the clerk by an administrator of an estate, and that said statute is not applicable to the instant case, because the residence of the claimant was not unknown.
The question for determination resolves itself into the one proposition as to whether or not the clerk of the probate court, under his general powers as clerk, has authority to receive payment from an administratrix of a duly established and allowed claim filed in an estate pending in said probate court. If the county judge, acting as clerk of the probate court, under the former statute, without any express legislative authority so to do, could legally receive from an administratrix payment of claims duly established in the probate court, as held by us inWright Co. v. Harris and Doogan v. Elliott, supra, no logical reason can be suggested why the clerk of the probate court, who now has all of the power as a clerk that the county judge formerly possessed as clerk, may not receive payment on claims established and allowed in the said court.
In Morgan v. Long, 29 Iowa 434, we considered a case where the question involved was whether it was the official duty of the clerk to receive money upon a judgment rendered in his office. The statute did not in express terms make any such provision, but we held that the clerk could properly receive money upon a judgment rendered in his office. We reviewed the various statutes which evidently contemplated the payment of money into the hands of the clerk.
In Walters-Cates v. Wilkinson, 92 Iowa 129, it was held that a court could properly order the share of a party in a partition action "to be paid into court," and that, when such payment was made, the clerk received the money by "virtue of his office." This was without any express statutory authority for ordering money in a partition action to be paid to the clerk.
Wright Co. v. Harris and Doogan v. Elliott, supra, were *Page 56
recently reviewed by us in Prudential Ins. Co. v. Hart, 205 Iowa 801.
We are not unmindful of a custom or practice which has been somewhat prevalent in this state since the decision in Wright Co. v. Harris, supra, whereby claims filed and allowed in probate proceedings are paid to the clerk of the probate court. Such a custom is consistent with our pronouncement in the Wright case. It has the sanction of our decisions, and is well known to bench and bar. We hold that the payment by the administratrix of said duly filed and allowed claim into the hands of the clerk of the district court discharged the estate from further liability thereon. In legal effect, the situation is much the same as though a judgment had been rendered against a debtor in the district court, and the debtor had paid the amount of such judgment to the clerk of said court. We limit our holding to one question: namely, that the payment of the amount of said allowed claim by the administratrix to the clerk of the district court was an authorized and legal payment, and discharged the administratrix in said estate from liability to the claimant thereon. It follows that the order of the district court in directing a verdict in behalf of the appellee must be —Reversed.
ALBERT, C.J., and De GRAFF, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434723/ | This action was commenced by the filing of a petition on July 26, 1945, by the acting county attorney of Hamilton County, Iowa, naming the State of Iowa as plaintiff, and against the Central States Electric Company as defendant. The petition did not purport to be filed on the relation of the county attorney or the acting county attorney, or of anyone else, nor at the request of any court, or officer, or private citizen of the state. But from a resolution of the council of intervener, adopted July 17, 1945, it appears that the county attorney was requested to institute the suit in the name of the State of Iowa to secure a final determination of the validity and legality of Ordinance No. 64 of intervener and of the franchise granted thereby to the defendant.
The petition alleged that intervener was an incorporated town, and defendant owned and operated therein an electric light and power distribution system, under an alleged franchise, granted by the town council on March 16, 1939, known as Ordinance No. 64, which, for various reasons alleged, was not legally passed or adopted, and was null and void and granted no rights to the defendant. These reasons will be noted in discussing intervener's propositions relied upon for reversal.
The prayer of the petition, in substance, was for judgment declaring that the defendant had no right or franchise to operate its said plant, and that said ordinance was "void, illegal and of no effect." There was also a prayer for such other and further relief "as may be deemed just and equitable in the premises." *Page 804
On August 17, 1945, defendant filed a motion to dismiss the petition of plaintiff, for reasons stated, in substance, as follows: 1. The facts alleged do not entitle plaintiff to the relief demanded. 2. The cause is commenced by the State, alone, and not by any relator, or by leave of court granted to any citizen. 3. The petition on its face shows that the franchise was granted to defendant, and by reason thereof it is lawfully exercising it. 4. The cause is barred by the statute of limitations. 5. More than six years had passed since the granting of the franchise, and plaintiff's action is barred by laches. 6. Defendant has constructed, maintained, and operated its plant in reliance on the franchise, and plaintiff is estopped by its conduct. 7. Plaintiff's action is a collateral attack on the franchise, and there is no allegation that the Town of Jewell Junction had no power to grant the franchise. 8. Any alleged irregularities in the adoption of the ordinance do not invalidate the franchise, since the ordinance was approved by a vote of the electors; the mayor and one councilman were not disqualified and had they been, they were, nevertheless, de facto officers.
Other divisions of the motion were to strike and to make more specific.
On October 11, 1945, defendant amended its motion to dismiss, and stated as its reasons that: Plaintiff's counsel, in open court, having asserted that plaintiff was seeking a declaratory judgment in this case, whereas it appeared from the allegations of the petition that it was an action in quo warranto, defendant added the following grounds to its motion to dismiss, to wit: (1) the allegations of the petition conclusively show there is no justiciable controversy entitling plaintiff to seek a declaratory judgment (2) plaintiff is not a party to the franchise agreement between the Town of Jewell Junction and the defendant, and has no such interest in the cause as would entitle it to maintain the action or to obtain the relief prayed for.
Thereafter, and on October 25, 1945, the Town of Jewell Junction filed its petition of intervention, alleging, in substance, that it claimed the right to intervene in said cause, and it joined plaintiff in seeking the relief demanded by plaintiff in its petition, *Page 805
and asserted the same rights as were asserted by the plaintiff; that it was a duly organized municipal corporation, a user of electric energy, and was the entity from which the defendant claimed to have secured its franchise. It further alleged that it made every allegation of plaintiff's petition a part of its petition of intervention as if fully rewritten therein, and:
" * * * that a real and substantial controversy is involved herein, that the interests of this intervenor and the defendant are adverse, and that this action is justiciable in character and that a judgment determining the validity of the alleged franchise claimed by this defendant will determine the future of all parties.
"That the determination of the questions raised in this cause are of great public concern and the final determination of the questions herein involved will be a guide to public officers of the intervenor in the future, and that it now becomes necessary for this intervenor to ascertain whether this defendant is lawfully using the streets of Jewell Junction, Iowa under a lawful and legal grant of franchise or whether this defendant is usurping the rights of a franchise and using said streets and other public places without lawful authority to do so.
"Wherefore intervenor prays relief for itself as prayed in plaintiff's petition and particularly does it pray that the validity of the alleged franchise of defendant be fully and finally determined and that the rights and interests of this intervenor be fully protected and for such other and further relief as may be deemed just and equitable in the premises."
On October 31, 1945, defendant filed its motion to dismiss the petition of intervention, alleging therein, in substance, many of the grounds of the motion to dismiss plaintiff's petition, and alleging further, that from the granting of the franchise:
" * * * it has continued to serve the citizens * * * giving them satisfactory service at rates that are not questioned in this proceeding; * * * and there is no claim made in the petition that this defendant has violated any of the provisions of the franchise; that for the reasons aforesaid the Town of Jewell *Page 806
Junction is estopped from pleading its own irregularities as an excuse for questioning the rights of this defendant to carry on its business according to the terms of said franchise * * * [and] is estopped from claiming that its own irregularities vitiated the terms of the franchise, and that it therefore can [not] create an artificial justiciable controversy by reason of its own irregularities when no complaint has been made by the defendant thereof and the franchise has in no way been violated by the defendant; that if any justiciable controversy exists, it is one manufactured by the intervenor."
On November 13, 1945, and after plaintiff had elected as a matter of record to assert that its action was one for a declaratory judgment, the district court of Hamilton county, speaking through Judge Clock, ruled upon defendant's motion to dismiss plaintiff's petition. In sustaining the motion and holding that the county attorney had no right or authority to initiate an action for a declaratory judgment on behalf of the State, the court, in its ruling, said:
"This weakness of plaintiff's petition is tacitly recognized by the petition of intervention filed by the Town of Jewell [Junction]. The question then arises as to whether or not the weakness has been obviated by the petition of intervention. It seems clear to the Court that the action has not been properly initiated by anyone authorized to bring the State into the litigation and therefore the petition of intervention could not arise to any higher dignity than the original action. Therefore solely upon this naked ground as set forth the motion to dismiss is sustained and the ruling is to be construed as without prejudice to the right of the Town of Jewell to initiate an independent action, as no ruling is made with reference to the substance of its contentions in the petition of intervention."
On November 30, 1945, the plaintiff, State of Iowa, by the county attorney of Hamilton county, perfected its appeal to the supreme court of Iowa from the district court's ruling of November 13, 1945. The intervener did not appeal from that ruling. *Page 807
On December 12, 1945, the district court, through Judge Clock, filed this "Explanation of Ruling," to wit:
"It appearing that there is some confusion as to whether or not the Court has ruled upon the Motion to Dismiss the petition of intervention filed by the town of Jewell, this explanation is filed." (The court then stated that it had no knowledge that such a motion had been filed when the ruling was made, and had no thought that such a motion was submitted.) The court then continued: "The motion attacking the petition of intervention stands undisposed of so far as the court is concerned."
On December 19, 1945, the district court, through Judge John M. Schaupp, passed upon defendant's motion to dismiss the petition of intervention. The court overruled the motion and held that the questions presented by the petition of intervention were properly determinable under Rules 261-269, Rules of Civil Procedure, relating to declaratory judgments.
Defendant filed answer, in four divisions, to the petition of intervention. It admitted the corporate capacity of intervener and its ownership and operation of the electric light and power plant in Jewell Junction under the franchise granted by Ordinance No. 64. It realleged all grounds and defensive matters of its motions to dismiss. It specifically denied all other affirmative allegations of the petition of intervention. It also alleged that petition of intervention had in fact been dismissed by the ruling of the district court of November 13, 1945. In all divisions of the answer the prayer was for the dismissal of the petition of intervention, except in division one, where abatement was prayed of the petition of intervention pending the determination of plaintiff's appeal taken from the ruling of November 13, 1945. All affirmative allegations of the answer were denied in intervener's reply.
Intervener introduced the testimony of its clerk and certain of its records. Defendant offered no testimonial evidence, but introduced certain records of intervener and documentary exhibits pertaining to adoption, publication, recording, etc., of Ordinance No. 64, and to the approval of the ordinance and franchise by the special election. *Page 808
On November 13, 1946, the district court, by Judge Clock, filed judgment and decree, stating therein:
"* * * the Court having been fully advised in the premises, now FINDS that the proceedings of the special election of April 20th 1939 and the franchise ordinance No. 64 adopted pursuant thereto, and the franchise granted to the defendant thereunder and thereby, were regular and valid, and the defendant's exercise of rights under such franchise is valid and further FINDS that the petition of intervention of Town of Jewell Junction, Iowa, intervenor herein, should be dismissed at intervenor's costs.
"Be It Therefore Now Ordered, Adjudged And Decreed That the petition of intervention of the Town of Jewell Junction * * * shall be, and the same is hereby dismissed * * *."
Intervener submits three propositions upon which it relies for reversal. The first is:
"That Ordinance No. 64 * * * was never legally passed or adopted under the mandatory requirements of Chapter 290 Code of Iowa 1939 [chapter 366, Code, 1946]."
