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https://www.courtlistener.com/api/rest/v3/opinions/3434741/ | Originally, this was an action begun by a petition in equity filed by L.A. Andrew, Superintendent of Banking of the state of Iowa, against the State Bank of Swea City, alleging, among other things, the insolvency of the bank, and asking that the said Superintendent should be appointed receiver. This petition was filed October 25, 1927. On the same day, an order was entered appointing said L.A. Andrew, Superintendent, or his successor in office, permanent receiver of said bank.
On December 9, 1927, the receiver filed an "application for order of court for assessment against stockholders." On the same day there was filed an "Order authorizing receiver to proceed with action for the collection of stock assessment."
On December 27, 1929, two years later, the receiver filed an "Application for an order to sell remaining assets at public auction." Attached to said application was a schedule of the assets to be sold, and included therein, under the heading "Unpaid Stock Assessments," was listed the name "Paul W. Larson" and the amount $500.00.
On January 8, 1930, there was filed an "Order authorizing sale of assets and directing procedure of sale." Following this, on January 23, 1930, all of the assets listed were sold for the lump sum of $2,405.00 to C.H. Riggert.
On March 15, 1930, C.H. Riggert filed a "Motion to substitute party plaintiff and for default." On the same day, the court entered an Order sustaining the motion, in so far as the same asked the substitution of Riggert as party plaintiff.
On April 1, 1930, the defendant filed a "Motion to Dismiss," which motion contained, among other things, the grounds:
"4th. Because the claim against this defendant is not such as can be sold or conveyed. *Page 1341
"5th. Because as a matter of law the plaintiff had no right to sell or convey or assign the claim for assessment against this defendant."
On April 9, 1930, the court made the following entry:
"On consideration of the Motion of P.W. Larson the Court finds that the general creditors of the Trust should be made parties and directed that the general creditors, whose claims have been filed as such and allowed by the Receiver shall be brought in by the plaintiff. The defendant is given the right to remove (renew) his motion after the general creditors have been brought in. All parties except."
On June 27, 1930, the receiver filed his final report. Notice was published of the hearing on this report, and on July 14, 1930, the final report was approved and the receiver was discharged.
On September 29, 1930, C.H. Riggert filed an "Amendment to Application for Order of Court for Assessment against Stockholders; and Supplemental Allegations thereto." This amendment contains in the first division an adoption of all of the allegations in the application of December 9, 1927. Then there is alleged the sale of the assets in the hands of the receiver, including the assignment of the receiver's claim against Paul W. Larson as a stockholder.
Defendant Paul W. Larson's Motion to Dismiss was overruled on October 7, 1930, to which ruling he took exception.
On October 21, 1930, the defendant Paul W. Larson filed an "Amended and Substituted Answer," in which he, in substance, denies generally and asks that the plaintiff's petition be dismissed.
The cause proceeded to trial on December 4, 1930.
It satisfactorily appears from the record that after applying all assets and paying out all the money which came into the hands of the receiver, there was still remaining, at the time the receiver was discharged, an amount due the depositors and creditors of the bank in excess of $96,000.00. The capital stock of the bank was only $25,000.00. There was an unpaid balance on general claims in excess of $19,000.00. The sale of assets, including the claim against Larson, brought the receiver $2,405.00. *Page 1342
Of this amount, $1,470.00 was arbitrarily assigned by the parties in charge, to the credit of the stock assessment account.
One R.H. Miller was the Examiner in Charge for the receiver. He testified, among other things, as follows:
"We first offered the different classes for sale separately and took bids for them, but finally sold everything that was offered in one job lot for $2405.00, and my apportionment of the $2405.00 was simply the way I decided I wanted it divided. I don't know whether I had any authority or instructions from the Department to do it that way or not, but that is the way I did it, and I am the one that made the apportionment. I simply took that $2405.00 and divided it in the way I thought it ought to go. * * * That was not the bid I had on the stock assessment. The total of the individual bids was considerably below the total of the bid of $2405.00."
It nowhere appears in the record what amount, if any, was actually bid for the Larson claim. As the Larson claim was sold with all the other remaining assets in the hands of the receiver, there is no way of determining what amount, if any, of the $2405.00 was the proceeds of the sale of the Larson claim. Some question is raised in the record as to whether Larson was in fact a stockholder; but for the purposes of this case, we will assume, without deciding, that at all times material hereto, he was a stockholder and owned five shares of the par value of $100.00 each in said State Bank of Swea City.
Numerous other questions are raised by the appellant, but as we view this case, we have occasion to determine only one.
The liability, if any, of the stockholder Larson in this case defendant rests primarily upon Section 9251 of the Code, which reads as follows:
"9251. Liability of Stockholders. All stockholders of savings and state banks shall be individually liable to the creditors 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." *Page 1343
The enforcement of this claim is dependent upon Sections 9252, 9253 and 9254, as follows:
"9252. Enforcement. Should any such association or corporation become insolvent, its stockholders may be severally compelled to pay such deficiency in proportion to the amount of stock owned by each, not to exceed the extent of the additional liability hereby created.
"9253. Action by creditor. The assignee or receiver of any such corporation, or in case there is none, or of his failure or refusal to act, any creditor thereof, may maintain an action in equity to determine the liability of the stockholders, and the amount to which each creditor shall be entitled; and all parties interested shall be brought into court.
"9254. Distribution of proceeds. Should the whole amount for which the stockholders are made individually responsible, as provided by the three preceding sections, be found in any case to be inadequate for the payment of all the debts of any such association or corporation, after the application of its assets to the payment of such debts, then the amount due from such stockholders, on account of their individual liability created by said sections, as such, shall be distributed equally among all the creditors of such corporation in proportion to the several sums due them."
Apparently the exact question before us in this case has not been decided by this court. This statutory stockholder's liability has frequently been before this court on other somewhat analogous questions. Apparently the plaintiff considers this claim against the stockholder as though it were an ordinary debt of the stockholder's. He cites in support of his position Section 10991 of the Code, which provides:
"No action shall abate by the transfer of any interest therein during its pendency, and new parties may be brought in, as may be necessary."
The plaintiff deals with the question as though this liability were an ordinary chose in action which, upon assignment, might be prosecuted in the name of and for the benefit of the assignee. Is it such a claim, or is it rather a special statutory liability, imposing an obligation upon the stockholder to contribute ratably *Page 1344
to a trust fund with other stockholders, which said trust fund shall be used solely for the payment of the creditors of the corporation? As bearing on this question, we quote from some of the cases in this court:
Leach v. Arthur Savings Bank, 203 Iowa 1052, is a case in which the stockholder, in answer to a demand for the statutory payment, sought to offset a payment made by him to repair or make good impaired capital. This court said:
"Under the above section of the statute (what is now Section 9251), in the liquidation of these insolvent banks, when it is found that the assets of the bank are not sufficient to pay its liabilities, recourse is to be had to this superadded liability provided by statute, and the limit fixed by the statute on this superadded liability is 100 per cent of the face value of the stock held by the respective stockholders; and, if this 100 per cent in value is needed to pay the liabilities of the corporation, then the statute authorizes its collection. It is not, in a true sense, an assessment, but is a statutory liability. * * * The fund thus created from the enforcement of this liability `shall be distributed equally among all the creditors of such corporation in proportion to the several sums due them.'"
The court quotes with approval from Northwestern Trust Co. v. Bradbury, 117 Minn. 83 (134 N.W. 513), as follows:
"`It amounts, for all practical purposes, to a reserve or trust fund, to be resorted to only in proceedings in liquidation, when necessary to meet the payment of obligations of the corporation. It is limited to an amount equal to the par value of the stock held and owned by each stockholder, and exists in favor of the creditors collectively, not severally, and in proportion to the amount of their respective claims against the corporation.'"
In Andrew v. Farmers Trust Savings Bank, 204 Iowa 243, this court, in speaking of the said statutory liability, said:
"The fund is for the payment of all the corporate debts of the bank after its assets are exhausted. If it is insufficient to pay all the debts, it must be distributed among the creditors according to the established principles of equity. State ex rel. Stone v. Union Stock Yards St. Bank, 103 Iowa 549. The stockholders' liability is to creditors, and not to the corporation." *Page 1345
Further quoting with approval from Northwestern Trust Co. v. Bradbury, 117 Minn. 83 (134 N.W. 513), this court said:
"`No single creditor can enforce payment of his debt against any one or more of the stockholders, because he has no several or independent right to the fund.' * * * So here, the liability involved can be enforced only in proceedings instituted for that purpose on behalf of all creditors, and that remedy is exclusive."
In Williams v. McCord, 204 Iowa 851, this court said:
"The clear purpose and intent of the legislature were to provide that the receiver could bring an action in equity in the forum having jurisdiction of the receivership proceeding, and that the individual stockholders should all be made parties to said action. The situs of the corporation is in the forum where the receivership proceedings are instituted. The corporation itself could be sued there. The proceedings for the appointment of the receiver of such corporation, by virtue of the statute, must be brought there. The proceedings for assessment must likewise be brought there. Any other rule would lead to endless confusion. Numerous courts could not be engaged in determining the question of the necessity for an assessment against the stockholders, or the amount thereof. The statute contemplates but one action of this character, which is to be in the forum where the receivership is."
In Andrew v. Peoples State Bank, 211 Iowa 649, this court said:
"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."
In Home Savings Bank v. Berggren, 211 Iowa 697, this court said:
"These sections (9251 and 9252) relate to the superadded liability of stockholders for the debts of an insolvent bank. The bank itself has no right to maintain such an action. Such action accrues to the creditors, and not to the bank." *Page 1346
See also Andrew v. Farmers State Bank, 212 Iowa 329.
Clearly this is purely a statutory liability, and it is created solely for the propose of creating a fund, whether it be called a trust fund or not, which, if insufficient to pay all creditors, is to be apportioned pro rata among them. It may be assumed, without deciding, that if the substituted plaintiff had paid the receiver for an assignment of this claim against the defendant Larson the sum of $50.00, which sum had been distributed to the creditors, the substituted plaintiff might recover from Larson on his statutory stock liability that amount. The record here is entirely without proof of the amount, if any, which was paid by the substituted plaintiff Riggert to the receiver for an assignment of the statutory liability claim against Larson. The officer in charge, as previously shown, admits his apportionment was purely arbitrary. It was not what was bid for the claim. Is Larson, under such circumstances, liable to the substituted plaintiff for his full statutory liability? May a purchaser at such "scavenger sale" pay little or nothing for such a claim, speculating on his ability to make Larson pay the full amount of the claim, or at least secure a settlement for the well known "Nuisance Value" of such claims?
The record fails to accurately show what other assets were included in the sale. Manifestly, title passed to all physical property included and to all notes and other similar obligations. Manifestly, title to such physical property could be transferred by assignment by the receiver under authority of court. It is also apparent that the payment of notes held by the bank and assigned by the receiver under authority of court could be enforced by the purchaser. Such obligations of the makers of notes are of an entirely different character from the statutory superadded liability of a stockholder. Such liability can only be enforced for the purpose of payment to creditors. If the assignee paid nothing for this assignment, the creditors received nothing. If the assignee paid $50.00 for the claim against Larson, then the creditors received only $50.00, and the balance of $450.00 cannot be collected against Larson; because it would be collecting this statutory superadded liability for a purpose other than the payment of creditors. Moreover, the enforcement of this claim, as it was enforced by the trial court, cannot be justified upon any ground such as that it is economical to gather up the *Page 1347
tag ends of a receivership and dispose of them for whatever they will bring at auction in order that the receivership may be closed. That reasoning may be perfectly good as to property other than this special limited liability involved in this case. Such liability cannot be hawked at auction and sold to speculators for their individual aggrandizement, with little or no benefits flowing to the stockholders. To do so would be to plainly circumvent the manifest purpose of the statute.
The statutory liability created by Section 9251 of the Code is not an "asset" of the bank, and cannot be sold as such under an order for the "sale of assets." See Leach v. Arthur Savings Bank,203 Iowa 1052, l.c. 1059; Andrew v. Farmers Trust Savings Bank,204 Iowa 243, l.c. 248; Home Savings Bank v. Berggren, 211 Iowa 697, l.c. 699.
The enforcement of trust fund obligations of this character should be by the receiver. If, in his judgment, such a claim is questionable as to collectibility, it should be compromised, as by law provided, but it cannot become the basis of private speculation or oppression.
It follows that the cause must be, and is, — Reversed.
WAGNER, C.J., and EVANS, MORLING, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434742/ | Defendant's attack upon the judgments in these two cases was made by the same motion, and his briefs and arguments in said cases in this court are identical. We will, therefore, dispose of the same in one opinion. The first of said cases was known in the district court as Cause No. 6114, and the second as No. 6167, and we will so speak of them in this opinion.
On March 21, 1928, in Cause No. 6114, a county attorney's information consisting of two counts was filed. The first count charges that, on or about the 29th day of February, 1928, the defendant did use a certain building and place 1. CRIMINAL situated in Wapello County for the purpose of LAW: new having possession of certain instruments trial: commonly known as a still, intended for use and fatally capable of being used in the manufacture of delayed intoxicating liquor. The second count charges motion. that, on or about the 29th day of February, 1928, the defendant did unlawfully have in his possession certain intoxicating liquors, to wit, "Moonshine Whiskey." On April 16, 1928, the defendant, by his attorney, waived arraignment, and entered a plea of not guilty; and at the request of the defendant, the cause was continued to the next term of the district court. At said term, on September 10, 1928, the defendant appeared in court without his attorney, and stated that he did not desire his presence, and personally asked to withdraw his plea of not guilty, and entered a plea of guilty, as charged in Count 1 of the information. On motion of the county attorney, Count 2 of the information was dismissed. Thereupon, *Page 869
the court fixed as the time for pronouncing judgment September 17th, on which date the defendant appeared in person and stated in open court "that he had nothing to say, or no reason to offer why judgment should not be pronounced;" and the court entered judgment, imposing a fine of $600 and the costs of prosecution, including an attorney's fee of $50 to be taxed in favor of the county attorney, and ordering that defendant be committed to the county jail until such fine and costs were paid, such imprisonment to be one day for each $3.33 1/3 of said fine and costs, and further ordering that the defendant be imprisoned in the county jail for a term of six months.
In Cause No. 6167, the grand jury, on September 5, 1928, returned an indictment against the defendant, it being therein charged that, on or about the 18th day of August, 1928, the defendant did unlawfully transport and convey in a certain automobile certain intoxicating liquors, to wit, "hooch." It is further charged in the indictment "that the defendant, Art Van Klaveren, has been formerly convicted in the district court of Monroe County, Iowa, on the charge of maintaining a liquor nuisance; and judgment was rendered against said defendant by said court on March 14, 1928, and which is found in District Court Record 34, page 331, of Monroe County." On September 7th, the defendant appeared in court, and was there informed of his right to counsel, and made the statement that he did not desire an attorney, and was duly arraigned; and the court fixed the time for the plea for September 10, 1928, when the defendant appeared in person, and entered a plea "that he is guilty as charged in the indictment," and September 17th was fixed as the time for pronouncing judgment. On the latter date, immediately after the pronouncement of judgment in Cause No. 6114, the court entered judgment in this case, imposing a fine of $1,000 and costs of prosecution, including an attorney's fee of $50 in favor of the county attorney, and ordering that he be committed to the county jail of Wapello County until said fine and costs are paid, at the rate of one day for each $3.33 1/3 of said fine and costs; and also ordering that the defendant be imprisoned in the county jail for the term of one year. As a part of the judgment, the court ordered that the imprisonment of the defendant in this case "shall begin at the expiration of the imprisonment *Page 870
imposed under the sentences pronounced in Cause No. 6114."
Thereafter, and during the same term of court, the defendant filed his motion, which was made to apply to both judgments, asking therein for a new trial; that he be permitted to enter a new plea, and for a modification of the sentences and fines imposed by the court. This motion was overruled. That portion of his motion asking for a new trial comes too late. Section 13943 of the Code of 1927 provides that the application for a new trialmust be made before judgment. That portion of his motion asking that he be permitted to enter a new plea also comes too late. The substitution of another plea for a plea of guilty must occur before the entry of judgment. See Section 13803 of the Code.
The motion contains no grounds which are recognized by our statutory law for the arrest of judgments. It is 2. INDICTMENT argued by the defendant that the county AND attorney's information in Cause No. 6114 is INFORMATION: defective, in that the minutes of the testimony minutes of of the witnesses do not show that the witnesses testimony: were sworn. Defendant's complaint at this point sufficiency. is without merit. See State v. Hueser, 205 Iowa 132, where we declared:
"The statute does not require that the county attorney shall attach copies of `sworn minutes' of the evidence to the information."
The defendant further argues that the minutes of the evidence of each witness are not attached to, or filed with, the information. We have examined the information, and find that it is sufficient in this respect to comply with the statutory law, Section 13647 of the Code. Moreover, a failure, if any, in this respect has been waived by the defendant. See Section 13659 of the Code.
It is apparent that the only thing properly coming before us for our consideration is the punishment which was inflicted by the court, which the defendant alleges is excessive. The motion of the defendant is supported by the affidavits 3. CRIMINAL of himself and wife and a physician. Their LAW: affidavits are to the effect that the defendant sentence: is not in the prime of health, and that a long excessive- period of confinement in the county jail might ness. undermine his health and lead to serious *Page 871
consequences. It is sufficient to say that a period of confinement by way of imprisonment might weaken the condition of a healthy man, and that many men now in good health will pass into eternity before the expiration of the period of imprisonment given to the defendant; but that is not sufficient reason why the guilty should not be punished. Should conditions which would warrant the release of one imprisoned for crime, on account of bad health or any other reason, arise in the future, the case will then be one requiring the attention of the department whose duty it is to grant pardons and paroles. This duty rests upon another branch of our state government, and not upon this court.
The plea of guilty by the defendant was voluntary upon his part; there is no denial of his guilt; there is no showing that the plea of guilty was obtained by reason of any improper conduct on the part of the county attorney. The 4. INTOXICATING defendant, in his argument, states: "The LIQUORS: defendant does not contend that the county sentence: attorney intentionally and deliberately misled excessive- or misinformed the defendant." It appears that ness. the defendant is a married man, with a wife and six children, ranging from 2 to 17 years of age; that the wife has three children by a former marriage, ranging from 18 to 21 years of age; that the wife is the owner of a farm of 72 acres in Wapello County; and that the personal property is assessed to her. It further appears from the affidavits that the defendant and his wife interviewed the county attorney before the plea of guilty was entered, and that the defendant informed the county attorney that he would never again break the liquor laws of the state of Iowa. Prior to the time of the offense for which he was indicted, he had made the same promise to the county attorney. This is something to be considered on the question of his good faith in making the promise in the instant cases. There was no inducement held out by the county attorney to a plea of guilty by the defendant. He was in no way prevented from showing any mitigating facts which he might care to produce. He was given the opportunity, and informed the court that he had nothing to say in his behalf. It cannot be successfully asserted that any undue advantage of the defendant was taken by the county attorney or by the court. Count 2 of the county attorney's information was dismissed. The punishment imposed for the crime of nuisance charged in the county attorney's *Page 872
information is much less than the maximum provided for by Section 1930 of the Code, and said judgment complies with the law. We find no reason for interfering with said judgment.
With reference to Cause No. 6167, the judgment is the maximum for illegal transportation of intoxicating liquor provided for by Section 1945-a1 of the Code, and also as provided for in Section 1964 of the Code for one who has been previously convicted of a violation of the liquor statutes. On March 14, 1928, he had been previously convicted in the district court of Monroe County of the crime of maintaining a liquor nuisance. As shown by the testimony of the sheriff and his deputy, taken before the grand jury and attached to the indictment, the defendant, at the time of his arrest, had in his car 36 pints of "Moonshine Whiskey." He was charged with conviction of the previous offense, as well as the illegal transportation of intoxicating liquor. He was, in fact, a persistent violator of the law; and taking that fact into consideration, we cannot say that the punishment meted out by the court was too severe.
It will be observed that the court, by its judgment in Cause No. 6167, made the imprisonment of the defendant under the sentence imposed in said cause to begin at the expiration of the imprisonment imposed under the sentence in Cause 5. CRIMINAL No. 6114. This is permissible, under Section LAW: 13959 of the Code. In Cause No. 6114, he was sentence: duly punished for the charge contained in the consecutive first count thereof. In Cause No. 6167, he was running. punished for the crime therein charged. We are content with the action of the court in making the term of imprisonment in the latter cause begin with the expiration of the term of imprisonment in the former cause. There is no more reason for extending leniency to this defendant than there would be for one who had committed larceny or burglary or some other offense on February 29th, and another offense on August 18th. The object of punishment is not only to reform the defendant and deter him in the commission of crime, but also the deterring effect which it may have upon others who may be likewise inclined. The legislative branch of our state government, in recent years, has made the punishment for liquor violations more severe than formerly. For cases where we have refused to interfere with the punishment for liquor violations, see State v. Hillman, 200 Iowa 320; State *Page 873 v. Japone, 202 Iowa 450; State v. Burch, 202 Iowa 348; State v.Nolta, 205 Iowa 595; State v. Gasparia (Iowa), 214 N.W. 550 (not officially reported).
We call attention to the fact that the judgment in Cause No. 6167 orders the defendant committed to jail until said fine andcosts are paid, at the rate of one day for each $3.33 1/3 of said fine and costs. The defendant raises no 6. INTOXICATING objection to the same. However, it is our duty, LIQUORS: under Section 14010 of the Code, to examine the sentence: record without regard to technical errors or imprisonment defects which do not affect the substantial for costs. rights of the parties, and render such judgment on the record as the law demands. There can be no imprisonment for nonpayment of costs, without statutory authority. Under the Nuisance Statute, Section 1930 of the Code, there can properly be imprisonment for nonpayment of costs, for the statute so provides; but there is no authority for imprisonment for nonpayment of costs for the illegal transportation of liquor, as defined in Section 1945-a1 of the Code, or for a second conviction, referred to in Section 1964 of the Code. Therefore, that part of the judgment ordering imprisonment for nonpayment of costs in Cause No. 6167 is unwarranted, and said judgment is modified accordingly. In all other respects, said judgment and the judgment in Cause No. 6114 are hereby affirmed. — Judgmentin first case affirmed. Judgment in second case modified andaffirmed.
ALBERT, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434744/ | Margaret Lane is the administratrix of Leonard Lane's estate. As such administratrix she is the plaintiff-appellee in this case.
Leonard Lane was killed when the car driven by him collided with an automobile operated by the defendant-appellant James Varlamos. The collision occurred at the top of a hill. These motor vehicles were traveling toward each other on an east and west secondary road, west of Vail. James Varlamos, the appellant, approached the hill where the accident occurred from the east, while Leonard Lane, the decedent, drove toward the hill from the west. Approaching the hill immediately from the east there was a steep grade, while from the west the grade is gradual. At the place in question, a road had been cut through the side of the hill, and the roadway was about eighteen feet wide. Only part of the roadway, however, was constantly used, and there were short weeds or grass on each side of the traveled portion. A single track apparently was all that appeared to have been traveled. On either side of the eighteen-foot roadway were banks. To the south the bank was about fifteen inches high, and to the north it was three or four feet in height.
Pat Lane is the father of Leonard, and on the morning of the accident, June 29, 1930, the father and son drove a Model A Ford Tudor Sedan automobile over the road in question to call on a neighbor. Both men were in the front seat, and Leonard was driving. They were proceeding about twenty-five miles per hour on the right-hand side of the road as they approached the top of the hill from the west. The appellant James Varlamos at the same time approached the hill from the east, up the steep grade, traveling, it is said, at an excessive rate of speed, on the wrong side of the road. Consequently the two cars came together at the top of the hill, and Leonard Lane was killed. It was about eleven o'clock in the forenoon when the accident occurred.
Suit was brought by the appellee against the appellants, James Varlamos and Thomas Varlamos, to recover damages for the wrongful death of Leonard Lane. Thomas Varlamos, the defendant-appellant, is the father of James and the owner of the car which his son was driving. He consented to such use of the car by his son. Hence, under Section 5026 of the Code, the father is liable in damages to appellee if Leonard Lane was *Page 797
killed through the negligence of the appellant James Varlamos in causing the collision. Said section provides as follows:
"In all cases where damage is done by any car * * * driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."
But the appellants declare that there was no negligence on the part of James Varlamos which caused the death of Leonard Lane. Leonard Lane's death resulted, they declare, from his own negligence. Appellee contends that the appellant James Varlamos was negligent in the following respects: First, he drove the automobile at an excessive rate of speed; second, he did not have the motor vehicle under control; and third, he failed to drive on his right half of the road.
As before explained, appellants deny that they were negligent, and plead that Leonard Lane came to his death because of his own negligence. That negligence, appellants declare, consisted of the following: First, no horn was sounded or other warning given by Leonard Lane as he drove his automobile near the top of the hill; and second, Leonard Lane drove on the wrong side of the road. Such negligence, appellants maintain, was the proximate cause of Leonard Lane's death.
Upon the issues thus submitted, evidence was introduced. This evidence is in conflict, and it was the province of the jury to determine with whom the preponderance thereof lay. The jury found in favor of appellee, and returned a verdict accordingly. Judgment was duly entered on the verdict, and the appellants appeal therefrom.
I. It is said by appellants that there is no substantial evidence of their negligence. So, they claim the district court erred in failing to direct a verdict in their favor.
A motion for a directed verdict was made at the close of plaintiff's evidence and again renewed at the conclusion of all the evidence. An examination has been made of the record relating to appellant's negligence, and it appears that a jury question was clearly presented. Without here setting forth in detail the testimony of the witnesses, it is enough to say that there was evidence of: First, excessive speed; second, the fact that James Varlamos, the appellant, was on the wrong side of the road; and third, failure of the appellant James Varlamos to control his *Page 798
automobile. In view of such record, a jury question was presented, and the district court properly submitted the issue to the fact-finding body.
[1] II. Complaint is made because the district court refused to strike from the record the following testimony of the witness Ralph Pieper:
"The car (the one driven by the appellant James Varlamos) sounded like it was going fast, and I looked up."
Pieper is a farmer, who lives near the road immediately east of where the accident occurred. No objection seems to have been made to the question, but after the answer was given, the appellant interposed the objection that the statement of the witness is an incompetent conclusion. To fully understand the proposition, it is important to know more of the record.
Previous to the answer given by the witness Pieper, he had already testified without objection as follows:
"My house is about four or five rods from the road. Saw a green Ford Tudor go by, while I was in the house a little while before the accident occurred, and my attention was attracted to it because it was a new car and by the speed it was going, but I can't say how fast that was. It would be hard to estimate its speed, as I could see the car just a little ways. That was thirty rods from the point of collision."
Subsequently to thus testifying, the witness Pieper gave the answer which the appellant seeks to strike. Then, as shown by the amended abstract, the witness without objection further testified:
"The top of that hill is about thirty rods from my place. It would be about that far from the point where I say I saw this car go by. I looked at it and let it go. It was not very long after I could hear the car that I saw it. This car was a new Ford. It was the roar of the motor that I heard. I don't know how fast one of these cars have to go before the motor roars."
[2] Obviously the district court properly overruled appellants' motion to strike the aforesaid answer of the witness. This is true for at least two reasons: First, a witness under proper *Page 799
circumstances may say that an automobile or train sounds as if it were traveling fast. Van Horn v. B.C.R. N. Ry. Co., 59 Iowa 33; Payne v. Waterloo, Cedar Falls Northern Ry. Co., 153 Iowa 445
(local citation 454). See also Ball v. Keokuk Northwestern Ry. Co., 74 Iowa 132; Schultz v. Starr, 180 Iowa 1319.
Moreover, it is to be remembered that the witness here actually saw the passing car. See Owens v. Iowa County, 186 Iowa 408
(local citation, 411). Under those facts and circumstances there was no error because the district court refused to strike the testimony.
Second, before the witness made the answer which it is sought to strike, he had already given similar testimony, and, as shown by the amended abstract, later without objection testified in a like manner. That being true, there could be no prejudice in failing to strike the answer in question. Legler v. Muscatine Clinic, et al., 207 Iowa 720; Amick v. Montross, 206 Iowa 51.
Therefore reversible error does not appear because the district court failed to strike the testimony of the witness Pieper.
[3] III. Again, it is contended by the appellants that the district court should have sustained a verdict in their favor under the motions aforesaid on the theory that Leonard Lane himself was guilty of negligence. Careful consideration of the record has been made with reference to that contention, and it appears that a jury question was presented on the matter of Leonard Lane's contributory negligence. Even though Leonard Lane, when approaching the top of the hill, did not sound the automobile horn as required by statute (see Section 5043), yet it was for the jury to say whether or not that fact constituted contributory negligence under the circumstances. Carlson v. Meusberger, 200 Iowa 65; Sexauer v. Dunlap, 207 Iowa 1018. For instance, the Lane car, as it approached the Varlamos automobile, could be seen at least 100 feet away. That fact, together with other matters in the record, presented a jury question on the alleged negligence of Leonard Lane. Likewise, under the conflicting evidence, the question of whether Leonard Lane drove on the right side of the road was properly submitted to the jury. Hence there is no error at this juncture.
[4] IV. An objection is also made by the appellants because the district court permitted the witness Pat Lane to say *Page 800
that Leonard was driving about twenty-five miles per hour. The objection is that the proper foundation was not laid.
It appears, however, that appellant did not object upon that ground. This is the record on that proposition:
"Well, as you drove east along the road that passes by Ralph Pieper's and approached this hill, do you know about how fast Leonard was driving? A. Yes, I know. Q. About how fast was he driving as he went up that hill? (Objected to as calling for the incompetent conclusion of the witness. Objection overruled.) A. Well, twenty-five miles."
Pat Lane, the witness, "was in a position to observe the movement of the car, and to express an opinion as to its speed. The weight of the evidence was for the jury." Owens v. Iowa County, 186 Iowa 408 (local citation 411).
Without proper objection, then, the witness could answer. In any event, the objection, as before stated, was not that the witness failed to qualify. There is no objection that he was incompetent. According to the previous answer, above set forth, the witness was qualified because he knew how fast the automobile traveled at that time. If he were qualified to testify on the subject, the answer was not objectionable because it is a conclusion.
On cross-examination the appellants, if they desired, could have tested the qualification of the witness, and, if possible, minimized the effect of the testimony. Under the circumstances the court did not err in admitting the evidence.
Wherefore, the judgment of the district court should be, and hereby is, affirmed. — Affirmed.
FAVILLE, C.J., and EVANS, MORLING, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434756/ | I. This is an action in certiorari, commenced in the district court of Polk County, to test the legality of a resolution of the city council of the city of Des Moines, reducing the number of firemen employed in said city from 202 to 180, and also to test the legality of the acts of the superintendent of public safety, the chief of the fire department, and the civil service commission of said city, in relation thereto. The principal return to the writ of certiorari issued in said cause was made by the civil service commission. From the return of this body it appears that, on April 26, 1926, the city council adopted a resolution reducing the number of firemen employed by the city of Des Moines from 202 to 180, and directing the chief of the fire department to carry out the terms of said resolution, which is as follows:
"That, inasmuch as funds are not available for the current year to maintain the personnel of the fire department, as now *Page 1205
organized, it is necessary to reduce the number of men now employed by twenty-two (22), and such reduction is hereby made, and the chief of the fire department is hereby authorized and directed to make the reduction in his force accordingly and to carry this resolution into effect."
It further appears that, on April 30, 1926, the chief of the fire department notified the appellee, Frederick E. Lyon, and twenty-one other employees of the department, of their dismissal (the dismissal of the others not being involved in this appeal), accompanying said notice with a "certificate of honorable discharge," which certificate is as follows:
"Certificate of Honorable Discharge.
"Inasmuch as the city council of the city of Des Moines, in the public interest, has, by resolution duly adopted, reduced the number of employees in the fire department, Frederick E. Lyon, a member of said department, is hereby dismissed from further service, and this will certify that his term of employment has extended over a period of ___ years, and that he has been honorably discharged. Dated at Des Moines, Iowa, this ____ day of April, 1926. Will Burnett, Chief of Fire Department."
It also appears that, on April 30th, the chief of the fire department reported the names of the employees dismissed, to the superintendent of public safety, who promptly indorsed his approval upon said report; that, on May 3, 1926, appellee filed with the clerk of the civil service commission and the city clerk of the city of Des Moines a notice of appeal from the action of the chief of the fire department dismissing him from the service; that, on May 5th, the chief of the fire department filed a statement of the reasons for the dismissal of appellee, in the office of the city clerk and the clerk of the civil service commission, which statement is as follows:
"May 5, 1926. To the Honorable Board of Civil Service Commissioners: Sirs: The reason for the discharge of Frederick E. Lyon is the resolution of the city council reducing the number of men in the fire department and ordering the honorable discharge of twenty-two men, which has been done according to civil service law covering reductions in the force. Respectfully reported, Will Burnett, Chief Fire Dept." *Page 1206
Later, appellee filed an affidavit relating to his dismissal in the office of the civil service commission and of the city clerk, which affidavit is as follows:
"State of Iowa, Polk County, ss:
"I, Frederick E. Lyon, being first duly sworn, on my oath depose and say: That I served as a member of the fire department for more than 6 years; that on May 1, 1926, I was handed a communication from Will Burnett, chief of the fire department, discharging me from said department; that on the 3rd day of May, 1926, I filed with the city clerk of the city of Des Moines a notice of appeal and a request for a hearing by the civil service commission; that notwithstanding said notice of appeal no charges or specifications of charges have been filed as provided by Section 5706 of the Code of 1924; that in accordance with said section this affiant is entitled to an order reinstating him as such fireman. Frederick E. Lyon.
"Subscribed and sworn to before me this 18th day of May, 1926. Margaret P. Oliver, Notary Public in and for Polk County, Iowa."
A hearing of the appeal was had before the civil service commission, without the introduction of testimony, the hearing resulting in the approval by that body of the action of the chief of the fire department. The other officers adopted the return of the civil service commission without substantial addition.
After the separate returns of the several officers had been filed in the office of the clerk of the district court, in obedience to the writ, appellee moved the court to require that certain defects therein be corrected. The motion was sustained in part and overruled in part. An amendment to the return of the chief of the fire department, giving a complete list of the names and length of service of all firemen employed by the city, together with a statement of the qualifications of appellee as a fireman, was filed in response to such notice.
Following a trial in the district court, judgment sustaining the writ of certiorari, annulling the dismissal of appellee from the service, and directing the city to pay his salary during the period since his dismissal, was entered by the court. All of the defendants appeal.
As is well known, the city of Des Moines has adopted the *Page 1207
commission form of government. It is conceded that appellee and several of the other firemen dismissed from the service are honorably discharged soldiers of the World War or other wars. The briefs and argument of counsel, which are enriched by the copious citation of authorities, cover a range of subjects far more extensive than appears to us necessary to the proper decision of the controversy. As we view the case, its determination depends upon the answers to the following questions:
(a) Did the legislature of this state have the power to confer authority upon the city council to, by the adoption of a resolution to that effect, reduce the number of employees in the fire department? (b) If so, by whom and in what manner shall the reduction be made, if not by the city council? (c) May a soldier employed in such department be dismissed therefrom, and if so, may his dismissal be accomplished without the filing of charges against him and a hearing before the proper body or officer of the city upon such charges on due and proper notice to him? (d) Is a soldier in such case entitled to preference over non-soldier employees of greater competency and efficiency?
For convenience, we here quote in full the statutory provisions (Code of 1924) bearing directly upon the questions before us:
"Sec. 5712. Whenever the public interest requires a diminution in the number of employees under the civil service, the same may be reduced by resolution of the council. In case it thus becomes necessary to discharge any such employees, the persons discharged shall be those who have shown the least efficiency and competency and whose service has been of the shortest duration. The persons so discharged shall receive a certificate showing the length of their service, and that they have been honorably discharged."
"Sec. 1159. In every public department and upon all public works in the state, and of the counties, cities, towns, and school boards thereof, including those of cities acting under special charters, honorably discharged soldiers, sailors, marines, and nurses from the army and navy of the United States in the late Civil War, Spanish-American War, Philippine Insurrection, China Relief Expedition, or war with Germany, who are citizens and residents of this state, shall, except in the position of school teachers, be entitled to preference in appointment, employment, *Page 1208
and promotion over other applicants of no greater qualifications."
"Sec. 1160. The persons thus preferred shall not be disqualified from holding any position hereinbefore mentioned on account of age or by reason of any physical disability, provided such age or disability does not render such person incompetent to perform properly the duties of the position applied for."
"Sec. 1161. When such soldier, sailor, marine, or nurse shall apply for appointment or employment under this chapter, the officer, board, or person whose duty it is or may be to appoint or employ some person to fill such position or place shall, before appointing or employing anyone to fill such position or place, make an investigation as to the qualifications of said applicant for such place or position, and if the applicant is of good moral character and can perform the duties of said position so applied for, as hereinbefore provided, said officer, board or person shall appoint said applicant to such position, place, or employment."
"Sec. 1163. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari."
We do not understand appellee to question the power of the legislature to authorize the city council to effect a reduction in the number of employees in any department thereof.
Section 5712 does confer authority upon city councils to do exactly what it, in the present instance, attempted to do. All appointive officers in all cities of this state having a population of 8,000 or over, and all employees of the several departments thereof, are under, and entitled to, the protection of Chapter 289 of the Code of 1924, relating to the civil service, so far as applicable to the particular case in hand. Counsel upon both sides have apparently assumed that, when the city council, by resolution, authorized and directed the chief of the fire department to select the personnel of the employees to be dismissed, and to dismiss them, it attempted to delegate authority to such officer to exercise functions and to perform duties devolving upon the *Page 1209
council. Much discussion is devoted to the nature or character of the act to be performed: that is, as to whether it is legislative, administrative, or judicial. The question, as it appears to us, is quite free from doubt.
It is elementary that, unless expressly or impliedly restrained by statute, a municipal corporation may, in its discretion, determine for itself the means and method of exercising the powers conferred thereon. State ex rel. Ellis v. Tampa WaterWorks Co., 56 Fla. 858 (47 So. 358).
Surely, no express limitation is placed upon the authority of the city council by Section 5712, nor, in our opinion, is any limitation thereon to be implied from the language or purpose thereof. The purpose for which the statute was enacted was to enable municipalities having a population of 8,000 or over to meet the exigencies of such municipality, economic or otherwise, under the civil service laws of this state.
Section 6565 of the Code of 1924 provides that:
"The executive and administrative powers, authority, and duties in such cities shall be distributed into and among five departments, as follows: 1. Department of public affairs. 2. Department of accounts and finances. 3. Department of public safety. 4. Department of streets and public improvements. 5. Department of parks and public property."
Section 6566 provides that the mayor shall be the superintendent of the department of public affairs, and that each councilman shall be superintendent of the particular department or combination of departments to which he was elected, as the case may be. Section 6571 confers authority upon the council to determine the powers and duties to be performed by each of the heads of departments, and to assign to them such department or departments as the council may, in its discretion, deem best.
Section 47 of the civil service ordinance of the city of Des Moines only is before us. We gather therefrom that assistants and employees of each department of the city are taken from the civil service list and assigned to duty by the head of such department, who is also authorized to discharge such assistants or employees, under the regulations of the laws and rules of the civil service. See, also, Section 5703 of the Code of 1924, which is as follows:
"The person having the appointing power as provided in *Page 1210
this chapter, or the chief of police and the chief of the fire department may peremptorily suspend or discharge any subordinate then under his direction, for neglect of duty, disobedience of orders, or misconduct. Chiefs of police and fire departments of cities under the commission plan shall report suspensions or discharges made by them to the superintendent of public safety within twenty-four hours thereafter. * * * Such report shall be in writing, stating the reasons for such suspension or discharge. The person or body to whom the report is made shall affirm or revoke such suspension or discharge, according to the facts and merits of the case."
There is nothing in Section 5712 to indicate a legislative intent to constitute the city council a tribunal for the purpose of determining who shall remain and who shall be dismissed from the service when a reduction is to be made in the number of employees in any department of the city. The only power conferred upon the city council by said section is to reduce the number of employees in any department of the city, by appropriate resolution to that effect. The manner and method of carrying out the requirements of the resolution, and by whom, are left to the discretion and determination of the city council.
The legislature did, however, provide the test to be applied in the selection of employees for dismissal; or, in other words, what particular offices were abolished. The language of the statute is as follows:
"* * * In case it thus becomes necessary to discharge any such employees, the persons discharged shall be those who have shown the least efficiency and competency and whose service has been of the shortest duration. * * *" Section 5712.
The statute further provides that each employee so dismissed shall be given a certificate showing the length of service, and that he has been honorably discharged.
The attempt by the city council to confer authority upon the chief of the fire department to carry into effect the resolution reducing the number of employees in the fire department, amounted to little more than the designation by that body of the logical officer for that purpose. No one was so familiar with the relative qualifications of the employees of his department, or so well fitted to fairly and justly determine who should be dismissed, as the chief of the fire department. We find no *Page 1211
suggestion in the record that the action of the city council in reducing the force was not bona fide, and for the reasons stated in the resolution, or that the chief of the fire department was actuated by bias, political considerations, or ill will toward any employee. Concerning the method adopted by him in working out the problem, we quote from the amendment to his return as follows:
"While he claims to have a fair knowledge of the disposition and merits of all members of the fire department, he decided not to rely solely on his own judgment in selecting the list of men for dismissal; but, to satisfy himself that he was not misjudging their fitness and qualification, he consulted and advised with all of the commanding officers, — namely, the lieutenants, captains, and assistant chiefs, — relative to the efficiency, length of service, and general qualifications of all the members in their respective companies; and those thus selected for dismissal represent the unanimous opinion of the fire department officials having the matter in charge."
The city council did not attempt to delegate legislative or judicial authority to the chief of the fire department. In designating him to perform the duties assigned, it simply exercised the authority directly conferred upon it by the statute, or necessarily implied therefrom. The authority thus exercised by the chief was administrative in character, and a legitimate function of his office.
II. So far as our attention has been directed to the decisions of the courts in other jurisdictions, they unanimously recognize a distinction between the discharge of an employee by his superior for cause, and the dismissal or discharge thereof where a reduction in the number is sought. The effect of the resolution of the city council was to reduce the number of positions or offices in the fire department from 202 to 180. In other words, 22 offices were abolished. The provisions of Chapter 289 of the Code of 1924, relating to the civil service, are not applicable where officers or employees are dismissed or discharged from the service, to effect a reduction in the number thereof by abolishing the office. Babcock v. City of Des Moines, 180 Iowa 1120; State ex rel. Boyd v. Matson, 155 Minn. 137 (193 N.W. 30);Moores v. State ex rel. Shoop, 54 Neb. 486 (74 N.W. 823);Colgarry v. Board of Street Water Comrs., 85 N.J. Law 583 (89 Atl. *Page 1212
789); Venable v. Police Comrs., 40 Or. 458 (67 P. 203); Heathv. Salt Lake City, 16 Utah 374 (52 P. 602); Lethbridge v.Mayor, 133 N.Y. 232; People ex rel. Hartough v. Scannell, 48 A.D. 445
(62 N.Y. Supp. 930); Matter of Application of Lazenby v.Board of Police, 76 A.D. 171 (78 N.Y. Supp. 302); France v.State, 57 Ohio St. 1; 28 Cyc. 512.
Most of the foregoing cases deal with the right to discharge officers and employees under the civil service. Some of them, however, deal with soldier preference laws.
It will be observed from a reading of the sections of the statute quoted above that, in the employment of firemen, honorably discharged soldiers shall "be entitled to preference in appointment, employment and promotion over other applicants of no greater qualifications," and that they shall be removed from such employment for incompetency or misconduct only after a hearing upon due notice, and upon stated charges.
We have already pointed out that, when it becomes necessary to discharge employees, in the public interest, and a diminution in the number has been ordered by the city council, the employees discharged "shall be those who have shown the least efficiency and competency and whose service has been of the shortest duration." The foregoing provision of the statute fully preserves the preference awarded by law to honorably discharged soldiers. The obvious design of the legislature was to permit a reduction in the number of employees in a given department without reducing its efficiency, and to prevent partiality and unfairness in making such reduction. The preference created in favor of honorably discharged soldiers by the express terms of the statute applies only when their qualifications are at least equal to those of other applicants. Employees possessing "the least efficiency and competency" are not, under the statute, although honorably discharged soldiers, entitled to preference.
But what of the provisions of Section 1163, which prohibits the discharge of any employee having a right of preference except for incompetency or misconduct, and after a hearing upon stated charges and due notice? It is obvious that this statute was designed to protect employees under the civil service who are honorably discharged soldiers, from being dislodged to make room for others, or for political or other reasons inconsistent with the spirit of the civil service laws. The limitation imposed *Page 1213
upon the power of the employer or head of a department of a municipality, or other public officer, to discharge employees at will, applies only to cases within the purview of the civil service or soldier's preference laws. In the absence of statutes, the right of the employer or head of a department to discharge an employee is absolute. The power to appoint, in the absence of restrictions imposed by law, carries with it the power of removal. 2 McQuillin on Municipal Corporations, Section 558.
The office formerly filled by appellee was abolished by the resolution of the city council. He was dismissed because there was no office for him to fill. Notwithstanding the fact that his office was abolished, was he entitled to have charges preferred against him and notice of hearing thereon, before he could be lawfully removed from the service? Was he entitled to displace some other employee who had not been a soldier, but possessed greater qualifications for the office? We think that Section 1163 clearly has no application to the facts of this case. No charges were preferred against him. The law entitled him to an honorable discharge from the service. A certificate to that effect was given him, and he was fully apprised of the reasons for his dismissal. The notice served upon him, together with the certificate of discharge, fully apprised him of the reasons for the action taken by his superior officer. The statute conferring authority upon city councils to reduce the number of employees in any department of the city contains neither provision nor intimation that notice and a hearing must precede final action. We find nothing in Butin v. Civil Service Com., 179 Iowa 1048, orBabcock v. City of Des Moines, supra, or any other decision by this court, to the contrary. The research of counsel, which their briefs disclose was extensive, has failed to yield a single authority to sustain the contention of appellee at this point. The authorities with singular unanimity hold that soldier preference laws are not applicable where the office held by a veteran is in good faith abolished. Moores v. State ex rel.Shoop, supra; Colgarry v. Board of Street Water Comrs., supra;People ex rel. O'Connor v. Adams, 133 N.Y. 203 (30 N.E. 851);State v. Board of Street Water Comrs., 60 N.J. Law 109 (36 A. 778); Matter of Application of Lazenby v. Board of Police, supra;People ex rel. Carll v. York, 53 A.D. 429 (65 N.Y. Supp. 1074; Phillips v. Mayor, 88 N.Y. 245; People ex rel. *Page 1214 Corrigan v. Mayor, 149 N.Y. 215; People ex rel. Hartough v.Scannell, supra; Lethbridge v. Mayor, supra; Heath v. Salt LakeCity, supra; Matter of Application of Stutzbach v. Coler,168 N.Y. 416 (61 N.E. 697); Venable v. Police Comrs., supra.
A few of the cases cited by appellee, however, apparently conflict with the foregoing conclusion. They are, however, we think, clearly distinguishable.
The Supreme Court of Minnesota, in State ex rel. Boyd v.Matson, 155 Minn. 137 (193 N.W. 30), held that the abolition of a specified number of offices did not destroy the soldier's right of preference, so far as the service of other employees commenced at the same time or subsequent to his was concerned. The statutes quoted in the opinion do not, in terms, abolish the offices of those having the "least competency and efficiency." This difference here indicated in the statutes distinguishes the Minnesota cases from the conclusion arrived at herein. The result in Anderson v. Township of Weehawken, 97 N.J. Law 371 (118 A. 208) is entirely consistent with Section 3, Chapter 14, of the Laws of New Jersey of 1907, which prohibits any municipality from abolishing any position or office held by any soldier of the United States who has served in any war, and who has been honorably discharged. The office of the plaintiff in Cassidy v.Transit Dept. of City of Boston, 251 Mass. 71 (146 N.E. 357), was not abolished. He was discharged only because there was no immediate work for him to do. The offices abolished by the resolution of the city council, under the authority conferred by Section 5712, were those occupied by the members of the fire department having the least efficiency and competency to serve. To hold that the foregoing statute is not applicable to honorably discharged soldiers would be to enlarge the Soldier Preference Statute beyond the plain terms thereof.
There remains for our consideration only the question as to how the selection of those to be dismissed shall be made. The duty to discharge employees of the designated class is mandatory. No exception is provided or to be implied. Had the right to notice and a hearing been contemplated by the legislature, some additional provision would have been made therefor.
The questions presented by this appeal, involving, as they do, both the public welfare and the welfare of honorably discharged soldiers, have impressed upon us a great responsibility. *Page 1215
We have endeavored to meet it with a proper appreciation of its importance to all concerned. The only element of possible doubt in the case, as we see it, is the provision of Section 5712 relating to the duration of service. We feel sure that the legislature intended thereby to make efficiency and competency the primary consideration, and the length of service subordinate. Equal effect cannot possibly be given to efficiency, competency, and length of service. The one possessing the least efficiency might, conceivably, have to his credit the longest, instead of the shortest, service. The three qualities are not co-ordinate, but primary and secondary.
The right to a review of the questions discussed on certiorari is challenged, but our conclusion avoids deciding it. No illegality is shown in the proceedings, and we are not concerned with questions of jurisdiction affecting the civil service commission or other offices.
We conclude that the writ should be annulled. It is so ordered. — Writ annulled.
EVANS, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434757/ | Milton E. Town died intestate, in the month of October, 1923, seized in fee simple of the SE 1/4 of the NW 1/4, the NE 1/4 of the SW 1/4, and the W 1/2 of the NW 1/4 of the SE 1/4 of Section 26, Township 78, Range 22, Polk County. He left surviving him Marietta J. Town, his widow, the appellant, and James and William Town, sons of a former marriage, and the other parties to this action, who are sons and daughters of the marriage of Milton E. Town with Marietta J., his surviving widow. The share of plaintiff and his full brothers in the property is an undivided one twelfth. One of the three sons of the former marriage conveyed his interest in the property to Marietta J., who filed answer and cross-petition, asking that one third in value of the real estate be set off to her in kind, so as to include the dwelling house and other improvements on the land. The widow died before the cause was tried in the district court, and her heirs now ask that partition be made as prayed by her. The land is separated by public highways into three tracts, so that no two tracts adjoin each other. The dwelling house, which was for many years the homestead of Milton E. Town and his surviving widow, and all other improvements are located on the W 1/2 of the NW 1/4 of the SE 1/4 of the section, known as the west 20 acres.
Referees were appointed by the court, to determine whether one third in value could be set off to the heirs of Marietta J. Town so as to include the improvements without materially impairing the value of the remaining tracts. The referees thus appointed reported in the affirmative. A decree, therefore, was entered, setting aside the 20-acre tract on which the improvements were located, to the heirs of Marietta J. Town. As to the two remaining forties, the court found that they could not be partitioned in kind, and a referees' sale thereof was ordered. The plaintiff alone appeals.
The testimony as to the value of the respective tracts, and as to the advisability of partitioning the same in kind in part, or the sale thereof as a whole, is irreconcilable, and there is no way by which this court can definitely determine the best method to be followed. *Page 256
Appellees, who are the surviving heirs at law of Marietta J. Town, contend that the right of their mother, under the statute, to have an undivided one third in value of the property set apart to her so as to include the homestead, upon her death descended to them. Whether so as to include the homestead does not appear to have been decided, and we need not do so now. See, on this point, Potter v. Worley, 57 Iowa 66; In re Estate of Proctor,103 Iowa 232. It is also the law that dower may be admeasured and set off in an action in equity for the partition of real property.Thomas v. Thomas, 73 Iowa 657; Beeman v. Kitzman, 124 Iowa 86.
Whether the right of the heirs of a surviving spouse entitled to have the distributive share in real property set off to her in kind descends to the heirs as an absolute or qualified right, we need not now decide; but see, as bearing on the question, Todd v.Stewart, 199 Iowa 821.
It is, of course, obvious that partition could not be made of the 20-acre tract without impairment of its market value. The land is situated some distance from town. Each of the respective tracts is more or less broken and cut up with ditches. All of the witnesses agree that the value of the NE 1/4 of the SW 1/4, referred to as the south 40, is much less than the value of the SE 1/4 of the NW 1/4, referred to as the north 40. The 20-acre tract lies immediately east and across the road from the south 40. The improvements on the 20-acre tract consist of the dwelling house, a barn, corncribs, hog houses, a wash shed, a garage, a chicken house, and a good well. All of the buildings except one or two of the smaller ones are shown by the evidence to be old, and in rather bad condition. For example, the barn was built more than 50 years ago, and part of the house has no foundation under it. The floors are in bad condition, and the south one half of the house needs reshingling. The wash house has been built about 12 years. The barn has a tin roof on it, and some of the sills have rotted and fallen out. The garage is in bad condition, and the two small hog houses are in a depleted condition. There is a good orchard on the 20-acre tract. Several witnesses testified that the improvements were worth from $3,000 to $4,000, and that the tract on which they are located would sell on the market at from $200 to $300 per acre. Other witnesses testified that the 20-acre tract, including the *Page 257
improvements, was worth from $125 to $135 per acre. With the exception of the testimony of one witness, the highest value placed by anyone upon the tract as a whole was $12,000 or $13,000. We are of the opinion that appellant very much exaggerates the value of the improvements on the 20-acre tract, and that the tract does not substantially exceed one third in value of the whole. All attempts on our part to reconcile the testimony and to determine the real value of the respective tracts have led to unsatisfactory conclusions.
Even if it were admitted that the 20-acre tract constitutes approximately one third in value of the entire estate, it must yet be determined whether a more equitable result would follow if a sale were made of the three tracts together. The proximity of the improvements to the two 40-acre tracts affords some support to the argument of appellant that this is the better way to dispose of it. The evidence on this point is also unsatisfactory. It is no doubt often true that small tracts of land situated as are the tracts in question may be sold to better advantage, and at a relatively higher price, than two or more contiguous tracts separated by highways, as in this case. The opinion and judgment of the referees, who, so far as the record shows, were wholly disinterested, must be given weight. We have found no way by which a more satisfactory conclusion can be reached than the one embodied in the decree. There is no rule by which the controversy can be accurately and definitely determined.
We reach the conclusion that the decree of the trial court is substantially correct, and that it should be, and is, —Affirmed.
EVANS, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434758/ | [1] I. The petition alleges that the defendant Barry "did negligently, carelessly, heedlessly and recklessly manage, control, drive, direct and operate a certain Maxwell Sedan in such negligent, careless, heedless and reckless manner as to cause the said sedan so driven by him to collide with the automobile then being driven by plaintiff herein and did so negligently, carelessly, heedlessly and recklessly fail to manage, control, drive, direct and operate the said sedan then and there by him had as to fail to prevent the said sedan from colliding with the automobile then being operated by the plaintiff." Defendants moved that plaintiff be required to make these allegations more specific by setting out the specific acts of negligence upon which he was relying. The motion was overruled. After the motion was overruled defendants answered and went to trial. Thereby they waived error, if any, in overruling the motion. Crow v. Casady, 191 Iowa 1357; Hunn v. Ashton,121 Iowa 265; Coakley v. McCarty, 34 Iowa 105; Kline v. The K.C., St. J. C.B.R. Co., 50 Iowa 656; Hurd v. Ladner, 110 Iowa 263; Northwestern Trading Company v. Western Live Stock Insurance Company, 180 Iowa 878, at 881; Heiman v. Felder, 178 Iowa 740; Clark Company v. Monson, 183 Iowa 980; Mann v. Taylor, 78 Iowa 355; Smith v. Waterloo, Cedar Falls and Northern Railway Company,191 Iowa 668.
[2] II. Defendants urge that the court erred in admitting testimony to statements made by defendant Barry, the driver, as binding upon the defendant owners without restricting it as applicable only to Barry. Defendants also urge that the court erred in admitting testimony to alleged admissions by one of the defendant owners without limiting its application to the owners. The court gave no instruction limiting the applicability of the admissions by the driver to the question of the driver's personal liability, or those made by the defendant owners to the question of their personal liability.
[3] The court was asked to submit separate forms of verdict, one a form of verdict for the driver and another a form for defendant owners. The request was refused.
The court charged the jury that the evidence showed beyond *Page 674
dispute that the defendants McClelland Son were the owners of the car, and that Barry was driving it with their consent; that if they found that Barry was negligent and his negligence was the proximate cause of the injury and plaintiff was not contributorily negligent Barry and the McClellands became equally liable for the damage. This instruction was excepted to.
None of the owners was present at the time of the accident.
Plaintiff testified that before the accident he saw the Barry car coming toward him at about 45 miles per hour; that it did not slacken speed; that there was a curve from the direction in which he was going. Barry's testimony was that there was such a curve; that he (Barry) was going 8 or 10 miles an hour; that because of a bump he glanced around toward his cousin in the back seat; that the plaintiff's car was on the curve; that he was blinded by the lights and could not tell just how far away the plaintiff's car was. Plaintiff testified over proper objection made by the McClellands that long after the accident Barry "said when he came off the paving Mrs. Barry was lying down in the back seat and in some way or other attracted his attention and he looked back and when he looked back he was right into us." A witness for plaintiff, over objection by all of the defendants, testified that after the accident and at another place Barry said that the lady in the back seat attracted his attention and he looked around and after he looked back again "the other car was right there in front of him."
After the accident plaintiff's car was taken to the garage of defendants McClelland. Plaintiff testified over objections made in behalf of defendant Barry that after the accident he asked one of the McClellands what the charges would be on the car and he said there wouldn't be any charges on it, that he would haul it in and take care of it for plaintiff.
The statute (Section 5026, Code, 1927,) declares that "in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage." In the case before us the driver, Barry, was at the time of the accident engaged in an enterprise of his own. He was not on that occasion in the exercise of his employment by the defendant owners, though he was driving the car with their consent. In order to make the owners liable it was necessary for the plaintiff to prove the *Page 675
negligence of the driver by evidence that would be competent against them. The driver's admissions made not as a part of theres gestae, though competent as against him, were not competent as against the owners. Cooley v. Killingsworth, 209 Iowa 646; Looney v. Parker, 210 Iowa 85; Wieneke v. Steinke, 211 Iowa 477; Wilkinson v. Queal Lumber Co., 208 Iowa 933. Conversely, the owner had no authority to make admissions in behalf of the driver. The court in instructing the jury should have limited the effect of the driver's admissions to the determination of the question of his liability and the effect of the owners' admissions to the question of their liability.
The rate of speed and concentrated attention required by the curve (as well as other circumstances shown) were of controlling importance. The proceedings in the court below in the respects now under consideration were such as to naturally confuse and mislead the jury without clarification in the instructions.
We are unable to hold that the jury might not have been largely influenced by Barry's admissions in determining that the owners were liable, and we are unable to hold that conversely McClelland's statements might not have been accepted as implied admissions of liability influencing the jury in finding that Barry was negligent. We are unable to hold that there was no prejudice in the failure of the court to instruct as to the effect of the alleged admissions and in denying the request for submission of separate forms of verdict.
Many of the assignments of error are such as to raise no question for our consideration. In any event defendants' other complaints may be obviated on new trial. — Reversed.
FAVILLE, C.J., and ALBERT, WAGNER, GRIMM, JJ., concur.
KINDIG, STEVENS, JJ., dissent on 2nd division. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434759/ | With due respect to the majority, I feel compelled to dissent. It seems to me that the ground for reversal named in the majority opinion is not well-founded. There is precedent for the majority opinion, of course, but my thought is that the precedents do not announce correct law and therefore, so far as inconsistent with the contention here made, should be overruled.
In Wilkinson v. Queal Lumber Company, 208 Iowa 933, *Page 676
we first laid down the rule that admissions of the driver concerning his negligence could not be introduced in evidence against the owner of the car, who consented to the driver's use thereof. Consistently the Wilkinson case was followed in Cooley v. Killingsworth, 209 Iowa 646; Looney v. Parker, 210 Iowa 85; and Wieneke v. Steinke, 211 Iowa 477.
Our statutory law is being overlooked in this line of cases. Section 5026 of the 1927 Code provides:
"In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car, driven by the consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."
If the automobile, then, is driven by one, not the owner, with the owner's consent, the owner is liable for damages if the driver was negligent. That is the express declaration of the statute. Assuming, then, that the owner of the automobile has permitted another person to drive the same, the question is — was such driver negligent? How may the negligence of such driver be proven? Manifestly by facts and circumstances. Also by the material admissions of such driver. Clearly the question is not — was the owner negligent, but rather, does negligence appear on the driver's part? Unquestionably, then, any material, relevant, and competent evidence that would show negligence on the driver's part would necessarily have to bind the owner because he is liable if he consented to the use of his car. Any other interpretation of the statute amounts to a distortion of its meaning.
Under the majority theory there could be a verdict by the jury against the driver and not against the owner, even though the record is clear that he gave his consent to the use of his automobile and the driver was negligent in the use thereof. According to the statute, however, if the owner consents to the driver's use of his car, there would have to be a verdict returned against both the driver and the owner, if the driver was negligent. As a matter of fact, the only way the owner can be freed from liability when the driver's negligence appears is upon the theory that the former did not consent to the driver's use of his car. Hence, any material, relevant, and competent evidence that *Page 677
shows the driver's negligence is clearly admissible against the owner. A trial of this kind involves, not the negligence of the owner, but that of the driver. Therefore, when the negligence of the driver alone is involved, any competent, material, and relevant evidence may be introduced to show such tort. Negligence is negligence, and that which constitutes the driver's negligence likewise constitutes the negligence that establishes the basis for the owner's liability.
Conceding that the particular evidence properly shows the driver's negligence, automatically under the statute it must be admissible against the owner. Of course, if the owner's negligence were involved, then the statements and actions of the driver might or might not be admissible against him. Here, however, the owner is liable, not because of his negligence, but because he consented to the use of his car by the individual who is negligent. That consent makes the owner liable for the driver's negligence. The owner, having consented, cannot escape liability if the driver is negligent. Such negligence on the driver's part may be shown, as before said, by any competent, relevant, and material evidence, including his material admissions.
Believing, therefore, that the majority opinion in this respect is fundamentally wrong, I respectfully dissent.
STEVENS, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434761/ | [1] Plaintiff's petition asserts that her decedent was operating a Model-A Ford coach in a southerly direction on the west half of the paved portion of Highway U.S. 169 about five miles north of Algona, on a curve approaching the crest of a hill, when same was struck by defendant's truck which was proceeding north on said highway; as a result of the collision, her decedent was fatally injured; decedent was not negligent; the driver of defendant's truck was negligent in operating same at excessive speed, failing to maintain proper lookout, failing to have the truck under control, violating the assured-clear-distance rule, failing to yield one half the traveled portion of the highway. Plaintiff demanded judgment for $10,000. The answer was a general denial. At the close of the evidence the court directed a verdict for defendant. Judgment was entered accordingly. Plaintiff appeals.
Plaintiff makes two assignments of error: first, that the court erred in directing a verdict; second, that the court erred in sustaining objections to testimony of the witness Pankuk.
In support of the first error assigned, plaintiff asserts three propositions: 1. The jury could reasonably believe plaintiff's witnesses and find from the circumstances related by them that defendant is liable. 2. The jury had a right to find defendant liable upon defendant's admission that his driver was on the wrong side of the road. 3. The circumstantial evidence in this *Page 481
case, taken with defendant's admission that his driver was on the wrong side, made a case for the jury.
Defendant challenges the sufficiency of the assignment of error to meet the requirements of Rule 30. Numerous decisions of this court are cited. In some of them are statements that support defendant's contention. This court, as now constituted, is reluctant to enforce the rule as strictly as has been done in some of our former decisions. We prefer to extend to all litigants a hearing on the merits if at all possible. Accordingly, we have carefully examined the record herein for the purpose of determining whether or not the trial court was right in finding that, "if this matter were submitted to the jury and the jury should return a verdict for the plaintiff, it would be the duty of the court to set the same aside." After careful deliberation, we are disposed to agree with the trial court.
This accident occurred about 12:30 or 1 a.m., September 1, 1940, on Highway U.S. 169, about five miles north of Algona. Defendant owned the first and third of three trucks which were returning from a trip to Tama. The trucks were proceeding north. The first truck was an International with a Fruehauf trailer, operated by Allan Robinson, who was alone in the cab. The second truck, a Ford V-8, was operated by William Weir, the owner of the cattle that had been taken to Tama, with whom Glenn Reece was riding. The third truck was operated by defendant, Cecil Robinson, with whom Adam Wilhelmi, a son-in-law of Reece, was riding. Weir's truck was about 300 feet behind the first truck, and defendant was 900 to 1,000 feet behind it. Plaintiff's decedent was operating a Model-A Ford coach. George Lavin was riding with him, but did not testify. The only eyewitnesses to the tragedy who testified were members of defendant's party. Plaintiff concedes that the testimony of such witnesses would warrant a verdict for defendant but contends that the circumstantial evidence of her witnesses and the testimony of admissions by defendant present sufficient conflicts in the evidence to require a submission of the cause to the jury.
This collision involves two vehicles proceeding in opposite directions on the same highway. The crux of the case is, Which vehicle was on the wrong side of the road at the time of impact? *Page 482
If defendant's truck was at that time on its right-hand side, the east side of the highway, plaintiff's action was rightly dismissed. The evidence on this issue determines whether or not a jury question was presented.
We have held repeatedly that where the evidence is such that, should the jury return a verdict for the plaintiff it would be the duty of the court to set the same aside, defendant's motion for a directed verdict should be sustained. Scott v. Hansen,228 Iowa 37, 42, 289 N.W. 710; Bowermaster v. Universal Prod. Co.,221 Iowa 831, 835, 266 N.W. 503; In re Estate of Work, 212 Iowa 31,37, 233 N.W. 28; Schmidt v. Hayden, 205 Iowa 1369, 1371,219 N.W. 399; First Nat. Bk. v. Brown, 197 Iowa 1376, 1378,199 N.W. 272; McGlade v. City of Waterloo, 178 Iowa 11, 13, 156 N.W. 680; Cherry v. Des Moines Leader, 114 Iowa 298, 305, 86 N.W. 323, 54 L.R.A. 855, 89 Am. St. Rep. 365; Hurd Wilkinson v. Neilson,100 Iowa 555, 557, 69 N.W. 867; Beckman v. Consolidation Coal Co.,90 Iowa 252, 255, 57 N.W. 889; Meyer v. Houck, 85 Iowa 319, 327,52 N.W. 235; Bothwell v. C., M. St. P.R. Co., 59 Iowa 192, 194,13 N.W. 78; Starry v. Dubuque S.W.R. Co., 51 Iowa 419, 422,1 N.W. 605. As a part of this rule of law, we have held that whenever, considering all the evidence, it clearly appears to the trial court that it would be its duty to set aside a verdict if found in favor of the party upon whom the burden of proof rests, then a motion to direct a verdict against such party should be sustained. Scott v. Hansen, supra; McGlade v. Waterloo, supra. Accordingly, we will undertake to analyze all the evidence bearing on the question where the impact between the vehicles occurred.
Allan Robinson, the driver of the truck, testified he was on the right or the east side of the pavement; as he approached the place of the accident he saw the Ford car when it was approximately 100 feet ahead of him coming toward him without any lights, with its left wheels well over the black center line on the east side of the pavement; he pulled the truck to the right in an effort to avoid the collision, going out onto the right shoulder; the Ford car struck his left front wheel, bending the wheel back so that he could not control the truck, and after the collision the truck, with the left wheel bent back, curved to the left across the *Page 483
pavement and into the ditch on the west side of the road; the Ford also settled down on the west side of the road about 70 to 90 feet south of the truck; the truck did not turn over; after the accident he looked over the marks on the pavement and found glass and dirt on the east side of the pavement and black smudges that led from the Ford car across the center of the pavement up to where all the dirt and glass were on the east side.
William Weir was operating a truck behind Allan. He testified that he first saw the Ford car when it was about five feet ahead of Allan as he then saw the reflection of Allan's lights in the Ford's reflectors; there were absolutely no lighted headlights or lights of any kind on the Ford and it was straddling the middle line of the pavement; he examined the marks after the accident, with a flashlight, and observed the pile of dirt and glass on the east side of the center line and the marks and tracks leading back from the truck across the center line to the east side and the marks leading back from where the Ford car stopped after the accident across the center line of the pavement to the east side.
Glenn Reece testified that he was riding with Weir, but was asleep at the time of the accident; he got out of the truck with Weir and examined the pavement with a flashlight; he observed that most of the dirt and glass was on the east side of the pavement between the black line and the shoulder; the tracks led back from the rear wheels of the truck across the pavement to the east side; these marks showed the tread of the tire and ran through the patch of dirt on the east side of the highway; where these tracks crossed the center line of the highway the tar was burned as if the wheel had been sliding; there was a black mark from the left rear wheel of the Ford car that traveled eastward to the center line and across it and then went north parallel to the center line; this mark from the left rear wheel would be 18 to 24 inches east of the center line of the pavement.
After the accident Weir went to the farm of Robert Leason for help and Leason came to the scene of the accident. He testified that some dirt and the bulk of the glass were on the east side of the pavement from one to two feet of the center of the pavement; he saw dark marks that looked like burned-rubber *Page 484
tracks extending from the back end of the truck clear over to the east side of the pavement.
Arthur Cogsley, the deputy sheriff who rode to the scene of the accident in the ambulance, testified that he observed the dirt that had been knocked off the Ford car and the truck about two and one-half feet east of the center of the pavement; you could trace the truck tracks from where it was standing back across the pavement and across the center line to this pile of dirt, with the right truck tracks leading out on the east shoulder.
Casey Loss, the sheriff, arrived after his deputy, made an investigation, observed that the bulk of the glass was on the east side, saw the pile of dirt in the east traffic lane, observed the tire marks leading from the back end of the truck across the pavement into the east line to the patch of dirt, debris, and glass; skid marks led back from the Ford car onto the pavement extending across the center line to the patch of dirt and debris.
N.E. Kohnke, a medical student at Iowa University, arrived at the scene of the accident and administered first aid to Lavin. Lavin told him that he had been asleep and admitted that he had been drinking. Kohnke observed the patch of dirt and glass two or three feet east of the center line of the pavement, the black skid marks leading from the Ford car back to the pile of dirt on the east side, and the burned-tire marks extending from the rear of the truck, from each wheel, back across the pavement onto the east side with the right wheel mark leading out on the east shoulder.
J.E. Saunders, a college student riding with Kohnke, testified that he, too, saw the tracks running from the truck across the pavement and across the black line on the east side of the pavement; the bulk of dirt and glass was on the east side of the pavement; tire burns ran back from the Ford car to the east side of the pavement, one on each side of the black line.
Defendant testified he did not see the accident; the last time he saw Allan's truck was when the truck was 1,500 feet south of the point of the collision; he first learned of the accident when Weir pulled off on the shoulder and stopped; he stopped just ahead of Weir and Weir told him there had been an accident; he made an investigation and found the truck tracks extending *Page 485
back from the truck across the pavement to the pile of dirt and glass on the east side and the smudge marks extending from the Ford car with the left smudge mark extending across the center line of the highway.
Defendant's passenger, Adam Wilhelmi, got out of the truck when defendant stopped, took a flashlight and examined the scene of the collision; most of the dirt and glass was lying on the east side of the pavement; tracks led from the rear of the truck across the pavement to the east side of this patch of dirt and glass; the burned-tire marks led back from the Ford car on each side of the center line.
Otto Baranthin, the city policeman in Bancroft, testified he had stopped Potter, the driver of the Ford, in Bancroft that evening between 9 and 10 o'clock for driving without lights. He had stopped him two or three times before for driving without lights within the previous three-weeks' period and Potter had promised to get the lights fixed.
Photographs of the scene of the accident, taken about 6 o'clock the next morning, were introduced in evidence without objection. They showed the marks on the pavement with the smudge marks on the black lines of the pavement showing up quite clearly. Most of the foregoing witnesses used these photographs in connection with their testimony.
To show that the truck was on the left or west side of the highway at the time of the collision and that the lights on the Ford were lit at the time of the accident, the plaintiff introduced the following testimony:
Everett Pankuk arrived with his wife and child after the flares had been put out. He testified that the glass he saw was all on the west side of the pavement, but maybe there were a few little scattered pieces on the east; he did not see the dirt and glass on the east side of the pavement, but he would not say there was not any there; he saw "marks on the pavement that looked like somebody had put on a brake and let a tire slide. These marks started from where the glass started on the north end and ran off to the west — off of the pavement to where the truck was." He did not have a flashlight and he did not look around much that night. The trial court sustained objections to the offer of *Page 486
testimony of this witness with regard to marks he observed the next morning.
Mrs. Pankuk testified that she did not need a flashlight, but with respect to the tracks on the highway she testified as follows:
"Q. The court says you may describe those tracks that you mentioned? A. I would say they looked as though they had skidded, but as to where they were I didn't take notice. They were on the west side of the pavement. Otherwise I don't know. * * * A. Idon't say anything about the tracks, only that I had seen them. They were — I don't know — It looked as though they were — You couldn't see any track, but just those."
Marjorie Pankuk, the twelve-and-a-half-year-old daughter of the Pankuks', did not testify with regard to the tracks. She at first said there was broken glass on the east side of the pavement, and then corrected herself and said, "I mean the west side."
Earl Potter, the father of the deceased driver of the Ford car, did not arrive at the scene of the accident until 8 or 9 o'clock the next morning. He saw glass on the west side of the pavement and scratches on the west side of the pavement that looked fresh; he examined the Ford there and examined the lighting system, and, although the headlights had been broken off, the rest of the lighting system was in perfect condition and the switch was turned on. He testified to an admission made by defendant a week after the accident that the lights on the Ford were lit, which admission defendant denied.
[2] V.A. Mettler, a lawyer and justice of the peace at Mason City, testified that Potter, the father of the driver of the Ford car, came to him the morning after the accident and asked him to go and see if he could find out whether the boy was in the right or wrong, but that he, Mettler, was not retained as a lawyer. Mettler testified that more than a year after the accident, and about a month before the trial, he went out to defendant's farm where defendant was baling straw all alone, and there defendant admitted to him that the Potter boy had lights; that the Lavin boy was asleep when the accident happened, and that "Junie [Allan Robinson] got on the wrong side *Page 487
of the road on that curve and ran into the Ford." Mettler further stated that although he was not an attorney in the case, he expected to be paid for his trips. Defendant denied making the admissions testified to by Mettler.
The foregoing is practically all the evidence bearing upon the position of the truck at the time of the collision. With such a record we do not believe it would be proper to allow the jury to speculate on where the accident occurred. The eyewitnesses and the many witnesses who testified about the truck tracks, including the disinterested witnesses and the law-enforcing officers who conducted an investigation shortly after the accident, and the photographs, definitely establish the fact that the collision took place while the truck was on the right or east side of the pavement. The testimony of the Pankuks to the effect that they saw tracks on the west side does not raise a conflict, because they did not say that there were no marks on the east side. All the testimony showed there were tracks on the west side, but the witnesses other than the Pankuks all testified that the truck tracks extended from where the truck was after the accident back over the west side to the east side of the pavement.
This semitrailer truck with dual wheels would most certainly leave a trail that could be retraced on the pavement slab. Such a trail so unanimously observed by all who investigated immediately after the accident leaves no substantial evidence upon which the jury could arrive at a verdict for the plaintiff by concluding that the truck was on the left at the time of the collision. Such evidence of tracks rises to the height of foot-print testimony when properly connected up with the vehicle. It would take more than the uncertain and equivocal testimony of the Pankuks to raise a fair conflict which would warrant the jury in finding the truck was on the left-hand side of the highway at the time of the collision. Compare Reimer v. Musel, 217 Iowa 377,251 N.W. 863.
There remains the question of the admission to the attorney Mettler. This admission was made more than a year after the accident and about a month before the trial to the attorney who was first consulted by the plaintiff Potter. Defendant *Page 488
denies the admission and the undisputed evidence shows that he was 900 to 1,000 feet south of the point of the accident when it occurred; he first learned of the accident when he talked to Weir after Weir had stopped on the shoulder of the highway. The testimony shows that defendant was in the vicinity of the Black Cat bridge at the time of the collision, which was down a curving hill and approximately 1,000 feet south of the point of the accident. Such testimony is not sufficient upon which to rest a verdict for the plaintiff. In an early Iowa case, Epps v. Dickerson, 35 Iowa 301, this court with respect to testimony of alleged conversations, refused to grant relief upon such testimony. It is true that that is an equity case, but it is significant that the case was cited and commented upon in the case of Jones v. Harris, 122 Wash. 69, 75, 210 P. 22, 24. In this latter case, a verdict for a plaintiff in an automobile-accident case was predicated upon admission testimony. The plaintiff had shown that the owner of the car had on occasion admitted his son had general permission to use the car and admitted that he was a reckless driver. In setting aside the verdict for the plaintiff the court quoted from an earlier Washington case to the effect that admissions alone were insufficient to carry a case to the jury, and stated:
"When uncorroborated by any supporting circumstance, it has ever been regarded as the weakest, most unsatisfactory and most dangerous of all the various kinds of evidence."
A review of a number of other cases is contained in this opinion. The court quoted from our decision and stated (at page 79 of 122 Wn., page 25 of 210 P.):
"In the language of the Iowa court, the testimony in `its very completeness and perfect fitting to the plaintiff's case is [in] itself a just ground of suspicion.'"
Here it will be observed that the location of this collision, as disclosed by the testimony of the admission, is not supported by the testimony as a whole and it is definitely refuted by the photographs. It would be insufficient to support a verdict when we consider defendant could not have seen the accident from the place where he was when the collision occurred. Such testimony *Page 489
of an admission made so long after the accident occurred, to one who was at least consulted as an attorney for the plaintiff in the earliest stage of this litigation, is too weak and unsatisfactory when the record shows that the admission is denied and it corroborates no other testimony upon which a verdict for the plaintiff could be supported.
The situation herein is analogous to that present in the case of Bowermaster v. Universal Prod. Co., supra, wherein we state, at page 835 of 221 Iowa, page 505 of 266 N.W., as follows:
"First referring to the claim that defendant made a statement that he did not see the truck until he hit it, a careful reading of the record and the established facts would in our opinion lead all reasonable minds to conclude that such testimony was without probative substance and the witness mistaken. The point to such testimony would of course be to establish that Barns was oblivious to the surroundings and was keeping no lookout ahead, as bearing on the question of recklessness. However, such proposition is so entirely negatived by the established facts and circumstances that a verdict could not be sustained which depended on such testimony. Meyer Bros. v. Houck, 85 Iowa 319,52 N.W. 235; In re Estate of Work, 212 Iowa 31, 233 N.W. 28."
We do not mean to imply that testimony of an admission would in no case be sufficient to sustain a verdict. An undenied admission might be strong evidence and admissions made as a part of the res gestae, even though denied, might raise a fair conflict in the testimony. It is the character of the admission herein, considered with the overwhelming evidence to the contrary, which renders it weak and ineffective. It was competent evidence but it is insufficient to avoid application of the scintilla-of-evidence rule herein.
In all cases where this court has applied the scintilla-of-evidence rule or physical-facts rule, there has been some conflict in the evidence. In each case the evidence that produced the conflict was held to be so unreasonable or inconsistent with clearly established facts that it was not of sufficient probative substance to sustain a verdict. The application of the rule depends *Page 490
in large part upon the facts of each particular case. As above pointed out, we have repeatedly applied the rule that, if, upon a motion for new trial, it would be the duty of the court to set a verdict aside, it is the province of the court to direct a verdict and not submit the cause to the jury. We are satisfied that, under the record herein, had the court submitted this cause to the jury and it had returned a verdict for plaintiff, it would be the duty of the court to set the same aside. Accordingly, the ruling on the motion to direct a verdict was right. The trial court has some discretion in such a case. There was no such abuse of discretion herein which would warrant or require a reversal.
The other error assigned challenges the ruling on an offer of proof as to the witness Pankuk. The testimony offered was similar to some of that given by plaintiff's husband. By reason of what we have heretofore said, the testimony, if admitted, would not be of sufficient probative value to affect the result. Accordingly, the ruling was not prejudicial.
The judgment is — Affirmed.
HALE, WENNERSTRUM, MANTZ, MULRONEY, and SMITH, JJ., concur.
GARFIELD, C.J., and BLISS and OLIVER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434958/ | During oral argument, concession was made that the case may be determined upon the theory that facts exist authorizing preferences, providing the claimants' property could *Page 1066
1. TRUSTS: be traced into the hands of the receiver. enforcement: Appellant, as receiver of the State Bank of New cash funds: Hampton, asked for a reversal upon the doctrine presumption that the trust funds were not properly of preser- identified in his hands. vation: limitation.
Preliminary to a discussion of the exact point in issue, the following statement of facts is necessary: On December 27, 1924, the State Bank of New Hampton, an Iowa corporation, was closed by the banking department. Thereafter, in due course, the receiver above named was appointed. At the time of cessation of business, there remained on hand $4,080.96 in cash. In July, 1924, the cash reserve was depleted, and the stockholders paid a special assessment, July 18th of that year, amounting to $40,100. A careful study of the record reveals that said "assessment," together with all deposits and other funds of said institution placed therein after said date of July 18th, were dissipated largely in the payment of its debts. Only small loans were made thereafter, for there were no available moneys to be used in such manner. Appellees' demands were granted by the court, and "preferences allowed" for deposits made in the following sums; City of New Hampton, $11,112.86; Park Commission, $1,085.15; School District No. 1, Richland Township, $225.38; School District No. 3, Dayton Township, $434.30; School District No. 3, Dresden Township, $197.57; School District No. 5, Dayton Township, $107.56; School District No. 1, Dayton Township, $209.72; School District No. 7, Dayton Township, $632.30; School District No. 7, Richland Township, $254.95; Theodore Krieger, $202.04; Betty Bacon and Minnie Klatt, $240; E.J. Feuling, $269.50; H.J. Rosauer, $130.50; Louis H. Johnson, $175.70. This action of the district court's was based upon the idea thus by it expressed:
"Beginning with July 18, 1924, there went into the bank between that time and when it closed, the proceeds of the special assessment, $49,700, and the trust funds which I am establishing as preferred claims, in the sum of $17,950.95. I am finding that none of these trust funds had been depleted * * *. For that purpose we must show a record of the bank from July 18th down to date. The evidence shows that the only bad loan made during that period was one for $36.50. All the other bad loans were made prior to that time. * * * If you pay your trust funds, you *Page 1067
will have left for your depositors about $50,000, which is almost identical with the total amount of the assessment paid in."
To repeat the thought in another way, the trial judge considered that the "trust funds" named, whether in cash or some other form, were presumed to be preserved for the beneficiaries, and that the various items collected by the receiver from all sources must be available for this purpose, even though each particular claimant did not trace his individual property into the assets of the bank, except by an alleged presumption. Ground for the judicial conclusion was that the record shows only one "bad loan" of $36.50 to have bee made. All the "loans" that came into the hands of the receiver for the time beginning October 6th, to and including November 2d, amounted to $2,326.53, ranging individually from $10 to $100, covering renewals and discounts of every kind.
An itemized statement of the funds placed in the bank by the city of New Hampton is: October 6, 1924, $3,200; October 9th, $9,564.12 and $133.57; and October 10th, $1,000; October 14th, $400; October 24th, $242.75, — a total of $14,540.44. Finally, the actual money in the depository on November 19th was only $1,972.77. From that date to December 27th there was paid out in expenses $1,770.53. While on July 18th, deposits subject to check were $98,982.67, and on December 27th, they were $87,950.46, a loss of $11,032.21. And the certificates of deposit on July 17th were $394,494.85, and on December 27th were $330,069.51, a loss of $64,425.34. Furthermore, on July 17th, the savings account was $70,895.51, and on December 27, 1924, was $59,399.89, showing a loss of $25,441.62. Added to this shrinkage must be $10,336, interest paid by the bank from July 6th to December 27, 1924. Meanwhile, bills discounted fell off $96,496.71; withdrawals were made by said city from November 19th to the closing of the bank in the total of $3,216.28, while additional deposits by it for said last period amounted to $3,807.62, being a net increase of $590.84. Moreover, there was paid into the "bank," under the trust claimed, $200 by said Theodore Krieger, December 27th, $481.70 by said H.J. Rosauer, December 26th, and $175.70 by Louis H. Johnson, December 26th.
Our attention has not been called to the exact history of the other deposits and claims here involved, and the record in this *Page 1068
respect is obscure. It does appear, however, that the moneys of the school districts were deposited in October, 1924, while the demands of E.J. Feuling and Minnie Klatt originated in October and November, respectively.
For alleged error of the district court in allowing the "preferences" in the amounts stated, the appeal was taken.
I. Fundamentally, the remedy in actions of this kind is based upon an interest in or ownership of the particular property or fund claimed, rather than the relationship of debtor and creditor. 26 Ruling Case Law 1351, Section 216, contains this text:
"* * * the true owner of a trust fund traced to the possession of another has the right to have it restored, not as a debt due and owing, but because it is his property, wrongfully withheld from him * * *."
First Nat. Bank v. Oelke, 149 Iowa 662, expresses the same thought in this language:
"The right to a preference is based on a right in the particular property or fund, and the manner of acquiring such property or fund is not material, that being only an incident thereto."
Leach v. Iowa State Sav. Bank, 204 Iowa 497.
II. Primarily, such equity in or title to "property" exists through or because of a trust, or relationship in the nature of a "trust." Leach v. Battle Creek Sav. Bank, 203 Iowa 507; Leachv. Sanborn State Bank, 203 Iowa 401; Stilson v. First State Bank,152 Iowa 724; Smith v. Des Moines Nat. Bank, 107 Iowa 620.
Establishment of this status in the case at bar is conceded by all parties, and therefore we will assume, without deciding, its existence.
III. Various definitions of "trust" can be found in the authorities. That contained in Dillenbeck v. Pinnell, 121 Iowa 201, is:
"Justice Story defines it as `an equitable right, title or interest in property, real or personal, distinct from the legal ownership thereof.' 2 Story's Equity Jurisprudence, Section 964. It has also been defined as existing `where property is conferred upon and accepted by one person on terms of holding, using, or disposing of it for the benefit of another.'" *Page 1069
Later, in Maxwell v. Wood, 133 Iowa 721, we said:
"A trust is defined as `an obligation upon a person arising out or a confidence reposed in him to apply property faithfully and according to such confidence.' Perry on Trusts, Section 2."
See, also, Allen v. Rees, 136 Iowa 423; Gilmer v. Gilmer,199 Iowa 748; 26 Ruling Case Law 1167, 1168; 39 Cyc. 17.
IV. Returning now to the precise point involved, we pause to note that controversies of this nature include at least two steps: First, the establishment of the "trust," and second, the tracing into the custody of the receiver the deposit, payment, or "property" previously made or delivered in or to the bank, which said receipts are asserted as the basis for the "trust." Stilsonv. First State Bank, supra; Farnsworth v. Muscatine P. P.I.Co., 177 Iowa 21; Hudspeth v. Union Tr. Sav. Bank, 196 Iowa 706; First Nat. Bank v. Oelke, supra; Leach v. Sanborn, StateBank, supra; Cable v. Iowa State Sav. Bank, 197 Iowa 393; Murrayv. North Liberty Sav. Bank, 196 Iowa 729; Messenger v. CarrollTr. Sav. Bank, 193 Iowa 608.
Formerly, under the early systems of the common-law practice, the identical property was required to be "traced," or no relief was afforded. 39 Cyc. 529, Subsection B. 26 Ruling Case Law 1353, Section 217, aptly states:
"It was at one time a doctrine of the English law, recognized also by some of the early authorities in this country, that property having no earmark to distinguish it from other property of the same kind, could not be pursued by the true owner thereof after it had been mingled in one mass."
V. Said ancient narrowness, however, has now been discarded, and the "trust property" may be "traced" even though its identity has been lost. Hanson v. Roush, 139 Iowa 58; Jones v.Chesebrough, 105 Iowa 303; Bradley v. Chesebrough, 111 Iowa 126;Jones v. Nicholas, 151 Iowa 362. Recognition of this truth is made in Hanson v. Roush, supra, where we said:
"It is not incumbent on plaintiff to identify the particular funds; for, as money has no earmarks, this would be practically impossible."
VI. One precaution, however, at this juncture is taken by the courts, which is that the permission to "trace" is denied when the subject of the controversy has passed into the hands of a good-faith purchaser for value without notice. Wegener v. *Page 1070 Emmetsburg Nat. Bank, 195 Iowa 1267; Harris v. Warner, 199 Iowa 1000. Harris v. Warner, supra, approves this declaration:
"`Equity will not impress a constructive trust upon property that has passed into the hands of a good-faith purchaser for value, without notice. Such a purchaser is regarded as equal, if not superior, in equity. Where the equities are equal, as between two innocent parties, the one having the legal right and title will prevail. This is a broad principle in equity, which has a manifold application.'"
VII. Such process of "tracing" may be by the introduction of evidence that will tend to identify the property from the time it leaves the truster, or like person, until it appears through the trustee into the hands of the receiver, or other similar officer; or the same result may be accomplished by the aid and assistance of presumption, when the facts and circumstances so warrant.Stilson v. First State Bank, supra; Messenger v. Carroll Tr. Sav. Bank, supra; Leach v. Farmers Sav. Bank of Hamburg, 205 Iowa 114; Cable v. Iowa State Sav. Bank, supra; Leach v. Sanborn StateBank, supra; Leach v. State Bank of Redfield. (Iowa), 212 N.W. 390 (not officially reported); Leach v. Iowa, State Sav. Bank,204 Iowa 497; Andrew v. Eddyville Sav. Bank, 204 Iowa 431; Murrayv. North Liberty Sav. Bank, supra.
VIII. Early in the history of Iowa jurisprudence, it was held that, if property impressed with a trust has been "traced" to the possession of the trustee, the burden is then upon him or his receiver to show that it did not result in augmentation of the estate. Independent Dist. of Boyer v. King, 80 Iowa 497. SeeHudspeth v. Union Tr. Sav. Bank, supra, and dissenting opinion in Stilson v. First State Bank, supra.
IX. However, in Jones v. Chesebrough, 105 Iowa 303, a departure was made from the former broad pronouncements, and the claimant was incumbered with the duty of sustaining the fact, not only that the "property" went into the hands of the trustee, but that, in addition thereto, the same increased or augmented the assets held by him, from which the equivalent of the trust items can be withdrawn without impairment of the rights of creditors. Jones v.Chesebrough, supra; Bradley v. Chesebrough, supra; Hudspeth v.Union Tr. Sav. Bank, supra; Cable v. Iowa State Sav. Bank,
supra; Leach v. Sanborn State Bank, supra; City of New Hampton v.Leach, 201 Iowa 316; *Page 1071 Danbury State Bank v. Leach, 201 Iowa 321; Leach v. Iowa StateSav. Bank, supra. Necessity for "augmentation" is due to the fact that there is inability to further follow the identical "property" because it is commingled with the debtor's general estate, in which other creditors are interested to the extent of their claims.
Then, in order to remove the equivalent of the "trust property," equity permits the owner to take from the entirety an unidentified portion which is equal to the original; but in this manipulation, injustice would result to the "general creditors" if there is taken from the common fund any part below the level of the mass existing without the addition of the "trust" item.