Second: "That the alleged special election of April 20th 1939, if so held, was never legally held or completed as the statutes of Iowa require, and that the records and minute book of the Town Clerk of the Town of Jewell Junction, Iowa fail to show that any election was ever held; what the results were, if an election was held; whether any canvass public or otherwise was ever made of the votes cast; whether the ballots were preserved; what became of the poll books and other acts mandatory to the holding of a special election, all in violation of Sections 841, 848, 851, 856 and 861, Code of Iowa 1939 [sections 50.2, 50.9, 50.12, 50.17,50.22, Code of Iowa, 1946]."
Third: "That in September 1938, Mayor Williams and Councilman Anderson were elected by the Town Council of Jewell Junction, Iowa to be trustees of the Jane R. King Charity Fund, there being two vacancies then existing, and that the said Williams and Anderson did at that time in 1938 accept and qualify for said positions of trust and that by so doing they *Page 809
ipso facto vacated their offices as Mayor and Councilman respectively and that in March 1939 and at the time of the proceedings relative to said franchise ordinance, they were not officers of the Town of Jewell Junction, Iowa and that any acts upon their part were null and void and of no effect."
The facts bearing upon these propositions as they fairly appear from the record show that defendant had been operating its electric plant in Jewell Junction since 1925, apparently under a franchise. On February 23, 1939, representatives of the defendant appeared at a council meeting of intervener and announced a reduction of one-half cent in power rates, and contemplated improvements in buildings and transmission lines, and refinancing at lower interest rates, which would tend to further reduce rates. A twenty-year franchise was suggested, to be effective within a year from approval by the voters, with a specified maximum K.W.H. top rate. It was suggested by the council that a citizens' petition therefor be presented. Five of such petitions, with names and addresses of signers and dates of signing, were introduced as exhibits. The petitions were addressed to the mayor and asked for the calling of a special election for the purpose of submitting to the legal electors of the town for their approval or rejection of the proposed ordinance, a copy of which was attached to the petitions. Attached to the petitions was a certificate of E.W. Knudson, town clerk, dated March 17, 1939, stating that they were filed with the mayor on March 16, 1939, and by order of the council the petitions were to be placed in the town's safe-deposit box.
The minutes of the town council on March 16, 1939, at which the mayor and all councilmen were present, recite the presentation of the petitions, the determination of their sufficiency, and the grant of their request by an order calling the special election for April 20, 1939, with notice thereof to be published in the local paper in the issues of March 23d and 30th and April 6th and 13th, with all expense of said election charged to the defendant.
The ordinance (No. 64) is properly titled as required by section 366.2, Code, 1946 (section 5715, Code 1939). It granted to defendant authority, for twenty years after its acceptance, *Page 810
to construct, maintain, and operate its electricity generating plant in the town, and its transmission lines on its streets, to furnish and sell electrical energy not in excess of a specified maximum residence and commercial rate. It provided that it was to be in full force and effect from and after its approval by the electors at the special election, its publication as provided by law, and its acceptance in writing by the defendant within sixty days after the approval of the voters at the election.
The minutes of the said council meeting of March 16, 1939, state that Councilman Anderson introduced the ordinance, which was then read to and duly considered by the council. Its adoption was moved by Councilman Anderson and seconded by Councilman Queensland. The minutes then state:
"On call of roll, Councilmen Anderson, Guhl, Queensland and Williams voted `Aye.' `Nays' Loder. * * * Whereupon the mayor declared the motion carried. Councilman Anderson then moved that the rule requiring three readings of Ordinance be suspended and this Ordinance be adopted. Same was seconded by Councilman Williams. On call of roll, Councilmen Anderson, Guhl, Queensland and Williams voted `Aye.' `Nays' Loder. * * * The Mayor then declared this Ordinance duly passed and adopted on this 16th day of March 1939 all subject to provisions of Section 2.*
Merlin E. Williams, Mayor of the Town.
Attest E.W. Knudson, Clerk of the Town." (Italics supplied.)
* Section 2 provides that the ordinance shall be in effect after its approval by the electors at the special election.
The minutes of the same meeting show that by motions duly carried two councilmen were selected as clerks, and three as judges of the special franchise election, and the clerk was directed to procure necessary election supplies and the town marshal to arrange for the booths and polling places.
E.W. Knudson, the town clerk, became ill in 1941 and died in the fall of that year. Magnus Johnson became clerk of the town in July 1941. As custodian of the official records, books, and papers of the town he produced in court many of these at *Page 811
defendant's request. They were received as exhibits. Among them were the petitions for the special franchise election; letter of the clerk of April 5, 1939, to Matt Parrott Sons Company of Waterloo, stating the holding of the special election on April 20, 1939, and requesting the sending of a specified list of election supplies; a letter of the clerk dated April 19, 1939, to the judges and clerks of election, accompanying election supplies, among which were seven hundred ballots, ten sample ballots, seventeen absent-voters' ballots, complete with envelopes, twelve instruction cards, four affidavits of voter unable to mark ballot, one set of miscellaneous supplies (wire and needles for stringing ballots, sealing wax, pencils, blotters, two bottles of ink, pens, and penholders); four warning cards; two pollbooks (six hundred forty names) complete with envelopes for return of pollbooks, ballots voted, disputed ballots, spoiled, and unused ballots; one muslin sack containing supplies; one muslin sack for all ballots voted and counted; letter of the clerk of April 6, 1939, mailed to W.F. Templer and Ed Pinckney, appointing them special police at the polling place (required by section 49.114, Code, 1946, section 831, Code, 1939); written oath of special police administered by mayor; their appointment by the council; copy of official ballot, fully complying with sections 49.44-49.47, Code, 1946 (sections 762-765, Code, 1939); ballot recites, "Special Municipal Election, Town Hall, Jewell Junction, Iowa, April 20th, 1939, 8 A.M. to 8 P.M." The proposition, stated in capital letters, was: "Shall the following public measure (An ordinance granting a franchise to the Central States Electric Company of Cedar Rapids, Iowa, its successors or assigns) be adopted?"; notice of the special election, with copy of ordinance; order of mayor, attested by clerk, dated March 16, 1939, for its publication; sworn proof of publication for four consecutive weeks (March 23-April 13, 1939) by publisher of Jewell Record; certificate of election, filed by clerk April 21, 1939, at 9 a.m., signed by the two clerks and three judges of election, stating that "At an election holden in Town of Jewell Junction * * * on the 20th day of April A.D. 1939, the public measure (an ordinance granting a franchise to Central States Electric Company of Cedar Rapids, Iowa [its successors or assigns]) was *Page 812
adopted by a majority of the legal electors of the Town of Jewell Junction * * * for the term of 20 years from the 20th day of April 1939, subject to its acceptance * * *"; notice to defendant: "Notice To Company Asking Franchise From Town * * * To Central States Electric Company of Cedar Rapids, Iowa — greeting. You are hereby notified * * *" (Then follows a substantial copy of the foregoing certificate of election reciting the adoption of the ordinance by the voters.) "You are therefore, required to accomplish proper acceptance and comply with the stipulations of the ordinance, according to law. Dated this 24th day of April 1939, E.W. Knudson, Clerk [of Town]." On the reverse side of this notice is this: "Notice of Service and Filing. Original copy forwarded by registered mail to Central States Electric Company of Cedar Rapids, Iowa, this 24th day of April 1939, and copy filed in the office of Clerk of the Town of Jewell Junction, Iowa this 24th day of April 1939 at 11 A.M." Signed by clerk.
Exhibit E is defendant's return receipt, dated April 25, 1939, for the registered letter just referred to. Defendant's Exhibit AA is:
"Acceptance. Central States Electric Company, Cedar Rapids, Iowa does hereby accept the terms and provisions of Ordinance No. 64 passed and adopted by the Town Council of the Town of Jewell Junction, Iowa on the 16th day of March 1939 and approved by the legal electors of said Town at a special election held on the 20th day of April 1939, said Ordinance being: [The ordinance is here described by its title]."
The acceptance is dated April 24, 1939, and signed by defendant by its vice-president, F.A. Thatcher.
Exhibit F is a carbon copy of letter, dated April 24, 1939, from Town Clerk Knudson to Central States Electric Company, enclosing notification of the election approving the ordinance and granting franchise to defendant, and further stating:
"Your attention is called to the fact that the said ordinance was published in the Jewell Record in its issue of April 13 1939, and is to be again so published in its issue of April 27th 1939. A statement of the costs of the special election will *Page 813
be forwarded to you at an early date for payment by you to the town as required by law."
Exhibit V is defendant's voucher stub showing payment of the election expense in the sum of $133.15, and Exhibit W is the letter of defendant to intervener's mayor, dated July 15, 1939, enclosing check for $133.15, as per statement in intervener's letter of July 1, 1939.
Exhibit G is proof of publication dated May 2, 1939, of Ordinance No. 64 by the publisher of the Jewell Record in its issues of April 13th and 27th, 1939. Because of minor typographical errors in the above-noted publications, Ordinance No. 64 was ordered by the town clerk to be republished, as corrected, in the issue of the Jewell Record of May 4, 1939. Defendant's Exhibit AF is that paper's issue of May 4, 1939, carrying the ordinance in full.
Defendant's Exhibit AH is a muslin sack upon which is printed and written the following:
"This Bag Contains Ballots Voted And Counted Special Municipal
No. Of Ballots Voted 454
At An Election Held At Jewell Junction in * * * County of Hamilton, State of Iowa on the 20th day of April 1939.
To Be Returned To Clerk Jewell Junction, Iowa"
Defendant's Exhibit AJ is a muslin bag upon which is written and printed the following:
"This Bag Contains Entire Election Supplies To be used at an election to be held on the 20th day of April 1939 Return misc and unused and undelivered."
Defendant's Exhibit AI is a newspaper clipping as follows:
"Central States Co. Is Given Franchise
"As was anticipated the franchise election held in Jewell Thursday of last week brought out a splendidly big vote; a total of 463 votes being polled. By a narrow margin Central *Page 814
States Electric Co. was voted a twenty-year franchise subject to the provisions of the ordinance voted upon and subject of course to control by the council that Iowa laws provide. The vote was 236 in favor of the franchise ordinance and 218 against it; a majority of 18 votes. There were 9 spoiled ballots cast."
Magnus Johnson, the town clerk, who succeeded Knudson, was a witness for the intervener. When asked, on cross-examination, if he remembered reading the news item above in the issue of the Jewell Record of April 27, 1939, he testified:
"I don't remember whether I did. I suppose I did, it is so far back."
He testified that he voted at the special election of April 20, 1939, and recalled that the vote was close, and that the majority voted in favor of granting the franchise. He also testified that the two sacks, Exhibits AH and AJ, were tied just as he had found them when he became clerk. He did not know their contents as he had never untied the sacks. They were not untied at the trial. He testified that he had never seen the pollbook of the special election and knew nothing about it. It was stipulated that the county auditor — who was not the auditor in 1939 — would, if present, testify that he had never seen such a pollbook in his office.
[1] I. In proposition one the intervener contends that the minutes of the meeting of March 16, 1939, show that there was no compliance with section 5716, Code, 1939 (section 366.3, Code, 1946). The sections are identical and read as follows:
"366.3 Reading. Ordinances of a general or permanent nature and those for the appropriation of money shall be fully and distinctly read on three different days, unless three-fourths of the council shall dispense with the rule."