X. When cash remains in the failing concern at the time it discontinued banking operations, and such money was afterwards delivered to the receiver, subject to the modifications hereinafter indicated, the presumption is that said commingled fund contains "the trust proceeds," and the latter can be removed from the Whole without injury or injustice to the general creditors, because there was "augmentation." Charity assumes that the trustee did no wrong, but spent and disposed of his own property, and retained that which belonged to others. Cable v.Iowa State Sav. Bank, supra; Murray v. North Liberty Sav. Bank,
supra; Leach v. Sanborn State Bank, supra; City of New Hampton v.Leach, supra; Farnsworth v. Muscatine P. P.I. Co., supra.
XI. Consistently, this court has held that the "presumption" applies to other forms of the assets on the final dated, and enables the owner to "trace" his property thereto, and if the foundation is properly laid, such inference will aid in this endeavor. Andrew v. Security Sav. Bank, 203 Iowa 546; Murray v.North Liberty Sav. Bank, supra.
We do not here decide whether or not the "presumption" will aid appellees in "tracing" their funds from the cash of the bank wherein they were deposited over into the transformed "assets," such as bills receivable, deposits in other 2. TRUSTS: institutions, or any other kind or form of enforcement: property; because, under the record before us, negativing it is unmistakably shown that all "deposits" preser- made by appellees were spent or used by the bank vation. in the payment of debts, running expenses, and other obligations, except such portion of said *Page 1072
$4,080.96 cash on hand to which each appellee may be privileged in the manner and way indicated in this opinion. By supplement, in Leach v. Iowa State Sav. Bank, supra, this court said:
"It is not presumed that the money was converted by the bank into bills receivable, or into a deposit account with another bank, or into any other form of property."
Reference to this language is made in order that the review may be complete; but the effect of that judicial declaration is not now determined, for the reason before stated.
XII. "Augmentation" does not appear if the record discloses that the "trust funds" were used in the payment of debts or other obligations of the banking institution. Leach v. State SavingsBank, 202 Iowa 265; Leach v. Iowa State Sav. Bank, supra.
XIII. The "presumption" hereinbefore discussed is one of fact, rather than law, and is subject to rebuttal. Stilson v. FirstState Bank, supra; Hudspeth v. Union Tr. Sav. Bank, supra;Leach v. Iowa State Sav. Bank, supra; and kindred cases. Upon the shoulders of the receiver is placed this burden to disprove.Hudspeth v. Union Tr. Sav. Bank, supra; Leach v. Iowa StateSav. Bank, supra; Andrew v. Security Sav. Bank, supra; Murray v.North Liberty Sav. Bank, supra; and like holdings.
Just as before announced, this obligation was met by this receiver in the trial court.
XIV. Also, in regard to the "presumption" relating to said cash balance, there must always be kept in mind the principle that the rule stated is subject to at least the limitations: First, if said common contributions are at any time wholly depleted, afterwards the individual items sought to be followed, as above required, cannot be treated as reappearing because of subsequent "deposits" to the same common account by others; and second, though total confiscation does not exist, but partial only, then the lowest balance left is the maximum amount from which recovery is allowed under the "presumption" that it contains "trust money," for the difference between said old and new standards must be regarded as dissipated, — that is to say, the lowest cash balance in the bank while the transactions were current fixes the amount up to that time impressible by the "trust" under the "presumption." Leach v. Iowa State Sav. Bank, supra; Whitcombv. Carpenter, 134 Iowa 227; Leach v. Iowa State Bank of *Page 1073 Atlantic, 202 Iowa 887; 26 Ruling Case Law 1358, Section 221;Board of Com. v. Strawn, 157 Fed. (6th Circuit) 49; In reBolognesi Co., 254 Fed. (2d Circuit) 770; In re Ballard, 279 Fed. (D.C.) 574; Schuyler v. Littlefield, 232 U.S. 707; Hewitt v.Hayes, 205 Mass. 356 (91 N.E. 332).
So in the case at bar, the low mark in such "bank deposits" on November 19, 1924, was $1,972.77. Thus, said "presumption" no longer applied beyond that line, and the aggregate of the specific "deposits" at said point, involved in these claims cannot indulge in any greater "common fund," due to said inference. Future enjoyment of the right to partake in the "deposit" accumulations after said last named date cannot be extended to later "deposits" of others. New "contributions" thereafter, if any, by each appellee will and must be determined and regulated under the same contingencies and elements of the law above announced, completely independent of said previous "deposits." As we do not have before us the requisite facts, dates, and other data, it is impossible for us to apply this doctrine to each of the fourteen cases consolidated. This task must be performed by the district court, which will have before it all the material for a complete adjudication in each action.
XV. These common funds are not sufficient to satisfy the total applications for prior payments, and it is insisted that the Federal rule should be applied, allowing the preference in the inverse order of the times of the respective 3. TRUSTS: payments or deposits into the funds. Merit enforcement: appears in that doctrine; but the practice in inadequate this court has been to permit prorating, and common fund: this rule has been indulged in to such extent prorating. that we feel it cannot be changed at this late date. See Leach v. Iowa State Sav. Bank, 204 Iowa 497.
Wherefore, the judgment and decree of the district court is modified, in that said claims are denied in all respects except to the extent, if at all, each may be entitled to the $4,080.96 in the order of priority, and in accordance with the principles above set forth. Otherwise, there is an affirmance. — Modified,affirmed, and remanded.
STEVENS, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur. *Page 1074 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435058/ | E.P. Cartwright and Della A. Cartwright, defendants above-named, on February 17, 1920, owned 120 acres of land in Warren County. On that date they executed to the plaintiff-appellant, Sarah E. Peilecke, a note for $19,000 bearing five per cent interest. To secure that note, the Cartwrights also executed to the appellant a mortgage on the aforesaid real estate. Prior thereto, but while the note and mortgage were contemplated by an agreement between the appellant and the Cartwrights, the latter, in August, 1919, sold to the defendants and appellees, Clarence Keeney and F.C. Sigler, the mortgaged farm under a written contract likewise contemplating the mortgage.
Subsequently, but before March 1, 1920, this contract was assigned by appellees, Keeney and Sigler, to the defendant, John Schimelfenig. This contract was afterwards lost and therefore a controversy arose, during the trial in the district court, concerning the contents of the agreement.
Following the receipt of the note and mortgage by appellant on February 17, 1920, the Cartwrights, in accordance with the written contract, conveyed by warranty deed the mortgaged premises to the appellees, Keeney and Sigler. Contained in the deed was the following clause:
"Subject to a mortgage of $19,000.00 covering said land which grantees (appellees, Keeney and Sigler) assume and agree to pay with interest from March 1st, 1920."
On February 24, 1920, the appellees, Keeney and Sigler, by another warranty deed, conveyed the premises to the defendant, John Schimelfenig, in accordance with the assignment aforesaid. *Page 147
In the Schimelfenig deed the mortgage was mentioned, but there was no assumption clause. Appellant, as explained in the preliminary statement now seeks to foreclose the mortgage and hold appellees, Keeney and Sigler, on the assumption clause. As further said in the preliminary statement, two defenses are interposed by the appellees, Keeney and Sigler. They are: First, that the assumption clause in their deed is an error and should be removed by reforming the instrument; and, second, that there is in no event a consideration for the assumption clause. The district court allowed the reformation and removed the clause.
Complaint of that action is made by the appellant on the theory that there was a consideration and that reformation should not be allowed. No appeal is taken by the defendants, the Cartwrights, or the defendant Schimelfenig. Hereafter, for brevity, the defendants, Keeney and Sigler, will be referred to as the appellees.
[1] I. Are the appellees entitled to a reformation of the deed, as allowed by the district court? Manifestly not, for the reason that they have not produced clear, satisfactory, and convincing evidence that the assumption clause was inserted in the deed through mutual mistake or fraud. There is no evidence whatsoever of fraud. Consequently, if the reformation were to be allowed, it would necessarily have to be upon the basis of mutual mistake. Whatever evidence there may be of a mutual mistake in the premises must be predicated upon the fact that the contract between the Cartwrights and appellees did not contain a provision requiring an assumption clause in the deed. It appears that this contract between the Cartwrights and appellees, which was assigned to the defendant Schimelfenig, has been lost. An attempt was made by appellees to prove the contents thereof by oral testimony. Their attempt in this regard was not sufficient because their proof is not clear, positive, convincing, and satisfactory. Cleophas v. Walker, 211 Iowa 122.
Appellees, it is true, by way of conclusion asserted that the assumption clause was not required by the contract. But on the other hand, the defendant, E.P. Cartwright, likewise contended that the provision was embodied in the agreement. Neither Cartwright, nor the appellees, purported to restate the language or phraseology of the contract. This testimony was entirely in the nature of conclusions. Furthermore, when the facts and *Page 148
circumstances are considered, uncertainty still remains. For instance, it is argued by appellant that Cartwright, being obligated on the notes, naturally would require appellees to assume the indebtedness. Likewise, if appellant's theory is true, appellees were obligated under the assumption clause, and on the same basis they would be prompted to require such clause in their deed to the defendant, Schimelfenig. Yet, as before explained, no such provision was inserted in that deed. Again, it is maintained by appellant that the assumption clause must have been authorized in appellees' deed for the reason that they accepted the same without protest. Under the record, however, it does not appear that either of the appellees ever saw the deed with the assumption clause, or had any information concerning its provisions.
Some support is afforded appellees' position, because under the assigned contract they required no assumption clause in the defendant, Schimelfenig's deed; that is to say, if the contract required an assumption clause in the deed from the Cartwrights to appellees, why would not the same contract demand such provision in the deed from appellees to the defendant, Schimelfenig? On the other hand, the Cartwrights, appellees, and the defendant, Schimelfenig, met in Indianola on the day the deeds were executed for the purpose of closing the transactions under the contract and the assignment. Apparently it was contemplated by the appellees and the defendant, Schimelfenig, that one deed only would be required. These parties originally intended to have the Cartwrights deed directly to the defendant, Schimelfenig. Because of some reason, however, they were compelled to change their plans, and, as before explained, the deed was given by the Cartwrights to the appellees and they in turn executed another deed to the defendant, Schimelfenig. Why did appellees and the defendant, Schimelfenig, change their minds in reference to having Cartwrights deed directly to the latter? May it not have been because there was to be an assumption clause in appellee's deed and no such provision in Schimelfenig's deed? Confusion arises, therefore, concerning the provisions of the contract between the Cartwrights and appellees regarding the assumption clause.
Before appellees are entitled to a reformation, their evidence of the mutual mistake must be clear, satisfactory, and *Page 149
convincing. Rankin v. Taylor, 204 Iowa 384; Scovel v. Gauley,209 Iowa 1100; Hubbard Grain Co. v. Western Grain Dealers M.F. Ins. Co., 199 Iowa 1160; Haugh v. Lanz, 187 Iowa 841; Taylor v. Lindenmann, 211 Iowa 1122. Appellees did not furnish such proof. Having failed to meet the burden of proof cast upon them, the appellees were not entitled to a reformation, and the district court should not have allowed such relief. By so concluding, we do not hold or suggest that it was necessary for appellees to ask for reformation in order to attack the consideration. Undoubtedly they could have pleaded no consideration and proved it by a preponderance of evidence without asking for and obtaining a reformation, but they did pray for a reformation. Accordingly the district court reformed the instrument. Therefore it is upon such basis that we above discussed the subject matter.
[2] II. Notwithstanding the fact that appellees are not entitled to a reformation, it does not necessarily follow that judgment must be entered against them under the assumption clause. Such assumption clause, of course, must be supported by a consideration. Peters v. Goodrich, 192 Iowa 790.
If, in the original contract between the Cartwrights and appellees, there was no provision contemplating an assumption clause in the deed, no consideration, of course, would exist, for the aforesaid preliminary agreement is the only basis contended for such consideration. Appellant does not pretend that a consideration arose other than through the agreement between the Cartwrights and appellees. In Peters v. Goodrich (192 Iowa 790), supra, we approved the following quotation from Bull v. Titsworth, 29 N.J. Eq. 73:
"`A mortgagee can derive no advantage from a covenant of assumption in a deed, if the covenant be invalid between the parties to the deed — e.g., where there was no agreement for assumption and though the deed contained the covenant * * *.'"
Had the Cartwrights and appellees intended that the land should be conveyed subject to the mortgage without the assumption clause, that agreement would be valid and binding. Shult v. Doyle, 200 Iowa 1. So unless the Cartwrights and appellees in the above-named original contract contemplated an assumption clause, there would be no consideration for such *Page 150
clause in the deed. Peters v. Goodrich, (192 Iowa 790), supra. The existence of the assumption clause in the deed in and of itself does not amount to an agreement based upon a consideration, if in fact the contract on which the deed is based did not contemplate such provision. Snyder v. Sargeant, 197 Iowa 475.
Contained in appellant's petition is an allegation suggesting that the consideration for the assumption clause was the provision of the contract between the Cartwrights and appellees. That allegation was denied by appellees, and they further asserted that no consideration whatsoever existed for the assumption clause. Necessarily, then, the burden of proving a consideration for the clause was thereby imposed upon appellant. Snyder v. Sargeant, (197 Iowa 475), supra. Section 9440 of the 1931 Code provides:
"All contracts in writing, signed by the party to be bound or by his authorized agent or attorney, shall import a consideration."
A similar provision was contained in the 1927 Code. Notwithstanding the statutory declaration, it was necessary for appellant to furnish proof of the consideration because appellees by themselves, through their agents or attorney, did not sign the deed containing the assumption clause. Snyder v. Sargeant, (197 Iowa 475), supra; Sheley v. Engle, 204 Iowa 1283, 1284.
In First National Bank v. McDonough, 205 Iowa 1329, it is held that an agreement to assume a mortgage may be proven by facts and circumstances. There, however, the assumption clause specifically stated that the assumption of the mortgage was a part of the consideration for the deed. So, too, the person receiving the deed took possession of the land, paid interest on the mortgage, etc. The deed in the case at bar, on the other hand, contains no statement that the assumption of the mortgage was a part of the consideration. Appellees did not take actual possession of the land, nor did they, so far as shown by the record, ever see the clause in the deed. Moreover, appellees paid no part of the mortgage, or any interest thereon. Under these circumstances there is no evidence of consideration for the assumption clause, so far as the deed is concerned. Therefore the First National Bank case, supra, is distinguishable because of these facts. *Page 151
Appellant, in addition to introducing the deed into evidence, attempted, as discussed under Division I of this opinion, to prove that the contract between the Cartwrights and appellees provided for the assumption clause, but, as before seen, that evidence is hopelessly conflicting. What quantum of evidence is required here? Manifestly, (aside from establishing the contents of the lost instrument by sufficient proof) a preponderance thereof only as distinguished from that which is clear, satisfactory, and convincing, required for reformation. A preponderance of evidence, as seen by Rankin v. Taylor (204 Iowa 384), supra, is not enough to warrant a reformation; yet such preponderance alone is sufficient to support the issue of consideration. The preponderance of evidence rule, therefore, applies to the issue involving consideration. After carefully studying the evidence here, however, it appears that appellant has not met the burden of proof relating to consideration, because the evidence does not preponderate in her favor. No consideration, therefore, has been shown for the assumption clause. Without a consideration it has no existence, and consequently is a nullity. Resultantly, the district court properly refused to give appellant judgment against the appellees.
[3] III. But appellant insists that the appellees are estopped from denying their liability under the assumption clause for the reason that they accepted the deed containing such provision. Estoppel, however, is not pleaded by appellant. Anyway, there is no showing that appellees ever saw the deed, because they were principally interested in turning the property over to the defendant, Schimelfenig. Due to this record, appellees are not estopped from denying their liability on the note. Peters v. Goodrich, (192 Iowa 790), supra.
Wherefore, the judgment and decree of the district court is modified by denying the reformation above discussed, but otherwise the same is affirmed. — Modified and affirmed.
FAVILLE, C.J., and EVANS, MORLING and GRIMM, JJ., concur. *Page 152 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4047465/ | MANDATE
THE STATE OF TEXAS
TO THE COUNTY COURT AT LAW NO. 6 OF BEXAR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on September 16, 2015, the cause upon appeal to
revise or reverse your judgment between
Vanessa Rivera Mireles, Appellant(s)
V.
The State of Texas, Appellee(s)
No. 04-15-00424-CR and Tr. Ct. No. 480304
was determined, and therein our Court of Appeals made its order in these words:
In accordance with this court’s opinion of this date, this appeal is
DISMISSED.
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 16, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1807196/ | 329 B.R. 815 (2005)
In re Elaine M. PAYNE, Debtor.
No. 04-16923.
United States Bankruptcy Court, N.D. Ohio, Eastern Division.
August 29, 2005.
*816 Kevin M. Ryan, Esq., North Ridgeville, OH, for Debtor.
Scott D. Fink, Esq., Weltman, Weinberg & Reis Co., L.P.A., Cleveland, OH, for Aurora Loan Services.
MEMORANDUM OF OPINION
PAT E. MORGENSTERN-CLARREN, Bankruptcy Judge.
Secured creditor Aurora Loan Services Inc. filed a claim in this chapter 13 case, alleging it is owed $15,813.75 in prepetition mortgage arrearages. The debtor Elaine Payne objects to the claim as being an incorrect amount. For the reasons stated below, the objection is sustained in part.
JURISDICTION
Jurisdiction exists under 28 U.S.C. § 1334 and General Order No. 84 entered on July 16, 1984 by the United States District Court for the Northern District of Ohio. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B).
THE DISPUTE
This is the latest in a series of cases where chapter 13 debtors challenge claims made by the companies that own or service their home mortgage loans.[1] In general, the debtors question how the companies obtained an interest in their particular loan as well as the manner in which the companies have applied their payments and deducted sums from their accounts. In this case, the debtor makes three allegations: (1) Aurora's proof of claim does not show that it has an interest in her loan; (2) Aurora failed to credit her with payments made from July 1, 2003 to June 1, 2004; and (3) Aurora unilaterally and without notice used money the debtor and the chapter 13 trustee paid to Aurora and instead of applying the funds to the debtor's principal, interest, real estate taxes, property insurance, and late charges, instead applied the funds to its own attorneys fees, "statutory expenses," and inspection fees.
Again, as is often the case, the issue is compounded by the fact that the account records provided by Aurora to the debtor are not comprehensible to a person outside of Aurora's employ[2] and Aurora did not *817 create and produce a complete, intelligible running account record until very shortly before the evidentiary hearing.
AURORA'S PROOF OF CLAIM
On August 13, 2004, Aurora filed a proof of claim asserting that the debtor failed to make $14,213.01 in payments prepetition, in addition to which she owed $2,119.33 in "legal costs" and $370.48 in "additional charges." After crediting the debtor $889.07 from a suspense account, Aurora claimed a total arrearage of $15,813.75.
The documents attached do not show that Aurora either owns or services the account. Instead, they show that on October 26, 1998, the debtor and her husband financed the purchase of their home by borrowing $104,070.00 from Ameriquest Mortgage Company. They signed a note to repay these funds secured by a mortgage on the residence. On October 14, 2002, Ameriquest assigned the debtor's note and mortgage to Mortgage Electronic Registration Systems, Inc. which recorded the mortgage with the county recorder.
THE POSITIONS OF THE PARTIES
Aurora contends that it purchased the note and mortgage in 2000 from Ameriquest and is entitled to a presumption that its proof of claim is valid. Aurora argues further that the hearing evidence shows it is owed more than the amount originally claimed. According to the debtor, Aurora does not get the benefit of the presumption because the proof of claim does not comply with the bankruptcy rules. She maintains she was current with Aurora when she filed her case and has made all required payments since then. She also disputes attorney fees, inspection charges, and other expenses posted by Aurora to her account and/or deducted from her payments without her knowledge or consent. She argues that these deductions, which she learned about only recently, cause her account to be incorrectly calculated.
THE EVIDENTIARY HEARING
The debtor presented her case through her testimony, cross-examination, and documents. Aurora presented its case through William Wheeler, who has been with Aurora for two months as an assistant vice-president and bankruptcy manager. In preparation for the evidentiary hearing, Mr. Wheeler instructed an individual in his department to create a spreadsheet detailing the manner in which Aurora applied the debtor's payments. He does not have any personal knowledge of the account. Aurora also presented its case through cross-examination and documents. Additionally, the parties stipulated to certain facts.
DISCUSSION
Aurora's proof of claim is not entitled to a presumption of validity
A proof of claim filed in accordance with the bankruptcy rules is prima facie evidence that the claim is valid in the amount stated. FED. R. BANKR. P. 3001(f). To be filed in accordance with the rules, a proof of claim based on a loan secured by a mortgage on the debtor's house must include a copy of the promissory note as well as evidence that the security interest is perfected. In re Parrish, 326 B.R. 708, 718-19 (Bankr.N.D.Ohio 2005). A claim without this support does not enjoy a presumption of validity. Id.
The proof of claim at issue here does not comport with the bankruptcy rules. Aurora filed the claim in its own name as creditor. The attachments, however, show that Ameriquest made the original loan and assigned it in 2002 to Mortgage Electronic Systems Inc. There is nothing in the documents to show that the *818 loan documents were ever transferred to Aurora. As a result, the claim is not entitled to a presumption of validity.
Aurora is the loan servicer, but did not prove it owns the note and mortgage
When a claim is not presumed to be valid, the creditor must prove the existence and validity of the debt. Id. at 719. Aurora must prove first that it is either the creditor to whom the debt is owed or the servicer for the creditor. Id.
At hearing, the parties stipulated that Aurora took over the servicing of the loan in May 2000. Additionally, William Wheeler testified that Aurora purchased the note and mortgage on that date. The only ownership documentation in evidence, however, is to the contrary. According to the proof of claim, the loan ownership went directly from Ameriquest to Mortgage Electronic Systems, Inc. in 2004, two years after Aurora says it purchased the loan from Ameriquest.
The evidence did not prove that Aurora owns the note and mortgage. Based on the stipulation, however, Aurora is the loan servicer.
Aurora credited the debtor's account with the disputed payments
The debtor initially contended that Aurora failed to give her credit for payments made from July 1, 2003 to June 1, 2004. The parties stipulated that the debtor made six payments totaling $16,052.39 during this time. The spreadsheet introduced at the hearing shows that Aurora credited each payment to the debtor's account.[3] The remaining dispute, though, is how Aurora applied the payments.
Aurora did not apply the debtor's payments appropriately
The debtor signed an adjustable rate note designed to have her loan paid in full by November 1, 2028. Under the note, her monthly payments, as periodically adjusted, include amounts for property insurance and taxes which are to be escrowed by the lender and paid when due. If a payment is not made in full by the end of 15 calendar days after the due date, the note calls for a late charge of 6% of the overdue payment of principal and interest.[4]
The mortgage explains how the lender will apply each payment made under the note:
3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2[5] shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note.[6]
In certain circumstances, the mortgage allows the lender to protect its rights in the property by taking specified actions. If those circumstances exist and the lender chooses to take any such actions, the contract provides that expenses incurred will be dealt with in this manner:
. . . [a]ny amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this [mortgage]. Unless Borrower and *819 Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment.[7]
The lender must give this notice to the borrower by delivering or mailing it to the property address.[8]
Mr. Wheeler testified that Aurora's practice is to apply payments in accordance with the contract. Generally, payments received are applied to the oldest outstanding contractual amount. In a bankruptcy situation, payments received from a chapter 13 trustee are applied to prepetition arrearages and a debtor's regular monthly payments are applied to current payments.
A review of Aurora's spreadsheet for this account shows that Aurora repeatedly failed to comply with the contract and also failed to apply payments received from the chapter 13 trustee to the debtor's prepetition arrearage.[9] Starting in June 2000, there are more than 60 occasions where Aurora charged the debtor's account for what are described as inspection fees, foreclosure attorney fees, foreclosure attorney costs, foreclosure title search, bankruptcy fees, statutory expenses, and foreclosure costs. This is significant because Aurora did not keep a separate record of such expenses. Instead, Aurora posted them on the debtor's loan account, thus affecting the application of payments made by the debtor and the trustee. Also, on seven occasions, Aurora took funds sent to it by the chapter 13 trustee which should have been applied to prepetition arrearages and instead applied the funds to its own attorney fees, foreclosure costs, and inspection fees. Each of these entries was to the debtor's financial detriment.
Aurora did not argue at the hearing that any specific contract provision permitted it to handle the account in this way. Aurora admits it did not give the debtor the required notice requesting payment for disbursements and did not even tell the debtor it had added these charges to the account.[10] Instead, Aurora just kept piling on extra charges which left the debtor baffled as to how her account got into its current state. Because Aurora incorrectly applied the payments, its accounting is significantly flawed and cannot be used to prove its claim.
The court has not lost sight of the fact that the debtor borrowed money and failed to repay it. It is an obvious reality in the lending world, however, that some loans will not be repaid in accordance with their terms. The question is: when faced with that situation, what is the amount owed by the borrower to the lender? This question *820 can only be answered by a complete and accurate accounting for all monies received and all charges made. There is no such accounting here.
At this point, the court could simply sustain the debtor's objection. The court believes the better course is to both sustain the objection and grant Aurora leave to file an amended proof of claim, as described below.
CONCLUSION
For the reasons stated above, the debtor's objection to Aurora's claim is sustained in part.
Aurora is granted leave to file an amended proof of claim calculated in accordance with this opinion. Specifically, Aurora is to delineate its connection to this loan, either as servicer or owner. If Aurora claims ownership, it is to attach documentation showing the chain of title leading to that conclusion. Additionally, Aurora is to account for all payments made by and on behalf of the debtor by applying them to taxes, insurance, principal, interest, and late charges. The late charges are not to exceed the ones listed on Aurora's spreadsheet. Aurora is not to deduct any other item from the debtor's payments, whether described as advances, disbursements, or accrued charges. Aurora is to attach to the amended proof of claim a spreadsheet in the same format as that offered by it as an exhibit at the hearing.
The amended proof of claim is to be filed on or before 20 days after the date on which this memorandum of opinion is entered. The debtor shall then have 20 days after the amended proof of claim is filed to object to it, if grounds for such objection exist.
A separate order will be entered reflecting this opinion.
NOTES
[1] See, for example, In re Parrish, 326 B.R. 708 (Bankr.N.D.Ohio 2005).
[2] See, for example, debtor's exhibit 30. Among other problems, the documents use codes that are not defined, do not identify the source of payments, do not explain certain debits that are listed under broad categories, and do not explain why funds are put in and taken out of suspense accounts.
[3] Debtor's exh. 41.
[4] Note ¶ 7(A).
[5] Paragraph 1 is titled "Payment of Principal and Interest; Prepayment and Late Charges." Paragraph 2 is titled "Funds for Taxes and Insurance."
[6] Mortgage ¶ 3.
[7] Mortgage ¶ 7 (emphasis added).
[8] Mortgage ¶ 14.
[9] Debtor's exh. 41.
[10] Even if these charges are potentially collectible, Aurora did not prove that the contract entitled it to impose the charges and did not provide evidence that the expenses were incurred or that incurred expenses were reasonable. Moreover, this court has held that Ohio law prohibits a creditor from collecting prepetition attorney fees from a borrower under these circumstances. See In re Lake, 245 B.R. 282 (Bankr.N.D.Ohio 2000). In the face of this long-standing ruling, Aurora nevertheless included these amounts in its proof of claim. Aurora states in its brief that it is aware that "this Court may frown upon the inclusion of such fees in a proof of claim[.]" Docket 39, Amended Brief at n. 4. A court holding such fees are not recoverable goes a bit beyond the court "frowning" on a practice and Aurora would be well-advised to consider this in the future. This court has said before, if a party disagrees with a ruling it is always free to appeal it. What it is not free to do is ignore it. See FED. R. BANKR. P. 9011(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3434775/ | On October 22, 1937, the plaintiff, an automobile repairman, 50 years old, brought this action against the defendant, a dentist of long experience in his specialty of extracting teeth — an exodontist — by filing his petition alleging: "That on or about the 3rd day of July, 1936, the plaintiff went to the office of the defendant for the purpose of having certain teeth extracted, and the defendant accepted plaintiff's employment of him to extract plaintiff's said teeth and undertook to perform same, and did then and there place the plaintiff under a general anesthetic and did extract said teeth but did so so carelessly, negligently, and unskillfully that the root of one of said teeth so extracted was permitted to pass down the windpipe and lodge in the right lung of plaintiff; that though the plaintiff suffered much pain and distress from his lungs he did not know the cause thereof for a period of nine months and three days, when, because of the cells of the tissue of said right lung being broken down at the location of said root of said tooth, the plaintiff in a fit of coughing from irritation in said lung coughed up the said root of said tooth. That the dental operation in the extraction of plaintiff's said teeth was wholly and completely under the management of the defendant, and that said accident to the plaintiff was such that in the ordinary course of dental practice would not have happened had the defendant and his servants exercised the usual and proper care in extracting plaintiff's said teeth."
The petition contains no other, or specific, grounds of negligence, and the action, as pleaded, is based upon general allegations of negligence. Defendant's answer denied all allegations *Page 355
other than those respecting the extraction of the teeth as a dentist at the time alleged. These allegations he admitted.
At the close of plaintiff's testimony, the defendant moved for a directed verdict in his favor, which motion was granted. This motion in substance stated: (1), the plaintiff failed to establish any negligence charged which caused the injury; (2), the plaintiff failed to establish any malpractice or lack of care of defendant which was the proximate cause of the injury; (3), the plaintiff attempted to establish negligence by the rule of res ipsa loquitur, which has no application to a malpractice suit; (4), (5), the plaintiff relies upon circumstantial evidence, and has failed to eliminate other possible and reasonable causes of the injury; (6), (7), the plaintiff did not show that defendant failed to use that degree of skill in the extraction of the teeth ordinarily and generally used by practitioners in Cedar Rapids and vicinity, under like circumstances; (8), the court would be required to set aside a verdict against the defendant as contrary to the evidence.
Appellant has assigned errors for the sustaining of the motion upon the various grounds thereof.
This appeal presents to us for determination two questions or propositions: First, did the record justify the submission to the jury of the issue that the defendant was negligent as charged? Second, if the defendant was negligent as charged, was that negligence, or its result, the proximate cause of plaintiff's injury?
We will discuss the second question first because it involves a statement of the facts, a knowledge of which is essential to a proper consideration of both questions.
[1] I. The plaintiff had followed his trade as barber for a number of years, but being of a mechanical turn of mind, he had given his attention somewhat to matters of that kind, and later took up the work of an automobile mechanic as his regular occupation. He had been so employed, steadily for more than seven years on July 3, 1936. On that day, about midafternoon he left his work to go to the defendant's office to have six teeth extracted — four above and two below from his right jaws. The *Page 356
defendant had extracted eight of the plaintiff's teeth in 1934, and, two or three years previous to that time, had pulled the roots of a tooth, which the chewing of barley as a boy, and decay, had destroyed. Other dentists, in earlier years, had extracted perhaps a half dozen teeth. The roots and sockets of his remaining teeth were affected with pyorrhea, and because of their general bad condition, the defendant advised him to have them all removed. The plaintiff declined to have his front teeth pulled, and pointed out the six which he wished to have extracted. At the time of the trial the plaintiff had but ten teeth, all in front. No person was in the defendant's office other than he and the plaintiff. The plaintiff seated himself in the dental chair and the defendant gave him a general anesthetic, and when the plaintiff recovered consciousness, the six teeth had been extracted. The defendant removed one or two pieces of teeth from the gums, and the plaintiff left for his home about 4 o'clock in the afternoon. He felt a heaviness in his right chest when he first came from under the anesthetic, which became more noticable on reaching home, as though he were taking cold "or something." This heaviness kept getting worse. It was more of an ache than a pain. He began coughing that night. The coughing and pain increased in intensity and has never left him. The teeth extraction had been on Friday, and he attempted to go back to work the following Monday. Before quitting time in the afternoon he returned to the defendant's office and had him remove two or three pieces of teeth from his gums. The dentist at this time told plaintiff that he had a hard set of teeth to pull and that he broke them up quite badly. On the Friday following the extraction, Dr. Hersch came to his home and treated him, but he received no relief. Coughing spells continued day and night. Dr. Crawford treated him for some time, and later Dr. Artis, but neither helped him. Dr. Rice, an osteopath, examined him. Dr. Erskine took X-ray pictures of his right lung in September 1936. He continued at his work fairly steadily until the first week in December 1936 when his condition rendered further work impossible. He began coughing blood in the latter part of December 1936. Severe hemorrhages *Page 357
from the lungs followed. He went to the sanatorium at Oakdale in January or February 1937. There, Dr. Webb took X-ray pictures of his lungs. Dr. Houser treated him on his return from the sanatorium and placed him in St. Luke's Hospital for 10 days, and other X-ray pictures were taken in the latter part of March. He arranged to be taken to the University Hospital, at Iowa City, on April 6, 1937. He was a man of rather slight build, with a normal weight of around 145 pounds. That was his weight at the time of the teeth extraction. His weight decreased to 85 pounds on April 6, 1937. About 7 o'clock in the morning of that day, while his mother was feeding him grapefruit as he was reclining in bed, he choked and strangled, and after a very violent spasm of coughing, he expectorated a quantity of sputum, mucous and blood from his lungs, into a can kept at the bedside for that purpose. He at once told his wife to examine the discharge as he felt as though he had coughed up something hard like a scab — that he felt it when it came loose. She immediately poured the contents on a paper and found there the root of a tooth. The plaintiff, his mother, wife, son, and daughter were all present in the home, and they testified to this occurrence. His sister, who had planned to accompany him to Iowa City that morning, was at the house about 8 o'clock. His minister called at the home that morning, knowing that the plaintiff was being taken to Iowa City. The root of the tooth was shown to him. The plaintiff had been a regular attendant at church services on every Sunday morning, evening, and Wednesday night. He was an usher in the church, and attempted to perform these duties during the summer and fall of 1936, but his condition of health forced him to quit. The minister called at the home from time to time, and testified to his rapid physical decline after the teeth extraction, and to coughing spells that were almost paroxysms. He was taken to Iowa City in an ambulance that day. Dr. Evans, an ear, nose, throat, and lung specialist gave him attention. X-ray pictures of the lungs were taken. Plaintiff was then coughing copious amounts of vile sputum. His breath was foul. There was tenderness and pain in the right chest. *Page 358
Examination and the pictures indicated an inflamed, abscessed, and consolidated condition in the right lung. He was kept in the hospital 10 days. He had severe hemorrhages from the lungs. He came back to the hospital from time to time for a year to receive X-ray treatments to stop the bleeding in the lungs. The treatment was ineffective. The bleeding was from the right lower bronchus. That is where the abscess was. Later the plaintiff was removed to the surgical ward, where an operation was performed, October 15, 1938, to sever the phrenic nerve to the right diaphragm. This operation destroys the function of the diaphragm near the lower right lobe, and the surgical interference with that nerve is a permanent paralysis of the right half of the diaphragm and prohibits complete expansion or inspiration, and there is no muscular contraction to permit forcible coughing. It left the right lung somewhat collapsed and the right shoulder lowered. Dr. Evans weighed the plaintiff on April 6, 1937, in August 1937, and in August 1938, and his weights on those days were respectively, 85 pounds, 140 pounds, and 131 pounds.
Dr. Evans testified:
"There is bacteria on human teeth. When once introduced into a cultural media present in tissues so very full of blood as the lung is, and the bacteria becomes active, it may produce very acute inflammation, bronchitis; pneumonia; unless interrupted it will go into an abscess."
Workmen, who labored side by side with the plaintiff for years, testified to his general good health, his steady employment, to freedom from coughing and any appearance of lung trouble or easy tiring, and of any complaints of the plaintiff in regard to these matters, prior to the first week in July 1936. These same workmen testified to his coughing, his loss of weight, general physical decline, easy tiring, complaints of ill health, complaints of pain in his lung after the extraction of his teeth, until the time came that he was unable to continue at work. Others gave similar testimony. He earned from 60 to 65 cents an hour. In answer to an hypothetical question based upon *Page 359
matters herein set out, Dr. Foster, who had also attended plaintiff, testified that he believed the lung condition of the plaintiff was the result of the tooth in his lung. Dr. Prouty, a specialist in X-ray diagnosis, examined the various pictures or skiagraphs which had been taken of plaintiff's right lung and testified as his witness. He had taken a posteroanterior picture of plaintiff's right lung at his office, on August 25, 1936. This showed nothing unusual and had no cloudy portions in it, although he testified that a foreign object might be observed in a lateral picture, which would not be disclosed in a frontal picture of this kind, where it might be obscured by other bony structures. Most of the pictures showed a consolidation or density of the tissues at the base of the right lung. Of Exhibits 3 and 4, lateral pictures taken at St. Luke's Hospital on March 25, 1937, prior to the expectoration of the tooth root, he testified:
"And in this film we saw a shadow, a small shadow of extra density, which, when asked if it might be a foreign body, we said it could be. * * * It is in the region of the right posterior or descending bronchus, or the right descending branch of the posterior portion of the right lung. I have now made a hole by means of a pin immediately to the back of the possible foreign object on Exhibits 3 and 4. Exhibits 5 and 6 are front and back pictures. They were also taken at St. Luke's Hospital. In examining them I do not find the same possible objects that I find in Exhibits 3 and 4. In the film known as Exhibit 4, which is a side to side X-ray, I see in the back portion, lower portion of the lungs, areas of infiltration; and in the region of the posterior branch of the descending bronchus there is a shadow of increased density, which may or may not be a foreign body. That is a separate density from the first density I spoke of — the consolidation or inflammatory condition. It could be areas of increased density from calcification, it might be fibrous, or superimposition of thickened bronchi, or there are a number of things it might be. I don't make a positive diagnosis of any one of these possibilities." *Page 360
He testified that Exhibits 10, 11, 12, 13, 14, and 15, all taken at the University Hospital, after the alleged coughing up of the root, "all show a consolidation in the lower part of the right lung, which might be due from tumor, lung abscess, pneumonia or an infection." It will be noted that in these later pictures he observed "no shadow of increased density" which appeared in the lateral pictures taken at St. Luke's Hospital prior to April 6, 1937, although Exhibits 10 and 15 were also lateral pictures. Under this record there is substantial evidence to warrant a jury in finding that the cause of plaintiff's injury was the presence of the root of the tooth in his right lung.
[2] The appellee, however, contends that the plaintiff failed to eliminate other possible and reasonable causes of the injury. What were the other causes suggested by the appellee? He urges that there is no proof that the object alleged to have been coughed up on April 6, 1937, and placed in the vial, and introduced as Exhibit 1, was the root of a tooth pulled on July 3, 1936, or even the root of a tooth. It is true that no doctor, dentist, or other competent expert testified that it was the root of a human tooth. But six or more lay witnesses so testified. Certainly the root of a human tooth is not an object of such substance, appearance, and unfamiliarity, that the opinion of a layman as to what it was should be disregarded as of no evidential weight or value whatsoever. Basing his statement upon the testimony of Dr. Prouty that the shaded portion of some of the X-ray films could be caused by calcification of the tissues, or scar tissue, counsel for appellee suggests that the object might have been a calcareous deposit. Under the doctor's testimony that was a possibility, but hardly a probability. After the root had been coughed up, the appellant's wife called the appellee, and he came to her home. The appellant showed the root to the appellee, and the latter took the root and made an outline of it on a piece of paper. He looked at appellant's teeth. He had some familiarity with them. If this object had appeared to his trained eye and practiced observation as a calcareous deposit, or something other than the root of a tooth *Page 361
from appellant's jaw, he would hardly have said to the appellant on leaving "we will see you through all this."
Appellee's counsel suggests that no one testified that they saw the root when it was spat into the can. To have seen it in the bloody mass of sputum would have been an impossibility. Suggestion is made that the appellant may have unknowingly sucked the root into his windpipe prior to July 3, 1936, or a piece of tartar from a tooth, or a piece of his gums infected with pyorrhea. Objects of that kind do not pass unknowingly into the windpipe unless the person is unconscious in general anesthesia. Another alleged cause of the lung trouble was the fact that appellant, while a barber, and occasionally afterwards sometimes resilvered mirrors; and stated that if the solution was too strong, or there was not proper ventilation, there might be fumes arise, but there is no intimation that he failed to take these proper precautions. Furthermore he had done none of this work for several years and there is no evidence nor inference that he ever suffered on account of it. After July 3, 1936, and during the time he was consulting various doctors in search of relief, he discussed with some whether the air in his place of employment might not be fouled with monoxide gas. There was no evidence that such was the fact. Some 18 or 20 years before he had been struck in the abdomen on the right side, "quite a ways below" the base of the right lung, with a piece of wood. An abdominal operation was necessary to relieve him. Appellee's counsel suggests that a bone splinter resulting from this injury might have lodged in the right lung. This is pure conjecture without the slightest basis of fact or of reason for it. There was testimony that an abscess of the lungs might be caused by almost any infected object which entered them. Granting this is true, there was no support for any such assumption. Fifteen years before the trial, Dr. Foster had treated him for sinus trouble. He had no treatments nor sinus trouble after that. We may have overlooked other suggested causes, but we are certain that there were none that could be classed as a probability, or that had any reasonable foundation. *Page 362
[3] The burden was upon the plaintiff to show causal connection between the negligence claimed and the injury. That is, that the cause was proximate. Both negligence and proximate cause are questions of fact for the jury if the evidence is of sufficient weight and character to warrant their submission. In a civil case they need be established only by the preponderance or greater weight of the evidence, and not beyond a reasonable doubt. And this is true whether the testimony be direct or circumstantial. No different rule is applied in the establishment of these facts than is ordinarily applied in the establishment of any other fact in a civil action. The rule respecting the quantum of proof necessary to establish a fact where the evidence is circumstantial has been variously stated by this court, but uniformly it has been to the same effect.
Rather than attempt to restate the rule we call attention to a few expressions on the subject. In Woodward v. Chicago R.I.
P.R. Co., 193 Iowa 516, 526, 185 N.W. 978, 982, is this language:
"It is our conclusion, and we hold, that, notwithstanding the fact that the record fails to show direct proof of a causal connection between the accident and the negligence charged, the proven facts and circumstances are such as to justify a reasonable inference that the negligence of the appellant was the proximate cause of the injury. This is all that the law requires."
As stated in McGee v. Jones County, 161 Iowa 296, 300, 142 N.W. 957, 959, 48 L.R.A., N.S., 141:
"If the circumstances proven were such as to render this reasonably probable and more probable than that it happened owing to some other cause, the jury was justified in so finding." In Tisher v. U.P.R. Co., 173 Iowa 567, 570, 155 N.W. 975, 976, we said: "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." In Hall v. C.R.I. P.R. Co.,199 Iowa 607, 621, 199 N.W. 491, 496, the *Page 363
court said: "Some of the cases put it this way: that the rule should never be extended so as to result in a failure of justice, where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other."
Without further quotation we merely call attention to some of the numerous cases in which the same rule is stated. See Breen v. Iowa Cent. Ry. Co., 163 Iowa 264, 272, 143 N.W. 846; Thompson v. Anderson, 217 Iowa 1186, 1193, 252 N.W. 117; Carpenter v. Security Fire Ins. Co., 183 Iowa 1226, 1233, 168 N.W. 231; First Nat. Bank v. Royal Indemnity Co., 193 Iowa 221, 186 N.W. 934; Dawson v. Bankers Life Co., 216 Iowa 586, 600, 247 N.W. 279; Lunde v. Cudahy Packing Co., 139 Iowa 688, 700, 117 N.W. 1063; Brown v. West Riverside Coal Co., 143 Iowa 662, 669, 120 N.W. 732, 28 L.R.A., N.S., 1260; Welsch v. Frusch L. P. Co.,197 Iowa 1012, 193 N.W. 427; Avise v. Interurban R. Co., 174 Iowa 592, 156 N.W. 807; Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492; George v. Iowa S.W. Ry. Co., 183 Iowa 994, 168 N.W. 322.
It is, of course, not sufficient to show that the negligence charged might fairly and reasonably have caused the injury, if the circumstances shown indicate an equal probability that it was due to some other cause. In Swaim v. Chicago R.I. P.R. Co,187 Iowa 466, 471, 174 N.W. 384, 386, this rule was thus stated:
"It is true that if, under all the proved circumstances, the conclusion that the injury was the proximate result of defendant's negligence is no more reasonable or probable or likely than that it was brought about by some other cause, for which the defendant is not responsible, then, of course, the plaintiff has failed to establish a fact without which he cannot recover."
See also Asbach v. Chicago B. Q. Ry. Co., 74 Iowa 248, 37 N.W. 182; O'Connor v. Chicago R.I. P.R. Co., 129 Iowa 636, 638, 106 N.W. 161; Neal v. Chicago R.I. P.R. Co., 129 Iowa 5, 8, 105 N.W. 197, 2 L.R.A., N.S., 905; Dingmon *Page 364
v. Chicago N.W.R. Co., 194 Iowa 721, 190 N.W. 393; Miller v. Hart-Parr Co., 165 Iowa 181, 144 N.W. 589.
With respect to the other suggested causes of plaintiff's injury which the appellee contends have not been excluded, we repeat that they either have no support in the record or they have been negatived. The appellant was not bound to disprove every suggested cause. As stated in Boles v. Hotel Maytag Co.,218 Iowa 306, 310, 253 N.W. 515, 517:
"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 of negligence by testimony so clear as to exclude every other possible theory."
Announcing the same rule are Berg v. Willett, 212 Iowa 1109, 1114, 232 N.W. 821; Kling v. Chicago M. St. P. Ry. Co.,115 Iowa 133, 88 N.W. 355; Swaim v. Chicago R.I. P.R. Co., 187 Iowa 466, 471, 174 N.W. 384; Duncan v. Fort Dodge Gas Electric Co.,193 Iowa 1127, 1133, 188 N.W. 865; Gordon v. Chicago R.I. P.R. Co., 146 Iowa 588, 594, 123 N.W. 762; Huggard v. Glucose Sugar Ref. Co., 132 Iowa 724, 109 N.W. 475; Bonjour v. Iowa Tel. Co.,176 Iowa 63, 72, 155 N.W. 286, 290; Buchanan v. Hurd Creamery Co., 215 Iowa 415, 246 N.W. 41; Olson v. Cushman, 224 Iowa 974, 979, 276 N.W. 777, 780. In the last cited case, the deceased was injured when a school bus in which he was riding overturned. Just how he was hurt he did not know. In sustaining a judgment for the administrator, speaking through Justice Mitchell, we said:
"In the case at bar we find Elmer Olson physically fit on the morning that he entered the bus. Within twenty or thirty minutes after the accident he complained of a pain back of his left ear. A little later on he complained again. That evening he told his mother, and she applied the remedies known *Page 365
to her. From then on until the hour of his death he was being treated by his mother and the physicians. The medical testimony eliminated other probable causes of a mastoid condition. Clearly, in view of such a record, the question was for the jury and the court was right in submitting it."
Our decision in that case fully supports what we have said herein.
[4] II. Under the record should the issue of the defendant's negligence have been submitted to the jury? The answer to this question depends largely upon whether the plaintiff was entitled to the aid of the res ipsa loquitur doctrine in proving his case. We say "largely" because there were admissions of the defendant which lend some assistance to the plaintiff. As heretofore stated, the plaintiff alleged no specific grounds, but alleged and bottomed his right to recover solely upon general negligence. So far as the pleadings were concerned, the doctrine was available to him. While proper pleading is a necessary step, it is of no avail, unless the character of the occurrence and the surrounding circumstances include certain essentials.
The essentials, as gathered from various authorities, are set out in Orr v. Des Moines Elec. Light Co., 207 Iowa 1149, 1154, 222 N.W. 560, 562, as follows:
"This rule is peculiar to the law of negligence. The inference or presumption raised under this doctrine becomes the substitute for specific proof of acts or omissions constituting negligence. It only permits the jury to draw a reasonable inference from circumstances which, prima facie, in the ordinary course of things, are generally indicative of negligence. It dispenses with the actual evidence in the first instance, or simply provides one method by which the plaintiff may prove the negligence charged against the defendant. It is only applicable, however, where, under the existing circumstances, direct evidence is absent and not readily available. 45 Corpus Juris 1206, Section 774. *Page 366
"Generally speaking, this rule is applicable when the thing causing the injury is shown to be under the control of the defendant and the accident is such as, in the ordinary course of business, would not have happened if reasonable care had been used. 1 Shearman Redfield on Negligence (6th Ed.), Section 59, says:
"`When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.'
"The presumption under these circumstances arises from the doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experiences of the past. What happened in the past under the same conditions will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown. Judson v. Giant Powder Co., 107 Cal. 549 (40 P. 1020, * * *).
"`* * * the doctrine is applicable only where the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in their very nature they carry a strong inherent probability of negligence, and in the light of ordinary experience would presumably not have happened, if those who had the management or control exercised proper care. * * *' 45 Corpus Juris 1211. * * *
"It is evident from the foregoing that the question of whether or not this doctrine should be applied in any given case depends wholly on the fact situation; hence no ironclad rule can be laid down as to when said doctrine shall be applied."
We set out two other comments, by eminent authorities, throwing light upon the rule:
"Mr. Justice Holmes has said: `"Res ipsa loquitur," which is merely a short way of saying that, so far as the court can *Page 367
see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case. * * *' Graham v. Badger, 164 Mass. 42, 41 N.E. 61.
"Dean Wigmore, after stating the conditions of the rule, adds that `the particular force and justice of the presumption regarded as a rule throwing upon the party charged the duty of producing evidence consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him, but inaccessible to the injured party.' 4 Wigmore on Evidence, Sec. 2509." Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228, 231.
The importance and necessity of requiring the party charged with negligence, who, alone, can enlighten the tribunal, to disclose the facts, in the trial of a case, like the one before us, has been commented upon by various courts. In Meadows v. Patterson, 21 Tenn. App. 283, 100 S.W.2d , 417, 419, the Tennessee Court of Appeals said:
"In no other way, under usual and ordinary conditions, could the patient obtain redress for such an injury, and it is no hardship upon the defendant to explain, as he alone can, how the injury occurred. If innocent of any wrong, the door of escape is left open."
The Montana court in Maki v. Murray Hospital, 91 Mont. 251, 262, 7 P.2d 228, 231, said:
"While it is necessary, in every personal injury case, to prove negligence, courts, generally, recognize the fact that persons are often injured in such manner, or through such instrumentalities, that it would be impossible to prove the facts showing negligence, and yet by common knowledge and experience, it is clear that such injury would not have been sustained *Page 368
ordinarily, had the responsible party not been negligent. Under such circumstances the application of the ordinary rules of evidence would work manifest injustice and render the maxim `for every wrong there is a remedy' * * * nugatory by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them. Consequently, in order that justice may prevail, in such cases the courts, generally, apply the doctrine of res ipsa loquitur."
The Circuit Court of Appeals, Eighth Circuit, in Vergeldt v. Hartzell et al., 1 F.2d 633, 635, an action against the defendant dentists for personal injuries suffered through negligence in the operation of a polishing drill, speaking through Judge Scott, of the Northern District of Iowa, sitting with Circuit Judge Kenyon and District Judge Amidon, after quoting section 2509 of Wigmore on Evidence, part of which has heretofore been set out, said:
"It would seem to us that the instant case meets all of the requirements. The apparatus was such that no injurious operation or result would be expected unless from careless user. Both inspection and user was at the time in the exclusive control of Dr. Werrick. According to the plaintiff's testimony the injury happened without any voluntary action on her part at the time, and certainly Dr. Werrick's opportunity to know the true cause was greatly superior to that of the plaintiff."
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. Basham v. Chicago Great Western R. Co., 178 Iowa 998, 154 N.W. 1019; Tuttle v. Railroad Co., 48 Iowa 236; Brown v. Des Moines Bottling Works,174 Iowa 715, 156 N.W. 829, 1 A.L.R. 835; Anderson v. Fort Dodge Street Ry. Co., 208 Iowa 369, 266 N.W. 151; Larrabee v. Des Moines Tent Awning Co., 189 Iowa 319, 178 N.W. 373; Crozier v. Hawkeye Stages, et al., 209 Iowa 313, 228 N.W. 320; Aita v. John Beno Co., 206 Iowa 1361, *Page 369
222 N.W. 386, 61 A.L.R. 351; Orr v. Des Moines Elect. Light Co., 213 Iowa 127, 238 N.W. 604; Boles v. Hotel Maytag Co.,221 Iowa 211, 265 N.W. 183; Van Heukelom v. Black-hawk Hotels Corp.,222 Iowa 1033, 1042, 270 N.W. 16; Olson v. Cushman, 224 Iowa 974, 276 N.W. 777; Peterson v. De Luxe Cab Co., 225 Iowa 809, 281 N.W. 737; Harvey v. Borg, 218 Iowa 1228, 257 N.W. 190.
[5] The appellee contends that the rule of res ipsa loquitur has no application in an action in which a patient seeks to recover damages from a physician, surgeon or dentist, for personal injuries alleged to have been caused by his negligence in serving the patient. One of the reasons given is that such a professional man when employed, broadly speaking, is required to exercise only that degree of knowledge, care, skill, and diligence, ordinarily possessed and exercised by members of his profession, in the same general line of practice, in like communities, under similar circumstances. He does not warrant a cure, nor guarantee the best possible result. And the fact that he attains neither, in any particular case, is not, in itself, ordinarily, evidence of negligence, or want of knowledge, skill or diligence on his part, nor does it afford any presumption thereof. That is the general rule as it has been stated by this court. Piles v. Hughes, 10 Iowa 579, 582; Berg v. Willett,212 Iowa 1109, 232 N.W. 821; Hair v. Sorensen, 215 Iowa 1229, 247 N.W. 651, and cases cited therein. The rule is based upon sound reasons. As stated by Woodward, J., in McCandless v. McWha,22 Pa. 261, and quoted by Justice Cole, in Smothers v. Hanks,34 Iowa 286, 291, 11 Am. Rep. 141:
"`He deals not with insensate matter like the stone mason or bricklayer, who choose their materials and adjust them according to mathematical lines, but he has a suffering human being to treat, a nervous system to tranquilize, and a will to regulate and control.'"
He takes his patients as they come to him, with all of their physical and mental infirmities, conditions, conduct, and *Page 370
temperamental idiosyncrasies, for none of which he is responsible, but which may, and probably will, hinder or defeat the very best professional service. The most capable surgeon may place and retain the parts of the fractured bone in perfect apposition, but a nonunion may result because there may be a deficiency of callus secretion. O'Grady v. Cadwallader, 183 Iowa 178, 186, 166 N.W. 755.
The rule of res ipsa loquitur does not apply, because one of its essentials is lacking — the physician or surgeon does not have complete and exclusive control over the instrumentality with which he is working.
[6] It is also urged by the appellee, that whether a doctor of medicine, surgery, or dentistry exercised the requisite care or skill in any case cannot be determined by the testimony of laymen or nonexperts, or be left to the judgment of a jury or court, unaided by expert testimony, but that only those learned or experienced in the profession may testify as to what should or should not have been done. This court has spoken to that effect, and that is ordinarily the rule. Nelson v. Sandell, 202 Iowa 109, 209 N.W. 440, 46 A.L.R. 1447, and cases cited. But there are exceptions to the rule of evidence just stated, and also exceptions to the general rule, just previously stated, respecting the application of the res ipsa loquitur rule to cases of professional negligence or incapacity. Respecting the latter, this court in Orr v. Des Moines Elect. L. Co., 207 Iowa 1149, 1155, 222 N.W. 560, 562, stated that:
"* * * the question of whether or not this doctrine should be applied in any given case depends wholly on the fact situation;hence no ironclad rule can be laid down as to when said doctrineshall be applied." (Italics ours.)
With respect to the rule of evidence referred to, this court has also spoken. In Evans v. Roberts, 172 Iowa 653, 658, 154 N.W. 923, 925, it appears that the surgeon, in removing adenoids from a child, negligently and unskillfully cut off a portion of her tongue in the use of an instrument known as a *Page 371
"gag." In sustaining a judgment for plaintiff on a verdict of the jury, the court, speaking through Justice Weaver, said:
"This is not the ordinary case where a practitioner is sought to be charged with liability for alleged improper treatment of some bodily ailment or infirmity. He was employed to remove the adenoids from the plaintiff's throat, and there is neither claim nor proof that he did not successfully remove them. His negligence, if any, was in failing to take due care to avoid injury to the undiseased parts in the vicinity of which the operation was performed; and while it may be true that, had the operation upon the adenoids been unsuccessful and disappointing, no inference of negligence or want of skill would arise therefrom, it does not follow that this rule applies with the same force to an injury done by him to sound and undiseased parts of the plaintiff's person which he was not called upon to treat and did not pretend to treat. If a surgeon, undertaking to remove a tumor from a person's scalp, lets his knife slip and cuts off his patient's ear, or, if he undertakes to stitch a wound on the patient's cheek, and, by an awkward move, thrusts his needle into the patient's eye, or, if a dentist, in his haste, leaves a decayed tooth in the jaw of his patient and removes one which is perfectly sound and serviceable, the charitable presumptions which ordinarily protect the practitioner against legal blame where his treatment is unsuccessful, are not here available. It is a matter of common knowledge and observation that such things do not ordinarily attend the service of one possessing ordinary skill and experience in the delicate work of surgery. It does not need scientific knowledge or training to understand that, ordinarily speaking, such results are unnecessary and are not to be anticipated, if reasonable care be exercised by the operator. When they do happen, then proof of other facts and circumstances having any fair tendency to sustain the charge of negligence will be sufficient to take the question to the jury, and this may be true even though, if the alleged negligence pertained solely to the treatment of *Page 372
the diseased parts, the court might be inclined to dispose of it as a matter of law. * * *
"That there is evidence of negligence, in addition to the fact of the injury, can hardly be questioned. Defendant did not see fit to testify in the case; hence the trial court and jury and this court are without the assistance which might possibly have been furnished by his explanation of the matter. * * *
"If we understand counsel correctly, it is their contention that negligence in cases of this nature can be established only upon the testimony of competent experts. What may be the rule where the sole question is upon the treatment of the diseased part and whether it was in accordance with approved and medical standards, we need not here decide; for, as we have already noted, this is not a case of that kind. The jury here did not have to consider whether the method of the defendant in removing the adenoids was correct or scientific, but whether the unintentional wounding of plaintiff's tongue was occasioned by lack of reasonable care on his part. This, it would seem very clear, involves no question of science or necessarily of expert knowledge."
The decision has been widely and approvingly cited.
In Kopecky v. Hasek Bros. et al., 180 Iowa 45, 49, 162 N.W. 828, 830, the defendant dentist, in preparing a tooth for filling, negligently punctured the wall of the root with his drill, and the filling protruded into the surrounding tissues, causing a serious abscess. Another dentist later removed the tooth and discovered the condition. He testified that the puncture had apparently been made with an instrument, and that in killing the nerve in a tooth a dentist should avoid puncturing the root. In that case, as in the one before us, the defendants made no attempt to acquit themselves of negligence, but made a motion to direct a verdict at the close of plaintiff's testimony, which motion was sustained. In reversing, the court said:
"Counsel's argument in support of the judgment below is confidently based upon the proposition that the evidence fails *Page 373
to show any negligence or lack of ordinary skill on the part of defendants, and this seems to be based on the theory that, in order to recover, there must be direct testimony that they in some way departed from the `recognized rules and standards of their profession.' But this is not the rule. Negligence may be found from facts and circumstances from which the want of due care is a reasonable inference, as well as from direct evidence by experts or others. If an injurious result is shown to have followed the treatment, such result as does not ordinarily attend or follow when due care and skill have been exercised by a competent operator, an inference of negligence is justified, in the absence of explanation, and if a jury so finds from such a showing, its verdict thereon is not without support. We had occasion to discuss this subject in the recent case of Evans v. Roberts, 172 Iowa 653, where the rule above stated was applied. See also Reynolds v. Smith, 148 Iowa 264. We are content to reaffirm the principles upheld in those cases, as well as in numerous precedents of like import which we will not prolong this opinion to cite or discuss."
Most people have had teeth extracted at some time. While they dread going to a dentist, ordinarily there are no untoward results, unless the tooth is impacted, or is abnormally rooted, the bone is diseased, or there is infection in the mouth, or there is some contributing cause other than the work itself. The record discloses no such complication in this case. There was no question of diagnosis, or of involved treatment. No X-rays were taken. It was a mechanical job. It is common knowledge that, in extracting a tooth or its root, neither ordinarily passes into the trachea and thus into the lungs. In fact such an occurrence is most rare. In the words of the authorities it is a matter of such rare occurrence and unusual character, that its very happening carries with it a strong inherent probability of negligence. For the purpose of this case the defendant's testimony establishes this fact. He testified:
"I claim to be an expert as a teeth extractor. I have made *Page 374
a specialty of extracting teeth since 1919. I don't think there are many who extract more teeth per year than I."
The wife of the plaintiff testified:
"A day or two after my husband coughed up the tooth, I called up Dr. Moravec by phone. Told him who I was and asked him if he had ever had anything happen in his office such as the root of a tooth going down into a man's lung. He said that such things donot happen in this office."
[7] We have then all of the instrumentalities, including the unconscious body of the plaintiff, under the complete and exclusive control of the defendant. We have an occurrence which, according to general knowledge, and the defendant's own admission, does not happen in the ordinary course of teeth extraction, if reasonable care is used. We have also a record which might reasonably warrant a jury in finding that it did happen. There is no explanation by the defendant, either that it could not have happened, or that if it did happen it was through no fault of his, or was the fault of the plaintiff. The plaintiff, because of his unconscious condition has no knowledge of what the defendant did or failed to do. Under these circumstances the rule of res ipsa loquitur is applicable and a jury would be warranted in inferring therefrom that the root of the tooth passed into the plaintiff's right lung, through the failure of the defendant to exercise proper care or skill.
The defendant filed simply a general denial. He does not plead a justification or excuse for his act, or that what he did complied with the usual practice of his profession. In James v. Robertson, 39 Utah 414, 117 P. 1068, 1073, a judgment was permitted against the defendant doctor, for carelessly dropping a solution of carbolic acid in the plaintiff's eye, after removing a cyst from the eyelid. The court said:
"In this connection it is contended that there is no expert evidence upon which the jury could base a finding that the appellant had not exercised that degree of skill and care which *Page 375
is ordinarily exercised by those engaged in his calling in like or similar cases. It will be observed that this case is somewhat peculiar, in that the injury complained of did not really arise out of any want of skill on the part of the appellant in performing the operation on respondent's eyelid, in so far as the operation is concerned. The injury to the eye was caused by an act which did not necessarily require any more than the skill, knowledge, and experience of any ordinarily prudent person. If appellant permitted a solution of carbolic acid to come in contact with the cornea of respondent's eye, without any necessity therefor, and of such strength as would injure the eye, he might be found guilty of negligence. * * *
"It is true, as appellant's counsel suggests, that in order to authorize a finding that one who is following a profession or calling requiring special skill, knowledge, and experience is guilty of negligence or unskillfulness it is necessary to furnish some proof from some source possessing the required skill, knowledge, and experience that the acts complained of did not measure up to the standard of skill, knowledge, and experience required in the particular calling or profession. In this case, however, the principle cannot be applied to its full extent, for the reason that appellant did not come into court justifying his act or conduct; that is, he does not claim that, if he permitted a solution of carbolic acid to come in contact with the cornea of respondent's eye, in doing so his conduct was justified by the ordinary and usual methods which are pursued by those of his profession under like circumstances. In other words, appellant does not claim protection because he has conformed to the standards of his profession. What he really contends for in this connection is: (1) That no part of the solution he used was through any act of his permitted to enter respondent's eye, and hence he was not negligent in that regard; (2) that, although it were conceded that some of the solution did enter respondent's eye, yet the solution was not of sufficient strength to produce the injury complained of; and (3) that the result to the eye was produced by a cause or causes for which he was *Page 376
not responsible. It is apparent that most, if not all, of theconclusions involved in the foregoing propositions do notnecessarily call for expert evidence."
See also Bennett v. Murdy, 61 S.D. 471, 249 N.W. 805, where there was judgment for plaintiff, for permitting a piece of the turbinate bone from the nose to pass into the lung while being removed.
[8] It has seldom been questioned, that where the act of omission or commission, upon the part of the surgeon, has been plainly negligent, as where a sponge, gauze, an instrument, or needle has been left in the body, the rule of res ipsa loquitur applies, and that it is also unnecessary to show by expert testimony that such an act does not comport with the required standards. Reynolds v. Smith, 148 Iowa 264, 127 N.W. 192; Evans v. Munro, R.I., 83 A. 82; Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L.R.A., N.S., 611; Ales v. Ryan, 8 Cal. 2d 82, 64 P.2d 409; Sellers v. Noah, 209 Ala. 103, 95 So. 167; Hall v. Grosvenor, 267 Ill. App.? 119; Armstrong v. Wallace, 8 Cal. App. 2d 429,47 P.2d 740; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Le Faive v. Asselin, 262 Mich. 443, 247 N.W. 911; Funk v. Bonham,204 Ind. 170, 183 N.E. 312; Smith v. Zeagler, 116 Fla. 628, 157 So. 328; Moore v. Ivey, Tex. Civ. App., 264 S.W. 283; Ernen v. Crofwell,272 Mass. 172, 172 N.E. 73; Alonzo v. Rogers, 155 Wash. 206,283 P. 709, 21 R.C.L. 388.
In other cases where the negligence was of a different type but clearly not according to good practice the holdings have been to the same effect. Weintraub v. Rosen, 7 Cir., 93 F.2d 544; Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535 (where the patient was burned in some way on the breast, in an abdominal operation); Covington v. James, 214 N.C. 71, 75, 197 S.E. 701 (where one bone in the lower leg was broken in setting a fracture in the other one).
In Vergeldt v. Hartzell, 8 Cir., 1 F.2d 633, 635, already referred to herein, wherein the dentist injured the plaintiff in using a polishing drill, the court after referring to the fact *Page 377
that the Wisconsin court, in Vale v. Noe, 172 Wis. 421, 179 N.W. 572, had held that the res ipsa loquitur doctrine did not apply in a similar case, which holding was followed by the trial court, said:
"We are not prepared to follow the trial court to this conclusion. While the facts in Vale v. Noe, supra, agree quite closely to the facts in the instant case, the brief notice given by the Wisconsin court to the doctrine under consideration is not to us convincing. No authority was cited by the court in that case and none is cited in the briefs of counsel here which seem to sustain such conclusion.
"It will be observed that this is not an action in which is drawn in question through diagnosis, method or manner of treatment, or operation by a physician or surgeon. The theory of plaintiff's allegation and brief in support thereof is, not that the defendant's treatment or operation was unprofessional or below standard or that the defendant was unskillful in his work, but that the defendant was negligent and failed to observe reasonable care while performing the operation, and by reason thereof an untoward act occurred producing a positive and independent injury. The position occupied by the plaintiff at the time, and the superior opportunity of the defendant to observe and know the real cause of the accident, taken in connection with the accident itself and the apparent involved circumstances, seems to us to make the case one to which the rule res ipsa loquitur is applicable."
After referring to the case of Evans v. Roberts, 172 Iowa 653, 154 N.W. 923, supra, the court continued:
"The very careful opinion of the late Chief Justice Weaver in that case draws the distinction between the two classes of cases we have suggested. He was discussing a case in which a surgeon was operating for the removal of adenoids. One of the appliances slipped, and the surgeon inflicted a very severe wound with his instrument. * * *
"We again agree with the Iowa court in the distinction *Page 378
drawn between cases involving the merits of a diagnosis and scientific treatment and cases where during the performance of surgical or other skilled operations an ulterior act or omission occurs, the judgment of which does not require scientific opinion to throw light on the subject."
The reasoning in the Vergeldt case is followed in Brown v. Shortlidge, 98 Cal. App. 352, 277 P. 134, a case in which a surgeon in placing a gag in a child's mouth preparatory to removing her tonsils and adenoids, knocked out two of her teeth.
Coming to cases more closely related by their facts to the case at bar, we call attention to the case of Kelly v. Colton, 1 Robertson's City Court Reports, 439 (Marine Court of the City of New York). The defendant dentists were sued for damages, for negligently permitting a tooth to pass into plaintiff's lungs in extraction. It was coughed up four weeks later. In holding that the happening itself was prima facie evidence of negligence, the court said:
"They knew that the plaintiff, while under the influence of the anaesthetic, had no control of his faculties; that they were powerless to act, and that he was unable to exert the slightest effort to protect himself from any of the probable or possible consequences of the operation which they had undertaken to perform. He was in their charge and under their control to such an extent that they were required to exercise the highest professional skill and diligence to avoid every possible danger, for the law imposes duties upon men according to the circumstances in which they are called to act. In this case skill and diligence must be considered as indissolubly associated. The professional man, no matter how skillful, who leaves an essential link wanting or a danger unguarded in the continuous chain of treatment is guilty of negligence, and if the omission results in injury to the patient, the practitioner is answerable.
"The defendants were employed to take the diseased tooth out; instead of doing which they allowed part of it to go down *Page 379
the plaintiff's throat. This was out of the ordinary course of treatment, and how such an unusual result was brought about was a fact peculiarly within the knowledge of the defendants, which they were required to explain, and it was for the jury to say whether their explanation was satisfactory."
In Toy v. Mackintosh, 222 Mass. 430, 110 N.E. 1034, 1035, Ann. Cas. 1918C, 1188, action was brought for damages for the negligence of the defendant dentist in permitting an extracted tooth to lodge in plaintiff's lungs. The evidence disclosed that 9 weeks after he left the dentist's office he coughed up a tooth which he produced in evidence. His coughing was immediately thereafter relieved. The court held "that the question whether the defendant was negligent in permitting the tooth to be inhaled by the plaintiff when he was in an unconscious condition was for the jury."
In Nelson v. Parker, 104 Cal. App. 770, 286 P. 1078, the defendant dentist while extracting the tooth of a 7-year-old boy, on February 18, 1918, negligently let an extracted tooth pass into his lungs. He coughed it up in October 1924. Judgment for the plaintiff was affirmed. The court held that expert testimony was not necessary respecting the proper care under such circumstances.
In Wolfe v. Feldman, 158 Misc. 656, 286 N.Y.S. 118, 121, recovery was allowed plaintiff for injuries suffered while under an anesthetic, from the negligence of an expert teeth extractor. The rule of res ipsa loquitur was held applicable. Benson v. Dean, 232 N.Y. 52, 58, 133 N.E. 125. The court said:
"For defendant's failure to satisfactorily explain the absence of his negligence for his failure to observe the degree of care necessary under the circumstances, plaintiff should have judgment."
In Bollenbach v. Bloomenthal, 255 Ill. App. 305, plaintiff was placed under a general anesthetic, and in extracting a tooth that had an amalgam crown, that portion passed into the lung of the plaintiff and was coughed up about 3 months later. The *Page 380
res ipsa loquitur rule was held applicable. The court commented on the fact that the plaintiff was helpless, and had no knowledge of what took place and was under the complete control of defendants. On appeal (341 Ill. 539, 173 N.E. 670, 672), the supreme court reversed the trial court for an error in an instruction stating the effect of the presumption raised by the res ipsa loquitur rule, and for the further reason that because of certain matters the dentist did not have complete control of the instrumentalities, the rule did not apply. While the facts relied upon for the latter holding seem to the writer to be of little persuasive force, the court held that the occurrence made a prima facie case, saying:
"No witness, either lay or expert, testified that anything done by Dr. Bloomenthal in extracting plaintiff's tooth was negligent or unskillful, or that he had omitted to do anything which a reasonably careful and skillful dentist would have done under the same or similar circumstances, or that in the exercise of due care and skill he should have known that a fragment of tooth and filling had gone down plaintiff's throat. This explanation by the defendants tending to show that the injury complained of, though unusual, was not due to any lack of care on their part, was sufficient to overcome the prima facie case of the plaintiff and rebut all presumptions of negligence, as such presumptions vanish when contrary evidence is produced."
The error of the trial court in the case before us was in not submitting the case to the jury upon the negligence inferred under the rule, and thus require the defendant to go forward with his testimony in rebuttal.
In Ellering v. Gross, 189 Minn. 68, 248 N.W. 330, the injury was caused by the operation of a polishing drill, in cutting the flesh at the base of the tongue. The court sustained a judgment for plaintiff, and followed the reasoning and the rule of the Vergeldt case and Evans v. Roberts, 172 Iowa 653, 154 N.W. 923, both referred to herein. *Page 381
In Barham v. Widing, 210 Cal. 206, 291 P. 173, judgment was allowed against a dentist for improper disinfection. Expert testimony was held not necessary to establish such negligence.
In Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285, 289, a malpractice case, the court quoted with approval from Herzog's Medical Jurisprudence as follows:
"`In many other cases it has been held that mere proof of a mistake or poor results does not itself prove malpractice, butwhere the injury is received while the patient is unconscious,the doctrine commonly is held to apply because under suchcircumstances the patient would not be able to testify as to whathad happened, whereas the physician could.'" (The italics were supplied by the North Carolina court.)
In Yarrington v. Pittenger, 149 A. 347, 8 N.J. Misc. 143, and in McGehee v. Schiffman, 4 Cal. App. 50, 87 P. 290, recovery was allowed where a tooth went into the lung after extraction, but there was direct evidence. See also Eichholz v. Poe, Mo. Sup., 217 S.W. 282, and Hill v. Jackson, 220 Mo. App. 1302, 290 S.W. 1012.
Appellee has cited the following cases, and we have read them all, and others of like import. In our judgment they are not applicable, or they can be distinguished. Ewing v. Goode, C.C., 78 F. 442, 444, was an eye operation having to do with what the eminent Judge Taft describes as "the mysterious and dread disease of glaucoma, with respect to which a layman could have no knowledge at all." Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, was a bone fracture case. Stemons v. Turner, 274 Pa. 228, 117 A. 922; Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329, 57 A.L.R. 262, were all actions for X-ray burns. There is an unhappy discord among the authorities as to whether the res ipsa loquitur rule applies to such cases. This court has not definitely passed upon it, but see Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334; Rulison v. X-ray Corp., 207 Iowa 895, 223 N.W. 745; Shockley v. *Page 382
Tucker, 127 Iowa 456, 103 N.W. 360. The cited case of Miller v. Toles, 183 Mich. 252, 150 N.W. 118, L.R.A. 1915C, 595, was a complicated foot injury. Furthermore Michigan cases have little application as the res ipsa loquitur rule is not permissible in that state. Dunbar v. Adams, 283 Mich. 48, 276 N.W. 895. The court referred to that fact in Loveland v. Nelson, 235 Mich. 623,209 N.W. 835, but stated that the court had uniformly held that negligence may be established by circumstantial evidence, and permitted a recovery by plaintiff where a dentist had injected lysol into her gums instead of an anesthetic. Tady v. Warta,111 Neb. 521, 196 N.W. 901, and McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870, are cited but the facts distinguish them.
Krueger v. Chase, 172 Wis. 163, 177 N.W. 510, was an action against a dentist for negligence in permitting particles of a tooth and filling to enter the lungs. There was a judgment for plaintiff which was reversed. The case was fully tried with expert testimony on each side. The court held that notwithstanding there was a conflict in the evidence, there was not sufficient evidence of negligence to go to the jury. The court held that the question of negligence was one of expert testimony. In Cross v. Albee, 250 Mass. 170, 145 N.E. 45, the facts and the holding were like those in the Krueger case. Appellee cited the case of Koelzer v. Florence, an Ohio case, from the Circuit Court of Appeals in Ohio, decided March 23, 1925, but did not give the report. According to appellee's statement there was a judgment for the defendant that the res ipsa loquitur rule did not apply to a case where a dentist permitted a tooth to enter the lungs in extracting it. After considerable search we were unable to find the case.
While there is support for the appellee's contention upon the proposition discussed in division II of this opinion, we are satisfied that the res ipsa loquitur rule is applicable to the case, and that this position is supported by the sounder reasoning and the greater weight of authority.
It is our judgment that both the issue of negligence and of proximate cause should have been submitted to the jury. *Page 383
Our decision is limited to the case before us. Neither does the court intend by anything said herein to express any view as to the weight of the evidence, nor the liability of the defendant. The judgment is reversed and remanded. — Reversed and remanded.
SAGER, RICHARDS, STIGER, and OLIVER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434824/ | This case is an echo of the work of certain gangsters in the peaceful city of Fort Dodge, Iowa. Three persons, to wit, the defendant, Frank Bittner, his accomplice, Casey Navin, and the deceased, George McIntire, were professional 1. INDICTMENT gamblers and bootleggers. A fourth party, known AND as Red Watson, whom counsel for defendant terms INFORMATION: "a professional gunman from Omaha," was brought issues, onto the scene of action by Bittner and Navin, proof, and for the sole purpose of acting with the two men variance: in the perpetration of a robbery of George permissible McIntire, the deceased. It was the imported theory of gunman, Watson, who fired the fatal shot, while conspiracy, the three men were acting in concert to and aiding accomplish the robbery aforesaid. Navin was and first arrested, and subsequently pleaded guilty abetting. to the murder, and received a life sentence. Red Watson decamped on the same evening of the shooting, to wit, May 1, 1927, and his whereabouts has since been unknown. We deem it unnecessary to detail at this point the record facts, for the special reason that the sufficiency of the evidence to sustain the verdict is not in question.
I. The appellant questions the theory of the trial of this case, and predicates reversible error on certain given instructions involving the challenged theory. In brief, the appellant argues that Bittner was tried for conspiracy. This contention cannot be sustained, under the law or under the facts of this case. A person accused as principal of any felony may be a co-conspirator, and the State may, in the prosecution of said felony, avail itself, as a matter of evidence, of a conspiracy theory, but at the same time invoke the theory of aider and abettor in the commission of the crime charged. See State v.Mickle, 199 Iowa 704. The defendant Bittner, in the instant case, was guilty of murder in the first degree, under the record, or not guilty of any crime. The cause was so submitted, and no included offenses were mentioned in the instruction. This was correct. It is true that the guilt of a person who aids and abets the commission of a crime must be determined from the facts which show the part he had in it, and does not depend upon the degree of another's guilt. State v. Smith, 100 Iowa 1. It is also true that all persons concerned in the commission of a crime, whether they directly committed the act constituting the offense or aided and abetted *Page 112
its commission, may be jointly or severally indicted as principals. Section 12895, Code, 1927; State v. Carlson, 203 Iowa 90. In the Carlson case it is said:
"This is also true in proving the commission of a crime on the theory of conspiracy, or the crime of conspiracy itself. [Citing cases.]"
The instant indictment says nothing about a conspiracy. SeeState v. Munchrath, 78 Iowa 268. It was not necessary so to do, to make evidence of a conspiracy competent. The indictment does not name any other person except the defendant Bittner. It was not necessary to name any of the other parties in said indictment. It is said in State v. Wolf, 112 Iowa 458:
"It is undoubtedly true that one who conspires with another to do an unlawful act is equally as guilty as he who actually does the act, but it is not always true that one who aids and abets another is equally as guilty as the principal. The guilt of the former must be determined alone from the part he took in the transaction."
In the case at bar, the instructions given by the court to the jury are not so blended in the language used that it may be said that the jury was misled as to the court's meaning, and therefore the defendant cannot claim prejudice. It would be difficult, indeed, for a trial court, in the light of the evidence before us, to avoid all reference to the conspiracy evidence relating to the three parties who were participes criminis in the crime charged. The jury was fully warranted, under the evidence, on either theory, in returning a verdict of guilty as charged, and it may be said, in addition, that the defendant Bittner was fully protected by the court's instructions in relation to the conspiracy theory, and in one place it is said:
"But if there was no connection between the acts of the defendant, Frank Bittner, and the acts of Red Watson and Navin, as to the shooting, or if the attempted robbery, if one there was, upon the said George McIntire was not jointly done or participated in or countenanced by the defendant, Bittner, but the said Bittner was acting independently of and unconnected with Red *Page 113
Watson and Austin E. Navin, then the defendant, Bittner, is not liable therefor, and your verdict must be `not guilty.'"
The murder charged was under Section 12911, which reads:
"All murder * * * which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * is murder in the first degree * * *."
It was this species of murder with which the court was dealing in the instant case. The evidence clearly discloses that there were three persons involved, although but one fired the shot when the holdup of McIntire was attempted; and it is evident that, after McIntire fired one shot in defense of himself and his property, Watson fired two shots, and fled the scene. It was the defendant Bittner who took Watson by auto to and from the scene of the murder at Fort Dodge, from which point Watson rode in his own car to Des Moines, and from which place he has not been traced. Bittner's accomplice, Navin, without any inducement or hope of reward, told the whole story of the crime, and his story is corroborated in many of the material facts and acts by other witnesses, and even in part by Bittner himself, who voluntarily told his story to the grand jury of Webster County. No question arises in this case as to the corroboration of this accomplice.
It is the claim of the defendant Bittner that he knew nothing of the purported scheme or conspiracy which the State attempted to prove, and did prove, but that he acted independently, and was not connected with Red Watson or Navin. The trial court, as heretofore pointed out, recognized his claim, and submitted same to the jury. In a subsequent instruction, in defining the term "robbery," it is said:
"An attempt to perpetrate a robbery means that the defendant did an act or acts toward the commission of a robbery for that purpose, and with that intent, but with a failure in the perpetration thereof."
This was an aiding and abetting instruction, and it was the province of the jury to determine, under all of the facts and circumstances, as disclosed by the evidence, whether the defendant Bittner was to be believed, or whether, pursuant to a conspiracy, *Page 114
he actually aided or abetted the unlawful act resulting in the death of McIntire. The jury, under the instructions when read as a whole, could not, in our judgment, misunderstand or misconstrue the applicable law of the case, as given by the trial court.
II. Complaint is made of Instruction No. 16, relative to the consideration to be given what is termed "confession of facts" made by the defendant. It appears that, after Bittner was arrested, Myron Tuller, the sheriff of Webster 2. CRIMINAL County, had a conversation with Bittner, at a LAW: trial: time when the two men went down to the river to instruc- find the gun which Bittner said he threw out of tions: his auto on the night of May 1st, and that the admissions. sheriff was informed by Bittner that he (Bittner) told "the damned fool [meaning Red Watson] not to hurt him [meaning McIntire]." It is also shown that Hi Yackey, a special state officer, working under the direction of the attorney-general of Iowa, was told by Bittner that he (Bittner) and Casey Navin and Red Watson were in the alley (where Bittner's Cadillac stopped immediately prior to the shooting of McIntire), and that he told Watson at that time not to hurt McIntire. The record also discloses that Lyle Tuller, son of the sheriff, and a deputy sheriff, overheard a conversation between Bittner and Clarence Darrow, the well known defender of persons accused of crime, but not of counsel in this case. The first thing he heard Darrow say to Bittner was: "How did they secure such a complete case against you?" Bittner answered: "Casey Navin has spilt everything. He was with us that night." These statements do not classify under the technical legal term, "confession," but they were admissions, or, as the trial court termed them, "statements or confessions of fact." They did tend to corroborate Navin as to some of the material facts stated by him to the trial jury, and these statements constituted the basis for the trial court in giving an instruction relative to these statements or confessions of fact. In this case it may be noted that Bittner, as a part of his defense, claimed that promises and inducements were held out to the defendant and Navin to secure these admissions or confessions of facts, and therefore that they were not freely and voluntarily given. Under the challenged instruction (No. 16), the court simply gave to the jury the law relative to such a situation, and told the jury that such a statement or confession of fact would *Page 115
not warrant a conviction, unless accompanied by other evidence that the crime had in fact been committed as charged. The jury was further told that these statements "are to be examined by you with care, and it is for you, and you alone, to determine what weight shall be given to them, and they cannot be considered by you unless you find from the evidence, beyond a reasonable doubt, that the defendant made the statements constituting the alleged confession of facts, and that they were made by the defendant voluntarily and of his own free will, and with a full and perfect knowledge of the nature and consequences of the said confession of facts, if such there was." The trial judge, in the instant case, must have had before him the opinion in State v. Brown,48 Iowa 382. The declared law of the case, supra, is still the law of Iowa. The trial court, in the instant case, properly guarded the defendant in every respect relative to the facts which tended to show his guilt of the crime charged.
III. The record discloses that the defendant, shortly after his arrest and incarceration in the county jail, slashed himself across the abdomen with a razor secretly handed him, and thereby severely wounded himself. The defendant's claim 3. HOMICIDE: was that he suffered pain from certain adhesions evidence: caused by a prior operation, and on attempted cross-examination, he could not tell what suicide. operation it was, when it was, or that he had ever suffered from adhesions prior to that time. The trial court instructed on this matter, and of this instruction complaint is made by appellant. This particular matter has never, prior to this time, been presented to this court. The instruction given was to the effect that evidence had been introduced on the part of the State tending to show that the defendant, while an inmate of the jail, inflicted a wound upon his person, and:
"If you find from the evidence, beyond a reasonable doubt, that the offense alleged in the indictment was committed at the time and place as so charged, and further, that the defendant knew that he was charged with the commission of said offense, and was arrested and placed in the jail of Webster County, Iowa, and you further find beyond a reasonable doubt that the wound inflicted by the defendant upon his person was inflicted by him for the purpose of committing suicide, then you are justified in *Page 116
considering the said act of the defendant as a circumstance indicating guilt, to be considered by you in connection with all the evidence, to aid you in determining the guilt or innocence of the accused."
The trial court further stated in said instruction that, if the State had failed to prove, beyond a reasonable doubt, that the wound inflicted by the defendant upon his person, if he did inflict such a wound, was inflicted for the purpose of and with the intent upon his part to commit suicide, the jury should give no consideration whatsoever to this testimony upon this point, and such testimony should be disregarded entirely. It will be observed that the court placed the burden upon the State to prove the self-inflicted wound and that defendant knew at said time that he was charged with the crime of murder, and particularly charged the jury that they must find that the wound was done for the purpose of committing suicide; otherwise, this evidence was not to be considered by the jury for any purpose. This surely was a fair instruction.
We find but four cases in the courts of last resort bearing on this proposition. Three of these cases sustain the instruction. We will not discuss these cases, and to avoid incumbering the record, it will be sufficient to cite them. People v. Duncan,261 Ill. 339 (103 N.E. 1043); State v. Jaggers, 71 N.J. Law 281 (58 A. 1014); State v. Blancett, 24 N.M. 433 (174 P. 207). The only decision of an apparently contrary character is an early case found reported in State v. Coudotte, 7 N.D. 109
(72 N.W. 913). In that case, however, the only corroboration in the case was the attempted suicide, and the question arose, as stated in the opinion, whether or not "any presumption of guilt" arises from an attempt to commit suicide, made before trial. Such is not the question in the instant case. The contention of the State in the North Dakota case was that, when a party charged with crime attempts to commit suicide, "that fact raises a presumption, more or less strong, that such party is guilty of the crime charged." In the case at bar, the trial court in instruction used no such language, and did not mention the word "presumption."
IV. The next complaint of the appellant is that two of the State's officers, — one the sheriff of the county, and the other a special agent, Yackey, — were in the court room during part of *Page 117
the trial. This point is predicated on the rule 4. CRIMINAL of the trial court excluding witnesses during LAW: trial: the trial. The specific objection to Sheriff reception of Tuller was that he was present in the court room evidence: when he was called to the witness stand. This exclusion of objection was overruled. Yackey, the state sheriff from agent, had been one of the principal court room. investigators in securing the facts, and was assisting the prosecuting attorney during the trial. Clearly, the sheriff had a right to be present, as an officer of the court. Mr. Yackey was a necessary person to assist the public prosecutor in the case. In any event, these matters rested in the sound discretion of the trial judge, and there is no abuse of discretion shown. This court will not presume error, and will, on the appeal taken by the defendant (under the provisions of Section 14010, Code of 1927) examine the record, "without regard to technical errors or defects which do not affect the substantial rights" of the defendant, and "render such judgment on the record as the law demands." In the instant case, we will not reverse on the mere technicality, as the point raised does not affect the substantial rights of this defendant.
V. It happened that, at the time the defendant, Bittner, was in the care and keeping of the sheriff at the Webster County jail, Clarence Darrow, of Chicago, was in the city of Fort Dodge, attending to some legal business. The 5. WITNESSES: defendant's mother, learning of the presence of competency: Darrow, solicited him to interview her son confidential (defendant Bittner). Out of the kindness of his relations: heart, and probably due to his intense interest overheard in the welfare of accused persons, he met the talk between request, and did visit the defendant at the accused and jail. The conversation was overheard by the son attorney. of the sheriff, who was then and there acting as a deputy. Darrow is quoted as making the following statement to Bittner:
"Well, I promised your mother that I would get over here and talk to you, but I am very tired. I have been very busy all day, and it is late; but I have just dropped in to give you a little encouragement, if I can, and suggest that you get an attorney, and fight to the last ditch."
The only question presented on this proposition is whether *Page 118
a confidential relation existed between Darrow and Bittner, and therefore what was said became a confidential communication. There is no basis in the record for such a claim. Darrow was not Bittner's attorney, and it is obvious that he visited the defendant in a friendly way, and on account of the request made by the mother. See State v. Mickle, supra.
VI. Complaint is made of the cross-examination of the defendant. We have read the abstract of appellant, but we have been aided more by the amendment to said abstract filed by appellee. It is an elementary principle that 6. WITNESSES: counsel for the State is privileged to credibility cross-examine the defendant as to his previous and history, his prior conduct, habits, and ways of impeachment: living, as affecting his credibility, and for scope of the purpose of impeaching him. State v. Watson,
cross- 102 Iowa 651; State v. Brandenberger, 151 Iowa examination. 197. This matter is largely within the discretion of the court. True it is that the prosecutor asked one or two questions which were subject to objections. Proper objections were sustained. In one instance, the answer to such a question was given, and was promptly stricken, on motion. The prosecutor did not repeat the objectionable question.
This is not a case where complaint may properly be based by reason of the persistence of the prosecutor in repeating the questions to which objections had been sustained. See Schuck v.Keefe, 205 Iowa 365; State v. Poston, 199 Iowa 1073. A trial judge cannot anticipate the answers to be given by witnesses on cross-examination, even though it may be assumed that he should be able to distinguish between a proper and an improper question. However, in the instant case, there was, in our judgment, no toxic result. The court did all that it was possible to do, by sustaining the objection and striking from the record whatever was elicited that was deemed improper for the consideration of the jury.
VII. Lastly, it is contended by appellant that the court erred in refusing to compel the production of a 7. CRIMINAL written document, to wit, the written confession LAW: trial: of the accomplice Navin. Counsel for the court's defendant, after it was discovered that the refusal to State had possession of this paper, asked the compel prosecutor if he would produce it, to which the production reply was made, "No, produce nothing." *Page 119
of document. No subpoena duces tecum was issued, or requested
to be issued, and no means known to the law was adopted by counsel for defendant to effectuate the request made by one attorney to another.
In the light of the record, we discover no basis upon which to predicate reversible error. The judgment entered is — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434825/ | This appeal presents for decision a question of law, to wit: Is a civil township, under the Workmen's 1. MASTER AND Compensation Law of Iowa, liable to its duly SERVANT: appointed road superintendent for "personal Workmen's injuries sustained, arising out of and in the Compensation course of the employment?" It may be well, Act: town- before giving a direct answer to the question, ship not to make inquiry concerning the origin, powers, employer. and duties of a civil township, as defined by statute.
A civil township is not an incorporated body. It has no inherent charter rights. It is but the creation of the board of supervisors of the county, and its functions are purely *Page 77
governmental. It is an involuntary political or civil division of the county, and cannot be classed with incorporated and voluntary divisions of the state and county. It cannot be classed with municipal corporations, as the latter are bodies politic incorporate, finding their constitution by incorporation for the purpose of local government.