It will be noted that the heading of the section is the word "Reading," and also that the body of the section requires the ordinances to be "read" on "three different days," unless the "rule" is dispensed with by three fourths of the council. There were but five councilmen in the council, and as four voted *Page 815
to dispense with the rule more than three fourths of the council so voted. Intervener does not contend otherwise but insists that there was a failure to comply with the section because Councilman Anderson said "three readings" instead of saying "three readings on three different days." He should have so expressed himself. But it is clearly apparent that that is what he meant, and that is what he intended to say. The matter of "reading" is the prominent thought in the section. That was the thought and the word that was foremost in his mind. As members of the council, he and his associates were familiar with the section. He never intended to dispense with three readings in one day, because three readings in one day was an unheard of practice and one not required by law. It was his thought and intention to dispense with something which the section required, reading on three different days. He inadvertently failed to say so. But his purpose and that of the other councilmen was clear. They intended to and did dispense with the statutory rule requiring a reading of the ordinance on three different days.
We will follow the equitable maxim: "Equity looks on that as done which is to be done." The council clearly intended to dispense with the "rule." Four fifths of the council so voted, and by a recorded yea-and-nay vote four fifths of the council adopted the ordinance. As said by Evans, J., in Collins v. City of Iowa Falls, 146 Iowa 305, 308, 125 N.W. 226, 227, a similar case:
"Taking the whole record, however * * * we think it would be unduly technical to hold that the verbal inaccuracy noted was fatal to the ordinance."
In Rafferty v. Town Council of Clermont, 180 Iowa 1391, 1392, 164 N.W. 199, 200, the court said:
"The proceedings of town councils and the acts of town officers should be liberally construed, with a view to upholding the transaction of essential public business."
City of Bloomfield v. Blakely, 192 Iowa 310, 184 N.W. 634; State v. Livermore, 192 Iowa 626, 185 N.W. 1; Farmers Tel. Co. v. Town of Washta, 157 Iowa 447, 452, 133 N.W. 361, *Page 816
and other cases cited by intervener are of no aid to it. There is no merit in intervener's first proposition.
[2] II. Neither do any of the claimed violations of the Code sections noted in proposition two call for a reversal of the judgment and decree of the district court. The record does not establish that any of the sections were not substantially complied with. The record, which we have set out at some length, shows that the officers of intervener were extremely careful and meticulous to strictly comply with every statutory requirement respecting the special election. There is no basis for the intimation of intervener that no election may have been held. It is true that the pollbooks were not found, but that does not establish that they were not returned and delivered as required by sections 50.17 and 50.18 of the 1946 Code. Furthermore, under section 50.19 of said Code there is no requirement for their preservation beyond three years where no contest is pending. The rights of the intervener or of any of its citizens are not shown to have been violated to their injury by any failure to file or find the pollbooks. As said in Poor v. Incorporated Town of Duncombe, 231 Iowa 907, 912, 2 N.W.2d 294, 297:
"The mere failure to file the poll book with the county auditor could not be held to vitiate the election."
All of the ballots, whether voted, spoiled, or unused, were no doubt in the sacks, Exhibits AH and AJ, unless they had been destroyed as required by statute. The record, beyond fair question, establishes that the special election was held in substantial compliance with all statutory requirements; that a majority of the ballots were cast for the approval of the ordinance; that it was accepted by the defendant, published as required by statute, and that defendant has complied with all requirements on its part.
III. Respecting intervener's third proposition the record shows that Jane R. King, of Jewell Junction, by will, provided for a fund to be known as the Jane R. King Charity Fund for the benefit of worthy poor people of Hamilton county, with preference to those of Jewell Junction and vicinity. To administer the fund the testatrix named three trustees subject to *Page 817
the approval of the district court of Hamilton county. Their term of office was for life or until removed for good cause by said court. Any vacancies among the trustees were to be filled by nomination made by the town council of Jewell Junction, which nomination also required the approval and confirmation of the court. The trustees were authorized to fully administer the trust by investing and reinvesting the funds in sound interest-bearing securities; to sell and convey any part of her residuary estate, subject to the court's approval; to keep the securities in some reputable bank in the county; to select said bank, or other person, as the treasurer of the trust estate, upon giving proper bond; to have wide latitude in the charitable use of the trust estate; to select a chairman and secretary from their number, who, with the treasurer, should in January of each year make a detailed report of all investments, receipts, and expenditures, in duplicate, one copy to be given to the town council of Jewell Junction, and the other to the district court. The secretary was required to keep a full and accurate account of the principal and income, and the manner and places of investment, which account should at all times be open to inspection by said town council and court. Each trustee was to receive as compensation not to exceed $100 a year, and the treasurer not to exceed one half of one per cent of the sum total of the securities in his care and custody. All compensation to the trustees and treasurer was subject to approval and to increase by the court.
In September 1938 there were two vacancies on the board of trustees and the town council appointed, subject to the court's approval, Councilman John C. Anderson and Mayor Merlin E. Williams, officers of Jewell Junction, as trustees of said fund.
[3] Intervener contends that acceptance of the position as trustees of the charity fund by the mayor and councilman, in itself, removed each of them from his municipal office, because of the incompatibility of the two positions. This contention is not tenable. The duties, responsibilities, and obligations of a trustee of said fund in no way conflicted or interfered with the duties, responsibilities, and obligations of either the mayor or *Page 818
the councilman of Jewell Junction. The position of trustee was not incompatible with that of mayor or councilman of the town. There was nothing in the nature of the duties as trustees that made it improper or against public policy for each to also retain his municipal office. The occupancy of the position of trustee in no way prevented either from fully and fairly performing the duties of his office in the town. The duties of the position of trustee were not inherently inconsistent with or repugnant to the duties of mayor or councilman. Neither was there any physical inability in properly filling the private and public positions. See Bryan v. Cattell, 15 Iowa 538, 549-551; State ex rel. Crawford v. Anderson, 155 Iowa 271-274, 136 N.W. 128, Ann. Cas. 1915A, 523; State ex rel. Banker v. Bobst, 205 Iowa 608-611, 218 N.W. 253.
[4] If it be conceded that there was an incompatibility in the two offices, it would not follow necessarily that it would invalidate the acts of the mayor and councilman with respect to the passage of Ordinance No. 64, and the special election and matters connected therewith. After their acceptance of the trusteeship, these men continued to perform their duties as mayor and councilman, respectively, throughout 1939. The Town of Jewell Junction held them out to the public as officers of the town. If they were not officers de jure they were officers de facto and the town cannot declare their acts as such of no force and effect where the rights of third persons are affected. This is a generally accepted principle of law in Iowa and elsewhere. As said in Metropolitan Nat. Bk. v. Commercial State Bk., 104 Iowa 682, 687, 74 N.W. 26, 28:
"It is the well-settled general rule that the acts of officersde facto are as valid and effectual, where they concern the public or the rights of third persons, as though they were officers de jure, and that their authority to act cannot be questioned in collateral proceedings."
See, also, Bremer County v. Schroeder, 200 Iowa 1285, 1287, 206 N.W. 303; Cowles v. Independent Sch. Dist., 204 Iowa 689, 699, 216 N.W. 83.
[5, 6, 7] IV. The intervener has failed in this action *Page 819
because it has failed to establish the allegations of its petition; it is, therefore, not necessary to pass upon the various defenses alleged and urged by the defendant. While not appealing, it insists, as it rightfully may, that the judgment and decree of the trial court should be affirmed because intervener is not entitled to relief by way of declaratory judgment. It contends that intervener has merely created an artificial controversy where no justiciable controversy existed before, and that it is asking only for an advisory opinion to guide it in the future. So far as appears there had been no open and overt controversy between the intervener and defendant prior to this proceeding. There had been no actual assertion and denial between them with respect to the franchise. The facts upon which the initial rights of the parties are based have never changed. The dormant seed of the controversy was there. This action arose because of the construction which intervener placed on those facts and the conclusion of law which it reached. It had a right to test and try that conclusion by court procedure. When it filed its petition in court, and defendant by pleading challenged it, a good-faith controversy — a justiciable controversy — arose. Every contest in court must be a justiciable controversy, whether the action be a well-known or long-existing one, or one for a declaratory judgment. Intervener could have proceeded by quo warranto, injunction, ouster, or other suit. It elected to proceed under the Rules of Civil Procedure permitting declaratory judgments. Rule 261 provides that the existence of another remedy does not preclude declaratory relief. Rule 262 provides that a right, status, or relation under a municipal ordinance or franchise may be determined by declaratory judgment. If the matter may be determined only by a long investigation of matters of fact, the court might, in the exercise of sound judicial discretion, refuse to proceed under Rules of Civil Procedure 261-269. In this case the facts were not in material dispute and were largely documentary. The district court acted clearly within its proper discretion in entertaining the action. The procedure is remedial and should be given a reasonably liberal construction. For general discussion of the subject matter, see 16 Am. Jur., *Page 820
Declaratory Judgments, section 1 et seq.; 1 C.J.S., Actions, section 18; 68 A.L.R. 111-134; 87 A.L.R. 1206-1250.
One of the purposes of declaratory relief is to determine and adjudicate a right, status, or relation. Intervener prayed that the controversy respecting the validity of the franchise granted to the defendant by Ordinance No. 64 "be fully and finally determined." The district court by its findings of fact, conclusions of law, and its judgment and decree has done so. This court fully agrees therewith. The judgment and decree is — Affirmed.
OLIVER, C.J., and HALE, GARFIELD, SMITH, MANTZ, MULRONEY, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434730/ | On June 24, 1934, plaintiff, a minor, sixteen years of age, was riding as a guest in an automobile owned by the defendant, Walt. B. Mahaffa, and operated by his son, Bernard Mahaffa, on a good graveled public highway running east and west in Elm Grove Township, Calhoun County, Iowa. The road was in good condition and about 18 feet wide, with a downgrade toward a railroad track and depression in the road at the foot of the grade. The road was straight, with a downgrade for a distance of over 1500 feet east of the place where the car swerved off the highway.
There is evidence in the record from which the jury could find that the car as it was proceeding down the hill was traveling at a speed of about 75 miles an hour, and weaving from one side of the road to the other, until it reached a point about 148 feet from a railroad crossing, where the automobile finally swerved off the graveled road and left the highway, running into a ditch on the east side of the railroad track, and across the railroad track, where the car upset and rolled over two or three times before stopping.
One of the witnesses who saw this accident said:
"The rate of speed the car was going, * * * was about 75 miles an hour. * * * The car did not appear to travel straight along the road, it would keep weaving * * * from side to side."
This witness testified that she was positive the speed of the car was never retarded while it was traveling more than a quarter of a mile to the place of the accident. She also testified the car turned over two or three times as it crossed the railroad track.
The evidence also shows that the automobile was owned by the defendant, Walt. B. Mahaffa, and was driven with his consent by his son, Bernard Mahaffa. *Page 874
As a result of the accident, plaintiff received severe bodily injuries resulting in a permanent fracture of his spinal column, or a broken back.
The plaintiff, on cross-examination, admitted having signed the following unsworn statement, being Exhibits 11 and 11-A, after the accident, and while he was in bed suffering from a broken back.
"* * * Aug. 15, 1934, * * * I am 16 years and senior in High School. On June 24, 1934, I went out to Geo. Souder's farm for dinner. Bernard Mahaffa was * * * there for dinner also. * * * about 2:30 P.M. we started for a sand pit down by Yetter to swim. We got in Bernard's car and he drove. I was sitting in the front seat and the three Souder boys were in the back seat. When he had gone about 4 miles we met with an accident. At the time of the accident, we were going west about 45 to 50 miles per hour. This is an ordinary gravel road in good condition. We were approaching a railroad crossing with about a four or five foot raise. When we got about 100 feet from the railroad crossing the car started to swerve across the road and went into on the right hand side before we crossed the track but stopped on this side of the track. I do not know what caused the car to swerve. I did not notice any holes in the road and I do not know whether Bernard applied the brakes or not. I did not see any other cars around. The car had not skidded at any time prior to the accident. There was nothing that I know of that interfered with Bernard's driving. It just seemed to me that the car started to swerve and Bernard lost control of it. * * * We had been driving between 45 and 50 miles per hour most of the way. * * * No one made any complaints about the way Bernard was driving and no one said to slow down or speed up. No tires blew out to my knowledge. There were no witnesses to the accident that I know of outside the occupants of the car. I was knocked unconscious and the last I remember was when I went into the ditch. I have read this report and it is true. Warren Wright."
The plaintiff testified that he never read the statement, but that a stranger came to their house while he was ill in bed and read it to him, but he didn't know whether it was read the way itis now written.
Just prior to the accident, plaintiff was sitting in the front *Page 875
seat with the driver, and three other boys were sitting in the rear seat. While the car was proceeding downhill, the plaintiff was turned around in his seat talking with the boys in the rear seat. He testifies to no estimate of the speed at which the car was going, and said he didn't observe the road ahead or the speedometer because he was talking to the boys in the rear seat. The foregoing is in effect the substance of the testimony offered.
At the close of the evidence, the defendants moved for a directed verdict on substantially the following grounds:
1. Because the evidence fails to show that the car was operated recklessly within the meaning of the statute.
2. Because by the unexplained statements contained in Exhibits 11 and 11-A, plaintiff was precluded from proving recklessness by other evidence. This motion was sustained and plaintiff appeals.
I. The first question for consideration, excluding the admission for the present, is whether or not there was sufficient evidence to warrant a jury in finding that defendants' driver was guilty of recklessness.
What constitutes recklessness for which a defendant may be liable for injuries sustained by another was fully discussed, with an exhaustive review of the authorities thereon, in the cases of Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; McQuillen v. Meyers, 213 Iowa 1366, 1367, 241 N.W. 442; Siesseger v. Puth,216 Iowa 916, 248 N.W. 352; and the following cases which are hereby referred to for a further discussion upon that subject: Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56; Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Fleming v. Thornton, 217 Iowa 183, 251 N.W. 158; Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303; Wright v. What Cheer Clay Prod. Co., 221 Iowa 1292, 267 N.W. 92.
In Siesseger v. Puth, 213 Iowa 164, loc. cit. 182, 239 N.W. 46, 54, this court said:
"It is apparent * * * that the legislature intended the word `reckless' * * * to mean `proceeding without heed of or concern for consequences.' To be `reckless,' one must be more than `negligent.' Recklessness may include `wilfulness' or `wantonness,' but if the conduct is more than negligent, it may be `reckless' without being `wilful' or `wanton,' but to be reckless in contemplation of the statute under consideration, one must be more than *Page 876
negligent. Recklessness implies `no care, coupled with disregard for consequences.'"
The term recklessness as announced in the foregoing cases can be said to be construed as meaning something more than negligence or want of reasonable care; that it means proceeding without heed of or concern for consequences; that it may include wilfulness or wantonness, but if the conduct is more than negligent, it may be reckless without being wilful or wanton; recklessness implies no care, coupled with disregard for consequences, and in the operation of an automobile signifies the driving of a car in a heedless disregard for consequences. The acts must be such as to manifest a heedless disregard for, or indifference to, the rights of others; something that indicates an indifference to consequences; and in the operation of an automobile signifies the driving of the car in heedless disregard for consequences.
[1] Can we say, as a matter of law, that a car is not driven heedlessly and without care of the consequences to others, where it is driven downhill on a gravel road towards a railroad track at a speed of 75 miles an hour, swerving from one side to the other, for a distance of a quarter of a mile, and finally leaving the road, running into a ditch, and turning over two or three times before it finally stopped?
An important consideration in determining the question of recklessness is that the defendants' driver was not faced with any sudden emergency. There were no obstructions between his car and the place where he swerved off the road that would in any manner divert his attention. He was approaching a railroad track and a depression at the foot of the hill for a distance of a quarter of a mile upon a straight gravel road, traveling on a downhill grade. If the defendants' driver was traveling down this hill on a gravel road with his automobile swerving from one side to the other for a distance of a quarter of a mile, in the middle of the afternoon, with a clear view ahead, at a speed of 75 miles an hour, in such a manner that his car, after weaving from side to side, left the roadway, it can hardly be said that there was no evidence tending to establish recklessness on his part.
A further discussion of this question in a somewhat similar case is found in Siesseger v. Puth, 216 Iowa 916, 248 N.W. 352, to which reference is hereby made. In the latter case we held that under facts almost identical with the facts disclosed in this *Page 877
case, the question of recklessness was properly submitted to the jury.
It is contended that speed alone cannot constitute recklessness. While this may be true, it can hardly be said that speed under any and all circumstances cannot become recklessness. A speed of 75 miles or more an hour, on a broad concrete pavement, might not in itself constitute negligence, but we can hardly say, as a matter of law, that a speed of 75 miles an hour on a gravel road, with the car approaching a railroad crossing and operated in such a manner as to make it weave from one side of the road to the other for a distance of over 1500 feet, might not constitute recklessness.
In Siesseger v. Puth, 216 Iowa 916, loc. cit. 923, 248 N.W. 352, 356, we said:
"The true rule seems to be, that * * * if from such evidence all minds could not reasonably agree on whether recklessness has been established or not, then that question should be submitted to the jury. In most * * * cases relied on by defendant as supporting the rule contended for, it was found by the court, as a matter of law, that there was not sufficient evidence offered to make out a prima facie case. Under such condition it would naturally be the court's duty to direct a verdict. But if under the proven or admitted facts different minds might reasonably reach different conclusions, the question then is one of fact for the determination of the jury. [Citing cases.]"
It is the rule that for the purpose of a ruling on a motion for a directed verdict, the testimony should be viewed in the light of the evidence most favorable to appellant, If, therefore, from the evidence introduced, all minds could not reasonably agree on whether or not recklessness has been established, that question became one for the jury.
Our ruling upon this question is controlled by the ruling in Siesseger v. Puth, 216 Iowa 916, 248 N.W. 352, and under it we are constrained to hold that the facts presented in this case made the question of recklessness one for the jury; unless it can be said, as a matter of law, that the statements contained in Exhibits 11 and 11-A preclude the plaintiff from proving recklessness by other evidence.
[2] II. Appellant contends that the court erred in holding that plaintiff was precluded by the statements contained in Exhibits *Page 878
11 and 11-A from proving that defendants' driver was guilty of recklessness by other evidence. It may be the rule of law that a party is bound by his own admissions made on the witness stand in the case on trial, as to the existence of certain facts, but appellant contends that "out of court" admissions, such as the statements contained in Exhibits 11 and 11-A, do not have the same force and effect of admissions of fact made upon the witness stand. Appellant in this case did not admit upon the witness stand that the statements contained in said Exhibits were true.
He simply admitted signing the statement, after it was read over to him, but says he did not know that the statements were the same as those contained therein now. Such an admission can in no manner be construed into an admission that the facts alleged therein are true. Such a statement can only be used by appellees for the purpose of discrediting plaintiff's claim. In other words, it is the well settled rule of law in this and other states that an admission made by a party "out of court" is simply evidence contrary to his claim in court, but is not conclusive against him.
The effect of the admissions is different from what it would have been had the plaintiff testified to the same facts on the stand in this case; the statements in this case were simply admissible for the purpose of discrediting his testimony and for such purpose only. Castner v. Railroad Co., 126 Iowa 581, 102 N.W. 499; Hallowell v. McLaughlin Bros., 136 Iowa 279, 111 N.W. 428; Coldren Land Co. v. Royal, 140 Iowa 381, 118 N.W. 426; Sheldon v. Crane, 146 Iowa 461, 125 N.W. 238; 2 Wigmore on Evidence (2d Ed.) sections 1051, 1053, 1057, 1058, and 1059; 22 Corpus Juris, 417-420, 422, 423, and 426.
In Castner v. Railroad Co., 126 Iowa 581, loc. cit. 583, 102 N.W. 499, 500, this court said:
"The oral demands and the letter were not, of course, conclusive on plaintiff as to the amount of his damage, and did not estop him from showing a larger amount of actual loss; but they were admissible as tending to contradict the truthfulness of the claims made in his testimony on the stand."
In Hallowell v. McLaughlin Bros., 136 Iowa 279, loc. cit. 283, 111 N.W. 428, 430, this court said:
"The appellees also contend that the appellants are bound *Page 879
by the allegations of their original petition; but we do not think their position sound. After much of the evidence had been introduced, as we have heretofore said, the first four counts of the petition were withdrawn, and, while the allegations therein may still have been used as evidence contradicting the subsequent claim of the plaintiffs that oral warranties had been made, such allegations were not conclusive, and did not act as an estoppel upon the plaintiffs."
In Coldren Land Co. v. Royal, 140 Iowa 381, loc. cit. 383, 118 N.W. 426, 427, this court said:
"At some date previous to the trial they had all been examined in certain proceedings supplemental to execution. * * * the plaintiff called the shorthand reporter, and she was permitted to read into this record the testimony of each defendant at that time. This evidence was all properly admitted, but its effect for the purpose of this case is quite different from what it would have been if each had testified to the same effect as a witness in this case. The former testimony of each defendant was admissible against him in this case as an admission, and as such only."
Of similar import is the ruling in Sheldon v. Crane, 146 Iowa 461, loc. cit. 476, 125 N.W. 238.
This rule is stated in Wigmore on Evidence (2d Ed.), section 1053, as follows:
"A primary use and effect of an admission is to discredit a party's claim by exhibiting * * * inconsistent other utterances. It is therefore immaterial whether these other utterances would have been independently receivable as the testimony of a qualified witness. It is their inconsistency with the party's present claim that gives them logical force."
"A quasi-admission, of the present sort, being nothing but an item of evidence, is therefore not in any sense final or conclusive. The opponent, whose utterance it is, may none the less proceed with his proof in denial of its correctness; it is merely an inconsistency which discredits, in a greater or less degree, his present claim and his other evidence." Wigmore on Evidence (2d Ed.), section 1059.
"An admission in testimony of a party is binding on him and dispenses with the necessity of proving the fact admitted, but is not, as a matter of law, to be taken as conclusively true, *Page 880
and, where it is in the nature of an estimate or guess, may be overcome by evidence of the facts and circumstances which form the basis of admission. (Italics ours.)
"An admission in a deposition taken before trial has been held not to conclude the deponent on the trial." 22 Corpus Juris, 422-423; State v. Rice Co. Dist. Court, 134 Minn. 324, 159 N.W. 755; Culberson v. Chicago, etc., R. Co., 50 Mo. App. 556.