The statute provides that the board of supervisors shall divide the county into townships, as convenience may require, and from time to time make such alterations in the number and boundaries of the townships as it may deem proper. Section 5527, Code of 1924. It is apparent, therefore, that a township is an involuntary civil district, unincorporated, and finds its origin in the discretion and judgment of the board of supervisors of a county. The township elects biennially members of the board of township trustees, consisting of three qualified electors of the township. Sections 521 and 5543.
When a new township is formed, in which township officers are to be elected, the board of supervisors shall call the first township election. Section 5536. The description of the boundaries of each township and all alterations thereof shall be recorded in full in the records of the board of supervisors and of the township. Section 5530.
The foregoing provisions of statute sufficiently indicate how a civil township is brought into being. It is the lowest unit of our body politic, and can act only through a board of trustees, the township clerk, and such persons as are legally authorized to be employed.
What are the powers and duties of township trustees? It is provided that the trustees shall act as overseers of the poor, as fence viewers, and as the local board of health, and shall constitute a township board of equalization of taxes. Section 5543.
It is further provided that the board may condemn or purchase land for cemeteries, and pay for same out of the general fund of the township (Section 5558); may receive as gifts or bequests money or property for the purpose of establishing libraries, township halls, or cemeteries, or for any other public purpose (Section 5559); may levy a tax to pay for any lands so condemned or purchased, or for the necessary improvement and maintenance of cemeteries so established, and for the improvement and maintenance of public parks acquired by gift, or for *Page 78
maintenance and improvement of cemeteries established in adjoining townships (Section 5560); control any such cemeteries or appoint trustees for the same, or sell same to private corporations for cemetery purposes (Section 5561); may levy a tax to improve or maintain any cemetery not owned by the township, provided same is devoted to general public use (Section 5562); may inclose, improve, and adorn the grounds of cemeteries, construct avenues therein, erect proper buildings, and prescribe rules for the improving or adorning of lots or erections of monuments or other memorials (Section 5566); may appoint watchmen for the grounds, and sextons, superintendents, gardeners, and agents, stationed upon or near such grounds, and these watchmen, etc., are authorized to take oath of office, and upon taking such oath shall have powers of peace officers within and adjacent to cemetery grounds (Sections 5567 and 5568); may convey lots in cemetery, plat and record said ground (Sections 5569 and 5570); may assess damages caused by trespassing animals (Section 2989); may submit proposition for erection of township hall, and if voters are in favor of tax for same, the trustees shall certify such fact to the board of supervisors, which shall levy the tax (Sections 5574 and 5575); may locate site, and may purchase land (Section 5577); have charge of the building of such hall, and shall receive bids and let contract and certify the tax to be levied to be used in keeping building in repair and furnish same with furniture and provide care for same (Sections 5578 and 5581); may license places of amusement, at discretion (Section 5582); may revoke such licenses (Section 5585); may repair and improve roads of the township outside of cities and towns, and not a part of state, primary, or county road system (Section 4780); may expend, equitably and judiciously, the funds of township for the specific purposes for which authorized (Section 4781); may let by contract any part of the township work (Section 4781); may cause all weeds on township roads to be cut (Section 4784); may select roads to be dragged (Section 4785); shall not allow any bills for dragging, maintenance, or repair work until verified itemized bills have been certified by the township road superintendent (Section 4786); shall employ a superintendent or superintendents, not exceeding four, for the township road system, whose term of office and compensation shall be at the *Page 79
discretion of the trustees (Section 4787); shall apply to board of supervisors for engineer, who shall survey and lay out roads before beginning any work on road system other than repairs (Section 4793); may contract with board of supervisors for any work (Section 4794); shall make levies for township road fund, township road dragging, and road drainage (Section 4795); shall determine amount that shall be allowed for a day's labor (Section 4796); shall use township road fund for building and repairing all township roads, installation and repair of culverts, filling culverts, and grading approaches to bridges on township roads, for purchase of tools, road drags, and machinery, and for elimination of danger at railroad crossings (Section 4797); shall use drag fund for dragging only (Section 4798); may replenish drag fund from road fund (Section 4799); may use road drainage fund to pay assessments against township (Section 4800); may replenish same from road fund, or vice versa (Section 4801); may use township road for any other authorized purpose (Section 4797); shall, at the November meeting, settle with township clerk, road superintendent, and with all parties with whom contracts have been made for work in repairing or dragging the roads (Section 4808); may transfer work to board of supervisors, but dragging and repair of township roads shall continue under board of trustees (Section 4812); may make additional levy when work is transferred to board of supervisors (Section 4812); shall fix poll tax (Section 4813); shall give notice to destroy weeds (Section 4822), and cause weeds to be destroyed, and advance funds therefor, and shall assess all costs against owner (Section 4823); shall cause all obstructions in highway to be removed (Section 4834); shall remove open ditches, water breaks, and like obstructions, and may employ labor for the purpose in the same manner as for repair of highways (Section 4840); may maintain suits in equity to restrain obstructions of highways (Section 4842), the county attorney to appear, but trustees may employ counsel (Section 4843); shall enforce billboard and advertising sign law by civil or criminal proceedings (Section 4845); shall remove billboards and advertisement from highways (Section 4847); shall maintain township roads after so improved, unless nature of improvement causes the board of supervisors to add road to county road system (Section 4751). *Page 80
It is obvious that the statutory duties of township trustees are many and varied, and that some of them are quasi judicial in nature, and others may be classified as executive or administrative.
It may be noted, in passing, that this court has repeatedly held that a civil township is not a corporation, and cannot be sued. Austin Western Co. v. Township of Weaver, 136 Iowa 709.
It may also be observed that the members of a board or council, acting in a representative capacity, are not, in the absence of specific legal grounds, individually liable. Farmers' L. and Tr.Co. v. City of Newton, 97 Iowa 502.
In the instant case, it is obvious that the contract in question (which is not found in the record before us, but admitted to have been made) was entered into between the plaintiff and the defendants for the benefit of Sherman Township. Such contract must be interpreted in the light of statutory provisions. The duties of the road superintendent are primarily supervisory, as his official title indicates. He is not a "road patrolman." That office is also created and defined by statute, and the appointment to the office is made by the board of supervisors of the county. Section 4774 et seq.
With these preliminary statements and observations in mind, we turn to the basic and controlling question, which involves the interpretation of certain provisions of the Workmen's Compensation Law of Iowa.
Is a civil township an employer, within the definition of the act? Is a road superintendent an employee, within the meaning of the act? The act provides:
"Where the employer and employee have not given notice of an election to reject the terms of this chapter, every contract of hire, express or implied, shall be construed as an implied agreement between them 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 this chapter provided for all personal injuries sustained arising out of and in the course of the employment." Section 1377, Code of 1924.
It is further provided (Section 1421) that the following definitions of terms shall prevail: *Page 81
"1. `Employer' includes and applies to any person, firm, association, or corporation, state, county, municipal corporation, city under special charter and under commission form of government, school district, and the legal representatives of a deceased employer. 2. `Workman' or `employee' means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified. 3. The following persons shall not be deemed `workmen' or `employees:' * * * c. An independent contractor. d. A person holding an official position, or standing in a representative capacity of the employer, or an official elected or appointed by the state, county, school district, municipal corporation, city under special charter or commission form of government."
Did the legislature, by omitting to include townships, intend that such townships as employers should not be within the scope of the chapter? Every other body politic within the state having authority to employ labor has been included within the terms used. It would be but a fiction to bring a civil township under the term of "municipal corporation," for the simple reason that it is not a corporation. It is an unincorporated civil district, created by the county for governmental purposes. The township acts through its board of trustees, whose powers are defined by statute. Clearly, the township is not a governmental employer, upon whom the compensation act is made obligatory. Section 1362, Code of 1924. Nor does the township fall within the definition of employer, since it is not a person, firm, or association.
It may be said further that the plaintiff road superintendent is an official, appointed by the township. He 2. MASTER AND holds an official position, and when he acts for SERVANT: his employer, he stands in a representative Workmen's capacity of the employer. As an official, he Compensation qualifies by taking oath of office required of Act: public all civil officers, and he must furnish bond. "official" Section 4811. As an official, he has general not an supervision of all maintenance and repair road "employee." work in the township, including the placing of culverts. As an official, he collects the poll tax, maintains approaches to all bridges, and when bridges and culverts are unsafe, erects barriers. As an official, he is charged with keeping the openings of all culverts *Page 82
and ditches free from obstructions, and shall have charge of all dragged and draggable roads, and see that they are properly dragged. As an official, he shall contract, on behalf of the township, for the necessary dragging of roads, at such prices as the trustees may authorize. As an official, he shall report, in writing, on all work done under and by him, and shall pay to the township clerk all moneys received by him. Section 4788. As an official, he shall receive poll tax list from the township clerk (Section 4789), and shall drain surface water from roads (Section 4791), and shall notify the board of supervisors of unsafe bridges and obstructed passages thereover. He shall report to the township clerk three times a year, giving the names of persons required to perform labor on public roads and amount paid therefor or work done, the names of all persons against whom actions have been brought, and amount collected, the amount of money coming into his hands, and from what sources, and the number of days he has been employed in the discharge of his duty, the condition of the roads in his district, and such other items and suggestions as he may wish to make. Section 4807. As an official, he shall give receipt for poll tax (Section 4815), and may recover unpaid poll tax by action in his name as road superintendent. Section 4816.
It is quite evident that the road superintendent is an official, standing in a representative capacity of the employer. We therefore hold (1) that the defendants are not within the definition of an "employer," and (2) that the plaintiff is excluded from the scope of "employee," as defined in Section 1421, Code of 1924. Under either theory, the plaintiff is not entitled to the compensation as prayed and as adjudged, and the judgment entered by the trial court must be, and is, — Reversed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434831/ | On January 30, 1922, the appellant issued its policy of insurance upon the life of Dr. James Calvin Corsaut. The insured died on the 31st day of December, 1923. The appellee is the wife of said decedent, and is the beneficiary named in said policy of insurance. The premium on said insurance policy was due on the 19th day of January of each year. The policy contained the following provision:
"If the insured becomes wholly and permanently disabled before age 60, the society will waive subsequent premiums payable upon this policy, subject to the terms and conditions contained on the third page hereof."
The petition alleges that, at the time the premium became due, to wit, on January 19, 1923, and for some time prior thereto, and thereafter until the date of the death of the insured, he was totally and permanently disabled by disease, 1. INSURANCE: and was totally insane and incompetent to forfeiture transact any business or cause same to be of policy: transacted by anyone in his behalf. It is nonpayment undisputed in the evidence that the premium due of premiums: on January 19, 1923, was never paid. The burden incapacity rested upon the appellee, in order to entitle excusing her to recover, to establish that the insured payment. became "wholly and permanently disabled" prior to January 19, 1923. We quite recently had occasion to examine a policy of insurance containing a similar provision, in Hurley v.Bankers Life Co., 198 Iowa 1129. In the policy under consideration in said case it was provided that:
"* * * if the insured, before attaining the age of sixty years, becomes totally, permanently and incurably disabled as a result of accident or disease (not due to any cause or condition existing at the time of application for this agreement) and is thereby prevented permanently, continuously, and wholly from performing any work or following any occupation for compensation or profit, the company will waive payment of premiums thereafter becoming due under said policy," etc.
In said cause we were called upon to construe the effect of the words "totally, permanently, and incurably disabled * * * *Page 743
and is thereby prevented permanently, continuously, and wholly from performing any work or following any occupation for compensation or profit." We reviewed the authorities at length upon the question of the construction of policies of this character, and adhered to the pronouncement heretofore made by us in Lyon v. Railway Passenger Assur. Co., 46 Iowa 631. We held that, under the terms and conditions of a policy such as the one in the case at bar, where the condition that avoided the payment of the premium was that the insured be "prevented permanently, continuously and wholly from performing any work or following any occupation for compensation or profit," the evidence must show that such a situation in fact existed, in order to entitle the beneficiary to recover under the policy.
It may be conceded that the question of whether or not an insured had become "wholly and permanently disabled" might, under many circumstances, very properly be one for the determination of the jury. In the instant case, the appellant challenges the sufficiency of the evidence to carry the case to the jury on this question. It is impossible for us to review every incident and item detailed in the record, which, however, we have read and examined with great care. It appears that the insured was educated at the State University of Iowa, and was married to the appellee in January, 1902. He practiced for some time at the town of Dike, and later engaged in the practice of his profession at Cedar Falls. He evidently had a considerable practice. His wife testified that, in November, 1922, she noticed that he had despondent spells; that he would cry, and had spells of laughing, and could not remember people; that he did not recognize his best friends; that he would walk the floor, and hold his head, and wonder what was the matter with him; and that, in making calls in town, he would sometimes return home and say that he could not find the place where he would want to go. He complained of pressure in his head, and that he could not remember. She testified that he spent his money recklessly, and had bills which he claimed had been paid, and it was found afterward that they had not been. She testified that the insured paid his taxes by writing checks, and wrote checks several times when he had no funds in the bank, and when she spoke to him about it, he said he thought he had plenty of money in the bank. On January 10, 1923, the appellee took the insured to Iowa City *Page 744
for examination. She selected the route and purchased the tickets. The insured was restless on the train; walked from one end of the car to the other, smoking and walking. He was examined by a doctor at the Psychopathic Hospital in Iowa City, but the appellee was not present at the examination. The insured informed his wife that the doctor had told him that he guessed there was nothing the matter with him, and the insured seemed happy to think there was nothing wrong with him, and wanted to go home, and was in a very happy state of mind on the way home. This was approximately at the time the premium was due. The appellee and the insured returned to Iowa City sometime in February following. The insured was worse at that time. The appellee left the insured at Iowa City on this trip, and he returned home unattended. The appellee testified that, in the fall of 1922, she had known the insured to come home when he had been on a case when he thought he had made a mistake, or feared his judgment was wrong, and cry about it. He became irritable toward his family, which consisted of his wife and two children, 19 and 20 years of age. The insured went with the appellee to the bank, to talk over his financial affairs. The appellee testified that she went to the insured's office very seldom during these times, and did not know whether he treated patients during the months from January to June, 1923.
A doctor testified that he had been acquainted with the insured for some 11 or 12 years; that he occupied a suite of rooms with the insured, and they had the same reception room and office girl, and that this arrangement continued until about four or five months before the insured's death; that he saw the insured probably every day, and they did some work together; that, during the fall and winter of 1922-23, he noticed that the insured acted differently; that he had despondent spells, talked about not feeling well, and would lie in his office for several hours at a time, and on other occasions he would be too enthusiastic, — wanted to buy things; that he duplicated orders; that he assisted in performing an operation with the witness and another physician, by administering the anæsthetic, and gave more than was necessary, and they were compelled to resort to artificial respiration to restore the patient. The witness expressed the opinion that the insured was of unsound mind in January, 1923. On cross-examination, this witness testified that the insured was *Page 745
engaged in the practice of his profession, treating patients during the winter and spring of 1923. He testified that in his judgment the insured was afflicted with paresis. Another physician testified that he first met the insured in 1915, and had an adjoining office, and they had a common reception room, and that he saw him nearly every day. About September, 1922, he noticed that he acted differently than previously. He would open his door and peek out, watching patients that came into the witness's room; that he had spells of depression, and other spells quite the opposite; that this witness was present at the same operation testified to by the other physician, when the insured administered an anæsthetic in a case of amputation and the patient was over-anæsthetized; that the amputation was stopped, and the patient was restored. This was on December 26, 1922. The witness expressed the opinion that, in January, 1923, the insured was of unsound mind. On cross-examination, he testified that, during the months of January to June, 1923, inclusive, he saw the insured at his office part of the time, and during this time he was treating patients; that he was not in the office after June, 1923, but that the insured was treating patients up until that time; that he could not give any idea of the number of patients he treated during these months.
A banker testified that, about the early part of 1922, the insured had overdrafts in his bank; that he asked insured to make a financial statement, and the insured did so; but that the banker "could not make head or tail out of it," and put it in the waste basket. Insured seemed to want to avoid meeting the banker, if he could, and the witness expressed the opinion that the insured was of unsound mind in January, 1923. On cross-examination, he testified that he knew that the insured did transact business after January 1, 1923, up to May, 1923.
Another physician testified that the decedent told him that he had been playing golf, and had made a golf score which the witness testified was an impossible one. The witness expressed the opinion that the insured was of unsound mind at that time.
The foregoing is a general outline of the testimony in behalf of the appellee. The appellant's motion for a directed verdict having been overruled, the appellant offered testimony, and, at the close of all of the evidence, submitted a motion for directed verdict. The appellant produced as a witness the office *Page 746
girl of the insured, who testified that her duties were to take care of the rooms, keep track of the people that came in, and enter them upon the book kept by the insured; that she made these entries with reference to the insured's patients from what he told her, or from entries he made on his desk pad. The book was produced, and it showed a record of the charges and credits against certain parties as the patients of the insured from. December 31, 1922, to May 23, 1923. The witness testified that she entered these items, relying upon the insured's desk pad, and when she asked him, and in some cases where she knew the patients; that she did not go into the private office when patients were being examined, but sometimes they would come out and talk with her, with bottles in their hands; and that she knew they had received medicine. On cross-examination, she testified that there were some entries in the ledger produced that she was satisfied did not represent actual transactions. She cited an instance where a statement was sent where a charge was made, and it appeared that the patient had paid the insured. There were also times when the office girl did not allow people to see the insured, but found entries on the pad against people, whether they had been there or not. She also said that she would not vouch under oath for all of the items on the record, and that it was a fact that the number of people that actually went into the doctor's private office was out of proportion to the number of entries that appeared in the book. She testified to the insured's being nervous in the manner in which he acted about the office. It appeared that, on the 19th day of June, 1923, the insured examined a party residing in Cedar Falls, for an insurance policy in the appellant company. The answers to the questions in the medical examiner's report appear to have been made by the decedent, and he signed the same. A check was sent to him for the fee on June 25, 1923, which appears to have been indorsed by the decedent and paid. Without going more minutely into detail, the foregoing is a general outline of the evidence in behalf of the appellant.
The question is whether, upon this record, the court erred in submitting the case to the jury, or whether the court should have directed a verdict in behalf of the appellant. The words in *Page 747
2. INSURANCE: the policy are, in practical effect, the same as forfeiture the words in the policy in the Hurley case. of policy: There was no provision for "partial disability," nonpayment or for disability that should incapacitate one of premiums: from performing his "usual occupation." Cases waiver: with such provisions are cited in the Hurley
insufficient case, and the distinction pointed out. As in the evidence. Hurley case, the policy in the instant case provides but one condition under which premiums are waived by the company, and that is, "if the insured becomes wholly andpermanently disabled before age sixty." We cannot give to these words any other and different interpretation than their usual and ordinary meaning. "Wholly and permanently disabled" cannot logically be construed to mean partially disabled, or disabled to a limited degree, or disabled from doing certain things while able to do others. Under the record, it cannot be said that this case presents an instance of an insured who is "wholly and permanently disabled." Undoubtedly, the insured was affected with a mental breakdown, and this began to be noticeable in the year 1922; but, at or about the time that the premium in question was due, and for several months thereafter, the insured was carrying on the practice of his profession, was treating patients, and, so far as the record discloses, without making mistakes in the very delicate and, in a sense, dangerous business of administering medicine. The only specific instance in the record looking toward a lack of judgment in this regard is the one instance where, as late as December, 1922, physicians closely acquainted with him evidently deemed him competent to undertake the delicate task of administering an anæsthetic, and it appears that he administered too much of the anæsthetic, and it became necessary to resuscitate the patient. In the light of common knowledge, it cannot be said that this incident is evidence of "total and permanent disability." The number of patients shown by the books of the physician to have been treated during the period from January to June, 1923, runs into the hundreds. According to the testimony of the office girl, some of these entries were erroneous, and the physician doubtless made charges against people whom he did not treat. He was forgetful and negligent, and subject to spells of exhilaration and of depression; but the undisputed fact remains that, during this entire period of time, he was in regular attendance at his *Page 748
office, and was continuously engaged, more or less, in treating patients, administering medicine, and practicing his profession. In June of 1923, he made an examination of an applicant for insurance, filling out the somewhat extensive blank form required for such examination in detail, and received a check therefor, and indorsed the same. Without reviewing the record further, we are constrained to hold that a verdict to the effect that during this period of time the insured was "wholly and permanently disabled," is contrary to the record in the case, and cannot be permitted to stand. The trial court should have sustained the appellant's motion for a directed verdict, made at the close of all of the testimony No other conclusion is warranted under the record in this case, under the terms of the policy in question and the rules of law applicable thereto, as heretofore announced by this court. The appellee was charged with the burden of establishing that the insured was "wholly and permanently disabled." In this the appellee failed.
In view of the conclusion as herein announced, the other errors urged by the appellant require no consideration. The judgment of the district court must be, and it is, — Reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434832/ | This suit has its source in chapter 431.1, 1939 Code, entitled Distribution of Trademarked Articles. The sections in the chapter material to this case are 9884.1 and 9884.3 which read:
"9884.1. Contracts as to selling price. No contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, the trademark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the state of Iowa by reason of any of the following provisions which may be contained in such contract:
"1. That the buyer will not resell such commodity except at the price stipulated by the vendor.
"2. That the vendee or producer require in delivery to whom he may resell such commodity to agree that he will not, in turn, resell except at the price stipulated by such vendor or by such vendee."
"9884.3. Actions for damages. Willfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of sections 9884.1 and 9884.2, whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby." *Page 557
We will set out the material allegations of the petition. The plaintiffs and defendant are owners and operators of drug stores in Cedar Rapids and Marion, Linn county, Iowa. Manufacturers and wholesalers of medicinal and toilet articles entered into contracts with retailers in Iowa pursuant to the provisions of said chapter 431.1. All of the plaintiffs have complied and have continued to comply with the minimum prices fixed in said contracts. The contracts provided that buyers would not resell commodities of the manufacturers bearing the label or trademark of the products for less than the minimum retail price stipulated. The defendant, long prior to the action, was notified of the existence and terms of said contracts and of the minimum prices stipulated therein. The defendant persistently, knowingly, willfully and intentionally sold and advertised commodities at less than the minimum retail price fixed in said contracts and has asserted that it intends to continue to evade and avoid said contracts and said Iowa Fair Trade Act; that said manufacturers and wholesalers have demanded that defendant comply with said agreements but that defendant, pursuant to its plan and purpose of violating the contracts, would temporarily comply therewith and shortly thereafter would again offer said articles for sale at less than the minimum retail prices prescribed by the agreements. The petition then set out a list of 71 articles which defendant was alleged to have sold in violation of the contracts and the statute. Each item gives the date of the sale, the trademark of the article, the contract price and the price for which defendant sold the article. The petition charges that defendant sold other products of said manufacturers at prices lower than the minimum retail contract price and that defendant is pursuing a uniform policy of violating the minimum prices under which articles may be sold under contracts within the purview of chapter 431.1. The petition charges irreparable damage through impairment of their businesses, loss of good will and patronage, and plaintiffs pray that the defendant be permanently restrained from advertising or selling the commodities specifically referred to in the petition and any other trademarked commodity sold by any manufacturer under the Fair Trade Act of the state of Iowa at less than the minimum retail price.
Defendant, on May 20, 1940, filed its amended and substituted *Page 558
motion to strike misjoined causes of action in 23 divisions. The motion was, as to the cause of action of each individual plaintiff, to strike out of the petition the cause of each of the other co-plaintiffs because of misjoinder of causes of action. This motion was overruled May 24, 1940, and defendant perfected its appeal from this ruling on June 1st. On June 10, 1940, defendant filed a motion in four divisions. The first motion was a motion to dismiss all of the causes of action. Division 2 moves to strike certain paragraphs of the petition. Division 3 required plaintiffs to state in separate counts or divisions each cause of action of each plaintiff. Division 4 of the motion required plaintiffs to make the petition more definite and certain. The trial court overruled divisions 1, 3 and 4 and part of division 2, and sustained a part of division 2. Plaintiffs and defendant appealed from adverse rulings. Defendant will be referred to as appellant.
[1] We will consider appellant's first and second assignments of error together. The first assignment is that the court erred in overruling its motion to strike misjoined causes of action. The second assignment of error is that the court erred in overruling its motion to require plaintiffs to state the cause of action of each plaintiff in a separate division.
Sections 10963, 10969, 10970, 1939 Code, read:
"10963 Motion to strike out. The court, at any time before the answer is filed, upon motion of the defendant, shall strike out of the petition any cause or causes of action improperly joined with others."
"10969 Plaintiffs joined. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may join as plaintiffs, except as otherwise provided."
"10970 United interests in equity. Where two or more persons claim a right of recovery against the same party or parties on like causes of action cognizable in equity, they may join as parties plaintiff, and relief may be granted to each according to his interest."
Appellant's assignment rests on its contention that the petition contains 23 separate causes of action. Plaintiffs' version of the pleading is that it alleges a single cause of action *Page 559
against the appellant. We agree with plaintiffs' interpretation of the petition.
Section 9884.3 provides that if a person knowingly advertises or sells any commodity at less than the stipulated contract price, he is guilty of unfair competition. Plaintiffs seek to restrain appellant from violating this statute, from committing acts that constitute unfair competition with plaintiffs. The plaintiffs have complained of a single wrong — unfair competition. The gravamen of the petition is that the appellant has demonstrated that unfair competition, as defined by the statute, is its deliberate business policy; that it operates its business and will continue to operate its business in willful violation of this Fair Trade Act; that appellant is indulging in one single and continuous course of conduct, one practice, one series of acts and a general trade policy which injures all plaintiffs in common.
While the interests of the several plaintiffs in the suit may not be equal, they all have a common interest in the subject of the suit and in the relief sought. The acts complained of have the same damaging effect on all the plaintiffs. The petition shows that a single right of each of the plaintiffs has been invaded, that is, the right to be free of the burden of unfair competition as defined by the statute. All the plaintiffs seek the same relief, relief from unfair competition. 49 C.J., page 158, states:
"Facts constituting one entire transaction may be set forth in a single count, statement, or paragraph as a single cause of action, even though two or more grounds of liability or parts of the transaction are set forth; and when a single and continuous purpose runs through an entire transaction made up of various acts, each of which might alone constitute a cause of action, it is proper to set up all the facts in one count as a single cause of action."
In Boyce v. Odell Commission Co., 107 F. 58, 59, the court said:
"In the present case the court is of opinion that the facts stated in the complaint constitute one continuous transaction, which is properly pleaded in a single count. The bets or wagers *Page 560
were all in pursuance of a common purpose to carry on a scheme of gambling in margins. * * * One single and continuous purpose evidently ran through the entire transaction. This view seems to find ample support in the cases decided in this and other states, a few of which are here referred to. * * * A series of illegal acts of discrimination by a common carrier against a shipper constitute only one cause of action, and the several acts need not be stated in separate paragraphs."
In Richman v. Board of Sup. of Muscatine County, 70 Iowa 627, 629, 26 N.W. 24, 25, the opinion states:
"All of plaintiffs have an interest in this subject and in the remedy sought. Their interest is alike, though not equal. The remedy sought is a judgment declaring the proceedings void. One judgment will afford the relief asked by each plaintiff. * * * it is certain that the plaintiffs have a common interest in the subject of the action and in the relief sought therein; they may therefore join as plaintiffs. * * * Independent School-dist. Graham Tp. v. Independent School-dist. No. 2, Id., 322, and Bort v. Yaw, 46 Id., 323, are unlike this case, inasmuch as the plaintiffs in the respective cases were not interested alike in the relief sought. Each plaintiff sought distinct relief."
The trial court was right in ruling there was no misjoinder of causes of action and in overruling appellant's motion to strike and to separate the petition into counts or divisions.
[2] II. Appellant claims the court committed error in overruling its motion to require plaintiffs to state whether or not the contracts referred to in the petition were in writing. Section 11129, 1939 Code, reads:
"11129 Pleading contract. No pleading which recites or refers to a contract shall be sufficiently specific unless it states whether it is in writing or not."
In view of this definite, statutory pronouncement, the trial court should have sustained the motion.
[3] III. Another assignment is that the court overruled appellant's motion to require plaintiffs to set out an exhibit of the contracts referred to in the petition. The court properly overruled this motion. *Page 561
Appellant states in argument that "these contracts furnish the very claim, basis and foundation of the action." We do not agree with this proposition.
Appellant is not a party to the contracts and is not subject to contractual liability. The statute defines unfair competition and creates a tort liability in favor of any persons damaged by a violation of the statute. Plaintiffs are seeking relief from unfair competition and are not attempting to enforce a contract liability. The contracts are not the foundation of this suit, but are evidentiary in character. Weco Products Co. v. Reed Drug Co.,225 Wis. 474, 274 N.W. 426; Port Chester Wine Liquor Shop, Inc. v. Miller Bros. Fruiterers, 281 N.Y. 101, 22 N.E.2d 253. The trial court was right in not compelling the plaintiffs to set out their evidence in the petition.
IV. The court overruled appellant's motion B2 requiring plaintiffs to state when and where the contracts were entered into. There is no error in this ruling. The petition states that the contracts were in full force and effect when the sales were made and at the commencement of the suit and as time and place were not material to the issue no prejudice resulted to appellant from the ruling.
[4] V. We think the trial court was in error in overruling the motions B3 and B4 requiring plaintiffs to give the names of the contracting parties. Plaintiffs have alleged the contracts were in full force and effect when the sales were made and the litigation commenced and that appellant was bound by the minimum resale prices fixed therein. Appellant may traverse these allegations and it would be difficult for it to secure evidence to show the status of the contracts at the time the sales were made without knowledge of the parties to the contracts.
[5] Subject to the errors pointed out above, we are not in agreement with appellant's contention that the allegations of the petition are so indefinite and uncertain that the precise nature of the charge is not apparent and it is unable to properly prepare its defense.
Paragraph 5 of the petition states the substance of the contracts in the following language:
"* * * which contracts provided, pursuant to and in accordance with the provisions of Chapter 431.1 of the 1939 Code *Page 562
of Iowa, that the buyer would not resell such commodities of said manufacturers, distributors, or wholesalers bearing the label, or the content of which bears the trademark, brand, or name of the producer, for less than the minimum retail prices stipulated, and that the vendee or producer of any such commodity require in delivery to whom he might resell such commodity an agreement that he would not, in turn, resell for less than the minimum price so established."
The petition further states that with knowledge of the provisions of the contracts appellant is deliberately pursuing a single continuous course of conduct designed to violate the statute and the contracts and as a part of its general trade policy.
We hold that, subject to the exceptions noted above in divisions 2 and 5, the petition apprises appellant of the contents of the contracts and nature of the charge and that no prejudice has resulted to appellant through the overruling of its motion to make the petition more specific.
VI. Section "e" of division 4 of appellant's motion for more specific statement requires plaintiffs to state:
"e-1. The name of the plaintiff it is claimed has such cause of action.
"e-2. Whether such cause of action is individual or joint.
"e-3. If joint, the names of the coparties interested in such cause of action.
"e-4. To state the sale of what article or articles it is claimed gives rise to the cause of action.
"e-5. To state the manufacturer, distributor or wholesaler from which such article or commodity is obtained.
"e-12. In any case, to set out a complete bill of particulars as to the alleged sales it is claimed were made by defendant, including when, where, to whom, the nature of the commodity sold, and at what price."
This motion evidences a misconception by appellant of the nature of plaintiffs' cause of action. This is not a case, such as Miller v. Hawkeye Gold Dredging Co., 156 Iowa 557, 568, 137 N.W. 507, 511, cited by appellant, where the claims of the plaintiffs are separate, distinct, independent one from the other.
In the Miller case, supra, the court states: *Page 563
"The rule is tersely stated in Cooper Eq. Pl. 182: `The court will not permit several plaintiffs to demand by one bill several matters perfectly distinct and unconnected against one defendant, nor one plaintiff to demand several matters of distinct natures against several defendants.'"
As heretofore stated, plaintiffs join in this petition because of their unity of interest in the object to be obtained by the suit and their common benefit in the relief sought, and have stated a single cause of action for unfair competition.
Plaintiffs have listed particular sales made in violation of the contracts referred to in the petition and upon information and belief allege appellant sold many other articles in violation of the contracts and at the time of the commencement of the suit they could not set them out with any particularity. They set out in the petition all of the particular sales they had knowledge of and stated there were many other sales of which they had at the time of the commencement of the action no direct proof. The particular sales are evidence of the ultimate fact to be established by plaintiffs — unfair competition resulting in damage to them.
[6] VII. Paragraph 22 of the petition stated that plaintiffs brought the action for themselves individually and as representatives of all others engaged in the retail drug business in the county of Linn, state of Iowa, and as representatives of said class, all of the plaintiffs having a common interest, and that the suit is brought by plaintiffs individually and as representatives of said class of retail druggists to avoid a multiplicity of suits. The trial court overruled appellant's motion to strike paragraph 22 on the ground that the same is a sham, immaterial and irrelevant, and "is an attempt to represent a class of plaintiffs and to make this a class suit, which is obviously impossible; that the theory of said paragraph utterly ignores the provision of section 9884.3 of the Code of Iowa; that under said section a class suit or a suit purporting to represent a class of plaintiffs can not be brought or maintained."
Section 10974, 1939 Code, reads:
"10974 One suing for all. When the question is one of a common or general interest to many persons, or when the parties *Page 564
are very numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole."
The allegations of the petition bring this case within the statute. The petition states that all the plaintiffs were damaged by the wrongful competition of appellant which consisted of the selling of commodities at less than the price stipulated in the contracts. Section 9884.3 does not purport to prescribe the remedy available to a person damaged by unfair competition. It states that the statutory unfair competition is actionable at the suit of any person damaged. The petition shows that the persons injured by appellant's unfair competition are very numerous and although each has a separate interest, all have a common interest in the subject of the litigation and are seeking the same relief. We find no error in this assignment.
We have considered all of the questions argued by appellant and conclude that the case should be and is affirmed on appellant's appeal subject to the modification required by our holdings in divisions 2 and 5.
[7] VIII. We will now consider the appeal of the plaintiffs. Paragraphs 11, 12 and 13 of the petition refer to permanent injunctions obtained in the district court of Iowa in and for Linn county against the appellant herein, May's Drug Stores, by Barron Motor, Inc., on April 9, 1938, by F.W. Fitch Company on July 12, 1937, and Mead Johnson Company on November 10, 1939, restraining appellant herein from violating the Fair Trade Act contracts entered into under the provisions of chapter 431.1.
Appellant moved to strike said paragraphs out of the petition on the following ground:
"d. To strike out of the petition all of said paragraphs as incompetent, irrelevant and immaterial; that the same are shams; that the same are not germane to the suit nor any portion thereof; that none of the plaintiffs claim to have been interested in the alleged litigation and decrees therein referred to; that the same are opinions and conclusions and attempts to plead a judgment or decree without setting out the same in writing, and hence are improper." *Page 565
The trial court sustained this motion. We are of the opinion the said decrees tend to sustain plaintiffs' contention that the violation by appellant of the Fair Trade Act has been wrongful, intentional and deliberate; that as fast as one injunction was obtained against appellant on one manufacturer's product it would switch to the products of some other manufacturer and would continue its purposeful unfair competition. This motion should have been overruled.
[8] IX. Paragraph 17 of the petition charged upon information and belief that in addition to the 71 articles enumerated in paragraph 16 appellant not only advertised and sold other products of manufacturers referred to in the petition in violation of the contracts, but also advertised and sold numerous other products of other manufacturers and wholesalers at prices lower than the minimum retail prices stipulated in contracts (other than the contracts referred to in the petition) entered into pursuant to chapter 431.1, C., '39 and that appellant, ignoring repeated requests to desist therefrom, continues to sell such products in violation of the contracts. Paragraph 18 (a) also refers to contracts of manufacturers and wholesalers other than those referred to in the petition which appellant is alleged to have violated. The trial court sustained appellant's motion to strike the two paragraphs and plaintiffs complain of the ruling.
This issue raises the question of the extent of the relief to which plaintiffs are entitled. The petition not only prays for an injunction restraining appellant from unfair competition with reference to the contracts and products enumerated in the petition, which contracts plaintiffs allege they are complying with, but also asks for a blanket injunction restraining appellant from any violation of the statute regardless of whether or not such violation constitutes unfair competition with the plaintiffs.
In effect, the blanket injunction seeks to restrain appellant from violating any contract made by any manufacturer or wholesaler pursuant to chapter 431.1, C., '39. Plaintiff's position on this issue is stated in the following language:
"Where it is shown that the defendant willfully, knowingly and intentionally, as a deliberate, general course of conduct, illegally, unlawfully, ignores and violates minimum fair trade *Page 566
prices prescribed by the manufacturer under the provisions of the Iowa Fair Trade Act, plaintiff is entitled to a blanket, or general injunction to enjoin and restrain such conduct and is not limited to specific acts."
We are of the opinion the trial court was right in sustaining the motion. Plaintiffs state in argument:
"As we have heretofore set forth, the defendant is engaged in openly and flagrantly defying the enforcement of the contracts made relating to the minimum prices on trademarked articles. As fast as a specific injunction is obtained on one product, the defendant, plaintiffs' petition alleges, will shift to another. He has adopted this price cutting of advertised leaders as a general plan of business. The only effective relief which these plaintiffs can have against defendant's wrongful and general course of `unfair competition' is by a blanket injunction."
We are not in accord with plaintiffs on this proposition. They cite the case of Louisville N.R. Co. v. Bitterman, 144 F. 34, which was affirmed in Bitterman v. Louisville N.R. Co.,207 U.S. 205, 28 S. Ct. 91, 52 L. Ed. 171. These cases tend to sustain plaintiffs' right to an injunction restraining appellant from willfully advertising or selling in the future commodities sold under the contracts in the petition at less than the price stipulated, but in our opinion, do not sustain their right to a blanket injunction restraining appellant from violating section 9884.3, 1939 Code. Such a blanket injunction would restrain appellant from violating the statute with reference to contracts not in existence or in which plaintiffs have no interest and from a violation of which plaintiffs have not suffered damages. Section 9884.3 provides that the statutory unfair competition is "actionable at the suit of any person damaged thereby." The blanket injunction desired by plaintiffs would restrain appellant from violating the statute and subject it to the burden of justifying its future acts in contempt proceedings.
In the Bitterman case, supra, the railroad company sought a blanket injunction to prevent defendants from scalping its railroad tickets. The lower court found the scalping of tickets violated plaintiff's rights, caused irreparable injuries, and *Page 567
restrained defendants from scalping reduced rate nontransferable tickets issued by plaintiff but refused relief as to future issues. The case was reversed by the circuit court of appeals which reversal was affirmed by the supreme court. In the opinion rendered by the circuit court of appeals, it is stated [144 F. 34, 45]:
"That the defendants to the bill filed in the court below have repeatedly interfered and procured the violation of complainant's contract, and propose to continue in the same line of action, is fully shown in the pleadings and proof in the transcript. The remedy at law is plainly inadequate, because not only involving a multiplicity of suits, but because of the difficulty of detecting each offense and of ascertaining pecuniary equivalents for the injury done to complainant's business and for the inconveniences, annoyances, extra expense, outlays, and risks involved in the matter. The case therefore shows an actionable wrong of a recurrent and continuing nature, and, to prevent the same, the complainant is entitled to an injunction. We think, further, that on the case made in the bill the injunction should be permanent," etc.
In affirming the circuit court of appeals, the supreme court said [207 U.S. 205, 227, 28 S. Ct. 91, 99, 52 L. Ed. 171]:
"The defendants in effect not only admitted the unlawful course of dealing as to particular tickets then outstanding, but expressly avowed that they possessed the right, and that it was their intention to carry on the business as to all future issues of a similar character of tickets. The action of the Circuit Court of Appeals, therefore, in causing the injunction to apply not only to the illegal dealings as to the then outstanding tickets, but to like dealings as to similar tickets which might be issued in the future, was but the exertion by the court of its power to restrain the continued commission against the rights of the complainant in the future of a definite character of acts adjudged to be wrongful. * * * The necessary predicate of the decree was the illegal nature of the dealings by the defendants in the outstanding tickets, and the fact that such dealings if allowed would seriously impair the right of the complainant in the future to issue the tickets. Doubtless, for this reason the decree was made without prejudice to the *Page 568
right of the complainant to apply for relief as to future issues of tickets by independent proceedings whenever on other occasions it was determined to issue non-transferable tickets. But this was to deny adequate relief, since it subjected the complainant to the necessity, as a preliminary to the exercise of the right to issue tickets, to begin a new suit with the object of restraining the defendants from the commission in the future of acts identical with those which the court had already adjudged to be wrongful and violative of the rights of the complainant."
The decision in the Bitterman case found that the scalping of the tickets issued violated the present right of plaintiff to its damage and restrained defendants from a repetition of such acts, enjoined them from committing, in the future, acts which had been adjudged to be wrongful and in violation of the rights of and injurious to the plaintiff.
Section 9884.3 provides that the advertising or selling of products at less than the stipulated price constitutes unfair competition and is actionable at the suit of any person damaged thereby.
In New York, New Haven and Hartford Railroad Company v. Interstate Commerce Commission, 200 U.S. 361, 26 S. Ct. 272, 50 L. Ed. 515, the petition of the Commerce Commission averred the Chesapeake and Ohio Railroad Company engaged in the carriage of coal in interstate commerce at less than the published rates and discriminated in favor of the New York, New Haven and Hartford Railroad Company in violation of the act to regulate commerce. The court held that a carrier that had been adjudged to have violated the specific provisions of the act to regulate commerce (maintaining published rates and prohibiting against undue preferences and discriminations) may be restrained from further like violations of the act but should not in general terms be enjoined from violating the act in the future in any particular.
The court stated [200 U.S. 361, 404, 26 S. Ct. 272, 282, 50 L. Ed. 515]:
"The contention, therefore, is that whenever a carrier has been adjudged to have violated the act to regulate commerce in *Page 569
any particular it is the duty of the court, not only to enjoin the carrier from further like violations of the act, but to command it in general terms not to violate the act in the future in any particular. In other words, the proposition is that by the effect of a judgment against a carrier concerning a specific violation of the act, the carrier ceases to be under the protection of the law of the land and must thereafter conduct all its business under the jeopardy of punishment for contempt for violating a general injunction. To state the proposition is, we think, to answer it. Swift Company v. United States,196 U.S. 375."
Plaintiffs assert that "if a blanket injunction may not be properly issued against one who consistently violates this act as a matter of fixed policy, these plaintiffs, and all other retail dealers for all time to come will have no effective remedy to enforce their rights under this act at all. The act will, seriously and literally, be valueless." We cannot agree with this statement. The rights of plaintiffs and other retail dealers must have their source in contracts, the violation of which results in unfair competition and damage to them.
Plaintiffs and other retail dealers will have an effective remedy to enforce their rights when such rights come into existence through the violation of contracts which constitute unfair competition to their damage.
We are of the opinion that plaintiffs are not entitled to the blanket injunction and their relief should be confined to further violations of the contracts referred to in the petition and established at the trial.
The case of Swift Company v. United States, 196 U.S. 375, 402, 25 S. Ct. 276, 282, 49 L. Ed. 518, was a suit for injunction against violation of an act to protect trade and commerce against unlawful restraints and monopolies. The opinion states:
"* * * the criticism of the decree, as if it ran generally against combinations in restraint of trade or to monopolize trade, ceases to have any force when the clause against `any other method or device' is stricken out. So modified it restrains such combinations only to the extent of certain specified devices, which the defendants are alleged to have used and intend to continue to use." *Page 570
On plaintiffs' appeal, the case is affirmed, subject to the modification found in division VIII.
The case is modified and affirmed as to both appeals. — Modified and affirmed.
BLISS, SAGER, MILLER, and HALE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434833/ | Mrs. Helen Moore, surviving spouse of Henry G. Moore, deceased, died intestate on March 15, 1934, leaving at the time of her death as her sole surviving children the defendants, Mae Leget, Maude Boyce, Florence Klinger, and Margaret Renshaw. The plaintiffs Edith Moore Robertson and Irene Moore Hall are the only children of Henry Moore, Jr., son of Helen Moore who had predeceased her. On September 21, 1931, Helen Moore was the owner of the northeast quarter of section 18, township 90, range 37 west of the Fifth P.M. in Buena Vista county, Iowa, she having obtained title to said quarter section by deed from her husband prior to his death. On this date, to wit, September 21, 1931, Helen Moore signed and acknowledged three separate warranty deeds, identified in the record and introduced in evidence as Exhibits 1, 2, and 3. The grantees in Exhibit 1 for 80 acres of said land are Mae Moore Leget and Maude Moore Boyce. The grantee in Exhibit 2 for 40 acres thereof is Florence Moore Klinger. The grantee in Exhibit 3 for 40 acres of said real estate is Marguerite Moore Renshaw. These several grantees are the same identical persons as the defendants in this action. At the time of her death, these deeds were found in a safety deposit box in the Citizens First National *Page 574
Bank of Storm Lake, Iowa, which box had been leased by said bank to Helen Moore, she being a customer of said bank, and said box had been held by her under lease for some time. The banker testified that when a box is rented two duplicate customer's keys are delivered to the customer and a master key is retained by the bank, and that it requires both a customer's key and the master key to enter the box. The box cannot be entered in any other way. He further testified that during her lifetime no one else would have access to this box except Mrs. Helen Moore. After the death of Mrs. Helen Moore, these four defendants appeared at the bank with the customer's key, and Mr. Ralph E. Sheffield, vice president and trust officer of said bank, opened the safety deposit box of Helen Moore and made out an inventory of what was therein contained, including the three deeds in question, and took a receipt which contained a written agreement indemnifying the bank and holding it harmless on account of delivering said deeds to said defendants, which was signed by all four of said defendants. The deeds were then taken by them and placed on record, and bear the filing stamp of the recorder's office of date of March 19, 1934, just four days after the death of Helen Moore, the grantor named in said deeds.
The only question involved in this case is the question of the delivery of these deeds. There is no question of undue influence or mental competency. The plaintiffs rest their case upon the naked legal question, contending that there was no delivery. The appellees in support of the decree of the lower court contend that there is a presumption of delivery from the fact that the recorded deeds were produced at the trial by the appellees and that the burden was on the plaintiffs to overcome by satisfactory proof this presumption of delivery. They also contend that the presumption is supported by other extrinsic evidence bearing on the question of intent to deliver. The testimony is quite brief. The circumstances surrounding the execution of these instruments, as related by Mr. Earl Leget, husband of one of the grantees, is to the effect that he and his wife, Mae Leget, were living at Storm Lake in September, 1931, with Mrs. Helen Moore at her home. He says: "I took Mrs. Moore down town in my car that day. She got out at the bank corner, at Schaller's bank. She went alone. We waited for her because she told us we could pick her up at the bank corner again, then we took her home that same day. *Page 575
"Q. Did you have any conversation — did you hear any conversation that day after you had gotten Mrs. Moore in the car at the bank corner? Did you hear any conversation between Mrs. Moore and Mrs. Leget? A. Yes, sir.
"Q. Did you take any part in that conversation? A. No, sir.
"Q. Will you state what the conversation was?"
Over the objection that the witness, being the husband of one of the defendants and an interested party, was incompetent under the so-called Dead Man's Statute (Code 1931, section 11257), and that the conversation itself was incompetent, immaterial, irrelevant, and hearsay, the witness stated: "Why, Mrs. Moore told Mrs. Leget that she had the deeds all made out and that each girl was to get a forty. She made the south 80 out in partnership between Maude and Mae Leget and the other two forties was deeded separately to Margaret Renshaw and Florence Klinger."
Another witness for defendants, a Mrs. Lucy Bowers, a resident of Storm Lake, testified to the effect that she was acquainted with Helen Moore and lived diagonally across the street from her for something like sixteen years, and that they visited back and forth. She was then asked whether she ever had any conversation or talk with Mrs. Moore about the disposition of this quarter section of land, to which she gave an affirmative answer. She was then asked to relate the substance of the first conversation in regard to the disposition of said land. It appears that this conversation took place during the winter of 1930 and 1931; that in this conversation Mrs. Moore told her that she expected to leave 40 acres to each one of the daughters; that she was leaving to Mae Leget the 40 with the buildings on because she had no home. "Later she told me that Maude, meaning Mrs. Boyce, had lost her place and that she had changed her mind and was leaving eighty acres with the home buildings to Maude and Mae jointly, that she had deeded it to them. That was later when she was at Mrs. Colby's house and it was a year ago last winter.
"Q. What did she say about the other two forties of that quarter section? A. She was leaving a forty to each of her other daughters, Mrs. Klinger and Mrs. Renshaw.
"Q. Did she say she had deeded it to them?" *Page 576
Over the objection that the question was leading and suggestive and that it is incompetent and hearsay, the witness answered: "Yes, she said she had deeded, that was the term or expression she used, to them.
"Q. Who do you refer to when you refer to `them'? A. Well, to the daughters, to her four daughters. The eighty to Mrs. Leget and the forty to Mrs. Klinger, and forty to Mrs. Renshaw — eighty to Mrs. Leget and Mrs. Boyce."
Another witness, Inez Cutshall, testified that she was living in Spencer in the years 1931 and 1932 and that she knew Helen Moore; that Helen Moore resided at her home for a period of time from October, 1933, to the latter part of January, 1934; that she stayed there continuously; that she discussed with the witness the disposition of this quarter section of real estate. She was then asked:
"Q. Did she say to you as to whether or not she had made any disposition of that farm? A. Yes, sir.
"Q. What did she tell you? A. She said she had her businessaffairs settled. She said she had deeds made out for that farm to her four daughters and that at her death they would receive thefarm.
"Q. Did she say at her death the deeds would go to the fourdaughters? A. Yes, sir.
"Q. Did you have any further discussion with her in reference to the quarter section of land in Buena Vista County, Iowa? A. She talked about it many times to me, because I was executor of my father's estate and she was trying to advise me."
[1] Mae Leget, one of the defendants, was placed on the witness stand by the plaintiffs and in response to questions propounded testified that she was present at the Citizens Bank in Storm Lake at the time the safety deposit box was opened in the presence of Mr. Sheffield and saw the deeds taken from the box. She was then asked to identify Exhibits 1, 2, and 3 and stated that these exhibits were the deeds. On cross-examination she was asked this question: "Mrs. Leget, did you know that defendants' Exhibits 1, 2 and 3 were in the bank when you went down there?" Over objection that it was not proper cross-examination, incompetent, immaterial, and irrelevant, she answered: "Yes, sir." "Q. How did you know those deeds were in the bank?" *Page 577
This was likewise objected to because the witness was incompetent under the so-called Dead Man's Statute, and it was not proper cross-examination. She answered: "Well, I was told they were put there for us." Mr. F.F. Faville: "I move to strike this answer." "Q. By whom?" To this question there was no objection. "A. By my mother." Mr. F.F. Faville: "I move to strike this answer because the witness is incompetent under the Dead Man's Statute. It is not proper cross-examination, it is irrelevant and immaterial." We think it must be conceded that the witness was clearly incompetent to testify to any conversation had with her mother, but that the answer that she knew when she went to the bank that the deeds were there must be permitted to stand as competent.
This is substantially all the testimony with reference to the execution and delivery of the deeds, except that the plaintiff Edith Robertson testified to having received from Margaret Renshaw a letter during the month of April, 1934. The letter bears date of April 19th and contains, among other things, the following statement:
"Mother left just enough money lacking about $4.00 to pay all the taxes here on the farm, at Spencer and there in Okla. She had said several times I want to be sure and have enough money to pay all the taxes this spring. In 1930 she made the deeds to us four direct heirs, of her land here in Iowa. Mae gets the Spencer 80 and the car. Florence the NW 1/4 of 160. Myself the NE 1/4 of 160. Maude and Mae S 1/2 of 160. The only thing to do was to goto her bank deposit box. The man in the bank before he turned over anything to us girls took an inventory of everything that was in the box. He found the deeds that had been made over to us girls. The abstract to Okla. farm, etc. * * * There was no disposal made of the Okla. farm and house in Tryon. She had always said the oil rights were to be divided equally between us four girls and you two as one heir," etc.
On cross-examination Mrs. Robertson testified that when she received this letter she knew that the Buena Vista county farm had gone to the four girls; that before she got the letter she knew that the four girls were to get the Buena Vista county farm; that she had had another letter telling her about this. A letter written by Mrs. Robertson to Mrs. Renshaw was introduced as a *Page 578
part of the cross-examination, and in this letter is contained the following statement:
"Aunt Margaret, we aren't a bit satisfied with the way you have things outlined about the property. Of course, we know as well asyou that you folks were to get that Iowa land but you knew too — that this Okla. land was to be ours. Grandmother has always told us that — in fact we aren't the only ones she told. As far as oil is concerned — there never has been any prospects near the farm," etc.
It appears that there was a 160-acre farm in Oklahoma and also some town property that was not disposed of in any manner by Mrs. Moore, and it would appear from this letter that the two grandchildren were expecting the Oklahoma farm and that the girls in Iowa would get the 160 acres, being the land in controversy. The evidence clearly shows without dispute that the grantor, Helen Moore, exercised ownership over this property up to the time of her death and that she rented the property and collected the rent, paid the taxes, etc.
Upon this record the trial court made the following findings of fact:
"In this case it is shown by the evidence in our opinion beyond all question of doubt that Helen Moore during her lifetime intended that the four daughters named in these deeds should have the land described in plaintiffs' petition after her death. This was no secret intention but was so expressed by her on numerous occasions to different people, relatives and friends. As shown by the letter, Defendants' Exhibit 8, the plaintiff, Edith Moore Robertson, admits that she knew that such was the intention of Helen Moore and also discloses the fact that she knew that her sister, Irene Moore Hall, knew of such intention. Of course, it is not the intention entertained by Helen Moore that she intended these four daughters to have this land that is controlling in this case, but it is very important as evidence in the case in determining what her intention was in making these deeds; and the care and custody of them after they were made and the manner in which they were left by her at the time of her demise. In view of this rule of law which we think is firmly established in this state that the question of delivery of these deeds depends largely upon the intention of the grantor, and *Page 579
under the evidence in this case supported by the legal presumption above mentioned, we hold that there was a legal delivery of the three deeds introduced in evidence in this case and that such deeds convey title to the land in controversy to the grantees named in such deeds."
[2] There is considerable confusion in the pronouncements of this court on this question of what is necessary to constitute delivery of a deed. All the authorities agree that to make a warranty deed effective a delivery is necessary. It is equally clear by all the authorities that where a deed is signed, acknowledged, and recorded, the law presumes that it has been delivered. This presumption is, of course, a rebuttable presumption and may be overcome by any competent and satisfactory evidence to the contrary. Stiles v. Breed, 151 Iowa 86, 90, 130 N.W. 376; Browne v. Johnson, 218 Iowa 498, 255 N.W. 862. The settled rule of evidence in this state is that the one seeking to set aside such a deed which is shown to have been signed, acknowledged, and recorded has the burden of showing nondelivery by proof that is clear and satisfactory, and this is true even though the recording is after the death of the grantor. Jones v. Betz, 203 Iowa 767, 210 N.W. 609, 213 N.W. 282; Davis v. Hall,128 Iowa 647, 105 N.W. 122; Burch v. Nicholson, 157 Iowa 502, 137 N.W. 1066; Webb v. Webb, 130 Iowa 457, 104 N.W. 438; Johnson v. Lavene, 196 Iowa 471, 192 N.W. 885.
In the case of Arndt v. Lapel, 214 Iowa 594, 243 N.W. 605, opinion by Justice Grimm, he quotes extensively from the case of Kyle v. Kyle, 175 Iowa 734, 737, 157 N.W. 248, 249, wherein the court said:
"That delivery is essential to the effectiveness of a deed to real estate is elementary, but just what amounts to a delivery is sometimes a question of doubt. Ordinarily it is the simple transfer of possession of the written instrument from the grantor to the grantee with intent on part of the grantor to convey and on part of the grantee to acquire title to the property described therein. But an actual manual transfer of the paper is not necessary. A delivery may be effected by acts without words, or by words without acts, or by both words and acts. Assuming the instrument to have been properly executed ready for delivery, acts and words evincing intent to part with it and relinquish the grantor's right over it is a sufficient delivery. Whiting v. *Page 580
Hoglund, 127 Wis. 135, 106 N.W. 391, 7 Ann. Cas. 224; Woodward v. Woodward, 8 N.J. Eq. [14 Halstead's Ch.] 779, 784. It may be made direct to the grantee or to a third person in his behalf. Owen v. Perry, 25 Iowa 412, 96 Am. Dec. 49; Clarity v. Sheridan, 91 Iowa 304, 59 N.W. 52; Adams v. Ryan, 61 Iowa 733, 17 N.W. 159; Matheson v. Matheson, 139 Iowa 511, 514, 117 N.W. 755, 18 L.R.A. (N.S.) 1167. In final analysis it may be said that delivery is a matter of intent, and any distinct act or word by the grantor with intent to pass the title to the grantee by transferring the deed to him or to another for his benefit is a delivery. Collins v. Smith, 144 Iowa 200, 203, 122 N.W. 839; Kneeland v. Cowperthwaite, 138 Iowa 193, 194, 115 N.W. 1026; Schurz v. Schurz, 153 Iowa 187, 190, 128 N.W. 944, 133 N.W. 683; Criswell v. Criswell, 138 Iowa 607, 609, 116 N.W. 713. It is also well settled in this and other states that a deed duly executed and deposited with a third person with directions to deliver it to the grantee upon the death of the grantor is an effective conveyance; that such a deed vests the grantee with the title, but his right to possession and enjoyment is postponed until the grantor's death. In such case the delivery which the law requires to make a deed legally effective is complete when the deed is placed in the hands of the depositary; but it does not become effective for the purposes of possession and enjoyment of the property until the time comes for the secondary delivery by the person to whose keeping it has been intrusted. Sometimes the rule is stated to be that the transfer of title is effected by the delivery made by the depositary after the death of the grantor, but such delivery takes effect by relation as of the date when the deed was placed in the depositary's hands. The result is the same on either theory."
In the case of Davis v. John E. Brown College, 208 Iowa 480, 482, 222 N.W. 858, 859, opinion by Justice Faville, the deed was deposited with a bank with this written statement:
"This certifies that I have left with the Capital City State Bank, Deeds to certain real estate, now owned by me and described therein, which deeds are to be held by said Bank as Trustee for the Grantees named in said deeds and to be delivered to the Grantees named in said deeds only in case of my decease. Said deeds to be returned to me on demand by me, otherwise to be delivered to said Grantees.
"Sarah E. Davis." *Page 581
The deed was never recalled by the grantor and the court held that this was an effective and valid delivery. It is conceded by the writer of the opinion that the weight of authority is against the conclusion reached by the court in that case. The writer of the opinion states:
"It is a well-established rule that delivery of a deed to a third party, to be held by the third party and delivered to the grantee upon the death of the grantor, there being no limitations or reservations as to such delivery, constitutes a good delivery to the grantee. [Citing cases.]
"In the instant case, the right to recall the deed upon demand of the grantor was expressly reserved in the written instrument under which said deed was left with the depositary. Does such reservation defeat delivery when not exercised?
"It is undoubtedly true that the weight of authority in this country sustains the general rule that, where the power to recall a deed deposited with a third party is reserved to the grantor, there is no effectual delivery, and the deed cannot take effect. See 18 C.J. 210, and many cases cited. This is obviously true where the right to recall is exercised by the grantor. In 18 C.J. 210, it is also stated: `In a few cases, a power upon the part of the grantor to recall the deed has been held not to invalidate the delivery, where such power was not exercised during the lifetime of the grantor.'
"This statement of the text is supported by citations to three cases: Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, and two cases from this court, Newton v. Bealer, 41 Iowa 334, and Lippold v. Lippold, 112 Iowa 134, 83 N.W. 809, 84 Am. St. Rep. 331. It is upon this exception that appellant relies.
"A brief review of some of our cases seems essential at this point. In Newton v. Bealer, supra, there was no delivery whatever to a third party as custodian.
"In that case the grantor executed a deed, naming a minor son as grantee, and placed the deed in a chest in the grantor's room. Four or five days before his death the grantor said to a son, not the grantee, pointing to the chest: `After I am gone the deed and will will be found in that chest.' A few hours after grantor's death the deed was so found, and subsequently delivered to the grantee. We held that the intent of the testator was to pass title, and that there was a valid delivery. In the course of the opinion, we said: *Page 582
"`Where one who has the mental power to alter his intention, and the physical power to destroy a deed in his possession, dies without doing either, there is, it seems to us, but little reason for saying that his deed shall be inoperative, simply because during life he might have done that which he did not do. It is much more consonant with reason to determine the effect of the deed by the intention existing up to the time of death, than to refuse to give it that effect because the intention might have been changed.'
"We have recognized the rule that, not only in the case of a dependent minor child, but even as to one not so situated, the execution of a deed and placing the same in the grantor's own box or other receptacle, and wholly under his control until his death, constitutes a good delivery where there was evidence showing such was the intent of the grantor. McKemey v. Ketchum,188 Iowa 1081, 175 N.W. 325; Tallman v. Cooke, 39 Iowa 402; Foley v. Howard, 8 Iowa 56, 60; Stow v. Miller, 16 Iowa 460, 463. See, also, Foreman v. Archer, 130 Iowa 49, at page 55, 106 N.W. 372. In McKemey v. Ketchum, supra, we said:
"`The authorities are overwhelmingly opposed to the argument that the keeping of physical control of the paper by the grantor is conclusive against delivery. It has been ruled many times that an effective delivery of a deed is not negatived because it remained in the physical power of grantor to retake the deed, or because he retained mental power to alter his intentions. * * * Where one had the mental power to alter his intention and the physical power to destroy a deed in his possession, and dies without doing either, there is but little reason for saying that this deed shall be inoperative simply because, during life, he might have done that which he did not do. It is much more consonant with reason to determine the effect of the deed by the intention existing up to the time of death than to refuse to give it that effect, because the intention might have been changed. * * * We hold that the decree cannot be sustained merely because grantor kept the deed in his own box, and retained the power to destroy the deed — a power which he did not exercise. We recur to the point that all required is evidence that grantor intended to pass title.'
"In the foregoing cases the deed was in the custody of the grantor or under his immediate control." *Page 583
The writer of the of opinion then considers some of the cases where the deed was lodged with a depositary and finally concludes:
"Where a man executes a deed and places it in his own safety box, or in a satchel or chest in his room, and where it is wholly under his control to destroy if he sees fit, and he does not do so, we have held that, where extrinsic evidence discloses an intent to deliver, such a situation constitutes a legal delivery of the instrument to the grantee named. Logically there seems to be no escape from the conclusion that if such a grantor, instead of placing the deed in his own box and under his immediate control, places it in the hands of a third party, reserving the right to recall it, but fails to do so, and the extrinsic evidence shows an intention that the title should pass under the deed unless it was so recalled, this also constitutes a good delivery. In either case the grantor has the right and the physical ability to destroy the instrument, and if delivery is good in one instance it would appear to be good in the other."
The opinion concludes with this language:
"It may be that the rule announced herein is contrary to the weight of authority in the country, but it is a rule of long standing in this state, and is consistent with our previous cases. We are not disposed to depart from it at this time."
In the instant case the grantor made the deeds in question and on the very day of their execution told one of the grantees what she had done, freely talked to the neighbors, both of what she intended to do and of what she had done, stating that she had deeded the property to these girls. The deeds were placed in her safety deposit box in the bank, and, so far as this record is concerned, they were never disturbed thereafter. The grantees knew where the deeds were, they had in their possession the key to the deposit box. When and how they came into possession of the key is not shown by the record. Counsel for plaintiffs emphasize the fact that in the letter, Exhibit C, written by one of the grantees to the plaintiffs in April, 1934, the writer stated, "He found the deeds that had been made over to us girls," and from the use of this word "found" it is argued that the existence of the deeds was unknown to the grantees and that the writer of this letter used the word "found" in the sense that they were *Page 584
"discovered." The letter when read as a whole will not bear out this interpretation. In fact, it might be inferred from another sentence in the letter that everything had been arranged between the mother and the daughters. She says in the letter: "The only thing to do was to go to her bank deposit box." It may fairly be inferred from this letter that she uses the words "the only thing to do" in the sense that the mother had made the transfers and everything had been done that was necessary to be done and that nothing remained to be done except to go to the deposit box at her death and take up the deeds. This interpretation is in accordance with testimony of the disinterested neighbors and is also in harmony with the testimony of Mr. Leget, who testified to overhearing a conversation between the mother and her daughter Mrs. Leget the day the deeds were executed, and in harmony with the actions and conduct of the grantor in permitting the deeds to remain in the deposit box until her death.
While the writer of this opinion, if it were an original proposition, would not be inclined to go to the extent of the rule laid down in the recent case of Davis v. John E. Brown College, supra, yet, in view of the fact that it appears to have been fully, carefully and thoroughly considered, and was decided as recently as June, 1929, and although the rule thus announced is, as we think, contrary to the great weight of authority on the subject, it has support in a few of the prior pronouncements of this court beginning with the case of Newton v. Bealer, 41 Iowa 334, which is reasserted and adhered to in this recent case, and we are not inclined at this time to interfere with the rule thus established and so long adhered to in this state. We think the facts bring this case squarely within what we will call the "minority rule" announced by Justice Faville in the John E. Brown College case, supra, and the decree of the lower court is therefore affirmed. — Affirmed.
ANDERSON, C.J., and ALBERT, MITCHELL, DONEGAN, POWERS, and RICHARDS, JJ., concur. *Page 585 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434834/ | The defendants were arrested in Wapello county on September 12, 1931. They were strangers, who had come into the city of Ottumwa and were engaged upon the golf grounds in a game of golf at the time of their arrest. They had stopped in Ottumwa briefly the day before, and had gone from there to Boone and from Boone to Des Moines, and from Des Moines to Ottumwa again. They rode together in a large Packard car of one hundred horse power. While they were engaged in their game at the golf grounds, the sheriff and his deputies searched their car and found therein the following contents:
"Winchester rifle, wreaking bar, sledge and handle, steel hacksaw, battery and box, two large gun clips, and one small clip, two screw drivers, one punch, two bars of soap, adhesive tape, steel drill, three revolvers, two boxes of shells, two gloves, bottle containing nitroglycerin, two Ohio license plates, two small files, license certificate from Indiana, certificate of title to motor vehicle and sale slip for sledge." (The firearms were all fully loaded.)
[1] Furlong, as a witness, assumed the ownership of the car and its contents, and absolved the other two men from all responsibility. He testified also, in the same connection, to his own innocence of any wrongful intent. The evidence introduced by the state was quite abundant to sustain a verdict of guilty. The principal controversy developed in the evidence was whether the instruments found in the Packard car were burglar tools. The state used expert evidence upon that question. The substance of the evidence for the state was that each item of the property thus discovered was suitable for use for burglary purposes. Concededly they could each and all be used likewise for legitimate purposes. Because of *Page 430
an alleged error in the admission of one item of testimony, we set forth herein the state's redirect examination of its expert witness, Pettit:
"Q. Well, was there any — I will put it this way, then, from your experience over the last seventeen years state whether or not the tools there — and implements which are on this table are — could be used as a complete set of burglar tools? A. They could be.
"Q. And I believe you testified that any one of them might be considered a burglar tool? A. It could be used for that purpose.
"Q. It could be used for that purpose? A. Yes, sir.
"Q. Mr. Pettit, Mr. Duke asked you about — did you ever see a tool that was made — that had stamped on it burglar tools? A. No, sir.
"Q. Do you know of any manufacturer that makes a specialty of making burglar tools? A. No, sir.
"Q. And isn't it a fact — or what is the fact, Mr. Pettit, as to whether or not the tools that you ordinarily find or have found in your experience at places where there had been burglaries, as to whether or not those tools could be used also for legitimate purposes? A. They could.
"Q. And so burglar tools, in your experience and observation, have you observed whether burglar tools are such tools that they could be used, for instance, for other purposes also? A. They are.
"Q. And take, for instance, this sledge here; take a sledge of this kind. Could you drive a fence post with that? A. Yes, sir.
"Q. Take this — if a carpenter — if you found that in the possession of a carpenter who was a good, reputable citizen, and who was in the carpenter business, that might not necessarily be considered a burglar tool, would it? A. No, sir.
"Q. Or if you found this sledge hammer in the possession of a man who was a farmer or a mechanic or garageman or something like that, that might not necessarily be a burglar tool at all, would it? A. No, sir.
"Q. Or take, for instance, this steel saw here, if you found that in a garage, in with the regular garage set of tools, that might not be a burglar tool in itself at all? A. No, sir.
Q. But taking those — supposing now that these guns and *Page 431
these other equipment — supposing that these guns were found in the same car with these other tools and hacksaw and bar and Winchester rifle and radio `B' battery and soap and tape, supposing that there was found in that car a half pint bottle of nitroglycerin, what would you say as to whether or not these guns, from your experience and observation, would be used for burglary purposes?
"Mr. Duke, I object to that as an ultimate conclusion that the jury has got to reach, not for him to say.
"The Court: He is testifying here as an expert. He may answer. (All of which was duly excepted to at the time.) A. Yes, sir, they would be."
The appellants assign error upon the use of the word "would" above italicized in the last question propounded by the state. It must be conceded, we think, that the court erred in permitting the question to be answered in that form. It was permissible to the state to prove what each instrument could be used for and that it could be used for purposes of burglary. It was proper also to prove that such an instrument was frequently used in cases of burglary. With the exception of the use of the word "would" in the single instance, the examination of the expert witnesses was held to the question as to what these instrumentscould be used for. The question confronting us is whether the error in the ruling of the court was sufficiently substantial as to be prejudicial. For the purpose of getting light upon the intended meaning of the objectionable question, we have set forth above its preceding context. From the examination as a whole at this point, it is obvious that the intent of the question and answer was to show that the instruments under consideration by the witness were of the kind that "would be used for burglary purposes." The defendants concede in effect that the jury was properly instructed as to the law, and no complaint is made of the instructions; nor are they set forth. Correct instruction would of itself put the objectionable question and answer in their true light. It is quite inconceivable that the error, such as it was, could mislead the jury or operate prejudicially. Therefore, though we recognize the error in a formal sense, we are compelled to say that it could not have been prejudicial.
[2] II. No other specific ground of reversal than that above indicated is presented by the appellants. It is earnestly urged, however, there was no sufficient proof beyond a reasonable doubt that *Page 432
these particular defendants were in possession of the alleged tools; and none that these particular defendants had any intent to use such tools to commit a burglary.
Proof of the possession by each of the defendants was quite abundant in a legal sense. The three indicted men were without dispute in apparent joint possession of the automobile and of its contents. Granted that the "apparent" was subject to explanation and contradiction, the defendants had their opportunity in that respect. The credence to be given to explanation or to denial was a question for the jury.
As to intent, it was not required that it be proved by direct evidence. Intent is seldom so proved. The jury could start with the inference that the possession of the tools had some purpose, either lawful or unlawful. Whether the purpose was a sinister one would naturally be reflected by the circumstances surrounding such possession. The defendants purported to make an explanation as to most of the instruments. It was not persuasive. They were strangers in Ottumwa. They had no apparent business there. They claimed a residence in Indiana. They all carried "aliases". Each of them adopted different names in different places. The only occupation claimed by Kelso was that of a professional golfer; and by Brown that of a gambler. Their codefendant and witness, Furlong, had served a term in prison for robbery. The jury could have found under the testimony, including that of the defendants, that they had no use for, and no purpose to use, any of the instruments found in their possession, except a sinister one. The fact that virtually every instrument found could be rendered useful in a burglary was an initial circumstance on the question of intent. The fact that most of these instruments, if not all of them, had no particular connection with the operation or care of an automobile; and, furthermore, the fact that the transportation of these instruments in an automobile served only to separate them from contact with the legitimate uses for which they were adapted, — that their legitimate use would naturally confine them to the home or to the shop or to the place of business, — were all circumstances of substantial significance. True, a Winchester rifle might be used to shoot ducks, as claimed by the defendant. But they could not shoot ducks in Ottumwa, in Boone, or in Des Moines. A .45 Colt revolver and a .38 Smith and Wesson could be used, it is true, in self-defense, but it is the exceptional few that so use them. These *Page 433
carried ammunition to the limit. Nitroglycerin may be conceded a legitimate use. But the defendants had no legitimate use for it in Ottumwa or in Iowa anywhere. The sledge was purchased in Des Moines by Kelso on that very day. The seller of the sledge testified that Brown was with him at the time. Kelso testified that it was Furlong who was with him. His explanation of the purpose of the purchase was sufficiently flimsy to justify its rejection by the jury. Such explanation was that at one time he had had trouble in taking off the hub cap of his automobile. He found it necessary to tap the hub cap with a hammer in order to loosen it. Such was the purpose of the purchase. His automobile was in Indiana at the time of the purchase. This is perhaps a sufficient indication of the nature of the circumstances, which the jury had a right to consider in arriving at the intent attending the possession of these tools. See, also, Code, section 13000.
Except as already pointed out, there is no error in the record.
The judgment below is accordingly affirmed.
KINDIG, C.J., and DONEGAN, CLAUSSEN, ALBERT, and STEVENS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434848/ | This is an action brought in September, 1934, by Alma Mastain, daughter of John Yung, and Jesse O. Kober, administrator of the estate of John Yung, to cancel certain conveyances of real estate and personal property from John Yung to defendants in December, 1928, on the grounds of mental incompetency and undue influence. The trial court found for the defendants and dismissed plaintiff's petition.
John Yung and his wife were married in 1902. He was 17 years her senior. A daughter, Alma, the plaintiff in this case, was born in 1904. On November 25, 1919, at which time the daughter was 15 years of age, Mrs. Yung obtained a divorce and received $14,000 alimony and the custody of Alma. The daughter testified for the mother in the divorce proceedings. After the divorce, it appears that Yung deeply resented the attitude of his daughter and her conduct and entertained a bitter feeling toward his wife and daughter and resolved with a fixed, continuing determination that his daughter should not have any of his property. The wife married a neighbor of the Yung family about a year and a half after the divorce. Mr. Yung executed wills in April, 1920, and in July, 1923. Each will provided for a trust for the benefit of his mother and cousins in Wisconsin, and stated in regard to his daughter in part as follows: *Page 70
"ITEM IX. I make no provision in this, my last will and testament for my daughter, Alma Yung. At the September 1919 term of the District Court of Black Hawk County, Iowa, my wife secured a divorce from me, which gave to her the care and custody of my said child. Previous to said divorce my said daughter had of her own motion left my home, gone to her mother when she must have realized that the conditions in my home at La Porte City were such that her assistance was needed. There was no one in this home except myself and my aged mother, and my mother was hardly able at her age in life to do the work that was thus imposed upon her by the desertion of my daughter from our home. Since the decree of divorce was granted, I have not heard from my said daughter, nor has my mother, although she has been living in the same County with us and only a short distance away. I cannot escape the conviction that my said daughter cares absolutely nothing for me, nor for my mother, and is not interested in any way in our welfare. A large portion of my present property holdings, which consist mainly of two farms, one a few miles west of La Porte City, Iowa, and one near La Porte City, Iowa, were obtained by a gift from my mother with the understanding that I should take care of her as long as she lived. While I have not in any way been influenced by my said mother in the disposition of my property, yet I cannot help but feel that under the circumstances she would desire to have the property she gave me ultimately pass to her niece and nephews rather than to one who gives her absolutely no consideration. My daughter is now in her seventeenth year and old enough to respond to the dictates of her heart and mind. She has chosen absolutely to ignore and abandon me and my mother, much to my sincere regret, and owing to her attitude I feel amply justified in disposing of my property as indicated in this will."
It is thus apparent that Mr. Yung disinherited his daughter long before defendants were charged with exercising undue influence over him.
As the years passed he formed the conclusion that the Wisconsin relatives were not interested in him and decided to convey his property to the defendants, whom he had known for many years and, so far as disclosed by the record, were his closest friends and had befriended him. On November 17, 1928, *Page 71
he had an operation for hernia and hydrocele in Cedar Rapids. Upon his return home the latter part of the month, the defendants, Charles Geren and his wife, at the request of Yung, gave him all necessary care and attention at his home in La Porte City. On December 27, 1928, Mr. Yung told the defendants, Geren and John Butschy, that he wanted his business fixed up and to go to Vinton and get Clarence Nichols, an attorney. Finding that Mr. Nichols was then a judge of the district court, they went to their friend and acquaintance, D.C. Knupp, an abstracter in Vinton, who recommended attorney John W. Tobin. Geren and Butschy returned to La Porte City and advised Mr. Yung of the situation, and Mr. Yung stated that Mr. Tobin was satisfactory to him, and Geren then phoned Mr. Knupp to bring Mr. Tobin to the Yung home in La Porte City. Mr. Knupp then told attorney Tobin that Mr. Yung wanted to convey his property to defendants who stated that he would accept the employment if he found Mr. Yung was capable of conveying his property.
On December 29, 1928, Mr. Tobin, Mr. Knupp and Mrs. Roszell, a stenographer in the office of Mr. Knupp, went to the home of Mr. Yung, and the various instruments were drawn in their presence and in the absence of the defendants. Mr. Tobin testified that he had a preliminary conversation with Mr. Yung and arrived at the conclusion that he was competent and knew what he was doing; that he decided that if Mr. Yung should not live but a short time there might be trouble, and he decided a record of what was said and transpired should be made and shorthand notes were made of the statements of Mr. Yung and the conversation had prior to executing the instruments which notes were signed by Yung. In addition to the notes, Mr. Yung executed on December 29 a statement explanatory of and in connection with the transactions. The first paragraph of the statement reads as follows:
"I, John Yung, of La Porte City, Black Hawk County, Iowa, hereby make the following statement and provisions relative to my property."
He then revoked all wills, stated he had made conveyances of certain real property to the defendants and personal property to D.C. Knupp as trustee for John Butschy, describing all *Page 72
property in detail, and confirmed the conveyances. He then stated:
"I desire to now state my reason for the things I have done today. I have been advised that I am doing an unusual thing by transferring my property and putting the same entirely out of my control during my lifetime. I have done so because the parties whom I have transferred my property to have been kind to me and have helped me and have lead upright lives and I wish to reward them for their friendship in preference to members of my family.
"Since the divorce of my former wife about ten years ago my daughter Alma has not recognized me as her father, has not helped me or shown any interest in my welfare and has not even come to see me on the numerous occasions that she has come back to visit La Porte. I have further been advised from sources that are authentic that my daughter has been conducting herself in certain ways which I do not approve. I therefore do not want my daughter Alma to have any of my property.
"I have some cousins who have not shown any interest in me and I do not consider the mere fact of distant relationship should control me as against other matters. In fact there are no blood relatives whom I consider as deserving of my property as the friends who are named above.
"This paper and all instruments made this date have been made and signed by me as the result of months of thought, and after I have fully discussed the plan with disinterested persons. The beneficiaries above named have never asked me to give them said property or any property and this disposition of my property is solely the result of my own conclusions, uninfluenced by any persons."
This instrument was witnessed by Mr. Tobin, Mr. Knupp and Mrs. Roszell.
The notes were transcribed and introduced in evidence by defendants. They disclose his statements that he did not want his daughter or his cousins to have his property; that he wanted it to go to his friends, the defendants, "who have helped me and done a whole lot for me and may have to do a whole lot more." He further stated that his daughter did not speak to him; did not attend his mother's funeral; that he was not anything to her; that she went with a fellow for 10 years all times *Page 73
of night; that he did not know whether she was married or not; that she never treated him like a father; that she said she hated him; that she testified against and lied about him; that his cousins did not care for him, had paid no attention to him and waited for him to die; that his daughter did not deserve his property; that the defendants knew nothing of his intentions to give the property to them; that he was compelled to pay more alimony to his wife than she was entitled to.
The transcribed notes showed that the following took place:
"Mr. Tobin: This is an unusual procedure and I hesitate a good deal. A lawyer does not like to get into something where someone can say the lawyer pulled the wool over the eyes of an old man. I want to know absolutely that you know what you are doing because I don't want to undertake anything unless you do, because this is somewhat different than making a will. Just as you have been advised in the past you are transferring your property. Ordinarily it is not the good thing to do. It is your right to do as you wish with your property.
"Mr. Yung: Yes, yes a man should be aware of what he is doing.
"Mr. Tobin: Then I believe we are probably ready to make out our papers and that will take us some little time. We won't hurry with this so that you will be protected.
"Mr. Yung: I want the use and control while I live, so that I can do as I please now.
"Mr. Tobin: You can have whatever tenant you want and can have the income. You understand that if you make a deed it cannot be changed now?
"Mr. Yung: I have been told that if I do that I cannot change it."
Mr. Yung exacted a $10,000 bond from the trustee. Mr. Yung, not only in his formal wills and written statements made at the time the deeds were made, but to several witnesses, stated the reasons why he did not desire his daughter to have his property and also stated why he desired to give his property to the grantees.
All of the conveyances were dated December 29, 1928. The grantor conveyed to D.C. Knupp, as trustee for John Butschy, fourteen securities aggregating over $10,000.00. The trust provided that the income should be paid to the grantor, and if the *Page 74
income proved insufficient the trustee was required to pay a sufficient amount of the principal necessary to provide the comforts and necessities desired by the grantor. The trust further provided that the principal should be held by the trustee to guarantee proper care of first party in his last sickness and provide him with a suitable burial, including the installation of a monument to cost not less than $500. The grantor required a $10,000 bond of the trustee, which was furnished.
The grantor also conveyed his residence property in La Porte City to John Butschy, reserving the right to use, occupy and receive the rent from the premises, if any, during his lifetime. The deed made one-third of the expense of his last illness and burial and the cost of the monument a first lien on the premises. Mr. Yung conveyed to Fred Butschy 84 acres in Black Hawk County reserving from the rents and profits of the farm $350 to be paid by the grantee annually on or before January 1st of each year during the life of the grantor. The deed further reserved the right to a sufficient additional amount of the rents and profits to annually pay the taxes and necessary repairs during the lifetime of the grantor, and all of said reservations were made a first lien upon the real estate. The deed also made one-third of his last illness and burial expense and the cost of the monument a lien on the real estate.
The grantor conveyed to the defendants, Charles Geren and wife, 154 acres of real estate making the same reservations as in the deed to Fred Butschy, except that Geren was required to pay $500 annually to the grantor.
The grantees performed all conditions of the conveyances until 1932, when, on account of the depression, the grantees were unable to make the required payments in full. On September 8, 1933, John Yung and the grantees in the conveyances entered into an agreement which contained the statement that: "Whereas, several years ago a contract was made by C.G. Geren and wife Carrie, and John Butschy and Fred Butschy agreeing to pay to John Yung the sum of $850.00 annually during the period of his life time and whereas said Geren is now providing said John Yung with a home, board, clothing, and other things necessary to his comfort, but the said obligors under said contract are unable to make said payments due to present prices and on account of the above conditions said John Yung does now make and enter into this agreement from and after this *Page 75
time." The agreement then provided for an extension of time in which to make the required payments.
The deeds were recorded by Mr. Knupp in January, 1929, and delivered to the grantees.
Appellant claims in reference to John Yung's competency to execute the deeds:
(1) That John Yung was mentally incompetent generally.
(2) That John Yung was a monomaniac as to his daughter.
(3) That his general mental incompetency and his monomania combined go to make him wholly incompetent to execute the instruments in question.
The main witnesses for the appellant were the appellant, Henry Peterson, husband of the sister of the divorced wife of John Yung, and Jesse Kober, administrator of the estate of John Yung, on the petition of Alma Mastain with whom John Yung did not have very friendly relations.
Appellant Alma Mastain testified in regard to the situation in the family prior to the divorce. She stated that her father bought her few clothes; that her mother worked hard, earned money and supplied her with clothes; that her father was harsh and stern with her during her childhood days; Christmas was a dreary day for the family because Mr. Yung would not allow Christmas trees or decorations; he would not buy the necessary eyeglasses for her; he would not permit her to go to the theatre; he had a quick temper and, when angry, was profane. She stated that her father wanted a boy and was sorry that she was born. The substance of the appellant's testimony in regard to her father's general mental incompetency is that she had an unhappy, circumscribed, loveless childhood in the home of a harsh, stern, miserly father. When Alma's mother left home in 1919 and started the divorce proceeding, she stayed six weeks with her father and his aged mother.
Alma Mastain further testified that the next night after her mother left, her father induced her to sleep in his bedroom where there were two beds; that each night during the six weeks her father occupied her bed with her and solicited sexual intercourse; that her father did not at any time have intercourse with her; that he told her if she told anyone of his advances, or told her mother and she used it in the divorce suit, he would kill them both; that the court would give him custody of her and that then she couldn't repulse him as she had been doing. *Page 76
The appellant further testified that whenever her mother would go away to work for a day she dreaded to see her go because she knew what would happen. Her father would grab her and she was too small to defend herself. Her father told her that no one would believe her if she told and that her mother would probably scold her and the only thing to do was to keep it to herself.
The record does not show that Alma ever complained to her mother about the misconduct of her father.
She also testified that her father always kept a loaded revolver in the house.
At the end of the six weeks' period, Alma left home and stayed for some time with different neighbors.
She complained that her father did not come to see her and never sent her any messages, though accusing him of immoral conduct.
The day she left her father's home, she told a neighbor of the advances made by her father. Mrs. Mastain testified for her mother in the divorce proceeding and in connection therewith signed an affidavit severely condemning her father, referring to his profanity, obscene and vicious language and his unreasonable attitude about her social life and clothes etc. The affidavit made no reference to misconduct.
After the divorce, she made no attempt to visit her father though in La Porte City frequently. She stated that she never lived again a day or a night at her father's home after she left and during all of the years she maintained very intimate and friendly relations with her mother. She also stated that she was afraid of her father.
The deeds were recorded in 1919 and Mrs. Mastain did not question her father's competency to make the deeds until after his death and five years had elapsed since the making of the deeds.
Mrs. Kober, wife of Jesse Kober, testified that Mr. Yung's appearance was unkempt; that she never saw him have but one hat in twenty years; that he wore overalls on Sundays except when he went to a funeral or some special occasion; that his hair was rather long and not cut often; that she remembers seeing Mr. Yung going into or coming out of the outside toilet which faced her kitchen window and she observed him coming *Page 77
down to the sidewalk with his clothes open in front and indecently exposed; that she noticed this several times.
Mr. Yung died on September 23, 1933. Mrs. Kober and another neighbor testified that Mr. Yung would not permit his daughter to be notified of the death of his mother in 1925.
Henry Peterson, brother-in-law of the decedent, testified that Yung told him the reason he was not going to let his daughter have any property was because she had reported the incident of the advancement he made upon her and because she wouldn't submit to his advancement and had made it known and he was going to disinherit her, and that her statement was true; that Mr. Yung would put his right shoe on his left foot and his left shoe on his right foot and he didn't seem to know the difference; that Mr. Yung trapped his neighbors' chickens and used them; that before the instruments were made, Mr. Yung told him he had a friend but didn't tell me who the friend was until the instruments were made. After the instruments were made he said the Gerens were the friends he referred to; that there was a bad odor about Mr. Yung. The witness stated in the years of 1928 and 1929 that Mr. Yung was insanely miserly and revengeful and he didn't know the difference between right and wrong between human beings. On cross-examination, the witness testified: "It seems 10 years before he died I saw him put the right shoe on the left foot and reached the opinion that he was a very insane man. I took some of that into consideration as an element and as a cause. I am not sure how many times it was, it was more than once. I remarked to him about putting the shoes on the wrong feet and he laughed about it."
The witness further testified that he would not call Mr. Yung a healthy man and then stated in his declining health he walked to Waterloo and carried back to La Porte, a distance of about sixteen miles, some seed. The witness also testified that he sometimes slept with John Yung after his mother died and that on one occasion he saw Yung take a rubber tube five or six feet long to bed with him, and that incident helped him to think he was an insane man. He thought Yung was a thief because of the chicken incident.
Mrs. Frahm, his divorced wife, testified that Yung had a violent temper; that he always kept a loaded revolver because he had a feeling that someone was coming after him or would *Page 78
do something to him; that when he was angry he would say he wished everything would burn up alive; that he did not believe in churches; that Mr. Yung stated that Alma did not need any more education because she had more than he ever got when he was twelve years old.
Mr. Kober, administrator, testified that in the fall of 1932, Mr. Yung stated to him: "I am a sick man. I am sorry for what I done. I was taken advantage of when I was in a sick condition and signed papers that I didn't know anything about. They promised to give me good care. I believe they are, such as they think I should have, but they really promised me better care than they are giving me."
The defendants offered the following testimony:
W.M. Blough, an attorney of La Porte City, testified that he had been acquainted with Mr. Yung for many years and had transacted much business with him before 1928; that he prepared the will dated July 6, 1923; that Mr. Yung stated to him that he didn't want his daughter to have any of his property; that the will was carefully read over to him before he signed it; that in his opinion, Yung was of a sound mind on the date of the will and that he was of sound mind in December 1928, and February, 1929.
Mr. Kline, who lived adjacent to Mr. Yung for twenty-five years and who talked frequently with him and observed him, testified that he was of sound mind in 1928 and 1929.
Mr. Milne, who was engaged in the grain business in La Porte since 1910, testified that he knew John Yung for twenty years; that Mr. Yung traded with him; that he was a shrewd business man; that he never heard Mr. Yung talk in any way that was not sensible; that he was of sound mind in 1928 and 1929; that Mr. Yung told him several times that his daughter lied against him, sided with her mother and made false statements about him and that she would never get a dollar of his property.
Mr. Brecher, pastor of the Evangelical Church of La Porte, testified that he visited Mr. Yung at his home in 1932 when he was sick with pneumonia; that in response to his statement that Mr. Yung was looking good and well taken care of he said, "Yes, they are taking care of me finely." The witness further testified that he asked if he felt like contributing to the church and Mr. Yung said that he had everything arranged as he would *Page 79
like to have it; that the witness never observed anything unusual; that he seemed to be rational and knew what he was doing.
Dr. J.J. Murphy, who operated on Mr. Yung in November, 1928, stated that Mr. Yung was of sound mind.
Dr. Page, physician of La Porte for fifteen years, testified that he knew John Yung for thirty years; that Mr. Yung was his patient; that he drained the hydrocele in March, 1927; that he saw Mr. Yung in September, 1928, in January, 1929, four times and several times in February and March, 1929, also in 1930; that he never noticed any incoherence in his speech; that he didn't observe anything unusual in his conversation or talk; that he was of sound mind in 1928 and 1929. On December 8, 1930, Dr. Page prescribed a tonic for loss of appetite because he felt weak and was running down.
Dr. Fields, a practicing physician of La Porte, knew the decedent for over twenty years; was his patient from 1922 until December, 1933. The witness saw the decedent frequently in 1932 and until the middle of 1933, which was the year he died; that he considered Mr. Yung a man that was alert mentally, especially concerning business affairs; that while he was acting as his physician in 1932 and 1933, Mr. and Mrs. Geren were taking care of him very good.
Mr. John Tobin, attorney, testified to the statements made by Mr. Yung prior to the execution of the deeds which were taken down in shorthand. Mr. Tobin stated that he told Yung that he considered it was a mistake to deed his property; that he made it a practice to advise people not to convey their property while they were alive and that it was better for Yung to retain his property until his death and let the will become effective upon his death. Mr. Yung stated that he didn't want the matters to wait until his death, because he had this daughter; that he wanted to be sure she should not have any of his property; that he felt that the Wisconsin cousins were not interested in him and were merely waiting for him to die and he wanted to make the papers immediately and put the papers into the hands of his friends so that it would be done in his lifetime.
In addition to the complaints of the decedent of the personal treatment of him by his daughter, he stated to the witness that from sources he knew were accurate he knew that she was *Page 80
doing things that she should not do; that she had been going with a man for many years, staying up all hours of the night.