"The ultimate determination as to the weight of an admission is for the jury, who should consider the nature of the statement and the circumstances under which it was made." 22 Corpus Juris, 426; Smith v. Randolph, 159 Iowa 159, 140 N.W. 411; Francis v. Francis, 180 Iowa 1191, 162 N.W. 839.
Appellees rely upon Stearns v. Railway, 166 Iowa 566, 148 N.W. 128, and other cases, as supporting their contention that appellant is conclusively precluded from contradicting by other evidence the statements made in the purported admissions contained in Exhibits 11 and 11-A, but in those cases, plaintiffgave certain testimony on the witness stand in the action ontrial, and because he stated certain matters in his testimony as true, the court held he was bound thereby. Such is not the situation in the case on trial, and the rule therein does not apply here.
The admissions contained in Exhibits 11 and 11-A at most can be considered only "out of court" admissions, and can be considered for no other purpose. Such statements were not admitted to be true by plaintiff in this case. They were introduced by defendant on plaintiff's cross examination, who admitted no more than that the statements were signed, but he did not admit, on the trial of this case, that such statements were true. Such statements were, therefore, no more than an "out of court" admission.
During the time the car was weaving down this road before it left the highway, plaintiff was turned around in the front seat talking to the boys in the rear seat. The statement does not show that he was paying any attention to the speed of the car, and if he did make any statement as to such speed, it could at best be considered only an opinion and not a fact. A party cannot be bound by statements out of court when such statements are the mere opinion of the party making them. Culberson v. Chicago, etc., R. Co., 50 Mo. App. 556; Rowe v. United Rys. Co., 211 Mo. App. 526, 247 S.W. 443. *Page 881
In the latter case, the court said, loc. cit. 445:
"In a case such as we have before us, the testimony of plaintiff, as a witness in his own behalf, as to the speed of thestreet car and the distance it was away from him at a givenmoment are but mere expressions of his opinion and mere conclusions on his part, and not statements of fact, and, being opinion evidence, does not come within the rule * * * relied upon by appellant." (Italics ours.)
It is our conclusion that the lower court erred in excluding all other evidence bearing on the question of recklessness in sustaining defendants' motion for a directed verdict.
For the reasons hereinabove expressed, we are constrained to hold that the evidence offered presents a question for the jury, upon the question of whether or not the defendants' driver was reckless in the operation of the automobile at the time and place in question.
It necessarily follows that the judgment of the lower court must be and is hereby reversed. — Reversed.
PARSONS, C.J., and ALBERT, STIGER, ANDERSON, RICHARDS, HAMILTON, DONEGAN, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434737/ | Plaintiff, as administratrix of the estate of Walter R. Odegard, deceased, brought suit against the defendant for damages, and in her petition alleged that defendant negligently operated his automobile, which negligence caused a collision with the car driven by the decedent. It is asserted that the damages claimed by plaintiff include the following: Loss to his estate by reason of the death of the decedent; the expenses attendant to hospital and medical services rendered; repairs to his automobile; and also damages by reason of burial expense incurred prior to decedent's anticipated expectancy of life. The defendant pleaded a general denial, and during the trial, by various motions, asserted that the plaintiff's intestate was guilty of contributory negligence. The trial court submitted the case to the jury, which returned a verdict in favor of the plaintiff. The defendant's motion for a new trial and exceptions *Page 327
to instructions were overruled. Judgment was thereafter entered against him. He has appealed.
The accident which resulted in the litigation now before us for review occurred at the intersection of Federal Avenue and Sixth Street Southeast in Mason City, Iowa, about 4:45 o'clock a.m. on Sunday, August 10, 1941. Federal Avenue is a part of a federal north-and-south highway which is designated as U.S. Highway No. 65. Sixth Street intersects this highway and to the east of it the street is referred to as Sixth Street Southeast and the intersecting street, to the west, is known as Sixth Street Southwest. At the intersection of these streets there is an official "Stop" sign requiring traffic to stop before entering Federal Avenue. Federal Avenue is forty-six feet wide at the place where the collision occurred and Sixth Street at this intersection is forty-one feet from curb to curb. This intersection is in the business district of Mason City and is in a twenty-mile-per-hour speed zone. Prior to the collision that occurred at the intersection of the two streets heretofore referred to, the appellant was driving north and approaching Sixth Street. The decedent, just prior to the accident, had driven to the intersection of the two streets from the east, stopped momentarily and then proceeded across the highway to the west. The collision which resulted in the death of the appellee's intestate occurred just after the decedent's automobile passed the center of Federal Avenue. The testimony shows that the Odegard car was struck on its left rear side.
In order that the facts concerning the collision may be more definitely set forth, we shall quote portions of the testimony of certain of the witnesses.
Dale Shafer, an attendant at an oil station located on the southeast corner of the intersection, testified:
"I was looking out of that window toward the south and saw Mr. Gregerson's automobile go northward past the station on Federal Avenue. I would say that the left-hand side of his car would be even with the black line in the middle of the street. As I remember it, the car stayed about there as it passed through my line of vision. He was traveling a pretty good rate, thirty, thirty-five miles, maybe. * * * It was daylight when the crash occurred. * * * After the accident I scooped up some glass on *Page 328
the street. The glass was strung along the curb by the lamp post, some strung out along in the middle of the street. * * * The left-hand side of the Odegard car was smashed. The left door of the Odegard car was open after the accident. The right-hand side of his car was not damaged. Just the front end of the Gregerson car was damaged. The right door of the Odegard car was closed after the accident."
Oscar Wiser, who was in the car with the decedent at the time of the accident, testified:
"Mr. Odegard was driving the car and was going to take me home. I was seated beside the driver. There was no one else in the car. We approached Federal Avenue on Sixth Street Southeast from the east. We were driving west."
This witness further testified, in substance, that Mr. Odegard stopped before entering the intersection of Sixth Street Southeast and Federal Avenue; that he recalled proceeding into the intersection; that the front of the Odegard car was past the center of the intersection at the time it was struck and that it had passed the center line of Federal Avenue when it was struck by the other car.
Wiser further testified:
"I was thrown out of the car by the impact but sustained only minor injuries. Odegard was thrown out of his car. Both of us were thrown out of the driver's or left-hand side. * * * I did not see the Gregerson car before it collided with Odegard's car. Odegard's car kept going straight ahead until the collision."
Further testimony given by Wiser was to the effect that the speed of the Odegard car remained about the same from the time it entered the intersection until the collision and that he did not hear Odegard make any statement or exclamation just before the collision.
Everett Richardson testified that on one occasion Gregerson told him that the accident was his fault and he thought it would be taken care of. Mrs. Cora Odegard, the wife of decedent, testified that after the funeral Mr. Gregerson came to her home *Page 329
and visited with her concerning the accident, and relative to this conversation she testified as follows:
"He said he was sorry he did not see the car but not to worry, that everything would be taken care of."
Mrs. Everett Richardson, a sister of Mrs. Odegard, also testified that after Mr. Odegard's funeral Mr. Gregerson was at the home of Mrs. Odegard. Mrs. Richardson's testimony, in part, was:
"He said he was sorry about the accident and for her not to worry — he was sure it would be taken care of. He said he did not see the Odegard car."
W.M. Gregerson, the defendant and appellant, was the only witness who testified in his behalf. He denied the statements attributed to him by the witnesses for the appellee. His denial of the statements made by the appellee's witnesses was the extent of his testimony. He did not testify as to how the accident had occurred.
The appellant, at the close of the appellee's testimony and at the close of all the testimony, moved for a directed verdict. It was the appellant's main contention at that stage of the litigation, as it is before this court, that the appellee had not carried the burden of proof of showing freedom from contributory negligence and that the evidence failed to show that the claimed negligence of the appellant, if any, was the proximate cause of the accident. This contention of the appellant necessitates our consideration of the evidence presented and the application of the law to the facts.
[1] I. We have consistently held that in giving consideration to the question whether or not there should be a directed verdict in favor of a defendant, the testimony of the plaintiff should be considered in its most favorable light. Lathrop v. Knight,230 Iowa 272, 275, 297 N.W. 291; Nagel v. Bretthauer, 230 Iowa 707, 711, 298 N.W. 852; Crowell v. Demo, 231 Iowa 228, 229,1 N.W.2d 93; Bartholomew v. Butts, 232 Iowa 776, 5 N.W.2d 7, 9. We have also held that if reasonable minds would differ as to the facts presented, the question of the respective *Page 330
liabilities of the parties should be left to the jury. Calvert v. Mason City Loan Investment Co., 219 Iowa 963, 967, 259 N.W. 452; Dawson v. Bankers Life Co., 216 Iowa 586, 600, 247 N.W. 279.
[2] II. It is asserted by the appellee that the appellant was guilty of negligence as a matter of law in driving his car on Federal Avenue, in a business district, in excess of twenty miles per hour, and in not driving his car on the right-hand side of the center of the street. It is contended by the appellee that the appellant could have avoided striking decedent's automobile if he had driven his automobile in the manner and place that appellee claims was required of the appellant. It is the further claim of the appellee that, inasmuch as the deceased was past the center of the street and in a place of safety when his automobile was struck, even though he might have been negligent in driving into the intersection, yet his act in doing so, in the light of the appellant's manner and place of driving, was not a contributing factor which would prevent recovery. The appellant, on the other hand, claims that the evidence fails to show that his negligence, if any, was the proximate cause of the accident. He contends that the claimed negligence of the decedent contributed to the collision and on account of that fact the appellant should not be held liable for the resulting damages.
We have held in innumerable cases that the question of contributory negligence is ordinarily a question for the jury, and if there is any evidence tending to establish a plaintiff's freedom from contributory negligence that question is for the jury. Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781; Huffman v. King, 222 Iowa 150, 268 N.W. 144; Short v. Powell, 228 Iowa 333, 337, 291 N.W. 406.
We have given consideration to cases cited by appellant in support of his contention that the trial court should have directed a verdict for him. We do not believe that under the factual situation presented in the instant case the cited cases are applicable to the extent that we should hold that the trial court was in error in not directing a verdict for the appellant. Upon the authorities heretofore cited, we hold that the trial court properly submitted the question of the claimed negligence of the respective litigants for the determination of the jury. *Page 331
[3] III. It is the claim of the appellant that the trial court erred in giving its Instruction No. 9, which is as follows:
"If Mr. Odegard stopped before he entered the intersection in question, and acting as a reasonably prudent man, believed that any car coming from his left would be traveling on the right-hand side of the street and at a rate of speed not in excess of twenty miles an hour, and acting as a reasonably prudent man, believed that he had time and opportunity to cross the street without hazard, and if, acting as a reasonable and prudent man, he did so believe, then he would not be guilty of contributory negligence."
It is appellant's contention that there was no evidence upon which the giving of this instruction could be based. It is further claimed that this instruction incorporated a definite statement that Odegard would not be guilty of contributory negligence if he believed the appellant was not guilty of the two claimed items of negligence referred to in the instruction. It is appellant's claim that there was no evidence that Odegard made any observations, and that the jury, under the instruction, was permitted to speculate as to what he saw and what he might have believed from what he saw.
It is virtually conceded by the appellee that there was no evidence disclosed by the record that indicated that the decedent had made any observations whatsoever which could be the basis of any belief as to the matters referred to in the instruction. However, it is contended that the error, if any, was a result of the giving of an instruction requested by the appellant.
The court gave its Instruction No. 8, which is virtually the same as requested Instruction No. 3 asked for by appellant. In Instruction No. 8 the court, in substance, stated that it was the duty of Walter R. Odegard, before crossing Federal Avenue, not only to stop but also to make observations to determine whether any vehicle was approaching on Federal Avenue so close as to constitute a hazard to his crossing. It further instructed that if any vehicle was approaching so close as to constitute a hazard, it was Odegard's duty to yield the right of way to such vehicle and that his failure to make observations, such *Page 332
as a reasonable and prudent person would have made under the same or similar circumstances, or to yield such right of way if the appellant's automobile was approaching so close as to constitute a hazard, would constitute negligence on the part of Odegard. It further instructed that if the jury found that Odegard failed to make such observations or failed to yield the right of way to appellant's automobile, under the circumstances of the approach of appellant's automobile, then Odegard was negligent, and if such negligence contributed to the collision and damages, then appellee cannot recover.
We have not set out the appellant's requested Instruction No. 3, but the court's Instruction No. 8, which has been referred to, is virtually the same as requested Instruction No. 3. Can it be said that there was error in amplifying on Instruction No. 8, as the court did in giving Instruction No. 9? We do not think this was error. Under the circumstances, if there was error, we hold it was without prejudice inasmuch as the court was merely enlarging upon the theory of the appellant as noted in requested Instruction No. 3. This court, in previously decided cases, has held that a litigant cannot invite error by asking the court to give a requested instruction and thereafter claim error if the court gives such an instruction. In the instant case, the particular instruction of which complaint is made was not requested by the appellant but it amplified a theory and idea that was incorporated in a prior instruction which had been requested. In the case of Campbell v. Ormsby, 65 Iowa 518, 520, 22 N.W. 656, 657, in commenting upon a situation somewhat similar to the one presented in the instant case, we said:
"We have, upon this state of facts, the case of the defendant recognizing and insisting at the trial upon the very rule adopted by the court, and which is now complained of by him. But the law will not permit him to pursue this course. He cannot lead the court into an error by assenting to the doctrine of an instruction in which the error is found, and in this court seek to reverse the judgment on the ground of the error. Smith v. Sioux City Pacific Ry. Co., 38 Iowa, 173; Weller v. Hawes, 49 Id., 45."
Holdings of a similar character are found in the following cases: Usher v. Stafford, 227 Iowa 443, 447, 288 N.W. 432; *Page 333
In re Estate of Iwers, 225 Iowa 389, 398, 280 N.W. 579; Andrews v. Chicago, M. St. P. Ry. Co., 86 Iowa 677, 686, 53 N.W. 399; Krehbiel v. Henkle, 178 Iowa 770, 781, 160 N.W. 211; Anderson v. Anderson, 150 Iowa 665, 671, 130 N.W. 716.
[4] IV. It is the further claim of the appellant that the court committed error in giving Instruction No. 10, wherein it was stated, in substance, that Mr. Odegard, as a reasonably prudent man, had the right to assume and believe that any car approaching from his left would drive on the right-hand side of the street and would not drive in excess of twenty miles per hour, and he would not be guilty of negligence in so assuming and believing, unless, as a reasonably prudent man, he should have discovered that appellant was not so driving. Our comments in the previous division are applicable to the criticism made of this instruction, and under the circumstances we hold that there was no error.
V. It is the further claim of the appellant that the court committed error in the giving of Instruction No. 5, wherein it was stated that each party using the public highway owes a duty to the other of exercising reasonable care, which reasonable care is to be measured by the danger to be reasonably apprehended. The court further stated that each party, however, is justified in assuming that the other will obey the law and that he will use ordinary care to avoid danger. It is the claim of the appellant that the court should have further stated that each party is justified in assuming that the other will obey the law and that he will use ordinary care to avoid danger "until he knows or until in the exercise of ordinary care he should have known otherwise." In other instructions the court commented upon the fact that the decedent, in giving consideration to the circumstances presented, should be judged by the acts of a reasonably prudent man. The court did not, in the instruction of which complaint is made, comment on the fact that the decedent should be judged on the basis of exercising ordinary care. However, the court did, in other instructions, comment on the fact that the acts of decedent should be judged in the light of the acts of a reasonably prudent man. We think that in considering all the instructions there was no error in not incorporating the phrase which appellant claimed *Page 334
should have been included in Instruction No. 5. We do not believe that a judicial Utopia will ever be reached when instructions submitted will meet with the approval of a defeated litigant. However, a reviewing court should and does consider that all instructions should be considered in their entirety. It is our conclusion that the instructions as given, when read as a whole, properly advised the jury as to the law, and that there was no prejudice in the court's failure, if it was a failure, to add a certain phrase or statement to a particular instruction.
[5] VI. The appellant makes further complaint of the court's instruction relative to the funeral expense. The testimony shows that the expense attendant to the burial of decedent was $561. The court instructed the jury that they could not allow for this expense but that they could allow "interest at the rate of five per cent per annum from Oct. 1, 1941, for the period you find the said Odegard would have lived except for the collision in question, but you cannot allow such interest on an amount in excess of the sum of $770.99." It is contended that the recovery for the interest on the burial expense could not exceed interest on the actual amount paid out for the burial. The amount of damages claimed by the appellee in her petition was $16,090.46. The jury was not asked to itemize the basis of its verdict in any special findings, and inasmuch as the verdict returned was considerably less than that sought by the appellee, we do not see where the appellant was prejudiced by any claimed excessive recovery in connection with the instruction relative to the matter of interest on the expenditures in connection with the funeral. Under the circumstances, and in the light of the amount of the verdict returned, we do not hold that the instruction as given was prejudicial.
Upon a review of the entire record, we hold that the case was properly submitted to the jury, that there was no error in the instructions, and that the trial court should be affirmed. — Affirmed.
SMITH, C.J., and GARFIELD, HALE, MULRONEY, MANTZ, MILLER, and OLIVER, JJ., concur.
BLISS, J., takes no part. *Page 335 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4035479/ | Order entered September 15, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00609-CV
E.I. DU PONT DE NEMOURS AND COMPANY, Appellant
V.
VIRGIL HOOD AND LORRIE HOOD, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-03619
ORDER
We GRANT appellee/cross-appellant Lorrie Hood’s September 12, 2016 motion to adopt
briefing schedule. We ORDER appellant’s brief and cross-appellants’ brief due October 16,
2016; appellees’ brief and cross-appellee’s brief due November 15, 2016; and appellant’s reply
brief and cross-appellants’ reply brief due December 12, 2016.
/s/ CRAIG T. STODDART
JUSTICE | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434740/ | I respectfully dissent from the conclusion announced in the majority opinion and shall state my view of the facts and the law applicable thereto.
My contention is that a fact question was presented and that the case was one for the jury and not for the trial court to determine. My thesis in this case may be briefly stated as follows: Where an accident policy provides (1) for $5000 for loss of life or limb (2 legs) (with a specific provision that in such event no monthly indemnity is payable — the instant case), (2) for monthly indemnity for loss of time where there is no specific loss of life or limb.
(A) That the policy contains two separate and distinct contracts of insurance, viz: (a) against loss of life or limb, (b) against loss of time. That the statements and the question of earnings in the application affect, refer to and are material only to those injuries involving monthly indemnity payments.
(B) That the matter of earnings of the insured has absolutely no bearing, relevancy, or materiality on the matter of loss of life or limb.
The instant action is to recover damages on the ground of fraud and deceit in effecting a settlement under an accident insurance policy. It appears that on January 3, 1922, at Grundy Center, Iowa, the plaintiff-appellant slipped and fell under a railway passenger train which crushed his legs necessitating the amputation of both feet above the ankle joints. The plaintiff in his petition alleges that on December 21, 1921, the defendant insurance company and the plaintiff entered into a certain contract of insurance whereby it insured the plaintiff in the principal sum of $5000 in the event of the loss, by accidental means, of his two feet at or above the ankle joints; that on January 3, 1922, he slipped and fell under a railway train and as a result of the accident lost both of his feet; that during the month of *Page 515
May or June, 1922, the President of the insurance company, by wanton and willful fraud, secured a settlement and a release of all obligations under said policy for the sum of $1000 payable at the rate of $100 per month. Plaintiff prays judgment in the sum of $4000 and interest. The defendant filed an amended and substituted answer by way of a general denial with specific exceptions and admissions. The defendant admitted the execution of the policy and alleged that plaintiff in procuring same falsely represented in his application that he was insured in two other companies and that the total amount of indemnity provided for in said other policies was in the total sum of $80 per month; that the insurance applied for in the different companies in itself or in combination with the other insurance carried did not exceed his monthly income. It is alleged that these statements were untrue and fraudulently made and that the policy would not have been issued to the plaintiff, had he not made these false representations to the defendant company. Other allegations are contained in defendant's answer, but they are not material in the disposition of this appeal.
It is clearly shown by the application attached to the policy in question that the plaintiff Bockes applied for three kinds of insurance, all to be included in a standard form of policy, to wit (1) accidental death, (2) accident indemnity and (3) sickness indemnity, and that the premium for each kind was to be paid in a single named amount. The policy which was issued to him by the defendant company distinctly and without ambiguity states at the head thereof that it "provides indemnity for loss of Life, Limb, Sight, or Time" and in the "insuring clause" it provides for "Loss of Time through disability from sickness." It is also obvious that the company in writing the policy has, under the heading "Specific Total Losses" and "Monthly Indemnity," made a separation and distinction between loss of Life, Limb and Sight and Loss of Time by reason of injury or sickness and specifically states under the "Partial Disability" Clause (b) under Section II, That no payments of monthly indemnity shall be made in caseof any loss enumerated in Section I, that is for death, dismemberment or loss of sight. The policy issued to the plaintiff by the defendant company, by its provisions, granted insurance as follows:
A. For accidental loss of life, limb or sight and for which a *Page 516
stipulated amount, called, "Principal Sum" was to be paid or a stipulated part thereof, depending upon the nature of the loss of limb or sight.
B. For loss of time on account of disability caused by accident or sickness and for which a monthly indemnity was to be paid, depending upon the duration of such disability. Section I applies solely to loss of life, limb or sight and recites without reservation that the company will pay In Lieu of All Other Indemnity the Principal Sum, and under Section II which applies solely to loss of time recites specifically that No Payments of Monthly Indemnity Shall be Made for Any Loss Enumerated Under Section I. This is a standard form policy and provision 19 of the "Standard Provisions" in said policy provides:
19. "If a like policy or policies, previously issued by the company to the insured be in force concurrently herewith, making the aggregate indemnity for loss other than that of time on account of disability in excess of $15,000, or the aggregate indemnity for loss of time on account of disability in excess of $100 weekly, the excess insurance of either kind shall be void and all premiums paid for such excess shall be returned to the insured."
It is quite obvious that the defendant company recognized the separation and distinction between the insurance granted for loss of life, limb, or sight and for loss of time, and the policy uses the expression "either kind" in connection therewith. The insurances in said policy are clearly separable and are so held to be by a uniform line of decisions. It is said in Employers' Liability Assur. Corp. v. Morrow, 143 Fed. 750 (C.C.A. 6th Dist.) (Tenn.) in speaking of a policy similar to the one in the instant case:
"But no right to receive any weekly indemnity whatever exists for the loss of an arm. * * * In that event, the express * * * covenant is to pay the assured the sum of Ten Thousand Dollars. * * * Neither is there any analogy between the loss by fire of specific property and the loss by accident of an arm or other limb. In the first case, property has a market value, and when that market value is paid the assured is indemnified. A bodily injury has no market price. If it results in a mere disability to *Page 517
continue the assured's avocation, the value of the assured's time during such disability furnishes a definite standard for a contract of indemnification. * * * But the contract recognizes that for a death by accident, or the loss of limbs, or an eye, there is no market standard of value and accordingly provides in most explicit terms for the payment of an agreed sum to be paid in full discharge of the liability under the policy."