The only medical testimony offered by the appellant was that of Dr. Stewart, superintendent of the hospital for the insane.
In answer to a hypothetical question propounded by the appellant, Dr. Stewart stated that the decedent was not of sound mind.
This question did not, as to the alleged monomania and delusion of Yung, include any of the many reasons given by him why he disinherited his daughter.
In answer to a hypothetical question containing such reasons propounded by appellees, Dr. Stewart stated that on the facts stated in the question, that the decedent was competent.
The appellant in reference to her charge that her father was mentally incompetent generally, contends that because he was miserly; that he was sorry she was born; that he disliked his daughter; that he disinherited her; that he objected to the participation of his daughter in church and social matters; his attitude toward Christmas; his threats to kill, (there was no attempt to carry out any of his threats); his suspicious attitude toward people; his slovenliness; that he stole some chickens and an iron bar and wore his shoes on the wrong feet sometimes; took a piece of garden hose to bed with him; his cruelty to animals; his vicious temper, establishes the insanity and incompetency of Mr. Yung. Most of the testimony of appellant refers to acts occurring during the marriage relation and long before the deeds were executed.
Aside from the alleged immoral conduct of Mr. Yung, Mrs. Mastain, in her testimony, portrays her father as a harsh, stern, high-tempered man devoid of sentiment and fatherly instincts, lacking in affection and tenderness for his wife and daughter, unsocial, somewhat dishonest and unkempt in appearance.
Appellants' evidence is not persuasive that Mr. Yung was of unsound mind to a degree that would avoid the deeds.
So far as shown by the record, Mr. Yung looked after his personal and business matters at all times and at the time of the execution of the deeds he had not failed mentally or physically to any appreciable degree.
We turn now to what appellant characterizes as attempted rape by her father. No complaint was made by the 15 year old *Page 81
daughter to her mother at any time. During the 6 weeks the father slept with her (she states it was every night) appellant does not claim that he had intercourse with her or used any violence or force. She does claim that he made improper advances toward her. Apparently she did not take her father's threat to kill seriously, as she told her story to several neighbors as soon as she left her home. In the divorce proceeding appellant signed a long affidavit condemning her father but made no mention of immoral conduct.
[1] One of the contentions of the daughter is that her father was a monomaniac, that he had a derangement of the mind in regard to her. Appellant states in her argument that he knew, or should have known if possessed of sufficient mentality, that he forced his daughter to leave home because of his immoral conduct and therefore his expressed belief that she lacked affection and concern for him and paid no attention to him because she did not care for him was the delusion of an insane mind; that having forced his daughter from the home by his conduct, his subsequent attitude toward her must have been based upon hallucination and an illusion that his daughter had no affection for him and therefore he was insane and of unsound mind. The appellant further states that if John Yung attempted to attack his daughter, the finding of such fact clearly establishes him to be a monomaniac whose acts were dictated and controlled by his delusion and false suspicion about his daughter.
Monomania is generally defined as a derangement of the mind in regard to a single subject, an insanity upon a particular subject only. A belief is not an illusion if there is any evidence to support it.
[2] Firestine v. Atkinson, 206 Iowa 151, 218 N.W. 293, is a leading case on the subject of monomania, and its essential requirements.
In that case it was contended that the testator possessed an insane illusion that his daughter was an immoral woman and that he intended to disinherit her on that account. The court in the Firestine case stated on page 159 of 206 Iowa, 218 N.W. 293, 297:
"The basis for holding that a belief is an insane delusion is that it is harbored without any evidence to support it. The testator being dead, and having failed to offer any explanation *Page 82
or make any statement regarding the facts from which he claimed that he `knew' that appellant was immoral, the appellant was handicapped to prove that the conclusion of the testator was wholly unfounded. But it is elementary that, before a belief of this character can be held to be an insane delusion, it must be established that the belief is wholly false. It therefore was incumbent upon the appellant at least to establish the fact that the belief expressed by the testator that she was an immoral woman was wholly wanting in foundation, no matter from what source the testator obtained the claimed `knowledge'."
In Schouler on Wills and Administration, sections 162 and 163, it is stated that an "insane illusion" "differs essentially from some rational belief, not well founded, however perversely the testator may have clung to it. * * * An ill-founded belief not actually insane, does not destroy testamentary capacity. And where one indulges in an aversion, however harsh, which is the conclusion of a reasoning mind, on evidence no matter how slight or inaccurate, his will can not on that account be overturned."
Appellant herself furnishes evidence to support the belief of her father that she did not care for him. She admits that she testified against him in the divorce action. She signed an affidavit condemning her father in severe language. In this case, at the mature age of thirty-four, it is apparent that she still harbors the bitterness against and dislike for her father that she had fifteen years before. Mr. Yung repeatedly stated that he knew from reliable sources that his daughter was not leading a good life. Appellant made no attempt to prove that the beliefs of the father were without foundation and seems to be under the erroneous impression that the burden was on appellee to prove that the belief was without any foundation. Appellant admits her father disliked her from birth and manifested no fatherly sentiments toward her while she was at home.
Appellants' argument is that if John Yung was of sound mind he knew he attempted to rape his daughter and therefore his statements that she was unfilial and did not care for him and did not come to see him was the result of an insane illusion because he must have known the true reason of her aversion to him. If John Yung knew he was guilty of misconduct, his effort to divert suspicion from himself by stating that his daughter *Page 83
was unfilial and did not care for him and was not leading a good life, thus giving the impression that such conduct on her part was without cause, does not establish that he was insane or under an insane delusion. The impulse of a guilty mind to cast suspicion on the innocent, the attempt of a person guilty of an offense to avoid censure or punishment by an attitude of or protesting innocence and fastening the blame on others, does not constitute an insane illusion.
Because of the evidence in the case showing a basis for the belief of the decedent, the claim of the appellant that Yung was a monomaniac is disallowed.
The intention of the testator in regard to his daughter expressed in the deeds executed in 1928 is in harmony with his intention and attitude toward his daughter expressed in the will of 1920 drawn by Judge Lovejoy and in the will of 1923 drawn by attorney Blough of La Porte City.
In the case of O'Neil v. Morrison, 211 Iowa 416, 424,233 N.W. 708, 711, we stated:
"Even if O'Neil's judgment or prejudices led him astray, this court will not impeach his act, so long as he retained mind enough to know the nature and effect of the disposition he made of his estate, whether by will or by deed of conveyance."
Manifestly, the grantor on December 29, 1928, knew the extent and nature of his property, the natural objects of his bounty, the nature and effect of the instruments he executed, the manner in which he wished to dispose of it, and intelligently exercised his free judgment and discretion in its disposition. We hold he was mentally competent to execute the conveyances.
Appellant also claims that defendants obtained the property by undue influence. Mr. Geren and his wife took care of him at his request. The circumstances leading up to the execution of the deeds do not disclose that defendants exerted the slightest influence or dominion over the testator or made any attempt to unduly influence him to give them the property. Mr. Yung stated positively that they did not request the deeds and that they knew nothing of his intentions to give the property to them. Mr. Yung did not do an improvident act. He did not strip himself of his property and thus place himself at the mercy of the defendants. He was zealous of his rights. He stated he wanted to look out for himself in the transaction as *Page 84
well as for the grantees and he retained a sufficient interest in his property to assure him financial security.
The evidence discloses John Yung was a strong minded, independent man not easily influenced and obstinate in his convictions, and conducted his own affairs.
[3] Undue influence necessary to set aside a conveyance of property must be such as in effect destroys the free agency of the grantor and substitutes the will of another person for his own. Foster v. Foster, 223 Iowa 455, 273 N.W. 165; Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55; Reeves v. Howard, 118 Iowa 121,91 N.W. 896; Coughlin v. St. Patricks Church, 201 Iowa 1268,203 N.W. 812.
[4] We have repeatedly held the presumption is that a deed expresses the intention of the grantor, and in an action to set aside a conveyance on the ground of undue influence and mental incompetency, the evidence of the party alleging such grounds must be clear, satisfactory and convincing. Foster v. Foster,223 Iowa 455, 273 N.W. 165; Sutherland State Bank v. Furgason,192 Iowa 1295, 186 N.W. 200. We find that the conveyances were fairly, voluntarily and understandingly made and that the appellants not only failed to prove undue influence and mental incompetency by the required quantum of proof, but also failed to sustain their burden of proof by even a preponderance of the evidence.
Mr. Yung being competent and acting of his own accord had the right to disinherit his daughter.
[5] Appellant further claims that there was a fiduciary relationship between Yung and the defendants and that consequently the burden was upon the defendants to establish the bona fides of the transaction.
We stated in Utterback v. Hollingsworth, 208 Iowa 300, 302,225 N.W. 419, 421, that:
"It is a prerequisite to the application of the doctrine [confidential relationship] that faith and confidence be reposed; that the repository shall be in a position of superiority or dominance while the cestui is in a corresponding position of inferiority or subservience."
We find no acts of the defendants from which the exercise of undue influence on Mr. Yung may be inferred. It does not appear that he was accustomed to rely on them for counsel or suggestions *Page 85
in the conduct of his business or otherwise, or that he reposed confidence or trust in them, or that they exercised the slightest dominion over him. Appellants failed to establish a confidential relationship.
For cases on the doctrine of confidential relationship, see Ennor v. Hinsch, 219 Iowa 1076, 260 N.W. 26; Craig v. Craig,222 Iowa 783, 269 N.W. 743; Albaugh v. Shrope, 197 Iowa 844,196 N.W. 743.
The burden at all times remained upon appellant. She failed to sustain this burden, and the judgment appealed from is affirmed. — Affirmed.
HAMILTON, C.J., and PARSONS, MITCHELL, ANDERSON, DONEGAN, KINTZINGER, SAGER, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434849/ | On May 4, 1944, pursuant to section 127.10, Code, 1946 (section 2009, Code, 1939), one McClelland filed with the Polk county district court an information under oath stating that a certain Ford automobile was on April 29, 1944, in said county employed in the transportation of liquor in violation of law and because of such use was at that time *Page 1026
and place seized and is now in the custody of the sheriff of Polk county; to affiant's best knowledge and belief said automobile belongs to Don Madero. The information asked that the automobile be dealt with as provided by law.
On June 22, 1944, Don Madero filed an affidavit entitled "Notice of Ownership" stating that he is the owner of the automobile and if it was being employed in the unlawful transportation of intoxicating liquors, such use was without his knowledge or consent, directly or indirectly. See section 127.11 (3), Code, 1946 (section 2010, Code, 1939).
Trial was had to the court on October 2, 1944. Two police officers testified that on April 29, 1944, they saw the automobile in question while driven in Des Moines by one Clyde Vaughn, who was arrested when certain liquor bearing Illinois seals was found in the car; both Madero and Vaughn were employed by Johnny Critelli, a Des Moines tavern operator, Madero as manager of one of the taverns. A chemist testified he analyzed the contents of one of the bottles found in the car and it was intoxicating liquor.
At the end of the State's evidence, Madero moved for "a directed verdict" in his favor because, "there being no denial of the answer it stands * * * as admitted * * * under the new rules." The "answer" to which the motion referred is Madero's affidavit entitled "Notice of Ownership." Madero's motion was overruled. He offered no evidence and the court entered judgment of forfeiture and for sale of the automobile. Upon this appeal, the overruling of this motion is assigned as error.
[1] I. We first consider the overruling of appellant Madero's motion for continuance, which is also assigned as error. The facts relating to this complaint are these: Apparently the time of hearing on the information was first set for June 26, 1944, but no hearing was then held and the matter was assigned to be heard on September 28, 1944. The attorney who first represented appellant withdrew and his present counsel asked for a continuance until September 30th, which was granted. On that date a motion for continuance was filed "until such time as the witness [Clyde Vaughn] is available." *Page 1027
Attached to the motion for continuance is Madero's affidavit, which repeats most of the statements in the affidavit entitled "Notice of Ownership" and also states, in substance: Vaughn is in the military service of the United States; "his address I'm unable to ascertain; he is an important witness on my behalf; I desire his testimony that he had been inducted into the Army and expected to leave in a short while; he desired to spend some time with his girl that day and wanted to borrow my automobile to take her places and visit friends; Vaughn was to return my car before my work hours were over; I had no knowledge or information as to his going to any other place than his girl's house nor that he expected to get any liquor or have it in my automobile; I did not consent that he transport any liquor in my car; his use of my car was without reward to me."
The overruling of the motion for continuance presents no reversible error. A motion for continuance is addressed to the sound legal discretion of the trial court and we will not interfere with a ruling thereon unless it clearly and affirmatively appears there has been an abuse of such discretion and injustice thereby done. Gaynor v. Magoun, 229 Iowa 134, 135,294 N.W. 256; In re Estate of Rogers, 226 Iowa 183, 185,283 N.W. 906; Twaites v. Bailly, 210 Iowa 783, 785, 231 N.W. 332, and cases cited. See, also, 12 Am. Jur. 450, section 5; 17 C.J.S. 191, section 5.
When the cited cases were decided, sections 11442-11444, Code, 1939, were in force. These statutes have been superseded by Rules 182, 183, Rules of Civil Procedure. But the doctrine of the cited cases is equally applicable under the Rules.
[2] Rule 182 (a) provides: "Motions for continuance shall be filed without delay after the grounds therefor become known to the party or his counsel." It appears here that appellant knew Vaughn was in the military service when the notice of ownership was filed on June 22, 1944. The grounds of the motion were then known to appellant, yet no motion for continuance was filed until September 30th, the day set for trial. This circumstance in itself affords sufficient basis for the denial of a continuance. See Robyn v. Van der Weide, 178 Iowa 608, *Page 1028
610, 611, 159 N.W. 1034; Percival-Porter Co. v. Oaks,130 Iowa 212, 219, 106 N.W. 626; Bays v. Herring, 51 Iowa 286, 287,1 N.W. 558; 17 C.J.S. 256, section 87; 12 Am. Jur. 476, section 37.
Rule 183 (b), quite similar to section 11444, Code, 1939, states:
"All such motions based on absence of evidence must be supported by affidavit * * * and must show: (1) the name and residence of the absent witness, or, if unknown, that affiant has used diligence to ascertain them; (2) what efforts, constituting due diligence, have been made to obtain such witness or his testimony, and facts showing reasonable grounds to believe the testimony will be procured by the next term; (3) what particular facts, distinct from legal conclusions, affiant believes the witness will prove, and that he believes them to be true and knows of no other witness by whom they can be fully proved."
Appellant made no attempt to show that he used diligence to ascertain Vaughn's address or to obtain his testimony. No facts are stated in the motion or affidavit attached thereto "showing reasonable grounds to believe the testimony will be procured by the next term," in accordance with (2) above. Likewise there was no showing that appellant knows of no other witness by whom the facts can be fully proved, in accordance with (3) above.
According to the affidavit attached to the motion appellant wanted Vaughn to testify principally to the use he was to make of the car and appellant's claimed lack of knowledge that liquor was to be transported in it. Obviously the arrangement between appellant and Vaughn for the latter's use of the car, as well as appellant's claimed lack of knowledge regarding the liquor, was as fully known to appellant as to Vaughn. Yet appellant did not testify and the reason given therefor is not convincing.
The basis of appellant's claim is not "that said conveyance was not being employed, when seized, in the unlawful transportation of intoxicating liquors," but "that if it was being so employed such use was without the knowledge or *Page 1029
consent, directly or indirectly, of said claimant." See section 127.11 (3), Code, 1946 (section 2010, Code, 1939). Appellant's failure, without adequate explanation, to testify to the matters within his knowledge rather confirms our conclusion that there was no abuse of discretion in denying a continuance. Twaites v. Bailly, supra, 210 Iowa 783, 786, 231 N.W. 332.
It is worthy of mention that a criminal charge growing out of the transaction in question is pending against Vaughn and he would hardly be a disinterested witness in the present case.
No question involving the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. § 501 et seq., is presented to us.
II. Nor do we think it was error to overrule appellant's motion "for directed verdict." The provision of the Rules of Civil Procedure upon which appellant relies is Rule 102, which reads:
"Every fact pleaded and not denied in a subsequent pleading, as permitted by these rules, shall be deemed admitted, except allegations of value or amount of damage. Allegations of a reply shall be deemed denied by operation of law."
[3] Appellant contends his affidavit entitled "Notice of Ownership" was an answer — a pleading — and since there was no denial in a subsequent pleading of the facts stated in the affidavit they must be deemed admitted. But we think Rule 102 is not applicable here.
Neither the information nor the claim of ownership can fairly be called a pleading, within the contemplation of Rule 102. The various provisions of Division IV of the Rules, of which 102 is part, make this clear. We will mention a few of these provisions: Rule 68 lists the allowable pleadings as "petition, answer, and such counterclaim, reply, amendment, cross-petition or petition of intervention, as these rules allow." These are the usual pleadings in actions at law and in equity. Rule 70 requires that, "The petition shall state whether it is at law or in equity * * *." Under Rule 72 the answer must "* * * specifically admit or deny each allegation or paragraph of the petition * * *." Rule 79 states, "Every pleading shall be separated into numbered paragraphs, each of which shall *Page 1030
contain, as nearly as may be, a distinct statement." According to Rule 80 (a), "Pleadings need not be verified * * *." Rule 85 specifies the time within which to move or plead.
It is fair to conclude that the pleadings to which Rule 102 applies are those referred to in other provisions of Division IV, particularly Rule 68. Neither the information nor the claim of ownership provided for in chapter 127, Code, 1946 (chapter 97, Code, 1939), answers the description of any pleading to which Division IV of the Rules applies. Incidentally there seems to have been no attempt, in the preparation or filing of the claim of ownership, to comply with any of several requirements of Division IV of the Rules as to form, contents, or time for filing of pleadings.
The claim of ownership filed here, as required by section 127.11 (3), Code, 1946, is a mere affidavit. While a verified pleading which meets the legal requirements for an affidavit may be held to be an affidavit, a mere affidavit which does not meet the legal requirements for a pleading may not properly be called a pleading. See 2 C.J.S. 924, section 1b(2); 41 Am. Jur. 288, section 2; Burlew Hdwe. Co. v. City of Spencer, 99 W. Va. 44,127 S.E. 727; Colorado Vanadium Corp. v. Western Colo. Power Co.,73 Colo. 24, 213 P. 122, 123; Carpenter v. Clements, 122 Iowa 294,299, 98 N.W. 129.
We think chapter 127, Code, 1946 (chapter 97, Code, 1939), not Division IV of the Rules, particularly Rule 102 thereof, regulates the papers to be filed in this kind of proceeding. Chapter 127 contemplates the filing only of an information and "the written claim of the owner or other claimant * * *." The statutes do not require the filing of other papers. There is nothing in Division IV of the Rules to indicate that other papers, in the form of pleadings, are necessary in such a proceeding as this.
This is a special action or proceeding of a criminal or quasi-criminal character. Section 611.2, Code, 1946 (section 10939, Code, 1939); State v. One Certain Ford Coupé, 205 Iowa 597,600, 601, 218 N.W. 346; State v. One Chrysler Coupé,215 Iowa 1308, 1309, 245 N.W. 243, 247 N.W. 639. It is similar, except in certain named particulars, to a proceeding for forfeiture of intoxicating liquors seized under *Page 1031
search warrant. Section 127.11, Code, 1946 (section 2010, Code, 1939). Such proceedings under search warrant are criminal or quasi-criminal. State v. Knapp, 178 Iowa 25, 28, 158 N.W. 515; State v. Arlen, 71 Iowa 216, 32 N.W. 267, and cases cited. See, also, State v. Taggart, 186 Iowa 247, 172 N.W. 299.
In In re Estate of Hermence, 235 Iowa 745, 750, 15 N.W.2d 905,908, we held that nothing in Division IV of the Rules is applicable to so-called pleadings in another form of special action or proceeding — a will contest — and that nothing in said division requires a reply in such an action. In McCurdy v. Gilleland, 236 Iowa 362, 374, 17 N.W.2d 829, 834, 835, an attempt was made to invoke Rule 102 in a probate proceeding for the allowance of a claim against a decedent's estate. We held that Division IV of the Rules, especially Rule 102, has no application to so-called pleadings in such a proceeding. We think the reasoning of these decisions is sound and should be applied here. Its application is a complete answer to appellant's contention.
Since we find no merit in either assignment of error, the judgment is — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434851/ | DISSENT: Richards, C.J.
Under date of February 27, 1906, P.F. Glenn and his wife Malinda Jane Glenn, then the owners of the property involved in this action, executed and delivered a warranty deed conveying said property to their ten children, Willametta Ann Gross, Nellie E. Evans, Rosetta Gross, William Franklin Glenn, John Henry Glenn, Thomas Arthur Glenn, James Roy Glenn, George Harrison Glenn, Pearl Craig Glenn and Bert Ray Glenn, subject to certain provisions and limitations as follows:
"This deed is made subject to a mortgage of fifty-two hundred dollars ($5,200.00) to the Equitable Life Insurance Company of Iowa, and the grantors reserve the right to extend or renew said mortgage as often as they may desire, or to remortgage said land to raise money to pay said mortgage if the mortgagee should refuse to extend the same. After the death of both the grantors herein, the grantees herein agree to assume and pay said mortgage (if not paid).
"This deed is made with the following express understanding and reservations:
"First. If any of grantees herein shall sell or shall convey, directly or indirectly, his, her, or their interest in the land herein conveyed before the death of both of the grantors herein, then and in that case the interests herein conveyed to him, her, or them so selling or conveying before the death of the grantors herein shall be and become the property of the grantors' other children not so selling or conveying in violation of the stipulations herein, and this deed shall be null and void in so far as the conveyance to him, her or they shall be sold or conveyed before the death of the grantors as above stated.
"Second. The grantors herein reserve the use, control, and possession of and the net income from said land both from the surface thereof and from the coal or other mineral rights and the right to lease said land and make coal or mineral leases for all or any part of said land; the intention of the grantors being to use and control said land as fully as if this deed had *Page 149
not been made; the reservations herein to cease at the death of both grantors herein.
"Third. The grantees herein shall pay to Cora Jane Poulsen and Charles Lewis Glenn the sum of eight hundred dollars ($800.00) each, total sixteen hundred dollars ($1600.00) after the death of both grantors herein, and before the title herein shall vest fully in the grantees. And if grantees fail or refuse to pay same, the land herein conveyed shall be liable therefor, and this deed hereby creates a lien at the death of both grantors herein against said land for the sum of $1,600.00, and said Cora Jane Poulsen and Charles Lewis Glenn or either of them or their heirs may proceed to collect the same, and in that event an action in equity may be begun to foreclose said lien, which shall be treated as a mortgage on said land, and foreclosed as a real estate mortgage."
The grantor P.F. Glenn died January 1, 1917. Malinda Jane Glenn, the remaining grantor, died August 10, 1938.
In 1917, John Henry Glenn gave a warranty deed to the property to Charlotte Van Liew. In 1918, she quitclaimed back to him and he gave her a mortgage. In 1917, Pearl Craig Glenn mortgaged his interest to Marion D. Woods. The trial court held that these mortgages automatically divested these two grantees of any interest in the property and vested their interest in the remaining eight grantees.
In 1917, said John Henry Glenn and Pearl Craig Glenn brought an action in Dallas county district court seeking to quiet title in themselves to a one-tenth interest each in said property, subject only to the life estate of Malinda Jane Glenn and the $1,600 charge created by the deed. The purpose of this action was to have the restrictions upon the power to convey found in the deed declared invalid and unenforcible. A demurrer to this petition was sustained by the court. On appeal to this court, there was an affirmance. Glenn v. Gross, 185 Iowa 546, 170 N.W. 783.
The present appeal is concerned solely with the share of Willametta Ann Gross in said real estate, as augmented by the divesting of the shares of John Henry Glenn and Pearl Craig Glenn. *Page 150
On January 10, 1923, the Central Trust Company recovered judgment in the Polk county district court against Willametta Ann Gross and J.M. Gross in the sum of $16,675, with interest, costs and attorney fees. This judgment was based upon a certain $15,000 note, secured by a mortgage on some 641 acres of land in Marion county, Iowa. Thereafter, this mortgage was foreclosed upon the Marion county land in Marion county district court, and a credit entered in the amount of $7,192.15 upon the judgment in Polk county. On March 16, 1926, this judgment was transcripted to Dallas county. Thereafter an execution on said judgment issued from the Polk county district court to the sheriff of Dallas county, who levied upon all the right, title and interest of Willametta Ann Gross and J.M. Gross in the property in controversy and sold the same on September 16, 1926. Meanwhile, L.A. Andrew, superintendent of banking of the state of Iowa, had been appointed receiver of the Central Trust Company, and on October 14, 1927, the then acting sheriff of Dallas county executed a sheriff's deed to said property to said receiver. It was stipulated that the Central Loan and Investment Company had succeeded to all the rights of the Central Trust Company and the receiver thereof in and to said property.
After the death of the surviving grantor, Malinda Jane Glenn, in 1938, this action was brought to partition and quiet title to the real estate covered by the deed. The parties include the surviving grantees, their successors in interest, and all other known claimants to said property, including Willametta Ann Gross, J.M. Gross and the Central Loan and Investment Company. From the ruling of the trial court, it may be seen that there were numerous controversies among the parties as to their respective claims against the property. There has been no appeal from the court's disposition of these claims, except this appeal by Willametta Ann Gross and J.M. Gross.
Willametta Ann Gross filed a cross-petition against the Central Loan and Investment Company asking to have the sheriff's deed under which it claims declared null and void on the ground that she had no interest which was subject *Page 151
to levy and sale at the time of the execution sale. On the main case, the trial court found the Central Loan and Investment Company to be the owner of an undivided one-eighth interest in said property, subject to the matters raised by the cross-petition. After hearing on the cross-petition, the court found for the cross-defendant, and dismissed the cross-petition.
This is, therefore, a controversy between Willametta Ann Gross and the Central Loan and Investment Company as to which of them is entitled to the share of this property originally belonging to Willametta Ann Gross.
Willametta Ann Gross and J.M. Gross have appealed.
[1] We are first confronted with the very troublesome question of whether the interest of the grantees in the P.F. Glenn deed was a vested interest or a contingent remainder. Somewhere in the cases the writer of this opinion once read:
"That no definitions ever have been or ever will be given which will relieve all cases from doubt, as to whether it is a vested interest or a contingent remainder."
No good could possibly be accomplished by again reviewing the cases, this has recently been done by Justice Hamilton in Skelton v. Cross, 222 Iowa 262, 268 N.W. 499; Justice Oliver in Smith v. Harris, 227 Iowa 127, 287 N.W. 255; Justice Stiger in Blair v. Kenaston, 223 Iowa 620, 273 N.W. 184.
In the recent case of Flanagan v. Spalti, 225 Iowa 1231, 1235, 282 N.W. 347, 349, this court lays down the following rule:
"`Generally speaking, when there is a person in being who would have an immediate right to the possession of the lands, should the life tenancy now terminate, such person has a vested remainder. If, however, something more than the duration of the life tenancy stands between the remainderman and the right to immediate possession — if there be some unperformed or unfulfilled contingency which would prevent his taking possession, were the life tenancy now to terminate — then his remainder is contingent.'"
With this rule in mind, let us look at the facts in the case at bar. Willametta Ann Gross had an immediate right to possession *Page 152
upon the termination of the life estates. The divesting condition is by its terms limited to the period during which the life estates in the grantors continue to exist. No contingency or condition stood between her and the taking of such possession other than the life estates. But if a certain specified event occurred before that time, namely, if she sold and conveyed her interest, then the interest which had been conveyed to her would terminate. The limitations or reservations in the deed create only an uncertainty as to whether the remainder will ever take effect in possession, depending upon the grantee doing or not doing the things covered by the limitations.
A contingent remainder is one which cannot vest until a condition precedent has been complied with. Perhaps the identity of the persons who are to take the interest in remainder cannot be ascertained until some future time. Perhaps some specified act like survivorship to the end of the life tenancy is a condition precedent to the vesting of an interest. What condition unfulfilled stood between Willametta Ann Gross and the vesting of her interest during the life estate? None. There was no act or event that had to occur before she took an interest under the deed to her. The condition was that she could defeat her interest, divest herself of it, if she should sell or convey it during the lifetime of the grantors. She did not do this, and the instant the life estates terminated, without more ado, she or her heirs were entitled to possession of the land in question.
[2] Appellants argue that the case of Glenn v. Gross, 185 Iowa 546, 170 N.W. 783, decided by this court was an adjudication of the issue involved in the case at bar.
The original action entitled Glenn v. Gross was brought by John H. Glenn and Pearl C. Glenn, two of the grantees in the deed, against all other persons having an interest in said land under the deed, including Willametta Ann Gross. The plaintiffs, after setting forth the deed, alleged in substance that they received a vested interest thereunder, subject only to the life estate of Malinda Jane Glenn and to the $1,600 charge created by the deed; that they were desirous of selling and conveying their interest; and that the defendants were making a claim adverse to the interest of plaintiffs, to wit, that under said deed if plaintiffs sold and conveyed their interest, such interest would *Page 153
cease and become the property of the grantees not selling or conveying in violation of the conditions of the deed. Plaintiffs prayed that their interest in the property be established against the adverse claims of the defendants, except the life estate, that they be authorized to sell and convey their interest, and that they have further equitable relief.
The defendants demurred to the petition upon two grounds: First, that plaintiffs were not entitled to the relief demanded; second, that the limitations of the deed showed that plaintiffs were not entitled to sell or convey their interest during the lifetime of Malinda Jane Glenn. The trial court sustained the demurrer on both grounds, and, plaintiffs refusing to plead over, entered judgment for defendants.
In Glenn v. Gross, neither in the pleadings or ruling in the court below, nor in the opinion of this court on appeal was there an issue made of whether the interests of the grantees in the deed were vested or contingent, and necessarily there was no decision on this question. The sole question was that the plaintiffs wanted to be rid of the restrictions on their power to alienate, so they could sell the property.
Necessarily, it cannot be considered as an adjudication of the issue in the case at bar.
[3] It is next contended that the trial court erred in holding that the interest of Willametta Ann Gross could be sold on execution, when the instrument creating her interest provided she herself would forfeit such interest if she did sell or convey before the death of both grantors; that the creditor can claim or take no more than the debtor had.
Very able arguments have been presented on both sides of this case, but neither have furnished us with direct authority upon the proposition raised, and an investigation of the law convinces us that it is scarce. A number of authorities exist on the proposition that property may be taken on execution despite the fact that there is a restriction on the power to alienate the same. Thus in the case of Henderson v. Harness, 176 Ill. 302, 52 N.E. 68, testator devised a life estate to his son, with the provision that if the son should sell or in any way encumber the same, such life estate should terminate. A judgment creditor levied upon the son's interest in the property, and sold the *Page 154
same on execution. The court held that the execution sale did not violate the condition and upheld the sale in question, saying [176 Ill. 302, 309, 52 N.E. 68, 70]:
"There is a broad distinction between alienation by the voluntary act of the owner of an interest in land and the involuntary assignment made by compulsion of law. (Medinah Temple Co. v. Currey, 162 Ill. 441. [44 N.E. 839].) The clause of the will by which appellee, during his lifetime, was not to permit such real estate to be sold for taxes or to sell or in any way encumber the same, and providing that if he did his estate therein was terminated, and the heirs of his body, in whom the title was vested as remainder-men, might take possession, use and possess the same as if the life estate had not been given, did not effect a restriction on the power of involuntary alienation, except to the extent of allowing the remainder-men to declare a forfeiture for the voluntary alienation. The limitation made by the devise as a restriction on the power of alienation is to be construed in the same manner as a condition in a lease against assignment, and it is well settled that an assignment by operation of law is not a breach of such a condition. (4 Kent's Comm. 124.) The seizure of property under judicial process would not work a forfeiture, neither would a judgment or other encumbrance in invitum violate a covenant against encumbrance or a covenant not to encumber."
In the case of Powell v. Nichols, 26 Okla. 734, 736, 110 P. 762, 763, 29 L.R.A., N.S., 886, the Oklahoma court said:
"By the weight of authority, covenants in leases against assignment or subletting, were intended by the parties to apply only to the voluntary acts of the tenant, the lease is not forfeited by any transfer made by operation of law, including sales under execution. A holding otherwise would in effect permit the creation of valuable interests in lessees which may be held by them in defiance of creditors. Medinah Temple Co. v. Currey, Assignee, 58 Ill. App. 433; Smith v. Putnam et al., 3 Pick. (Mass.) 221; Riggs et al. v. Pursell et al., 66 N.Y. (21 Sickels) 193; Jackson ex dem. Stevens et al. v Silvernail, 15 Johnson (N.Y.) 278; In re Bush, 126 F. 878; Farnum v. Hefner, 79 Cal. 575
[12 Am. St. Rep. 174, 21 P. 955]; 24 Cyc. *Page 155
p. 970 and authorities cited in footnote; 1 Freeman on Executions (3rd Ed.) sec. 119. It does not affirmatively appear from this lease that the restriction was to apply other than to voluntary acts of the lessee."
In the case of McDonald v. Farley, 226 Iowa 53, 57, 283 N.W. 261, 263, this court said:
"The general rule is that a covenant against the assignment of a lease without the owner's consent applies to voluntary assignments and does not include transfers or assignments by operation of law."
Thus in the case at bar, the covenant not to sell or convey the land is not broken where the sale is by operation of law, to hold otherwise would in effect permit the creation of valuable interests in real estate in the debtor which could be held in defiance of creditors. The restrictions and limitations in the deed to Willametta Ann Gross did not prevent her judgment creditors from levying on and selling her interest in the property. Some other questions are argued all of which have been carefully considered. Finding no error it necessarily follows that the judgment and decree of the trial court must be and it is affirmed. — Affirmed.
HAMILTON, STIGER, MILLER, and HALE, JJ., concur.
RICHARDS, C.J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434750/ | [1] A preliminary matter demands our attention. We have on various occasions criticized, but condoned, violations of rule 340 of our Rules of Civil Procedure. See, e.g., Phillips v. Smith, 240 Iowa 863, 38 N.W.2d 87; Walker v. Walker, 239 Iowa 1055, 33 N.W.2d 413; Lutz v. Cunningham, 240 Iowa 1037,38 N.W.2d 638; Pfeffer v. Finn, 239 Iowa 24, 30 N.W.2d 481; McManis v. Keokuk Sav. Bk. Tr. Co., 239 Iowa 1105,33 N.W.2d 410; Schoeman v. Loyal Protective L. Ins. Co., 239 Iowa 664, 674, 32 N.W.2d 212.
The record presented here most nearly resembles that in the McManis case, supra. It follows a stipulation of the parties "that appellant's proposed abstract and appellee's proposed amendments will both be set forth in full in the printedrecord." This continues the very evil the rule was intended to cure. It complies *Page 3
with neither its letter nor spirit. Rule 340 was designed to provide "a simple method of preparing a single, coherent, intelligible, easily used record of the case as tried" and to avoid the burden of "trying to piece together the appellants' and appellees' versions of the record in order to ascertain what the true record is." Cook, Iowa Rules of Civil Procedure, annotated, pages 747, 748. The above quotation continues: "The rule provides for one `Record' settled by the trial judge whose interest is paramount in seeing the case go up on a record that reflects the true state of the facts."
Here the first one hundred twenty-one pages, in their content, conform to rule 340(d). They present the testimony largely in a narrative form. Then follow approximately one hundred fifteen pages of appellee's amendment consisting of questions and answers, and objections, rulings and comments of court and attorneys, to be substituted for various portions of the preceding narrative statement of the testimony. Some are repetition of question and answer already set out. The page-number references to the parts to be superseded evidently refer to the pages of the typewritten version, which is not before us, and the index of the testimony of the various witnesses does not refer to the proposed changes in their testimony as set out in the last part of the document.
We could properly reject the entire record, taxing its printing cost ($450.50) equally to both parties (since they seem to be equally at fault) and require one prepared in accordance with the rule. However, we have concluded just oncemore to spare the litigants the expense that would thereby be caused by the failure of their attorneys to observe a rule designed to protect all parties and the trial court by enabling the supreme court to determine exactly the proceedings complained of. The proposed substitutions in appellee's amendment will of necessity be treated more as additions than substitutions, since we have no sure method of knowing what parts of the narrative portions to delete or to be superseded.
Plaintiff is a used-car dealer in Omaha, Nebraska; defendant, a taxicab operator in LeMars, Iowa. On February 10, 1948, plaintiff acquired possession of the 1948 black Dodge automobile *Page 4
involved in this case from the King Auto Company, of Omaha, but did not receive the certificate of title until the next day.
However, on the afternoon of the same day (the 10th) he delivered the car (as one of a lot of fifteen) to one Richardson, a known used-car dealer in Hebron, Nebraska, who gave plaintiff his separate personal check for each car. Plaintiff's uncontradicted testimony is that it was agreed between them the Nebraska certificate of title of each car would be attached to the check given for such car and deposited with the check and delivered to Richardson when the check was paid.
The next morning plaintiff paid King Auto Company for the car involved here, received the certificate of title for same, attached it to the check Richardson had given for it, and deposited the check with certificate attached along with similar checks given for other cars. The check was for $2775 and recited for what car it was given. On February 16 he was informed the check had been returned with others of the same group, unpaid on account of insufficient funds. Thereafter plaintiff attempted to obtain payment of the checks from Richardson and succeeded in getting $7170 which, at Richardson's direction, was applied to the payment of checks for cars other than the one here involved. Richardson later absconded (plaintiff says "shortly after February 10"; Laughton thinks February 25) and his whereabouts was apparently unknown at time of trial.
Meanwhile, the week before February 10, defendant, in LeMars, Iowa, desiring a black Dodge automobile, made his wants known to his friend Laughton, who describes himself as a salesman for United Film Company. It appears, however, he was conducting a quite active side line in what has come to be euphemistically called the "new used-car" business, a term that aptly illustrates the futility of statutory attempts to circumvent the ancient, and more or less honorable, law of supply and demand.
Laughton was acquainted with Richardson from whom he had recently purchased a car, delivered to him at plaintiff's car lot in Omaha, without the certificate, which was, however, forwarded to him a few days later.
After hearing of defendant's desire Laughton promptly (on Friday, February 6) visited Richardson at Hebron. Richardson undertook to obtain such a car. Laughton paid him $500 down. *Page 5
He admits he already had five other $500 deposits with Richardson at that time. The following day Richardson telephoned Laughton the car would be at plaintiff's lot on February 10. Defendant, being unable to go to Omaha on that date, sent another friend (Shepherd) with Laughton to drive the car home.
On the night before Laughton and Shepherd started for Omaha defendant paid Laughton $2100 in cash. Laughton admits he paid Richardson only $1850. On the next night (the 10th) defendant was informed Shepherd had brought the car to LeMars but that it was without the certificate of title — that the papers would be along in about five or six days. Defendant says Laughton told him he (Laughton) would keep the car in the garage until the papers came through. Later Laughton told him Richardson "had skipped out and left the country."
[2] We have thus far stated the uncontradicted testimony from both sides. Concerning the events at plaintiff's car lot at Omaha on February 10 the testimony is in some conflict. But the case is one at law tried to the court without jury, and, of course, reviewable here on errors only. The findings of fact of the trial court are conclusive so far as sustained by sufficient evidence. Unfortunately the trial judge did not comply with rule 179, R.C.P., requiring findings of fact andseparately stated legal conclusions.
However, he did expressly find "that on said tenth day of February, 1948, the plaintiff knew that the said George A. Richardson was a dealer in automobiles; that the plaintiff sold and delivered the automobile * * * to the said George A. Richardson and that the plaintiff and his agents knew, or should have known, that the said Richardson was then selling the said automobile to the defendant through his authorized representatives and that the said Richardson was then being paid for said automobile. The plaintiff also knew that the car in question was sold and delivered, as aforesaid, and that it was serviced and supplied with one of the plaintiff's `In Transit' cards and thereafter driven from the plaintiff's place of business." (No finding of fact is made as to the knowledge of defendant and his representatives.)
Defendant-appellee does not question that these findings have support in the record. In fact he invokes the rule that "findings of fact in jury-waived cases shall have the effect of a special verdict." Rule 334, R.C.P. Of course the trial court in *Page 6
using the expressions "selling" and "sold" was not referring to technical passing of title which, under the Nebraska statute, hereinafter referred to, can only occur by issuance of a certificate of title. Whether there was a transfer of ownership was a question of law which the trial court seems to have by-passed, resting the decision on the proposition plaintiff was estopped, or had waived the right, to repossess the car from defendant to whom Richardson had "sold" it.
Plaintiff on appeal lists nine errors but his brief argues them in four divisions: I. The transaction was in Nebraska and subject to the statutes of that state, specifically, section 60-105, Revised Statutes, Supplement, 1947; II. The court erred in holding defendant was a bona fide purchaser; III. The court erred in holding the plaintiff was estopped because the elements of estoppel are not shown; and IV. The court erred in finding there was a "sale" from plaintiff to Richardson, if by such holding was meant a transfer of ownership.
We make no attempt to follow this order in our consideration of the case.
[3] I. The finding that defendant (through "his authorized representatives") was in effect dealing directly with Richardson is conclusive that the transaction was in Nebraska and subject to the statute of that state. That statute provides, so far as material here:
"No person * * * acquiring a motor vehicle * * * from the owner thereof * * * shall acquire any right, title, claim or interest in or to such motor vehicle * * * until he shall have had issued to him a certificate of title to such motor vehicle * * *; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title * * * for a valuable consideration. No court in any case * * * shall recognize the right, title, claim or interest of any person in or to any motor vehicle * * * sold or disposed of * * * unless evidenced by a certificate of title * * * duly issued, in accordance with the provisions of this act." Section 60-105, Revised Statutes of Nebraska, Supplement, 1947.
The requirement of a certificate of title as a prerequisite to obtaining ownership has been upheld by the Nebraska court as a *Page 7
regulatory act in the "valid exercise of the police power." Blixt v. Home Mutual Ins. Co., 1945, 145 Neb. 717, 720, 18 N.W.2d 78, 79. See also State ex rel. City Loan Sav. Co. v. Taggart, 134 Ohio St. 374, 17 N.E.2d 758; Crawford Finance Co. v. Derby, 63 Ohio App. 50, 25 N.E.2d 306, 308; Associates Inv. Co. v. LeBoutillier, 69 Ohio App. 62, 42 N.E.2d 1011; Enfield v. Butler, 221 Iowa 615, 632-635, 264 N.W. 546 (involving Missouri statute); Endres v. Mara-Rickenbacker Co., 243 Mich. 5,219 N.W. 719; Craig v. Rueseler Motor Co., Mo. App., 159 S.W.2d 374; Majors v. Majors, 153 Pa. Super. 175,33 A.2d 442, affirmed 349 Pa. 334, 37 A.2d 528; Bankers Inv. Co. v. Meeker, 166 Kan. 209, 201 P.2d 117. These cases concern legislation of a similar character.
It is clear under this record that no "right, title, claim or interest in or to" this car ever passed to Richardson or through him to defendant. If defendant can successfully defend here he can only do so on the theory of waiver or estoppel.
II. The Nebraska statute in terms forbids consideration or recognition by any court of either waiver or estoppel in favor of one claiming ownership without having had issued to him a certificate of title. As to this provision see the Blixt case, supra, at page 720 of 145 Neb., page 80 of 18 N.W.2d. The trial court here disclaimed jurisdiction or intent to declare that part of the statute unconstitutional but did nevertheless determine the case against plaintiff on the ground of estoppel or waiver or on the doctrine that "when one of two innocent persons must suffer by the act of a third person he who puts it in the power of the third person to inflict the injury must bear the loss."
There is some argument pro and con as to the constitutionality of that part of the statute, and as to the rules of comity and full faith and credit. We think it unnecessary to pass on these questions under this record. We have simply to determine whether there is any evidence to support the conclusion of the trial court that plaintiff is estopped or has waived the right to assert title against defendant. Certainly that conclusion is not supported by the findings of fact, unless mere delivery of possession to Richardson with knowledge he was reselling to defendant is to be held sufficient.
Not only are defendant and his representatives presumed to *Page 8
have known the Nebraska statute, but it affirmatively appears they did know it. Laughton inquired about the certificate of title and was told by Richardson that he could not get it that day because "it wasn't there." In face of this "red light" he took the car because Richardson said "he would send it [the certificate] out just as soon as he got it." The money was paid to Richardson without inquiry of plaintiff. There is no testimony that Laughton, in paying it, relied on any act or representation of plaintiff or was misled by anyone. He trusted Richardson just as he had trusted him in previous dealings. He accepted possession of the car and paid for it without any evidence of title, knowing Richardson was not yet the owner but relying on his agreement to make title.
On the other hand, plaintiff did not depend on Richardson but dealt with him (as he had a right to do) at "arm's length." He attached the certificate of title to Richardson's check to be delivered only upon payment of the check. True, he permitted a transfer of possession of the car but we have held that mere possession is not indicia of ownership upon which to base estoppel. Kirk v. Madsen, 240 Iowa 532, 36 N.W.2d 757.
We assume, as found by the trial court, that plaintiff knew Richardson was "selling" to defendant and being paid for the car. Was he under any duty to warn Laughton or Shepherd against so doing? They already knew Richardson did not have title. They made no inquiry to learn why the certificate was not available. In absence of such inquiry plaintiff had every right to permit them to rely on Richardson, as the record shows they did rely. The failure of title was due to Richardson's default, not plaintiff's.
Defendant's brief says the trial court found "as a matter of fact that plaintiff or his agent Richardson was selling the automobile to defendant." The court did not so find and the record would not have supported such a finding. We have already quoted the exact language of the trial court.
There was no affirmative act by plaintiff or his employees to promote the deal and certainly none upon which defendant's representatives relied or even claim to have relied. The servicing of the car preliminary to its being driven away by Shepherd and the attaching of the "transit tag" to take care of the possibility he *Page 9
might be stopped by Iowa highway officers took place after Richardson had been paid his money and anyway were not such acts as to form a basis for estoppel. They constituted no "indicia of title" nor do Laughton and Shepherd claim they relied on them.
III. The trial court applies the term "innocent purchaser" to defendant and invokes the doctrine announced in Crescent Chevrolet Co. v. Lewis, 230 Iowa 1074, 300 N.W. 260, that where one of two innocent persons must suffer by the act of a third, he who puts it in the third person's power to inflict the injury must bear the loss.
The doctrine does not apply here. In the cited case it was held vendor clothed vendee with indicia of ownership apart from mere possession of the car. We did not hold delivery of possession sufficient. See Kirk v. Madsen, supra, 240 Iowa, pages 537, 538, 36 N.W.2d, page 760. Nor was it held sufficient in White v. Pike, 240 Iowa 596, 36 N.W.2d 761, cited by defendant.
Plaintiff here did not put it in Richardson's "power to inflict the injury." It was not plaintiff's delivery of possession of the car but defendant's payment of the money with knowledge the certificate of title was not available that made the injury possible.
[4] Nor was defendant an "innocent purchaser." The term is thus defined: "One who * * * purchases property * * * without knowledge or means of knowledge sufficient to charge him in law with notice of any infirmity in law in the title of the seller." 43 C.J.S., Innocent Purchaser, page 1203.
It seems clear defendant, through actual knowledge of his representatives, as well as by presumption of his knowledge of the law, must be charged with knowledge of Richardson's entire lack of any "right, title, claim or interest."
The language of the Ohio Court of Appeals in an analogous case under a similar statute is pertinent here:
"Mr. Derby knew that the only way he could be secure in parting with the purchase price of the automobile was to simultaneously get a proper certificate of title. * * * When he intrusted Bedell with his used automobile and his money without such certificate, he did so at his own risk." Crawford Finance Co. v. Derby, 63 Ohio App. 50, 55, 25 N.E.2d 306, 309. *Page 10
See also Lux v. Lockridge, 65 Idaho 639, 150 P.2d 127, 128; Swartz v. White, 80 Utah 150, 13 P.2d 643.
We are forced to conclude under this record that defendant and his representatives took their chances in attempting to buy a car in Nebraska without safeguarding themselves under Nebraska law. Plaintiff is not shown to have been guilty of any fraud to impeach his title or any act to estop him from asserting it. The conclusion of the trial court is erroneous under the record and must be reversed. — Reversed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059833/ | ACCEPTED
14-15-00153-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
3/13/2015 2:22:33 PM
CHRISTOPHER PRINE
CLERK
NO. 2014-16947
SCOTT HOLSTEAD § FILED IN
IN THE DISTRICT COURT
14th COURT OF APPEALS
§ HOUSTON, TEXAS
VS. § 3/13/2015 2:22:33 PM
§ OF HARRIS COUNTY, TEXAS A. PRINE
CHRISTOPHER
§ Clerk
ALEX HITZ and §
THE BEVERLY HILLS KITCHEN, § 125TH JUDICIAL DISTRICT
LLC §
AMENDED NOTICE OF RESTRICTED APPEAL
This Notice of Restricted Appeal is from the Default Judgment entered on September 19,
2014 in 125th Judicial District Court of Harris County, Texas in Cause No. 2014-16047.
Respondent to this cause ALEX HITZ and THE BEVERLY HILLS KITCHEN desires to bring
an appeal to the First or Fourteenth Court of Appeals sitting in Houston Texas
The names and addresses of each party to the trial court’s judgment are:
1. ALEX HITZ, 1901 Sunset Plaza Dr. Los Angeles CA 90069
2. THE BEVERLY HILLS KITCHEN, 714 Park Avenue 11C, New York NY
10021.
2. SCOTT HOLSTEAD, 5333 Bordley Dr. Houston TX 77056
The party desiring appeal, ALEX HITZ and THE BEVERLY HILLS KITCHEN, is a
party affected by the trial court’s judgment but did not participate, either in person or through
counsel, in the hearing that resulted in the judgment complained of. Furthermore, ALEX HITZ
and THE BEVERLY HILLS KITCHEN did not timely file either a post judgment motion,
request for findings of fact and conclusions of law, or notice of appeal.
RESPECTFULLY SUBMITTED,
/S/ CHAD H. JORDAN
CHAD H. JORDAN
SBN:24073262
10575 KATY FWY. #440
HOUSTON, TX 77024
(713) 234-6471
(832) 408-8571
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing document was served on Scott Holstead, by and through
his attorney of record, Brian W. Zimmerman on February 17, 2015 in accordance with the Texas
Rules of Civil and Appellate Procedure. via e-service/fax
Brian W. Zimmerman
3040 Post Oak Blvd. Suite 1300
Houston, Texas 77056
/s/ Chad H. Jordan
Chad H. Jordan | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247173/ | Rufe, District Judge.
Plaintiff Peter Bistrian brings this action against prison officials of the Federal Detention Center ("FDC") in Philadelphia and the United States of America, alleging violations of his First, Fifth, and Eighth Amendment rights, as well as violations of the Federal Tort Claims Act ("FTCA"). Plaintiff's claims arise out of his placement in the Special Housing Unit ("SHU") while detained at FDC Philadelphia. The prison officials have moved for summary judgment, and the United States has moved to dismiss, or in the alternative for summary judgment, for lack of jurisdiction. For reasons set forth below, the Court will grant in part and deny in part the motions.
I. BACKGROUND
A. FACTUAL BACKGROUND 1
Peter Bistrian was detained at FDC Philadelphia pending his trial and through sentencing on wire fraud-related charges from August 2005 until March 2008.2 During his time at FDC Philadelphia, he spent four spells, totaling 477 non-consecutive days, in the SHU. The SHU is a 120-bed segregated housing unit where roughly 90 *692to 120 inmates are confined in six-by-eight foot cells in solitary or near-solitary conditions for 23 or 24 hours a day, with little or no opportunity to interact with others.3 Inmates may be placed in the SHU for administrative or disciplinary purposes.
Administrative detention can occur for a variety of reasons. When an inmate's continued presence in the general population would pose a serious threat to life, property, self, staff, or other inmates, or to the security or orderly running of the institution, the warden may place the inmate in administrative detention if (among other reasons) an investigation of an inmate is pending for violating prison regulations or the inmate requests admission for protective purposes. Bureau of Prison ("BOP") regulations require the warden to prepare an administrative order "ordinarily within 24 hours, detailing the reason(s)" for placement in the SHU.4 In addition, a Segregation Review Officer ("SRO") must make ongoing determinations about the appropriateness of the inmate's continued placement in administrative detention.5
Unlike administrative detention, disciplinary detention is reserved for inmates who have committed serious violations of BOP rules and are designated as exhibiting violent or seriously disruptive behavior. Inmates in disciplinary segregation have fewer privileges than those in administrative detention. Only a Discipline Hearing Officer ("DHO") may impose disciplinary segregation, and may do so after a hearing finding that the inmate has committed a serious prohibited act. An SRO must also monitor inmates in disciplinary segregation and make determinations about the appropriateness of their continued separation.
1. Plaintiff Enters the SHU for the First Time (November 18, 2005 to January 9, 2006)
On November 18, 2005, Plaintiff was transferred out of the general population and into administrative detention in the SHU because he abused his telephone privileges.6 Three days later, Plaintiff was provided with a copy of the incident reports of his prior telephone abuses, which gave him written notice of the disciplinary charges being brought against him.7 A hearing on Plaintiff's telephone abuses was held on November 30, 2005, at which time Plaintiff admitted that he had violated BOP rules by placing several unauthorized telephone calls to his former girlfriend using the account of another inmate.8 After the hearing, on December 9, 2005, the DHO imposed on Plaintiff the following penalties: 8.5 years of lost telephone privileges, 30 days of disciplinary segregation, and 277 days of lost good conduct time.9 Plaintiff was not given credit for the three weeks he had spent in the SHU up until that time, but was compelled to serve an additional 30 days.10 After serving the 30-day disciplinary segregation, Plaintiff was released from the SHU on January 9, 2006.11 Although the propriety of the 30-day disciplinary segregation is not at issue here, Plaintiff bases part of his claims on *693this initial stint in the SHU, alleging that Defendants failed to review his placement between November 18, 2005 and December 9, 2005.
2. Plaintiff Enters the SHU for the Second Time (January 25, 2006 to December 8, 2006)
Shortly after he returned to the general population, Plaintiff was again accused of abusing his phone privileges. He was transferred to the SHU for the second time and spent 308 days there (from January 25, 2006 to December 8, 2006).12 It was during this second period of confinement that things became precariously worse for Plaintiff.
Plaintiff was informed that he was being placed in administrative segregation "pending SIS investigation" for his phone abuse.13 In late January or February of 2006, Warden Levi was informed that there was no detention order explaining the basis for the segregation in Plaintiff's SHU file.14 Although Plaintiff requested copies of his detention order, he did not receive a copy until July 6, 2006, which stated that he was being held in the SHU for "security reasons."15 Despite the delay in receiving the detention order, Plaintiff received a copy of a "SHU review form," which was completed on a monthly basis.16 The SHU review forms documented that prison officials routinely reviewed Plaintiff's status in the SHU and provided him with "a written copy of staff's decision and the basis for his continued SHU housing assignment at each 30 day review."17
In the spring of 2006, Plaintiff was assigned the job of a SHU orderly, which allowed him to be out of his cell and move around the SHU from 6:00 a.m. to 5:00 p.m. daily to complete the duties of folding clothes, removing food trays, cleaning the cell area, and picking up trash.18 Plaintiff worked as an orderly for roughly one to one and a half months.19 Shortly after becoming an orderly, Steve Northington (another SHU detainee) asked Plaintiff to pass notes to other SHU inmates, including Kaboni Savage.20 Northington and Savage are part of a violent Philadelphia drug gang, and were being held in an ongoing prosecution that involved substantial witness intimidation, death threats to witnesses and law enforcement, and a firebombing that killed six family members of the Government's chief cooperating witness.21 Savage is currently on death row for the killings, and Northington is serving a life sentence without the possibility of parole. After Northington asked Plaintiff to pass a second note, Plaintiff informed Senior Officer Bowns and Lieutenant Gibbs of Northington's requests.22 Plaintiff and Gibbs agreed to the following arrangement:
*694Plaintiff would accept notes from Northington and bring them to correctional officers in SIS to copy the notes as part of the FBI's ongoing investigation of the Northington-Savage drug gang, then Plaintiff would return the original note to the intended recipient.23 Plaintiff was told that his phone privileges would be reinstated and that he would be returned to the general population after the note-passing scheme was completed.24
For a few weeks, Plaintiff delivered the notes to SIS officials. Defendants Bergos, Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, and Rodgers knew Plaintiff was passing notes between members of the Northington-Savage gang, and was showing the notes to SIS, so that they could be copied.25 On one occasion a few weeks into the note-passing scheme, however, Plaintiff inadvertently delivered a photocopy of an original note that SIS had made to a member of the gang, alerting the gang of his cooperation with prison officials.26 Plaintiff told Gibbs of the situation. Gibbs immediately removed Plaintiff as an orderly for his protection, and Plaintiff returned to the ordinary confinements of the SHU, which included being confined to a cell for 23 to 24 hours each day, with roughly 5 hours of allotted recreation time per week.27 Despite these safety precautions, Northington and other gang members began threatening Plaintiff. Plaintiff told Bowns and Gibbs of the threats.28 Northington posted a sign on his cell door which read "No Snitches."29 Plaintiff had no physical contact with Northington until June 30, 2006.30
a. June 30, 2006 Northington Attack
On June 30, 2006, Plaintiff was allowed out of his cell to spend one hour in the recreation pen. However, Northington and two other inmates of the Northington-Savage gang-Jelani Lee and Terry Walker-were also in the recreation area at the time.31 Northington, Lee, and Walker approached Plaintiff and began beating him, knocking him unconscious, dislocating his shoulder, breaking his teeth, and causing other injuries. According to the incident report, Senior Officer Jezior responded to an alarm and, on his arrival outside the recreation area, saw inmates *695beating Plaintiff. Several staff members arrived on the scene and shouted orders at the assailants to stop the attack. Once a sufficient number of correctional officers had amassed, the officers opened the recreation pen and intervened to move the assailants away from Plaintiff.32 In the subsequent investigation, Northington explained to officials that he attacked Plaintiff because Plaintiff was cooperating with authorities against him. After the attack, a formal separation order was implemented to ensure Plaintiff would be separated from Northington, Lee, and Walker. Plaintiff remained in the SHU after the attack.33
b. October 12, 2006 Taylor Attack
On October 12, 2006, Plaintiff was attacked for a second time in the recreation pen. Plaintiff was in hand restraints waiting to exit the recreation area when Aaron Taylor, an inmate suffering from mental illness and with a history of violent attacks on fellow inmates,34 approached him waving a razor-blade weapon, and repeatedly slashed Plaintiff's face, neck, and legs. Still handcuffed, Plaintiff was knocked to the ground and tried to stave off his attacker by kicking at him.35 Correctional officers shouted orders at Taylor to stop, and fired pepper spray into the pen, to no avail. Defendant Knox then launched an explosive device called a "Tactical Blast Stun Munition," which incapacitated Taylor and allowed the officers to enter the recreation pen, secure Taylor, and attend to Plaintiff.36 Plaintiff sustained lacerations to the left side of his face and his right forearm. Plaintiff also suffered back injuries from the explosion of the tactical stun device. Plaintiff was treated by medical personnel after the assault, but remained in the SHU.
On October 16, 2006, Plaintiff's criminal defense counsel sent a letter to Warden Levi asking for the "basis on which [Plaintiff] is being held" in the SHU.37 Warden Levi responded to Plaintiff's counsel, stating:
Our records indicate inmate Bistrian was placed in the Special Housing Unit (SHU) on January 25, 2006, under administrative detention statue due to his continuous telephone abuse. Inmate Bistrian has received repetitive infractions for telephone abuse. While he was housed in the general population, inmate Bistrian persuaded other inmates to place telephone calls on his behalf. As a result, he was placed in administrative detention as his presence in the general population created security concerns.38
Plaintiff's counsel filed a grievance with the FDC on Plaintiff's behalf, and Plaintiff subsequently participated in a hearing with prison officials. Following the hearing, Plaintiff sent a letter to Warden Levi requesting a transfer to the general population and promising that he would not violate any more BOP policies.39 Thereafter, *696during a SHU review, prison officials determined that Plaintiff should be released from the SHU. On December 8, 2006, Plaintiff returned to the general population.40
3. Plaintiff Enters the SHU for the Third Time (December 22, 2006 to January 25, 2007)
Plaintiff was removed from the general population and placed into administrative segregation in the SHU for a third time, from December 22, 2006 to January 25, 2007.41 Defendants allege that Plaintiff was placed in the SHU after the SIS received information on December 21, 2006, which indicated that a contract killing of Plaintiff had been initiated by another inmate.42 On January 9, 2007, Plaintiff's counsel wrote a letter to Warden Levi asking for the reasoning for Plaintiff's placement in the SHU.43 On January 22, 2007, Warden Levi responded that the FDC "records indicate[d] inmate Bistrian was placed in SHU on December 22, 2006, under administrative detention status due to an investigation."44 Three days later, Plaintiff was returned to the general population.45
4. Plaintiff Enters the SHU for the Fourth Time (September 13, 2007 to December 4, 2007)
Plaintiff was removed from the general population and placed into administrative segregation in the SHU from September 13, 2007 to December 4, 2007.46 Plaintiff alleges this fourth stint in the SHU was retaliatory in nature, after Plaintiff complained about his treatment at FDC Philadelphia during his sentencing hearing.
On August 23, 2007, Plaintiff participated in the first of two sentencing hearings in his criminal case. At the hearing, Plaintiff's counsel contested the legality of Plaintiff's placement in the SHU. The Government explained that Plaintiff's placement in the SHU was largely due to his telephone abuses, and that Plaintiff had just recently violated prison rules again by having another inmate place calls to Plaintiff's sister on his behalf.47
Following the hearing, the Government provided Plaintiff's counsel with a recording of two calls made by the other inmate to Plaintiff's sister allegedly on Plaintiff's behalf. On September 11, 2007, Plaintiff's counsel sent an email to counsel for the Government, repeating his challenge to the purported telephone violation charges against Plaintiff, and demanding a copy of the applicable prison regulations.48 Counsel for the Government forwarded the email to FDC Philadelphia. The next day, Senior Officer Jezior wrote an incident report, documenting that Plaintiff had violated BOP rules by convincing another inmate to place unauthorized calls to Plaintiff's sister.49 On September 13, 2007, Plaintiff was removed from the general population and transferred to the SHU.50 The next day, *697Plaintiff received a hearing on this violation, and the hearing officer imposed on Plaintiff a 60-day loss of phone privileges.51
Plaintiff remained in the SHU after the hearing was completed. Plaintiff filed a grievance challenging his continued placement in the SHU, but the grievance was denied. Plaintiff later appealed the decision, but the appeal was also rejected.52 During this time, Plaintiff alleges that Warden Levi told him that "he would never see the light of day again."53 Psychology staff also conducted monthly reviews of Plaintiff's condition, but noted only that Plaintiff's adjustment to the SHU had been "unremarkable."54 Plaintiff returned to the general population on December 4, 2007.55 On March 14, 2008, Judge DuBois sentenced Plaintiff to 57 months' imprisonment. Two days later, Plaintiff was transferred to the Metropolitan Correctional Center in New York, New York.56
B. PROCEDURAL HISTORY
Plaintiff initially raised nineteen claims against various prison officials at FDC Philadelphia, as well as the United States. After this Court's ruling on Defendants' motions to dismiss, six claims survived against twenty-eight defendants. On interlocutory appeal, the United States Court of Appeals for the Third Circuit pared down the action further as to both the number of claims and defendants.57 The following claims and defendants remain:
• Count I: Fifth Amendment Substantive Due Process (Failure to Protect)
• Claim: Defendants were deliberately indifferent to the risk posed by placing Plaintiff in the same locked recreation pen as Northington and his gang.
• Defendants (13): (1-10) The 10 Prison Management Defendants58 ; (11) Sr. Officer Bowns; (12) Lt. Rodgers; and (13) Lt. Robinson.
• Claim/Defendant: Jezior was deliberately indifferent to Plaintiff's safety during the Northington attack.
• Count III: Fifth Amendment Substantive Due Process (Punitive Detention)
• Claim: Plaintiff's first detention in the SHU, his second until the beginning of the note-copying operation, and his fourth, deprived him of his liberty interest, as an inmate awaiting sentencing, to be free from punishment.
• Defendants (10): (1-10) The 10 Prison Management Defendants.
• Count V: Fifth Amendment Procedural Due Process
• Claim: Plaintiff's placement and continued detention in the SHU failed to comply with the Fifth Amendment's procedural due process requirements.
*698• Defendants (11): (1-10) The 10 Prison Management Defendants; and (11) Lt. Wilson.
• Count X: First Amendment (Retaliation)
• Claim: Plaintiff's placement and continued detention in SHU after his attorney challenged Plaintiff's previous placement was retaliatory for exercising his First Amendment rights.
• Defendants (10): (1-10) The 10 Prison Management Defendants.
• Count XV: FTCA Negligence Claim (Failure to Protect as a Confidential Informant)
• Claim: The United States of America negligently failed to protect Plaintiff, who was cooperating with authorities, from the Northington attack by locking Plaintiff in the recreation cage with Northington and his fellow gang members.
• Defendant: The United States of America
• Count XVI: FTCA Negligence Claim (Failure to Protect from Assault)
• Claim: The United States of America negligently failed to protect Plaintiff from the Taylor assault.
• Defendant: The United States of America
The prison officials move for summary judgment on all remaining claims. In addition, the United States moves to dismiss the claims asserted against it, or in the alternative for summary judgment, for lack of jurisdiction.
II. STANDARD OF REVIEW
Upon motion of a party, summary judgment is appropriate if "the materials in the record" show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."59 Summary judgment may be granted only if the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party."60 A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law.61 A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party."62
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.63 Further, a court may not weigh the evidence or make credibility determinations.64 Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.65 "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."66 This requirement upholds the "underlying purpose of summary judgment [which] is to *699avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense."67 Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.68
III. DISCUSSION
A. COUNT I: FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS (FAILURE TO PROTECT)
In Count I, Plaintiff raises a Fifth Amendment substantive due process claim against the 10 Prison Management Defendants, Senior Officer Bowns, Lieutenant Rodgers, and Lieutenant Robinson, alleging Defendants failed to protect him from inmate violence when locking him in the recreation pen with Northington. Plaintiff also alleges that Senior Officer Jezior69 was deliberately indifferent to his safety during the Northington attack.
"Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society."70 Therefore, the Eighth Amendment's Cruel and Unusual Punishments Clause imposes on prison officials "a duty ... to protect prisoners from violence at the hands of other prisoners."71 The Cruel and Unusual Punishments Clause, however, does not apply until an inmate has been both convicted of and sentenced for his crimes.72 Thus, an inmate awaiting sentencing must look either to the Fifth Amendment's or the Fourteenth Amendment's Due Process Clause for protection.73
In its opinion in this case, the Third Circuit explained that it had "not yet in a precedential opinion recognized that an unsentenced inmate may bring a due process-grounded failure-to-protect claim of the sort that a sentenced inmate can bring under the Eighth Amendment. But it is well established that, under the Constitution's guarantees of due process, an unsentenced inmate is entitled, at a minimum, to no less protection than a sentenced inmate is entitled to under the Eighth Amendment."74 Therefore, the Court of Appeals found that Plaintiff, as an inmate who at all relevant times was either not yet convicted or convicted but not yet sentenced, "had a clearly established constitutional right to have prison officials protect him from inmate violence."75
To establish a claim for damages against a prison official for failure to protect an inmate from violence, an inmate must show that: "(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's *700deliberate indifference caused him harm."76
First, the evidence shows that Plaintiff was incarcerated under conditions posing a substantial risk of serious harm. He was placed in the SHU with violent members of the Northington-Savage drug gang. Using his position as an orderly, Plaintiff began passing notes between gang members and intermittently showing the notes to the SIS so that they could be copied for the FBI's ongoing investigation of the gang.77 Those inmates, including Northington, became aware that Plaintiff was sharing their notes with prison officials.78 Northington openly threatened Plaintiff, calling him a snitch and shouting other hostile threats.79 Northington also hung a "No Snitches" sign on his cell door. Plaintiff reported the threats to certain prison officials.80 Because of the gang's discovery of Plaintiff's cooperation with prison officials and the danger posed to Plaintiff in continuing to work as an orderly where he would presumably interact with members of the gang, Plaintiff was removed from his position as an orderly and returned to the ordinary restrictions of the SHU.81 Despite this safety precaution, a few weeks later, Plaintiff was placed in the recreation area with Northington and other gang members. In light of this record, Plaintiff has put forth evidence showing that he was incarcerated under conditions posing a substantial risk of serious harm.
Second, Plaintiff has produced evidence from which a reasonable fact finder could conclude that some prison officials, though not all, were deliberately indifferent to the substantial risk to Plaintiff's safety. Deliberate indifference is measured by an objective standard: "the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety."82 Viewing the evidence in the light most favorable to Plaintiff as the non-moving party, Plaintiff has identified evidence showing that Defendants Bowns, Gibbs, Jezior, and Levi knew or were aware of the threats Northington made to Plaintiff.83 Plaintiff has also pointed to evidence showing that Defendants Bergos, Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, and Rodgers knew of the note-passing scheme and were aware of the risk Plaintiff faced once his cooperation with prison officials was discovered.84
*701Third, Plaintiff has pointed to evidence which suggests that a reasonable jury could find that some Defendants' deliberate indifference caused the Northington attack and Plaintiff's resulting injuries. Plaintiff has identified evidence, or disputed issues of material fact, suggesting that the officials cited above knew of the risk Northington posed to Plaintiff's safety, and although they removed Plaintiff as an orderly, they did not take action to prevent Plaintiff from encountering Northington in the recreation area. Instead, these officials placed the two inmates in the same recreation pen. This evidence is sufficient to create a genuine dispute of material fact that these prison officials' deliberate indifference led to the Northington attack.85
Although Plaintiff identified evidence that some prison officials knew of the risk to Plaintiff's safety, he has failed to do so with respect to Defendants Brown, Blackman, Garraway, Knox, and White.86 Plaintiff can only point to evidence that some of these officials, at times, attended weekly meetings during which inmates housed in the SHU were discussed, and that Brown, Blackman and Knox sometimes attended monthly meetings with SIS.87 Attendance at these meetings, however, is insufficient to show deliberate indifference on the part of these five officials. Although circumstantial evidence may be used to prove that a prison official had actual knowledge of a substantial risk, "it is not sufficient that the official should have been aware."88 Attendance at weekly *702and/or monthly meetings, without more, shows only that these officials possibly should have known of the risk to Plaintiff's safety, assuming that Plaintiff's cooperation was discussed. Plaintiff, however, has not identified any evidence in the record showing that Plaintiff's cooperation, or Northington's threats, were discussed at the meetings. Instead, the record shows that Plaintiff's cooperation was not discussed.89 Thus, Plaintiff cannot establish deliberate indifference as to Defendants Brown, Blackman, Garraway, Knox, and White, and summary judgment will be granted in favor of these five Defendants on this claim.
Defendants Are Not Entitled to Qualified Immunity on the Failure to Protect Claim
Defendants contend that they are entitled to qualified immunity with respect to the failure to protect claim. The doctrine of qualified immunity insulates "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."90 Courts look to whether the facts shown "make out a violation of a constitutional right," and "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct."91 A right is "clearly established" when its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right."92 "Courts need not evaluate the two prongs sequentially," and the failure of either prong will result in the official being entitled to qualified immunity.93
Plaintiff has pointed to evidence showing that certain prison officials acted with deliberate indifference in failing to protect him from harm by placing him in the recreation pen with Northington, and therefore that a violation of his Fifth Amendment substantive due process rights occurred. Furthermore, the Third Circuit has concluded that "Bistrian-as an inmate who at all relevant times was either not yet convicted or convicted but not yet sentenced-had a clearly established constitutional right to have prison officials protect him from inmate violence."94 Defendants, therefore, are not entitled to qualified immunity on this claim.
B. COUNT III: FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS (PUNITIVE DETENTION)
In Count III, Plaintiff raises a claim against the 10 Prison Management Defendants, alleging that his detention in administrative segregation deprived him of his clearly established liberty interest to be free from punishment before sentencing, in violation of the Fifth Amendment's Due Process Clause. The Third Circuit limited Plaintiff's punitive detention claim so that *703it might only apply to: (1) his first detention in the SHU; (2) his second detention in the SHU until the beginning of the note-copying operation; and (3) his fourth detention in the SHU.
The Third Circuit held that convicted inmates who are imprisoned pending sentencing are accorded the status of a pretrial detainee, with protected liberty interests that are "firmly grounded in federal constitutional law."95 These protected liberty interests include the right to be free from punishment.96 "[A] particular measure amounts to punishment when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is not rationally related to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that purpose."97 "In evaluating a pretrial detainee's claim of unconstitutional punishment, courts must examine the totality of the circumstances within the institution."98
1. Plaintiff's First Confinement in the SHU Was Not Punitive
Plaintiff contends that his first period of confinement in the SHU (from November 18, 2005 to January 9, 2006) amounts to punitive detention in violation of his Fifth Amendment right to due process. Despite making all reasonable inferences in Plaintiff's favor as the non-moving party, this first SHU confinement was not excessive and did not violate his constitutional rights.
The evidentiary record indicates that on November 18, 2005, Plaintiff was transferred from the general population to the SHU because he abused his telephone privileges. Three days later, he was provided with a copy of the incident reports of his prior telephone abuses.99 A hearing was held on November 30, 2005, where Plaintiff admitted to placing several unauthorized telephone calls.100 On December 9, 2005, the DHO imposed penalties for Plaintiff's violations, including 30 days of disciplinary segregation. Plaintiff began serving the 30-day disciplinary segregation immediately and was released from the SHU on January 9, 2006.
Although the propriety of the 30-day disciplinary segregation is not at issue, Plaintiff contends that the initial period of confinement up until the date the DHO imposed the above-mentioned penalties (a three week period from November 18, 2005 to December 9, 2005) was not rationally related to a legitimate non-punitive government purpose, or was excessive in light of that purpose.101
However, the record demonstrates that Plaintiff's initial transfer to administrative segregation was rationally related to the legitimate non-punitive government purpose of addressing Plaintiff's suspected misconduct committed in violation of BOP rules. Ensuring that detainees and inmates comply with BOP rules is important to maintaining a secure, safe, and functional *704detention facility.102 Telephone violations, however classified, are serious because breaking these rules may allow contraband to enter the FDC, or other crimes to occur within the facility.103 As the Third Circuit has noted, courts are "unwilling to substitute [their] judgment on these difficult and sensitive matters of institutional administration and security for that of the persons who are actually charged with and trained in the running of such facilities."104 Thus, there is no evidence that the three week administrative segregation was not rationally related to a legitimate, non-punitive purpose.
The record also shows that the duration of Plaintiff's first stint in the SHU was not excessive in light of that purpose. Once Plaintiff was placed in administrative segregation, prison officials proceeded to adjudicate his telephone violations within three weeks. Plaintiff was apprised of the allegations against him, and was afforded the opportunity to be heard at a hearing shortly thereafter. Plaintiff's suggestion that this three week period was excessive, during which his violations were adjudicated, is not supported by the record, and does not create a genuine dispute of material fact. Summary judgment will be granted as to this claim.105
2. Defendants Are Entitled to Qualified Immunity with Respect to Plaintiff's Second Period of Confinement Up Until His Participation in the Note-Passing Scheme
Next, Plaintiff contends that his second period of confinement in the SHU up until he began participating in the note-passing scheme (from January 25, 2006 to around April or May of 2006) amounts to punitive detention in violation of his substantive due process rights.
The facts show Plaintiff violated BOP rules shortly after his first release from *705the SHU by placing unauthorized telephone calls to his former girlfriend. Plaintiff's telephone abuses occurred within one month after returning to the general population, and thereafter demonstrated to prison officials that he was either unwilling or incapable of following BOP rules while in the general population, undermining the prison officials' attempts to maintain an orderly detention center. Therefore, Plaintiff was removed from the general population and transferred back to the SHU on January 25, 2006.106
Plaintiff contends that the approximately three to four month period (from January 25, 2006 to April or May of 2006) when he was confined to the SHU was not rationally related to a legitimate non-punitive government purpose, or was excessive in light of that purpose. Defendants argue that this second period of confinement was rationally related to the legitimate non-punitive government purpose of addressing Plaintiff's continued misconduct and securing the FDC, and that the three-to-four month period was not excessive in light of this purpose. In the alternative, Defendants argue that they are entitled to qualified immunity with respect to this period of confinement. The Court agrees with Defendants on qualified immunity grounds.
Courts consider two prongs to determine whether prison officials are entitled to qualified immunity: (1) whether the facts shown make out a violation of a constitutional right, and (2) whether the right at issue was clearly established.107 The failure of either prong will result in the official being entitled to qualified immunity.108 Here, Plaintiff has not shown that he had a clearly established right to be removed from the SHU within the three-to-four month period after his continued violation of BOP rules. The Court of Appeals has stated that " Bell provides scant guidance on what constitutes punishment."109 Although in the earlier appeal of this case, the Third Circuit acknowledged the exhaustive examinations it has undertaken in interpreting Bell's "no-punishing-pretrial detainees" rule,110 neither the Court of Appeals nor the Supreme Court had clearly established the right that Plaintiff claims was violated in this case.111 Summary judgment will be granted on this claim.
*7063. There is a Genuine Dispute of Material Fact Regarding Whether Plaintiff's Fourth Period of Confinement in the SHU Was Punitive
Finally, Plaintiff asserts that his fourth period of confinement in the SHU was punitive in nature and violated his constitutional rights. As previously noted, "a particular measure amounts to punishment when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is not rationally related to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that purpose."112
Plaintiff contends that he has identified evidence suggesting that the 10 Prison Management Defendants expressly intended to punish him by placing him in the SHU for the fourth time after learning of his complaints about his treatment at FDC Philadelphia, which he made to the Court during his criminal sentencing hearing. Although Plaintiff contends that all 10 Prison Management Defendants should be held liable for this claim, he points to evidence in the record which suggests that only Jezior and Levi may have intended to punish him for his protests. Specifically, Plaintiff identifies evidence that Jezior wrote an incident report which stated that Plaintiff violated BOP telephone rules one day after receiving an email from the Government informing him that Plaintiff was complaining about his treatment at FDC Philadelphia to the Court.113 Plaintiff also testified that Levi told him that he would "never see the light of day again" after his protests to the Court.114 This evidence creates a genuine dispute of material fact regarding whether Jezior and Levi expressly intended to punish Plaintiff for his protests to the Court by placing him in the SHU for the fourth time. Summary judgment will be denied with respect to Jezior and Levi on this claim, but it will be granted with respect to the remaining Prison Management Defendants.115
Defendants Jezior and Levi Are Not Entitled to Qualified Immunity on Plaintiff's Punitive Detention Claim Regarding His Fourth Period of Confinement in the SHU
Defendants contend they are entitled to qualified immunity with respect to *707Plaintiff's punitive detention claim. As noted, courts examine two prongs to determine whether prison officials are entitled to qualified immunity: (1) whether the facts shown make out a violation of a constitutional right, and (2) whether the right at issue was clearly established.116 Here, Plaintiff has pointed to evidence which suggests a violation of his substantive due process right to be free from punishment "prior to an adjudication of guilt."117 Moreover, this right is clearly established, as reasonable prison officials would understand that expressly intending to punish an inmate for his complaints made to a court is unconstitutional.118 Therefore, Jezior and Levi are not entitled to qualified immunity on Plaintiff's punitive detention claim with respect to his fourth period of confinement.
C. COUNT V: FIFTH AMENDMENT PROCEDURAL DUE PROCESS
In Count V, Plaintiff raises a claim against the 10 Prison Management Defendants and Lieutenant Wilson, alleging that his placement and continued detention in the SHU during the actionable periods failed to comply with the Fifth Amendment's procedural due process requirements.
"Although pretrial detainees do not have a liberty interest in being confined in the general prison population, they do have a liberty interest in not being detained indefinitely in the SHU without explanation or review of their confinement."119 Thus, procedural due process requires prison officials to "provide detainees who are transferred into more restrictive housing[,] for administrative purposes only[,] an explanation of the reason for their transfer as well as an opportunity to respond."120
1. Plaintiff's Procedural Due Process Claim Fails with Respect to His First Period of Confinement in the SHU
First, Plaintiff contends that his procedural due process rights were violated during his first period of confinement in the SHU. As mentioned, on November 18, 2005, Plaintiff was transferred from the general population to the SHU because he abused his telephone privileges.121 Three days later, Plaintiff was provided with a copy of the incident reports of his prior telephone abuses, which gave him written notice of the disciplinary charges being brought against him.122 In other words, Plaintiff was provided with an explanation of file reason for his placement in the SHU within three days of the transfer.
A hearing on Plaintiff's telephone abuses was held shortly thereafter on November 30, 2005, and Plaintiff admitted that he had violated BOP rules by placing several unauthorized telephone calls to his former girlfriend using the account of another inmate.123 On December 9, 2005, after the hearing, the DHO imposed on Plaintiff the following penalties: 8.5 years of lost telephone privileges, 30 days of disciplinary segregation, and 277 days of lost good *708conduct time.124 Plaintiff began serving the 30-day disciplinary segregation and was subsequently released from the SHU 30 days later, on January 9, 2006.
Plaintiff contends that the 10 Prison Management Defendants and Lieutenant Wilson violated his procedural due process rights because they did not give Plaintiff a detention order within 24 hours of his initial transfer and did not conduct reviews of his placement between November 18, 2005 and December 9, 2005. These contentions, however, are without merit. "[T]he protections due to sentenced inmates ... provide a floor for what pretrial detainees may expect,"125 and all that is required is an explanation for placement in the SHU and an opportunity to respond.126 Plaintiff was provided with both an explanation and an opportunity to respond during his first confinement in the SHU. This claim will be dismissed.
2. Plaintiff's Procedural Due Process Claim Fails with Respect to His Second Period of Confinement in the SHU
Second, Plaintiff argues that the 10 Prison Management Defendants and Lieutenant Wilson violated his procedural due process rights during his second spell in the SHU. As discussed, Plaintiff entered the SHU for a second time on January 25, 2006 after prison officials discovered that he abused his telephone privileges again.127 Plaintiff was informed that he was being placed in administrative segregation "pending SIS investigation" for his phone abuse.128 Although Plaintiff did not immediately receive a copy of his detention order, he did receive copies of monthly SHU review forms, which explained "the basis for his continued SHU housing assignment."129 Thus, there is no genuine dispute of material fact that Plaintiff was provided with an explanation of why he was initially placed and was being held in the SHU.130 Plaintiff contends that he was not provided with an opportunity to respond, yet the record shows that Plaintiff could have filed a grievance challenging his placement in the SHU at any time. In fact, Plaintiff had filed grievances on other occasions, yet did not do so during this period. Since Plaintiff also had the opportunity to respond and challenge his administrative segregation, this claim will be dismissed.
3. Plaintiff's Procedural Due Process Claim Fails with Respect to His Fourth Period of Confinement in the SHU
Last, Plaintiff contends that the 10 Prison Management Defendants and Lieutenant Wilson violated his procedural due process rights during his fourth period of confinement in the SHU. As previously mentioned, on September 13, 2007, Plaintiff was removed from the general population and placed in the SHU after prison officials documented that Plaintiff had abused his telephone privileges by convincing another inmate to place unauthorized phone calls to Plaintiff's sister.131 The next *709day, Plaintiff received a hearing on this violation, during which Plaintiff was apprised of the charges against him and was given an opportunity to respond to the charges.132 After the hearing, Plaintiff filed at least one grievance challenging his continued confinement in the SHU, but this grievance was denied. Plaintiff appealed the decision, but after considering the appeal, prison officials rejected this as well.133 In light of this record, there is no genuine dispute of material fact that Plaintiff was provided with an explanation for his fourth placement in the SHU and an opportunity to respond. This claim will be dismissed.
Defendants Are Entitled to Qualified Immunity on the Procedural Due Process Claim
Defendants argue that they are entitled to qualified immunity on Plaintiff's procedural due process claim. Courts examine two prongs to determine if prison officials are entitled to qualified immunity: (1) where the facts shown make out a violation of a constitutional right, and (2) whether the right at issue was clearly established.134
In this case, Plaintiff contends that the Third Circuit's recent decision in Williams v. Secretary, Pennsylvania Department of Corrections135 sets the standard for what process is constitutionally required. In particular, Plaintiff asserts that Williams now requires: (1) "[w]ritten notice of the reason for placement in administrative custody"; (2) "[e]ntitlement to a hearing ... within six days of the initial transfer to administrative custody"; and (3) "[e]very thirty days thereafter, the opportunity to be personally interviewed ... [to determine] whether the inmate should continue to be maintained in administrative custody."136 Although these requirements were taken from Pennsylvania Department of Correction policies considered in the earlier case of Shoats v. Horn ,137 it is important to note that the Court of Appeals in Shoats held only that an inmate was entitled to periodic review of his confinement in administrative custody, and did not find that this particular process was constitutionally required. The Third Circuit explained in the earlier appeal of this case that "the protections due to sentenced inmates [as discussed in ... Shoats ] provide a floor for what pretrial detainees may expect. Therefore, the law was sufficiently clear prior to Stevenson that Plaintiff was entitled to an explanation and an opportunity to challenge his confinement."138 The comprehensive protections in Williams were not clearly established before that decision, as the Court of Appeals stated.139
Here, Plaintiff was provided with an explanation and an opportunity to challenge his confinement, either through grievance or a hearing, each time he was placed in the SHU. Therefore, as explained above, there is no constitutional violation and Defendants are entitled to qualified immunity. Even if Williams now sets the floor for what process is constitutionally required when inmates are placed in administrative custody or solitary confinement, the process *710described in this case was not clearly established before 2008, when Plaintiff was housed at FDC Philadelphia and periodically placed in the SHU. Because "existing precedent must have placed the statutory or constitutional question beyond debate,"140 Defendants are entitled to qualified immunity on the procedural due process claim.
D. COUNT X: FIRST AMENDMENT (RETALIATION)
In Count X, Plaintiff alleges that the 10 Prison Management Defendants placed him in the SHU for the fourth time in retaliation for protesting his prior SHU confinements at his sentencing hearing, in violation of his rights under the First Amendment.
"Retaliating against a prisoner for the exercise of his constitutional rights is unconstitutional."141 To establish a retaliation claim, the prisoner must show that: (1) he was engaged in constitutionally protected conduct; (2) he suffered some adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that action.142 "Because motivation is almost never subject to proof by direct evidence, [the prisoner] must rely on circumstantial evidence to prove a retaliatory motive."143 He can satisfy his burden with evidence of either: (a) "an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action," or (b) "a pattern of antagonism coupled with timing that suggests a causal link."144
First, Plaintiff has shown that his conduct was constitutionally protected. On Plaintiff's behalf, counsel challenged Plaintiff's repeated confinement in the SHU, and such a challenge is constitutionally protected.145
Second, Plaintiff argues that his detention in the SHU for the fourth time was an adverse action that he suffered because his counsel challenged his earlier administrative segregation and complained of his treatment at FDC Philadelphia during the sentencing hearing. The Third Circuit has explained that this "adverse action" element is a fact question: "whether placement in the SHU was 'sufficient to deter a person of ordinary firmness from exercising his constitutional rights' is an objective inquiry and ultimately a question of fact."146 In Allah v. Seiverling ,147 the Third Circuit held that where "confinement in administrative segregation resulted, *711inter alia , in reduced access to phone calls, reduced access to the commissary, reduced access to recreation, [and] confinement in his cell for all but five hours per week," "[a] fact finder could conclude from those facts that retaliatory continued placement in administrative confinement would deter a person of ordinary firmness from exercising his First Amendment rights."148 The Court finds that Plaintiff has set forth evidence from which a reasonable fact finder might conclude that his placement in the SHU for a fourth time was an adverse action to prevail on the retaliation claim.
Third, Plaintiff identified evidence demonstrating that his complaints at the sentencing hearing were a substantial or motivating factor as to Defendants Jezior and Levi. As previously noted, Plaintiff can satisfy his burden of showing motivation with either "an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action," or "a pattern of antagonism coupled with timing that suggests a causal link."149 Here, the record shows that one day after the FDC was notified of Plaintiff's complaints made during the sentencing hearing, Jezior wrote an incident report documenting Plaintiff's telephone violations.150 In addition, Plaintiff alleges that Levi told him that "he would never see the light of day again."151 Although Levi denies ever saying this to Plaintiff, this is a disputed issue of fact that cannot be resolved on summary judgment. This record supports the inference that Jezior and Levi were motivated to place Plaintiff in the SHU after being notified that Plaintiff was complaining about his treatment at FDC Philadelphia to the Court.
Summary judgment therefore is not appropriate with respect the retaliation claim against Jezior and Levi. However, summary judgment is warranted as to the remaining Defendants,152 because Plaintiff has failed to point to any evidence in the record suggesting that these individuals were personally involved in, or knew of and acquiesced to, the decision to place Plaintiff in the SHU for the fourth time for any retaliatory motive or purpose.153
Defendants Jezior and Levi Are Not Entitled to Qualified Immunity on the Retaliation Claim
Defendants argue that they are entitled to qualified immunity with respect to Plaintiff's retaliation claim.154 Here, Plaintiff has pointed to evidence which suggests a violation of his First Amendment right to protest his prior treatment at FDC Philadelphia. In addition, the right to protest, or to challenge conditions of incarceration, is clearly established under *712the First Amendment, and it is unconstitutional to retaliate against an inmate for doing so.155 Thus, Jezior and Levi are not entitled to qualified immunity with respect to the retaliation claim.
E. COUNT XV AND COUNT XVI AGAINST THE UNITED STATES
Count X and Count XVI allege that the United States is liable under the FTCA for the prison officials' negligence in failing to protect Plaintiff from the two assaults. The United States argues that the discretionary function exception to the FTCA bars the two claims.
Pursuant to the FTCA, the United States has waived its sovereign immunity for certain types of suits.156 However, under the discretionary function exception, the FTCA's waiver of sovereign immunity does not apply to claims based upon a government employee's exercise or performance, or failure to exercise or perform, a discretionary function or duty.157 The purpose of the discretionary function exception is "to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy."158 Courts conduct a two-part test to determine whether the discretionary function exception applies in a particular case. First, a court must ask whether "the act giving rise to the alleged injury ... involves an element of judgment or choice."159 "Second, even if the challenged conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield."160 "The focus of th[is] inquiry is not on the agent's subjective intent in exercising the discretion conferred by the statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."161
Count XV and Count XVI allege that the United States is liable under the FTCA for the prison officials' negligence in failing to protect Plaintiff from the Northington attack "as a confidential informant" and from the Taylor assault. Plaintiff relies on 18 U.S.C. § 4042, which imposes a general duty on the BOP to provide for the care and safekeeping of inmates. However, the Third Circuit has held that 18 U.S.C. § 4042 involves an element of judgment or choice by leaving the implementation of the duty to protect prisoners (including in the context of inmate-on-inmate violence) to the discretion of the BOP.162 It also established that "the judgment involved in this case-i.e. , how to best protect one inmate from the threat of attack by another-'is the kind that the discretionary function exception was designed to shield.' "163 Thus, the discretionary function exception applies, and alleged violations of § 4042 are not actionable under the FTCA.
*713With respect to Count XV, Plaintiff also asserts that an excerpt from the SIS manual imposes a non-discretionary duty on prison officials to protect confidential informants from inmate violence.164 However, the manual involves elements of judgment or choice by affording prison officials with discretion to determine how to protect informants from inmate violence, just to this claim on this basis. In conclusion, summary judgment will be granted on Count XV, but will be denied on Count XVI with respect to the razor collection policy Plaintiff has identified.