The foregoing statement of legal principle was adopted and approved by this court in Wahl v. Inter-State B.M. Acc. Assn.,201 Iowa 1355. Therein we said: "`[Life insurance] in no way resembles a contract of indemnity. * * * it really is what it is on the face of it, a contract to pay a certain sum in the event of death.'" It is manifest that the policy issued to Bockes was an instrument containing at least two separable and distinct contracts of insurance, neither having anything to do with or depending upon the other. In other words, if the insured suffered the loss of two legs, or other "principal sum" injury, there was to be no monthly indemnity payable and if he suffered disability and loss of time there was to be no "principal sum" payment. The situation was exactly the same as if the defendant company had issued two separate and distinct policies, one insuring against loss of life, limb and sight, and the other insuring against loss of time. This situation is in no way changed because only one application and one policy was used. Things equal to the same thing are equal to each other. When the clauses in a policy are clearly separable, effect must be given in conformity therewith. If the risk as to one class would not affect the risk on the other class or classes, although the policy may be void as to one class, it would not be void as to the other class. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625; General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.); Aetna Life Ins. Co. v. Bethel, 131 S.W. 523 (Ky.); Trabue v. Dwelling House Ins. Co., 25 S.W. 848 (Mo.), 23 L.R.A. 719; Pratt v. Dwelling House Ins. Co., 130 N.Y. 206.
The plaintiff-appellant testified that from the time the proof of loss was prepared and sent until May 9, 1922, no one from the appellee company had seen him with regard to the matter of his claim. He also testified that on May 9, 1922, William Schulz, of Des Moines, President of the appellee company, visited him at *Page 518
his father's farm near Conrad, Iowa, and in the presence of appellant's brother, Clarence, who, it was stipulated by counsel, would testify in respect to the conversation between appellant and Schulz, substantially the same as testified by the appellant, which conversation was that Schulz said that he felt sorry for the appellant as it seemed too bad to see anyone crippled as he was; that the company did not owe appellant anything under the policy; that appellant was over-insured and due to that fact the appellant had no claim; that appellant had been getting more on the monthly plan than he was earning; that appellant was over-insured on account of the other policies; that Schulz did not tell them that there was no indemnity payable when he lost two legs; that Schulz finally agreed to give appellant $800 in cash or $1000 on the installment plan; that Schulz advised the appellant to accept the settlement offered him; that Schulz said appellant had better take that or he would not get anything out of it; that appellant did not have any legal rights; that if appellant sued he would not get anything; that he (Schulz) would rather give it to appellant than to give it to the lawyers; that it would probably cost that much to defend a trial; that as to the outcome of any litigation, appellant would not get anything; that there is no liability on the part of the company on appellant's contract, and that the reason for his saying that was that the appellant's weekly indemnity on the three policies was in excess of appellant's earnings.
On cross-examination appellant was asked and made answer to the following questions:
"Q. And the only representations that he made to you that you can remember, which he claimed had invalidated the policies, was the one that your income wasn't equal to the aggregate amount of the indemnities upon the three policies, or that in substance?
"A. Well he said I was over-insured.
"Q. That is what you understood him to mean when he said that you were over-insured, as you stated yesterday, you didn't understand him to mean that you were over-insured in the sense of the indemnity clause that applied in case you lost both legs. You say that you don't make claim you were over-insured in that respect? *Page 519
"A. No, it was the weekly or monthly indemnity.
With respect to the making of the application for the insurance the plaintiff testified that he was acquainted with Brownell and was in the month of December, 1921; that Brownell solicited the policy and that he purchased a policy from him; that he gave Brownell an application in Eldora, Iowa, on or about December 21, 1921; that Brownell asked him some questions and that he (Bockes) answered them; that he answered them truthfully; that he recalled that Brownell asked him as to other insurance that he had and that he told him the companies and told him how much the principal sum of the other policy was and also the weekly and monthly indemnity; that he did not read the application before signing it because he thought that Brownell knew more about it than he did; that he had never done any insurance business and knew nothing about it; that he relied upon Brownell to fill out the application correctly.
An applicant is justified in relying upon the advice and the assistance of an agent in preparing the application and the language will be given a reasonable construction in favor of the insured in order to avoid forfeiture on technical grounds. Bucknam v. Inter State Bus. Men's Acc. Assn., 183 Iowa 652. Brownell as a witness testified that he was the agent of the defendant insurance company on Dec. 21, 1921, and on or about that time received the application from Bockes for a policy of accident insurance in the defendant company; that at the time he received the application he knew that Bockes did some wrestling and from the time he received the application until May 9, 1921, the date of the settlement no one for or representing the defendant company asked him what had been told him by Bockes, or what he knew of or about Bockes at the time the application was accepted. Schulz, the President of the Company, testified he was the President and the directing head of that institution and was familiar with all the operations and methods of the Company; that he saw the original policy but did not have it with him upon the trial; that the defendant company was organized and began to write business in September 1920; that prior to that time he was with the Bankers Accident and had been in the insurance business about 20 years; that he settled claims for the Bankers *Page 520
Accident and was familiar with the operation of the pro-rata clause.
The appellant Bockes had received no advice respecting his claim from anyone, and there was nothing to aid him beyond the statements made to him by Schulz. It is further shown that Schulz, after the conversation with Bockes on the farm, went to a Conrad bank, selected by Schulz and at that place Schulz prepared two instruments. One of these bore the caption "Proposition for Advanced Settlement." Bockes had nothing to do with the drafting of that document and signed it when requested so to do by Schulz. This document was addressed to the insurance company at Des Moines and stated that for the purpose of making settlement in advance of all claims accruing at any time under the said policy on account of accidental injuries sustained by Bockes on or about January 3, 1922, that Bockes offered to accept the sum of $1000 in full payment and discharge of all claims of every kind, nature, or description, binding Bockes, his estate, heirs, assigns and beneficiaries. From the very nature of the document the jury could well find that there was a purpose in preparing such an instrument for Bockes to sign. Immediately thereafter, another instrument constituting a full release to the company of all liability from whatever source that had accrued or thereafter to accrue as the result of accidental loss of both feet on January 3, 1922, was prepared by Schulz which Bockes signed upon request. These writings made it appear that Bockes made the offer to accept $1000 before the insurance company, by its President Schulz, agreed to pay him the amount stipulated in said writings. The jury might well find, under all circumstances, that the procedure taken was a part of a scheme to defraud. A compromise settlement induced by fraud is no different than any other settlement so induced. Pertinent language is used in the case First Nat. Bank v. Hartsock, 202 Iowa 603:
"Fraud is not committed openly. It is an offense of secrecy. Direct evidence is rarely obtainable. Frequently it can be shown only by the circumstances admitted by the parties to it. * * * The circumstances of a bona fide transaction are ordinarily consistent with each other, and with generally recognized business methods and fair dealing, and not incredible. A fraudulent transaction naturally begets stilted, contradictory, and incredible *Page 521
evidence. The bona-fide transaction and the fraudulent one each has its well recognized indicia. * * * `The motives and intentions of parties can only be judged of by their actions and the nature and character of the transaction in which they are engaged. These often furnish more conclusive evidence than most direct testimony.'"
The record shows that the appellant was insured, at the time he applied for insurance in the appellee company, as follows:
Principal Sum Monthly Indemnity
Mutual Benefit $2000 $ 80 Bankers Accident 1000 100
and which in combination with the insurance applied for in the defendant Company made the total insurance as follows:
Principal Sum Monthly Indemnity
$8000 $280
No evidence whatever was produced on the trial of this cause showing what the wages, salary or income of appellant was at the time of the making of the application for insurance in the appellee company. The appellant, however, testified that he had been asked the questions by Brownell, the agent, and that he had answered them truthfully.
It appears that the denial of liability on the policy for the loss was based by appellee upon the answer to questions 9, 11 and 20 of the appellant's application. As heretofore pointed out, the insurance applied for was of three kinds, (1) accidental death, (2) accident indemnity, and (3) sickness indemnity. The applicant was asked these questions by the agent and the latter wrote the answers as they appear in the application. The questions and answers as they appear are:
"(9): Have you any insurance against accident or sickness in other Companies, Associations, Societies, or lodges? (Name company, amount, and monthly indemnity.) Bankers Accident and Mutual Benefit $80. No.
"(11): Does the insurance hereby applied for by itself or in combination with other valid insurance on the same risk or otherwise applied for and not issued, exceed your monthly wages, salary or income? No. *Page 522
"(20): Do you understand and agree that the right to recover under any policy which may be issued on the basis of this application shall be barred in the event that any one of the foregoing statements material either to the acceptance of the risk or the hazard assumed by the company is false, and made with the intent to deceive, and do you further agree that this application shall not be binding upon the Company until accepted by the Company or by an agent duly authorized to issue policies and that the policy will not be in force until all policy fees or premiums are paid and that the maximum contingent liability of the policyholder hereunder shall be in an amount equal to the premium paid for the term for which this policy is written? Yes."
The appellant testified that he recalled Brownell's asking him about the other insurance that he carried and that he told Brownell how much principal sum of the other policy was and also the weekly and monthly indemnity he had. The question in the printed form required that the name of the Company, the amount and the monthly indemnity be given. The answer as it stands is totally lacking as to the requirements. The fact that the appellee company accepted the answer as it stood and issued to the appellant its policy, that answer being a part of the consideration for the contract, without seeking further enlightenment as to the facts called for by the question, cannot now be repudiated and made a basis for a claim without evidence that the appellant did not truthfully answer the question. It was within the power of the appellee company to refuse to issue a policy on the application until the appellant had stated that he had insurance as follows:
Company Amount of Amount of Monthly Indemnity Principal Sum Accident Sickness
$_______ $_______ $_______
The company did not do so, but accepted the answer as an answer when it was far from being an answer as required by the question. It appeared not to be material to the appellee company what amount the appellant carried as "principal sum" (death and dismemberment) insurance. It was not even hinted at in the answer to question 9. The acceptance of an application by an insurance company with an unanswered question or *Page 523
one insufficiently answered without requiring further information thereon estops the company to set up the lack of such information and the insured's failure to fully answer the question as a defense to any claim wherein the unanswered or insufficiently answered question is material. Fountain v. Standard Fire Ins. Co., 155 Iowa 96; Collins v. Iowa Mfgrs. Ins. Co., 184 Iowa 747. The very fact that the appellee company accepted the application with question 9 unanswered as to the amount of principal sum insurance carried is particularly persuasive and conclusive that it was not interested in the amount thereof as affecting the particular hazard or risk involved under accidental death or dismemberment insurance. Wahl v. Inter-State B.M. Acc. Assn.,201 Iowa 1355; Standard Acc. Ins. Co. v. Walker, 102 S.E. 585 (Va.); Employers Liability Assur. Corp. v. Morrow, 143 Fed. 750 (C.C.A. 6th Dist.) (Tenn.); Aetna Life Ins. Co. v. Claypool, 107 S.W. 325 (Ky.); Claypool v. Continental Cas. Co., 112 S.W. 835 (Ky.).