IV. CONCLUSION
For the reasons set forth above, the motion for summary judgment filed by the prison officials will be granted in part and denied in part, and the motion to dismiss, or in the alternative for summary judgment, filed by the United States will be granted in part and denied in part. An Order follows.
For clarity, the following claims against the following Defendants remain:
• Count I: Fifth Amendment Substantive Due Process (Failure to Protect)
• Claim: Defendants were deliberately indifferent to the risk posed by placing Plaintiff in the same locked recreation pen as Northington and his gang.
• Defendants (8): Senior Officer Bergos, Senior Officer Bowns, Lt. Gibbs, Senior Officer Jezior, Warden Levi, Special Investigative Agent McLaughlin, Lt. Robinson, and Lt. Rodgers
• Count III: Fifth Amendment Substantive Due Process (Punitive Detention)
• Claim: Plaintiff's fourth detention in the SHU deprived him of his liberty interest, as an inmate awaiting sentencing, to be free from punishment.
• Defendants (2): Warden Levi, Senior Officer Jezior.
• Count X: First Amendment (Retaliation)
• Claim: Plaintiff's placement and continued detention in SHU after his attorney challenged Plaintiff's previous placement was retaliatory for exercising his First Amendment rights.
• Defendants (2): Warden Levi, Senior Officer Jezior.
• Count XVI: FTCA Negligence Claim (Failure to Protect from Assault)
• Claim: The United States of America negligently failed to protect Plaintiff from the Taylor assault by failing to collect a razor issued to Taylor.
• Defendant: The United States of America
The facts are either agreed upon by the parties or set forth in the light most favorable to Plaintiff as the non-moving party.
Plaintiff was released on bail after his arrest for wire-fraud charges. However, in August 2005, he failed to appear at trial and became a fugitive. He was subsequently arrested at the Canadian border as he attempted to flee the United States, and was sent to FDC Philadelphia where he was detained until sentencing. Defs.' Proposed Statement of Undisputed Facts (Doc. No. 197-2) at ¶¶ 90-91.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 99.
Defs.' Proposed Statement of Undisputed Facts at ¶ 54 (quoting 28 C.F.R. § 541.25 ).
Id. at ¶ 60 (quoting 28 C.F.R. § 541.26 ).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 154, 157.
Id. at ¶ 154 (citations omitted); Defs.' Proposed Statement of Undisputed Facts at ¶ 60 (citation omitted).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 160-61.
Id. at ¶ 162.
Id.
Id. at ¶ 165.
Id. at ¶ 172.
Id. at ¶ 179. SIS refers to Special Investigative Services.
Id. at ¶ 178.
In fact, Plaintiff had previously been given a security threat group assignment for his serious and repeated phone abuse. A security threat group is an assignment given to an inmate "if they were a security concern for the orderly running of the institution." Defs.' Proposed Statement of Undisputed Facts at ¶ 118, n.4 (citations omitted).
Id. at ¶ 122.
Id. For example, Plaintiff's thirty day SHU reviews took place on February 29, March 30, April 27, May 25, June 22, July 20, August 17, September 14, October 12, November 8, and December 3, 2006. Id. at ¶ 123.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 186-92.
Id. at ¶ 198.
Id. at ¶ 199.
Id. at ¶¶ 201-02.
Id. at ¶¶ 205-06.
Id. at ¶ 207.
Id. at ¶ 211.
See id. at ¶¶ 206-08 (explaining that Plaintiff met with Bowns and Gibbs to inform them that Northington wanted Plaintiff to pass notes, and that the three agreed to the arrangement where Plaintiff would pass notes and also cooperate with the officials' investigation), ¶¶ 213-14 (stating that Bergos, Gibbs, Jezior, and Rodgers testified that they knew of the note-passing scheme), ¶¶ 223-25 (explaining that Robinson and Rodgers knew about the note-passing scheme). See also Pl.'s Sur-Reply (Doc. No. 229), Ex. B (Bistrian Dep.) at 696-698 (identifying McLaughlin as being aware of the note-passing scheme).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 217-18.
Id. at ¶ 219; Defs.' Proposed Statement of Undisputed Facts at ¶ 146.
Bowns and Gibbs admitted that Plaintiff told them of Northington's threats. Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 144-45. Plaintiff also testified that Jezior and Levi knew that he was being threatened. Pl.'s Sur-Reply (Doc. No. 229), Ex. B (Bistrian Dep.) at 696-98. Although Jezior and Levi testified that they were never informed of Northington's threats; this contradictory deposition testimony creates a genuine dispute of material fact that precludes summary judgment as to Jezior and Levi.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 220-21.
Defs.' Proposed Statement of Undisputed Facts at ¶ 149.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 256.
Plaintiff alleges that the unspecified SHU Lieutenant did not give the order to open the recreation pen door until 12 to 15 correctional officers were present on the scene. Plaintiff notes that SHU protocol "demands that when two inmates are fighting, correctional officers cannot open the door of the rec cage until the SHU Lieutenant orders them to do so, regardless of what is going on inside the recreation cage, or how long it takes for the Lieutenant to get there." Id. at ¶ 258.
Id. at ¶ 272.
An investigation after the attack revealed that Taylor "had a history of unprovoked violence toward other inmates." Id. at ¶ 285.
Id. at ¶¶ 276-78.
Id. at ¶¶ 280-82.
Id. at ¶¶ 358-59.
Id. at ¶ 359.
Defs.' Proposed Statement of Undisputed Facts at ¶¶ 178-82.
Id. at ¶¶ 183-84.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 360.
Defs.' Proposed Statement of Undisputed Facts at ¶ 186.
Id. at ¶ 188.
Pl's Proposed Statement of Undisputed Facts at ¶ 366 (citation omitted).
The propriety of the third period of confinement is not actionable, but is relevant for background.
Defs.' Proposed Statement of Undisputed Facts at ¶ 190.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 368-71.
Id. at ¶¶ 371-72.
Id. at ¶¶ 374-76.
Defs.' Proposed Statement of Undisputed Facts at ¶ 190.
Id. at ¶¶ 380, 384.
Id. at ¶¶ 390-91, 394-95.
Id. at ¶ 391 (citation omitted).
Id. at ¶ 392 (citation omitted).
Defs.' Proposed Statement of Undisputed Facts at ¶ 198.
Id. at ¶ 199.
Bistrian v. Levi , 696 F.3d 352 (3d Cir. 2012). The United States did not take part in the appeal.
The 10 Prison Management Defendants are: Warden Levi, Assistant Wardens Brown and Blackman, five members of the Corrections Officers staff (Captain Knox, Lt. Gibbs, Sr. Officer Jezior, Sr. Officer Bergos and Unit Manager White), and two Special Investigative Agents (McLaughlin and Garraway).
Fed. R. Civ. P. 56(a), (c)(1)(A).
Miller v. Ind. Hosp. , 843 F.2d 139, 143 (3d Cir. 1988).
See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Id.
Hugh v. Butler Cnty. Family YMCA , 418 F.3d 265, 267 (3d Cir. 2005).
Boyle v. Cnty. of Allegheny , 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 (citations omitted).
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) ).
Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ; Wisniewski v. Johns-Manville Corp. , 812 F.2d 81, 83 (3d Cir. 1987).
Jezior is one of the 10 Prison Management Defendants.
Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citation omitted).
Id. at 833, 114 S.Ct. 1970 (internal quotation marks and citation omitted).
Id. at 832-34, 114 S.Ct. 1970.
See Bell v. Wolfish , 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ; see also Fuentes v. Wagner , 206 F.3d 335, 341-42 (3d Cir. 2000).
Bistrian v. Levi , 696 F.3d 352, 367 (3d Cir. 2012) (citing Fuentes , 206 F.3d at 344 ) (internal quotation marks and alterations omitted).
Bistrian , 696 F.3d at 367.
Id. (citations omitted).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 199, 207.
Id. at ¶¶ 217-18.
Id. at ¶¶ 220-21.
Id. at ¶ 222.
Id. at ¶ 227; Defs.' Proposed Statement of Undisputed Facts at ¶ 146.
Beers-Capitol v. Whetzel , 256 F.3d 120, 125 (3d Cir. 2001).
Bowns and Gibbs admitted that Plaintiff told them of Northington's threats. Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 144-45. Jezior and Levi testified that they were never informed of Northington's threats; however, Plaintiff testified that he told them of the threats. Pl.'s Sur-Reply (Doc. No. 229) at 3, Ex. B (Bistrian Dep.) at 696-98. This is a disputed material fact that precludes summary judgment as to Jezior and Levi.
See Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 206-08 (explaining that Plaintiff met with Bowns and Gibbs to inform them that Northington wanted Plaintiff to pass notes, and that the three agreed to the arrangement where Plaintiff would pass notes and also cooperate with the officials' investigation), ¶¶ 213-14 (stating that Bergos, Gibbs, Jezior, and Rodgers testified that they knew of the note-passing scheme), ¶¶ 223-25 (explaining that Robinson and Rodgers knew about the note-passing scheme). See also Pl.'s Sur-Reply (Doc. No. 229), Ex. B (Bistrian Dep.) at 696-698 (identifying McLaughlin as being aware of the note-passing scheme).
Plaintiff also alleges that Jezior was deliberately indifferent to his safety during the Northington attack. Although deliberate indifference can be demonstrated by a prison official's failure to intervene to stop an attack on an inmate, the evidence must show that the official had "a reasonable opportunity to intervene and simply refused to do so." Smith v. Mensinger , 293 F.3d 641, 651 (3d Cir. 2002). Here, the record shows that Jezior immediately responded to the alarm and shouted into the recreation area, ordering the attackers to stop their assault, and that he intervened as soon as he had sufficient support to do so safely. Defs.' Proposed Statement of Undisputed Facts at ¶ 153; Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 258-59. Plaintiff takes issue with the fact that the BOP waited until roughly 12 to 15 officials were present to enter the recreation pen. However, Plaintiff does not indicate how long it took these officials to arrive on the scene, and the evidence suggests that the officials immediately responded to the emergency. Without more, this record is insufficient to create a genuine dispute of material fact regarding Jezior's response to the Northington attack. On appeal, the Third Circuit noted that more facts would be required to establish this failure to protect claim against Jezior for Plaintiff to prevail. Bistrian , 696 F.3d at 372 ("It may be that summary judgment for Jezior is on the horizon.") However, Plaintiff has been unable to identify evidence demonstrating that Jezior had a reasonable opportunity to intervene in the Northington attack and simply refused to do so. Moreover, Plaintiff has not pointed to, nor is the Court aware of, any precedent that would require a correctional officer to enter a recreation area alone to quell an attack involving four inmates. The Court concludes that there is no evidence that Jezior was deliberately indifferent in responding to the Northington attack, as opposed to merely failing to prevent it from occurring. This additional claim against Jezior will be dismissed.
Plaintiff alleges in his Sur-Reply that Garraway and Knox knew of the note-passing scheme. See Pl.'s Sur-Reply at 2. However, Plaintiff does not support this allegation with citations to evidence in the record which indicate that Garraway and Knox knew of Plaintiff's note passing. Plaintiff's unsupported allegations against these two officials, without more, are unpersuasive and do not create a genuine dispute of material fact.
See Pl.'s Proposed Statement of Undisputed Facts at ¶ 113 (indicating the unit managers, like White, attended the weekly meetings, though not mentioning White by name as an attendee); see also id. at ¶ 210 (stating that the associate wardens Brown and Blackman, and sometimes Knox, attended the monthly SIS meetings).
Beers-Capitol , 256 F.3d at 133 (citation omitted).
See Pl.'s Proposed Statement of Undisputed Facts at ¶ 210 ("[T]he subject of Plaintiff's cooperation in the KSG [Kaboni Savage Gang] investigation was not mentioned" at the SIS meetings).
Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ) (internal quotation marks omitted).
Id. at 232, 129 S.Ct. 808 (quoting Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ).
Wilson v. Layne , 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal quotation marks and citations omitted).
Karns v. Shanahan , 879 F.3d 504, 520 (3d Cir. 2018) (citing Pearson , 555 U.S. at 236, 129 S.Ct. 808 ; James v. City of Wilkes-Barre , 700 F.3d 675, 679 (3d Cir. 2012) ).
Bistrian , 696 F.3d at 367.
Bistrian , 696 F.3d at 373 (quoting Cobb v. Aytch , 643 F.2d 946, 962 (3d Cir. 1981) (en banc) ).
Bell , 441 U.S. at 536-37, 99 S.Ct. 1861.
Bistrian , 696 F.3d at 373 (quoting Stevenson v. Carroll , 495 F.3d 62, 68 (3d Cir. 2007) ).
Id. (internal quotation marks and citation omitted).
Defs.' Proposed Statement of Undisputed Facts at ¶ 60; Pl.'s Proposed Statement of Undisputed Facts at ¶ 154.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 160-61.
Plaintiff also asserts that he should have received credit for the days he had already been in the SHU in calculating his 30-day disciplinary segregation.
Allowing an inmate to violate BOP rules without consequence will not help prison officials maintain a secure environment.
In Bell , the Supreme Court explained:
The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.
441 U.S. at 540, 99 S.Ct. 1861 (citations omitted).
Stevenson , 495 F.3d at 71 (quoting Block v. Rutherford , 468 U.S. 576, 588, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) ) (internal quotation marks omitted).
In this case, the Third Circuit stated: "Given Appellants' failure to assert any legitimate, non-punitive need for the segregation, Bistrian has plausibly alleged that it was excessive to keep him in the SHU for nearly a month while awaiting a hearing on seemingly minor telephone infractions." Bistrian , 696 F.3d at 374. Discovery in this case has shown, however, that Defendants were appropriately adjudicating Plaintiff's telephone violations during this period. Moreover, Defendants articulated a legitimate, non-punitive need for the segregation during this process.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 172.
Karns , 879 F.3d at 520 (citations omitted).
Id. (citation omitted).
Hubbard v. Taylor , 538 F.3d 229, 236 (3d Cir. 2008) (internal quotation marks and citations omitted).
Bistrian , 696 F.3d at 373 (citing cases).
For example, in Hubbard , the Court of Appeals held that the triple celling of pretrial detainees was rationally related to a legitimate government interest of trying to manage the overcrowded conditions at the correctional institution, was not excessive in light of that interest, and was not intended to punish the plaintiff's. Hubbard v. Taylor , 538 F.3d at 231-36. Moreover, in Fuentes , the Third Circuit found that the placement of a convicted but unsentenced inmate in a restraint chair for eight hours following a disturbance did not violate substantive due process, as there was no evidence suggesting that use of the restraint was done maliciously or to cause harm, and where the inmate was not kept in the restraint chair for longer than had been authorized. Fuentes v. Wagner , 206 F.3d at 345-46. Most analogous to this case, however, is Stevenson , in which the district court held that a pretrial detainee's placement in the SHU for more than a year after considering the severity of the crimes for which he was charged and after he was involved in a fight while incarcerated was rationally related to the legitimate government purpose of maintaining his safety, as well as the security of the prison, was not excessive in light of that purpose, and was not intended to punish the detainee. Stevenson v. Carroll , No. 04-139, 2011 WL 6842955, at *9-11 (D. Del. Dec. 29, 2011), aff'd , 474 Fed.Appx. 845 (3d Cir. 2012). Like the court in Stevenson , this Court concludes that Plaintiff's three-to-four month administrative segregation was rationally related to the legitimate government purposes of maintaining the security of the detention center, that the segregation was not excessive in light of that purpose, and that there was no intent to punish Plaintiff related to this period of administrative segregation. Thus, this claim will be dismissed.
Bistrian , 696 F.3d at 373 (quoting Stevenson , 495 F.3d at 68 ).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 374, 377.
Id. at ¶ 391.
They are: Bergos, Blackman, Brown, Garraway, Gibbs, Knox, McLaughlin, and White. Plaintiff has not shown though evidence in the record that these Prison Management Defendants were personally involved in, or knew of and acquiesced to, the decision to transfer Plaintiff to the SHU for the fourth time after he complained about his treatment at FDC Philadelphia. See Baraka v. McGreevey , 481 F.3d 187, 210 (3d Cir. 2007) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, ... and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved....") (internal quotation marks and citations omitted); see also Diaz v. Canino , 502 Fed.Appx. 214, 219 (3d Cir. 2012) (affirming dismissal of a complaint because the defendant did not have the requisite personal involvement in the alleged post-sentence deprivations despite having found the plaintiff "guilty of misconduct and sentenced him to 360 days in [the Restrictive Housing Unit]").
Karns , 879 F.3d at 520 (citations omitted).
Bell , 441 U.S. at 535, 99 S.Ct. 1861 (citations omitted).
See Bistrian , 696 F.3d at 376 ("Retaliating against a prisoner for the exercise of his constitutional rights is unconstitutional.") (citing cases).
Stevenson , 495 F.3d at 69.
Id. at 70.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 157.
Id. at ¶ 154; Defs.' Proposed Statement of Undisputed Facts at ¶ 60.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 160-61.
Id. at ¶ 162.
Bistrian , 696 F.3d at 375 (citations omitted).
Id.
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 172, 179.
Id. at ¶ 179.
Defs.' Proposed Statement of Undisputed Facts at ¶ 122.
See Shoats v. Horn , 213 F.3d 140, 145-46 (3d Cir. 2000) (concluding that the prisoner received procedural due process via periodic reviews and the right to be heard).
Pl.'s Proposed Statement of Undisputed Facts at ¶¶ 368-71; Defs.' Proposed Statement of Undisputed Facts at ¶ 190.
Pl.'s Proposed Statement of Undisputed Facts at ¶ 380.
Id. at ¶¶ 390-91, 394-95.
Pearson , 555 U.S. at 231, 129 S.Ct. 808.
848 F.3d 549 (3d Cir. 2017).
Pl's Resp. to Individual Defendants' Mot. for Summ. J. at 13.
213 F.3d 140 (3d Cir. 2000).
Bistrian , 696 F.3d at 375 (Stevenson , 495 F.3d at 69 ).
See Williams , 848 F.3d at 570 ("[W]e are not prepared to conclude that Shoats was sufficient to clearly establish Plaintiffs' due process interest in avoiding confinement on death row.").
Id. (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).
Bistrian , 696 F.3d at 376 (citations omitted).
Rauser v. Horn , 241 F.3d 330, 333-34 (3d Cir. 2001).
Watson v. Rozum , 834 F.3d 417, 422 (3d Cir. 2016).
Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis , 480 F.3d 259, 267 (3d Cir. 2007) ).
See Watson , 834 F.3d at 422 (finding that the plaintiff engaged in constitutionally protected activity when he filed a grievance against a corrections officer); see also Mitchell v. Horn , 318 F.3d 523, 530 (3d Cir. 2003) (concluding that filing a grievance "implicates conduct protected by the First Amendment"). Here, the Court concludes that a prisoner's protests or complaints about his treatment at a detention center made to a Court during a criminal sentencing hearing is sufficiently similar to the filing of grievances and implicates conduct protected by the First Amendment.
Bistrian , 696 F.3d at 376 (quoting Rauser , 241 F.3d at 333 ).
229 F.3d 220 (3d Cir. 2000).
Id. at 225 (internal quotation marks and citation omitted).
Watson , 834 F.3d at 422 (citation omitted).
Pl.'s Proposed Statement of Undisputed Facts at ¶ 374. See Estate of Smith v. Marasco , 318 F.3d 497, 512-13 (3d Cir. 2003) (explaining that the Third Circuit has held that an inference can be drawn "where two days passed between the protected activity and the alleged retaliation, ... but not where 19 months had elapsed") (citing Jalil v. Avdel Corp. , 873 F.2d 701, 708 (3d Cir. 1989), Krouse v. Am. Sterilizer Co. , 126 F.3d 494, 503 (3d Cir. 1997) ).
Pl.'s Proposed Statement of Undisputed Facts at ¶ 391.
Summary Judgment will be granted on this claim as to these remaining defendants: Brown, Blackman, Knox, McLaughlin, Garraway, Gibbs, Bergos, and White.
Baraka , 481 F.3d at 210.
As discussed, courts consider two prongs to determine whether prison officials are entitled to qualified immunity: (1) whether the facts shown make out a violation of a constitutional right, and (2) whether the right at issue was clearly established. Pearson , 555 U.S. at 231, 129 S.Ct. 808 (citation omitted).
See Bistrian , 696 F.3d at 376 ("Retaliating against a prisoner for the exercise of his constitutional rights is unconstitutional.") (citing cases).
See 28 U.S.C. § 1346(b)(1).
28 U.S.C. § 2680(a).
Merando v. United States , 517 F.3d 160, 164 (3d Cir. 2008) (quotation omitted).
Id. (internal quotation marks and citation omitted).
Id. at 165 (internal quotation marks and citation omitted).
United States v. Gaubert , 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).
Donaldson v. United States , 281 Fed.Appx. 75, 77 (3d Cir. 2008).
Id. (quoting Mitchell v. United States , 225 F.3d 361, 363 (3d Cir. 2000) ).
Plaintiff relies on the SIS Manual, which states: "Confidential Information is a primary means of gathering intelligence. The sensitivity inherent in this investigative tool mandates that staff protect the identity of the source. The failure to do so could pose a serious threat not only to the personal safety of the informant, but to the security of the institution to liability should the inmate be injured as a result of staff failure to protect the informant. If the identity of the confidential source is compromised, immediate action shall be taken to protect the individual." | 01-03-2023 | 07-25-2022 |
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https://www.courtlistener.com/api/rest/v3/opinions/4078866/ | Motion Granted; Motion Denied; Appeal Dismissed and Memorandum
Opinion filed September 29, 2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00668-CV
IN THE INTEREST OF J.J.R.P., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2010-52276
MEMORANDUM OPINION
This is an appeal from a judgment signed April 20, 2016. On September 6,
2016, appellant, Briony Phillipa Pessell, filed a motion to “immediately dismiss
proceedings and send the case back to the trial court for the entry of judgment and
mandate.”
Texas Rule of Appellate Procedure 42.1(a) dictates the options available to a
court of appeals concerning voluntary dismissal of a civil appeal. That rule
provides in relevant part:
(a) On Motion or By Agreement. The appellate court may dispose of an
appeal as follows:
(1) On Motion of Appellant. In accordance with a motion of
appellant, the court may dismiss the appeal or affirm the
appealed judgment or order unless disposition would prevent a
party from seeking relief to which it otherwise may be entitled.
(2) By agreement. In accordance with an agreement signed by the
parties or their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties’ agreements;
(B) set aside the trial court’s judgment without regard to the
merits and remand the case to the trial court for rendition
of judgment in accordance with the agreements; or
(C) abate the appeal and permit proceedings in the trial court
to effectuate the agreement.
Tex. R. App. P. 42.1(a).
We are not permitted to both dismiss the appeal and remand the case, which
appellant requests. We are limited to the actions authorized by Rule 42.1(a). Here,
because dismissal is sought by appellant’s motion, not by agreement of the parties,
our only options are to dismiss the appeal or affirm the judgment. Tex. R. App. P.
42.1(a)(1). Therefore, we GRANT the motion only to the extent it asks for
dismissal of the appeal. The appeal is DISMISSED on appellant’s motion.
Appellee’s motion to dismiss the appeal for lack of jurisdiction is DENIED
AS MOOT.
PER CURIAM
Panel consists of Justices Jamison, McCally, and Wise.
2 | 01-03-2023 | 10-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4036027/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-16-00322-CV
_________________
IN RE ENVIRONMENTAL PROCESSING SYSTEMS, L.C. AND CLARK
STEGALL
________________________________________________________________________
Original Proceeding
75th District Court of Liberty County, Texas
Trial Cause No. CV 1206158
________________________________________________________________________
MEMORANDUM OPINION
In the mandamus proceeding, Environmental Processing Systems, L.C. and
Clark Stegall seek to compel the trial court to protect parts of their tax returns from
post-judgment discovery. After reviewing the petition and considering the
arguments and authorities presented in the petition and the materials submitted in
the appendix, we conclude that the relators have not shown that the trial court
abused its discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135
(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1
1992) (orig. proceeding). We deny the petition seeking mandamus relief. See Tex.
R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on September 21, 2016
Opinion Delivered September 22, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.
2 | 01-03-2023 | 09-22-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435037/ | The plaintiffs, taxpayers and residents of the Incorporated Town of Pocahontas, Iowa, commenced the instant action against the said Town of Pocahontas and the members of the town council asserting that a certain telephone franchise voted favorably at a special election February 21, 1929, to the Northwestern Bell Telephone Company was invalid and ineffective because, as alleged, certain voters voting in favor of the franchise were for assigned reasons disqualified, and prayed that the election be declared invalid and ineffective and that the defendants be enjoined from passing any ordinance based on the said election.
The Northwestern Bell Telephone Company, being interested in the subject matter, filed its petition of intervention in which the Company alleged:
1. That the intervener was the corporation referred to in the public measure submitted to the electors.
2. That prior to February 21, 1929, there was filed with the mayor of the town of Pocahontas a petition in due form and signed by more than 50 property owners of the Incorporated Town of Pocahontas requesting said Mayor to call a special election of the electors of the Incorporated Town of Pocahontas, and to submit at said election the public measure or question of granting to the intervener a franchise authorizing said intervener to construct, maintain and operate a telephone plant within said town for the term of twenty-five years from the date of the acceptance of said franchise, and to occupy the streets, alleys and other public places of said incorporated town for said purpose.
3. That the mayor called the election.
4. That said election was held.
5. That at said election a majority of the electors voting thereon voted in favor of said public measure.
6. That thereafter and within 30 days thereof, the intervener filed with the town clerk of the Incorporated Town of *Page 809
Pocahontas, Iowa, a written acceptance of said public measure and paid the costs of said election.
7. That the plaintiffs and defendants claim that the intervener acquired no rights by reason of the adoption of said public measure at said election and that said claim constitutes a cloud upon the title of intervener's said franchise.
The intervener prayed that the title to the franchise, which, as alleged vested in it by virtue of said election, be quieted and confirmed and that it have judgment against plaintiffs and defendants for costs.
The defendants filed a motion to strike and dismiss the allegations numbered 2 to 7 above set out, and for the reason that said matters contained in said allegations failed to state a cause of action against the defendants or either of them, and plainly disclose that intervener is not entitled to the relief demanded, as said allegations do not state facts upon which the relief prayed could be legally granted. The trial court in its ruling sustained the defendant's motion to strike and dismiss the petition of intervention. From this ruling the intervener Northwestern Bell Telephone Company appealed.
The respective contentions of the parties in this case constitute the only controversial legal questions for decision. These contentions will now be stated.
The appellant-intervener contends that as a result of said favorable election that the legal effect thereof resulted in the granting of a franchise to the intervener, and that no act of the councilmanic body of said town is necessary to give to the intervener the right to occupy the streets and other places of said town with its telephone system. The appellee town, on the contrary, contends and claims that the election held pursuant to the petition filed was for the purpose only of advising or authorizing the town that it may enter into such a franchise contract with the intervener. In other words, the granting of the franchise must finally be by the town acting through its councilmanic body, and consequently the intervener-appellant acquired no right in the streets and other public places of the town by reason of the election per se. It is necessary in making answer to the controverted question to refer to the applicable statutory provisions and to the interpretation given by this court to the said provisions. *Page 810
Section 5904, Code, 1927, grants to cities and towns the power to authorize and regulate telephones by general and uniform regulation and to provide the manner in which and places where the wiring and equipment shall be placed upon, along, or under the streets, avenues, alleys, and public places of such city or town. This section is found in Chapter 304, of Title XV, captioned City and Town Government. Section 5714, Code, 1927, found in Chapter 290, of the aforesaid title, provides:
"Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this title, * * *" (Title XV). Section 5717 of said chapter and title provides:
"No resolution or ordinance for any of the purposes hereinafter set forth, except as specifically provided by law, shall be adopted without a concurrence of a majority of the whole number of members elected to the council, by call of the yeas and nays which shall be recorded: 1. To pass or adopt any bylaw or ordinance. 2. To pass or adopt any resolution or order to enter into a contract. * * *"
It is true that in the granting of a franchise of the character as contemplated and named in Section 5904, Code, 1927, the legislature has said in no uncertain terms that the electors shall express their approval or dissent on the proposition involved. Incorporated Town of Mapleton v. Iowa L.H. P. Co.,206 Iowa 9, l.c. 15. It is further said:
"The interest granted is in the streets and alleys of the municipality. True, the franchise comes from the state; but the act of the local authorities who represent the state, by its permission and for that purpose, constitutes the act upon which the law operates to create the franchise. Therefore, a franchise may be defined as a special privilege conferred by a government on individuals, which does not belong to the citizens of the body politic generally by common right. It is a privilege or authority vested in certain persons by grant of the sovereign, to exercise powers or to do and perform acts which, without such grant, they could not do or perform. * * * The council had power to enact an ordinance prior to the vote, although no action on the *Page 811
part of the council could establish the plant without the approving vote."
The principle is well settled that a franchise of the character involved herein constitutes a contract between the state and municipality upon one hand and the grantee of the franchise upon the other. The franchise when granted cannot be abrogated by either party without the consent of the other. There can be no quarrel with the proposition that the police power belongs exclusively to sovereignty and inheres in the state without reservation in the constitution and is given expression by the legislature. This power can neither be abridged, abdicated nor bargained away. It results, therefore, that the state cannot divest itself in any manner of the power to enforce it.
"Since the state cannot divest itself of the police power, so when it is delegated to the city or town the latter, as the state's creature or agent, cannot divest itself of any such power so granted by contract, or otherwise; nor limit or restrain in any manner the full exercise of the power to protect the morals, safety, health, order, comfort or welfare of the public. This is true because a city or town in the exercise of its police powers acts in a governmental capacity, or, as sometimes said as the political agent of the state, and cannot be estopped by the contracts; it cannot abandon its duty in this respect even if it willed to do so." McQuillin on Municipal Corporations (2nd Ed.), Vol. 3, Sec. 935.
This principle is recognized in Smith v. City of Osceola,178 Iowa 200, l.c. 213. In speaking of a franchise, it is there said:
"The primary object is not to give revenue or to secure revenue from these service corporations. It is to secure good and efficient service by these companies to the people of the municipality, upon such terms as, in the judgment of the council, promote the greatest good, not alone to those who use the utility, but to the entire community, including the city government itself. To this end, the relation established must be contractual. The municipality itself has the power and right to use its streets for the purpose of furnishing public service such as is furnished by these public service corporations. To this end, it has the right to erect, maintain and operate plants, and *Page 812
use the streets for furnishing itself and inhabitants with the same service furnished by the public utility corporation or person. * * * The granting to another the right to discharge these duties, which the city itself has a right to discharge for itself, creates a contractual relation; and the granting of a franchise to one of these public utilities is in the nature of a contract by the city with the grantee for the performance of a public service — a service to the people of the municipality. These public utilities, when acting under a franchise of the city, are simply governmental agencies, and important aids to the city in discharging its public duties to the citizens of the city."
The same doctrine is found in McLaughlin v. City of Newton,189 Iowa 556, l.c. 563, wherein it is said: "Every detail of this contract, in so far as the ordinances were contractual, was a matter of concern to the citizens and electors of the city. When they were called to the election, it was to express their approval or disapproval of the contract proposed by the city, every detail of which, in so far as it involved contractual rights and duties, was essential to be known by the voter, before he could intelligently approve or disapprove the same."
It is contended, as heretofore pointed out, that the appellant intervener claims that it is the favorable vote of the legal electors that in itself creates the franchise. This contention is not sustainable in the light of our statutory provisions and our interpretative pronouncements.
Section 5905, Code, 1927, provides that no franchise shall be granted by any city or town for the use of its streets, highways or public places for any of the purposes named in Section 5904, which includes telephones, unless a majority of the legal electors voting thereon vote in favor of the same at a general, city or town, or special election. This statute provides:
"The council may order the question of the granting, renewal, or extension of any such franchise so submitted; or the mayor shall submit said question to such vote upon the petition of 25 property owners of each voting precinct in a city, or 50 property owners in any town."
The statutory duty imposed on the mayor in the event the councilmanic body does not act is mandatory in order that the electors of the municipality might vote upon the basic franchise *Page 813
proposition to be submitted to the electors. The mayor has no discretion in the matter. "He must act." Incorporated Town of Mapleton v. Iowa L.H. P. Co., 206 Iowa 9, l.c. 17; Iowa Public Service Co. v. Tourgee, 208 Iowa 198, l.c. 201. In the instant case the mayor of the town of Pocahontas did respect the statutory mandate.
Section 5909, Code, 1927, provides that the party applying for the franchise, or a renewal or extension thereof, shall pay all expenses incurred in holding the election. Section 761, Code, 1927, constituting a part of Chapter 40, Title IV, provides the method to be followed when a constitutional amendment or other public measure is to be voted upon by the electors, and Sections 762 and 763 prescribe the general form of the ballot. It is said in Iowa Public Service Co. v. Tourgee, 208 Iowa 36, l.c. 42:
"A vote by the legal electors, as contemplated by the statute, does not compel the council to grant the franchise or pass the ordinance. All ordinances of this kind are to be adopted by the council. Grants are to be made by ordinance. Franchises are grants. * * * Obviously, it is the intent and purpose of the legislation aforesaid that an electric franchise ordinance shall be under the complete control and discretion of the city council, except that it is necessary for the voters to approve or authorize the same. Enactment is not made by the voters. They simply approve or authorize, and the council enacts. * * * Consequently, the council of Sac City were not required to pass the franchise ordinance, even though the legal voters authorized it."
In Farmers Telephone Company v. Town of Washta, 157 Iowa 447, it is said:
"They (franchise ordinances) can be validly enacted only by a vote in meeting duly assembled, upon which vote the yeas and nays must be `called and recorded.' * * * As we read the code provisions to which we have adverted, they clearly contemplate that a grant or franchise from the city or town and its ratification by vote of the electors are conditions precedent to the right of any person or corporation to occupy the streets of such municipality with a telephone system."
The code provisions referred to in the above quotation were Sections 775 and 776, Code, 1897, which are now Sections 5904 *Page 814
and 5905, Code, 1927. The Farmers Telephone case, supra, was adhered to and the legal principle re-affirmed in East Boyer Telephone Co. v. Town of Vail (Iowa), 136 N.W. 120 (not officially reported), and was again affirmed in Smith v. City of Osceola, 178 Iowa 200. It was there said:
"It must be conceded that no telephone company can enter upon and use the streets for the erection of its poles and wires, except by consent of the city, (or town) expressed by ordinance."
As pointed out in the Farmers Telephone case, supra:
"The opposite conclusion would come as a surprise, not only to the profession and to the cities and towns of the state, but to the promoters and proprietors of telephone enterprises themselves, and result in an unfortunate increase of confusion and disharmony."
We conclude in the instant matter under the record evidence that no franchise was granted by the favorable vote of the electors, and not until and unless the town council of Pocahontas enacted an ordinance in conformity to Section 5717, Code, 1927. The town council of Pocahontas has not so acted. It follows that the ruling of the trial court in striking and dismissing the material allegations of the petition of intervention was correct. — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435063/ | On March 10, 1924, an election was held in *Page 358
appellee school district for the purpose of determining whether certain bonds should be issued for the purpose of constructing and equipping a school building. A canvass of the votes at the election showed that there was a majority of 99 in favor of the issuance of said bonds.
On the 27th day of March following, appellants herein filed the petition in said cause, alleging that certain voters at said election were not residents of said independent school district, and voted illegally. The petition being filed on March 27, 1924, it was too late for the March term of the district court of Warren County; and the next succeeding term was the September term, at which term issue was joined, and the case was continued to the November term, which convened on November 5th. Trial notice was filed for said term; and, at the request of the attorneys for appellants, the cause was not assigned for trial the first week of the term, but was assigned for a later date, to wit, November 18th. On the 15th of November, appellants filed a motion for a continuance of said cause, said motion being upon the ground that appellants were unable to procure the attendance of some 36 witnesses, the testimony of whom, it was contended, was essential to establishing appellants' case.
It appears that the contention of appellants is that the persons named were students in attendance at Simpson College, located in appellee school district, and that they voted at said school election when they were not legally entitled to do so.
A resistance was filed to the motion for a continuance, and the trial court overruled the motion.
The sole question for our determination is whether the trial court abused its discretion in overruling said motion, under the facts shown. The court would have been fully warranted in denying the motion for a continuance upon the ground that there was a failure to establish diligence on the part of appellants in endeavoring to secure the attendance of said witnesses, or their depositions. The motion for a continuance signally fails to show any reasonable effort on the part of appellants to secure the attendance of said witnesses for said trial, or to procure their depositions; and it is also evident that the means were readily accessible to appellants to have learned the names of said witnesses, who, the motion alleges, were voters at said *Page 359
school election, and were students at Simpson College, long before the said motion for a continuance was filed, which was practically upon the eve of trial.
Furthermore, it affirmatively appears that, even if it be conceded that each and all of the persons named by appellants voted illegally at said school election, and that all of the same voted in favor of the proposition that carried at said school election, still the rejection of all of said votes as claimed by appellants would not have affected the result of said election.
In addition to the foregoing, it also appears that the court tried the identical issue presented by appellants upon the petition of the interveners in said cause, and therein found that the allegations of the interveners' petition, which is identical in substance with that of appellants herein, were not sustained by the evidence; and the petition was dismissed. Appellants' action was brought in behalf of themselves and of taxpayers similarly situated, the interveners being in the same class as appellants; and the question of the legality of said election has been adjudicated by the determination of said question upon the petition of intervention at the instance of a taxpayer, and in good faith and without fraud. The question, therefore, of the alleged error of the trial court in ruling on the motion for a continuance is a moot question, in any event.
The result is that the order of the trial court is in all respects — Affirmed.
STEVENS, De GRAFF, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435023/ | On Sunday, June 28, 1931, Richard Cabrnosh in company with an older brother, visited the public dump of the city of Cedar Rapids. In walking over the refuse matter there dumped, he received burns to his feet and legs, and thereby sustained very serious injuries. It was alleged in the petition that the child came in contact with certain "yellowish clay-like substance", which contained some kind of acid, and that such material had been negligently *Page 973
placed there by the defendants. It is asserted that the so-called "yellow substance" was deposited about two weeks prior to the accident. The defendant Mims is an employee of the defendant Penick Ford. Whatever was done, was so done by defendant Mims as an employee. We infer from the record that the defendant Penick Ford own and operate a factory, which is referred to in the record as a starch factory. It appears that many years ago the city of Cedar Rapids established a public dump for the use of the city and of all its inhabitants. This dump is located between the Cedar River and a country road known as the Otis road. The river runs south and east and the road runs parallel with it. The space between the road and the river is about 300 feet. The entire area is devoted to the dump. The dump is in charge of the health department of the city, and is serviced by two employees. Substantially all the factories in the city and as many of the inhabitants as so desire avail themselves of the use of the dump for disposition of all manner of refuse. Prior to the time of the accident, the defendant Penick Ford were delivering as high as forty truckloads a day of refuse. Other users used the dump likewise to the extent of their necessities. This refuse consists of all manner of material — hard and soft. A large part of the material thus delivered there is combustible; and much of it is not. The employees of the city in charge of the dump seek to distribute the deliveries so as to maintain a uniform level. The area of the dump is steadily growing larger and extends down the river. Fires are burning there constantly night and day. Noncombustible material is often used as a cover for the fires and as a restraint upon them. Underneath these covers, the fires smoulder. The following quotation from the testimony of Marsh, the principal witness for the plaintiff, is descriptive of the dump:
"I have been familiar with this dump for about 12 years. During all of this time it has been a place maintained by the City of Cedar Rapids for the purpose of providing a place for the deposit of refuse material by people, and firms and corporations in the city. The city has two employees in charge of the dump. The dump during all of the time that I have seen it has been gradually increasing in size. Lately the city employees who were down there in charge of the dump endeavored to secure distribution of the refuse material so that it will make a uniform fill along there. They haven't done this *Page 974
as much previously as they have in the last year. At times they have given directions that refuse material should be dumped one place and at other times another, and other times another in connections with the gradual and uniform filling out of that dump ground. That condition has existed ever since I have been familiar with the dump more or less. The dump has extended down the river as the fill increased. The men in charge of the dump in connection with that gradual fill that has been going on there would have all material deposited over on the river bank, and then as it was gradually filled in they filled over closer to the road and when they got as close to the road as they could without encroaching unduly upon the road they would go on farther south by the river bank and re-commence that process of filling in. In that way it has been extended considerably south down the river from the original dump when I first knew it. That is one of the duties that has been performed by these employees in charge of the dump on behalf of the city.
"I know something of fires burning down there on the dump. During all of the 12 years I have known the dump, there have been fires there practically all of the time with the exception of once. Sometimes the fires are blazing and sometimes smouldering. I have seen the men in charge of the dump repeatedly deposit materials to smoulder down the flames when the wind was in the south. I never made an investigation after the material had been deposited on the surface to smoulder the flames; did not see how much fire there was smouldering underneath the place. I never investigated to see whether the consuming process of fire continued underneath the surface after the flames had been smothered. I wasn't paying as much attention to that as I was to the material of the Penick Ford brought down. That was the matter I was chiefly concerned with at that time, and is the matter to which I directed by chief attention. There was a lot of inflammable materials in the dump, a lot of oat hulls, straw and wood and rags and grease and all that sort of thing. I have seen other trucks besides the Penick Ford truck down there. I have seen the Quaker Oats truck with sweepings, oat hulls, straw and things of that kind and waste paper. I have seen the same thing from the Three Minute Cereal Company. I have seen quantities of rags, cans, grease, bottles and paper brought down there. There are so much rags and paper brought down in that material some of the people down there go in and pick that stuff *Page 975
out and sell it again. That is going on constantly. Some of the people who frequent that dump set the brush afire. That doesn't ignite the dump at that point. The brush is put on top of the dump where there hadn't been no fire. It doesn't result in fires being started along the bank because it is far enough away from the bank it wouldn't catch. People on the dump sorting out material start fires that result in a portion of the dump being burned. Fires exist particularly along the edges of the dump where the air can get to it. The edges of the dump would be burning or smouldering today in several places, and that condition has existed ever since I have known the dump."
It was the theory of the defense on the trial that the injuries to the plaintiff resulted from contact with one of the fires of the dump. On the other hand, it was the contention for the plaintiff that the material deposited by the defendant upon the dump contained acid, and that said acid was a "yellowish matted substance" which, when left in piles and exposed to the air, "spontaneously ignites and burns at an intense heat for many days". Such is the allegation of the petition. To quote further from the petition:
"That in dumping said materials in large piles on said premises it was known to defendants that said materials would ignite and burn in such a manner that from outward appearances there was no evidence of heat or fire, but that underneath the apparent lifeless coat of gray ashes an intense fire would burn for many days; that defendants knew or should have known of the dangerous and combustible character of said material and of the effect of the acid coming in contact with the persons who would step into or against said material."
There was no other identification of the "yellowish matted substance" nor was there any proof offered that such substance would spontaneously ignite and burn other material. The final contention of the appellant is that the yellow substance, whatever its identity, did cause the plaintiff's injury, and that such injury consisted of an acid burn. We will consider the appeal first, upon the assumption that the injury to the plaintiff resulted from an acid burn, and that such acid substance was included in the refuse deposited in the dump by the defendants. On such assumption, has the plaintiff shown negligence on the part of the defendants? *Page 976
I. The appellant disclaims any reliance upon the theory that this dump was an attractive nuisance. This is in accord with our previous holding in Smith v. Illinois Central Railway Co.,177 Iowa 243, 158 N.W. 546, L.R.A. 1917F, 1033. In that case the action was brought against the owner of the dump, which had the exclusive control thereof. As here, fires were constantly burning therein. The trial court directed a verdict therein and we sustained it here. A like holding was had in Dehanitz v. City of St. Paul, 73 Minn. 385, 76 N.W. 48; and likewise in Kohler v. Jennison, 128 Minn. 133, 150 N.W. 235; to the same effect in Richards v. Connell, 45 Neb. 467, 63 N.W. 915; and Union Stock Yards v. Rourke, 10 Ill. App. 474. In each of these latter cases the action was brought against the owner and manager of the property.
In the case at bar, the action is not brought against the owner of the dump, but against a mere patron, who has no control over his refuse after he has left it at the dump. The burden is upon the plaintiff to show that the defendant violated some duty owing to the plaintiff in bringing his refuse to the dump or that he afterwards failed in some duty to the plaintiff in the control and management of such refuse after it came to the dump. The argument for appellant does not differentiate as between the right of the defendant to deposit his refuse at the dump and his asserted duty thereafter to protect all persons against contact with such deposit.
Without doubt the city had the right to establish and to own the dump. The defendant had an equal right to avail himself of the privileges offered by the city. It necessarily follows that refuse at the dump must either decompose chemically or be consumed by fire in so far as it is combustible. There is a degree of danger incidental both to combustion and to decomposition. Decomposition involves chemical changes, which may produce acid on the one hand or neutralize it on the other. It is a general principle, as old as the common law, that, where dangerous instrumentalities are created or permitted to arise upon premises that may be frequented by invitees or perhaps licensees, liability therefor, if any, attaches to him who owns or controls the premises. The defendant had the undoubted right to accept the invitation of the city as a patron of the city dump. After the deposit, he had no control or right of management of the material dumped. There was therefore no duty upon the defendant to erect fences or guards against approach to the material. His deposit went into a common mixture, which came *Page 977
from hundreds of sources. Title to the material thus deposited passed at once from the patron to the city, and the defendant became a stranger thereto. Such is the uniform holding of the cases and nothing to the contrary is cited by the appellant. This principle is stated in 20 R.C.L. 73, as follows:
"As a general rule, however, liability for injuries caused by dangerous instrumentalities terminates with a cessation of control thereover; and the liability of a landowner, likewise, is terminated when he parts with possession of the premises in question. Thereafter he is not accountable at the suit of one who may have sustained injuries while on the property. Responsibility rests upon the purchaser or other person who is substituted with respect to the control over the property."
In Mercer v. Meinel, 290 Ill. 395, 125 N.E. 288, 8 A.L.R. 351, the defendant was sued for negligence resulting in the death of plaintiff's intestate. He was charged with the negligent installation of a gas heater, which caused the death. At the time of the installation he was the owner of the premises on which the installation was made. Before the injury resulted, he had sold the premises, and he was not thereafter in control thereof. It was held that, from and after the time of the sale of the premises, his responsibility ceased, and that the grantee of the premises was thereafter responsible for their condition. We held to the same effect in Upp v. Darner, 150 Iowa 403, 130 N.W. 409, 32 L.R.A. (N.S.) 743, Ann. Cas. 1912d 574. The defendant in that case had inclosed his premises with a barbed wire fence, which was in violation of an existing ordinance. The plaintiff's horse was killed in contact with such barbed wire fence. Before the injury, the defendant had sold the premises and surrendered control thereof. We held that he was no longer responsible for the condition of the premises. In that case we said:
"But after the owner of such premises has disposed of them he is no longer liable for what may happen thereon for the reason that he is in no position to control the use thereof, and his duty to persons who may be invited there by another is at an end. The purchaser who invites the guest or visitor upon the premises then owes a duty to the person invited, and the person so invited is a stranger to the original owner.
"It is for this reason that plaintiff admits defendant cannot be held for nuisance. But he contends that an action for negligence *Page 978
will lie upon the same state of facts. Here again, however, there must be found a duty upon the part of the defendant to the person who suffered the injury. * * *
"After he sold it, he had no control over the use of the property and was under no duty to one who was invited thereon by his grantee. This grantee had no authority to extend the invitation for him, and the plaintiff under the facts in this case was a stranger to the defendant; defendant owing him no duty whatever. Moreover, defendant could not, after sale, go upon the property to tear down the barbed wire. This was for his grantee to do if he saw fit, and if he neglected to do so to become responsible to any one whom he invited upon the premises and who was injured by his want of care or through failure to abate the nuisance. * * *
"`After defendant sold his property, he was no longer under any duty to persons who might be invited upon the premises by his grantee for the reason that he had no control over such grantee, could not dictate as to who should be invited or kept off the premises, and could not have removed the fence even had he been so disposed."
From an English case, cited by the appellee, Johnstone v. Lochgelly Magistrates, S.C. 1078; 50 Scot. L.R. 907; 2 Scot. L.T. 190, we quote:
"There is nothing per se dangerous about putting down waste paper. The danger, on the pursuer's averment, was, or may have been caused solely by the act of the third party for whom the defendants were not responsible. There could be no duty on their part to have a watchman constantly on duty to see that somebody did not light the paper or to see that, if they did, the fires were extinguished. Nor was there any duty on the defendants Carter who, it was said, were aware that the fire was burning, after it had been lit by someone else not connected with the defendants."
The foregoing case involved a dump.
From Smith v. Jacob Dold Packing Co., 82 Mo. App. 9, 3 L.R.A. (N.S.) 151, we quote the following discussion:
"It seems to us that the plaintiff has wholly failed to establish a right of recovery. The defendant was at the time only exercising the right to deposit its cinders and ashes on private property — at a place where the plaintiff had no right to be, where he was an intruder, *Page 979
and to whom the defendant owed no duty, except not to intentionally or wantonly injure the plaintiff. And as to the pond, the alleged attraction, the defendant was in no way responsible, since it neither created nor maintained it. But if it had done so, still, under the cases above cited, said pond is not to be treated as an attractive danger within the meaning of the `turntable cases'. Neither can defendant be held for setting a trap to catch boys or other intruders for there is no pretense that there was any such intention when the ashes and cinders were dumped on said private grounds. The doctrine which holds one responsible for spring guns, dead falls, man-traps and the like has no application to the facts in this case."
Assuming it to be true that the refuse delivered by the defendant contained acid, yet it does not appear that his was the only refuse which contained acid. Automobile batteries were included in the refuse of other people. It is not made to appear herein whether the acid attributable to the defendant was produced by later decomposition or whether it was created in advance of the deposit. We think it must be held that the defendant was guilty of no negligence in accepting from the city the privilege of the dump for the refuse of its factory; and that upon delivery of such refuse to the city dump and to the employees in charge thereof, it lost all ownership and control over the refuse and was under no further duty in reference thereto. Two weeks had transpired since the refuse was deposited. If it resulted in chemical changes and spontaneous combustion, as asserted in the petition, this added nothing new to the conditions prevailing in the dump, the fires of which were always burning. This is not a case of explosives or of spring guns, or of traps.
II. It is urged, however, that the defendants violated the instructions of the public authorities. Plaintiff's witness, Marsh, testified that he had heard the employee of the city instruct Mims, the employee of the principal defendant, to deliver his load upon the river bank. As a matter of fact the load, which is said to contain the "yellowish matted substance", was delivered within eight feet of the Otis road. The claim is that, by violating the instructions of the public employee, the defendant was negligent. What the evidence shows is that, in an attempt to maintain uniformity in the general level of the dump, and to build it up progressively, the employees *Page 980
followed a plan of beginning a swath at the river bank and working north to the road, and that upon hundreds of occasions they had directed trucks to the place of their unloading. To this statement should be added that the witness Marsh contends that reference was made in the instruction to the deposit of this particular substance. The fact remains that the deposit of this load within eight feet of the road had no causal effect as to the injury. The child was not drawn from the road to the place of accident. He came with his older brother with some refuse for dumping. He himself carried two cans. His brother carried refuse in a pail. When they got to the dump, they proceeded to the bank of the river and emptied their refuse on the bank. They remained at the dump for more than an hour. It was in passing out of the dump and into the road that the boy passed over the place of the accident. The fact, therefore, that the place of the accident was near the road had no causal effect upon the accident itself.
III. Up to this point we have assumed the facts as being in accord with the plaintiff's theory. The query remains whether the plaintiff introduced sufficient evidence to justify the jury in finding the facts as thus contended by the appellant. At its vital points the case rests upon the testimony of one witness. This was Marsh, a so-called "dump picker". His evidence is vulnerable. It is inconsistent in some respects and likewise self-conflicting. We may grant that inconsistency would be subject to the consideration of the jury, and perhaps the self-conflicting. But at some points this witness testified to the impossible. The only description or identification of the yellow substance asserted was the testimony of this witness. He described it as follows:
"That yellow material was kind of sticky and bites your hands when you touch it; there was brass screws in the wood, and we would take the wood and split it in order to get the screws, and it would bite your hands if you had any sores or scratches on your hands. I got into this stuff for the purpose of getting the brass screws out of the wood that was in it. Several times I had sores or scratches on my hands and I would get that on it and there was no medicine that would stop it; it would just eat until it `et' to the bone and start healing out; my hands are cracked now from it; you can't heal them up from it. If you had any cuts on your hands it just smarted like putting iodine on a raw sore. Until they start to heal up the sore itself would be kind of black." *Page 981
The only evidence in the record concerning the potent character of this mythical substance was its effect upon the hands of this witness. He does not claim that his injuries were ever submitted to the consideration of a doctor. He does not claim that he ever desisted from picking screws out of this material. His contention that it "et to the bone" and that "no medicine would stop it" may be classed as expert opinion by a non-expert witness. The witness, Keyes, was another "dump picker". He testified that he saw the yellow matter. He did not testify as to having received any hurt from it. As compared with the hurt suffered by the witness, Marsh, we may note the immediate injuries inflicted upon the boy. Marsh was present at the time of the accident. He testified as follows:
"He started to run over toward the edge of the bank in a northeast direction towards Otis Road. His brother George was just coming from the well with water and that was the general direction Richard was going at the time. Richard was half running, faster than a walk. He got his hands into the stuff. He went right in running when he fell into it, his hands went into it, too. He fell forward.
"I have seen this yellowish substance dumped off of the Penick Ford truck at this point about two weeks before the accident. When I saw Richard running in the direction I have told about this substance appeared to have white ash on top, just like dead ashes. There was not a bit of smoke. There was no flame. It had been in that condition for three days that I know of for sure. This was about 15 feet from the place where Mims dumped the stuff that morning. You couldn't dump right there off the Otis Road, you had to pull in the dump a-ways and back up to that corner. As soon as I saw Richard had fallen into this substance I grabbed hold of the boy and rolled him in the dust of the road to put thesparks out in his clothes. I found at that time that he had been burned. The skin was hanging from his hands and from his feet. I didn't pull his overalls up to see how his legs was burned, but the skin was hanging from his legs, and they was bleeding, blood all over the bottom of my car. His overalls were down at this time. He was barefoot."
It appears that a short time after the accident the mother presented a verified claim to the city. The claim was prepared by her attorney and purported to recite the facts. This statement included *Page 982
the following: "Richard fell into a hole that was full of fire and both his lower extremities have been severely burned." The evidence for the plaintiff on the trial negatived the idea that the child had been burned by fire. One of the attending physicians testified that the burn was an acid burn. He would not express an opinion as to the kind of acid other than that it wasnot sulphuric acid. Manifestly if it were a fire burn there would be no way to distinguish the fire of the defendant from the fire of other depositors. But the effort to negative the idea of a fire burn rendered the evidence on behalf of plaintiff quite inconsistent at various points. There was no other identification or description of the alleged yellow substance than is contained in the nonexpert testimony of Marsh. The only description that Marsh could give of the same was that it burned his sores like iodine. If this material could have been identified (and according to Marsh there had been no lack of opportunity for such identification), expert testimony could have advised us what its potency was and whether it was capable within a few moments of so great an injury as was inflicted on the boy. If it had such potency, then an important circumstance would be added in support of the theory that the injury was the result of this yellow substance. If it had not such potency, this would refute the theory. But there is no testimony on that subject. Instead of proving that the injury of the child could have been caused by the yellow substance, the testimony of Marsh was that the injurywas caused by such substance. This was a mere opinion on his part. If he had dug down through the covering through which the boy fell he might have discovered the smouldering of the fire there. He did nothing of that kind. Surely, if he had found fire there, it would be persuasive evidence, if not conclusive, that the burn was caused by the fire. The question at this point therefore resolves itself to this: Can the opinion of Marsh be accepted as proof that the injuries suffered by the boy were caused by the yellow substance, and not by fire underneath it? The testimony at this point was purely circumstantial, and the burden was upon the plaintiff to negative every other reasonable hypothesis. This feature of the case is met in appellant's brief by the following statement:
"Whether the plaintiff received his injuries solely from acid or solely from fire is a matter which of course this six year old boy would be at a loss to explain. The testimony of the witness who *Page 983
pulled the boy from this mass of material would indicate that the injuries were the result of extreme heat. The testimony of the doctor would indicate that the injuries were the result of acids of a most potent character. What as between these two witnesses the jury might find caused these injuries is a matter upon which the Court refused to permit them to determine. The material containing properties which would cause injury both by eating and burning the reasonable inference is that both agencies combine to produce such injuries."
The answer to the foregoing is that the only evidence that the yellow substance caused the injury was the fact of the injury itself. It was incumbent upon plaintiff, therefore, to prove the absence of fire from the hole into which the boy fell. If in fact fire had been present there, it would leave the record without any proof that the yellow substance was the cause of the injury.
We reach the conclusion that the district court properly directed a verdict. — Affirmed.
ALBERT, C.J., and KINDIG, CLAUSSEN, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435027/ | The note in suit, in which the plaintiff is the payee, bears date of July 18, 1921, and purports to be signed by both defendants. The defendants filed separate answers. The defendant Baker pleads forgery. The defendant Johnson admits the execution by him of said negotiable instrument, and pleads material alteration. He avers, in his answer, that, since the execution and delivery by him of said promissory note, the same has been materially altered in a material part, to the material benefit of the plaintiff, who is the payee therein; that the alteration of said note complained of was the adding of the name "G.H. Baker" as one of the makers of said note, when, in truth and fact, his name was not on or affixed to said note at the time when it was made, executed, and delivered by him (Johnson) to the *Page 224
plaintiff; that he never knew of or consented to or approved the signing or affixing to said note of the signature of G.H. Baker as one of the makers thereof. The plaintiff filed no reply. Upon trial, judgment was rendered upon a verdict which was returned in favor of the plaintiff against both defendants. From the judgment so rendered, the defendants appeal.
There is evidence from which the jury could have found for the defendant Baker on his plea of forgery, and also evidence from which it could have found for the defendant Johnson on his plea of material alteration. It appears that the plaintiff, at the time of the execution of the note, had $3,000 on deposit, without interest, in the Manilla National Bank, of which institution Van Slyke was the cashier. Whatever was done in the way of making a loan of said $3,000 was done through Van Slyke, who was representing the plaintiff. The appellant Johnson is the son-in-law of the appellant Baker. Johnson testified, in substance, that he was in the Manilla National Bank in July, 1921, and Van Slyke wanted to loan him $3,000, and that he told Van Slyke that he could use $1,500; that Van Slyke informed him that he couldn't do it, because Schram wanted to loan the whole $3,000; that, a few days later, Van Slyke told him that he could have the $1,500; that he signed the note for $1,500; that nothing was said to him to the effect that Baker or anybody else would sign the note, and that he never knew that Baker's name appeared upon the note until a short time before the commencement of this action, when he received notice from Schram, demanding payment of the note. It appears that Johnson received $1,500 of the $3,000, and that Baker received the remaining $1,500, for which latter amount Baker executed a separate note. This latter note executed by Baker has been paid. The deal appears to have been handled exclusively by Van Slyke. The plaintiff left with Van Slyke a check for $3,000, payable to Johnson. It appears from the evidence that the check has Johnson's name on the back of it, written by Van Slyke. Van Slyke committed suicide in the fore part of October, 1925, and the bank ceased operation as a bank the same day. It appears that Johnson was the owner of 80 acres of land in 1921, which was incumbered by a mortgage; that he was at that time the owner of a $12,000 note and other property, and Johnson testified that the bank had not exacted any security from him in the last six, eight, or ten years. It is *Page 225
thus apparent that there is testimony from which the jury could have found that the transaction relative to the note in suit was complete upon the signing and delivery of said note by Johnson to Van Slyke. Baker denies the genuineness of his signature to the note in suit; and from the conflicting evidence, that question was also for the determination of the jury.
The court instructed the jury that the plaintiff would be entitled to recover as against the defendant Johnson unless they found that he (Johnson) had established by a preponderance of the evidence each and all of the following propositions:
"(1) That, at the time the note in question was signed and delivered by Johnson, the name of the defendant Baker was not on said note. (2) That, after said note was signed, executed, and delivered by the defendant Johnson, the name of the defendant Baker, without Johnson's knowledge or consent, was attached to said note, as one of the makers thereof; and (3) that the plaintiff herein knew that the name of the defendant Baker was so affixed to said note as one of the makers thereof after it had been executed and delivered by the defendant Johnson, and knew that the name of Baker was so affixed as a maker of said note without the knowledge or consent of the defendant Johnson."
Johnson assigns as error the giving of said instruction. The complaint is directed at the third of the foregoing propositions which the court required him to prove by a preponderance of the evidence. This complaint is well founded. As 1. ALTERATION hereinbefore stated, there was evidence to the OF effect that the transaction was complete upon INSTRUMENTS: the signing and delivery of the note by Johnson evidence: to Van Slyke. There is also evidence to the burden of effect that Johnson had no knowledge of, and proof. could not have consented to, the appearance of Baker's name as a maker to the instrument. Would an unexplained appearance of Baker's name upon the note as a 2. ALTERATION maker, attached thereto without Johnson's OF knowledge and consent, after the completion of INSTRUMENTS: the transaction as between Johnson and Schram, materiality: through Van Slyke, as the latter's agent, adding new constitute a material alteration, so as to avoid signer to the instrument as note. against Johnson? We answer in the affirmative. See Sections *Page 226
9585 and 9586 of the Code of 1927; Dille v. Longwell, 198 Iowa 540; Sullivan v. Rudisill, 63 Iowa 158; Hall's Adm'x. v. McHenry,19 Iowa 521; Dickerman v. Miner, 43 Iowa 508; Hamilton v. Hooper,46 Iowa 515. In the latter case, it is well stated:
"From the foregoing facts it appears that, as to Hooper and William and Cordelia Moody, the note was fully executed and delivered to the agent of plaintiff before it was signed by Ferguson, and his signature was obtained by James Hamilton [the agent of plaintiff] without their knowledge or consent. The law is well settled that this constitutes a material alteration of the note, which avoids it as to all the prior parties thereto."
In Dille v. Longwell, supra, we made the following pronouncement:
"While there are authorities holding that an alteration which is not prejudicial, or where the liability of the party complaining is not increased or enlarged, is not material, the weight of authority is that, if the legal import and effect of the instrument are changed, it does not matter how trivial the change may be, or whether it is beneficial or detrimental to the party sought to be charged, it is material alteration, and invalidates the instrument."
Was the court correct in placing upon the defendant Johnson the burden to establish by a preponderance of the evidence the third proposition announced in the foregoing instruction? We answer in the negative. See Robinson v. Reed, 46 Iowa 219; Shroeder v.Webster, 88 Iowa 627; Maguire v. Eichmeier, 109 Iowa 301; 2 Corpus Juris 1269. In Maguire v. Eichmeier, supra, it is aptly stated:
"The alterations in question were material, and, having been shown, the burden was on the plaintiff to show that they were made innocently, by a stranger, or for a proper purpose."
It is apparent that the court, in requiring the defendant Johnson to prove by a preponderance of the evidence the matters set forth in the third proposition in the foregoing instruction, placed too great a burden upon him, and that the giving of the same constitutes prejudicial error. *Page 227
A witness, after testifying that he had seen Baker's signature a great many times, and was familiar with it, was permitted, over the latter's objection, upon inquiry as to whether or not the signature appearing upon the note in suit looked 3. EVIDENCE: like, or resembled, Baker's signature, to answer opinion in the affirmative. This was error. The evidence: affirmative answer constituted no evidence of limitation probative force upon the question as to the on genuineness of the signature. While a nonexpert nonexpert. witness may state his belief or opinion as to the genuineness of the signature, he cannot answer as to the best of his impression. 6 Encyc. of Evidence 368, 369. While the jurors are permitted to compare the signature in question with admitted or proven signatures, it is improper for a nonexpert witness to be allowed to answer, over objection, that the disputed signature resembles the signature of the party who denies the same. Nothing but the belief or opinion of the nonexpert witness is competent; and the testimony of a witness that a signature has a close resemblance, or that he saw nothing differing from the character of the writing, is not to the purpose. Wiggin v. Plumer, 31 N.H. (Foster) 251.
A witness who, at the time of the trial, was in the employ of the receiver of the Manilla National Bank, and had been an employee of said institution since 1918, was interrogated as to whether or not even a small percentage of those 4. EVIDENCE: borrowing money from the bank had made the claim competency, of forgery, and over proper objection, was relevancy, permitted to answer in the negative. Manifestly, and this was error, and cannot be said to be materiality: nonprejudicial. The fact, if it be a fact, that forgery of others dealing with the bank did not claim note. forgery, or that there was no forgery as to other transactions, in no way tended to prove that the signature of Baker to the note in suit was his genuine signature.
It is contended by the appellants that the verdict is not supported by the evidence. It is sufficient to say that the evidence is in conflict, and presents questions for the determination of the jury.
The sole remaining contention of the appellants is that the appellee's counsel was guilty of misconduct in argument and in the making of a certain declaration during the trial of the case. *Page 228
Since the claimed objectionable argument was not 5. APPEAL AND made of record, and no exceptions were taken ERROR: thereto, nor to the single act of claimed reservation misconduct occurring during the trial, the same of grounds: needs no consideration. objection- able argument.
For the reasons hereinbefore stated, the record reveals prejudicial error as against both defendants, and the action of the trial court, in the particulars pointed out, is hereby reversed, and the cause remanded for a new trial. — Reversed andremanded.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435029/ | Early in 1935, certain building contractors, subcontractors and craftsmen of Marshalltown, Iowa, formed among themselves an unincorporated association known as Marshalltown Construction League. Several months later this voluntary organization was changed into a corporation not for pecuniary profit and to effectuate said corporate organization, articles of incorporation were executed by some or all of the members of said voluntary organization on April 15, 1935. However, Marshalltown Construction League did not actually come into existence as a corporation until May 25, 1935, the date of the filing of the articles of incorporation. At this point we will say that in view of our holding in this case it is immaterial *Page 276
whether this organization be treated as a copartnerhsip, joint adventure, or corporation. Therefore, in this opinion, we will not differentiate between these organizations and will refer to them as though one organization had existed continuously during the times referred to herein.
The objects and purposes of Marshalltown Construction League appear more clearly from the articles of incorporation than from the lips of the witnesses. These articles recite that the organization is an association of business men of the city for the promotion of the interests of those engaged in the building trades and industry and business incident thereto; for the encouragement and maintenance of friendly and amicable relationship between each other and their customers and employees; for the establishment and maintenance of higher standards of integrity, workmanship and efficiency; for the promotion and stimulation of the building trades and industry and business incident thereto by advertising and other means; and finally for the building of exhibits, buildings and model homes and the advertising, sale and disposition thereof, with a view toward attracting attention to advertising and stimulating the business of the building trades and industry, and the businesses incident thereto in said city. Contractors, subcontractors, craftsmen, architects and their employees, manufacturers, dealers, materialmen and tradesmen handling building material, appliances or equipment, and other persons in businesses related to the building industry were eligible for membership.
The immediate object of this organization appears to have been the construction and disposition of a house in said city to be known as Model Home. To this end a committee was appointed, headed by the defendant, Archer H. Walton, who was by occupation a building contractor and who largely took over, managed and superintended the erection of said Model Home, customarily designating himself in such connection as Archer H. Walton, Trustee.
Defendants A.F. Estel and wife were the owners of the lot upon which the Model Home was subsequently erected, and on February 21, 1935, entered into a written contract with defendant, Marshalltown Construction League, for the sale of said lot for the sum of $600, of which $1 was paid at said time, and the balance of $599 was to be paid on or before December 31, 1935, at which time abstract was to be furnished and deed delivered. *Page 277
The contract contemplated the building of a dwelling house on the lot and it may be said that the Estels were cognizant of the plan to build the Model Home thereon, and to pay for the lot out of the proceeds from the sale of the real estate after the improvement was completed.
Apparently the construction and sale of the Model Home was regarded by Marshalltown Construction League and others as a civic enterprise rather than as one for profit, the thought being that it would advertise the building business and thereby stimulate interest in and benefit said industry, and the various associated and allied businesses in the city. To that end arrangements were made with the radio broadcasting station for certain free broadcasts and advertising for the benefit of materialmen, laborers and contractors, and it was planned to place placards in and about the premises advertising the various individuals and institutions who furnished labor, materials and equipment for said Model Home. Various donations of money, labor and materials were secured from these and other parties. It was planned to defray the balance of the expenses of purchasing the lot and building the house by the sale of tickets to a public dance, at which it was proposed that the property should be given to some ticket holder. As will be hereafter noted, this plan was not carried out. Therefore, the question of its legality is not material to a decision herein. In accordance with said plan a large number of tickets were printed for sale at $1 each, upon each of which was printed a recitation that the holder was entitled to admission to the dance, and to participate in the drawing for the Model Home. Various members of Marshalltown Construction League, certain laborers, materialmen, and others interested in the Model Home, other residents of Marshalltown, and the Chamber of Commerce of said city were furnished said tickets for sale at various dates between April 26, and October 10, 1935. However, said sale was not successful and only a relatively small amount was realized therefrom.
In the meantime meetings were had with various contractors, materialmen and tradesmen, at which arrangements were made to procure the labor and material for said Model Home. Building operations were apparently started early in May, and continued until late in November 1935, when the house was about 80% complete. Nothing further appears to have been done during the winter of 1935-1936, apparently due to inability *Page 278
to finance the proposition and during said time considerable damage was done to the unfinished building by the action of the elements. On March 9, 1936, the appellant, Joyce Lumber Company, which had furnished approximately one half of the lumber and certain other building material used in said house, amounting to $1,348.76, filed a claim for mechanic's lien for said amount against the real estate in question, the Estels and Marshalltown Construction League, and on the same date instituted in the district court of said county an action against said parties, together with individual members of Marshalltown Construction League and other contractors, laborers and materialmen, for the foreclosure of said mechanic's lien. Subsequently, mechanics' liens and various cross-petitions were filed by other materialmen and laborers, some of said cross-petitions being based upon mechanics' liens and some upon open accounts. Certain of the parties also asked for the appointment of a receiver to handle and dispose of said Model Home and the proceeds therefrom, under orders of court. Before the issues in said case were finally made up, a total of 35 petitions, cross-petitions, answers and replies had been filed in said case, but the questions thereby raised for consideration, so far as material to this appeal, were not numerous.
It was not seriously disputed that the various items of labor and material were furnished by plaintiff and the respective cross-petitioners. However, it was pleaded and contended that the construction of said Model Home was in the nature of a joint adventure; that it was to be financed by donations and the disposition of the property; that it was mutually understood that if the amount received from said property in addition to the various contributions was not sufficient to cover the expense, the respective creditors, except the Estels, were to prorate their claims so that each would share pro rata in such proceeds; that the various parties knew and understood and were bound by the terms and conditions under which the labor and materials were to be furnished, and how and when payments were to be made, and that plaintiff and claimant cross-petitioners should not in equity be entitled to enforce mechanics' liens and thereby secure priority over other creditors who had furnished labor and materials, and that said matters estopped them from so doing.
Upon trial of said cause the court found, ordered and decreed that, with the exception of the defendants, Estel, there *Page 279
was a mutual understanding and agreement among all the parties that their accounts were not to be paid until the disposition of Model Home; that any profit realized was to be used as an advertising fund to promote building in Marshalltown; that in case of a loss the parties were to prorate their claims so that each would share pro rata in the proceeds; that whether or not plaintiff was a party to such agreement it knew of such agreement and understanding and was, therefore, bound by the same terms as the remaining contractors, artisans and materialmen; that plaintiff took part in meetings at which were discussed and adopted plans and methods for building and financing said property and that plaintiff acquiesced therein and should not in equity and good conscience be entitled to a mechanic's lien prior and superior to the claims of the remaining contractors or subcontractors. The court further found that it would be inequitable and unconscionable to permit any of the claimants to have any advantage, one over the other, in the establishment of their claims and that plaintiff and the cross-petitioning claimants were estopped from having or claiming a mechanic's lien, or any priority or preference, one over the other, and that the relief asked by plaintiff and the other claimants should be denied excepting to the extent that the claims of the respective parties were established and allowed upon a pro rata basis.
The court further found that the Estels were entitled to a vendor's lien superior to the claims of the other parties for the balance due for the purchase price of the lot.
A receiver was appointed to take charge of and sell the Model Home, and was ordered, after paying various costs and expenses, to use the funds remaining in his hands to pay, first, the claim of the Estels in full, and thereafter to prorate the balance between the mechanics' liens and claims of the plaintiff, cross-petitioners and various claimants, as allowed by the court, or as thereafter allowed by the receiver.
Judgment was entered accordingly and from said judgment the plaintiff, Joyce Lumber Company, and the cross-petitioners, John Hodgson and Louis Stehn, have appealed.
It may be noted that since the entry of said judgment the receiver has disposed of said real estate for $2,725, and under stipulation of all the parties, except the Estels, is holding the proceeds subject to further orders of court.
The principal questions to be settled upon appeal concern *Page 280
the disallowance of the mechanics' liens and priorities of the appellants, and the allowance to the Estels of a vendor's lien prior to all other claims.
[1] A mechanic's lien is a statutory right given to a contractor furnishing labor and material to protect himself against loss. He may, by contract or by his actions, expressly or impliedly waive that right or be estopped from asserting it. While proof of express or implied waiver must be clear and satisfactory, this court has held that since the case is in equity the rights of a claimant must be governed by equitable principles. Fullerton Lbr. Co. v. Miller, 217 Iowa 630,252 N.W. 760; Eclipse Lbr. Co. v. Bitler, 213 Iowa 1313, 241 N.W. 696.
These principles suggest themselves in view of the controversy as to whether or not the alleged express and implied agreements of the various contractors created a joint adventure for the building of Model Home. The decision of the trial court was based upon the agreements, understanding and actions of the various parties, taking into consideration the knowledge of each as to the agreements and understanding of the others and the general equitable principles involved. We think this was the correct method of approach and that it is unnecessary to determine whether the transaction should be catalogued as a joint adventure or given some other name.
[2] One of the principal questions in controversy concerns the rights of appellant, Joyce Lumber Company. There is a sharp conflict in the evidence as to the conditions under which appellant agreed to furnish material for Model Home. It is agreed that Mr. McManigal, manager of Joyce Lumber Company, participated with other material dealers in meetings with representatives of Marshalltown Construction League at which these matters were discussed. It is agreed that a Mr. Glick acted as spokesman for all the material dealers who were present at one of these gatherings and that Mr. Glick suggested that the material be sold and billed out at the regular retail price. Certain witnesses for appellees testified that Mr. Glick then made the statement that if there was a loss on the project they would have to prorate the loss. According to these witnesses there was no dissent from this statement and one witness testified that Mr. McManigal nodded in assent. Mr. McManigal and another witness denied that Mr. Glick made any statement about prorating losses. *Page 281
One of the witnesses who testified as to the statement by Mr. Glick was Fred J. Buchwald, who had operated Buchwald Lumber Company, which furnished approximately the same amount of material as appellant. Mr. Buchwald also testified that Mr. McManigal and he attended the same meetings concerning Model Home at which there were general discussions of the plans for financing and disposing of it, and of the general benefits which would accrue to the community and the particular benefits to the dealers, from the publicity given to the project and the advertising of the individual dealers.
Mr. McManigal testified that, after considering the proposition he agreed to cooperate and to furnish material at regular retail prices. It appears that Mr. McManigal knew that the principal purpose of building Model Home was to promote the building trade for the benefit of contractors and materialmen as had been done in other cities; that he understood and agreed to the plan to pay for the material and labor out of the proceeds from the disposition of Model Home; that he made a donation on behalf of Joyce Lumber Company, that he participated in the sale of tickets, and in the meetings above mentioned. Without discussing the evidence in further detail we will say that the decree of the district court denying appellant the right to preference by mechanic's lien, finds ample support in the record.
Likewise the record shows that cross-appellant, Louis Stehn, was told how the house was to be built and how it was to be financed. Mr. Stehn himself so testified. He furnished certain labor knowing that payment of his bill and the bills of other contractors was contingent both as to amount and time, upon the disposition of the house. He did not dissent from this plan and must be deemed to have performed his contract upon such basis. He must be presumed to have known that other contractors relying upon the same understanding and agreement would not promptly claim mechanic's lien rights. It would be inequitable to permit him to establish such rights to their detriment. Therefore, no error appears in the ruling of the court which denied him a preference over other contractors and ordered payment to be made him upon the basis of his implied agreement.
However, there is no showing of any such stipulation or understanding in the agreement with cross-appellant, Hodgson. It appears that he sold some tickets before he did any work. *Page 282
However, the only information about the financing, shown to have been given him, was subsequent to the time he agreed to do the work and after his contract was partially performed. Thus it appears that he should not equitably be denied a prior lien upon the fund in the hands of the receiver.
[3] The lot upon which Model Home was built was purchased under contract from appellees, Mr. and Mrs. Estel. As vendors they are entitled to a lien for the unpaid balance of the purchase price. But the property was purchased for the known purpose of constructing a dwelling house thereon and the Estels consented to such improvement. Therefore, such vendor's lien would be inferior to the lien rights of cross-appellant, Hodgson. Murray v. Kelroy,223 Iowa 1331, 275 N.W. 21; Consumers' Ind. Lbr. Co. v. Rozema,212 Iowa 696, 237 N.W. 433; Kimball Bros. Co. v. Fehleisen,184 Iowa 1109, 169 N.W. 445; Veale Lbr. Co. v. Brown, 197 Iowa 240,195 N.W. 248. However, there was no contention that the Estels were parties to the understanding relative to financing the building of Model Home or the prorating of any loss therein, and their vendor's lien would, therefore, be superior to the claims of the other parties herein.
The district court properly appointed a receiver in the premises and provisions of the decree relative to the handling of the receivership affairs were equitable and proper.
The motion to strike the brief and argument of the appellees, Marshalltown Construction League et al., is overruled.
The ruling judgment and decree of the district court is affirmed in all respects except that the claim of cross-appellant, John Hodgson is established as a lien upon the funds in the hands of the receiver, prior and superior to the claims of all other parties to the action, including the vendor's lien of the Estels, said vendor's lien to remain superior to the claims of the other parties to this action. The case is remanded to the district court for decree in accordance with this opinion. — Modified and affirmed.
CHIEF JUSTICE and all JUSTICES concur. *Page 283 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434945/ | For the sake of brevity and convenience the Hancock County Rural Electric Cooperative will be spoken of as the Cooperative and the other corporate defendants as the Farmers Company. The record before us is long and the arguments extensive. The parties discuss many questions and cite many authorities which we find it unnecessary to analyze here; but the issues upon which the case turns are, as we see them, quite simple. Plaintiff asks that the Cooperative be restrained from connecting its line with that of the Farmers Company, that the latter company and its members be restrained from connecting its line with that of the Cooperative or from buying or using any current generated by the latter company. The answer admits that the connection with the plaintiff's line will be severed and made with that of the Cooperative; and that plaintiff has no standing to challenge the transfer of the Farmers line to its corporate codefendant. The plaintiff is a public utility supplying electricity in the territory with which we are concerned. It is the successor of the Iowa Falls Electric Company. *Page 100
In 1920 the Farmers Company was organized to purchase and distribute electric current to its 20 members. This energy was purchased of the Iowa Falls company which permitted the Farmers Company to string wires on its poles for the delivery of the current. Originally electricity was bought from the plaintiff and its predecessor and passed through a master meter located at Garner, in Hancock county. This arrangement was later discontinued and the current used by each member was measured by a meter located on his premises. These meters were read by employees of the plaintiff and the bills therefore sent out by it.
During the year 1937 the Cooperative was organized; it made application to the Rural Electrification Administration (hereinafter referred to as REA) for a loan totaling $337,000 and gave a mortgage to secure this and advances which might be made in the future.
Among the extensions of its lines was one which brought it into the neighborhood in which the members of the Farmers Company lived. In January 1939 there was instituted a series of discussions as to whether the Farmers Company line should be transferred to the Cooperative. Earlier in the fall of 1936 an effort was made by the Farmers Company to turn their lines over to the plaintiff, and at its invitation the president, secretary and other members of the Farmers Company met him to talk the matter over. Nothing came of this meeting. On February 14, 1939, at a meeting of the stockholders it was decided by a vote of nine to two to dispose of the Farmers Company lines. A committee was appointed to obtain from the plaintiff and from the REA rates and such other information as might be deemed important.
On February 27, 1939, a special meeting was held at which a representative of the plaintiff and one of the Cooperative appeared. There were talks made by both and each proposed certain rates. After such discussion a vote was taken on the question whether the lines should be turned over to the plaintiff or to the Cooperative. The result was thirteen to one in favor of the Cooperative. The president and secretary of the Farmers Company were authorized to execute a deed and bill of sale of the lines and appurtenances in consideration of the *Page 101
Cooperative's agreement to "maintain said lines". It was done accordingly.
On this record appellant insists that the transaction was void for various reasons. Since the plaintiff had no interest in the Farmers Company as stockholder or otherwise we find no ground upon which it may base such a contention. It had no contracts by which it was compelled to deliver electricity or to compel acceptance of current by the Farmers Company or its members. It had its representative present at the meeting where the decision to sell was reached and apparently made an attempt to persuade the members that it was to their interest to stay with the plaintiff. Whatever the arguments may have been they were not sufficient to persuade the stockholders. At that time plaintiff's representative made no protest nor was it claimed that the proposed action was illegal and void. On the contrary plaintiff seems to have acquiesced, and continued to furnish current to the members of the Farmers Company until this suit was begun and perhaps since. Appellant-intervener Woodward was represented by proxy at that meeting and is not in a position to complain.
There is in the record no evidence of solicitation by the Cooperative to bring about the transfer, neither is there any evidence of fraud, collusion, or conspiracy. It was a simple business transaction in which the plaintiff lost out.
Plaintiff does not claim to have an exclusive franchise to serve these farmers but bases its claim to relief on the ground that the Cooperative having borrowed money from the United States under the REA, it will be subject to the control and supervision of the administrator designated by the act. It is further urged that if the Cooperative takes over the Farmers Company lines it will be using money in violation of the REA act because it will be furnishing current to others than "to persons in rural areas who are not receiving Central Station service."
Appellant must admit, as it does, that it is subject to lawful competition even to the extent that its business may be destroyed. It concedes that the loan to the Cooperative was valid. It is then reduced to the claim that the Cooperative intends to use government money in maintaining this comparatively insignificant line.
The trial court was right in finding, if it did, that this claim is not proven. Whether the mere upkeep or incidental expenses *Page 102
of the line out of REA funds would of itself be a violation of which plaintiff may complain we are not called on to decide. We are aware of no law which gives plaintiff a standing in equity under these circumstances. The case of Frost v. Corporation Commission, 278 U.S. 515, 49 S. Ct. 235, 73 L. Ed. 483, and other appellant's citations do not so hold unless we have missed their true import. The principles involved in this class of cases are discussed at length in Alabama Power Co. v. Ickes, 302 U.S. 464,58 S. Ct. 300, 82 L. Ed. 374. See also Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366,83 L. Ed. 543.
To sustain the injunction prayed for by the plaintiff would compel (there being no other power company operating in the vicinity) these farmers to deal exclusively with the plaintiff or to revert to the kerosene lamps of their fathers.
As stated at the outset many other questions are argued. These have been considered and found without merit.
Holding as we do that the decision of the trial court was right, it is affirmed. — Affirmed.
HALE, C.J., and STIGER, OLIVER, MILLER, and WENNERSTRUM, JJ., concur.
BLISS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434946/ | [1] On November 8, 1932, the town council of Villisca, after meeting preliminary requirements, submitted to the electors of that town the following public measure:
"Shall the City of Villisca, Iowa, establish, erect, maintain and operate an electric light and power plant, with all the necessary poles, wires, machinery, apparatus and other requisites for such plant, the cost of construction thereof not to exceed $150,000.00 to be paid solely and only out of the earnings of said plant without the incurring of any indebtedness therefor by said City of Villisca, Iowa?"
The proposition was carried by a large majority of the voters. Thereafter, under authority of the election, the town contracted with the Electric Equipment Company of Des Moines, a defendant-appellant, for the construction of the electric plant. But before the plant was constructed, the plaintiff-appellee, Fred Greaves, a citizen, taxpayer, legal elector of, and a user of electricity in, the town of Villisca, commenced the present action to enjoin further procedure in the establishment of the electric plant, for the reason that "the ballot used in said election of November 8, 1932, was defective in that the same did not comply with the provisions of sections 763 and 6131, Code of Iowa, 1931; and did not properly advise the electors voting at said election of the essential elements of the proposition to be voted upon by them."
Somewhat similar ballots containing practically the same public measures were considered by this court, in Hogan v. City of Corning, 217 Iowa 504, 250 N.W. 134, and Wyatt v. Town of Manning, 217 Iowa 929, 250 N.W. 141. The argument in those cases was very similar to the argument in the case at bar. Here the appellee stresses the point that the public measure submitted was not full enough to authorize the town to pledge or mortgage the plant to secure the payment of the purchase price.
In Hogan v. City of Corning, 217 Iowa 504, reading on pages 507 and 508, Mr. Justice Claussen, speaking for the court, declared:
"It is said that the ballot does not conform to the requirements of sections 761, 762 and 763 of the Code. Code, sections 761, 762, and 763 are the provisions of the general election laws in relation to ballots for the submission of public measures. The objection to the ballot is that the measure to be voted on was not printed in full *Page 592
on the ballot, notwithstanding the fact that the sections referred to require that the measure be printed in full on the ballot. The question printed on the ballot is as follows: `Shall the City of Corning, Iowa, establish, erect and construct, a municipal electric light and power plant at a cost of not to exceed the sum of $160,000.00, to be paid for out of the future earnings of said plant?'
"It is conceded by the parties that the city of Corning contemplated proceeding with the construction of the plant under the provisions of Code, sections 6134-d1 to 6134-d7. Section 6134-d3 provides: `And such proposition when submitted to an election shall state the maximum amount which may be expended for the establishment, construction, or acquisition of such plant.'
"This provision of the law was complied with. The sections contain provisions concerning the contents of the contract and the notice to be given and manner in which the contract shall be entered into. Any `contract' that might be printed on the ballot would in all probability prove to be other and different from the one finally entered into, and would be a deception to the voters regardless of the good faith of the officers preparing the ballot. The matters which appellees insist should be printed upon the ballot will come into being another day. Under the law the contract will be the product of the future. Neither the contract nor its substance can be printed on the ballot before the contract exists. It is contended that many details of the construction of the plant, and the manner of its operation and methods of accounting, and manner of financing, were essential elements of the ballot. Such matters, like the contract, will be products of the future. We hold that the ballot was sufficient in form. * * * The difference between working out a franchise ordinance, acceptable to the grantee and the council, and working out plans for a plant and a contract for its construction and payment acceptable to an undetermined second party, of which notice must be given and to which the public has a right to object, is, on the face of things, very great. The one is possible. The other is impossible. Our holding in the case at bar takes account of such impossibility. The Legislature has authorized cities to erect electric light plants under a scheme by which much of the detail must be worked out after the venture is undertaken. In the very nature of things, such matters are not details of a present proposition. We hold that the ballot used was sufficient." *Page 593
Again, in Wyatt v. Town of Manning, 217 Iowa 929, supra, we said, reading on pages 933-936:
"According to the ballot under consideration, it is clear that the municipality was attempting to establish its electric plant under sections 6134-d1, 6134-d2, and 6134-d3 of the 1931 Code. * * * What, then, in view of the foregoing legislation, is the proposition to be submitted to the electors of the town of Manning, under section 6134-d3 of the 1931 Code? Under section 6127, above mentioned, the city may establish and erect an electric light and power plant, but, before the city council may exercise that power, the erection and establishment must be authorized by an election of the people, as indicated by section 6131. If the proposition contemplated by sections 6127 and 6131 were to be submitted to the people, the proposition would be first whether the city shall erect and establish an electric light or power plant. But that would only be part of the proposition, because under section 6239 of the 1931 Code, it is provided that `cities and towns when authorized to acquire the following named public utilities and other improvements may incur indebtedness for the purpose of: 1. Purchasing, erecting, extending, reconstructing, or maintaining and operating waterworks, gasworks, electric light and power plants, or the necessary transmission lines therefor, and heating plants. * * *' That power, however, is limited by section 6241, which provides: `No such indebtedness shall be incurred until authorized by an election.' And section 6245 outlines what must be contained upon the ballot for such an election.
"In the case at bar, however, the council of Manning sought to erect and establish the plant, not by incurring a general indebtedness, contemplated by section 6239 of the Code, but rather through the method outlined by sections 6134-d1 and 6134-d2 of that Code. The erection and establishment of a plant under the last-named sections would not incur a general obligation, nor would the cost be payable in any manner by taxation. So, generally speaking, at the election under sections 6127 and 6131, the proposition would be, first, shall the plant be established; and, second, shall the indebtedness be incurred as anticipated by sections 6239 and 6241 of the Code, or shall the property be otherwise paid for? On the other hand, however, when an election is held under sections 6134-d1, 6134-d2, and 6134-d3, the proposition would be, generally speaking, first, whether a plant shall be constructed without a general *Page 594
indebtedness and with no obligation payable in any manner by taxation; and, second, what will be the maximum cost thereof? There is no other proposition, generally speaking, to be submitted to the electors. An elector is entitled to know, generally speaking, first, is an electric plant to be built? and, second, is an indebtedness to be incurred therefor payable by taxation, or shall the plant be paid from the earnings without a general indebtedness payable by taxation, or shall the property be otherwise paid for? Everything depends, of course, upon the facts and circumstances of the case."
The contract entered into by the town of Villisca with the appellant Electric Equipment Company provides that the electric plant established as well as the future earnings thereof are pledged as security for the purchase price. This, the appellee argues, the city council did not have authority to do under the public measure submitted to the people for approval. In the Wyatt case, supra, we said:
"Whether a mortgage on an existing plant or a contract to apply past earnings on the plant would constitute a general obligation, we do not now decide or suggest, for in the case at bar it is clear that the past earnings are not involved because the plant is being newly constructed. Likewise it is clear, therefore, that an existing plant is not being mortgaged."
Of course, if the proposition were to pay for the new plant out of past earnings of an old plant, the situation would be different from the one presented in the case at bar. A taxpayer would be interested in knowing whether moneys already in the city treasury were to be taken therefrom and used to improve or purchase a new plant. Indirectly, at least, the taxpayer would be affected in such event. Therefore, if the proposition is to take such money out of the city treasury and use it to pay for the new plant, such proposal should be set forth in the public measure to be submitted to the people. See O'Keefe v. Hopp, 210 Iowa 398,228 N.W. 625; McLaughlin v. City of Newton, 189 Iowa 556, 178 N.W. 540. Likewise, if the city already owns an electric plant and proposes to add thereto or build a new one by securing the purchase price of the addition or the new plant by a pledge of, or a mortgage on, the old plant, the taxpayer would be interested in the proposition. If, for *Page 595
instance, the mortgage on the old plant were foreclosed, that amount of property would be taken from the city, and the taxpayer thereof, at least inferentially, would be affected by the loss of such mortgaged property. In the event contemplated, the city already owned the old plant. So, if the contemplated mortgage thereon were foreclosed the property already belonging to the city would be taken therefrom on the obligation. Then if the public measure contemplates such mortgage on property already owned by the city, the ballot should set forth the proposition. See O'Keefe v. Hopp (210 Iowa 398, 228 N.W. 625), supra, and McLaughlin v. City of Newton (189 Iowa 556, 178 N.W. 540), supra.
Before the court in the case at bar, however, is the question whether the city, under the approval of the public measure under consideration, can mortgage or pledge the new plant to secure the cost of establishing the same. Under the reservation in the Wyatt case (217 Iowa 929, 250 N.W. 141), supra, this question was not included. On the other hand, the Wyatt case in effect determined the proposition now before us. We, in effect, held in the Wyatt case that the submission of a public measure similar to the one now involved would authorize the pledging of the new plant and the future earnings thereof. Also, we said in Hogan v. City of Corning, 217 Iowa 504, supra, reading on page 508, 250 N.W. 134, 135:
"It is contended that * * * details of the * * * manner of financing * * * [is an] essential (element) of the ballot. Such (matter), like the contract, will be products of the future. We hold that the ballot was sufficient in form."
Because the electric plant under the contract is newly established, it, in effect, does not come into the possession of the town without the pledge. When the newly erected plant is acquired by the manner and way here contemplated, however, the elector is not interested in knowing every detail of the contract. This is true, because the contemplated contract is not to be the general obligation of the city and in no way payable from taxation or by the use or application of any moneys or property already owned by the city or town. The passing of the title in the case now before us is concurrent in time with the execution of the pledge. So, as a matter of fact, the town never has the title to the property without its incumbrance by the pledge. Before the new plant existed, the contract for the establishment thereof and the pledge thereon was *Page 596
entered into by the city. Consequently, as before indicated, the property and the pledge lien come into being at the same time. When pledging old property already owned by the city, the municipality goes one step farther than it does in pledging the new property acquired in the manner and way here contemplated. Taxpayers can in no way be prejudiced by the pledge now under consideration because no general obligation of the town is thereby created; nor are any moneys or property already owned by the city incumbered or pledged. Property owners in the town can never be called upon to pay taxes because of that pledge. Only the newly acquired property and the net income therefrom can be appropriated for the redemption of the pledge. There can be no prejudice to the taxpayers of the town under any circumstances. The town's property, other than that pledged in the manner and way described, will not be taken and the taxpayers' taxes will not be increased. Each elector necessarily would know that a plant procured entirely on credit probably would be pledged, as authorized, or conveyed by conditional sale to secure or protect the purchase price. Under those contemplated circumstances, authority to establish the plant out of the future earnings would carry with it, because of the statutory provisions, the right to pledge the newly acquired plant when, as in this case, the plant and the pledge therein come into being at the same time under the same contract. These elements of financing are included within the proposed form of contract contemplated by section 6134-d4 of the 1931 Code. Hogan v. City of Corning, 217 Iowa 504, 250 N.W. 134, supra.
[2] It is argued by the appellee that in the case of a foreclosure of the pledge on the newly acquired property, the purchaser thereof at the execution sale would thereby automatically be granted a franchise without the consent or authority of the people in the town. That contention, of course, is without merit. The purchaser at such contemplated foreclosure sale would attain nothing but the plant pledged. In no event would he by such purchase alone receive a franchise to operate the electric plant. If such contemplated purchaser desired such franchise, he necessarily would have to proceed to obtain it in the way outlined by statute.
According to the ballot now under consideration in the present controversy, it was apparent to the electors of Villisca that no general obligation of the town was to be incurred by the establishment of the electric plant. Likewise, it was equally apparent to those *Page 597
electors that no money or property already owned by the town would be pledged or appropriated for the use of the new electric plant. To that extent the electors were concerned, but no farther. Wyatt v. Town of Manning (217 Iowa 929, 250 N.W. 141), supra; O'Keefe v. Hopp (210 Iowa 398, 228 N.W. 625), supra; McLaughlin v. City of Newton (189 Iowa 556, 178 N.W. 540), supra. Every elector knows, as before stated, that if the proposition to establish the plant in the method outlined by sections 6134-d1 and 6134-d2 is carried, the council may finance the same by pledging the newly established plant and the income therefrom, as provided in said section 6134-d1. Hogan v. City of Corning (217 Iowa 504, 250 N.W. 134), supra; Wyatt v. Town of Manning (217 Iowa 929, 250 N.W. 141), supra. This method of financing is a part of the contract contemplated in section 6134-d4 of the 1931 Code. That section provides:
"Before any municipality shall enter into any such contract as provided in section 6134-d1, for the establishment of a plant, or for the extension or improvement of an existing plant, to cost five thousand dollars or more, the governing body proposing to make such contract shall give thirty days' notice of its intention to adopt proposed plans and specifications and proposed form of contract therefor, by publication once each week for two consecutive weeks in some newspaper of general circulation in the municipality and also in some newspaper of general circulation in the state of Iowa, the first publication of which shall be at least thirty days prior to the time of hearing fixed in said notice."
Manifestly it would not be known by the city council at the time of submitting the public measure to the people whether the successful applicant for the contract would desire a pledge of the new plant or a conditional sale contract therefor. The city is not required to do the impossible thing. Hogan v. City of Corning (217 Iowa 504, 250 N.W. 134), supra. Under all the circumstances, it is apparent that the public measure submitted was sufficient to enable the city to pledge the plant being established, together with the future net income therefrom, as security for the purchase price.
Wherefore, the judgment of the district court is reversed. — Reversed.
All Justices concur except EVANS, J., who takes no part. *Page 598 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434952/ | We disregard the fact that two mortgagees joined as plaintiffs with the owner.
The trial court held as a matter of law that the policy did not cover the hydrogenerator which had been damaged by fire, set aside the jury's verdict for plaintiff and entered judgment for defendant as though it had sustained defendant's motion for a directed verdict. (See Rule 243 (b), Rules of Civil Procedure.) Defendant's motion for new trial was overruled. We are required to consider the evidence in the light most favorable to plaintiff.
The policy, dated October 1, 1938, is an Iowa standard fire policy with numerous riders and certificates. The provisions around which the controversy centers are contained in these attached papers and not in the policy proper. The coverage is "$70,000.00 on contents contained in the brick Electric Generating Plant building situate S. Walworth Avenue and River Street" in Anamosa. The fourth section of one of several attached papers provides: "The term `Building' shall be construed to cover the entire structure including all communicating *Page 674
and/or connected additions and attachments * * *." The vital question is whether it can be said as a matter of law that the damaged hydrogenerator was not contained in a communicating or connected addition to the "generating plant building" referred to in the coverage.
At all times material hereto plaintiff has owned and operated an electric generating plant in Anamosa. The main building, 55 by 60 feet, 32 feet to the eaves, had been built for many years. It contains the main switchboard that controls all the generators, the high-voltage switch gears for the main transmission lines, two Diesel-engine driven generators, the heating plant and washroom. A smaller building was built in 1936, 18 or 20 by 24 feet, 35 feet high, at a distance of 24 feet from the main building, with a lawn in between. Both buildings are of brick. The smaller building, "just a simple rectangular brick box," sits out over the flume that carries the water into the water wheel and houses the hydroelectric generator which was damaged by fire on January 19, 1943. The hydroelectric unit consists of the water wheel, the generator, and the speed regulator or governor. The current generated in the hydrogenerator goes into the main switchboard in the old building and is distributed from there.
Both buildings face west. There is a sidewalk along the west side of the buildings between the door to each building. There are four conduits, about four inches inside diameter, that extend underground between the buildings. One conduit carries three wires in a cable carrying 2,300 volts of current generated by the hydro unit into the main switchboard. Another conduit carries wires from the main switchboard to "the field" of the hydrogenerator. A third conduit carries a set of control circuits from the main switchboard to the governor on the water wheel. The fourth conduit carries wires for the lighting and heating of the main building. The controls that start and stop the hydrogenerator are on the main switchboard and it is operated and controlled entirely from the main building. An exciter located in the old building near the switchboard is used in connection with the hydro unit. It is an electric generator which causes the hydro unit to generate alternating *Page 675
current. Without the exciter the hydro unit would not generate alternating current.
The hydrogenerator is operated by the water power from the river and runs most of the time. When additional current is needed it comes into the main building through transmission lines from Cedar Rapids and Maquoketa. The two Diesel engines in the old building are used only in an emergency when the transmission lines are down. Two electrical engineers connected with plaintiff company testified in substance that the hydro unit is an integral part of plaintiff's generating plant. One of the engineers testified that the hydro unit could be located several miles from the main switchboard but it would then require an entirely different system of controls from that employed when it is within a relatively few feet of the switchboard. Also that overhead wires could be used rather than underground conduits, but not as efficiently, and that special control equipment would then be needed.
The trial court left it to the jury to determine whether the smaller building was a "communicating and/or connected addition or attachment" to the main building. After the verdict was returned, however, it ruled as a matter of law that it was not and, in effect, sustained defendant's motion for directed verdict.
The term "communicating or connected addition" or similar term frequently found in fire-insurance policies has never been construed by this court. A similar term was involved in Kimball Bros. Co. v. Palatine Ins. Co., 197 Iowa 598, 601, 195 N.W. 987, where the opinion uses language upon which plaintiff places some reliance. The court did not commit itself, however, since another clause in the policy was controlling.
In general, plaintiff contends that as used in insurance policies, a communicating or connected addition need not be physically joined to the main building and that here the smaller building was such an addition to the larger because of their ownership, relative location, accessibility, adaptability, and use. Defendant contends, however, that the smaller building is not such an addition because it is not structurally connected with the main building and the parties did not intend the insurance to cover the property which was damaged. *Page 676
[1] Before proceeding further, it seems necessary to determine whether the testimony of defendant's witness Larson, which was subsequently stricken upon plaintiff's motion, is to be considered by us. Larson, a special agent for defendant, testified over plaintiff's objections to a conference between him and Fratcher, plaintiff's vice-president and general manager (who had also been a practicing attorney) a short time before the policy in suit was issued in which the insurance on plaintiff's different properties, including the hydrogenerating station, was discussed; following the discussion but during the conference, the word "no" was written in pencil on a typewritten memorandum opposite the description of the hydrogenerating station; a subsequent memorandum was then prepared by defendant which listed the hydrogenerating station as one of the properties on which no insurance was carried; this later memorandum was sent by defendant to one of its agents in Cedar Rapids, along with the policy in suit, to be delivered to plaintiff.
Plaintiff's counsel did not cross-examine Larson. And Fratcher, though present in court, was not called in rebuttal to deny or explain Larson's testimony. The inference defendant seeks to draw from Larson's testimony is that Fratcher told Larson no insurance was wanted on the hydro unit in which the fire subsequently occurred and defendant prepared the policy accordingly. After this testimony was received and after plaintiff had rested, with the Larson testimony in the record, plaintiff moved to strike it for the reasons previously urged in its objections, the principal grounds being that it was an attempt to vary the terms of the policy by parol evidence and that the previous negotiations were merged in the policy. This motion was sustained.
If the Larson testimony was erroneously stricken, it is our duty to consider it. The successful party may, without appealing or assigning errors, save the judgment if an error was committed against him which, if corrected, will make the result reached below a right result. Thompson v. Butler, 223 Iowa 1085, 1092,274 N.W. 110, 113, and cases cited; McCuddin v. Dickinson,230 Iowa 1141, 1143, 300 N.W. 308, 309. Squarely in point is Campbell v. Park, 128 Iowa 181, 186, 101 N.W. 861, 862, 104 N.W. 799, where it is said: *Page 677
"* * * where the evidence has been actually received, and then erroneously stricken out, we may consider such evidence as should have been allowed to go to the jury, in passing upon the correctness of the action of the court in directing a verdict * * *."
[2] We entertain no doubt that the Larson evidence was properly received and erroneously stricken. It is somewhat uncertain that the policy covers the property damaged by fire. At least, it cannot definitely be said there was such coverage. The term "additions," as applied to the facts of this case, is somewhat doubtful or ambiguous. The Larson testimony was therefore proper in order to put the court in the position of the parties and to show that they did not intend the policy to cover the property in question. The testimony did not violate the parol-evidence rule. See, as sustaining our conclusion, Emery Co. v. American Ins. Co., 177 Iowa 4, 8, 9, 158 N.W. 748, and cases cited; Kelly
Mahon v. Fejervary, 111 Iowa 693, 700, 83 N.W. 791; Hammond v. Capital City Mut. F. Ins. Co., 151 Wis. 62, 138 N.W. 92, Ann. Cas. 1914C, 57, and annotation 59, 65; Globe Rutgers F. Ins. Co. v. Hamilton, 65 Ind. App. 541, 116 N.E. 597, 598, 599, and cases cited; Graybill v. Pennsylvania Twp. M.F. Ins. Co., 170 Pa. 75,32 A. 632, 29 L.R.A. 55, 50 Am. St. Rep. 747; 2 Cooley's Briefs on Insurance, Second Ed., 1223; 29 Am. Jur. 1126, section 1501; 26 C.J. 77, 78, section 73; 44 C.J.S. 1224, section 304. It is true that in most of the authorities we have examined the extrinsic proof was offered by the insured. But the rule is equally applicable where similar evidence is offered by the insurer.
In a note in 33 L.R.A., N.S., 156, 161, on this question, it is stated:
"* * * evidence of * * * surrounding facts and circumstances, at the time of the issuance of the policy, is admissible to aid the court in construing the word `addition' as used in an insurance policy in describing the property intended to be covered thereby. [Citing cases.]"
As with contracts generally, the cardinal principle in the construction of insurance policies is that the intention of the parties should control. Kantor v. New York L. Ins. Co., *Page 678 219 Iowa 1005, 1007, 258 N.W. 759; Moore v. Farmers Mut. F. L. Ins. Assn., 221 Iowa 953, 959, 266 N.W. 12; 1 Joyce on the Law of Insurance, Second Ed., 555, section 209; 29 Am. Jur. 172, section 157; 26 C.J. 70, section 69; 44 C.J.S. 1146, section 291.
Plaintiff reminds us that in case of doubt an insurance policy will be construed strictly against the insurer, and if it is fairly susceptible of two different constructions, the one more favorable to the insured will be adopted. Of course, these are well-recognized rules. Brush v. Washington Nat. Ins. Co.,230 Iowa 872, 876, 299 N.W. 403, 404, 405, and cases cited; Service L. Ins. Co. v. McCullough, 234 Iowa 817, 824, 13 N.W.2d 440,444, 153 A.L.R. 697, and cases cited; 29 Am. Jur. 180, 181, section 166; 32 C.J. 1152, section 265; 44 C.J.S. 1166, section 297c. But these rules should not be applied to contravene the intention of the parties. Pilgrim Laundry D.C. Co. v. Federal Ins. Co., 4 Cir., W. Va., 140 F.2d 191, 193.
[3] We recognize, of course, that the credibility of witnesses and the reasonable inferences to be drawn from their testimony are ordinarily matters for the jury to determine. Under the circumstances here, however, we feel that the Larson testimony is conclusive against plaintiff. No attempt was made either to explain or dispute it. The only reasonable inference to be drawn from this testimony is that the parties did not intend the policy in suit to cover the property for which recovery is sought here. To allow recovery in the face of such undisputed testimony would involve a construction of the policy contrary to that intended by the parties and result in manifest injustice. We are inclined to hold, therefore, that the trial court properly ruled that plaintiff was not, as a matter of law, entitled to recover.
While it is unnecessary for us to determine what our decision would be if the Larson testimony were disregarded, we have given careful consideration to that question and have read all the numerous authorities we have been able to find that bear upon the construction of the policy in suit. It is true the authorities generally hold that it is not always necessary for one structure to be physically attached to another in order to be an addition to it within the terms of a fire-insurance policy. 29 Am. Jur. 218, section 208; Shepard v. Germania F. Ins. Co., 165 Mich. 172, *Page 679 130 N.W. 626, 33 L.R.A., N.S., 156, and annotations 156, 157, 158; 3 Couch Cyclopedia of Insurance Law 2456, section 750a; 2 Cooley's Briefs on Insurance, Second Ed., 1218; 3 Joyce on the Law of Insurance, Second Ed., 2902, section 1739. See, also, 1 C.J.S. 1455, 1456. Yet few if any cases bearing any analogy to this go as far as it would be necessary for us to go in order to reverse this case, even if we were to disregard Larson's testimony. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434956/ | The indictment charges the appellant and two others, Mima Wertz and Beryl Leeper, with murder in the *Page 434
first degree, committed by shooting Roy Wertz with a pistol. The 1. CRIMINAL defendant Mima Wertz was the wife of the LAW: deceased, and the defendant Beryl Leeper is the acces- daughter of Roy and Mima Wertz and the wife of sories: appellant. Appellant was separately tried. statute: constitu- tionality.
A demurrer to the indictment raised the questions: (1) that the act charged could be committed by but one person; (2) that the indictment failed to distinguish between the principal and the accessories; and (3) that Section 5299 of the Code of 1897 is unconstitutional. That section is as follows:
"The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried and punished as principals."
The constitutionality of this section has been recently upheld by this court, as against the attack here made upon it. State v.Burch, 199 Iowa 221. There is no occasion to add anything to what is there said.
Aside from the constitutional question, the sufficiency of the indictment, and the propriety and correctness of instructions permitting the jury to find the defendant guilty, if he aided and abetted the commission of the offense, cannot be doubted. The uniform holdings of this court have been against the contention of the appellant on these questions.
Two or more persons may be indicted for a crime that, from its nature, can only be committed by one person. State v. Comstock,46 Iowa 265; State v. Berger, 121 Iowa 581; State v. McAninch,172 Iowa 96; State v. Farris, 189 Iowa 505. Where the indictment charges the defendant as a principal, he may be convicted on proof that he aided and abetted the commission of the crime.Bonsell v. United States, 1 G. Greene 111; State v. Brown,25 Iowa 561; State v. Hessian, 58 Iowa 68; State v. Pugsley, 75 Iowa 742; State v. Munchrath, 78 Iowa 268, 274; State v. Berger,
supra; State v. Meyer, 180 Iowa 210; State v. McCray, 189 Iowa 1239; State v. Farris, supra; State v. Weeks, 193 Iowa 1024;State v. Burch, 195 Iowa 427; State v. King, 198 Iowa 325. Where two or more are jointly indicted, and the evidence *Page 435
shows that they were acting together in the commission of the crime, the State is not bound to show which one actually committed the act. State v. Zeibart, 40 Iowa 169; State v.McCray, 189 Iowa 1239.
The demurrer to the indictment was properly overruled; there was no variance between the indictment and the proof; and it was not error to instruct the jury that the defendant might be found guilty if he fired the fatal shot, or if he aided and abetted one of those jointly indicted with him in the commission of the crime.
Certain facts are not in dispute. Roy Wertz, the deceased, and Mima Wertz, a codefendant with appellant, had been married and divorced and remarried. Beryl Leeper, the other defendant in the indictment, their daughter, was born during the first marriage. After the divorce, Wertz had married Agnes Kuntz, who had died, leaving him some property, before the second marriage of deceased and Mima Wertz. The family, consisting of Wertz, his wife, and his daughter, lived, at the time of the homicide, in Iowa City, in a house that formed a part of the property so derived. They kept roomers, some students and others, who lived in the upper story. Wertz had no particular occupation, but spent much of his time at various clubs, and was addicted to drink. The appellant had been a student at the state university, and in September before the killing, he and the daughter Beryl had been married in Chicago. On their return to Iowa City, they continued to live for much of the time as before, although he was at the Wertz house frequently, and spent some nights there. It seems to be a matter of controversy to what extent this marriage was kept secret. Mrs. Wertz knew of and approved it. There is some dispute as to whether deceased knew of the marriage. But it is undisputed that, in July preceding the killing, Wertz had insisted that the marriage take place at once, and had caused the arrest of the appellant. The latter was detained in custody only a short time, and no charge was filed against him.
For some days preceding the killing, which occurred on December 27, 1922, Mrs. Wertz had been visiting at Dolliver, Iowa; and the students rooming at the house were away. There were living in the house at that time, in addition to the family, *Page 436
Mr. and Mrs. Steinmetz and a Miss Moorehead. On the morning of the day preceding the tragedy, Wertz found the appellant and Beryl occupying a bed in the house, and ordered them to leave. They went to Cedar Rapids, and from there telephoned Mrs. Wertz at Dolliver. She came to Cedar Rapids that night, and the three spent the night at a hotel. On that night, the deceased entertained a party of men in the dining room of the home, drinking and gambling. The party broke up and the guests departed about 9:30 on the morning of December 27th. Appellant, his wife, and his mother-in-law returned to Iowa City on that morning on an interurban car, arriving there at 10:10 o'clock. They went together to the Wertz home. Between 10 and 10:30 o'clock, Dr. Bennett received a telephone call from Beryl to come to the house. He went to the Wertz home in response to the call, arriving there in the neighborhood of 10:30 A.M. The appellant, his wife Beryl, and Mrs. Wertz were there; and Roy Wertz, dressed in a nightshirt, was lying on the floor in the kitchen, unconscious and bleeding, and with two bullet wounds in his head. One bullet had entered about two inches in front of the ear, and came out about an inch back of the ear, passing only through fleshy tissue; the other entered in the vicinity of the temple, and came out at the back of the head, passing through the brain and causing a fracture of the skull. The bullets were fired from an automatic pistol belonging to Wertz. It was found on the premises after the shooting. Wertz died shortly after noon of the same day.
Briefly stated, the contention of the appellant is that, when he and his codefendants entered the house, Wertz was in bed; that the appellant went to the basement, to attend to the furnace; that Wertz first made an unprovoked attack upon Mrs. Wertz; that the daughter interfered, and he attacked her; that he threatened to kill them both, and was reaching for a gun standing in the corner of the kitchen, when Mrs. Wertz obtained the pistol from the drawer of a washstand in the kitchen, and shot him; that he fell, and remained in the southeast corner of the kitchen until removed to a bed by Dr. Bennett and appellant. Mrs. Wertz and Beryl both testified that Wertz met his death substantially in this way. The appellant testified that he heard shots while he was in the basement, and on coming upstairs into *Page 437
the kitchen, found the deceased lying in the southeast corner of the room.
The State produced no witnesses who saw the killing. Its case is based entirely on circumstantial evidence. Its contention is that the position of Wertz when Dr. Bennett arrived, the location and character of the wounds, the location of certain marks upon the walls, claimed to have been made by the bullets after passing through the head of Wertz, and the location of bloodstains on the floor and objects in the room, show that Wertz was not shot in the manner or under the circumstances claimed by appellant; but that, after he received a flesh wound in the face while standing, the fatal shot was fired when he was in a sitting posture on the floor, at a point some distance from where he was when the first wound was inflicted, and at some interval of time thereafter; and that the shots were fired from the vicinity of the door leading from the kitchen to the basement. Certain statements alleged to have been made by appellant, and by Beryl in his presence, or as a part of the res gestae, are relied upon to support this view. There was testimony tending to show a state of ill feeling on the part of appellant toward Wertz; that he had threatened "to get even with him," after his arrest on complaint of Wertz. One witness, Barth, testified, in substance, that appellant told him that he had a chance to make $20,000 by marrying Beryl and killing Wertz; that he could kill him in different ways, — by putting poison in his liquor, or taking him up the river; that he was afraid some of his friends might get the poison; and that, if he took Wertz up the river, he would be missed in a short time; that he could get a gun with a silencer on it; that Mrs. Wertz would take the whole blame for this; that "the girl and them had talked this over." Another witness, Johnson, testified that appellant told him that there were different ways he might "knock him [Wertz] off," and Mrs. Wertz would take the blame for it as self-defense, under one or two of these ways; that one way was to use a hypodermic needle and inject air in an artery or vein, and another was to use a silencer and shoot him when he came home, and take him in his own car to Cedar Rapids, weight the body, and throw it in the river. There was also testimony tending to show that the deceased was an expert marksman, and *Page 438
familiar with the automatic pistol belonging to Wertz with which the shots were fired, and that he had carried it. One witness, who lived in the Wertz home and was familiar with the kitchen, testified that she had never seen the pistol there, and that appellant told her to say that she had seen it in the drawer where Mrs. Wertz claimed to have found it.
We have not attempted to set out the testimony in detail, nor to refer to all of the circumstances shown in evidence, but have recited only such of the facts and testimony as are necessary to an intelligent understanding of the propositions which we deem of controlling importance.
Many errors are assigned on the admission and exclusion of testimony. In view of the conclusion we feel constrained to reach upon another branch of the case, we shall consider only such questions in this connection as seem likely to arise upon a retrial.
Error is assigned on the admission of testimony relating to statements made by Mrs. Wertz at Dolliver, at the time the defendant talked to her by telephone from Cedar Rapids, the night before the killing. The objections went to 2. HOMICIDE: testimony that she said she was talking to Bob; accessories: that Bob was Beryl's fellow; that she did not evidence: say that Beryl and appellant were married; that acts and she cried, and said that Roy was drinking hard conduct of and his heart was bad and they might hear of his actual sudden death. There was no error in the principal. admission of this testimony. Upon the theory that appellant aided and abetted Mrs. Wertz to commit the crime, where there was other evidence tending to connect appellant with the crime as an instigator or accessory before the fact, — as there was in this case, in his own declarations, — her acts and declarations tending to show her guilt, and that she did not act in defense of herself or her daughter, might be shown. State v.Brown, 130 Iowa 57; Mulligan v. People, 68 Colo. 17 (189 P. 5); 16 Corpus Juris 144. Moreover, in the instructions to the jury, the court carefully limited the effect of this testimony, and said that acts or declarations of Mrs. Wertz or Beryl not in the presence of the appellant could not be considered in determining his guilt, but could be considered in determining whether either of them fired the fatal shot. *Page 439
Numerous errors are assigned on the admission of testimony tending to show that appellant, previous to the killing, had a revolver in his possession, and that he was an 3. HOMICIDE: expert marksman, and on the admission of his evidence: statements in reference to his skill in that possession respect. Without extending this opinion by of weapons. referring to the testimony in detail, it will suffice to say that no prejudicial error was committed here. 30 Corpus Juris 161, and cases there cited; State v. Weems, 96 Iowa 426; People v. McGuire, 135 N.Y. 639 (32 N.E. 146).
The appellant was asked, on cross-examination, if he had a permit to carry concealed weapons, and, over objection, answered that he had not. The question was in connection with his testimony as to carrying the pistol with which 4. HOMICIDE: Wertz was shot. He admitted having it on two cross- or three occasions. In view of the testimony examination: tending to show declarations on his part, made unlawful some months before the killing, of a purpose to possession shoot Wertz, we think the question not improper. of weapon. Deliberation, premeditation, and malice aforethought were essential elements of the crime for which he was on trial. The fact that he carried such a weapon secretly, and without securing authority to do so, had some bearing on his intent; and the mere fact that the carrying of the pistol concealed, without a permit to do so, constituted, in and of itself, a separate offense, would not render the testimony inadmissible for that purpose. State v. Levich, 128 Iowa 372. InPeople v. Doud, 223 Mich. 120 (193 N.W. 884), relied upon by appellant in this connection, there was no question of intent.
Complaint is made that witnesses for the State who were at the house shortly after the shooting were not permitted, on cross-examination, to testify as to Mrs. Wertz's condition, what she was doing, and what she said. The questions asked were not proper cross-examination, and answers were properly not permitted.
Error is assigned on the refusal of the court to allow a witness for the appellant to testify to statements alleged to have been made by appellant and his codefendants after the shooting. The questions clearly called for self-serving declarations or *Page 440
hearsay testimony, and the statements were not so closely related to the killing in point of time or circumstances as to require their admission as a part of the res gestae. They were made after a doctor and an attorney had been called to the house by the defendants. The objections were properly sustained.
The admission of the testimony of the witness Barth is assigned as error. A reference to the testimony of this witness as partially set out above should be sufficient, without argument or citation of authorities, to show the correctness 5. HOMICIDE: of the ruling. The same may be said of alleged evidence: errors predicated on the admission of testimony threats. relating to other threats made by appellant. It is said that the testimony of Barth was an attempt to establish a conspiracy by the declarations of a coconspirator. The court did not submit the case to the jury upon the theory of a conspiracy, as, we think, might properly have been done. But, aside from that, the testimony in question related to declarations of the defendant on trial, not of a coconspirator with him. It is competent to establish the existence of a conspiracy, as against the one on trial, by proof of his own declarations. State v. Caine, 134 Iowa 147.
The deceased had lived in Iowa City since 1909. Following his first marriage with the defendant Mima Wertz in 1897, they had lived in Emmet County for a time. Appellant introduced evidence of the general reputation of the deceased in 6. HOMICIDE: Iowa City as to his being a quarrelsome man, and self- offered testimony as to his reputation in that defense: respect in Emmet County, to which objection was quarrelsome sustained on the ground that it was immaterial nature of and too remote. If the deceased had the deceased. reputation of being a quarrelsome man, that was a fact proper to be considered by the jury in determining whether Mrs. Wertz, if she fired the fatal shot, acted in justifiable defense of herself or her daughter, in view of any knowledge she may have had of such reputation, and also upon the question whether deceased was the aggressor. No precise limit can be set to the period that may be covered by such an inquiry; it must obviously depend on the circumstances of the particular case; and the court has some discretion in the matter, *Page 441
to be exercised, of course, with a due regard to the rights of a defendant. In view of the intimacy of the relationship between Mrs. Wertz and the deceased, and the fact that it had existed during the time covered by the offered testimony, and that she testified to a knowledge of his violent disposition during that time, we would have looked with greater favor upon a more liberal exercise of discretion on the part of the court. The testimony might well have been admitted, though we would hesitate to reverse for that reason alone.
There was no error in permitting Mrs. Steinmetz, who was in the upper story of the Wertz house, to testify that she heard cries in the lower part of the house about 10:30 on 7. CRIMINAL the morning of the shooting; that she went part LAW: way downstairs, and called Beryl, who answered: evidence: "I am all right. Go back upstairs." It was res gestae. clearly a part of the res gestae, and it would seem, from all the testimony, that the statement was made in the presence of the appellant.
The testimony of the witness Johnson, though admissible in chief, was given in rebuttal. While we would not reverse for this, a like situation should not arise on a retrial.
The other errors assigned on the admission and exclusion of the testimony have been examined, and no prejudicial error found. In some instances the testimony objected to was subsequently stricken from the record, and the jury specifically instructed not to consider it.
The court instructed the jury that the killing of an assailant is excusable on the ground of self-defense only when it is, or reasonably appears to be, the only means of saving one's life or preventing some great bodily injury; and that, 8. HOMICIDE: if the danger which appears to be imminent can self- be avoided in any other way, the taking of the defense: life of the assailant is not excusable. The erroneous instruction is incorrect as an abstract instruction. proposition, in that it states that a killing is justifiable only when it reasonably appears — that is, to the jury considering the facts — to be the only means of saving the life of the one assaulted. It is undoubtedly the law that one unlawfully assailed is justified in defending himself, even to the extent of taking the life of his assailant, when it appears to him, as a reasonable man, under the circumstances, to be the only means *Page 442
of protecting his life or his person from great harm. While some of the other instructions are open to the same criticism, we might be inclined to say, in view of other portions of the charge where the law is correctly stated, not merely as an abstraction, but as applied to the particular facts of the case, that the error in this respect was not prejudicial.
The instruction under consideration is, however, clearly erroneous in another respect, when applied to the situation of Mrs. Wertz; and nothing is to be found elsewhere in the instructions from which it can be said that 9. HOMICIDE: prejudice did not result. The language of the self- instruction is that the killing of an assailant defense: is excusable only when it appears to be the only
nonduty to means of saving the life or protecting the retreat. person of the one assaulted, and when the apparent danger can be avoided in no other way. This clearly puts upon the one assailed the duty to adopt any and every reasonable means of escape, including retreat, before taking the life of the assailant. That this is the general rule may be conceded; but it is well settled that it is not applicable under all circumstances. State v. Borwick, 193 Iowa 639. It is universally recognized that one assaulted in his own dwelling, under such circumstances as to create in him, as a reasonable man, a justifiable belief that his life is in danger, or that he will sustain a great bodily injury, is not bound to retreat before killing his assailant. State v. Bennett, 128 Iowa 713; State v.Rutledge, 135 Iowa 581; State v. Cessna, 170 Iowa 726; State v.Dyer, 147 Iowa 217; 30 Corpus Juris 71, and cases there cited. And the fact that the assailant is also an occupant of the home, with an equal right there, does not put upon the one assaulted any duty to retreat. State v. Gough, 187 Iowa 363; Jones v.State, 76 Ala. 8; People v. Tomlins, 213 N.Y. 240 (107 N.E. 496). Appellant requested an instruction to the effect that Mrs. Wertz, being in her home, was not bound to retreat. It was not given, nor, as has been said, was the law applicable to that situation given to the jury in any of the instructions given by the court.
One theory on the part of the State was that appellant aided and abetted Mrs. Wertz in the killing of her husband. She testified that she fired the fatal shot. The court correctly instructed, in substance, that, if the jury found that Mrs. Wertz *Page 443
killed the deceased, it must be further established beyond a reasonable doubt that she did not do so in justifiable self-defense, before the appellant could be convicted as an aider or abettor. It was the claim of appellant that Wertz had ordered her to leave the house, and immediately made a violent attack upon her, and was reaching for a gun and threatening to kill her when she shot him. The instruction complained of clearly put upon her the duty to retreat, when so assailed in her own dwelling house; and this she was not required by the law to do; but she had the right there to stand her ground, and to use such means as appeared reasonably necessary to her, acting as a reasonable person, to preserve her life or protect her person from great harm, even to the extent of taking the life of her assailant. The instruction was erroneous and prejudicial.
The appellant testified, on cross-examination, that he had previously been convicted of a felony. An instruction was asked to the effect that that fact was no evidence that he was guilty of the crime charged. There was also testimony 10. WITNESSES: to the effect that the general reputation of impeachment: Beryl for general moral character was bad. The former court gave an instruction on the subject of the convictions: impeachment of witnesses by proof of instruc- contradictory statements, but made no reference tions. to the effect of a previous conviction of a felony or to proof of bad general moral character as affecting the credibility of a witness. We think that, in view of the instruction on the subject of impeachment, the jury should have been fully instructed on the subject, and told that appellant's previous conviction could only be considered as affecting his credibility as a witness; or that, in the absence of such an instruction, the thought of the requested instruction should have been given. In connection with what was said on the subject of impeachment, the jury should also have been instructed as to the purpose for which the testimony as to Beryl's general moral character should be considered. State v. Rutledge, supra.
Many other instructions are criticized. In some instances the criticisms are meritorious, if a single instruction or part of an instruction be considered, standing alone; but, when considered in connection with the rest of the charge, as they must be, we think no prejudice resulted. In an instruction defining *Page 444
murder in the first degree, the court said that premeditation or deliberation must be present; but, in stating what must be established, to warrant a verdict of murder in the first degree, the court correctly said that both premeditation and deliberation must be shown. In defining malice aforethought, there was some confusion of statement, in that the idea of deliberation expressed in the word "aforethought" alone was seemingly made to apply as a definition of the whole expression; but a further definition of the word "malice" in the same instruction so presented the matter that it could not, we think, have misled the jury.
The objections to many of the other instructions are hypercritical. No other prejudicial error is found.
Some of the instructions requested by appellant were properly refused because, although they were correct in other respects, they required a finding that appellant fired the fatal shot, before he could be convicted, and in effect excluded from the consideration of the jury the claim that he aided and abetted Mrs. Wertz in so doing. In other instances the subject was covered by the instructions given. Save in the respect noted, we find no error in refusing the instructions asked.
It is insisted that the evidence was insufficient to sustain the verdict, and that the court erred in submitting the case to the jury. Because of the necessity for a reversal upon other grounds, and in view of a retrial, upon which the evidence may not be the same, we have no occasion to consider these questions.
For the reasons pointed out, the judgment is reversed and the cause is remanded. — Reversed and remanded.
ARTHUR, C.J., and EVANS and STEVENS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434957/ | H.D. Tipton, the prosecuting witness, lived twelve miles southeast of Sigourney on the east side of a north-and-south highway. His farm buildings were about a block north of the south branch of the Skunk River, which flows easterly across the highway and across, or along the southerly border of, the Tipton farm. As one error relied on by defendant involves the sufficiency of the evidence to support the verdict it becomes necessary to examine the record, particularly the evidence adduced by the State.
About noon of November 14, 1944, Mr. Tipton, a man sixty-five years old, and his twenty-one-year-old daughter, Geraldine, were in a stubble patch near the barn when they saw two men in a boat on the river. The daughter says the men were lifting some "traps that us kids had set at the river. They were steel traps set for muskrat." Tipton himself testifies they "were looking at the traps."
Tipton got out of the wagon and started for the high bank of the river "just west of the boat." The daughter took the team to the barn and then went to the house and got the gun, "because us kids always take the gun when we look at the traps." Both she and her father deny that he told her to get the gun. Tipton says he asked the men what they were doing out there and they answered that it was none of his business. He told them to "get out of here and stay out," to which defendant, standing up in the boat, replied: "We'll go where we please, we pay a license for this." Tipton further testifies that defendant said to the man rowing the boat: "Pull out there, I will get that old son-of-a-bitch. He has bothered us enough"; that they pulled in behind a tree, that defendant came up the bank and the other man "just came to the top of the bank on his hands and knees"; that defendant kept saying, "Come on down here and I will get you." One witness describes the bank as being "from eight to ten to fifteen feet high."
The testimony continues:
"He [defendant] came up the bank with that stick; probably that long with a hook on the end, for raising traps I suppose. There it is right there, and he walked on up to me *Page 1150
and stood there about half a minute and kept telling me `Come on, we'll get you' and then he stepped on up and took a swing at me with that stick and I drew my elbow up and he broke it across there."
There is much more. After the stick broke, the witness says, defendant picked up a little "native" board and struck again. Again the witness drew up his arm. "He hit three or four times and every time it broke. * * * Every time he hit me a piece broke off. * * * I raised my elbow up about even with my shoulder to ward off the blows."
The daughter testifies she saw the man strike her father but was not close enough to identify him:
"I was running and scared and I couldn't say how many times he struck at father. When I got to where my father was standing I seen his arm was bleeding and I handed him the gun. The men at that time were in the boat going east around the bend and down the river."
On cross-examination she testified:
"I wasn't close enough to the men to identify them, but one of them looked about the size of Mr. Albertson [defendant] * * *. I don't know how tall he is, but is better than five feet tall. I have seen him here in Sigourney at a trial where he was brought up for trapping. * * * I have seen Albertson I believe in March of this year. * * * At the time I saw him at the trial I knew who he was."
On cross-examination Tipton says:
"There were two men and I saw no one else. I did not know the man who was with Mr. Albertson. I had seen Mr. Albertson several times on my place. I seen him off and on for two or three years and a time or two had talked to him. I had known him to be Albertson. I knew him when I went down there."
It is undisputed that the two men in the boat were defendant and one Van Buskirk. They testify, however, that it was Van Buskirk who got out of the boat and had the altercation with the prosecuting witness and that defendant remained *Page 1151
in or near the boat and took no part in the melee. They claim Tipton invited them to "come on in, I want to talk to you," and that he was the aggressor throughout. They claim Van Buskirk made no attempt to hit Tipton but only hit at the club Tipton was wielding.
Two other witnesses who had come to the river with defendant that day also testified corroborating defendant and Van Buskirk in a general way. One of them, defendant's brother Hollis, was in another boat with a fifth man who did not testify. The other was over in the highway with the truck in which the five had come from Ottumwa that morning and in which they brought the two boats.
The doctor who dressed Mr. Tipton's arm testifies:
"It was bruised and some cuts, one was larger and bled quite a bit. Location of cut was over the bony part of arm below the elbow * * *."
Tipton says "the arm was cut to the bone."
Two State's witnesses testified that on November 12, 1944 (two days before the alleged assault), defendant said to them, speaking of the prosecuting witness: "Yes, I know that old _____, I am going to kill him. You will find him floating in the river one of these days." Defendant denies this conversation and denies knowing the witnesses. Defendant and his three companions who testified each admitted having been convicted of a felony. The fifth man who was with them that day was in the Wapello county jail at time of this trial.
[1] I. Appellant first contends that the verdict was contrary to the law and evidence. The point was raised in his "motion for a new trial and to set aside the verdict." The only ground urged below was that the State failed to show it was appellant who committed the assault. No claim was then made that the evidence was insufficient to prove an actual assault with intent to commit great bodily injury. On appeal, however, it is now strenuously argued that the evidence does not tend to prove any intent to do great bodily injury or anything more serious than an ordinary assault and battery. *Page 1152
We have studied the record with care and are abidingly convinced it was for the jury to say whether appellant was the one who made the assault and whether there was an intent to do great bodily injury. Not much is to be gained by discussing the decisions in other cases. The two cited by appellant are not particularly pertinent except that they discuss well-known general principles. We have here clear questions of fact upon which the evidence is conflicting. We are unable to say the verdict was against "the clear weight of the evidence." This test is announced and the authorities discussed in State v. Carlson,224 Iowa 1262, 1265, 276 N.W. 700, 772, one of the cases cited by appellant. Appellant and his witnesses outnumbered the State's witnesses but their credibility was in question and their version as to which one (appellant or Van Buskirk) got out of the boat and engaged in the altercation is no more reasonable or convincing than is the testimony of the prosecuting witness and his daughter.
Nor can we say there was not substantial evidence of an intent to do great bodily injury. As said in State v. Crandall, 227 Iowa 311,316, 288 N.W. 85, 88 (the other case cited by appellant):
"Necessarily, then, the intent [to inflict great bodily injury], in most cases must be established circumstantially, and by legitimate inferences from the evidence."
Appellant's statement made two days earlier to two disinterested witnesses and his conduct at the time of the assault, assuming the testimony of Tipton and his daughter to be true, are sufficient upon which to base a finding of intent to do great bodily injury. That the actual injury did not prove to be greater is not controlling. It may have been due to the timely appearance of the daughter with a gun.
Tipton was a man sixty-five years old. He was on his own premises. Appellant and Van Buskirk when they left the boat became trespassers thereon unless they did so by invitation. They say Tipton said he wanted to talk to them. It was not necessary to climb the river bank for that purpose. Whoever it was, whether appellant or Van Buskirk, he did not get out of the boat and climb a ten- or fifteen-foot bank merely to *Page 1153
have a conversation; at least, the jury could from this record so find. The question of intent was properly left to the jury.
[2] II. Appellant complains of two instructions given by the court: One, No. 10, defining the terms "just cause," "justifiable," "excusable," or "excuse," as meaning "a legal excuse or defense to the charge made or act alleged to have been done or committed"; the other, No. 17, relating to the fact that certain witnesses admitted having been convicted of a felony and advising the jury that "this is one method provided by law for impeaching a witness."
A short answer to these complaints is that no exceptions were taken in the trial court to these instructions. We have many times said that unless proper exceptions have been saved we will not review an alleged error in instructions. State v. Dunne,234 Iowa 1185, 15 N.W.2d 296; State v. Bingaman, 210 Iowa 160,230 N.W. 394; State v. Mart, 237 Iowa 181, 20 N.W.2d 63.
We have, on occasion, reviewed such assignments as a matter of grace. State v. Mart, supra. An examination of these instructions, however, suggests no reversible error and a strict adherence to our rule in this case can work no hardship upon appellant.
[3] III. Appellant assigns as error the trial court's failure to give an affirmative instruction upon "the sole defense of defendant, namely, that the alleged offense was committed by one other than the defendant; the same constituting a specialdefense." (Italics supplied.)
We find nothing in the record that would suggest to the trial court appellant was urging this as a special defense. No such instruction was asked nor any exception taken in the trial court to the failure to give one. The cases cited by appellant do not sustain this assignment. State v. Minella, 177 Iowa 283, 310,158 N.W. 645, concerned the giving of an unrequested instruction on self-defense, claimed by defendant improperly to disparage the defense. It was held properly given. In Freeman v. State,52 Tex.Crim. 500, 107 S.W. 1127 (also cited), the instruction wasrequested and refused. The Minella case, supra (177 Iowa at page 312, 158 N.W. at page 655), also involved the refusal to give arequested instruction *Page 1154
as to evidence tending to show someone other than defendant was in possession of the revolver immediately after the fatal shot was fired. Neither that case nor the cited Texas case avails this appellant, who requested no instruction.
This so-called "special defense" is not a defense of alibi though perhaps slightly analogous to it. We think it inhered in the plea of not guilty and no special instruction was necessary, at least in the absence of a request. We said in State v. Debner,205 Iowa 25, 28, 215 N.W. 721, 723:
"Under a plea of not guilty, a defendant has a right to show, not only that he did not commit the act, but that he was doing something else at the time. In fact, very few criminal cases are tried * * * in which his [defendant's] whereabouts at the time of the act are not inquired into. Such evidence comes under the general defense, and generally does not require an instruction on alibi * * *. In such cases, where an alibi is not claimed, and the evidence of the defendant's whereabouts at the time of the act is incidental to his denial of guilt, no instruction on alibi is necessary or proper. State v. Bosworth, 170 Iowa 329."
See, also, State v. Walker, 217 Iowa 229, 251 N.W. 56.
Assuming, without deciding, that if appellant had requested an instruction it should have been given, we are clear there was no error in failing to instruct in the absence of request. In fact, we have held it reversible error to instruct on alibi when no instruction was asked and the evidence was not such as to justify the court in giving one. State v. Lindsay, 152 Iowa 403,132 N.W. 857. In the case just cited there was a dissent on the ground that the error in giving the instruction complained of could not have been prejudicial. In the course of the dissent it is said:
"The defendant pleaded not guilty, and, of course, under that plea * * * he was entitled without other pleading to introduce evidence that at the time and place * * * he was elsewhere. It is only in a very loose and colloquial sense that such evidence can be spoken of as tending to establish a defense in a criminal case. State v. Reed, 62 Iowa, 40." 152 Iowa at page 407,132 N.W. at page 859. *Page 1155
That part of the dissenting opinion was in harmony with the majority opinion. We think it pertinent here.
[4] IV. The trial court sentenced appellant to the penitentiary "at hard labor for a period of not to exceed one year," the maximum statutory penalty provided for the crime charged. It is urged upon us that the punishment fixed is excessive.
Since the passage of the indeterminate-sentence law we have consistently held that if the crime is punishable, either by penitentiary sentence on the one hand or by fine and jail sentence on the other, the only discretion left to the court is to choose between them. If a penitentiary sentence is proper the statute fixes the maximum and the rest is in the hands of the parole board. State v. Giles, 200 Iowa 1232, 206 N.W. 133, 42 A.L.R. 1496; State v. Jenkins, 203 Iowa 251, 212 N.W. 475; State v. Overbay, 201 Iowa 758, 206 N.W. 634; State v. Bird, 207 Iowa 212,220 N.W. 110, 222 N.W. 411.
We see no reason for interfering here. The trial court was in a position to appraise the situation and its judgment in prescribing a penitentiary sentence will be upheld.
The case is affirmed. — Affirmed.
GARFIELD, C.J., and OLIVER, HALE, BLISS, WENNERSTRUM, MANTZ, and MULRONEY, JJ., concur.
HAYS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247174/ | Paul W. Grimm, United States District Judge
Plaintiff Leslie R. Vetter is a pilot for American Airlines, Inc. ("the Airline"). The Airline sponsored an employee benefit plan, Defendant American Airlines, Inc. Pilot Long-Term Disability Plan (the "Plan), administered by the Pension Benefits Administrative Committee (the "Plan Administrator"). Vetter stopped working in January, 2012 due to health problems including fatigue, depression, and severe stomach pains. Administrative Record ("AR") 164-65, ECF No. 21. She took sick leave through February 21, 2012, then applied for long-term disability benefits pursuant to the Plan in April 2012. AR 60, 118. The Plan Administrator initially denied the benefits on July 31, 2012. AR 158-62. On appeal, it awarded her benefits of $12,795.79 for the period from May 3, 2012 through July 23, 2012, but determined that benefits were not appropriate after July 23, 2012 because Vetter no longer was disabled. AR 57-69. It did not address benefits between February 22, 2012, when Vetter stopped receiving pay, and May 3, 2012.
In this action, filed pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132, Vetter challenges the denial of benefits for the periods from February 22, 2012 until May 3, 2012, and July 23, 2012 until she returned to work on October 1, 2013. See Compl., ECF No. 1; Pl.'s Reply & Opp'n 1 n.1, ECF No. 29. The parties have filed and fully briefed cross-motions for summary judgment. ECF Nos. 23, 23-1, 26, 29, 30. A hearing is not necessary. See Loc. R. 105.6. I find that the Plan's decision not to award benefits before May 3, 2012 or after July 23, 2012 was not supported by substantial evidence, but also that the onset and duration of Vetter's disability are not clear on the record before me. Therefore, I will deny the parties' cross-motions for summary judgment, and remand the case to the Plan Administrator for further proceedings.
*716Background 1
Pursuant to agreements that the Airline entered into with the Allied Pilots Association ("APA," the union that represents Vetter and other pilots), the Airline provides, administers and funds the Plan, which provides long-term disability benefits for eligible pilots. Plan § I, AR 133. The Plan defines "disability" or "disabled" as "an illness or injury, verified through a qualified medical authority in accordance with Section V of the Plan, which prevents a Pilot Employee from continuing to act as an Active Pilot Employee in the Service of the Employer," with exceptions not relevant here. Plan § III.N, AR 135. An "Active Pilot Employee" is "a Pilot Employee who performs or is eligible to perform duties as a pilot for the [Airline]." Id. § III.A, AR 133. It is not disputed that Vetter is a Pilot Employee.
American Airlines described the Pilot Employee position as follows:
Reports for duty before assigned flight. Access computer terminals for sign-in and acquisition of flight plans, weather information and other associated documents. Analyzes in concert with Flight dispatch, the plan of intended routing and fuel loading taking into account weather and other conditions.
Conducts detailed examination of exterior and interior of aircraft.... and determine whether aircraft is acceptable for safe flight operation.
Completes pre-flight checklists (manually & visually), contacts FAA by radio to acquire clearances and brief flight attendants.
Supervises push-back activities and taxi aircraft to runway....
During flight, performs checklist, visually monitors aircraft systems, communicates with FAA facilities, navigates and monitors air traffic. Simultaneously, monitor enroute [sic] weather, and alter routing as necessary while continually analyzing fuel consumption. In the event of abnormal or emergency situations, take immediate required action and determine if immediate landing is necessary.
Plans and executes approach and landings, often at night and in inclement weather....
Taxis aircraft to gate, shut down engines and prepare for the next flight segment.
Must be able to work varying hours of the day or night, on weekdays, and holidays. Frequently on duty for as long as twelve to fourteen hours and will span many time zones and extreme weather differences in the course of a trip. Frequently be away from home for three, or more days and nights, staying in out-of-town hotels.
Am. Airlines Job Description & Essential Functions, AR 621 (emphasis added). Vetter was required to have, inter alia , an FAA Commercial License and a Valid First Class Medical Certificate. Id. at 622.
Vetter "started experiencing declining health" in June 2011; by January 2012, her symptoms included insomnia, fatigue, nausea, vomiting, headaches, trouble concentrating, stomach pain, and depression. Vetter Decl., AR 164. She no longer felt able to perform the job responsibilities involved in piloting a commercial aircraft as of January 2012, and she began taking sick leave on January 5, 2012. Id. at 164-65; Aug. 12, 2013 Ltr., AR 60. She exhausted her sick leave by February 21 2012, and then was approved for unpaid sick leave of absence.
*717Vetter Decl., AR 165; Aug. 12, 2013 Ltr., AR 60. Vetter originally sought long-term disability benefits on April 12, 2012, Notice of Disability, AR 118; by letter dated July 31, 2012, the Plan denied her claim due to "insufficient evidence that [she had] a Disability as required by the Plan." Ltr., AR 159.
Vetter appealed. According to Vetter, her condition worsened in summer 2012 and she "started suffering symptoms similar to Bells Palsy." Vetter Decl., AR 165. In her January 28, 2013 Declaration, Vetter stated that she recently was diagnosed with Lyme disease and that two physicians, Dr. Kessler and Dr. Corrigan, found that she was "ineligible to fly due to a medical condition and w[ould] not be eligible until [her] illness resolve[d]." Id. at 164, 165. On appeal, the Plan approved Vetter for long-term disability benefits "because of [her] medical inability to act as a Pilot" due to "her claimed condition of insomnia," but only for the period May 3, 2012 through July 23, 2012. Sept. 25, 2013 Ltr., AR 52; Aug. 12, 2013 Ltr., AR 57.
Thus, it is undisputed that Vetter had a qualifying disability from May 3, 2012 until July 23, 2012. Therefore, the issue is whether the Plan abused its discretion in finding that Vetter's disability did not exist prior to May 3, 2012 and ceased to exist after July 23, 2012. A disability "exist[s]" and "continue[s] to exist[ ] only if the Pilot Employee has received and continues to receive qualified medical care consistent with the nature of the illness or injury that gives rise to such Disability." Plan § V.A, AR 138. A disability "cease[s] to exist" for purposes of the Plan "if (1) health is restored so as not to prevent the Pilot Employee from acting as an Active Pilot Employee in the service of the [Airline], (2) verification of such Disability can no longer be established or (3) appropriate medical care is wantonly disregarded by such Pilot Employee." Plan § V.B, AR 138.
The Plan provides that "[a]ny dispute as to the clinical validity of a Pilot Employee's claim of the existence of a Disability or the continuation of the illness or injury which gave rise to such Disability shall be referred to a clinical authority selected under the Agreements" between the Airline and the APA, "and the findings of such authority regarding the nature and extent of such illness or injury shall be final and binding upon the [Airline], the [APA] and the Pilot Employee...." Plan § V.D, AR 138. The Plan's review of any denial of a claim for disability benefits must "take into account all comments, documents, records, and other information submitted by the Pilot Employee relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination." Id. § VIII.F(6), AR 147-48. And, "[i]f the adverse determination was based, in whole or in part, on a medical judgment, the Pension Benefits Administration Committee shall consult with a health care professional who has appropriate training and experience in the field involved in the medical judgment." Plan § VIII.F(7), AR 148.
Consistent with this provision, when Vetter appealed, the Plan submitted Vetter's case file to MES Solutions, Inc. ("MES"), "an independent clinical consulting firm mutually agreed upon by [the Airline] and the APA, for its review and medical opinions on the case." Aug. 12, 2013 Ltr., AR 67. The Plan "request[ed] that MES Solutions perform an evidence-based, forensic medical review/evaluation ('peer review') ... conducted by [a] Senior AME [Aviation Medical Examiner] and any additional board-certified physician specialists." June 3, 2013 Ltr., AR 90. The medical examiner selected was Dr. James W. Butler, M.D., M.P.H. Aug. 12, 2013 Ltr., AR 67, 69, 72. Four specialists also reviewed the file. Id. The Plan asked MES to review "the submitted information" and stated that, if that did "not enable the *718Senior AME and the board-certified physician specialists to provide a clear and definitive determination on the case," MES could "request that the Pilot submit to an Independent Medical Evaluation." Id.
In its June 3, 2013 letter to MES, the Plan stated that Vetter claimed the following conditions: hypothyroidism, perimenopause, chronic insomnia with resulting fatigue, irritable bowel syndrome with constipation, persistent epigastric and abdominal pain, and positive Epstein Barr virus and Cytomegalovirus antibodies. June 3, 2013 Ltr., AR 90. The Plan posed specific questions with regard to each claimed condition and noted that "this request for professional medical consultation is to determine disability and treatment compliance only, as referenced in the Plan" and it "should not address the Pilot's fitness for duty, qualification or disqualification for FAA medical certificate for the Pilot, Pilot loss of license, or factors other than those contained in the questions [posed]." Id. at 91. The Plan explained that its "determining factors for approval of disability benefits focus on whether or not the Pilot meets the Plan's definition of disability, and/or whether or not the Pilot meets the requirement of receiving and complying with qualified medical care." Id. In response, "MES Solutions, Inc. physician consultants provided their professional medical opinions regarding the Pilot's medical conditions and their relationship, if any, to Disability as defined by the Plan." Aug. 12, 2013 Ltr., AR 67.
The Plan informed Vetter that the MES physician consultants considered the "diagnoses/affected organ systems" listed in the June 3, 2013 letter, as well as Lyme Disease, Atypical Bartonella infection, and Atypical Babesiosis. Id. It is true that, although Lyme Disease and the other infections were not included in the instructions to MES, three of the four physicians (whose reviews Dr. Butler agreed with) noted these diagnoses. E.g. , Jad A. Khoury, M.D. Review, AR 73 ("She was given a diagnosis of possible babesiosis, possible Lyme disease and atypical bartonellosis and received multiple antibiotics and antimalarials."); Ronald S. Sims, M.D. Review, AR 79 (considering "claimant's work capacity as regards insomnia and fatigue"; noting diagnoses of "Lyme disease, babesiosis, bartonellosis"); Steven C. Talwil, M.D. Review, AR 84 ("9/6/12 was told by infectious disease to take doxycycline for treatment of Lyme disease. 3/18/13 she reported having 85% of her normal energy level with some G.I. symptoms.").
According to the Plan, the physicians opined that Vetter had "[n]o disability attributable to" hypothyroidism, perimenopause, Epstein-Barr virus exposure or Cytomegalovirus exposure, and "[n]o evidence of disability as a result of" Atypical Bartonella infection or Atypical Babesiosis." Aug. 12, 2013 Ltr., AR 67-68. Similarly, they concluded that her irritable bowel syndrome with constipation and her persistent epigastric and abdominal pain "did not disable her from performing her duties as a pilot."Id. As for Lyme disease, they found that there was "[n]o evidence of involvement in the central nervous system." Id. In contrast, with regard to Vetter's chronic insomnia with fatigue, the Plan reported that the MES physician consultants opined: "Her impaired sleep deficiency did disable her from performing her duties as a pilot. However, the records reflect that her insomnia was mostly resolved by July 23, 2012." Id.
Dr. Sims, who is board-certified in neurology with a subspecialty certificate in sleep medicine, in consultation with Dr. Butler's office, reviewed Vetter's file with regard to chronic insomnia and fatigue. Specifically, he reviewed Vetter's Declaration, a statement from Dr. James Shaller, *719various laboratory reports and a polysomnogram, notes from Dr. William Cooper, Jr., M.D., Dr. Mark Richards, M.D., Dr. Manoel Moraes, M.D., Dr. Marina Johnson, M.D., Dr. Brian Turrisi, M.D., Dr. William Stern, M.D., Dr. Lynette Posorske, M.D., and Dr. David Kessler, M.D., and on July 19, 2013, answered questions posed by the Plan. Sims Review, AR 79.
Dr. Johnson stated that Vetter was "under [her] care for hypothyroidism, perimenopause, chronic insomnia and IBS-C," and, that "[a]t her initial visit"-for which Dr. Johnson does not provide a date, although the records reflect that she requested lab work for Vetter on February 28, 2012-"she had severe insomnia ... that was causing her great fatigue." Johnson Ltr., AR 37-38. As of Vetter's June 6, 2012 visit, "her sleep [was] normalized, and she average[d] 8 hours nightly." Id. at 37. At that time, Vetter's "thyroid medicine and dosage [was] stabilized and d[id] not constitute a reason to prevent her from flying." Id. Dr. Johnson opined that "[a]t th[at] point, the problem that [was] inhibiting her return to work [wa]s her epigastric and abdominal pain." Id. Dr. Turrisi saw Vetter almost seven weeks later, on July 23, 2012, and made similar observations. Turrisi Ltr., AR 533. Specifically, he noted that "[s]he [wa]s sleeping a lot better ... after being on ton of herbal supplements that have [been] prescribed by various physicians and she [wa]s ... getting back to her normal sleep pattern." Id. He observed that "[h]er ability to exercise [was] curtailed by her fatigue and she d[id] have mild continued problems with sleep," but "[n]o insomnia, snoring or excessive daytime sleepiness." Id. at 533-34.
Dr. Stern also noted a continuation of Vetter's difficulties sleeping in June and July 2012, although he did not state the severity. Stern Ltr., AR 523-25. On June 21, 2012, Dr. Stern noted that a year earlier, Vetter had "had episodes of night sweats, nausea, vomiting, and fatigue," and that, since then "[s]ome of her symptoms of mild depression improved, but her other symptoms persisted." Id. at 523. His "impression" included fatigue and sleep disorder. Id. at 524-25. When Dr. Stern saw her on July 12, 2012, her "main complaints [we]re fatigue and sleeping problems." Id. at 556. Then, after seeing Vetter on August 16, 2012, he stated that she "ha[d] noted some slight improvement in her symptoms." Id. at 554.
Dr. Shaller saw Vetter four days later, on August 20, 2012 and observed "[s]evere and profound fatigue[,] [d]aily headaches[,] [s]leep disturbances[,] [w]eight dysregulation [and] [m]igrating joint pain," and diagnosed babesiosis, atypical bartonella infection, and systematic inflammation. Shaller Ltr., AR 245. He concluded that these conditions were "undermining her ability to safely perform her duties as a pilot at this time."Id. at 246. He predicted 100% recovery, but "doubt[ed] that she [could] safely perform her duties as a pilot of a large commercial aircraft before four months." Id. at 248. On August 22, 2012, Dr. Kessler made a brief note that he had "seen Ms. Vetter th[a]t day and ha[d] deferred examination for a First Class Medical [Certificate]," reasoning that she was "currently symptomatic and [wa]s unable to function as a flight officer until therapy [was] completed and she ha[d] recovered." Kessler Note, AR 611.2 Later that week, *720on August 27, 2012, Dr. Posorske noted that Vetter's symptoms, including "extreme difficulty in sleeping" and fatigue, "persist[ed]." Posorske Ltr., AR 602. Then, on March 18, 2013, Vetter informed Dr. Posorske that "she ha[d] approximately 85% of her normal energy level." Posorske Ltr., AR 643.
Dr. Sims discussed these findings. He noted that Dr. Turrisi "documented insomnia initially [in March 2012], but by 7-23-12 the office note indicated the absence of significant insomnia." Sims Review, AR 80. He also noted that Dr. Stern saw Vetter from June through August 2012 and "documented frequent nocturnal awakenings, night sweats, nausea/vomiting, fatigue, stomach pain and bloating." Id. at 79. Dr. Sims observed that Dr. Schaller opined in August 2012 that Vetter "was unable to work for at least the next four months," and as of September 25, 2012, he "expected her to be able to return to work as a flight officer by April 2013." Id. He also noted that the laboratory reports "detected evidence of exposure to the [Lyme disease ] organism." Id. According to Dr. Sims, Dr. Posorske, in notes from August 2012 through April 2013 "documented symptoms as described [by the other physicians]," and found that "by August 2012 the symptom of severe insomnia with fatigue persisted," id. , and on August 22, 2012, Dr. Kessler "documented his opinion that claimant was not capable of functioning as a flight officer," id. at 81.
Based on these documents, Dr. Sims concluded (and Dr. Butler agreed) that Vetter "had persistent, severe insomnia for many months, but eventually had improvement of this problem (Dr. Turrisi, 7-23-12), although other medical evidence indicates persistence of insomnia and fatigue (Dr. Posorske, August 2012)." Id. at 81. He opined that "persistent fatigue, wake time somnolence, and insomnia" were "conditions [that] disabled her from performing her work satisfactorily," as "[h]er medical record abundantly documents that she was not able to function as a flight officer because she ... had somnolence, impaired concentration, and fatigue associated with poor nocturnal sleep." Id. He noted that Vetter had "very extensive, ongoing medical care for a variety of problems," and that it was "not clear ... exactly what caused the insomnia." Id. According to Sims, "[t]he medical records indicate some improvement in insomnia occurred by the summer of 2012," but "[t]he [January 28, 2013] statements in file by the claimant do not indicate that the insomnia resolved by this time." Id. at 82.
Based on MES's report and its review of Vetter's file, the Plan approved Vetter for long-term disability benefits "because of [her] medical inability to act as a Pilot," but only for the period May 3, 2012 through July 23, 2012. Sept. 25, 2013 Ltr., AR 52. The Plan paid her a lump sum of $12,795.79 to cover that period. Id. It explained that
[a]fter evaluating all the information [Vetter] submitted in support of this appeal, along with any and all other information provided by [the Airline], American Airlines Medical and Occupational Health Services ('AAMOHS') and the physician-specialists at MES Solutions, Inc., acting in the capacity of an independent medical consulting firm jointly selected by both [the Airline] and [APA], the PBAC determined that [Vetter's] claimed condition of insomnia did qualify as a Disability under the terms of the Plan. However, her other claimed conditions did not qualify as disabilities under the Plan.
Aug. 12, 2013 Ltr., AR 57. According to the Plan,
*721[o]f [Vetter's] multiple claimed conditions, the only condition that adversely affected her ability to perform her duties as a pilot was her insomnia and resulting daytime fatigue. With conservative treatment, her insomnia markedly improved by July 23, 2012. While she still experienced periodic episodes of insomnia after that time, the condition was self-limiting and responded to conservative treatment . Thus, her disability resulting from insomnia was no longer disabling after July 23, 2012.
Id. at 69 (emphasis added).
Standards of Review
Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials," that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A) ; see Baldwin v. City of Greensboro , 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585-87 & n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. When the parties file cross-motions for summary judgment, as Vetter and the Plan have done, the Court must "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. & Indem. Co. , 627 F.Supp. 170, 172 (D. Md. 1985).
When an employee benefits plan governed by ERISA grants the plan administrator "discretion to determine a claimant's eligibility for benefits," federal courts review the administrator's denial of disability benefits for abuse of discretion. Smith v. PNC Fin. Servs. Grp. , No. MJG-15-2232, 2017 WL 3116689, at *7 (D. Md. July 21, 2017) (quoting Cosey v. Prudential Ins. Co. of Am. , 735 F.3d 161, 165 (4th Cir. 2013) (citations omitted) ), appeal dismissed sub nom. Smith v. Liberty Life Assurance Co. of Boston , No. 17-1975, 2018 WL 949221 (4th Cir. Jan. 29, 2018). But, first, the court must "determine de novo whether the 'plan's language grants the administrator ... discretion to determine ... eligibility for benefits.' " Id. (quoting Gallagher v. Reliance Standard Life Ins. Co. , 305 F.3d 264, 268 (4th Cir. 2002) ). Then, under the abuse of discretion standard, the "court will set aside the plan administrator's decision only if it is not reasonable," and not simply because the court would have reached a different conclusion. Id. at *8 (quoting DuPerry v. Life Ins. Co. of N. Am. , 632 F.3d 860, 869 (4th Cir. 2011) ; citing Williams v. Metro. Life Ins. Co. , 609 F.3d 622, 630 (4th Cir. 2010) ).
"A 'decision is reasonable if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.' Substantial evidence is 'evidence which a reasoning mind would accept as sufficient to support a particular conclusion.' " Id. (quoting DuPerry , 632 F.3d at 869 ). In the context of an ERISA
*722action, substantial evidence "consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Gonzales v. Truck Drivers & Helpers Local 355 Ret. Pension Fund , 39 F.Supp.3d 680, 686 (D. Md. 2014) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) ); see Giles v. Bert Bell/Pete Rozelle NFL Player Ret. Plan , 925 F.Supp.2d 700, 715 (D. Md. 2012) (same) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) ). Substantial evidence is not "a large or considerable amount of evidence[.]" Giles , 925 F.Supp.2d at 715 (quoting Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ).
The court cannot "re-weigh the evidence itself" or "substitute [its] own judgment in place of the judgment of the plan administrator." Smith , 2017 WL 3116689, at *8 (quoting Evans v. Eaton Corp. Long Term Disability Plan , 514 F.3d 315, 325 (4th Cir. 2008) ; Williams , 609 F.3d at 630 ).
[To] determin[e] the reasonableness of a fiduciary's discretionary decision, ... a court may consider, but is not limited to, such factors as: (1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary's interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decisionmaking process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8) the fiduciary's motives and any conflict of interest it may have.
Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan , 201 F.3d 335, 342-43 (4th Cir. 2000).
Discussion
The Plan provides that the Pension Benefits Administration Committee (which is the Plan Administrator) has "discretionary authority to determine eligibility for and entitlement to Plan benefits" and the power "[t]o exercise discretionary authority to determine eligibility for benefits." Plan § VII.D(4), G, AR 142. This language clearly "grants the administrator ... discretion to determine ... eligibility for benefits." See Gallagher , 305 F.3d at 268 ; Smith , 2017 WL 3116689, at *7. And, the parties do not dispute that the Plan Administrator had discretion to make benefits eligibility determinations. Therefore, I will consider the reasonableness of its decision. See DuPerry , 632 F.3d at 869 ; Smith , 2017 WL 3116689, at *8.
The third and fifth factors-the adequacy of the materials that the Plan considered in denying Vetter benefits after July 23, 2012 and, more significantly, the degree to which the materials support its decision, as well as whether the Plan's "decisionmaking process was reasoned and principled-are most relevant and useful in determining the reasonableness of the Plan's decision. See Booth , 201 F.3d at 342. I will focus on these two factors. See id. at 344 ("In the district court, Booth challenged the decision of the Plan's Administrative Committee to deny in part her claim for benefits, implicating two factors in [the court's] 'reasonableness' inquiry under the abuse of discretion standard of review: (1) the degree to which the materials before the committee supported its decision, and (2) the process by which the decision was made."); Whitley v. Hartford Life & Acc. Ins. Co. , 262 Fed.Appx. 546, 551 (4th Cir. 2008) ("In this case, we focus primarily on the sufficiency of the evidence *723upon which Hartford based its conclusion that Whitley failed to continue to qualify for disability benefits, as well as the reasonableness of Hartford's decision-making process.").
Decisionmaking Process
1. Reviewing conditions in isolation
Vetter asserts that the Plan "limited MES' medical records review and its resulting opinions" by "instruct[ing] MES to evaluate certain medical conditions and then answer specific questions Defendant posed regarding whether disability arose from such independent medical condition." Pl.'s Mem. 17. In her view, this is an abuse of discretion because "a plan administrator may not simply evaluate each condition independently to determine whether any single condition is sufficiently disabling," but rather must "evaluate the possibly disabling effect of all medical conditions taken together." Id. at 18. Insofar as she argues that the Plan's instructions prevented consideration of Lyme disease, id. at 22-23, this is not true. As discussed above, although Lyme disease was not listed on the Plan's letter to MES, three of the four physicians noted the diagnosis when analyzing Vetter's conditions. See Khoury Review, AR 73; Sims Review, AR 79; Talwil Review, AR 84. Moreover, Dr. Sims considered Lyme disease specifically with regard to the effects of the insomnia and fatigue Vetter experienced. See Sims Review, AR 79.
To the extent that Vetter argues that the Plan compartmentalized her conditions, preventing consideration of her conditions "taken together" or proper review of the "record as a whole," Pl.'s Mem. 18-19, the Fourth Circuit has considered and rejected this argument. See Spry v. Eaton Corp. Long Term Disability Plan , 326 Fed.Appx. 674 (4th Cir. 2009). In Spry , an employee was eligible for long-term disability benefits if she showed that she could not "work due to an illness or injury"; that she was "totally and continuously unable to engage in any occupation or perform any work for compensation or profit for which [she was] reasonably well fitted by reason of education, training or experience," such that her illness or injury qualified as a "covered disability"; and that she was "under the continuous care of a physician who verifie[d]" that she was "totally disabled." Id. at 675. The plan administrator terminated her long-term disability benefits, and she challenged the decision, "contend[ing] that each of the medical opinions the Administrator relied on in deciding to terminate her LTD benefits [was] flawed because they did not assess all of Spry's conditions." Id. at 681. The Fourth Circuit affirmed the administrator's decision, reasoning that "[t]he critical point [wa]s that the Administrator considered all of the conditions," and "the Administrator was not limited to considering the opinions of physicians who addressed all of Spry's conditions .... And, nothing in the record suggest[ed] that the Administrator relied on any physician's opinion for a proposition broader than the opinion that the physician rendered." Id. Spry also faulted the plan administrator for "not considering whether Spry's various medical conditions were cumulatively disabling." Id. The Fourth Circuit did not find any reversible error, given that diabetes was the only condition "ever listed by Spry's primary care physicians as being disabling," and the medical opinion regarding diabetes was that "there was no evidence that Spry's diabetes would prevent her from performing the duties of any occupation." Id.
Here, likewise, the Plan sought input from the independent medical reviewers on specific conditions, but the Plan itself considered all of the reviewers' reports. Aug. 12, 2013 Ltr., AR 57. Moreover, the Plan also "evaluat[ed] all the information [Vetter] submitted in support of this appeal, *724along with any and all other information provided by [the Airline and] American Airlines Medical and Occupational Health Services ...." Id. Thus, the Plan did not abuse its discretion in requesting specific reports from the medical reviewers. See Spry , 326 Fed.Appx. at 681.
Further, the individual physicians did not consider Vetter's conditions in a vacuum, but rather acknowledged her various symptoms and diagnoses in their assessments, and Dr. Butler reviewed and agreed with all four reports. For example, while assessing the effects of claimant's alleged hypothyroidism and exposure to Epstein Barr virus and Cytomegalovirus, Dr. Khoury noted her symptoms of "poor sleep, daytime fatigue and inability to concentrate, depressive symptoms, weight gain and abdominal pain," and her diagnoses of "small intestine bacterial overgrowth syndrome [,] ... irritable bowel syndrome with constipation predominance[,] ... possible babesiosis, possible Lyme disease and atypical bartonellosis [and] perimenopause." Khoury Review, AR 72-73. He also considered the effects that Vetter's conditions had on her. Id. at 73 (noting that "the claimant has made real improvements when treated for presumed Babesia and Bartonellosis"; that "the sleep normalized as of 6/6/12 but the claimant continued to have abdominal pain"; that "the claimant had ~85% of her normal energy level back but was still having GI symptoms"). Similarly, while considering Vetter's insomnia and fatigue, Dr. Sims noted that she reported "multiple other symptoms including (to use her terms) exhaustion, depression, headache, impairment of concentration, nausea/vomiting, abdominal pain, joint pain, weight loss, and inability to function in waking hours" and that her diagnoses included "symptoms associated with perimenopause, low testosterone, a thyroid disorder, gastrointestinal bacterial overgrowth, Lyme disease, babesiosis, bartonellosis"). Sims Review, AR 79. Likewise, Dr. Talwil noted Vetter's "history of hypothyroidism, perimenopause, insomnia, fatigue, irritable bowel syndrome with constipation, persistent epigastric and abdominal pain, positive EBV and CMV antibodies," and noted that her medical care included "tak[ing] doxycycline for treatment of Lyme disease." Talwil Review, AR 83.
And, as in Spry , the independent physicians only concluded that one condition-chronic insomnia and fatigue-was disabling, that is, that it interfered with her ability to perform as a pilot. See Sims Review 81 ("[P]ersistent fatigue, wake time somnolence, and insomnia ... disabled her from performing her work satisfactorily."). The medical reviewers found that the other conditions were not disabling, and in multiple instances, they found that the conditions were not even present. See Khoury Review, AR 74-75 (concluding that "patient d[id] not actually have a supported diagnosis of hypothyroidism" and "there [wa]s no evidence of active infection" from Epstein Barr virus or Cytomegalovirus ); Ronald J. Orleans, M.D. Review, AR 76 (concluding that "there was no evidence in the gynecological records that the claimant was 'Perimenopausal' or had a 'Perimenopausal syndrome' which would have prevented her from working" and "there was no evidence to support any restrictions or limitations which would have prevented the claimant from piloting an aircraft"); Talwil Review, AR 83 ("The plan definition for disability was not met with respect to irritable bowel syndrome with constipation or epigastric pain/abdominal pain."). Therefore, there was no abuse of discretion in considering whether any specific claimed condition, rather than the combined effects of multiple conditions, qualified as a disability, because there were no cumulative effects to consider. See Spry , 326 Fed.Appx. at 681.
*7252. Fitness for duty
Vetter also argues that the Plan's instruction that MES "not consider fitness for duty" was "inconsistent with the Plan provisions" and prevented a determination of whether she was disabled, that is, unable to perform her job requirements. Pl.'s Reply & Opp'n 11-12. It is true that the physician consultants were directed not to consider "fitness for duty." June 3, 2013 Ltr., AR 91. But, the Plan explained that its "determining factors for approval of disability benefits focus on whether or not the Pilot meets the Plan's definition of disability," id. , and disability is defined as whether the employee had an illness or injury that "prevent[ed] [her] from continuing to act as an Active Pilot Employee." Plan § III.N, AR 135. Consequently, to determine whether Vetter was disabled under the Plan, the independent physicians necessarily had to address whether, in light of her alleged conditions, she could perform her job responsibilities. See id. And, that is exactly what they did. E.g. , Sims Review, AR 81 ("[Q.] Does the evidence reflect disability (as defined by the Plan), arising from this diagnosis [insomnia]? ... [A.] Numerous medical notes documented the symptoms of persistent fatigue, wake time somnolence, and insomnia. These conditions disabled her from performing work satisfactorily. The claimant's occupation as a flight officer absolutely requires intact concentration and freedom from somnolence during waking hours. Her medical record abundantly documents that she was not able to function as a flight officer because she ... had somnolence, impaired concentration, and fatigue associated with poor nocturnal sleep."); Talwil Review, AR 83 (stating that he and Dr. Butler "discussed that the illness or injury as reflected by the progress notes and clinical information submitted to review would not prevent a pilot employee from continuing to act as an active pilot employee," such that "[t]he plan definition for disability or disabled was not met with respect to irritable bowel syndrome with constipation or epigastric pain/abdominal pain"). Accordingly, the Plan's "decisionmaking process was reasoned and principled." See Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan , 201 F.3d 335, 342-43 (4th Cir. 2000).
Materials that the Plan Considered
Vetter contends that the Plan ignored evidence that "persistent insomnia and fatigue existed [for at least eight months] after Dr. Turrisi's July 23, 2012 note," relying instead "upon the single report of a pulmonologist [Turrisi] who only saw the Plaintiff on a few occasions between March and July 2012." Pl.'s Mem. 20.3 According to Vetter, when, as here, there is conflicting evidence, the Plan Administrator cannot ignore relevant evidence that does not support its decision and cherry pick evidence to support its decision. Id. at 19. Vetter insists that the Plan's "conclusion that Plaintiff's fatigue and insomnia had resolved by July 23, 2012, and she was not entitled to benefits after that date, disregarded substantial contra[r]y evidence supporting Plaintiff's disability" and was contrary to the Plan's medical reviewer's report. Id. at 21.
The Plan counters that, while "a plan administrator 'may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician,' ... [a]n administrator able to credit reliable evidence is not 'arbitrarily refus[ing *726] to credit the claimant's evidence.' " Def.'s Opp'n & Mem. 19 (quoting Black & Decker Disability Plan v. Nord , 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) ). In the Plan's view, the evidence Vetter relies on to show that her fatigue continued beyond July 23, 2012, is less supportive that she asserts, as it does not "clearly identify her current status." Id. (citing AR 602). The Plan argues that the Plan Administrator "considered all of Plaintiff's evidence, but relied primarily upon the opinions it obtained from Dr. Butler and the other experts with whom he consulted." Id. at 15 (citing AR 57-69). It insists that "[a]n administrator does not abuse its discretion by relying on the medical opinions of independent physicians who review medical records and the other submitted materials." Id.
It is true that, when there are conflicting medical opinions, the Plan has the discretion to deny benefits based on one set of opinions, despite the other opinions to the contrary. See Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan , 201 F.3d 335, 342-43 (4th Cir. 2000) ("Confronted with this record of conflicting opinion, it was within the discretion of the Administrative Committee-indeed it was the duty of that body-to resolve the conflicts, and ... 'it is not an abuse of discretion for a plan fiduciary to deny ... benefits where conflicting medical reports were presented.' " (quoting Elliott v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999) ). In Booth , not all of the evidence before the committee supported its determination. Rather, "[l]etters from Booth, [her general physician and another physician] presented evidence to the Administrative Committee that conflicted with the opinions of the reviewing Drs. Allen and Arkins," with her general physician's letter going so far as to explain his records to refute the conclusions the independent physicians reached in reviewing those records. Id. at 345. The Fourth Circuit concluded that, "[b]ecause sufficient evidence [wa]s contained in the record to support the determination that Booth was treated during the exclusionary period for either the same condition later treated in November 1994 or a symptom or secondary condition thereof," such that the pre-existing condition exclusion applied, "the district court clearly erred in concluding that the Plan's Administrative Committee abused its discretion in denying Booth benefits." And, in Elliott v. Sara Lee Corp. , the Fourth Circuit observed that, even if the treating physician's "report suggested that Elliott could perform no work at all, that fact would not preclude the Plan Administrator from denying benefits," because there was evidence to the contrary and "it is not an abuse of discretion for a plan fiduciary to deny disability pension benefits where conflicting medical reports were presented." 190 F.3d 601, 606 (4th Cir. 1999).
Here, two physician's reports dated June 6, 2012 and July 23, 2012 support the Plan's conclusion that as of July 23, 2012, Vetter's sleep difficulties were not preventing her from performing her duties as a pilot. Dr. Johnson found that, as of June 6, 2012, Vetter's "sleep [was] normalized, and she average[d] 8 hours nightly." Johnson Ltr., AR 37. And, Dr. Turrisi found that, on July 23, 2012, Vetter was "getting back to her normal sleep pattern," and although she had "mild continued problems with sleep," she had "[n]o insomnia, snoring or excessive daytime sleepiness." Turrisi Ltr., AR 533-34.
True enough. But, what Vetter seeks are long-term disability benefits from February 22, 2012 until May 3, 2012, and after July 23, 2012, until October 1, 2013, when she returned to work. A careful review of the physicians' opinions that the parties cite, as well as those on which MES relied, from after July 23, 2012 reveals that they uniformly noted that Vetter had fatigue *727and difficulty sleeping in August 2012. Some opined in August 2012 or later that Vetter could not perform her duties as a pilot; none affirmatively stated that she could. For example, Dr. Shaller noted Vetter's "[s]evere and profound fatigue[,] [d]aily headaches [and] [s]leep disturbances" on August 20, 2012; concluded that these conditions were "undermining her ability to safely perform her duties as a pilot"; and "doubt[ed] that she [could] safely perform her duties as a pilot of a large commercial aircraft before four months." Shaller Ltr., AR 245-46, 248. On August 22, 2012, Dr. Kessler noted that he had "seen Ms. Vetter th[a]t day and ha[d] deferred examination for a First Class Medical [Certificate]" because she was "symptomatic and [wa]s unable to function as a flight officer until therapy [was] completed and she ha[d] recovered." Kessler Note, AR 611. Dr. Posorske noted that Vetter's fatigue and "extreme difficulty in sleeping" persisted on August 27, 2012. Posorske Ltr., AR 602. On August 16, 2012, Dr. Stern "noted some slight improvement in her symptoms" of fatigue and difficulty sleeping, but did not address whether she improved enough to be able to work. Stern Ltr., AR 554, 556. Additionally, Dr. Corrigan reviewed Vetter's medical records on September 6, 2012, and found that Vetter's condition at that time "prohibited [her] from exercising the privileges of her Airman's Medical Certificate." AR 614.
And, while the independent physician consultants, Drs. Sims and Butler, noted that Vetter "had improvement of this problem" of "persistent, severe insomnia" based on Dr. Turrisi's July 23, 2012 letter, they also noted that "other medical evidence indicate[d] persistence of insomnia and fatigue [in] August 2012[ ]," based on Dr. Posorske's letter. Sims Review, AR 81. They opined that "persistent fatigue, wake time somnolence, and insomnia" were "conditions [that] disabled her from performing her work satisfactorily," as "[h]er medical record abundantly documents that she was not able to function as a flight officer because she ... had somnolence, impaired concentration, and fatigue associated with poor nocturnal sleep." Id. Notably, they did not state that after July 23, 2012, she no longer was "disabled ... from performing her work satisfactorily." See id. Indeed, the Plan has not identified any evidence that, after July 23, 2012, Vetter did not have sleep difficulties that rendered her unable to perform her duties as a pilot.
Yet, despite this uncontradicted evidence that Vetter's disability persisted after July 23, 2012, the Plan concluded that "her insomnia markedly improved by July 23, 2012," and that, "[w]hile she still experienced periodic episodes of insomnia after that time, the condition was self-limiting and responded to conservative treatment." Aug. 12, 2013 Ltr., AR 69. It did not explain the basis for its beliefs that, after July 23, 2012, her insomnia was still "markedly improved," that her insomnia was confined to "periodic episodes" and that it was "self-limiting and respon[sive] to conservative treatment." Nor did it explain its finding that Vetter was not disabled until May 3, 2012, when Johnson noted "severe insomnia" and fatigue at Vetter's initial visit, which may have been as early as February 2012; Turrisi noted insomnia in March 2012; and Stern noted sleep difficulties in June 2011. AR 37-38, 80, 523. Nor does the Plan now identify evidence in the record in support of its conclusion. The Fourth Circuit has held that it is an abuse of discretion for a plan administrator to reach a conclusion regarding disability benefits that is contrary to all of the relevant evidence before it. See Solomon v. Bert Bell/Pete Rozelle NFL Player Ret. Plan , 860 F.3d 259, 261 (4th Cir. 2017) ; Jani v. Bell , 209 Fed.Appx. 305, 307, 314, 316 (4th Cir. 2006) ; Stawls v. Califano, 596 F.2d 1209 (4th Cir. 1979).
*728In Solomon , a retired football player applied for disability benefits and there was "uncontradicted evidence supporting Solomon's application," yet the plan administrator found that Solomon was ineligible. 860 F.3d 259, 261 (4th Cir. 2017). The Fourth Circuit affirmed the district court's conclusion that "Solomon was entitled to the benefits he claimed," because the administrator "failed to ... explain the basis of its determination [of ineligibility]-neither addressing nor even acknowledging new and uncontradicted evidence supporting Solomon's application, including that of the Plan's own expert." Id.
In Jani v. Bell , another case involving a professional football player who sought disability benefits, the plan administrator awarded the player, Mike Webster, benefits based on his disability arising in September 1995, four years after he retired, "but denied him the more lucrative benefits reserved for those whose disabilities begin while they are still actively playing football." 209 Fed.Appx. 305, 306 (4th Cir. 2006). His estate filed an ERISA action, and the district court found that the plan administrator "abused its discretion by ignoring the unanimous medical evidence that established March 1991 as the onset date for Webster's total and permanent disability." Id. The district court observed that "[e]ach specialist who examined Webster's neurological status concluded that he was totally and permanently disabled under the terms of the Plan by March 1991." Id. at 313 (quoting Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan , No. 04-1606, 2005 WL 1115250, at *6 (D. Md. Apr. 26, 2005) ).
On appeal, the Fourth Circuit observed that all of the medical reports pertaining to Webster's mental state or brain damage unanimously found that he was disabled by 1991, and "evaluations of Webster by various doctors during the critical period that tended to show he was 'generally in good health[ ]' " did not "comment on Webster's health," and indeed, those doctors were not qualified to do so. Id. at 316. The court "recogniz[ed] that the decisions of a neutral plan administrator are entitled to great deference," but said that it was "nevertheless constrained to find on these facts that the [administrator] lacked substantial evidence to justify its denial here," given that the administrator "ignored the unanimous medical evidence, including that of its own expert, disregarded the conclusion of its own appointed investigator, and relied for its determination on factors disallowed by the Plan." Id. at 307. The court noted that, in light of the substantial evidence requirement, "it logically follows that a fiduciary appears to abuse its discretion when, in denying benefits, it ignores unanimous relevant evidence supporting the award of benefits." Id. at 314.
The Fourth Circuit reasoned that it had "required benefits administrators to follow unanimous evidence in other contexts in which [it] employs an abuse of discretion standard as well," such as in " Stawls v. Califano, 596 F.2d 1209 (4th Cir. 1979), a case involving a social security disability benefits claim." Jani , 209 Fed.Appx. at 314. In Stawls ,
the administrator denied the applicant's claim for T & P disability benefits because it found that she was unable to prove that her T & P disability began prior to 1962 and was continuously present thereafter. The administrator ignored the medical opinion of one psychiatrist that the applicant's schizophrenia was indeed continuously disabling, rather than intermittently so, and the medical opinion of another psychiatrist that the disability began prior to 1962. The second psychiatrist, though he had treated the applicant since 1954, had lost his contemporaneous notes. He nevertheless opined in 1976 that the applicant had been disabled prior to 1962. The applicant *729challenged the denial of benefits in court, and this court ultimately remanded the dispute to the benefits administrator, demanding an explanation for "why the uncontradicted evidence of the psychiatrists should not suffice to afford recovery." Thus, even though the second psychiatrist's ex post and undocumented opinion might have been less weighty were there conflicting medical opinions, it remained uncontradicted and could not therefore be ignored.
Jani , 209 Fed.Appx. at 314 (citations omitted).
Here, the Plan abused its discretion in the same manner as the administrators had done in Solomon , Jani , and Stawls . As in Solomon , Jani , and Stawls , the evidence that Vetter was disabled under the Plan after July 23, 2012 was uncontradicted, yet the Plan concluded that she was no longer disabled. The physicians who opined that she did not have a disability only addressed her status in June or July 2012; they did not address the time period of July 23, 2012 until October 1, 2013, given that they provided their opinions before the period began. This is similar to Jani , where the evidence of general good health did not address the root of Webster's disability-his mental condition. And, as in Solomon , the Plan did not explain how it reached its determination that she was no longer disabled, or even acknowledge the evidence of ongoing disability, beyond a brief statement that Vetter "still experienced periodic episodes of insomnia after [July 23, 2012]." See Aug. 12, 2013 Ltr., AR 69; Solomon , 860 F.3d at 261. Nor did it explain its finding that Vetter was not disabled until May 3, 2012, when the evidence showed that she had insomnia and fatigue at least as early as March 2012. AR 37-38, 80, 523.
The evidence the Plan relied on-evidence that Vetter was sleeping normally as of July 23, 2012, when there was later evidence that her insomnia and fatigue persisted and prevented her from performing her job duties-simply is not "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." DuPerry , 632 F.3d at 869 ; Smith , 2017 WL 3116689, at *8. There is not more than a scintilla of evidence that Vetter no longer was disabled after July 23, 2012; rather, all the record contains is evidence that Vetter was still disabled after July 23, 2012. And, the Plan has not identified any evidence at all supporting May 3, 2012 as the onset date. Accordingly, the Plan's decision was not supported by substantial evidence and therefore was not reasonable and must be set aside. See DuPerry , 632 F.3d at 869 ; Laws, 368 F.2d at 642 ; Smith , 2017 WL 3116689, at *8 ; Gonzales , 39 F.Supp.3d at 686. Therefore, I will deny the Plan's motion for summary judgment upholding its decision. See Fed. R. Civ. P. 56(a), (c)(1)(A) ; Baldwin v. City of Greensboro , 714 F.3d 828, 833 (4th Cir. 2013) ; DuPerry , 632 F.3d at 869 ; Smith , 2017 WL 3116689, at *8.
But, I also cannot find as a matter of law that Vetter's disability began on a specific date or continued until her return to work in October 2013, or any other specific date, as the duration and extent of her conditions are unclear on the record before me. Therefore, I also will deny Vetter's motion for summary judgment. See Fed. R. Civ. P. 56(a), (c)(1)(A) ; Baldwin , 714 F.3d at 833.
Conclusion
The parties' cross-motions for summary judgment are denied. While "the Court may award benefits to the claimant rather than remand the case" when it finds that "a plan administrator abuses its discretion," remanding the case to the plan administrator for further proceedings usually is the proper course of action.