The question in an application as to weekly indemnity in other companies refers to matters of weekly indemnity injuries and has no reference to principal sum injuries. Standard Acc. Ins. Co. v. Walker, supra.
As to question 11 in the application it is quite obvious that it has no reference to the principal sum (death and dismemberment) insurance for the simple reason that the principal sum amount would invariably exceed the monthly wage, salary, or income of the applicant. It is conclusive that this question applies solely to Weekly or Monthly indemnity insurance and not to Principal Sum Insurance. General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.). This answer if taken as applying to Principal Sum Insurance would on its face be preposterous. Concede for the moment that the amount of monthly indemnity insurance carried did exceed the monthly wage, salary or income of the applicant, where distinct items or classes of property are separately insured under one policy, the policy may be invalid as to one class without being invalid as to all classes thereunder by reason of a breach of conditions with reference to one item or class. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625. The conditions of an accident insurance policy relating to loss of time have no application to principal sum injuries. Aetna Life Ins. Co. v. Bethel, 131 S.W. 523 (Ky.). It *Page 524
is apparent that the appellee company was guarding against over-insurance in its risks and this is evidenced by the particular provision which it inserted in its policy form to wit:
"19. If a like policy or policies, previously issued by the company to the insured be in force concurrently herewith, making the aggregate indemnity for loss other than that for loss of timeon account of disability in excess of $15,000, or the aggregate indemnity for loss of time on account of disability in excess of $100 weekly, the excess insurance of either kind shall be void —." (Writer's italics).
Here we find conclusive evidence that the appellee company acknowledged that two kinds of insurance were granted by the policy and that they were distinct and separable. Where insurance is made on different kinds of property, each separately valued, the contract is severable, even if but one premium is paid and the amount insured is the sum total of the valuation. Trabue v. Dwelling House Ins. Co., 25 S.W. 848 (Mo.), 23 L.R.A. 719. Policy conditions referring to matters of weekly indemnity have no application to principal sum matters. General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.). It is a matter of common knowledge of which this court will take judicial notice that it is a general practice of accident insurance companies to issue policies covering accidental death and dismemberment losses only. As the amount of such insurance cannot be dependent upon the wage, salary or income of the insured to any greater extent than ordinary life insurance, it is then immaterial as to what income the assured may have as respects accidental death or dismemberment insurance, and for the reason that in no event does the policy cover injuries intentionally inflicted by the insured upon himself. There is no relation between the amounts of death and dismemberment or "principal sum" insurance and the weekly or monthly indemnity that an assured may carry. The limit set by the appellee company when compared with the amounts issued to appellant by the other companies is sufficient evidence on that point.
Principal Sum Monthly Indemnity
Limits in provision 19 $15,000 $400 Bockes policy 5,000 100 Bankers Accident policy 1,000 100 *Page 525
Mutual Benefit policy 2,000 80
The amount of either kind of insurance may be varied to suit the desire of the applicant. He may take a small amount of principal sum and a considerable amount of monthly indemnity or vice versa. This court said in Wahl v. Inter-State B.M. Acc. Assn., 201 Iowa 1355, in discussing an attempt to reduce the benefits payable for an accidental death on account of other insurance:
"`* * * [life insurance] in no way resembles a contract of indemnity * * * it * * * is what it is on the face of it — a contract to pay a certain sum in the event of death.' * * * The paucity of authorities is suggestive that few insurance companies have considered prorating as applicable to death benefits or life insurance. * * * It is urged that the insured might willfully incur or expose himself to a seeming minor injury, with the view of collecting accident insurance, and that the injury might result fatally. * * * We think the case supposed is too remote for serious consideration * * *."
Similar conditions apply to the dismemberment feature in the "Principal Sum" or "Specific Total Loss" feature of accident insurance policies. The Wahl case, supra, specifically approved Employers Liability v. Morrow, supra, wherein the facts presented disclose that the insured had reported that his earnings exceeded the amount of the weekly indemnity carried. The insured lost one arm for which a specific sum was payable under the policy. This is quite similar to the basis for the denial of all liability to the appellant under his policy in the instant case. There is no showing whatever here that the appellee company would not have issued to Bockes, had he applied for it, a death and dismemberment policy for an amount approximating $15,000 regardless of his monthly wage, salary or income.
Respecting question #20 and the answer thereto as found in the application, it is clearly specified that any false statements which are material either to the acceptance of the risk or the hazard assumed by the company, if made with intent to deceive, shall be a bar to recovery under the policy issued. At this point we may well inquire just what did the monthly or weekly earnings of Bockes have to do with the loss of two feet or two legs when the policy specifically provided that in such an event no *Page 526
monthly indemnity was payable. We ask would anyone earning $1000 per month be less likely to slip and fall under a train than one earning $50 or $100 per week? The answer is obvious — earnings and slipping are in no way related to or dependent upon each other. In brief, death and dismemberment insurance has no relation whatever to the monthly wage, salary or income, and therefore such insurance is not affected by any statement in the application regarding earnings as these refer to and are material only to the monthly indemnity injuries.
Clearly a jury question was presented on the uncontradicted testimony offered by the plaintiff-appellant. Is it for the trial court to direct a verdict in the light of the statements made by President Schulz to Bockes, the insured, to secure the settlement which he did secure? Let us for the sake of emphasis repeat in sentence form the statements that led to the settlement. These are:
Appellant had no claim against the appellee company.
Appellant wasn't entitled to anything under the policy.
Appellant couldn't recover anything in a suit at law.
There was no liability of appellee company to appellant on account of the loss of two feet.
He felt sorry for appellant because of his loss.
He would rather give the appellant $1000 than to spend that amount in defense of a law-suit.
The basis of the denial of liability was that the appellant had made false statements in the application as respects the amount of his monthly wages or income. An insurance adjuster is presumed to know the law applicable to the situation and if he falsely represents the law, the same constitutes misstatements of fact and is fraud. Rauen v. Prudential Ins. Co., 129 Iowa 725. Schulz was an experienced claim adjuster. He was in a position to know the legal effect of every word, phrase, and clause in both the application and the policy forms used by the appellee company. Schulz as President executed every policy contract. He was in a position to know the law controlling insurance contracts issued by his company. Scienter lies in this fact. He is chargeable with the knowledge that the policy issued to the appellant provided for two kinds of insurance and that what might invalidate one kind would not affect the other. He was in a position to know that questions in an application respecting weekly *Page 527
or monthly indemnity in other companies referred to matters of weekly or monthly indemnity injuries and had no reference to death or dismemberment injuries. Standard Acc. Ins. Co. v. Walker, supra. He was in a position to know that the amount payable for Principal Sum injuries is not affected by statements in the application as to earnings. (Employers Liability v. Morrow, supra, approved in Wahl v. Inter-state, supra.) It is strangely significant that the appellee company has not called to our attention a single authority that sustains its claim and proposition. The case of Graf v. Employers' Liability Assur. Corp., 190 Iowa 445, is not in point on the fact side. In that case a man was injured while engaged in a more hazardous occupation than that under which he was insured, and the decision invoked the effect of the pro rata clause on account of change of occupation and the settlement was made by the insuring company in the proper amount in accordance therewith. The settlement was questioned on the sole ground that the policy form had never been approved by the Auditor of the State as required by statute. There was no claim of fraud and this court held that the failure to have the policy form approved did not prevent the application of the pro rata clause. In the case at bar whether the statements by an insurance adjuster to secure a settlement were representations or merely expressions of opinion do constitute a question for a jury. Representations by an insurance adjuster through which an unfair settlement is obtained constitute fraud. Rauen v. Prudential Ins. Co., 129 Iowa 725; Owens v. Norwood-White Coal Co., 188 Iowa 1092. It is for the jury to determine whether an auto dealer's representations were mere expressions of opinion or representations of fact. Iowa Guaranty Mort. Corp. v. Lande, 202 N.W. 514 (Iowa). (Not officially reported.) Where one falsely asserts a material fact to be true as of his own knowledge and damage results, he is not thereafter permitted to assert that he had no knowledge upon the subject. John Gund Brew. Co. v. Peterson, 130 Iowa 301; Smith v. Packard Co., 152 Iowa 1. Where the plaintiff is in fact ignorant of the law, and the other party knowing him to be so, and knowing the law, took advantage of such ignorance, to mislead him by a false statement of the law, it constitutes fraud. Berry v. Whitney,40 Mich. 65; Hubbard v. McLean, 90 N.W. 1077 (Wis.). The appellant Bockes had had no experience in insurance business. *Page 528
He was not versed in insurance law. On the contrary Schulz was an expert in insurance matters and is presumed to know the law. It is obvious that he did know. He did make assertions to Bockes relative to matters with which he was quite familiar, and under these circumstances Bockes had the right to rely on those assertions. In brief, Schulz was in a position to know and he will be charged with knowledge. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625; Tott v. Duggan, 199 Iowa 238; First Nat. Bank v. Smith, 199 Iowa 1277. It will also be remembered and it is a significant fact that Schulz expressed sympathy and sorrow for the appellant. Expressions of solicitude and sympathy in an effort to gain the confidence of a party may be considered by the jury as bearing on fraudulent intent. Plaintiff-appellant testified that he relied upon what was said by Schulz. It is urged that there was a controversy between the appellant and appellee and that Schulz adjusted the same by a compromise settlement. This is not borne out by the record. True, it has always been the policy of courts to encourage the amicable settlement of all controversies, but as said in Kelly v. C.R.I. P.R.R. Co., 138 Iowa 273, 280:
"* * * 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."
The Kelly case affirms Rauen v. Prudential, supra, and reaffirms Coles v. Union Terminal Railway Co. 124 Iowa 48. The instant case is predicated on fraud and the same quantum of evidence is necessary that would carry any question of fraud to the jury and no more. The circumstances under which the settlement was made, the representations connected therewith and other matters herein disclosed, are all matters of fact, and are within the special province of the jury to determine. The plaintiff met his full burden of proof when he established that the policy contained two contracts of insurance, the loss of two legs and the undisputed representations made to him by the President of the defendant company in securing the release. In other words, the appellant met his burden by showing that the settlement was induced by representations that had nothing whatever to do with the loss of two legs. Putting the thought in another form, the record does not furnish a scintilla of evidence that question No. *Page 529
11 of the application was answered falsely with intent to deceive, but on the contrary, the appellant testified that he answered all questions truthfully. It appears that the trial court in directing the verdict for the appellee insurance company assumed that the allegations contained in the appellee's answer with respect to false statements' having been made in the application were in fact proved, and that the burden was upon the appellant to disprove such allegations. The law forbids a party who has full knowledge of the ignorance of the other contracting party to not only encourage that ignorance, but also to knowingly deceive and lead the other party into a mistaken conception of his legal rights. Such a party may not shield himself behind the doctrine that a mere mistake of law affords no ground for relief. Carpenter v. Detroit Forg. Co., 157 N.W. 374 (Mich.). Summarizing the matters heretofore set out it is shown that any representation, true or untrue, of the appellant in his application for insurance respecting matters of weekly or monthly earnings as compared to the amount of weekly or monthly indemnity, has nothing whatever to do with the amount to be paid for principal sum injuries. I would reverse. | 01-03-2023 | 07-05-2016 |
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