*730Solomon v. Bert Bell/Pete Rozelle NFL Player Ret. Plan , No. MJG-14-3570, 2016 WL 852732, at *9 (D. Md. Mar. 4, 2016), aff'd, 860 F.3d 259 (4th Cir. 2017) ; see Gorski v. ITT Long Term Disability Plan for Salaried Employees , 314 Fed.Appx. 540, 548 (4th Cir. 2008) ("[I]t is generally the case that when a plan administrator's decision is overturned, a remand for a new determination is appropriate."). This is because the "administration of benefit and pension plans should be the function of the designated fiduciaries, not the federal courts." Gorski , 314 Fed.Appx. at 548 (4th Cir. 2008) (quoting Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995) ).
Given that the timeframe and amount of benefits is not clear on the record before me, I will remand this case for further proceedings before the Plan Administrator.4 Cf. Gorski , 314 Fed.Appx. at 549 ("Here, a remand to MetLife for a new determination is not necessary because the record reflects that Gorski was clearly entitled to continued benefits .... [T]he only reasonable decision available to MetLife was to reverse its earlier decision discontinuing Gorski's benefits."). Specifically, the Plan Administrator shall determine the date when Vetter's insomnia and fatigue rendered her disabled under the Plan, as well as the date on which that disability ceased to exist, and identify the evidence it relies on in support of its determinations.
ORDER
Accordingly, it is this 5th day of March, 2018, by the United States District Court for the District of Maryland, hereby ORDERED that:
1. Vetter's Motion for Summary Judgment, ECF No. 23, IS DENIED;
2. The Plan's Motion for Summary Judgment, ECF No. 26, IS DENIED
3. The case IS REMANDED to the Plan Administrator; and
4. The Clerk SHALL CLOSE this case.
For each cross-motion, the relevant facts are "viewed in the light most favorable to the non-movant." Lynn v. Monarch Recovery Mgmt., Inc. , No. WDQ-11-2824, 2013 WL 1247815, at *1 n.5 (D. Md. Mar. 25, 2013) (quoting Mellen v. Bunting , 327 F.3d 355, 363 (4th Cir. 2003) ).
The Administrative Record also includes a September 6, 2012 letter from Dr. Paula Corrigan, M.D., M.P.H. & T.M. of the Aviation Medicine Advisory Service, AR 614, which Dr. Sims does not mention in his report. Dr. Corrigan stated that the Aviation Medicine Advisory Service had reviewed Vetter's medical records and, based on those records, "confirm[ed] that Ms. Vetter [was] currently prohibited from exercising the privileges of her Airman's Medical Certificate" and had "appropriately grounded herself while undergoing further evaluation and treatment for her condition." Id.
Insofar as Vetter also argues that the Plan ignored evidence of Lyme disease and "did not include Lyme disease as a medical condition that MES should review," Pl.'s Mem. 20, as I already discussed, a number of the physicians whose reports appear in the Administrative Record, including the MES consultants, noted evidence of Lyme disease.
Vetter also argues that the Plan breached either its fiduciaries duty of loyalty or its fiduciary duty of care by failing to provide her with a full and fair review of her benefits claim. Pl.'s Mem. 22-24. This alleged breach is, at most, an element of Vetter's ERISA claim. See Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland 522-27 (5th ed. 2013) (noting that, while no independent cause of action exists for breach of fiduciary duty, breach of fiduciary duty can be alleged as an element of another cause of action, such as negligence). Because I am remanding the case to the Plan Administrator, I need not reach this argument. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7247175/ | TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
This matter is before the Court on defendant's motion to dismiss plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 11]. The matter has been fully briefed and is ripe for ruling. For the reasons discussed below, the motion to dismiss is denied.
BACKGROUND
Defendant Armacell and plaintiff K-Flex both manufacture types of foam pipe insulation. Plaintiff exclusively manufactures elastomeric foam, which is derived from rubber. Defendant manufactures both elastomeric foam and polyethylene foam, known as PE foam. While both types are used for insulation, elastomeric foam, with its higher cost and higher temperature resistance, is primarily a product in industrial settings. K-Flex worked with a distributor, Sunbelt Inc., in the southeast for several years. Sunbelt began working with Armacell in early 2017, and almost immediately thereafter terminated its business arrangement with K-Flex. K-Flex alleges that termination was due to Armacell's coercion, which forms the basis for the instant complaint. K-Flex has alleged four separate claims against Armacell: violations of Sections 1 and 2 of the Sherman Act, a violation of the Clayton Act, and a violation of North Carolina's Unfair and Deceptive Trade Practices Act. This Court has subject matter jurisdiction on the basis of a federal question over the federal law claims, and exercises supplemental jurisdiction over the remaining state law claim under 28 U.S.C. § 1367.
ANALYSIS
Defendant's motion to dismiss the claims is made under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain , 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir.1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Facial plausibility means that the facts pled "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint must be dismissed if the factual allegations do not nudge the plaintiff's claims "across the line from conceivable to plausible." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.
*734However, the Court need not accept a complaint's "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009). Although complete and detailed factual allegations are not required, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." 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 ). Plaintiff has four claims based in the same conduct by the defendant.
I. Sherman Act. § 1
A violation of § 1 of the Sherman Act occurs when there is an "agreement in the form of a contract, combination or conspiracy that imposes an unreasonable restraint on trade." Oksanen v. Page Mem'l Hosp. , 945 F.2d 696, 702 (4th Cir. 1991) : When the restraint is vertical, that is, when the restraint is between two parties at different distribution levels, more is required for the restraint to be unreasonable than if the restraint is at the same level. Vertical restraints are often economically useful, so courts generally apply the "rule of reason" analysis to determine whether vertical restraints are permissible. See Cont'l Airlines, Inc. v. United Airlines, Inc. , 277 F.3d 499, 509 (4th Cir. 2002). To sustain a claim under the rule of reason, a plaintiff must allege that defendant's actions unreasonably restrained trade in a plausible market. Id. Plaintiff must also allege a conspiracy or other agreement that would operate in restraint of trade. AM. Needle, Inc. v. Nat'l Football League , 560 U.S. 183, 190, 130 S.Ct. 2201, 176 L.Ed.2d 947 (2010). Parallel conduct is insufficient. A plan is required.
Therefore, the first question is whether plaintiff has alleged facts regarding a particular market-both a product market and a geographic market. Second, the plaintiff must argue there is a contract or conspiracy. Here, such an allegation must include facts that, taken in the light most favorable to the plaintiff, would show that Armacell actually made agreements in order to restrain trade. K-Flex has pled enough facts to sustain a claim upon which relief can be granted.
First, K-Flex has alleged both a product market and a geographic market that would support its claims. Determining what product market is appropriate requires a "plenary" examination, covering "the facts peculiar to the business," among other concerns. Cont'l Airlines, Inc. v. United Airlines, Inc. , 277 F.3d 499, 509 (4th Cir. 2002) (internal quotation marks omitted). Products that have "reasonable interchangeability for the purposes for which they are produced" belong in the same market; therefore, it follows that products that are not interchangeable are not in the same market. United States v. E. I. du Pont de Nemours & Co. , 351 U.S. 377, 404, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). At this stage, K-Flex's market allegations are sufficient to go forward. K-Flex has pled facts to show that there is a separate market for elastomeric foam insulation, as opposed to PE foam or other kinds of insulation. Elastomeric foam is made from different material, has different characteristics and price points, and is primarily used in different settings. The fact that K-Flex does not manufacture PE foam also bolsters its claim.
Second, K-Flex's allegations of a geographic market are plausible. The appropriate geographic market is "the area within which the defendant's customers *735...can practicably turn to alternative supplies if the defendant were to raise its prices." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 441 (4th Cir. 2011). The market can be the entire nation. Brown Shoe Co. v. United States , 370 U.S. 294, 377, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). In support of this domestic market definition, K-Flex has alleged facts to show that because this insulation is so expensive to transport, it would only be made in the United States for United States consumption. Additionally, K-Flex has argued that the coercion taking place in the southeast will have effects throughout the domestic market.
K-Flex can also sustain a claim that there was an agreement. While a conclusory allegation of conspiracy is not enough, K-Flex has alleged more than that. Plaintiff has claimed that Armacell is working directly with Sunbelt and other distributors to exert control over the marketplace, to the detriment of the free flow of trade. Plaintiff has claimed that its own distribution agreement was terminated due to Armacell's pressure. The allegations that this restraint on competition will harm competition and lead to increased prices state a claim upon which relief could be granted.
II. Sherman Act, § 2
In order to violate Section 2 of the Sherman Act, a defendant must "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce amount the several States." 15 U.S.C. § 2. Therefore, either an actual monopoly or an attempt at monopoly would be caught by this section.
A. Monopoly
In an actual monopoly claim, there are two required factors: the possession of monopoly power, and the willful acquisition or maintenance of that power. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 441 (4th Cir. 2011). The fortunate windfalls of good business are insufficient. Actual monopoly power means predominance in a particular geographic and product market. The Fourth Circuit has found predominance when 70% of the market was controlled by one player, White Bag Co. v. Int'l Paper Co. , 579 F.2d 1384, 1387 (4th Cir. 1974), and other circuits have gone lower. See Domed Stadium Hotel, Inc., v. Holiday Inns, Inc. , 732 F.2d 480, 489 (5th Cir. 1984) ("A defendant must have a market share of at least 50 percent before he can be guilty of monopolization.") As was discussed above, K-Flex has successfully alleged a particular product-elastomeric foam insulation-in a particular area-the United States. K-Flex has also alleged that Armacell has an outsize presence in that market, as it makes 70% of all elastomeric foam insulation. These facts are enough to sustain a claim of actual monopoly power.
Possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct. This willful acquisition or maintenance shifts the activity from being lucky to being culpable. Anticompetitive conduct is conduct designed to "foreclose competition, gain a competitive advantage, or destroy a competitor." Eastman Kodak Co. v. Image Technical Services, Inc. , 504 U.S. 451, 482-83, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). That is to say, a de facto existence of a disproportionate market share is not itself alone enough to sustain a monopoly claim. Some sort of "predatory" behavior is necessary. M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc. , 981 F.2d 160, 166 (4th Cir. 1992).
Here, the anti-competitive conduct at issue is tying and exclusive dealing.
*736Plaintiff's tying allegations are sufficient to state a claim on this element. A tying arrangement is "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product." It's My Party, Inc. v. Live Nation, Inc. , 811 F.3d 676, 685 (4th Cir. 2016). Tying has four elements, which are simply a separation of the above idea into components: a tying and a tied product, actual coercion by seller to buyer, the ability to coerce, based on economic power, anticompetitive effects, and some connection to interstate commerce. See Georgia-Pac. Consumer Prod. LP v. Von Drehle Corp. , 645 F.Supp.2d 532, 540 (E.D.N.C. 2009). Tying, when coercive, as opposed to efficient, is anticompetitive on its face. See It's My Party, Inc. , 811 F.3d at 684. A single tying arrangement merits prohibition under the law when it has substantial effects in commerce. Advance Bus. Sys. & Supply Co. v. SCM Corp. , 415 F.2d 55, 63 (4th Cir. 1969).
K-Flex has alleged that Armacell, which has 90% of the market of P.E. foam, only agreed to sell its P.E. foam to Sunbelt if Sunbelt also agreed to sell its elastomeric foam, thus tying the two types of insulation together. K-Flex alleged that this was the result of coercive pressure by Armacell. And K-Flex has alleged that this arrangement has substantial economic effects, because Sunbelt and K-Flex had previously been doing 7 million dollars' worth of business. These facts, taken in the light most beneficial to the plaintiff, support a claim for tying such that a dismissal is not warranted. K-Flex's allegation that Armacell has used its market power to force distributors to carry its products is plausible.
An exclusive dealing arrangement, while not per se illegal, will violate antitrust laws if it is "likely to foreclose the entry into a substantial part of the market of products that compete with the products benefitting from" the arrangement. Chuck's Feed and Seed Co. v. Ralston Purina Co. , 810 F.2d 1289 (4th Cir. 1987). At this stage in the pleadings, the substantiality of the market does not need to be pled with specificity. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 452 n. 12 (4th Cir. 2011).
Here, K-Flex has alleged facts that sustain a claim of exclusive dealing such that its claim should not be dismissed. It has alleged that Armacell has an exclusive-dealing arrangement with the distributor, Sunbelt, that forecloses any opportunity for participation by any other insulation manufacturer. Because of Sunbelt's status as a high-volume distributor in the southeast, K-Flex has alleged enough facts to sustain claim.
B. Attempted Monopoly
An attempted monopoly is distinct from an actual monopoly claim only in the status of the market control in question. In its attempted monopolization claim, K-Flex alleges the same facts that sustain its actual monopolization claim. Therefore, a detailed exposition of them is not needed. Because K-Flex's claim of an actual monopoly is not an appropriate candidate for dismissal, neither is its claim for attempted monopoly.
III. Clayton Act
The Clayton Act provides a remedy for exclusive-dealing claims. 15 U.S.C. § 14. There are three requisite elements: an arrangement, in a line of commerce and area of effective competition, that forecloses competition in a substantial share of the relevant market. Tampa Elec. Co. v. Nashville Coal Co. , 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961).
Plaintiff has stated a Clayton Act claim for substantially the same reasons as it has stated Sherman Act claims. First, *737K-Flex has put forward enough facts to show there is a particular line of commerce: elastomeric foam plumbing insulation. The commerce is taking place in a particular area: the geographic U.S. Plaintiff has alleged a particular arrangement between Armacell and Sunbelt in order to exclusively deal Armacell's elastomeric foam. Finally, this exclusive dealing arrangement forecloses competition in a substantial share, because Armacell makes 70% of the country's elastomeric foam, K-Flex is one of its only competitors, and the distributor that is the basis of the arrangement does millions of dollars in business. These facts, taken as true, suffice to sustain a claim for relief under the Clayton Act.
IV. Unfair and Deceptive Trade Practices Act
Likewise, plaintiff K-Flex has alleged facts that suffice to state a claim upon which relief could be granted under the North Carolina Unfair and Deceptive Trade Practices Act. N.C.G.S.A. § 75-1.1.
The statute is coextensive with the Sherman Act, as "proof of conduct violative of the Sherman Act is proof sufficient to establish a violation of the North Carolina Unfair Trade Practices Act." ITCO Corp. v. Michelin Tire Corp., Commercial Div. , 722 F.2d 42, 48 (4th Cir. 1983). Because K-Flex has alleged facts sufficient to sustain a claim under both Section 1 and Section 2 of the Sherman Act, it has also stated a claim under the Act, and further inquiry into the factual allegations discussed earlier is unnecessary.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss [DE 11] is DENIED.
SO ORDERED, on this 24 day of October, 2017. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3211550/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENNIE MANN, DOCKET NUMBER
Appellant, SF-0752-15-0529-I-1
v.
DEPARTMENT OF VETERANS DATE: June 9, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward Hu, Esquire, Riverside, California, for the appellant.
Maureen Ney, Esquire, Los Angeles, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 Effective June 13, 2014, the agency removed the appellant from his Motor
Vehicle Operator position at the agency’s Riverside National Cemetery for
allegedly violating the terms of a Last Chance Agreement (LCA) executed
on November 14, 2011. Initial Appeal File (IAF), Tab 4 at 12, 14. Specifically,
in March and April 2014, the appellant failed to properly park a Government
vehicle and failed to follow the agency’s gravesite verification procedures. Id.
at 14. The appellant’s removal, which was held in abeyance by the LCA, was
based on the original charge of conduct unbecoming a Federal employee. Id.
at 15.
¶3 The appellant filed an appeal of his removal and requested a hearing. IAF,
Tab 1. In an acknowledgment order, the administrative judge informed the
appellant that the Board may not have jurisdiction over his appeal because he
signed an LCA waiving future appeal rights in the event he was removed for
violating the agreement. IAF, Tab 2 at 4-5. The administrative judge apprised
the appellant of his burden of making a nonfrivolous allegation of jurisdiction and
3
ordered the appellant to file evidence and argument on the jurisdictional issue.
IAF, Tab 2 at 4-5, Tab 5 at 4. The appellant responded. IAF, Tabs 6, 10.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial
Decision (ID) at 1, 9. He found that the appellant failed to make a nonfrivolous
allegation that he complied with the LCA. ID at 7-8. He further found that the
appellant’s waiver of appeal rights is enforceable. ID at 8. The appellant has
filed a petition for review. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. 2 5 C.F.R. § 1201.56(b)(2)(i)(A). If an appellant
makes a nonfrivolous allegation 3 of Board jurisdiction over an appeal, he is
entitled to a hearing on the jurisdictional question. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
¶6 The Board lacks jurisdiction over an action taken pursuant to an LCA in
which an appellant waives his right to appeal to the Board. Rhett v. U.S. Postal
Service, 113 M.S.P.R. 178, ¶ 13 (2010). To establish that a waiver of appeal
rights in an LCA should not be enforced, an appellant must show one of the
following: (1) he complied with the LCA; (2) the agency materially breached the
LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or
(4) the LCA resulted from fraud or mutual mistake. Id. If an appellant raises a
nonfrivolous factual issue of compliance with a settlement agreement, the Board
must resolve that issue before addressing the scope of and applicability of a
waiver of appeal rights in the settlement agreement. Id.
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
¶7 As the administrative judge properly found, the appellant has failed to
nonfrivolously allege that he complied with the LCA. ID at 7-8. In his petition
for review, the appellant argues that he did not breach the LCA because his
actions were not “intentional or willful” and “did not rise to the level of
misconduct by a federal employee.” PFR File, Tab 1 at 6. We do not agree.
Paragraph 2b of the LCA states the following:
The Employee agrees to demonstrate his reliability, dependability, and
trustworthiness for Federal employment by maintaining acceptable
standards of conduct and performance. The Employee understands that for
the duration of this Agreement, one instance of noncompliance with this
Agreement, including, but not limited to, disrespectful conduct; unexcused
tardiness; absence without leave; failure to comply with instructions; and/or
any other validated unethical misconduct, will be cause for immediate
removal.
IAF, Tab 4 at 65. The appellant does not dispute the facts surrounding his
alleged breach of the LCA. PFR File, Tab 1 at 7; IAF, Tab 1 at 2, Tab 4 at 19,
61, Tab 6 at 11. We find that, by failing to properly park a Government vehicle
and follow gravesite verification procedures, the appellant did not maintain
acceptable standards of conduct and performance as a Motor Vehicle Operator.
IAF, Tab 4 at 14, 56. We also do not interpret the LCA as creating an
“intentional or willful” standard of misconduct. See Link v. Department of the
Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995) (finding that an LCA is subject to
contract law, and therefore breach can be established by proving material
noncompliance, regardless of motive).
¶8 The appellant next argues that the LCA is invalid because it was the result
of coercion and duress. PFR File, Tab 1 at 4-5. Specifically, he alleges that he
accepted the LCA because he had no other alternatives at the time. Id. at 5. He
further explains that his personal circumstances after his removal caused him to
be “financially and emotionally in distress.” Id. He also contends that he relied
on his union representative, who never fully explained to him the terms of the
LCA and the gravity of the agreement. Id. The administrative judge found that
5
the appellant freely and voluntarily entered into the LCA, and found no mutual
mistake in the execution of the LCA. ID at 8. He further found that the appellant
failed to make a nonfrivolous allegation that he entered into the LCA while
emotionally distressed. Id.
¶9 To establish that a settlement agreement was fraudulent as a result of
coercion or duress, a party must prove that he involuntarily accepted the other
party’s terms, that circumstances permitted no alternatives, and that such
circumstances were the result of the other party’s coercive acts. Bahrke v.
U.S. Postal Service, 98 M.S.P.R. 513, ¶ 12 (2005). The fact that an appellant
must choose between two unpleasant alternatives, such as signing the LCA or
facing immediate removal, does not render his choice involuntary. Id. Here, the
appellant’s explanation of difficult personal circumstances after his removal is
not relevant to whether he voluntarily entered into the LCA. Further, as to his
claim that his union representative did not clearly explain the ramifications of the
LCA to him, the appellant is responsible for the errors of his chosen
representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
Thus, we find that the appellant has failed to make a nonfrivolous allegation that
the LCA is invalid.
¶10 Finally, we must consider the scope and applicability of the waiver of
appeal rights in the LCA. See Rhett, 113 M.S.P.R. 178, ¶ 17. The administrative
judge properly found that the language of the LCA constitutes a clear,
comprehensive, unequivocal, and decisive waiver of Board appeal rights. ID at 8;
IAF, Tab 4 at 65-67; see Rhett, 113 M.S.P.R. 178, ¶ 17. The appellant admits that
he agreed to waive his future appeal rights in the LCA, but alleges that the agency
agreed to amend the LCA in December 2014 to allow him to appeal his removal
to the Board. PFR File, Tab 1 at 5-6. To support his argument, the appellant
resubmits a letter dated July 17, 2015, describing interactions among the office of
U.S. Representative Mark Takano, the agency, and his union representative on
behalf of the appellant. Id. at 11-12; IAF, Tab 10 at 9-10. The letter states that,
6
in December 2014, the new Director of the Riverside National Cemetery and the
union representative met at Representative Takano’s office and agreed to “look
into alternative dispute mechanisms before going to the Merit Systems Protection
Board.” PFR File, Tab 1 at 11. Even assuming that the agency agreed to
consider “alternative dispute mechanisms,” that fact does not prove that the LCA
was amended to eliminate the waiver provision. Thus, we find that the
appellant’s waiver of appeal rights is enforceable.
¶11 Accordingly, we agree with the administrative judge’s conclusion that the
appellant failed to make a nonfrivolous allegation of jurisdiction. ID at 9. We
also agree with the administrative judge’s finding that the Board lacks
independent jurisdiction over the appellant’s claim that he was subjected to bias
and unfair treatment by the agency. Id.; see Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980) (finding that a prohibited personnel practice under
5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,
681 F.2d 867 (D.C. Cir. 1982).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
7
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C. | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435059/ | No question is raised as to pleadings and the case was tried on a stipulation of facts whereby it is shown that the lots in question, being the Montrose Hotel property in Cedar Rapids, Iowa, were in 1931 assessed for taxation by the proper officials at $304,700 on which valuation taxes were duly levied for the years 1931 and 1932. These taxes for both years were paid by plaintiff in the usual manner, voluntarily and without *Page 207
protest. Tax receipts in regular form were issued and the taxes were shown fully satisfied on the records. Plaintiff made no objection to the 1931 assessment, either to the assessor or the local board of review. On July 16, 1933, plaintiff filed in the office of the State Board of Assessment and Review (hereinafter called "State Board") a petition, asking for correction and reduction of said 1931 assessment upon the ground that the assessment was excessive and discriminatory. A public hearing was had, evidence heard and investigation made, resulting in an order made by said State Board on December 28, 1933, reducing said assessment to $282,000 "on account correct percentage of depreciation was not allowed," and directing the county auditor of Linn county to correct assessment and tax records accordingly, of which order said auditor and treasurer of said county were duly informed, but upon demand failed to comply therewith. None of the defendants had knowledge or notice of said hearing and none of them were present, and had no legal opportunity to be heard.
Plaintiff petitioned the board of supervisors of said county to order the county auditor and treasurer to take the necessary steps to refund to plaintiff the sum of $1624.19, being the amount of the reduction in the amount of the tax computed on the reduced valuation. The board of supervisors refused, and said they would not grant the petition unless commanded so to do by writ of mandamus. The county treasurer has at all times had on hand an amount of money sufficient to pay said sum.
The defendants by answer alleged (a) that the proceedings relating to the taxation of the property involved were fully closed, taxes paid, receipts issued and the county auditor had no authority to correct the assessment; (b) that the taxes were not erroneously or illegally exacted and paid, but were legal when paid, (c) and were voluntarily paid without protest prior to the order of the State Board reducing said assessment; (d) that plaintiff made no objection to the assessment to the assessor or before the local board of review and hence waived its right if any it had for refund of any part of said taxes; (e) a plea of estoppel based on failure to object and voluntary payment with full knowledge of the facts that the millage levy fixed to raise the necessary amount of taxes for the assessment period was based on said assessed valuation and the payments of taxes were received by the defendants relying on the levy so based upon *Page 208
such assessed valuation; (f) that the State Board is a necessary party.
The trial court found for the plaintiff and entered judgment and decree accordingly and defendants have appealed. Plaintiff bases its right to recover on the fact that there was an excessive assessment as found by the State Board, and that the taxes paid on the excess valuation were "erroneously or illegally exacted or paid" as that term is used in section 7235 of the 1935 Code.
This refund statute (section 7235, Code 1935) first appeared in the Code of 1860, section 762, and was published under the headlines, "Sale under improper levy — refund" and reads:
"In all cases where any person shall pay any tax, interest or costs, or any portion thereof that shall thereafter be found to be erroneous or illegal, whether the same be owing to erroneous or improper assessment, to the improper or irregular levying of the tax, to clerical or other errors or irregularities, the board of supervisors shall direct the treasurer to refund the same to the taxpayer — and in case any real property subject to taxation shall be sold for the payment of such erroneous tax, interest or costs as above mentioned, the error or irregularity in the tax may at any time be corrected as above provided, and shall not affect the validity of the sale or the right or title conveyed by the treasurer's deed; but the title so conveyed shall be deemed legal and valid provided that the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold, was levied, and that the taxes were not paid before the sale, and that the property had not been redeemed from sale."
This section is included in a general act, entitled "An Act in relation to revenue."
A careful study of this section in its original setting will, we think, lead one to the inevitable conclusion that the tax here mentioned which the board of supervisors is directed to order refunded to the taxpayer is a tax which, because of some error which might occur in any of the various ways mentioned in the section, was rendered invalid and uncollectible, and the word "erroneous" as used in this original section is used to include any and all the various and sundry ways such error, whereby the tax was rendered invalid, might occur. This is evidenced by *Page 209
the expression "such erroneous tax * * * above mentioned". "Above mentioned" includes all the various expressions which went before, including the word "illegal" and plainly indicates the legislature had in mind the same definition of this term contained in the pronouncement of this court in the case of Dickey v. County of Polk, 58 Iowa 287, 12 N.W. 290, and refers to a tax which "through errors or illegal proceedings" (no matter how they occurred or in what part of the proceedings) the taxpayer is not legally bound to pay. This section is not referring to the matter of equalization of the taxable values placed on property by the proper assessing officer. The legislature here had in mind some act or omission which occurred in some of the proceedings somewhere along the line in the assessment, in the levy, in the sale, whether it be clerical or otherwise, which invalidated the tax, and by reason thereof there rested on the taxpayer no legal obligation to pay, and which rendered the tax legally uncollectible and would invalidate the seizure or sale of property for the collection of the same. This likewise included an assessment for which there was an absolute want of authority to make.
The revised section, 870, Code of 1873, reads as follows:
"The board of supervisors shall direct the treasurer to refund to the taxpayer, any tax, or any portion of a tax, found to have been erroneously or illegally exacted or paid, with all interest and costs actually paid thereon, and in case any real property subject to taxation shall be sold for the payment of such erroneous tax, interest or costs as above mentioned, the error or irregularity in the tax may at any time be corrected as above provided, and shall not affect the validity of the sale, or the right or title conveyed by the treasurer's deed, if the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold was levied, and the taxes were not paid before the sale, and the property had not been redeemed from sale."
It remained in this form until the 1924 Code, when it was divided into sections 7235 and 7236 as it now remains in the 1935 Code.
It is the contention of counsel for appellee that this original section of the statute was never knowingly amended or changed by the general assembly and that its alteration in its present form was due to a condensation by the code revisioners of 1873 who *Page 210
never called the attention of the legislature to the change made, and counsel argue that the meaning of section 7235 as revised in its present form, in so far as it is ambiguous, depends upon the meaning of the original statute, and contends that section 7235 as it now stands must be interpreted as if it contained the original wording, so long as that interpretation is consistent with the condensed section; and they cite the rule announced by this court in Eastwood v. Crane, 125 Iowa 707, 101 N.W. 481, to the effect that a change in the phraseology of a statute when compiled into a code does not change the meaning of the law unless it clearly appears that the legislature intended a change in meaning. Minneapolis St. L.R. Co. v. Cedar Rapids, G.
N.W.R. Co., 114 Iowa 502, 87 N.W. 410. They further cite the rule of construction announced in Dennis v. Independent School District, 166 Iowa 744, 750, 148 N.W. 1007, 1009, "that changes made by a revision of the statutes will not be construed as altering the law, unless it is clear that such was the intention, and, if the revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining the intent of the legislature."
We have no fault to find with these pronouncements of the court, cited and relied upon by counsel for appellee, and we agree with counsel that the intention of the legislature as evidenced by the original act must under the circumstances mentioned be held to have been carried into the new section as revised and as is now contained in the present section 7235 of the Code, which is in the same identical language as section 870 of the Revision of 1873. But we are unable to agree with counsel for appellee in their interpretation of the intent of the legislature as found in the original statute, and in the interpretation counsel seeks to place on the words "erroneous assessment". The words "erroneous or illegal" as used in the original section had reference to an error invalidating the tax and rendering it legally uncollectible and if collected it became a tax "erroneously or illegally exacted or paid", which is the language or phraseology embodied in the revised section.
It must be kept in mind, we think, that laws relating to taxation are primarily enacted for the purpose of raising revenue. The beginning of the process is the listing of the property with the assessor and the affixing of values to all property by the assessor. This the assessor is required to do. The statute *Page 211
says: "He shall personally affix values to all property assessed by him." Section 7106, Code 1935. And we think it has never been held by this or any other court that an error in judgment of the assessor, whereby in the judgment of some other taxing administrative body an inequality, or over or under valuation is found, rendered the levy or collection of the tax invalid. Neither has this court, in the absence of mistake or fraud, ever allowed a taxpayer to recover taxes voluntarily paid, based on such over or under valuation. To do so would render the whole system of taxation unstable. In matters of this kind the taxpayer has ever been required to seek relief before the administrative body to have the correction made before payment of the taxes. Macklot v. City of Davenport, 17 Iowa 379. In this case the defendant city assessed the plaintiff on $10,000 moneys and credits, whereas his debts, which should have been deducted, exceeded that amount. The court said:
"This case is one, therefore, of unjust over assessment and as to the extent of such excess, clearly erroneous."
But even so, it was held his remedy was before the local board of review for correction of the assessment, and that suit in equity by injunction would not lie, the court pointing out the distinction between this and a case where there is no jurisdiction or authority to levy the tax. In the latter injunction would lie to enjoin the collection of the tax because void.
The law as it existed in its original form, section 762, Code 1860, was considered by Wright, J., in Lauman v. County of Des Moines, 29 Iowa 310, a case involving bank stock held not subject to levy. The court said:
"If this tax was illegal (and this was thereafter so found and settled) then it was the duty of the board to refund the same." (Italics ours.)
The next case, Isbell v. Crawford County, 40 Iowa 102, followed the same reasoning. In that case, the tax was held invalid, because no proper levy, and the tax collected was held illegal
and recovery was permitted.
The first case where this court undertook an interpretation or definition of the term "erroneously or illegally exacted or paid" as used in the refund statute, section 870, Code 1873, is Dickey v. County of Polk, 58 Iowa 287, 289, 12 N.W. 290, 291. *Page 212
In that case the board of supervisors of the county, acting as a county board of equalization, raised the assessment upon the property of an entire township by adding ten per centum to the valuation of the property of each taxpayer, which the court held it was without authority of law so to do, and said:
"The action of the supervisors being illegal, conferred noauthority upon the treasurer to collect the increased amount or sums added to the taxes by such action." (Italics ours.)
In commenting on section 870, Code, 1873, the court said:
"It cannot be doubted that an action under this provision will lie in a case wherein the supervisors are required to direct the treasurer to refund to the taxpayer taxes paid by him. This duty is imposed upon the supervisors where the taxes have been, in the language of the statute, `erroneously or illegally exacted or paid.' This expression is in the most simple language and to our minds its meaning is obvious. It is this: whenever, through errors or illegal proceedings, the taxpayer is not legally bound to pay the taxes, their exaction by the treasurer or payment by the taxpayer, is erroneous or illegal. In other words, if the law does not require the payment of the taxes for any reasons based upon irregularities connected with their assessment or levy, their exaction by the treasurer is illegal. It follows that if the taxpayer, by proper proceedings, could have resisted the collection of the taxes and caused them to have been set aside, their collection by the treasurer is erroneous and illegal.
"If a taxpayer by failing to pursue a remedy for the correction of irregularities in the assessment and levy of taxes, waives or loses his right to resist the collection of the taxes, the exaction of payment by the treasurer is not illegal or erroneous. The irregularities having been waived, the assessment stands upon the tax books to be lawfully exacted and their collection enforced by the treasurer. In that case it could not be found that they were `erroneously or illegally exacted or paid.' Thus an assessment which, for certain reasons, is held to beerroneous, must be corrected upon application to the board of equalization; if that remedy is not pursued the tax may be collected. Macklot v. City of Davenport, 17 Iowa 379. In case of erroneous assessment which is to be corrected by the board of equalization, no action will lie. * * * *Page 213
"The obvious purpose of Code, section 870, is to give a remedy by action to recover for taxes paid which the taxpayer could nothave been compelled to pay. * * *
"It is sufficient for us to know that the tax in question, as to the amount arising upon the increased assessment, is unlawful;
that its collection could not have been lawfully enforced against plaintiff; that it was therefore `erroneously and illegally exacted and paid;' and that in such cases the law provides for an action by the taxpayer to recover the amount he has been unlawfully required to pay. Code, section 870." (Italics ours.)
We next considered this refund section in Harris v. Fremont County, 63 Iowa 639, 19 N.W. 826. Under the facts in that case as the court construed them, there was involved what was termed an "erroneous" or "over-assessment", and the court said:
"The assessor did not lack authority to make the assessment, nor did he act in the matter beyond his jurisdiction. * * * In case of an erroneous assessment the statute provides an exclusive remedy by proceedings before the board of equalization from which an appeal may be taken. * * * The plaintiff, to support his action relies on Code section 870. * * * This court has held that, under this provision an action will lie to recover taxes paid, when there was want of authority to levy them or make the assessment. Dickey v. The County of Polk, 58 Iowa 287, 12 N.W. 290. The section is not applicable to the case under consideration, which involves an erroneous assessment made in theexercise of lawful authority. As the tax appeared regular upon the assessment roll and tax books, it was not `erroneously or illegally exacted or paid'." (Italics ours.)
In the case of Leonard v. Madison County, 64 Iowa 418, 20 N.W. 472, a law action against the county, an assessment on shares of stock in a national bank was involved, plaintiff being at the time indebted for more than the value of the stock, but did not apprise the assessor, and waited until about two years after he had paid his taxes to begin his action for a refund. The court held there was no previous error or illegality, and hence recovery was denied, saying:
"If errors in the amount of assessments could be correctedafter the payment of taxes by action to recover the taxes paid, *Page 214
there would be no limit to the litigation that would arise." (Italics ours.)
This refund statute was again considered by this court in the case of Griswold L. C. Co. v. County of Calhoun, 198 Iowa 1240, 1244, 201 N.W. 11, 12. In that case Justice Stevens, after reviewing the various cases involving the statutory provision now found in section 7235 of the Code, said:
"The real nub of the controversy is the right of appellants, under the facts admitted by the demurrer, to relief under section 1417. The question, therefore, is: What is meant by taxes found to have been erroneously or illegally exacted or paid, within the terms of this statute? Was the remedy of appellants, of appearing before the board of review with their grievances, and, upon failure to obtain relief, of appealing to the district court, exclusive of all others, or may they maintain the present action, notwithstanding that the irregularity complained of could have been remedied by that tribunal? The word `erroneously' has no doubt been somewhat loosely used by this court, particularly in some of its early decisions."
He then reviews the decisions and says:
"It will thus be seen that the tax involved in each of the above cases was either assessed and levied without authority, or upon property that was not taxable, or under a statute subsequently declared to be void, or by officers having no authority whatever to do the act complained of."
He then quotes from Dickey v. Polk County, supra, as follows:
"`If a taxpayer, by failing to pursue a remedy for the correction of irregularities in the assessment and levy of taxes, waives or loses his right to resist the collection of the taxes, the exaction of payment by the treasurer is not illegal or erroneous. The irregularities having been waived, the assessment stands upon the tax books to be lawfully exacted, and their collection enforced by the treasurer. In that case, it could not be found that they were `erroneously or illegally exacted or paid'. Thus an assessment which, for certain reasons, is held to be erroneous, must be corrected upon application to the board of equalization; if that remedy is not pursued, the tax may be collected. Macklot *Page 215
v. City of Davenport, 17 Iowa 379. In case of erroneous assessment which is to be corrected by the board of equalization, no action will lie. But when the error or illegality which invalidates a tax is found in the action of such board itself, or in the want of authority to levy the tax or to make the assessment, whereby the tax is not a lawful charge against the taxpayer, his remedy is not confined to proceedings before the board of equalization. * * *'
"We further said, in Van Wagenen v. Supervisors of Lyon County,74 Iowa 716, 39 N.W. 105, that:
"`If a person pays taxes without availing himself of the remedyprovided by law, it cannot be regarded as an illegal exaction,provided the power and jurisdiction existed to make theassessment and levy.'" (Italics ours.)
It will thus be seen that our prior holdings relate almost entirely to an absolutely void tax. Prior to the enactment of this refund statute, a taxpayer had no remedy by which he could recover a refund of even an absolutely void tax which had been voluntarily paid. If he discovered the matter which rendered the tax void and hence uncollectible before payment of the tax, equity would enjoin its collection. Woodbine Savings Bank v. Tyler, 181 Iowa 1389, 162 N.W. 590. Since the passage of the refund statute an absolutely void tax may be recovered even after payment of the tax, whether voluntarily or involuntarily paid. Slimmer v. Chickasaw County, 140 Iowa 448, 118 N.W. 779, 17 Ann. Cas. 1028.
But there is still that other class of taxes included in the term "erroneously or illegally exacted or paid" as used in the refund statute to which general reference has already been made. And that, in the opinion of the writer of this opinion, was the particular class the legislature had in mind, namely, a tax based on an assessment and levy which, had they been properly made, would have been valid, but because of some act or omission to act, some clerical error or irregularity in some of the proceedings, was rendered invalid and uncollectible. In such case, the action by mandamus under section 7235 is the exclusive remedy. Steele v. Madison County, 198 Iowa 902, 200 N.W. 330. This case involved an excessive assessment of national bank stock by subjecting it to a 155-mill consolidated levy instead of the five-mill rate applied to moneys and credits, and the taxes were paid under *Page 216
protest, and in the first instance complaint was made to the board of review. Des Moines Nat. Bank v. Fairweather, 191 Iowa 1240, 181 N.W. 459, 184 N.W. 313.
This was the very mischief to be remedied by the enactment of the refund statute. The legislature knew there was an adequate remedy already on the statute books whereby over assessment or wrongful classification could be corrected by way of complaint to the board of review and appeal to the court. The lawmakers knew this court had consistently held that the remedy thus provided was exclusive. There is nothing in section 7235 indicative that they meant to change or alter this rule laid down by the court. If this section (7235) was inapplicable when enacted, what has taken place to make it applicable now?
Counsel for appellee point out that since the State Board is now clothed with power to correct assessments, and since the only limitation as to time is the five-year limitation found in the act, and since both statutes, sections 7235 and 6943-c27, Code, 1935, relate to the matter of taxation, they are in pari materia and should be construed together, and by implication, following well-recognized rules of statutory construction and the wording of the new statute, we should now hold that the state board may correct an assessment by lowering the assessed valuation at any time within five years from date of the levy, and notwithstanding the taxes have been voluntarily paid, the excess amount due to the over-valuation is recoverable under this refund statute. If appellee's theory is sound, it would be equally so if the limitation were ten or twenty years instead of five. Let us suppose the five-year limitation had been omitted. The state Board, if the law were still valid, would still have the same power now possessed. Would counsel contend that plaintiff had a right of action notwithstanding the fact that no complaint was made or filed before either the local board of review or state Board until more than two years after the assessment, and in the meantime plaintiff, with full knowledge of all the facts, had paid the taxes voluntarily and obtained a receipt and its property stood discharged of the tax lien?
In the case of First National Bank v. Hayes, 186 Iowa 892, 171 N.W. 715, and First National Bank v. Anderson, 196 Iowa 587, 192 N.W. 6, the court had under consideration statutory provisions relating to the matter of the auditor correcting errors in the assessment or tax list and assessing omitted property. The *Page 217
statute contained no limitation clause, and the court held that "the authority of the auditor to correct the tax list is not expressly or impliedly limited to the time in which he is required to deliver the same to the treasurer but continues until the tax has been paid or otherwise legally discharged." (Italics ours.) First National Bank v. Anderson, 196 Iowa 587, 594, 192 N.W. 6, 10.
This court has repeatedly held that the tax based on an excessive valuation is not "erroneously or illegally exacted or paid" where the taxpayer has failed to make use of the administrative body in having the correction made at the proper time. His failure to take advantage of the means provided by the statute for correcting an erroneous assessment of this character amounts to a waiver. So long as the taxes remain unpaid and within the five-year period of limitation on proper application, the assessment may be corrected by the state board of assessment and review, but this remedy must be resorted to (in the case of an otherwise valid but over or excessive assessment) before voluntary payment of the tax. The adding of the five-year period of limitation added nothing to the power or authority of the state board to make the correction in the assessment. Plaintiff's proper procedure under the facts in this case, as we conceive the law to be, would be first to make its complaint either to the local board of review or the state board. Failing to obtain relief in this manner, the statute provides for an appeal to the district court. In the meantime, if the taxes based upon the assessment of which complaint is made become due and threatened with interest and penalties, it could do one of two things: tender an amount sufficient to cover the taxes due on a valuation finally fixed upon as correct by the court, or pay the entire taxes under protest, and after, if and when it is found by the court that the assessment was erroneous as being excessive, bring its action by mandamus to recover the excess tax under section 7235 of the Code. This is the procedure that was followed in the case of Des Moines National Bank v. Fairweather, 191 Iowa 1240, 181 N.W. 459, 184 N.W. 313, referred to in Steele v. Madison County, 198 Iowa 902, 200 N.W. 330, where an erroneous — in the sense that it was excessive — assessment or levy was involved.
Under appellee's theory, if the limitation in the statute were ten years instead of five, any taxpayer anywhere in the state of Iowa could voluntarily acquiesce in the assessment and levy of *Page 218
the tax, voluntarily pay the same, obtain his receipt and have his tax lien discharged, and then wait any number of years, just so it was within the statute of limitations, before applying to the administrative board for a correction of an error as to the valuation only, of which he had full knowledge at all times before and after voluntarily paying the tax, and if at such remote date he obtained an order changing the assessed valuation, as in the present case, he could bring his action to recover the same as a tax "erroneously or illegally exacted or paid". Such a rule of construction would render the basis of taxation as unstable as the shifting sands or the tides of the ocean. If the law-making body had this in mind when it enacted section 6943-c27, it will have to express such intention in clear and unmistakable language and leave nothing to implication or intendment.
The judgment and decree of the trial court must be and is hereby reversed and remanded with instructions to enter a decree in harmony with this opinion. — Reversed and remanded.
PARSONS, C.J., and KINTZINGER, MITCHELL, STIGER, DONEGAN, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435060/ | Appellant and Abbie Sayre were husband and wife, and lived together in Greene County before moving to Des Moines. Afterwards, Mrs. Sayre went back to Greene County, where she secured a divorce from appellant in 1922, and in that proceeding was awarded the custody of the minor children, hereafter named. Subsequent to this, she returned to Des Moines, and appellant went to Greene County, where he now resides.
It is claimed by the State that the defendant-appellant, between the first day of January, 1925, and October 28, 1927, deserted his said minor children, Carmen and Paul, ages 10 and *Page 1336
12 years, respectively. This crime is within the purview of Section 13230 of the 1927 Code, which reads as follows:
"Every person who shall, without good cause, willfully neglect or refuse to maintain or provide for his wife, she being in a destitute condition, or who shall, without good cause, abandon his or her legitimate or legally adopted child or children under the age of sixteen years, leaving such child or children in a destitute condition, or shall, without good cause, willfully neglect or refuse to provide for such child or children, they being in a destitute condition, shall be deemed guilty of desertion, and, upon conviction, shall be punished by imprisonment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six months."
Succeeding the foregoing statutory provision is Section 13235 of the same Code, declaring:
"Proof of the desertion of wife, child, or children in destitute or necessitous circumstances or of neglect to furnish such wife, child, or children necessary and proper food, clothing, or shelter, shall be prima-facie evidence that such desertion or neglect was willful."
I. The State bases its ground for conviction upon testimony given by Mrs. Sayre and Luella, an adult daughter of the divorced parties'. In substance, this evidence is that Luella worked for wages, and paid her mother $8.00 every week for 1. PARENT AND board and room, added to which was the salary CHILD: earned by the latter through employment in the desertion: Rollins Hosiery Mills. That aggregate income destitute received by Mrs. Sayre amounted to approximately condition: $1,200 each year. Mrs. Sayre, the minor jury ques- children, and Luella lived in a house, the rent tion. of which was $20 per month. Both the mother and adult daughter asserted under oath that there were many times when the children went without proper clothing. Particularly was this true of the boy, who had insufficient footwear, so that his shoes did not protect his bare feet from the ground in the winter. Underclothing was needed, and the family did not have enough fuel with which to warm the house.
During the period of time named in the indictment, the *Page 1337
defendant contributed approximately $81.50 to the support of his minor children.
"Destitute condition," as used in Section 13230, supra, does not mean "naked," "unhoused," or "actual starvation." State v.Weyant, 149 Iowa 457; State v. Herring, 200 Iowa 1105. Apt phraseology contained in State v. Weyant, supra, is:
"To sustain the charge that the wife was left destitute, it was not incumbent upon the State to show that she was left naked or unhoused, or in a condition of actual starvation. To say that a deserted wife is destitute means no more than to say that she is in a condition of great need, a state of extreme poverty, or is without money or property upon which she can rely for her support. Such condition is by no means inconsistent with her possession of food for a day or for a week, or with the fact that some friend has opened his door to give her shelter. A widow or an abandoned wife may indeed have a humble cottage which affords her a place in which to live, but brings in no income, or she may have a cow, which she cannot sell without depriving herself or her babe of needed sustenance, or a few articles of furniture which are necessary to her convenience or comfort, and still be destitute, within the statutory meaning. If it were otherwise, and by the cheap expedient of providing his wife and child with a few dollars' worth of groceries for immediate use, an unworthy father and husband may desert his family and hold himself immune from prosecution, the statute is indeed a very flimsy piece of legislation, and should be repealed at once. A wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant child. It does not lie in his mouth to say: `Here is food to keep you from starvation for the next thirty days, and henceforth I absolve myself from all responsibility for your support. Your father will not allow you to go to the poorhouse. Moreover, your hands are strong, and the kitchens of your neighbors afford a ready field for service in which you can earn a living for yourself and the child of our marriage.' It was to prevent and punish such outrage against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction." *Page 1338
II. Nor is the "destitute condition" removed because private or 2. PARENT AND public charity intervenes to save the child from CHILD: nakedness, the ravages of the physical elements, desertion: or starvation; and this is true even if the public or "private charity" is administered by relatives private or near friends. State v. Herring, supra, charity as appropriately says: a defense.
"We cannot, however, agree with counsel for appellant that criminal responsibility for the failure to support his child could not be found on the ground that it was not in a destitute condition, merely because his parents, or the mother's parents, did not permit it to be in actual want, `naked or unhoused, or in a condition of actual starvation.' * * * There was no claim that appellant had made any arrangements with his parents for the support of the child, upon which it, or the mother for it, could rely."
Said issue of "destitute condition" was, therefore, properly submitted to the jury in this case.
III. Appellant's excuse for not having done more was that he 3. PARENT AND was physically unable to earn additional money. CHILD: Cause of this alleged incapacity was said to be desertion: an internal hernia and a dislocation of the physical vertebra. At least some proof was furnished by inability the State in rebuttal of this justification. to support: jury question.
There was earned by the defendant, within the time named, $317, out of which he purchased his clothes, paid doctor bills for himself, and met the expenses incurred when traveling by train from Greene County to Des Moines, for the purpose of attending court. Defendant was a building contractor on a small scale, and did carpenter and cement work, painting, and paper hanging. According to the record, he apparently appeared strong and robust. No medical expert testified that he could not pursue his occupation as a contractor, and there were other circumstances tending to indicate his ability to feed and clothe his children. Manifestly, the controversy raised by the foregoing facts was properly submitted to the jury.
"Good cause," as used in the legislative enactment above quoted, means a substantial or legal cause, as distinguished from an assumed or imaginary pretense. State v. Hill, 161 Iowa 279; *Page 1339 State v. Morgan, 146 Iowa 298; State v. Conway, 182 Iowa 1236;State v. Weymiller, 197 Iowa 1273.
IV. Nevertheless, the defendant contends that he is entitled to a reversal because of Instruction VIII, given to the jury by the trial court. That charge consists of these statements:
"In determining whether the children were in a destitute condition, as herein defined, the fact, if it be a fact, that said minor children were supplied with food, clothing, and shelter by others than the defendant does not establish the fact that said children were not destitute. It is for you to say, after fully and fairly considering all the evidence and all the facts and circumstances, whether the said children were destitute, and this fact you must find affirmatively, beyond a reasonable doubt."
Complaint is more specifically directed to the portion of the court's language embodied within the following phrase: "By others than the defendant." To put the thought in another way, the defendant insists that his former wife, the 4. PARENT AND mother of the minor children, was equally liable CHILD: with him for the support and care of the minor desertion: son and daughter. So he concludes that there is maintenance support in the record to show that she did by mother: sufficiently provide for them to the extent that effect. they were not "in a destitute condition," within the meaning of the statute aforesaid. Resultantly, he argues that the court should have submitted the idea to the jury accordingly, but, rather than doing this, that tribunal excluded from the consideration of the fact-finding body the support coming from any person except the defendant. Thereby, such contributions on the part of the wife were not presented as a cause relieving the otherwise "destitute condition" of these children.
We believe there is merit in the defendant's proposition. Parenthetically, it is repeated that the indictment here was not for wife desertion, but non-support of the children. Each parent is liable for the minor child's maintenance. Code of 1927, Sections 5298 and 10459. Johnson v. Barnes, 69 Iowa 641; DaviesDry Goods Co. v. Retherford, 195 Iowa 635; Stamp v. Stamp,196 Iowa 1133; Debrot v. Marion County, 164 Iowa 208. Further discussion of this well settled principle of the law would *Page 1340
be a mere repetition. Previous opinions in the cases just cited have plainly covered the field at this juncture.
V. These parties, as previously stated, are divorced. A divorce, however, does not change the theory of the law in this respect; for the common-law liability of each parent to support the children continues, nevertheless. Debrot v. Marion County,
supra, states:
"This liability of either or both parents to support their minor children is not, of course, affected by a divorce obtained by one from the other. It continues in spite of the divorce until the children reach their majority, or until the death of the parents."
Therefore, the wife had a constant continuing duty to support these children, and when she performed that obligation, she did not thereby necessarily lay the foundation for a criminal prosecution against the father because he failed to discharge his liability, and in that way make inessential the fulfillment of her responsibility. Consequently, the children were not in a "destitute condition," as contemplated by the statute, if the mother, in the discharge of her maternal duty, sufficiently supported them. Error appears in the court's instructions because this thought was not embodied therein.
Questions relating to an accounting between the husband and wife for these expenditures (as to whether or not one can be had on any doctrine, we do not now decide) are not here involved, nor is there embraced within this controversy a proceeding to collect alimony. State v. Herring, supra.
Hence, because of the error pointed out, the judgment of the district court is reversed, and the cause remanded for a new trial. — Reversed and remanded.
STEVENS, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435061/ | A.B. Murphy commenced an action against W.E. Smith, treasurer of Johnson county, Iowa, praying that the said county treasurer be restrained from selling at tax sale certain real estate described in plaintiff's petition and located in Johnson County, for the reason that delinquent taxes standing against the premises, both regular and special assessments, were void and no longer a lien against said premises because of the fact that when delinquent they were not brought forward upon the new tax books until after the lien of said delinquent taxes had expired, as provided by sections 7147, 7184, and 7193 of the Code of Iowa; and for the further reason that certain of said delinquent taxes were barred by the statute of limitations. *Page 781
The county treasurer filed answer, denying that plaintiff was entitled to the relief prayed for, and specifically denied that he had failed to bring forward the delinquent taxes upon the tax book of Johnson county before proceeding with the collection of same, as provided by law.
There was a trial to the court and the lower court held that certain of the taxes levied against plaintiff's property were barred by the statute of limitations. The treasurer of Johnson county did not appeal from this holding and we are therefore not confronted with that question at this time. The lower court found that defendant had carried forward the former delinquent real estate taxes on the property described in plaintiff's petition. The court ordered the county treasurer to proceed as provided by statute with the collection of said delinquent taxes. Plaintiff was dissatisfied with this ruling and appealed to this court.
We are not confronted here with a case in which the delinquent taxes were not carried forward. There is no such claim. The basis of the appellant's claim is that the delinquent taxes were not carried forward immediately and within the time prescribed by statute.
We turn first to the statutes to ascertain what is required of the county auditor and treasurer.
Section 7147 of the Code (pertaining to county auditor) is as follows:
"7147. Tax list delivered — informality and delay. He shall make an entry upon the tax list showing what it is, for what county and year, and deliver it to the county treasurer on or before the thirty-first day of December, taking his receipt therefor; and such list shall be a sufficient authority for the treasurer to collect the taxes therein levied. No informality therein, and no delay in delivering the same after the time above specified, shall affect the validity of any taxes, sales, or other proceedings for the collection of such taxes."
Section 7184 provides as follows:
"7184. Duty of treasurer. The treasurer, after making the entry provided in section 7193, shall proceed to collect the taxes, and the list shall be his authority and justification against any illegality in the proceedings prior to receiving the list; and he is also authorized and required to collect, as far as practicable, *Page 782
the taxes remaining unpaid on the tax books of previous years, his efforts to that end to include the sending by mail of a statement to each delinquent taxpayer not later than the first day of November of each year."
Section 7193 provides:
"7193. Former delinquent real estate taxes. The treasurer shall each year, upon receiving the tax list, enter upon the same in separate columns opposite each parcel of real estate on which the tax remains unpaid for any previous year, the amount of such unpaid tax, and unless such delinquent real estate tax is so brought forward and entered it shall cease to be a lien upon the real estate upon which the same was levied, and upon any other real estate of the owner. But to preserve such lien it shall only be necessary to enter such tax, as aforesaid, opposite any tract upon which it was a lien. Any sale for the whole or any part of such delinquent tax not so entered shall be invalid."
The evidence shows that during the period involved in this action there were thirty-two taxing districts in Johnson county; that each district had its own tax list, and it usually required the services of one person approximately four weeks to perform the required statutory duty.
The court must and does take judicial notice of the fact that the period of years for which the appellant now seeks relief was perhaps the most difficult of the years of depression; that everywhere there was a failure to meet tax obligations, and as a result thereof an unusual number of delinquencies took place, which imposed additional work upon the county treasurer. The county treasurer is charged by law with the all-important work of collecting taxes. The work in his office has not decreased, but, instead, the legislature has seen fit to place additional burdens upon the official holding this important position, and upon his worthy assistants. The statute that directs him to carry forward the delinquent real estate tax does not prescribe a definite time in which these duties should be completed. Were the contention of appellant to prevail, that the county treasurer must perform these duties instantly, it would mean the doing of something physically impossible, and certainly, the law does not require the doing of any act which is physically impossible. This record shows that the county treasurer of Johnson county performed *Page 783
the duties imposed upon him by statute, carried forward the delinquent real estate taxes as rapidly as it was possible to do so within a reasonable time.
It therefore follows that the judgment and decree of the lower court must be, and it is hereby, affirmed. — Affirmed.
PARSONS, C.J., and ANDERSON, DONEGAN, RICHARDS, HAMILTON, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435062/ | In 1922, Louise McCormick and her brother, Arthur Wagner, purchased 80 acres in Louisa county, Iowa. On December 6, 1926, the land was sold for taxes. On December 25, 1926, the tax sale certificate was, at the direction of Louise McCormick, assigned to her mother, Ella Anderson. On May 31, 1930, Mrs. Anderson acquired a tax deed. Mrs. McCormick died in 1936, leaving a will which gave all of her property to William McCormick, her husband, who brought this action, alleging that Louise McCormick had adverse possession of the 80 acres from the date of its purchase in 1922 to the time of her death on May 19, 1936; that the statute of limitations began to run against Mrs. Anderson's rights under her tax deed on December 6, 1929, on which date she was entitled to a tax deed, and that any interest or claim she acquired under her tax deed was barred by the statute of limitations (section 7295, 1935 Code) on December 6, 1934, and asked that his title under the will be declared superior to Mrs. Anderson's tax title and that an undivided one-half interest in the real estate be quieted in him and one-half interest in the defendants, Anna Maasdam and Virginia Auge, who are respectively the widow and daughter of Arthur Wagner, deceased. All of the defendants joined in an answer denying the allegations of the petition. No evidence was introduced by defendants.
Section 7295, 1935 Code, provides that no action for the recovery of real estate sold for nonpayment of taxes shall be brought after 5 years from the execution and recording of the tax deed. Mrs. McCormick was in possession when Mrs. Anderson became entitled to a deed and it is conceded by the parties that the said statute of limitations commenced to run against Mrs. Anderson on December 6, 1929, if Mrs. McCormick's possession was not subservient to the tax title. The serious question in this case is whether Mrs. Anderson's tax title was extinguished by possession of the real estate by Mrs. McCormick from December 6, 1929, to December 6, 1934.
Plaintiff's testimony is substantially as follows: He and his wife leased the farm in 1929 to Eugene Gerst who remained in possession as tenant until 1937. He managed the farm with the consent of his wife, collecting the rents and keeping up the fences, consulting only his wife and never consulting with Mrs. Anderson. He and his wife paid the taxes for the years 1930, *Page 891
1931 and 1932. As we understand the record, the rents were insufficient to pay these taxes in full and Mrs. Anderson paid the deficiency in the sum of $77. The witness testified that after the death of his wife he discovered on June 6, 1936, that Mrs. Anderson had paid the taxes for the years 1933, 1934, 1936, 1937 and the first one half of the 1935 taxes. He claims he paid the last one half of the 1935 tax. Apparently, when the income from the farm was insufficient to meet the taxes they would be paid by Mrs. Anderson. The income from the farm, from 1929 to 1936, was not more than the taxes. Plaintiff and his wife operated a hotel in Burlington and Mrs. Anderson lived at this hotel from 1925 to 1936 as a "non-paying guest."
The tenant, Mr. Gerst, recognized Mrs. McCormick as the owner until in May, 1937, when Mrs. Anderson leased the property to him. Plaintiff then commenced this litigation.
With reference to the circumstances under which Mrs. Anderson acquired the tax deed, plaintiff testified that, acting for his wife, he paid A.N. Sheridan who had purchased the land at tax sale for an assignment of the certificate to Mrs. Anderson. "I must have recorded Exhibit `Two', [tax deed] I don't know the date. That says 5th of June, 1930, I must have put it on record — when it came to Burlington from Treasurer at Wapello it was delivered to my wife. I must have gotten it from my wife when I took it to Wapello to record. It was a long time ago, it was either my wife or I, not exactly sure, so I think I did. I knew it was a deed to Ella Anderson."
Paragraph 4 of the will of Louise McCormick reads:
"I own an undivided one-half interest in the E-1/2 S.E. 1/4 Sec. 13, Twp. 74 R-4, Louisa Co. purchased and recorded in the name of Louise McCormick and Arthur Wagner. This property by agreement
was sold for taxes and a tax deed issued to Ella Wagner (Anderson). The widow of Arthur Wagner and myself redeemed the property but left the title in the name of the said Ella Wagner. This property is not incumbered except about 2 years taxes in arrears. The said Ella Anderson does not now have, or never did have any equity in this property." (Italics ours.)
This is all the testimony that throws any light on the arrangement between Mrs. McCormick and Mrs. Anderson about the tax deed. Mrs. Anderson was living at the hotel operated *Page 892
by plaintiff when the tax sale certificate was purchased and he conducted the negotiations with Sheridan and also recorded the tax deed. Mrs. Anderson would occasionally ride out to the farm with plaintiff. If plaintiff knew what the arrangement between his wife and Mrs. Anderson was he did not disclose it in his testimony.
[1] If plaintiff has established that Mrs. McCormick had the necessary possession of the real estate from December 6, 1929, to December 6, 1934, he must prevail because all rights of Mrs. Anderson under her tax deed would be extinguished by her failure to recover the real estate within the short limitation period. Ordinarily, the possession necessary to bar an action under section 7295 is not the possession required under the general statute of limitations.
In Clark v. Sexton, 122 Iowa 310, 312, 98 N.W. 127, 128, the opinion states:
"We have many times said that possession of land, in order to bar an action under a tax title, need not be such as is required to make it adverse, hostile, and exclusive under the general statute of limitations. If it is such as would entitle the tax title owner to an action against the occupant, who, of course, must be the fee-title owner, it is sufficient. Griffith's Ex'r v. Carter, 64 Iowa 193; Barrett v. Love, 48 Iowa 103. The constructive possession of the tax-title owner yields of course, to the actual possession of the owner, and the owner's possession need not be adverse. Such possession in fact as would authorize the tax-title owner to maintain an action against the fee-title owner is all that is required to negative the tax-title owner's constructive possession, and to bar his action after the lapse of the five years."
[2] If this rule were applicable to this case, we may assume that the possession of Mrs. McCormick would have been sufficient to entitle plaintiff to a decree. But the evidence reveals that Mrs. McCormick had the deed issued to Mrs. Anderson under some agreement between them.
The effect of the tax deed to Mrs. Anderson under an arrangement with her daughter was, on the question of proof of possession by plaintiff, the same as a conveyance of the real estate by Mrs. McCormick to Mrs. Anderson, and the presumption is that after the tax deed issued the continuing possession *Page 893
of Mrs. McCormick was subordinate to the tax title of Mrs. Anderson and to defeat the tax title plaintiff must overcome the presumption and prove that Mrs. McCormick asserted title adverse to and in hostility to Mrs. Anderson, that is, Mrs. Anderson's possession must have been that adverse, hostile and exclusive possession required by the general statute of limitations. The continuing possession of Mrs. McCormick, the collection of rents and payment of taxes was not sufficient to establish the required adverse possession.
In Garst v. Brutsche, 129 Iowa 501, 504, 105 N.W. 452, 454, the court states:
"The unbroken voice of authority is to the effect that, if a grantor remain in possession after the execution and delivery of a deed to the land, he will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession, and render it adverse to the grantee. * * * Of course, a grantor, remaining in possession after sale, may make his possession adverse. But, generally speaking, he must disclaim holding for the grantee, and openly assert his own title in hostility to the title claimed under his previous deed. Express notice does not seem to be necessary, but there must be such acts of repudiation of the relationship as to bring home to the grantee knowledge of the fact that a disclaimer is made."
In McClenahan v. Stevenson, 118 Iowa 106, 112, 91 N.W. 925,927, the court states:
"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. * * * 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. * * * 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." See Clark *Page 894
v. Chapman, 213 Iowa 737, 239 N.W. 797; Warner v. Tullis,206 Iowa 680, 218 N.W. 575; Luckhart v. Luckhart, 120 Iowa 248,94 N.W. 461.
The record warrants the inference that Mrs. Anderson had furnished substantial financial backing to plaintiff and his wife in connection with the operation of the hotel. If there was a trust relation, Mrs. McCormick's possession would, of course, be in recognition of and not hostile to Mrs. Anderson's legal title. It is unnecessary to speculate on the terms of the arrangement. Plaintiff seeks to establish his title to the real estate solely on the contention that his wife's continued possession was sufficient to defeat the tax title. Whatever the understanding, there is no evidence that Mrs. McCormick expressly or impliedly notified Mrs. Anderson that she was asserting her title in hostility to Mrs. Anderson's fee title under the tax deed.
The only evidence of disclaimer of the relationship of grantor and grantee is found in the will of Mrs. McCormick which was executed long after December 6, 1934, and at a time when Mrs. Anderson's title was safe from attack under section 7295.
[3] The possession of Mrs. McCormick was subservient to Mrs. Anderson's tax title during the period from December 6, 1929, to December 6, 1934, during which time she brought no action to recover the property and after December 6, 1934, she was barred from bringing the action by Code section 7295 and her patent title was inferior and yielded to Mrs. Anderson's new independent title. It follows that plaintiff, who claims title through Mrs. McCormick, was not entitled to a decree.
[4] On cross-examination of plaintiff he was asked whether he recalled the time Mrs. Anderson gave him $5,000 in bonds to permit him to operate the hotel. The witness first denied then admitted that Mrs. Anderson "put up" $5,000 for him but testified she "got paid for it." Plaintiff claims this was not proper cross-examination and immaterial to the issues in the case. The question was asked after the witness had testified that Mrs. Anderson advanced money from time to time while he was operating the hotel, "possibly a little, just a little loan for a few weeks or few months, not very often."
Mrs. McCormick's will stated that the deed was issued to Ella Anderson "by agreement." Because of inferences that *Page 895
might be drawn from this testimony as to the purpose of giving the deed the evidence was not inadmissible, though in view of our disposition of the case it has very little probative value, and we have not considered it in reaching our conclusion.
[5] Plaintiff testified on direct examination that he met with Mrs. Anderson in the Burlington Savings Bank after the death of his wife, that the tax deed was in his wife's box, that Mrs. Anderson saw the deed and nothing was said about the ownership of the tax deed at this time. He was then asked:
"Q. State whether or not Mrs. Anderson made any claim to this eighty acres of land in Louisa County at that time or prior to that?"
The court sustained appellees' objection to the question. The question called not for the conversation but for a conclusion. It refers to any claim and not to a claim made under a tax deed. The witness stated that nothing was said about ownership of the deed at the time and later testified that the first he knew that Mrs. Anderson claimed the real estate was after his wife's death when he discovered that she had been paying the taxes. Apparently this is the only claim he knew Mrs. Anderson made. Clearly, there was no prejudice to appellant in sustaining the objection.
The case is affirmed. — Affirmed.
SAGER, MILLER, HAMILTON, MITCHELL, and BLISS, JJ., concur.
HALE, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4042794/ | --------------------------------------------------------------------------------
TENTH COURT OF APPEALS
Chief Justice
Tom Gray
Justice
Rex D. Davis
Al Scoggins
McLennan County Courthouse
501 Washington Avenue, Room 415
Waco, Texas 76701-1373
Phone: (254) 757-5200 Fax: (254) 757-2822
Clerk
Sharri Roessler
May 14, 2015
In accordance with the enclosed Memorandum Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 14[th] day of May, 2015.
10-14-00330-CR THE STATE OF TEXAS v. JAMES EDWARD LONG - ON APPEAL FROM THE 54[TH] DISTRICT COURT OF McLENNAN COUNTY - TRIAL COURT NO. 1993-497-C - AFFIRMED - Memorandum Opinion by Justice Scoggins:
"This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that there was no error in the judgment, it is ordered, adjudged and decreed by the Court that the judgment be in all things affirmed, and that the appellant pay all costs in this behalf expended and that this decision be certified below for observance." | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4042798/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Garry Lon Brownlee, * From the 220th District
Court of Comanche County,
Trial Court No. CCCR-07-03018.
Vs. No. 11-15-00182-CR * August 21, 2015
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the
appeal should be dismissed for want of jurisdiction. Therefore, in accordance
with this court’s opinion, the appeal is dismissed. | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435140/ | In a suit entitled Central Shoe Co. v. Rashid (203 Iowa 1103), brought several years ago, certain parties holding judgments against the said Jacob Rashid sought, in equity, to set aside, on the grounds of fraud, a deed executed and delivered by Rashid and wife to W.A. Scherfe, as trustee, which deed conveyed real estate in the city of Fort Madison, Lee County, Iowa. In the same suit the plaintiffs sought to set aside an agreement between Rashid, Scherfe, as trustee, and the holders of first, second, and third mortgages on the property covered by the deed. These mortgages were liens on the real estate prior to the lien of the judgments against Rashid. The agreement referred to provided for the management and control of the property, the collection of rents, and the distribution of the proceeds by the trustee, first, to the mortgagees, and then to the lien holders in the order of their priority. The agreement also provided that the balance, if any remained, should be paid to the unsecured creditors, and if any further balance remained, the same should be returned to Jacob Rashid. On the trial of that case, the court found against the plaintiffs, who appealed to this court, and by an opinion filed March 8, 1927, the finding of the lower court was affirmed. The trial court in the original action retained jurisdiction of the cause solely for the purpose of administering the trust created by the deed and the agreement. It also directed the trustee to file a bond. The following is taken from the opinion of this court in the original action:
"The court refused to set aside the deed or the agreement of the defendants, found the amount due the several mortgagees, and held that the trustee should administer the trust under the direction of the court for the protection of the rights of unsecured creditors in any balance remaining after paying the secured claims of the creditor defendants and the expenses of administration, and required the trustee to give bond. * * * *Page 417
Under the decree, the trust is to be administered under the direction of the court, where the rights of the appellants, as unsecured creditors entitled to any surplus after the payment of secured claims, can be fully protected. This, in the absence of fraud in the original mortgages, is all that appellants were, in any event, entitled to."
A rehearing was denied in the cause July 1, 1927.
On February 13, 1928, the plaintiffs filed what they designate as an "amendment and supplement to plaintiffs' petition, as amended." This is a lengthy document, and we shall only refer to it sufficiently to explain what was apparently intended by the pleader.
In Paragraph 1, some new judgment creditors, who were not parties to the former trial or appeal, are sought to be added as plaintiffs. In Paragraph 2, the plaintiffs allege they have liens on a certain tract of real estate known as the Jacob Rashid home, which was no part of the real estate covered by the trust deed, or involved in any way in the former hearing. It had been mortgaged to the Santa Fe Avenue Savings Bank, which was not a party to the litigation, but which bank had brought suit to foreclose the mortgage.
Paragraph 3 consists largely of allegations as to impositions upon the court and mistakes of fact and of law in the former hearing, and in it the ruling of the lower court in the original trial is denominated an "interlocutory decree." The plaintiffs ask for a "reconsideration" and "rehearing" of this so-called "interlocutory decree."
On March 10, 1928, the plaintiffs filed another amendment, alleging, in substance, in Paragraph 1 thereof, that the deed hereinbefore referred to, to Scherfe, as trustee, and the mortgage involved in the previous litigation, were not liens, because of alleged defective acknowledgments.
In Paragraph 2 the plaintiffs allege that the mortgage on the Rashid home was not valid, because of defective acknowledgments. The plaintiffs further allege that Jacob Rashid and wife made a fraudulent conveyance to one Corey of certain property not covered by the original litigation.
In Paragraph 4 plaintiffs refer to the real estate mortgaged to the Santa Fe Avenue Savings Bank and the foreclosure suit. There is a prayer for general relief, and that the liens of these *Page 418
judgment creditors should be held superior to the liens of these mortgages.
On the 18th day of May, 1928, the court entered an order authorizing said judgment creditors to join with the original plaintiffs, and further ordered that the Santa Fe Avenue Savings Bank, Schramm Schmieg Company, Frank Corey, and Sam Rashid be made parties defendant. On January 17, 1929, the defendants, except Schramm Schmieg Company, moved the court to set aside the order of May 18, 1928, for various reasons, among them that the order was granted without notice. The defendants also moved the court to strike from plaintiffs' pleadings the names of the plaintiffs made parties to the suit by the order of May 18, 1928, on the ground of misjoinder of parties plaintiff, and to strike the names of the defendants made parties to the suit by the same order, on the ground of misjoinder of parties defendant. The defendants also moved the court to have plaintiffs' pleadings dismissed, because all causes of action except those improperly joined had been fully determined by an adverse decision previously made in the original action, and affirmed upon appeal to this court. On March 28, 1929, the court sustained the motion to set aside, the motion to dismiss, and the motion to strike.
The original action determined finally everything that was involved in the case. The court retained jurisdiction solely for the purpose of supervising and administering the trust. The rights of the unsecured creditors are protected, in that they are to be paid out of any remaining surplus in the hands of the trustee. This is not a suit in which unsecured creditors are seeking to have orders made in reference to or in connection with the administration of the trust. Rather, the plaintiff seems to be proceeding upon the theory that the finding of the lower court in the former trial, which order was affirmed by this court, was nothing but an interlocutory order. Manifestly, this is an error. Everything involved in the original action was fully determined. Plaintiff is here endeavoring to relitigate the issues previously determined, and, furthermore, to add new ones in the action already finally closed. It requires no discussion or citation of authorities to determine that this cannot be done. The plaintiffs have had their day in court. They cannot now relitigate these matters in the manner sought. *Page 419
The trial court correctly ruled in sustaining the motion to set aside and the motion to dismiss and the motion to strike. It follows that the cause must be, and is, — Affirmed.
MORLING, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435020/ | This proceeding was determined entirely upon a stipulation of facts filed by the parties May 24, 1926, as follows:
"Come now the above-named intervener and the above-named plaintiff as receiver of the defendant bank and stipulate that the following facts are and shall be considered as evidence and proven facts in the trial of this cause.
"1. Petition in the above-entitled cause was filed by the above-named plaintiff on or about November 25, 1925, asking for the appointment of a receiver for the defendant bank for the purpose of liquidating said bank, and upon said date the said L.A. Andrew, who was and is the superintendent of banking of the state of Iowa, was appointed as such receiver, and that he duly qualified and is still acting as such.
"2. That the intervener is the duly appointed and qualified guardian of Bernice Brown; that said Bernice Brown is a minor; that the intervener was such guardian at all the times herein referred to; and that during said times and until on or about November 19, 1925, he was also guardian of Bethel Brown, an older sister of said Bernice Brown; that he was discharged as guardian of Bethel Brown, who had attained majority, on or about November 19, 1925.
"3. That on or about November 7, 1925, there came into the hands of the intervener as guardian of said Bernice Brown and Bethel Brown, in payment of a loan of guardianship funds theretofore made, the sum of $3,069.89, said payment being *Page 1250
made in the form of two checks drawn upon the defendant bank.
"4. That the intervener had not theretofore, either as guardian, or individually, kept an account with or been a customer of the defendant bank.
"5. That the intervener, on November 7, 1925, took said checks, amounting to $3,069.89, to the defendant bank, and said to the officer of said bank who attended upon him that he had said checks; that they represented money belonging to his wards, Bernice Brown and Bethel Brown; that he was about to make settlement with Bethel Brown, who had attained majority; that he had resigned as guardian of Bernice Brown and that as soon as his resignation was accepted and his successor appointed he would make settlement with such successor; that he desired to deposit said funds for the purpose of effecting such settlements, and that as they were effected the money would be withdrawn for the purpose of paying the same over to the said Bethel Brown, and to his successor as guardian of Bernice Brown, respectively; and that this would be done within a few days; and at said time the bank accepted and received said checks so drawn upon it, in the aggregate sum of $3,069.89, and issued a deposit slip for such amount to the intervener as guardian as aforesaid.
"6. That said deposit was so made without the guardian having made application to the court for authority to so deposit the same, and without any order of court authorizing the guardian to deposit said funds, or any other funds, in said bank.
"7. That said funds so deposited comprised the entire estate of his wards in the guardian's hands; and they owned no other property except a small amount of personal effects and stocks of defunct companies, of no value.
"8. That thereafter the intervener withdrew from said bank for the purpose of effecting settlement with Bethel Brown the sum of $1,314.33, of which amount $1,308.33 was paid to Bethel Brown and $6.00 was paid to the clerk of the court for his costs. Said withdrawals were made by check on said deposit.
"9. Meanwhile, and on November 7, 1925, the intervener, as guardian as aforesaid, had filed his final report, resignation and application for discharge, and, after hearing thereon the court entered an order, which was filed on November 19, 1925, discharging the guardian as to Bethel Brown, and further ordering as follows: *Page 1251
"`* * * as to Bernice Brown, minor, his report is approved and all his accounting found to be correct and all payments made for said minor out of her estate and money in his hands are hereby approved; and it is further ordered that upon the appointing of a new guardian for the said Bernice Brown and his qualifying as required by law, and the said R.L. McCord settling with the said new guardian for the funds and, estate of the said minor Bernice Brown he shall be and is discharged as such guardian and released from any and all further duties and obligations in the said guardianship and his bonds released and his bondsmen released, from all further duties and liabilities herein.'
"10. That at the time said order was filed and until the evening of the 20th day of November the intervener was out of the city attending to his duties; and on the 21st day of November, 1925, the defendant bank failed to open; that no successor as guardian of Bernice Brown has yet been appointed.
"11. That of the moneys remaining in said defendant bank after the withdrawal of said sum of $1,314.33 as above stated, $25.00 was allowed the guardian for his compensation, and the balance, $1,730.56, belonged to his said ward, Bernice Brown, and was the amount required by the final report and the aforesaid order to be paid over by the intervener to his successor as guardian of the said Bernice Brown before his discharge should become effective.
"12. That at all times on and after the making of the deposit aforesaid, and up to and including the date of the suspension of the bank and the appointment of the receiver, the bank had not less than $3,500 of cash in vault, and that not less than $3,500 thereof passed into the actual possession of the receiver.
"13. That the intervener, within the time fixed for the filing of claims, duty filed his proof of claim and petition of intervention in said cause; that thereafter, and on or about the 22d day of March, 1926, the receiver filed his report and therein rejected the intervener's claim to a preference, but allowed the same as a depositor's claim; and that within the time fixed for filing objections to said report the intervener duly filed objections thereto upon the grounds and by reason of the facts *Page 1252
alleged in his said proof of claim and petition of intervention. * * *
"15. The only question for determination is whether, upon the facts herein stipulated (and upon any other facts which may be offered in evidence upon the trial), the intervener is entitled to have his claim allowed as a preference in the amount of $1,730.56, the sum so belonging to his said ward, Bernice Brown. As to the balance, $25.00, allowed the guardian for his compensation, no claim to preference over depositors is asked. And if the intervener is so entitled to preference as to said sum of $1,730.56, his claim therefor shall be established accordingly. If he is not so entitled to preference the intervener's claim shall be established as a depositor's claim in the sum of $1,755.56."
I. A motion to dismiss the appeal was filed, based upon the lack of authority of the receiver in the premises to bring the controversy to this court.
Primarily, such objection is founded upon the theory that a "receiver" is impartial in the performance of his duties, and therefore it is no concern of his whether or not one creditor obtains a preference or the right to a prior 1. APPEAL AND payment over another. Upon this general ERROR: right proposition the following authorities may be of review: considered: Bank of Montreal v. C., C. W.R.
receivers. Co., 48 Iowa 518; State Cent. Sav. Bank v.Ball-Bearing Chain Co., 118 Iowa 698; State ex rel. Havner v. DesMoines Union Stock Yards Co., 197 Iowa 987; First Nat. Bank v.White Ash Coal Co., 188 Iowa 1227; Hirning v. Hamlin, 200 Iowa 1322; 1 Clark on The Law of Receivers, Section 676; 2 Tardy's Smith on Receivers 2134, Chapter 29; High on Receivers (4th Ed.), Section 264a; 34 Cyc. 447, Paragraph 3; 3 Corpus Juris 653, Section 522; Cobbs v. Vizard Inv. Co., 182 Ala. 372; Bosworth v.Terminal R. Assn., 80 Fed. 969; Sutton v. Weber, 100 Ill. App. 360; Frey v. Shrewsbury Sav. Inst., 58 Md. 151; Foreman v.Defrees, Brace Ritter, 120 Ill. App. 486; Chicago Title Tr.Co. v. Caldwell, 58 Ill. App. 219; Edwards v. Western Land Power Co., 27 Cal. App. 724 (151 P. 16); Dorsey v. Sibert,93 Ala. 312 (9 So. 288); First Nat. Bank v. Bunting Co., 7 Idaho 27
(59 P. 929); Account of Correll, 283 Pa. St. 277 (129 A. 104); Knabe v. Johnson, 107 Md. 616 (69 A. 420); State ex rel.Sparks v. State Bank Tr. Co., 36 Nev. 526 (137 P. 400);McKinnon v. Wolfenden, *Page 1253 78 Wis. 237 (47 N.W. 436); Battery Park Bank v. Western CarolinaBank, 127 N.C. 432 (37 S.E. 461); State ex rel. Miller v.People's State Bank, 22 N.D. 583 (135 N.W. 196); Cameron v. CityBank of York, 284 Pa. St. 187 (130 A. 407); How Co. v. Jones,60 Iowa 70; First State Bank v. Oelke, 149 Iowa 662. Bank ofMontreal v. C., C. W.R. Co., supra, contains this language:
"* * * he [the receiver] is uniformly regarded as an officer of the court, and, being such, the fund or property intrusted to his care is regarded as in the custody of the law; the `court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than those conferred by the order of his appointment, or such as are derived from the established practice of courts of equity.' High on Receivers, Section 1."
Bosworth v. Terminal R. Assn., supra, on the general subject declares:
"The true line of demarcation we think to be this: He [receiver] has the right of appeal with respect to any claim asserted by or against the estate, for therein he is the representative of the entire estate. He has the right of appeal from any decree which affects his personal right, for therein he has an interest. But he has not the right of appeal from a decree declaring the respective equities of parties to the suit. He should therein be indifferent, and not a partisan. His duty is to all parties in common. He should not become the advocate of one against another."
"Receivership" is a term applied to various and different officers of the general kind, including mere custodians, as well as those engaged in executing and managing active trusts. However, under all the authorities above cited, there does not seem to be a discordant note with reference to the declaration that a "receiver" may "appeal" from a judgment or decree against the entire trust estate as such; for that is his duty, and one of the reasons for his appointment.
Under this jurisdiction, "preferences" of the nature here involved are against the entire "estate;" for they are applications for the return of property, rather than claims for debts. Andrew v. State Bank of New Hampton, 205 Iowa 1064. In theNew Hampton case we said: *Page 1254
"Fundamentally, the remedy in actions of this kind is based upon an interest in or ownership of the particular property or fund claimed, rather than the relationship of debtor and creditor. * * * Primarily, such equity in or title to `property' exists through or because of a trust, or relationship in the nature of a `trust.'"
See, also, Leach v. Iowa State Sav. Bank, 204 Iowa 497.
So then, in fact, the appellee here is demanding that there be delivered to him his own, which is now held by the "receiver" as part of the estate of the defunct bank, for the benefit of all creditors. To that extent attempt is made to dispossess and take away from the "receiver" that particular "property." Consequently, that officer of the court, in defending against this effort in the district court, and when there defeated, appealing to this court, is doing no more than protecting his title to the "property" of the "estate" against one who disputes it. Necessarily, then, the "receiver" is not showing mere favoritism between creditors, and intermeddling in that with which he has no concern; but rather, this arm of the court, so-called, is functioning according to the explicit purposes of his creation, for the good of the whole estate. Failing in this, he would neglect his obligation, and, without resistance, permit others, having no right, to take from him the very possessions he was appointed to preserve.
Moreover, there has been an avalanche of similar litigation in recent years, and in many of these cases, "receivers" have "appealed." These have been allowed without hindrance, and final judgments rendered thereon. Thus, tacitly, if not with express avowal, we have sanctioned this procedure. Accordingly, the motion to dismiss is overruled.
II. Returning now to the merits of the controversy, it is found that the cause of action is based upon a claim for $1,755.56, which was the balance permitted by the guardian to remain in the bank before it closed its doors. "Preference" is predicated upon two grounds: First, wrongful deposit; and second, special or specific deposit for a particular intention.
Consideration will be given to those points in the order made.
III. On November 7, 1925, the transaction between the guardian and the bank was consummated when $3,069.89 was *Page 1255
2. GUARDIAN AND left with the institution, as shown by the WARD: agreed statement of facts. Afterwards, $1,314.33 management thereof was withdrawn by check, to settle with of estate: the ward Bethel Brown. The remaining sum, which bank deposit is the subject of this suit, belonged to the without ward Bernice Brown. authority of court.
At the outset, it is claimed that a "trust" arises because the "deposit" was wrongful, due to the fact that there was no permissive authority from the court for the relationship between the "guardian" and the bank. That will depend upon the character of the "deposit" contract.
Reference must now be made to the "stipulation." There it is found that, before this time, the "guardian" received the money under consideration as the proceeds of a maturing loan formerly made for these wards. Further management thereof was not contemplated; but rather, pending the filing of a final report and the time required for approval thereof, it was the guardian's aim to find a safe place for keeping the funds. Substantiation of the illegality of the "deposit" is based upon Sections 12581 and 9285 of the 1924 Code. Section 12581 provides:
"Guardians of the property of minors must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof."
By this paragraph, appellee persists, a preliminary court order is mandatory. For sustaining authority the following cases are cited: Slusher v. Hammond, 94 Iowa 512; Bates v. Dunham, 58 Iowa 308; McCutchen v. Roush, 139 Iowa 351; McIntire v. Bailey,133 Iowa 418; Easton v. Somerville, 111 Iowa 164; McReynolds v.Anderson, 69 Iowa 208; Garner v. Hendry, 95 Iowa 44. Those precedents involve situations where there have been investments or other obvious transactions through "management" clearly within the purview of the quoted enactment.
Before us, however, is another state of facts. Temporary "deposit" of these trust funds for short custody, to accomplish safe-keeping, does not involve "the loan of money" or the "management of the ward's affairs." Webster's New International Dictionary contains this definition of "manage:" *Page 1256
"To direct affairs; to carry on business or affairs; to administer; also, to admit of being carried on."
38 Corpus Juris 523 suggests:
"To manage money is to employ or invest it."
Quite different are the circumstances relating to the case at bar. Rather than "managing, employing, or investing," the items were placed "for safe-keeping" for the time being, in order that they might be retaken by the guardian and delivered to the ward. Therefore, this legislation does not control here.
Administrators and trustees are permitted, without court authority, to "deposit" in banks for "safe-keeping," and are not personally liable for losses arising therefrom unless there was negligence or fraud in selecting the institution. Officer v.Officer, 120 Iowa 389; In re Estate of Workman, 196 Iowa 1108;Leach v. Beazley, 201 Iowa 337. Officer v. Officer, supra, contains this apt expression:
"The first question of law to be determined on this state of facts is, Was the deposit wrongful? If so, and the bank had notice of the character of the funds, there is no doubt that the claim should be given a preference. * * * An executor must exercise that degree of care and prudence with reference to funds coming into his hands that ordinarily prudent men exercise in regard to their own affairs, and, in the absence of statute preventing, they may deposit the same in banks of good standing and reputed solvency. * * * Indeed, it seems to be generally held that a trustee who has deposited funds to a trust account in a reputable bank or banking house is not liable for any loss which may occur through failure of the bank. * * *"
28 Corpus Juris 1145, Section 244, supplies the following text:
"A guardian who has on hand funds of his ward, awaiting investment, may deposit the same temporarily in a bank of good reputation; and if, in so doing, he acted in good faith and with ordinary prudence and diligence, he is not responsible for loss resulting from subsequent insolvency of the bank."
When the "deposit" does not amount to management or loaning, as contemplated by said Section 12581, then there does not seem to be any good reason or logic why the general law relating to executors and trustees should not apply to "guardianships." No intimation is made that there was any bad faith *Page 1257
or negligence on the guardian's part in the instant case, and fraud is not alleged or proven against the bank.
IV. Additional foundation for the creation of a trust is sought through Code Section 9285, supra, which is:
"Any court having appointed, and having jurisdiction of any receiver, executor, administrator, guardian, assignee, or other trustee, upon the application of such officer or trustee, after such notice to the other parties in interest as the court may direct, and after a hearing upon such application, may order such officer or trustee to deposit any moneys then in his hands, or which may come into his hands thereafter, and until the further order of said court, with any such trust company, state or savings bank [institutions in Chapter 416, 1924 Code], and upon deposit of such money, and its receipt and acceptance by such corporation, the said officer or trustee shall be discharged from further care or responsibility therefor. Such deposit shall be paid out only upon the orders of said court."
Manifestly, that act of the lawmakers' has to do with a very different transaction. Within the scope of the quotation is the instance where the guardian or the trustee desires to free himself from further responsibility by making a "deposit" in the bank, and, through the machinery furnished therefor, transfer such liability onto that institution. Due to that legislative contemplation alone, the "guardian" is not limited to the particular course, but may proceed otherwise. Robinson v. Irwin,204 Iowa 98.
Inclination of this court was expressed in the Robinson case in favor of the idea that Section 9285 is limited in its application to the trust companies and banks named in the chapter wherein it is found. Under either event, however, the "guardian" here was at liberty to make the "deposit," so long as he acted without fraud or negligence.
V. Ultimately it is argued that, even though a trust was not established by the methods previously discussed, yet such relationship did arise because the particular "deposit" was offered and accepted as special, specific, or extraordinary.
Careful review of the "stipulation" causes us to disagree with this claim. Information was furnished the bank about the "guardian's" plans to make final account and obtain his release, *Page 1258
3. BANKS AND but that depository had no part in carrying out BANKING: these fiduciary and court arrangements. It did deposits: not undertake to transfer the money to the ward non-special or the court, nor was there consent on the part deposit. of the financial institutions to return the identical property. But one undertaking arose therefrom, which was to honor checks upon the general account. Mere information concerning the "guardian's" proposed course of action was not enough to change this. Forsooth, in the inception of the "guardian's" duties, this trust officer might have explained to the bank his general scheme and method of procedure in administering the estate; yet that would not have brought about a trust relationship between the appellee and the bank; and in the present event, no more was done than to relate to the bank the "guardian's" general mode of conduct and the time of his expected compliance therewith.
Returning again to the discussion in Officer v. Officer, supra, we find:
"He [the executor] alleges that he notified the bank that this was a special trust fund, which should at all times be kept on hand, and subject to the order of court, and that said Officer
Pusey [the banking institution] had notice of the character of the funds. * * * The facts are not in dispute. * * * The deposit made in this case was not a special [or specific] one. The bank did not receive it upon a promise to keep the identical money and to return it to the executor. It was not specific; for the bank had the right to mix the funds with other money received by it, and obligated itself simply to honor and pay the executor's checks. It did not agree to hold the same for the parties entitled thereto, but it was at all times authorized to pay out the same on checks signed by the executor, and was not bound to see that the money received thereon went to those who were entitled to receive it."
Smith v. Sanborn State Bank, 147 Iowa 640, does not apply here; for in that case the money was received under the express agreement by the bank that it should be held for the payment of certain debts and the expenses of the depositor's wife at the hospital. Similarly, discrimination can be made in Dolph v.Cross, 153 Iowa 289, wherein it is said:
"The facts pleaded show that the execution defendant made the deposit for the specific purpose of meeting the checks *Page 1259
which he had just issued * * *. The bank officials understood that they received this money for the express purpose of paying checks already issued for that exact amount."
Also, in Hudspeth v. Union Tr. Sav. Bank, 196 Iowa 706, an escrow was involved, and the trust there was based upon this thought:
"Although the identical funds were not kept separate, the transaction itself was considered as an escrow transaction, and so shown on the escrow register of the Bennett concern which passed to its successors."
Readily it can be seen that the "deposit" made in the case at bar was not special or specific, nor was it anything except general. Liability on the part of the bank was to honor the guardian's order in withdrawals, and this it did whenever called upon before its doors were closed. Duty was to repay to him who had placed the money in the banking establishment. This was within the purview of said conversation set forth in the "stipulation," rather than the contended conception that the financial concern became a trustee, obligated to make accounting to the ward or the court.
Proof of an existing trust has failed, and the claim must be allowed as a general "deposit" only.
We do not here determine the liability of the guardian, nor do we intimate what the same is, or ought to be.
Therefore, the judgment and decree of the district court should be, and hereby is, reversed. — Reversed.
STEVENS, C.J., and EVANS, MORLING, and WAGNER, JJ., concur.
FAVILLE, De GRAFF, and ALBERT, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435022/ | This is an action for the foreclosure of a mortgage in which the Decorah State Bank is plaintiff and appellee, and William P. Sexton and Mary B. Sexton are defendants and appellants.
The mortgage was given on 240 acres of land in Winneshiek county to secure the payment of several notes aggregating $14,800, all given at the time the mortgage was given, on the 2d day of January, 1930. The petition was an ordinary petition for foreclosure of a mortgage, and was filed on the 19th day of January, 1935. The notes all bear interest at 5 1/2 per cent per annum, payable annually, with a defaulting clause that principal and interest draw interest at the rate of 8 per cent per annum, payable annually.
The defendants filed no answer to the petition, but on the 7th of February, 1935, filed a motion for continuance to March 1, 1937, as provided in the Emergency Debtors' Relief Act of the Acts of the 46th General Assembly of the State of Iowa, ch. 115, and in the application stated they owned the real estate which was the subject-matter of the action, and asked the court for an order for possession of said real estate, giving preference to defendant owners, and to determine the fair rental terms, to be paid by the parties in possession, and to provide for the distribution of the rents, income, and profits from said real *Page 1049
estate, as would be just and equitable during the continuance of this cause.
A resistance was filed to this motion on the 15th of February, 1935, setting forth the defendants were possessed of a large amount of unencumbered property, both real and personal, and were financially able to discharge their obligations to the plaintiff without hardship to themselves, and were not of the class of debtors for whom the Moratorium Acts were provided; that said defendants did not live upon the premises upon which foreclosure was asked; and maintained that an order for such continuance would not be equitable nor in accord with the spirit of the Mortgage Moratorium Act.
The reply to the resistance set forth that the defendants owned other property in addition to the land which was the subject-matter of the action, but denied that the same was unencumbered, and alleged that the personal property owned by defendants was subject to a chattel mortgage in the sum of $1,900; they admitted they did not live on the premises in question, and set forth that the farm upon which foreclosure is asked was purchased by defendants in the year 1922 for $31,600, paying $6,600 of that amount in cash, and in addition thereto transferred other real estate to the seller, of the valuation of $10,200, and assumed the mortgage upon which foreclosure is asked; that since they became the owners of the land subject to the mortgage they had spent large sums of money improving same, etc.; had paid their interest promptly, with the exception of the payment due January 2, 1935. They alleged the farm was rented for $625 cash rent. There was a hearing upon this application and resistance, and testimony was taken, from which it appears that the real estate holdings of the defendant, exclusive of the farm in question, consisted of 500 acres of clear and unencumbered land, with no taxes in default, and that they owned three houses in the town of Decorah. There was quite a lot of personal property belonging to the defendants, subject to the $1,900 mortgage to another bank. The defendants claim to have made a proposal to the plaintiff for settlement of their liabilities under the mortgage for $9,000, and offered to pay the taxes and turn over the farm, but the plaintiff did not accept.
It further appeared that when the Sextons made the deal for the mortgaged land they were trading in Canadian land, *Page 1050
and wanted some money in order to close the deal. The bankers told Sexton the amount asked was an excessive loan, and Sexton called the attention of the bank to the fact that he owned the other lands clear, but did not want to give a mortgage on it at the time; that he hoped to sell the farm in question in a short time and would be able to clear it all up, and he thought it would be good, in view of the fact that he owned other dear farms, that Mr. Sexton first offered $8,000 and then $9,000 in full of mortgage.
This loan of $14,800 was at the time of the trade for the land held by the Winneshiek County Bank, and as a result of the negotiations between the plaintiff and defendants the plaintiff took up the loan and advanced the money. Sexton made application for a federal loan, and received a commitment of $7,500. The bank wanted additional security. Sexton said he would not like to mortgage the rest of his real estate, and that he would not do that willingly. Sexton took the position that if the application was granted he would try to refinance the mortgage with the federal loan, if the rules and regulations were changed to grant more liberal terms to mortgagors in future years. Mr. Sexton was asked if they were willing to resort to any other property to finance the loan, outside of the homestead, and he answered, "Well, I would if I could get it down to where I thought I could handle it if times change." He said he did not think he could clean up the debt. The bank took the position that under the banking laws it could not loan more than 50 per cent of the present market price of the land, and that when it made its loan it was very near the borderline, and asked at that time for additional security. The cashier of the bank was asked, "Would your bank be willing to refinance this loan if this defendant would give additional security on this loan outside of his homestead?" and he answered, "Well, I don't know just how much is in the homestead." Then when he was asked if it would be 80 acres, or 40 acres with the house, he answered, "Yes sir; feel perfectly satisfied to." Sexton further testified that the taxes on the farm were delinquent in the sum of $137.61, and said he would not be willing to turn all his property over to the plaintiff on a mortgage at 5 1/2 per cent, except 40-acre homestead and additional 40 acres. He said if a continuance were granted in this matter he would take immediate steps to refinance the mortgage, if *Page 1051
he could get it refinanced, and he would try to refinance it on the most favorable terms. He said he would pledge this additional property in attempting to refinance it, but as to the amount he would pledge, he would have to talk matters over with his wife first.
It appears from the additional abstract filed by the plaintiff that the cashier of the bank testified it did not appear to him that Sexton was going to refinance, and he did not take it that Sexton was going to or did make an offer but that he was feeling the bank out in the matter, and that he did not think any offer was made. He further said, "Well, we had this meeting with Mr. Sexton and he felt us out on these amounts that were being mentioned, eight thousand, I believe it was first, and then nine thousand, I think it was later. As I remember it, he didn't make us any definite offer of these amounts but asked us something about if we would take them and when we told him that we couldn't take them he said that's all he would do, and if we wouldn't take those he wouldn't do anything further in regard to it."
The case was then continued for a few days, and on March 27, 1935, the court overruled the motion for continuance, and decree of foreclosure was then entered. In overruling, the court spoke of the testimony, and said: "I have concluded to deny this application for Continuance for the reason that this record shows the defendant has other farms, consisting of over 500 acres, besides the land in question, which is unmortgaged, and the plaintiff in open Court expressed its willingness to refinance this loan upon the giving of additional security on this other land excluding the homestead. However, I will not enter my decision at this time and will give the defendant a reasonable time to refinance this loan with the plaintiff if he sees fit so that the additional costs of the foreclosure will not be imposed upon him."
Then there was afterwards a meeting with the court when testimony was taken, March 27, 1935, and the defendants did nothing further, except Mr. Sexton intimated he would not agree to do anything further to make the loan, and made no definite offers himself. At the conclusion of this hearing the motion for continuance was overruled and decree entered. An appeal was taken by defendants to this court.
The appellants cite in this case Mudra v. Brown, 219 Iowa 867, *Page 1052
259 N.W. 773; Augustana Pension and Aid Fund v. Nagle,219 Iowa 1337, 261 N.W. 771; Federal Land Bank v. Wilmarth, 218 Iowa 339, 252 N.W. 507, 94 A.L.R. 1338.
In Mudra v. Brown, there was no showing whatever of the value of the real estate covered by the mortgage. In this case the value of the real estate, while not exactly fixed, is much below the amount of the mortgage, and, as said, the burden is upon the mortgage holder to show why the continuance should not be granted.
In the Augustana Pension and Aid case, the land was an 80-acre farm rented for $30 per month; the value of the farm was $12,000, and the indebtedness was only $8,859.78; and Nagle's present indebtedness was less than the reasonable value of the property, and he was reducing his indebtedness and had sufficient income to pay rent, and it was his homestead, a two-thirds interest belonging to minor children; that there was a prospect of selling the land at a price above the mortgaged indebtedness. The application for an extension, on these facts, was sustained.
In the Wilmarth case, it was held that the lower court did not abuse its discretion in refusing a continuance to a debtor who had substantially abandoned the mortgaged premises, and for a material time had failed to apply the rents and issues to the amount of his indebtedness.
We see nothing in these cases that in any way conflicts with the position taken by the district court in this case, and there is no difference practically in the language of the 46th General Assembly's Moratorium Act ch. 115, and that of the Acts of the 45th General Assembly, ch. 182, so the authorities under one would be authority under the other.
In the Wilmarth case it is said, on page 354:
"The purpose of the statute is to afford the owner of the land an opportunity to refinance or pay up the indebtedness and save his farm within the moratorium period."
In this case, the Sextons had gone to the bank at the time they purchased the land; there was a mortgage upon the land in the same amount as the mortgage in question. This mortgage was held by another bank. The plaintiff bank loaned the money simply to take up this mortgage at that time, trying to get some further security. No part of this mortgage has been *Page 1053
paid; the farm is rented at $625 a year. The interest on the mortgage by its terms is $715, the taxes amount to about $140 a year, and there are always other incidentals that have to be looked after on a farm, so this farm is continually running behind. The defendants have 500 acres of land besides, that is unencumbered. Their attitude in the case is that they do not want to pay the mortgage. They want to have the mortgage come down, first to $8,000 then to $9,000, and have really done nothing to finance the matter, except to make some inquiries and get a commitment from the federal land bank of only $7,000. What would be the result? This land evidently is not security for the mortgage; the defendants are in no way distressed; they have 500 acres of clear land; they do nothing that looks like they are trying to refinance the mortgage, beyond saying they have made some inquiries, and if Congress passes some acts and things of that, sort they may do something. This is not the proper attitude for debtors to take under these circumstances. Plaintiff loaned them the money; it is entitled to its money, if the defendants have property enough to pay it, and they have. The law was not made to allow debtors to beat their creditors; if so, it would be unconstitutional because that would be an impairment of the obligation of a contract. It is just the same as if the mortgagors had $10,000 lying in a bank and refused to apply any part of it to the payment or security of their debt. Were these notes not secured by a mortgage, how far would they get on that proposition? The plaintiff could reach out and seize anything the defendants had. Defendants are offered an opportunity to extend the mortgage, provided they give some additional security, and they have refused to do it. They are not seeking equity; they are simply seeking either to delay the plaintiff in the collection of its money, or to finally beat the plaintiff out of some of it.
In Butenschoen v. Frye, 219 Iowa 570, 258 N.W. 769, this court affirmed a case in which a continuance such as was asked here was denied, holding that it was properly denied under the facts showing the mortgagor was not in financial distress, and he did not acknowledge willingness to do equity. The opinion says:
"The moratorium statute was intended for debtors in financial distress to enable them to refinance their loans, and, *Page 1054
if possible, pay the indebtedness due within the period of the moratorium. The motion is addressed to a court of equity and good conscience for relief and succor by one, who, because of the emergency, and because of the terms and conditions of his contract with the creditor, is unable to prevent the immediate sale and sacrifice of the security pledged for the debt."
No such conditions existed in the Frye case. Frye was the owner of 400 acres in Scott county, 800 acres in Buchanan county, and 4,000 acres in Texas. He estimated his Scott county land as worth $100,000, and the Buchanan county land at $100,000, but was not willing to encumber or sell any other property to pay the mortgage on the encumbered property, and did not propose to sell anything, or intend to pay the interest, nor the $10,000 principal. In this case the plaintiff is entitled to its money. It is hard for some people to pay a debt, but where they are able to pay, and especially where they are offered an extension if they will pledge something else, and there is no reason it cannot be pledged, they are not entitled to the same consideration they would have if they were to come strictly within the class for which the Moratorium Act was made. When the question is presented, it is for the district court, guided by the statute, to determine whether or not good cause has been shown why the continuance should not be granted. As to what is a good cause in such event is not provided in the statute, so the statute leaves it that the district court, in harmony with the provisions and purposes of the act, shall determine what shall be a good cause, and, if the court does not abuse its limited discretion in that event, this court will not interfere.
Reed v. Snow, 218 Iowa 1165, 254 N.W. 800, is an action to foreclose a second mortgage on certain property in the city of Ottumwa. In that case the district court continued the case. Appeal was taken and the case was reversed. The opinion calls attention to what was said in the Wilmarth case, saying:
"When the question is presented, it, of course, is for the district court guided by the statute to determine whether or not good cause has been shown why the continuance should not be granted." The opinion then goes on to say: "But, when determining what is or is not good cause, the district court must keep in mind the purposes of the statute, together with the fact that under the statute the granting of the continuance is to be *Page 1055
the rule. Necessarily, then, the district court has a limited discretion in determining what shall or shall not be good cause for refusing the continuance." It says further: "We think the purpose of the statute was for the relief of debtors who were in financial distress and where there was a possibility of their being able to save their property within the time provided by the statute." The opinion says further: "However, the purpose and intent of this act, as we view it, was not to give this relief to those owners of property who are hopelessly insolvent and there could be no possible hope for them in the future. As suggested heretofore, this is not a case of saving a homestead or a home to these parties, as the record shows on its face."
The lower court in this case gave the defendants every opportunity possible to come to some sort of an agreement whereby they could keep off the foreclosure, but they refused to do anything; their attitude being that they wanted a discount on the money they had borrowed from the bank to enable them to get other property. The debtor was not facing any emergency which he could not out of his own resource meet. So, for these reasons, we arrive at the conclusion that the decision of the district court was right. It is therefore affirmed.
HAMILTON, ANDERSON, DONEGAN, POWERS, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435030/ | Appellant and Neven Long, Sr., were brothers. During the lifetime of the latter the former advanced moneys, which advances were the subject of consideration in the trial below.
Neven long, Sr., was injured in May 1935, while engaged in employment which brought him within the provisions of the workmen's compensation law. His claim was commuted and the proceeds form a part of the subject of contention here. Before the settlement of the workmen's compensation claim, Long, Sr., had treatments at an osteopathic hospital in Missouri. These treatments began on October 1, 1935, and continued until February 1936. To pay for them claimant-appellant advanced $230.98, taking a note for that amount, dated October 31, 1935, payable a year later. Appellant insists that the moneys so advanced constitute a part of the expense of the "last sickness" of Long and should have been allowed as a preferred claim. The trial court refused to take this view and complaint is here made of such ruling. After Long, Sr., returned to Marshalltown, he received treatments from one Dr. Gordon during the months of November and December 1935, and in January and February 1936. For these treatments appellant advanced, apparently on his own motion, $80, taking the doctor's receipts therefor. That the trial court declined to allow this as an expense of "last sickness" is made the basis of further complaint on this appeal. Another item is for $50 for money expended by appellant for repairs on the residence of the decedent. A demand for preference for moneys advanced to pay funeral expenses completes the various items which went to make up appellant's claim. The *Page 134
trial court gave preference to the item of funeral expenses, and allowed the other items as third-class claims. From this ruling, and the further one refusing to apply workmen's compensation money and the homestead to the payment of these claims, claimant appeals.
[1] The rulings with reference to the allowance of funeral expenses and the refusal to give a preferred relation to moneys advanced for repairs, are so self-evidently sound as to call for no further attention herein. Neither do we think there was error in the court's ruling with reference to the $80 advanced on claimant's own motion to pay Dr. Gordon for services terminating three months before the death of Neven Long, Sr.
We have, then, the question whether moneys advanced for treatments in Missouri come within the terms of section 11969 of the Code, which directs that as soon as possessed of sufficient means the executor or administrator shall "pay off the charges of the last sickness" of the deceased. While the question is not free from difficulty, we are satisfied that the trial court was right in holding that they did not.
We do not find that the question has ever been decided in this court, but it has been the subject of much discussion in other jurisdictions. In most of the states the question has arisen over the validity of nuncupative wills, which, by the statutes of the different states, are valid only when made during the "last sickness" of the testator. Because of the importance of the question we have given it considerable attention and have extended this opinion beyond what it perhaps should otherwise be. The fact that the testator changed medical attendants, while not controlling, is accepted by some of the courts as having some bearing on the question whether the treatment was during the last sickness.
24 Corpus Juris, Title, Executors and Administrators, section 1167, at p. 426, seems to comprehend the general rule deducible from the authorities there cited and such later ones as we have been able to discover. We quote:
"What constitutes last illness. The last illness within the meaning of a statute, giving preference to the expenses thereof, is the illness which terminated in the patient's death and the right to a preference is limited to services performed and expenses incurred during that illness, but unless the period is *Page 135
designated by statute, no particular period preceding death can be fixed as constituting the last illness, as the duration of such illness must vary considerably according to the nature of the disease and the condition of the patient. Such a statute must, however, be liberally construed, and the expression cannot be limited in meaning to the period during which decedent was in extremis, but on the other hand it relates to the proximate, and not the remote cause of death, and a claim for medical attendance cannot be made to cover a long period during which the patient lingered, partially convalescent, the attendance being broken off during the convalescent period and then renewed on decedent's relapse, especially where there had been a change of physicians."
The Supreme Court of Kansas, in Baird v. Baird, 70 Kan. 564,79 P. 163, 68 L.R.A. 627, at p. 632, 3 Ann. Cas. 312, engages in a very interesting and instructive discussion of the subject, which we do not now stop to quote.
Along the same lines and pointing out the conflict of opinion which exists on the subject, the Supreme Court of Washington, in Re Estate of Miller, 47 Wash. 253, 91 P. 967, 13 L.R.A. (N.S.) 1092, at p. 1095, 125 Am. St. Rep. 904, 14 Ann. Cas. 1163, further elucidates the difficulty the courts have had in dealing with the subject.
While not strictly in point, we believe that the case of Proto v. Chenoweth, 40 Ariz. 312, 11 P.2d 950, at p. 952, examines and analyzes the principles that should be applied. This being the latest of the cases that our own research has brought to our attention, we quote at some length:
"The facts in the present case are very different from anything that we have been able to find. To allow a physician purposely or negligently to postpone collecting for his services until after his patient is dead, even though the patient during much or all of the time was able to be up and around and transact business, is giving the phrase a rather more liberal meaning than was ever intended, we apprehend. We may suppose that one of the actuating reasons for the enactment of this law was to assure the sick patient proper medical care and attention during the period of his sickness, when he is more or less incapable of looking after business affairs, and at the same time assure his physician that he will be compensated for his services. *Page 136
During such period, whether a few days or many months, the physician has the assurance of the law that his services will be paid, if there is anything left of the estate after the funeral expenses are paid.
"It is inconceivable that the Legislature intended that the physician should permit his claim for services, calculated on a monthly basis rather than visits made, to run over a period of two or three or more years, and then, after his patient is dead, have a preference for the entire amount. Practically and actually we know that persons, even though sick, attend to their business affairs, and at stated intervals, just as well persons do, demand and render accounts and make settlements. Sick persons often continue to do business, even though under the care of a doctor. Especially is that true of tuberculars or victims of cancer. They frequently experiment with different physicians. Because finally they die from tuberculosis or cancer is every one of such physicians entitled, regardless of the time of his service, to be preferred out of the patient's estate? It seems to us that the reasonable meaning of the phrase precludes, or should preclude, a physician from making claim to a preference, even though his treatment was for the same disease of which the patient finally died, if and when his services are not continuous, but occasional, with long intervals of discontinuance unexplained, and especially when the patient at the time of his death has severed the relation and employed another to look after him."
See, also, McLean v. Breen, Tex. Com. App., 219 S.W. 1089, 9 A.L.R. 459, and note.
In line with the deductions we make from the principles announced, we hold that the trial court was not in error in rejecting appellant's claim for moneys advanced for medical treatment as being expense of the last sickness of Neven Long, Sr.
On May 30, 1936, Long died, leaving a will which was duly admitted to probate and which, so far as needs attention here, was as follows:
"First. It is my will and I hereby will and direct that upon my demise there shall first be paid from the estate of which I die seized all my just debts, including those of my last illness, burial, and expense of administration.
"Second. It is then my will and I hereby will and bequeath to my motherinlaw, Margaret Lewis, all of the property of which *Page 137
I die seized, of whatsoever kind and nature and wheresoever situate, to be her own absolutely and forever. I do this with the full understanding and knowledge that she will look after my son, Neven Long, Jr. as fully and completely as I would have done and I do this knowing that she, though the grandmother of my son Neven Long, Jr. is by adoption his mother and that she has during the time since the demise of my wife, looked after and cared for said child as his mother would have done. It is my natural desire that all of my property be used for the purpose of caring for my son. In the event of the death of Margaret Lewis prior to my demise, then and in that event it is my will that all of my property of whatsoever kind and nature and wheresoever situate, is to become the property of Neven Long, Jr. my son, to be his own, absolutely and forever."
[2] The first question presented with reference to the terms of this will is whether the language of the first division has the effect of subjecting the property of the estate to all claims properly allowed, as against the second provision of the will directing the disposition of the corpus of the estate. Appellant contends that the language of the first provision, that "there shall be first paid from the estate * * * all my just debts", has that effect. The lower court, being of a different opinion, ruled against this contention, and in so doing we think the trial court was right.
Language in the will considered in Luckenbill v. Bates,220 Iowa 871, at p. 874, 263 N.W. 811, 813, 103 A.L.R. 252, seems to be directly applicable, and we quote:
"Appellant first insists that, because of the first provision of the will, to wit, that the executors are directed to pay all just debts and funeral expenses, the creditors are given priority, and that the debts must be paid before any of the other provisions of the will can be carried out. It seems to be the general rule that mere phrases of this character in a will are not sufficient to give the debts priority. [Citing cases.] To make the devise subject to the payment of the testator's debts, the language must be unequivocal and imperative. See cases just cited. When a will provides, as most wills do, that the executor shall pay the just debts and funeral expenses, it merely recites the duty which every executor or administrator would have under the law; so we do not think that this direction here is more than *Page 138
a mere formality, or that it has the force and effect as claimed by the appellant." [Citing cases.]
[3] Appellant next urges that the homestead of the testator, because of the provisions of the second division of the will, was subject to the debts of the estate; or, to state it differently, the homestead character was lost by the terms of the devise made thereof by Neven Long, Sr. The question thus presented is one of considerable difficulty. It appears to the writer of this opinion that there will be found in our cases expressions upon one side or the other of this controversy which cannot be reconciled. We are therefore under the necessity of adopting that rule which seems to be most consistent with views generally announced appertaining to the character of the homestead itself and its proper disposition upon the death of the owner.
In adopting this view we can do no better than to quote the language of Weaver, J., in In re Estate of Guthrie, 183 Iowa 851,853, 167 N.W. 604, 605:
"There is a special declaration in code section 2986 [sec. 10155, Code 1935] which provides for the removal or extinction of the exemption when the ancestor dies intestate and there is nosurviving spouse or issue; but the statute will be searched in vain for any express or necessarily implied provision giving any such effect to the act of the owner in devising the homestead; and especially is this the case where the devise is made to one whom the statute is intended to protect. The owner could have conveyed it in his lifetime to the same persons named in his will, and they could maintain their title free from the claims of his creditors, though not free from the claims of their own creditors; and if there be any good reason in the statute, or outside of it, for making his devise any less effective than his deed, it is certainly not apparent. There are no appealing or persuasive equities in favor of appellants which should lead the course to seek an excuse for sustaining their claim. The credits were extended to the deceased after his homestead rights had been acquired. The creditors cannot say they trusted him on the strength of his ownership of this property, which they knew the law exempted; and they are not wronged, either in a legal or a moral sense, in denying them recourse upon the homestead. In the language of the Kentucky court:
"`The owner of a homestead has power, under the statute, *Page 139
to convey, by deed, and pass a good title to the property. * * * We see no reason why he may not do practically the same thing by will, because his creditors are prejudiced in one state of the case no more than the other; in fact, they are not wronged in either; but, in both, the object of the law, which is to secure to every housekeeper with a family, the certain and uninterrupted enjoyment of a homestead, is accomplished.' Myers' Guardian v. Myers' Admr., 89 Ky. 442, 446, 12 S.W. 933. See Pendergest v. Heekin, 94 Ky. 384, 22 S.W. 605.
"The same rule is affirmed in Eckstein v. Radl, 72 Minn. 95,75 N.W. 112. Again, the statute provides that, subject only to the rights of a surviving spouse, the owner of a homestead may devise it by will, like other real estate. Code section 2987 [sec. 10148, Code 1935]. In other words, subject to the right of the surviving spouse (which is a right of occupancy only), the owner of the homestead may devise it to whom he pleases, just as, with the consent of the spouse, he may sell and convey it or give it away in his lifetime. In neither case do the creditors suffer wrong, nor is the property thereby exposed to seizure for payment of their claims. [Citing cases.] Our statute, which makes the homestead devisable by will [Code section 2987 (section 10148)] does not, even by indirection, suggest that such a devise is subject to claims of creditors against whom the homestead right had been acquired. It does make such devise subject to the right of the surviving spouse, and the expression of this one condition alone implies the exclusion of all others."
As having some bearing, see, Southwick v. Strong, 218 Iowa 435,255 N.W. 523.
The language used in the Schultz case, 192 Iowa 436,185 N.W. 24, merely pointed out that the property passed by will, making it subject to the payment of debts, and not by descent, in which case it would not have been subject to the payment of debts.
[4] We have next for disposal the question whether the fund derived from the workmen's compensation law is subject to debts of Neven Long, Sr. The trial court held that it was not, and herein we think is error.
The record discloses that at the time of the death of Long, this fund, which was the result of a commutation settlement, was in the hands of Long's attorney, Northup, by whom it was *Page 140
held to await the adjustment of some claim for medical services. To all intents and purposes the fund was in as complete control of Long as if it had been in his actual physical possession, and we pass upon the question in that view. Neither the briefs of the parties nor independent investigation disclose, either in this jurisdiction or any other, a case which casts much light upon it. While there are decisions in other states more or less directly upon the subject, they afford no help because of the differences of opinion existing therein. This is due mostly, if not entirely, to the variant wordings of the compensation statutes in the different states. We are, therefore, under the necessity of reaching such conclusion as seems to be called for by our own statutes.
Code section 11766 reads as follows:
"Workmen's compensation. Any compensation due or that may become due an employee or dependent under the provisions of chapter 70 shall be exempt from garnishment, attachment, and execution."
The intent of the legislature, in the absence of previous construction of its enactments, must be determined both from the language used and the purpose of the legislation. We are not called upon to determine whether the avails of workmen's compensation would have been exempt in the hands of the injured workman, because that question is not here; but assuming, without deciding, that they were, we find no statute which would enable the workman to transfer this exemption after his death. In this declaration we have not overlooked section 1389 of the Code, having to do with liability in case of no dependents. This statute has no bearing on the question before us, and needs no attention beyond mention at this time.
[5] Another, and the last, ground of complaint which will have attention here is that the court erred in refusing the profert of the testimony of Northup, the attorney who attended the matter of collecting the money due deceased under the workmen's compensation law. The rule against confidential communications is sought to be avoided by the claim that Northup was acting as attorney for both appellant and deceased. This cannot be admitted under the record, and the court was not in error here. It does appear that appellant consulted Northup with reference to the matter, and asked the attorney to see if there was a legal claim. He did disclose, too, that he had a *Page 141
demand against his brother which could not be paid except out of compensation money. Appellant's contention in this regard required a construction of the evidence which was so far-fetched that the trial court rightly declined to make it.
From what has been said it follows that the decree of the trial court should have subjected the compensation money to the payment of all the approved debts of the estate of Neven Long, Sr., in their order of priority. In all other respects the rulings of the trial court are affirmed. Since the record does not disclose whether there be claims other than those of appellant, we are under the necessity of sending the case back to the trial court for such orders as will apportion the workmen's compensation and any other property that may be available to the payment of all claims allowed in the order of their priority.
The case is, therefore, affirmed in part; reversed and remanded in part.
DONEGAN, ANDERSON. RICHARDS, MITCHELL, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4261137/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL WALLACH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-829
[April 4, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 50-2012-CF-006125-A.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Michael Wallach appeals his seventeen convictions and several of his
sentences. We affirm his convictions without further discussion, but
reverse five of his sentences and remand for resentencing.
First, the defendant argues that some of his sentences were orally
pronounced to be concurrent with other sentences, but that the written
sentences were imposed to run consecutively. The State concedes that the
sentences imposed on the following counts should be reversed:
Oral
Count Crime Written Sentence
pronouncement
20 years –
Aggravated Assault with a 20 yrs.-
11 concurrent with
Firearm on a LEO consecutive
any other sentence
20 years –
Aggravated Assault with a 20 yrs.-
15 concurrent with
Firearm consecutive
any other sentence
1345 months –
Grand Theft (Motor 1345 months -
16-17 concurrent with
Vehicle and Firearm) consecutive
any other sentence
The State’s concession of error is well-taken. See Ashley v. State, 850
So. 2d 1265, 1268 (Fla. 2003) (“[A] court’s oral pronouncement of sentence
controls over the written document.”). On remand, the sentences imposed
on Counts 11, 15, 16, and 17 should be corrected so the written sentence
matches the court’s oral pronouncement.
Next, the defendant appeals the minimum-mandatory sentence
imposed on Count 10:
Count Crime per Information Min.-Man. Imposed
10 Burglary while armed with a firearm 10 years
Wallach was convicted of burglarizing a conveyance (a car) while armed
with a dangerous weapon. This is a felony of the first degree. §
810.02(2)(b), Fla. Stat. (2012). The State argues that the ten-year
mandatory minimum sentence imposed is legal because the defendant was
armed with a firearm and his sentence was enhanced under the 10-20-
Life statute. See § 775.087(2)(a)1., Fla. Stat. (2012) While burglary is one
of the enumerated felonies under the statute, if a defendant is convicted
of burglary of a conveyance, the minimum mandatory sentence under 10-
20-Life is three years, not ten years. Id.; see Figueroa-Montalvo v. State,
10 So. 3d 173, 174–75 (Fla. 5th DCA 2009) (“The crime of burglary of a
conveyance is ... listed as one of the charges to which the three-year
mandatory minimum applies.). Because the 10-20-Life statute imposes
only a three-year minimum mandatory sentence for the crime of burglary
of a conveyance, the ten-year minimum mandatory sentence enhancement
imposed here is illegal.
Finally, the defendant appeals the length of the sentence imposed on
Count 15:
Count Crime per Information Sentence imposed
15 Aggravated Assault with a Firearm 20 years
Wallach was convicted of aggravated assault, a felony of the third
degree. § 784.021(2), Fla. Stat. (2012). His sentence was reclassified to a
felony of the second degree under the 10-20-Life statute because he used
a firearm. § 775.087(1)(c). The maximum sentence for a felony of the
-2-
second degree is fifteen years. § 775.082(3)(d). The twenty-year sentence
imposed is illegal.
The State argues that the sentence is legal under the 10-20-Life statute
because the defendant discharged the firearm during the crime. See §
775.087(2)(a)1. (providing for a twenty-year minimum term of
imprisonment where there is a finding that the person discharged the
firearm during the commission of the felony). We find that the twenty-year
enhancement was improperly imposed here because the jury did not find
that Wallach discharged the firearm during the aggravated assault
charged at Count 15.
We reverse the sentences imposed on Counts 10, 11, 15, 16, and 17
and remand for resentencing as follows:
Count Crime Instructions on Remand
Burglary while armed Remand for resentencing for “burglary of a
10
with a Firearm conveyance” while armed with a firearm.
Aggravated Assault with Remand for imposition of concurrent
11
a Firearm on a LEO sentencing orally pronounced.
(1) Remand for imposition of concurrent
sentencing orally pronounced.
Aggravated Assault with (2) Remand for resentencing as a
15
a Firearm reclassified second degree felony under the
10-20-Life statute with a maximum
sentence of fifteen years.
Grand Theft (Motor Remand for imposition of concurrent
16-17
Vehicle and Firearm) sentencing orally pronounced.
Reversed in part and remanded.
GERBER, C.J., GROSS and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
-3- | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3435051/ | On October 1, 1925, Tyrholm Company, of Waseca, Minnesota, sold the automobile in question to the Creditors Protective Bureau of Minneapolis. The said Creditors Protective Bureau of Minneapolis was a trade name for an individual by the name of Lesselyoung. The car was delivered to the purchaser, and a written contract entered into between the parties on said date. The purchaser resided in Minneapolis, Minnesota, and the car was either delivered in Minneapolis or was taken there at or about the time of the purchase. The written contract evidencing the sale was assigned to the appellee, the Northern Finance Corporation, on the same *Page 897
date it was executed. The contract and the assignment thereof were duly filed in the office of the city clerk of Minneapolis on or about October 8th. The said contract contained the following provision:
"The title to the car and extra equipment, accessories and repairs being the property above described, shall not pass by delivery to the buyer, but shall remain vested in and be the property of the seller or assigns until the purchase price has been fully paid."
In said contract the buyer agreed:
"* * * not to remove the property from the county where the buyer now resides save for the purpose of making a continuous trip, the termination of which is to be in said county;"
It was also provided that the seller might exercise certain specified rights under the contract "* * * if said car is removed or attempted to be removed from the county in which the buyer now resides without the written consent of the seller."
It appears that, sometime previous to the month of February, 1926, one Ellinghouse, an agent and employee of the said Creditors Protective Bureau of Minneapolis, appeared with said car at Carroll, Iowa. The car was kept in storage in a garage in Carroll. The storage charges were unpaid. Subsequently, the proprietor of said garage proceeded to foreclose his lien on said car for said storage, as provided by Chapter 457 of the Code, 1924. The property was bid in at sheriff's sale by a third party, who in turn sold the same to the appellant. Subsequently this action for replevin was instituted.
I. It is contended by the appellant that the written instrument in question was a chattel mortgage, and not a conditional sales contract. The contract clearly and explicitly provides that the title to the car shall remain vested in and be 1. SALES: the property of the seller until the purchase conditional price has been fully paid. The instrument is sale: distinct in character from one where there is an definition. absolute sale, with title fully vested in the buyer, and with a mortgage back to the seller to secure the purchase price. Budlong v. Cottrell, 64 Iowa 234; Wright v.Barnard Bros., 89 Iowa 166; Bentley Olmstead v. Snyder Son,101 Iowa 1; Maxwell *Page 898 Mot. Sales Corp. v. Bankers Mtg. Sec. Co., 195 Iowa 384; Miller Kizer v. Des Moines City R. Co., 196 Iowa 1033; Ohio Sav. Bank Tr. Co. v. Schneider, 202 Iowa 938; Hart v. Wood, 202 Iowa 58.
We hold that it was a conditional sales contract, and not a chattel mortgage.
The law of Minnesota is presumed to be the same as the law of this state, unless the contrary appears. There 2. EVIDENCE: is no showing that the law of Minnesota differs presumption: from that of Iowa in this regard, and under the laws of record, we think, it sufficiently appears that other it is the same. states.
II. The contract being a conditional sales contract, it appears to have been properly executed and filed under the laws of the state of Minnesota pertaining to such contracts.
III. It does not appear in the record that the automobile was brought from the state of Minnesota into the 3. AUTOMOBILES: state of Iowa with the knowledge or consent of lien of the seller or its assignee, the appellee. garage The buyer covenanted not to remove the keeper: property from the county where he resided in condial the state of Minnesota. The automobile, sales however, was brought to the state of Iowa, and contract in placed in a garage, where storage charges foreign accrued thereon. Code Section 10345, which is state: a part of Chapter 457, is as follows: priority.
"Livery and feed stable keepers, herders, feeders, and keepers of stock and of places for the storage of motor vehicles shall have a lien on all property coming into their hands, as such, for their charges and the expense of keeping, but such lien shall be subject to all prior liens of record."
The lien created by this section of the statute is of the class that is commonly designated as a possessory lien. It is available to the keeper of a place for the storage of motor vehicles on a motor vehicle coming into his hands, for the charges and expense of keeping the same.
At this point, the question is whether this statutory lien, created in favor of the garage keeper for storage of a motor vehicle, is available as against the owner of said car under a conditional sales contract executed and of record in a foreign *Page 899
state, but not recorded in Iowa, where the car has been removed to this state without the knowledge or consent of the conditional sales vendor. The case presents an entirely different question from the one in State v. Kelsey, 206 Iowa 356, and State v.Jennings, 206 Iowa 361, wherein the question of forfeiture of an automobile used in violation of the criminal laws of this state was involved. The question here is one between rival claimants to the property. The question is analogous to that involved in cases where a chattel mortgage has been given and recorded in one state and the property is subsequently removed to a foreign state.
In the recent case of First Nat. Bank v. Ripley, 204 Iowa 590, we considered a situation where the owner of personal property gave a chattel mortgage thereon in the state of Minnesota, where he then resided. The mortgage was duly recorded, and subsequently transferred to the plaintiff in the action. Later, the mortgagor removed the property to Lyon County, Iowa, without the consent of the mortgagee, and thereafter gave a chattel mortgage on certain of the personal property covered by the former chattel mortgage. The latter mortgage was duly recorded in Lyon County. The question presented to this court involved priority of said liens. We reviewed the authorities, and held that the lien of the mortgage executed in Minnesota was senior and superior to that of the mortgage executed in Iowa.
The instant case involves a conditional sales contract. The rule in respect to conditional sales where the property is taken to a foreign state is thus stated in Goodrich on Conflict of Laws, Section 150:
"The validity of a conditional sale, by which a seller retains title until payment of the purchase price by the buyer, is governed by the law of the place of delivery of the chattel to the buyer. If the seller's title is valid, it will be recognized in another state as against the buyer or his creditors or assigns. By the better view, it is immaterial that the property was removed to the second state with the seller's consent. The second state may, by statute, require recording of the agreement there if the seller is to be protected against creditors of the buyer or subsequent purchasers from him."
In the instant case, we do not have a situation where the *Page 900
property was removed to the second state with the seller's knowledge or consent. In fact, the conditional sales contract stipulated against such removal.
The weight of authority seems to be to the effect that, where property held under a conditional sales agreement, duly recorded according to the laws of the state where it is executed, is taken, without the seller's consent, to a foreign state, and is conveyed or mortgaged to a third party in good faith, and such conditional sales agreement is not recorded in such foreign state, the rights of the vendor under such conditional sales agreement will be superior to those of the purchaser or mortgagee from the vendee in the second state, unless controlled by some special statute. A few citations will serve to illustrate the general rule.
In Baldwin v. Hill, 4 Kan. App. 168 (46 P. 329), a conditional sales contract of a piano was made in the state of Indiana. It was not required to be recorded in said state. Subsequently, the purchaser, in violation of the terms of the contract, and without the knowledge of the vendor, removed the piano to the state of Kansas, and sold it to a third party, who purchased it in good faith, and without notice. It was held that the conditional vendor was entitled to recover, notwithstanding that the contract was not recorded in the state of Kansas, in accordance with the laws of that state.
In Cleveland Mach. Works v. Lang, 67 N.H. 348 (31 A. 20), the Supreme Court of New Hampshire recognized the general rule that contracts respecting the sale or transfer of personal property, valid where made, and where the property is situated, would be upheld and enforced in another state, although not executed according to the laws of the latter state, unless such enforcement would be in contravention of a positive law and public interest.
In Lane v. Roach's Banda Mexicana Co., 78 N.J. Eq. 439
(79 A. 365), a conditional sales contract on certain band instruments was executed in the state of Indiana, where the instruments were then located. The vendee then resided in Colorado. The instruments were subsequently taken to the state of New Jersey, where a chattel mortgage was executed upon them by the vendee. Suit was brought in New Jersey. It was held that the conditional vendor's title was good as against that *Page 901
of the mortgagee, although the conditional sales contract was not recorded in the state of New Jersey.
See, also, Harrison v. Broadway Motor Co., 128 Miss. 766
(91 So. 453); Drew v. Smith, 59 Me. 393; Studebaker Bros. Co. v. Mau,13 Wyo. 358 (80 P. 151); Adams v. Fellers, 88 S.C. 212
(70 S.E. 722); Barrett v. Kelley, 66 Vt. 515; Dixon v. Blondin, 58 Vt. 689
(5 A. 514); Mershon v. Moors, 76 Wis. 502 (45 N.W. 95).
In Sargent v. Usher, 55 N.H. 287, it was held that a mortgagor of horses in Massachusetts who brought them into the state of New Hampshire could not subject them to a lien for their keep in New Hampshire, as against the Massachusetts mortgage.
While there is some conflict in the cases, we are of the opinion that the greater weight of authority and the better reason sustain the general rule above stated.
The question, then, narrows itself to the proposition as to whether or not the rights of the vendor of a motor vehicle under a conditional sales contract, duly recorded in a foreign state, who does not consent to the removal of the motor vehicle to this state, are superior to those of a lien claimant for storage under our statute. As we have seen, such right of the conditional sales vendor would be superior to those of a mortgagee in this state, under the rule recognized in First Nat. Bank v. Ripley, supra. It would apparently logically follow that they would be superior to those of a purchaser from the vendee, or an attaching creditor of the vendee in this state. Is the lien claimant for storage under Code Section 10345 to be placed in any different category? We think not. In a sense, it may be said that the storage of the car inured to the benefit of the vendor, in that it protected and preserved the car; and hence there are equities in favor of the storage-lien claimant. But the equities of the vendor are not to be overlooked. He has done all that the statutes of the state of Minnesota require, to protect his rights in the property. He has not consented to the removal of the property to Iowa. Under the rule of comity recognized in First Nat. Bank v. Ripley, supra, we think the appellee was entitled to recover possession of the car from appellant. The rule of caveat emptor prevails in this state.
IV. Appellant pleaded that, under certain statutes of the *Page 902
state of Minnesota, the appellant's lien for storage would be superior to appellee's claim under his conditional sales contract, and argues that appellee should not have greater rights under his conditional sales contract in Iowa than he would have in the state of Minnesota. Appellant pleaded and proved Section 8524 of the statutes of that state, as follows:
"Whoever performs or contributes any labor or skill, or furnishes or contributes any machinery, materials, storage, in making, altering, repairing, storing, or otherwise caring for any motor vehicle whether pursuant to a contract with the owner of such motor vehicle or at the instance or request of any agent of such owner, shall have a lien upon such motor vehicle for the price, or value, of the labor or skill performed, or machinery, supplies, materials, storage, is furnished pursuant to a contract for an agreed price, the lien shall be for the sum so agreed upon; otherwise, it shall be for the reasonable value thereof."
In the late case of Sundin v. Swanson (Minn.), 225 N.W. 15, the Supreme Court of Minnesota held that one who made repairs on a motor vehicle did not have a prior lien over a conditional sales vendor, under said statute. No other pertinent section of the Minnesota statute is pleaded or proven in this case. On appeal, we can only consider the record as made in the lower court.
The judgment of the trial court was correct, under the record, and it is — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435053/ | An action for separate maintenance must be supported with that quantum of evidence which warrants a decree of divorce. Shors v.Shors, 133 Iowa 24; Shipley v. Shipley, 187 Iowa 1295. The instant plaintiff alleges cruel and inhuman treatment. Since this appeal presents fact questions only, prior decisions are of little value in solving the problem before us.
Two factors in that problem may be considered. Was the conduct of the defendant cruel and inhuman, within the legal concept of that term? Did the conduct of the defendant endanger the health or life of the plaintiff? The trial court answered in the negative. We answer in the affirmative, and in making that answer we realize that caution should be exercised.
Plaintiff and defendant intermarried in 1882. Plaintiff is nearing her 69th birthday. The defendant husband is 75 years old. Eleven children were born to this marriage, 10 of whom are now living. All the children are married and have homes of their own except the son Elmer. The youngest child is now 25 years of age, and married.
The defendant is financially well situated. He owns 160 acres of land, of the reasonable value of $225 per acre, and is possessed of moneys and credits of the value of about $21,000, the major portion of which is loaned to his sons and sons-in-law at the rate of 5 per cent interest. The home farm is rented to his son Joe at $7.00 per acre, and has been leased by the son for the past 8 or 9 years. This farm contains two sets of buildings, one of which is occupied by plaintiff and defendant, and the other by the lessee, Joe.
The accumulations above mentioned are the result of the combined efforts of plaintiff and defendant. They have been hard-working people, and have recognized the value of thrift.
In the light of the family history and the struggles which these parties have undergone, it is a sad commentary that a court is compelled to write in reviewing the grounds of complaint which impelled the plaintiff to institute the present action. In the study of the matrimonial relations involved herein, should we characterize the conduct, disposition, and *Page 812
temperament of the defendant by the use of adjectives, it may be said that he has been domineering and arbitrary to a point of tyranny; unsympathetic to a point of cold-bloodedness; unkind to a point of cruelty; stubborn to a point of absolute obstinacy; uncommunicative to a point of perfect silence; parsimonious to a point of niggardliness. Of these matters let the record speak.
For the past 8 or 9 years the plaintiff has been in very poor health, and at times under the care of physicians. She has suffered from a heart trouble technically known as myocarditis. Her nervous system has been unusually sensitive to any excitement or unusual disturbance. The defendant was fully acquainted with her condition and the character of her trouble, and during that time he has never extended to her a word of sympathy, tendered her any personal assistance, or given her kindly or courteous consideration in word or act. The plaintiff was bedfast for four and one-half months in 1924, and her condition was considered quite serious. Her physician testified that "her condition of impaired health and her heart difficulty is a permanent condition." She has also been afflicted for many years with an irreducible umbilical hernia, which causes her a great deal of discomfort and impairs her activity. The physical condition of the plaintiff did not cause any change in the attitude of the defendant toward his wife. For the last 8 or 9 years, the defendant has not talked to his wife. She testified:
"During the last ten or twelve years, he never talked to me — kept silent. Whenever I asked him anything, sometimes he didn't answer at all."
Defendant admits:
"I can't remember any occasion in the last three years that I spoke to her, outside of asking her for a list of groceries. We really have had no conversation, the last three years."
He has been very domineering, and with the process of years this failing has shown no sign of diminution. He thinks his way is the right way, and tolerates no objection. The record is replete with incident. He became quite angry, on one occasion a few years back, when his wife, over his objection, *Page 813
purchased a piano for the home, and, speaking of the piano salesman, the defendant said:
"He was nothing but a whoreman and anyone who had anything to do with the salesman wasn't any better."
In his testimony he refers to his wife as "the woman."
When he built a new house on one 80 of his quarter section, he did not consult his wife concerning it. She expressed a desire to arrange the house inside, but he refused, saying: "God damn, no two persons can build a house."
Although these parties eat at the same table, no conversation happens between them. The wife testifies:
"In 1917 and 1918, and from that time on, my husband didn't speak to me only just when he had to, — then a few words, and very far apart."
For the past several years, the defendant has refused the wife money when she needed it for her own purposes. He had the piano in the home listed for taxation, by the assessor, in her name, and compelled her to pay the personal property tax. Although both are members of the Catholic church, he has refused her money for contributions to her church, and for many years has refrained from attending services with her.
The defendant was asked, on cross-examination:
"When was the last time you gave her any sum of money for any purpose? A. It must have been 15 or 18 years ago. Q. What money have you actually given your wife in the last 15 years? A. Not any. For 15 years she has paid her church contributions and part of her incidental expenses without any assistance from me."
His generosity is evidenced solely by the permitting of his wife to raise chickens and to sell poultry and eggs, enjoying the benefit of the proceeds thereof. Later, even the number of fowls which she was privileged to have was limited, and he refused to buy the chicken feed, so that she was compelled to sell her only source of revenue.
It is difficult to portray the impressions which a reader of the record receives. It is a composite photograph that is recorded on the mind. Many of the incidents, viewed singly, may be thought inconsequential and trivial; but, when they are *Page 814
viewed as a part of the whole picture, their significance is then properly measured and understood.
It may not be said that the troubles and difficulties between these parties are traceable to their children. The defendant states:
"My wife and I never talked about any trouble with the children."
The plaintiff testifies:
"The children didn't try to lay any plans. He had his own way about everything. What the children want, I have nothing to do with."
In this connection it may be incidentally said that the children, except one son, who was apparently moved by pecuniary motives, took the mother's part, and defended her both in and out of court.
Apparently the defendant justifies his conduct as to his refusal to give his wife money by his furnishing food and necessaries in the home; that his refusal to talk to her is accounted for by her refusal to talk to him, and that she never apologized to him for any remarks she ever made; that his refusal to consult and act with his wife in the management of the home is based on the fact that it is his home, and that he has a right to do as he pleases, without reference to her wishes. Apparently the conscience of the defendant is clear, since he testified:
"I don't remember of a single word that I have spoken to my wife that causes me to feel any regret."
The cause is not in the words spoken, but in the words unspoken. It was not necessary for him to say anything to indicate how oblivious to him the wife was in his home. A granddaughter, who was assisting in the care of the plaintiff during one of her sicknesses, testified that while the plaintiff was bedfast the defendant did not go to her bedroom or talk to her, and "after she was able to get up and come to the table, my grandfather did not speak to her." The daughter, Mrs. Kline, testified:
"I never saw my father go near her, to manifest any interest in my mother's condition. During the past seven or eight *Page 815
years of my frequent visits to the home, my father did not treat mother with the least consideration."
A son-in-law testified that, during one sickness of the plaintiff's, he asked the defendant if he would assist in lifting Mrs. Cruse, to place her in a more comfortable position. He received the answer: "Not by a damn sight." He ordered a neighbor, Mrs. Miles, who came to the home to perform acts of charity and mercy during his wife's sickness, "not to come any more." The defendant testified:
"There is not a single incident in my entire married life that there has been any trouble that I now feel that I have been in any way to blame for."
This self-serving declaration is valueless, and the record affords him no corroboration to strengthen his belief.
Seven or eight years before this trial, defendant left his wife's bed, and has ever since remained entirely away from her bed and bedroom. He voluntarily chose another room in the home, and has since occupied it alone. The wife now desires to have thea mensa joined to the a thoro.
His conduct was such as to instill fear in the heart of his wife. That his conduct made his wife nervous and aggravated her condition, there cannot be a question of doubt. His wife's own statement is:
"His treatment during these years affected me — many a night I never slept."
There is ample corroboration.
We could incumber this opinion with many incidents which disclose the attitude of the defendant toward his wife, which were not provoked by the wife. One daughter testifies that, on one occasion when her mother asked her father, "What are you looking for?" he said, "It's none of your damn business;" and that "he started in to abuse her about the children, and charged that she was trying to turn the children against him." Another daughter testifies that she heard some things which caused her to know that her parents were having trouble. She heard her mother say: "If it is a divorce you want, I will not grant it." To which the defendant replied: "I will give you until September to decide."
During the last sickness of the plaintiff, in 1924, he did not *Page 816
once enter her bedroom, where she was lying sick, and never inquired how she was feeling or getting along.
The final culmination which led the plaintiff to file the instant suit was the conduct of the defendant on the evening of December 3, 1924. It appears that, during the afternoon of said day, a conversation occurred between the defendant and his son-in-law Grell, who made the suggestion that the defendant might handle his property in such a way as to serve the best interest of all his children, and that the farm that was rented to Joe should be rented "for the high dollar." True to his nature and disposition, the defendant made it plain to Grell that he invited no suggestions. During that evening, and after the son-in-law and his wife had gone home, the defendant told plaintiff that he (defendant) did not seem to be able to please anybody.
"I understand you and the children, and even the grandchildren, are not satisfied with the way I am doing. Get you a man and have a settlement."
The wife replied:
"I don't settle that easily or that quick."
His attitude and talk caused his granddaughter, Alice Grell, who lived in the defendant's home, taking care of the house and looking after the interests of the plaintiff, to go to a neighbor's, where the son Elmer was employed, to tell him what she had heard. The son immediately came to the father's home, and, upon his asking the mother what was the trouble, she said: "The same trouble again." Thereupon, Elmer went into the kitchen, and said to his father:
"What do you mean? Mother just got over a hard sick spell. She isn't well, and starting in like this will be the cause of her death some day. I don't think you ought to do things like that."
The defendant, without a moment's hesitation, told the son that, if he wasn't satisfied, he could get through the hole the carpenter left, and "to get out of there." The defendant immediately went to the storeroom and procured a shotgun. Elmer, being told by Alice of this movement, left the house. The defendant loaded the gun at that time, returned to the dining room with the gun, and asked: *Page 817
"Where is he? Now let him come, if he wants to; I will show him."
A little later, he went out and cut the telephone wires, and at all times that evening carried the loaded gun with him.
Plaintiff had nothing to do with this transaction, but it is obvious that the actions of the defendant on this occasion caused her great worry. There was no occasion for such conduct on the part of the defendant. The son Elmer was fully justified in having his father arrested and taken by the sheriff the same evening to the house of his son Joe, in order that the plaintiff and a daughter, who had come to the house, might not be further disturbed. The plaintiff that evening had observed the defendant secure the gun. She testified:
"When my husband came with the shotgun, I ran out of doors and stayed out of doors quite a while. It was after dark. I was chilled. I stayed in the yard until Mrs. Kline [her daughter] came, and they made me go into the house and go to bed."
The daughter testified that her mother appeared to be very excited and very nervous, and that she was hardly able to walk.
It is true that the evidence in this case does not show that the defendant ever used personal violence toward the plaintiff; but a husband may be guilty of cruel and inhuman treatment, within the meaning of the statute, without personal violence. It is sufficient that the acts charged are shown to endanger her life. Dabelstein v. Dabelstein, 191 Iowa 808; Thompson v.Thompson, 186 Iowa 1066.
In the Thompson case it is said:
"It takes more than the physical body to make up the entity known as a human being. The mind can grasp the possibility of inhuman treatment that does not endanger life. Whether it does or not, depends, not only upon the physical, but upon the moral, mental, or spiritual quality of the one made subject to the treatment."
We will not pursue the inquiry further. Plaintiff told the court:
"I can't stand the continued mode of existence I have been compelled to endure the past seven years." *Page 818
We are satisfied that the plaintiff is entitled, during the few remaining years of her life, to enjoy a mental peace and the spiritual consolation of her religion. The conduct of the defendant cannot be excused or legally justified. The wife is entitled to be treated differently from a medieval chattel. She has worked and saved along with the defendant during the years. She has been patient. She now elects to have another home, and to be free from the environment which has caused her so much worry and distress. The facts establish her case. The judgment and decree entered must be reversed, and it is ordered that the trial court enter a decree in conformity to the prayer of plaintiff's petition, and that judgment be entered against the defendant in favor of the plaintiff for her support and maintenance in the sum of $100 per month, to commence on the 6th day of April, 1926, said sum to be paid on the 6th day of each month thereafter during the life of the plaintiff, or until the further order of the district court; that said judgment constitute a lien on the real estate of the defendant; and that the costs and the accruing costs be taxed against the defendant. — Reversed.
EVANS, ALBERT, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445642/ | Affirming.
J.R. Magowan as administrator of Emma G. Magowan sued H.C. Ledford to recover certain articles of furniture. He was successful, and Ledford appeals.
Mrs. Magowan died intestate on October 4, 1925, and 15 days thereafter J.R. Magowan qualified as administrator of her estate. She owed about $650, and the only estate she left was some personal property which was appraised at $465.50.
At the time of her death she was living on a farm, which had belonged to her husband, John T. Magowan, who died many years before she did, and this farm had been sold and was at her death owned by H.C. Ledford.
The administrator was not very active in selling off this property and settling this estate, and Ledford began to insist on possession. About March 1, 1926, Ledford moved in and took possession under some sort of an arrangement with the administrator. They are unable now to agree just what was the arrangement they made or to agree at all.
Ledford claims he purchased this furniture outright for $300 and gave the administrator the right to repurchase it within six months, which he never did, and, after the expiration of over a year, Ledford sold a portion of this furniture for $650. Thereupon Magowan brought this suit to recover possession of the property.
Magowan's contention is that he simply borrowed $300 from Ledford, due in six months, and left with him the furniture; that both before and after the expiration of that time he asked about and obtained from Ledford extensions of this time; and that he never consented for Ledford to sell any of this furniture.
Ledford and Magowan agree about nothing, and each denies everything the other says. About the only thing on which they approach an agreement is that in *Page 729
July, 1926, they made the following written memorial of their agreement:
"Mt. Sterling, Ky., July 28, 1926.
"This is to certify that I have this day sold to H.C. Ledford all of the household goods as Administrator also the kitchen furniture that is now on the place includes every thing except the pictures and books for the sum of $200.00 Two Hundred which is now to be paid. I J.R. Magowan have the privilege to redeam this property any time in the next six months at same price. Mr. Ledford will take the best care he can of this property and will not sell anything until the six months is out.
"J.R. Magown."
They do not entirely agree about this paper as Ledford insists the words "at same price" have been added since the paper was executed.
This memorandum is not all we have; there are two checks in this record that throw much light on this transaction.
"Mt. Sterling, Ky., July 28, 1926.
"Pay to the order of Judge E.W. Senff $200.00 Two Hundred Dollars for J.R. Magowan for Mrs. Emma Magowan Administrator
"H.C. Ledford by D.R. Ledford
"To the Traders' National Bank, Mt. Sterling, Ky."
"Mt. Sterling, Ky., July 28, 1926.
"Pay to the order of J.R. Magowan $100.00 One Hundred Dollars For farming implements and buggie horse
"H.C. Ledford by D.R. Ledford.
"To the Traders' National Bank, Mt. Sterling, Ky."
Before discussing these, we want to say that, though this furniture had been appraised at only $296.50, yet the proof shows it is very valuable antique furniture and worth between $3,000 and $4,000 and that Ledford has sold six pieces of it for $650. *Page 730
By the judgment appealed from, Ledford is required to deliver to the administrator the furniture that has not been sold and to pay him the $650 received for the furniture he sold, less the $300 he let him have when this arrangement was made.
From that judgment Ledford appeals, and is complaining of the failure of the court to uphold this transaction in toto, and Magowan has prosecuted a cross-appeal and is complaining because the court required Ledford to pay him $650 for the six pieces of furniture he had sold instead of requiring him to deliver to him the pieces themselves.
Both are asking us to say just what sort of a contract this memorandum is — whether it is a conditional sale, as Ledford contends, or a mortgage, as is contended by Magowan.
We shall not say what this particular instrument is, but will give a name to this whole transaction. It is a fraud.
If it were not for the fact that Magowan is before us as administrator of this estate and that there are a lot of innocent and unpaid creditors, we would leave these men where we find them, but these creditors should not be made to suffer because of what these two men have undertaken to do.
Why we say this is a fraud: Ledford knew Magowan held this property as administrator of his mother, and he claims to have bought all of this furniture for $300, yet Magowan personally wanted to get $100 out of the deal, so, instead of writing $300 into his memorandum, $200 was inserted, and, when he gave his checks, he made $200 payable to the county judge, thus giving the creditors of this estate only two-thirds of what he was to pay and for the other $100 he gave a check to Magowan, noting therein that it was for "farming implements and buggie horse."
In his testimony he admits he got no farming implements, buggy, or horse from Magowan, does not claim he was to get such, and thus discloses this whole thing was a fraud by which he sought to enable Magowan to get for his personal use $100, and he hoped to get for $300 furniture shown to be worth ten times that sum, but the creditors were to get only $200.
He knew Magowan was arranging to filch $100 from this estate, and he actively helped him do so. Ledford *Page 731
testified that Magowan said he had to have $100, and that he told him Judge Senff said this money had to apply on the debts of Mrs. Magowan. Magowan then suggested that a check for $100 be made for farming implements, etc., and Ledford did that. He then puts in evidence a purported settlement by Magowan as administrator of his mother, wherein he accounts for only $200 as the amount received for this furniture.
The contemplation of such trickery is saddening, and Ledford, in aiding and abetting it, is just as culpable as Magowan in its commission.
"The representative's sale or pledge of assets or other transactions made for purposes other than the due discharge of his duty as fiduciary will not be sustained against the interests of the estate, where the person with whom he dealt had notice of his bad faith or breach of trust, and in such case the transaction may be set aside and restitution enforced." 24 C. J. p. 117, sec. 561.
The judgment is affirmed on both original and cross appeals. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4261086/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FREDDIE SOLOMON, )
)
Appellant, )
)
v. ) Case No. 2D17-3741
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed April 4, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Wayne M. Durden, Judge.
Freddie Solomon, pro se.
PER CURIAM.
Affirmed.
NORTHCUTT, KHOUZAM, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4261083/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSHUA ADAMS, )
)
Appellant, )
)
v. ) Case No. 2D16-4672
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 4, 2018.
Appeal from the Circuit Court for Polk
County; John K. Stargel, Judge.
Howard L. Dimmig, II, Public Defender,
and Matthew D. Bernstein, Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Michael Schaub,
Assistant Attorney General, Tampa, for
Appellee.
PER CURIAM.
Affirmed.
LaROSE, C.J., and CASANUEVA and ATKINSON, JJ., Concur. | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4067657/ | CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
01-14-1019-CR
FILED IN
August 31, 2015 1st COURT OF APPEALS
HOUSTON, TEXAS
8/31/2015 4:29:29 PM
1ST Court of Appeals CauseNo. CHRISTOPHER A. PRINE
1398928
Clerk
301 FANNIN, SUITE 245 232ND District Court
HOUSTON, TX 77002 The State of Texas
Vs.
HUNG TRUNG LE
Dear Sir or Madam:
Please be advised that the defendant in the above styled and numbered cause received his/her
clerk's record on 08/21/2015.
Trusting this information will prove helpful, I remain…..
Sincerely,
/s/ N. Salinas, Deputy
Criminal Post Trial
1201 Franklin P.O. BOX 4651 HOUSTON, TEXAS 77210-4651
S:FormsLib\Crim\PostTrial\Appeal Page 1 of 1 REV. 01-08-03 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211618/ | Case: 15-41117 Document: 00513540868 Page: 1 Date Filed: 06/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41117 FILED
Summary Calendar June 9, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADISLADO PAREDES-ROSALES, also known as Jose Luis Arcos-Ortiz, also
known as Kid, also known as Amador Espinoza Matuto,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CR-281-41
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
Adislado Paredes-Rosales pleaded guilty of conspiracy to possess with
intent to manufacture and distribute methamphetamine, and he was
sentenced to a 225-month term of imprisonment and to a five-year period of
supervised release. Paredes-Rosales gave timely notice of his appeal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-41117 Document: 00513540868 Page: 2 Date Filed: 06/09/2016
No. 15-41117
Paredes-Rosales contends that the magistrate judge erred in refusing to
appoint substitute counsel. He asserts that his guilty plea should be vacated
because there was a complete breakdown in communication between him and
his attorney that was so severe that his Sixth Amendment right to counsel was
implicated and the voluntariness of his guilty plea was undermined. Paredes-
Rosales contends also that the magistrate judge did not have jurisdiction
because the district court did not make a formal referral of the matter. The
latter contention will be discussed first, as it implicates this court’s
jurisdiction.
“A magistrate judge may be assigned such additional duties as are not
inconsistent with the Constitution and laws of the United States,” and the
district court may designate a magistrate judge to hear and determine any
pretrial matter. 28 U.S.C. § 636(b)(1)(A) & (3). The magistrate judges in the
Eastern District of Texas are authorized by Local Rule CR-59 to perform duties
conferred by Congress. Under the Criminal Justice Act, magistrate judges are
required to appoint counsel for financially eligible criminal defendants, and
“may, in the interests of justice, substitute one appointed counsel for another
at any stage of the proceedings.” 18 U.S.C. § 3006A(b) & (c). Thus, the
magistrate judge’s authority over the motions was provided by statute and by
rule.
Paredes-Rosales did not ask the district court to review the magistrate
judge’s decision denying counsel’s motion for leave to withdraw and his pro se
motion for appointment of substitute counsel. “[A]ppellate courts are without
jurisdiction to hear appeals directly from federal magistrates.” United States
v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980); see also § 636(b)(1)(A). Because
this court lacks jurisdiction to review the magistrate judge’s order, the appeal
is DISMISSED IN PART.
2
Case: 15-41117 Document: 00513540868 Page: 3 Date Filed: 06/09/2016
No. 15-41117
The record does not support Paredes-Rosales’s assertion that his guilty
plea was involuntary because it was uncounseled. This contention is refuted
by Paredes-Rosales’s statements under oath at the rearraignment and at
sentencing. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). To the extent
that Paredes-Rosales wishes to raise a claim of ineffective assistance of
counsel, the claim has not been considered because it was not litigated fully in
the district court. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Finally, Parades-Rosales contends that the district court committed a
procedural error at sentencing by considering an untimely Government
objection to the presentence report. The district court has “broad discretion”
in deciding whether to entertain an untimely objection to the presentence
report. United States v. Angeles-Mendoza, 407 F.3d 742, 749 (5th Cir. 2005).
No abuse of discretion has been shown. See id. at 749 & n.11. The judgment
is AFFIRMED IN PART.
3 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435301/ | 1. Corporations: POWERS: PLEADING. Where in an action by a foreign corporation the corporate capacity of the plaintiff is alleged generally in the petition, as authorized by section 2716 of the Code, and the facts relied on by the defendant in denial of *Page 436
such capacity are not specifically stated in the answer, the plaintiff's articles of incorporation under the foreign state, duly authenticated, are competent evidence of the corporate capacity of the plaintiff, even though there is not contained therein all that is required in such articles under the laws of this state.
2. Contract: ESTOPPEL: EVIDENCE. The contract sued upon being denied by the defendant under oath, it was shown that her name was signed thereto by her husband, and that she afterwards received its beneficial results, and promised to fulfill its terms, Held, that she was estopped from denying either her husband's original authority to bind her upon the contract, or her subsequent ratification thereof.
3. Corporations: CONTRACTS: POWERS: BURDEN OF PROOF. Contracts made or received by a corporation are presumed to be within its corporate powers, and a party denying the authority of a corporation to make a contract sued upon has the borden of proving that issue.
4. Contract: RATIFICATION: EVIDENCE. The defendant having given a receipt acknowledging performance of the contract sued upon by the plaintiff, and promising performance on her part, held, that under the circumstances of this case the receipt was competent as evidence of the defendant's ratification of the contract, though the receipt constituted a contract in itself.
5. _____: ASSIGNMENT: PERFORMANCE. A party cannot excuse his performance of a contract upon the ground that an assignee seeking to enforce the same acquired his interest without consideration.
Appeal from Chickasaw District Court. — HON. L.E. FELLOWS, Judge.
I. The plaintiff offered in evidence its articles of incorporation under the laws of Ohio, duly authenticated, to which the defendant objected as "irrelevant, 1. CORPORATIONS: immaterial and incompetent," the overruling of powers: which objection is assigned as error. The pleading. argument is addressed to the competency of the evidence, the appellant contending that the articles were incompetent, because they did not contain all that is required in such articles under the laws of this state, such as the highest amount of indebtedness allowable, when the corporation was to begin and terminate, by what officers it was *Page 438
to be conducted, and whether private property was to be exempt from corporation debts, etc. Section 2717 of the Code requires that when the corporate capacity has been alleged generally, as authorized in section 2716, it shall not be sufficient to deny the corporate capacity in terms contradictory of the allegation, but the facts relied on shall be specifically stated. The facts relied on in argument are not specifically stated in the answer. The articles offered tended to disprove the allegations of the answer, and were, therefore, properly admitted. This is not a question of presumptions as to what the laws of another state are, as in Bean v. Briggs, 4 Iowa, 464, and Sayre v. Wheeler,32 Iowa, 560, but of pleading and proof as to the corporate capacity of a party under our own statute.
II. Appellant's objection to admitting the written contract sued upon in evidence was overruled. The answer denies under oath that the defendant signed or authorized 2. CONTRACT: the signing of her name to that contract. estoppel: evidence. The testimony shows without conflict that her husband signed her name to it, and that she afterwards received the grain from Mr. Redel, receipted to him for it, and promised to deliver the notes. By receiving the beneficial results of the contract she is estopped from denying an original authority or ratification. Eadie v.Ashbaugh, 44 Iowa, 520. By the ratification the appellant made the contract her own, and, therefore, it was properly admissible as showing its terms.
III. The appellant contends that, as under its articles, the plaintiff was formed for the purpose of manufacturing and selling machines, "and all things incident 3. CORPORATIONS: thereto," the taking of assignment of the contracts: contract was foreign to that business, unless powers: shown to be connected with it. In Straus v. burden of Ins., Co., 5 Ohio St. 62, cited by the, proof. appellant, it is said: "Unless expressly restrained by its charter, every corporation has the incidental *Page 439
power to make any contract, and evidence it by any instrument that may be necessary and proper to accomplish the object for which it is created. A note or bill, therefore, made or received by such corporation is prima facie within its corporate powers, and, therefore, valid." In the same case the court quotes approvingly from Angell Ames on Corporations, page 198: "The presumption is always in favor of the validity of the contract; or, in other words, it will be presumed that the debt was due, or the note or other security is shown." This places the burden on the defendant to show the want of power against this presumption.
IV. The court admitted, over the defendant's objection, the receipt given by the appellant to Redel for the flax raised under the contract. In addition to 4. CONTRACT: acknowledging receipt of the flax, it states ratification: an agreement to deliver the same notes evidence. described in the contract "as soon as the same can be obtained." The ground of the objection is that this is a new contract, and irrelevant to the issues. It was admissible as evidence of ratification, and, though it might constitute a contract of itself in the absence of the former, yet, in view of the former, it was admissible as showing ratification.
V. On the cross-examination of Redel the appellant sought to show that Redel had secured the notes, and that he did not receive anything from the appellee for the 5. ____: assignment: assignment of the contract. The appellee's performance. objections were properly sustained, because this was not a cross-examination to anything that had been called out in chief, and because it did not exempt the appellant from the obligations of the contract, it not being claimed that she even attempted to deliver the notes. It was immaterial to the appellant what consideration the appellee had paid for the assignment, if it had in fact been made.
We have considered all the errors assigned and discussed, and reached the conclusion that the judgment of the district court should be AFFIRMED.
*Page 617 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435138/ | The action in the district court was one for personal *Page 187
injury against the defendant city, for damages resulting to the plaintiff through negligent maintenance of its sidewalks by the defendant. From a judgment for the city, plaintiff purported to appeal pursuant to the statute. The appellee challenges the sufficiency of the notice to confer jurisdiction upon this court, because it was not addressed to the mayor of the defendant city, either by name or by title, and therefore service upon such mayor or acceptance by him was not effective. The purported notice of appeal was addressed as follows:
"To — The City of Ames, Iowa, or, to J.Y. Luke, its attorney, and to L.E. Davisson, Clerk of the District Court of Story County, Iowa."
Service thereof was accepted by the mayor of the city, as follows:
"Service of the above and foregoing Notice of Appeal with receipt of copy is hereby accepted and acknowledged this 25th day of July, 1925.
"(Signed) F.H. Schleiter,
"Mayor of City of Ames, Iowa, Defendant."
The sufficiency of the notice, or the service thereof, is not otherwise challenged. It is stipulated in the record that F.H. Schleiter, who accepted service, was at that time mayor of the defendant city. He was not a party to the suit. It is also stipulated that the city of Ames was the sole defendant therein, and therefore the only adverse party.
The argument of the appellee is predicated upon the broad proposition that:
"When a written notice is required to be served upon a person, the law contemplates that it shall be addressed to him."
The foregoing proposition was first stated by this court inSteele v. Murry, 80 Iowa 336, and has been repeatedly incorporated in our subsequent opinions. Applying it to the case at bar, appellee argues that, the mayor being the only person served, it was requisite that the notice should have been addressed to him, and that failure in that respect rendered the notice nugatory.
The special reliance of the appellee in support of its motion is upon certain of our later cases, wherein the foregoing language has been quoted. The latest of these cases are In re *Page 188 Paving Assessments, 193 Iowa 1234, and Farmers St. Sav. Bank v.Town Council of Fairbank, 199 Iowa 1275.
Prior cases especially relied on by appellee are In re Estateof Anderson, 125 Iowa 670; Sleeper v. Killion, 166 Iowa 205; andFairchild v. Plank, 189 Iowa 639.
If the interpretation which appellee puts upon our later cases must be sustained, then we have overruled some of our previous cases quite unconsciously. The claim of appellee is not that we have actually held the notice insufficient in form, in a case like that at bar, but that such is the necessary logical result of our holding in the cited cases. This contention is urged with forceful argument, which draws its plausibility from the broad statement oft repeated in our decisions, which we have above quoted. We deem it desirable, therefore, to bring face to face all our decisions on this subject, with a view of harmonizing them, if inconsistency be found therein.
The statute expressly provides that a notice of appeal from the district court to this court shall be served "on the adverse party, his agent, or * * * attorney." Section 12837, Code of 1924.
In Haggard v. Independent Sch. Dist., 113 Iowa 486, we held squarely that a notice of appeal addressed to the independent school district as the adverse party was sufficient in form, and held further that the service of such notice upon the president of the school board, as provided by statute, was a good service, even though the notice was not addressed to such president, either by name of the person or of the office.
In Bloom v. Sioux City Traction Co., 148 Iowa 452, we held that the failure of the notice of appeal to name the clerk of the district court as an addressee did not vitiate the notice, because the clerk was not a party in interest, but was a mere official designated by the statute as a person upon whom notice should be served. This holding was followed in Lightner v. Boardof Supervisors, 156 Iowa 398.
In McCartney v. City of Washington, 124 Iowa 382, a preliminary notice of personal injury was addressed to the city, and to no other addressee. Acceptance of service was obtained from the mayor and from the city solicitor. Both the notice and the service were held good. In some of our cases a notice of appeal *Page 189
addressed to the adverse party alone, but served upon the attorney, has been held sufficient. See First Nat. Bank v.Eichmeier, 153 Iowa 154. Likewise in Fairchild v. Plank, 189 Iowa 639.
None of the foregoing cases have been overruled in terms. But the appellee contends that they have been overruled in effect by our decision in the In re Paving Assessments case, 193 Iowa 1234. The discussion in that case is somewhat broader than the decision. The actual decision in that case was predicated on the following ground:
"We hold that the notice in the instant case, not beingaddressed to any person, was not sufficient to confer jurisdiction," etc.
In that case the city of Odebolt was the sole adverse party. It was not named as addressee. The notice was addressed to the "mayor" and the "city council." It was served on the "clerk," who was not named as addressee. The notice was not addressed to the mayor by name, but only to his official designation. The notice, therefore, was not addressed to any person. Whether the notice and the service thereof would have been good if it had been addressed to the mayor by name, and if it had been served upon him, is a question we have no occasion to discuss here; nor was it discussed in the cited case. But see Claflin, Mellen Co. v.Iowa City, 12 Iowa 284. What is clear is that the holding of invalidity of the notice in the Odebolt case was not inconsistent with any of our previous decisions. The claim, therefore, that the cited case has overruled or superseded our prior cases cannot be sustained.
Though our statutes relating to appeals from inferior tribunals to the district court vary somewhat in their terms as to the procedure to be followed, yet even in such cases we have never held a notice defective in form which named the adverse party as addressee. Whether the terms of any statute would require such a holding in the event that such a case were presented to us, we need not now consider. Sufficient now to say that no such requirement appears in the statutes pertaining to notice of appeal from the district court to this court. In the absence of some specific statutory requirement, the general rule undoubtedly is that, where a notice of appeal is properly addressed to the adverse party by name, it is sufficient in form; *Page 190
and if such adverse party be an artificial or corporate body, service of such notice upon officials or agents specified by the statute is a good service upon the adverse party, and confers jurisdiction over it, even though the name of the official or agent be not included as an addressee.
The official or agent in such a case is merely the statutory medium through which service of the notice is made upon theaddressee. Jurisdiction is thereby acquired, not over the official or agent, but over the addressee.
In this case the notice of appeal was addressed to the "city of Ames" as the sole adverse party. Service was accepted by the mayor of such city in his official capacity. Both the notice and the service thereof were, therefore, sufficient.
Appellee's motion to dismiss is, accordingly, — Overruled.
De GRAFF, C.J., and STEVENS, FAVILLE, VERMILION, ALBERT, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247177/ | PATRICK MICHAEL DUFFY, United States District Judge *764This matter is before the Court on Defendant's motion to dismiss (ECF No. 30) and Plaintiff's motion for conditional certification (ECF No. 33). For the reasons set forth herein, Defendant's motion to dismiss is denied and Plaintiff's motion for conditional certification is granted.
BACKGROUND
On January 24, 2017, Plaintiff commenced this action on behalf of herself and all others similarly situated, seeking unpaid minimum wages pursuant to the Fair Labor Standards Act ("FLSA") and the South Carolina Payment of Wages Act ("SCPWA"). Plaintiff and the putative class seek recovery from Defendant, who owns and operates sixty-seven restaurants nationwide known as Smokey Bones.
Plaintiff primarily alleges that Defendant, while taking advantage of the FLSA's tip credit provision, required her and the putative class members to perform non-tipped side work that was not related to their tipped occupations as servers and bartenders, as well as requiring that Plaintiff and the putative class members spend more than twenty percent of their shifts performing non-tipped side work that was related to their tipped occupations. Additionally, Plaintiff alleges that she and the putative class members were required to pay Defendant out of their tips when a customer walked out, were required to purchase additional Smokey Bones t-shirts with their tips, and were never notified that Smokey Bones was paying them less than minimum wage pursuant to the FLSA's tip-credit provision. Plaintiff alleges that all three of those requirements violate the tip-credit provision. See 29 U.S.C. § 203(m).
PROCEDURAL HISTORY
Defendant filed its motion to dismiss on May 31, 2017. Plaintiff responded on June 14, and Defendant replied on August 31. Plaintiff filed her motion for conditional certification on June 2. Defendant responded on June 30, and Plaintiff replied on July 7. Accordingly, these matters are now ripe for consideration.
Defendant's Motion to Dismiss
Defendant moves to dismiss count one of Plaintiff's complaint on the grounds that Plaintiff has failed to allege that she earned less than minimum wage during a particular workweek, that the twenty-percent rule does not support a cause of action, and that Plaintiff's allegations do not violate the FLSA's dual-jobs regulation. The Court will address each argument in turn.
LEGAL STANDARD
A motion to dismiss pursuant Rule 12(b)(6) for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli , 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6)...does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To be legally sufficient, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
*765In Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court articulated a "two-pronged approach" to test the sufficiency of a complaint. Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, the complaint must "contain factual allegations in addition to legal conclusions." Robertson v. Sea Pines Real Estate Cos. , 679 F.3d 278, 288 (4th Cir. 2012). Under Rule 8's pleading standard, "a formulaic recitation of the elements of a cause of action will not do," id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (internal quotation marks omitted), and " 'naked assertion[s]' devoid of 'further factual enhancement' " will not suffice, Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Second, the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "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." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). More specifically, the complaint must demonstrate that the plaintiff's right to relief is more than a mere possibility, but it need not rise to the level of evincing a probability of success. Id. Accordingly, "[d]etermining whether a complaint states a plausible claim for relief will...be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
When ruling on a Rule 12(b)(6) motion to dismiss, the trial judge must accept as true all of the facts alleged in the plaintiff's complaint and construe all reasonable inferences in favor of the plaintiff. E.g. , E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011). The court must determine whether the allegations give rise to a plausible right to relief, Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ; however, it should "not accept 'legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments,' " United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc. , 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart , 680 F.3d 359, 365 (4th Cir. 2012) ); see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). Thus, although the court must accept a plaintiff's well-pleaded factual allegations as true for purposes of ruling on the motion, the complaint must nevertheless satisfy the "two-pronged" test articulated by the Supreme Court. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.
ANALYSIS
Defendant first argues that Plaintiff's failure to allege that she earned less than minimum wage in any particular workweek is fatal to count one of her complaint. Citing this Court's decision in Schmidt v. Charleston Collision Holdings, LLC , Defendant argues that so long as Plaintiff's average wage per hour worked during the workweek is above minimum wage, there is no violation of the FLSA. No. 2:14-cv-1094-PMD, 2014 WL 10102245, at *3 (D.S.C. July 14, 2014).1 Utilizing the FLSA's tip credit provision, § 203(m), Defendant paid Plaintiff a direct wage of $2.13 an hour and then applied Plaintiff's tips to cover the gap between the $2.13 *766direct wage and the $7.25 federal minimum wage. According to Defendant, so long as Plaintiff's average wage per hour, including her tips, was above minimum wage over the course of the workweek, then Defendant could not have violated the FLSA. Defendant's argument derives from the Second Circuit's decision in United States v. Klinghoffer Bros. Realty Corp. , 285 F.2d 487 (2d Cir. 1961), where that court held that an employer had not violated the FLSA because their average hourly wage over the course of a workweek exceeded minimum wage. Id. at 490. Thus, Defendant asserts that count one should be dismissed.
Plaintiff disagrees, relying primarily on Romero v. Top-Tier Colorado LLC , 849 F.3d 1281 (10th Cir. 2017). In Romero , the Tenth Circuit addressed this question and concluded that "an employer doesn't comply with its federal minimum wage obligations just because its employees receive at least $7.25 in tips. Instead, an employer complies with its minimum-wage obligations if it 'pays' its employees at least $7.25 an hour in 'wages.' " Id. at 1282. "[W]hile an employer can treat tips as wages under certain circumstances," id. , Plaintiff claims that Defendant impermissibly did so here. In other words, Plaintiff claims that when she was performing non-tipped side work, she did not qualify as a tipped employee under § 203(m) of the FLSA and was entitled to be paid the full minimum wage of $7.25 an hour for the hours she spent performing non-tipped side work. Thus, Plaintiff claims that even if her total direct wages and tips for the week averaged to greater than minimum wage, Defendant was still not entitled to pay her the $2.13 tip-credit wage when she was performing non-tipped side work. Plaintiff's claim for non-tipped related side work is based on the FOH's twenty-percent rule,2 while her claim for non-tipped unrelated side work is based on the dual-jobs regulation.3 The FLSA treats the related and unrelated non-tipped side work differently, but the majority of courts, including this Court, have concluded that a plaintiff can allege an FLSA cause of action based on both types of non-tipped tasks. Irvine v. Destination Wild Dunes Mgmt., Inc. , 106 F.Supp.3d 729, 733 (D.S.C. 2015). The FOH provides the basis for Plaintiff's cause of action based on her performance of non-tipped side work that was related to her tipped occupation. According to the FOH, an employer violates the FLSA if it requires its tipped employees to spend more than twenty percent of their time performing non-tipped side work that is related to their tipped occupation.
Defendant recently provided the Court with notice of the Ninth Circuit's recent decision in *767Marsh v. J. Alexander's LLC , 869 F.3d 1108 (9th Cir. 2017). Marsh largely supports Defendant's arguments related to the tip-credit provision as it applies in this case. In Marsh , the Ninth Circuit concluded that the Department of Labor's Wage and Hour Division's Field Operations Handbook ("FOH") was not entitled to deference under Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), "because the FOH § 30d00(f) is both inconsistent with the regulation4 ...and attempts to 'create de facto a new regulation.' " 869 F.3d at 1121 (quoting Christensen v. Harris County , 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ).
The Court respectfully declines to follow Marsh and instead adopts the majority approach endorsed in Irvine , Romero , and Fast v. Applebee's International, Inc. , 638 F.3d 872 (8th Cir. 2011). The Court takes this view for a number of reasons. First, the Tenth Circuit correctly notes that Klinghoffer was decided before the FLSA's tip-credit provision existed. Romero , 849 F.3d at 1285. Thus, Defendant's Klinghoffer -derived argument has very little weight. Second, Defendant's argument runs counter to the FLSA's plain requirement that an employer pay its employees a direct wage in addition to their tips. See id. As discussed in Romero , if the Court were to accept Defendant's argument then employers would not need to pay an employee anything "so long as the employee's weekly tips-when divided by the number of hours he or she worked-average at least $7.25 an hour." Id. The Court cannot accept Defendant's argument because § 203(m) of the FLSA "explicitly requires employers to pay their tipped employees something , regardless of how much those employees receive in tips." Id. ; see also 29 U.S.C. § 203(m) ("[T]he cash wage paid such employee...shall be not less than [$2.13 an hour.]"). Finally, although not entitled to any special deference, the Department of Labor submitted an amicus brief in Romero supporting the plaintiff's position that Klinghoffer had no applicability in the tip-credit context. All of these factors weigh heavily in Plaintiff's favor. The Court concludes that Plaintiff can state a cause of action against Defendant even if her average wage per hour was above minimum wage, so long as she can sufficiently allege that Defendant improperly paid her using the tip-credit provision for the hours she spent performing related or unrelated non-tipped side work. She has done so here.
Plaintiff alleges that Defendant required tipped workers to "spend a substantial amount of time performing non-tip producing work including, but not limited to, general cleaning of the restaurant, rinsing, washing, and rolling silverware, and making sauces and refilling condiments." (Am. Compl., ECF No. 10, at ¶ 33.) Plaintiff also alleges that "Defendant requires tipped workers to perform non-tipped work before the restaurant is open or after the restaurant has closed and customers have left." (Id. at ¶ 35.) "For instance, Defendant typically requires tipped workers to arrive at least an hour prior to serving their first customer and to stay at work approximately one and a half to two or more hours after serving their last customer." (Id. at ¶ 36.) Plaintiff then provided further examples of non-tipped work she and the putative class members were required to perform. Those examples include:
(1) sweeping floors; (2) taking out trash and cleaning trash receptacle areas; (3) restocking to-go boxes and other items; (4) filling bottles and pans with dressings and labeling them; (5) cleaning tables, chairs, and booths; (6) cleaning baseboards and lamps; (7) scrubbing walls and drains; (8) making sauces following *768restaurant recipes; (9) cleaning out the keg room; (10) cleaning and restocking caddies; (11) rinsing dirty silverware and running it through the dishwasher; (12) polishing and rolling silverware; (13) removing and replacing rechargeable batteries from tabletop customer computers; (14) prepping and garnishing food and desserts before serving to customers; (15) deep cleaning light fixtures, booths, and woodwork with Murphy's Oil; (16) restocking mini fridges with sour cream, cheese, dressing, etc.; (17) scrubbing floors in restaurant with a deck brush; and (18) breaking down and cleaning the tea/coffee and soda stations.
(Id. at ¶ 42.) Finally, Plaintiff alleges that "[t]he non-tipped work which Plaintiff and others similarly situated were required to perform exceeded twenty percent (20%) of their time at work." (Id. at ¶ 44.)
This Court has previously rejected Defendant's arguments regarding the viability of causes of action based on the FOH's twenty-percent rule and the dual-jobs regulation. See Irvine , 106 F.Supp.3d at 735. Defendant correctly notes that this Court did not preclude the Irvine defendants from making further arguments about the twenty-percent rule's applicability to the facts of that case at a later stage of the litigation. Id. at 736. However, this Court determined that the plaintiff in that case had stated an FLSA claim under both the twenty-percent rule and the dual-jobs regulation. Id. The Court sees no reason to depart from that holding here, and viewing Plaintiff's allegations in the light most favorable to her, she has stated a cause of action under both the twenty-percent rule and the dual-jobs regulation. To the extent Defendant wishes to make further arguments about the twenty-percent rule's applicability, it may do so at the appropriate time. Accordingly, Defendant's motion to dismiss is denied.
Plaintiff's Motion for Conditional Certification
LEGAL STANDARD
Under the FLSA, employees may institute a collective action against their employer on behalf of themselves and similarly situated employees. The FLSA's collective action provision states that:
[a]n action to recover [unpaid overtime compensation] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the efficient adjudication of similar claims by "similarly situated" employees, permitting the consolidation of individual claims and the pooling of resources in prosecuting such actions against their employers. See Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ; LaFleur v. Dollar Tree Stores, Inc. , 30 F.Supp.3d 463, 467 (E.D. Va. 2014), reconsideration denied , 2014 WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied , 2014 WL 2121721 (E.D. Va. May 20, 2014) ; Lynch v. United Servs. Auto. Ass'n , 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007). In deciding whether the named plaintiffs in an FLSA action are "similarly situated" to other potential plaintiffs, courts generally employ a two-stage approach.5
*769Purdham v. Fairfax Cty. Pub. Sch. , 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (quoting Parker v. Rowland Express, Inc. , 492 F.Supp.2d 1159, 1164 (D. Minn. 2007) ); see also Regan v. City of Charleston , No. 2:13-cv-03046-PMD, 2014 WL 3530135, at *2 (D.S.C. July 16, 2014) ; Pelczynski v. Orange Lake Country Club, Inc. , 284 F.R.D. 364, 367 (D.S.C. 2012) ; Simons v. Pryor's, Inc. , No. 3:11-cv-0792-CMC, 2011 WL 6012484, at *1 (D.S.C. Nov. 30, 2011) ; MacGregor v. Farmers Ins. Exch. , No. 2:10-cv-03088-DCN, 2011 WL 2981466, at *2 (D.S.C. July 22, 2011).
The first step in this process, which is the subject of the instant Motion, is the "notice," or "conditional certification," stage. Purdham , 629 F.Supp.2d at 547. Here, "a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs" so that they can "opt-in" to the collective action. Pelczynski , 284 F.R.D. at 367-68. With regard to this notice phase, "[t]he Supreme Court has held that, in order to expedite the manner in which collective actions under the FLSA are assembled, 'district courts have discretion[,] in appropriate cases[,] to implement...§ 216(b)...by facilitating notice to potential plaintiffs.' " Purdham , 629 F.Supp.2d at 547 (quoting Hoffman-La Roche, Inc. , 493 U.S. at 169, 110 S.Ct. 482 ). At this stage, the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing that he is similarly situated to the other putative class members. Pelczynski , 284 F.R.D. at 368 ; Purdham , 629 F.Supp.2d at 547-48. "Because the court has minimal evidence, this determination is made using a fairly lenient standard." Steinberg v. TQ Logistics, Inc. , No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011). Plaintiffs must make only "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law," Purdham , 629 F.Supp.2d at 548. If the court determines that the proposed class members are similarly situated, the court conditionally certifies the class. Steinberg , 2011 WL 1335191, at *1. The putative class members are then notified and afforded the opportunity to "opt-in," and the case proceeds as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre Corp. , 229 F.R.D. 381, 387 (W.D.N.Y. 2005) ); see also Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 133 S.Ct. 1523, 1530, 185 L.Ed.2d 636 (2013) (citation omitted) (" '[C]onditional certification' does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." (citing § 216(b) )).
Second, after the court has conditionally certified the class, the potential class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated *770to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski , 284 F.R.D. at 368. At this optional "decertification stage," the court applies a heightened fact-specific standard to the "similarly situated" analysis. Steinberg , 2011 WL 1335191, at *2 ; see Pelczynski , 284 F.R.D. at 368. "Courts have identified a number of factors to consider at this stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Curtis , 2013 WL 1874848, at *3 (internal quotation marks omitted). If the court determines that the plaintiffs are not, in fact, similarly situated, it may decertify the class, dismiss the opt-in plaintiffs' claims without prejudice, and permit the named plaintiffs to proceed on their individual claims. Id.
ANALYSIS
Plaintiff requests that the Court enter an order: (1) conditionally certifying a class of all Smokey Bones servers and bartenders from January 24, 2014 to present; (2) requiring Defendant to produce the names, dates of employment, cell phone numbers, home phone numbers, e-mail addresses, last known home addresses, and the last four digits of the putative class members' social security numbers in an Excel spreadsheet within fourteen days; (3) authorizing the mailing, e-mailing, and posting of the proposed notice and consent forms to putative class members; (4) authorizing a follow-up e-mail notice reminder to the putative class members who did not respond after thirty days; and (5) setting the opt-in period as ninety days. The Court will address each request in turn, along with Defendant's request to meet and confer with Plaintiff's counsel regarding the terms of the proposed notice.
I. Conditional Certification
Plaintiff moves to conditionally certify a nationwide class of servers and bartenders who worked at any of the sixty-seven Smokey Bones locations across the country. Defendant objects to the conditional certification of the proposed class, as well as to the breadth of the proposed class in the event that a class is conditionally certified.
Plaintiff argues that the proposed class is similarly situated because they were all subject to the same policies and duties. According to Plaintiff, Smokey Bones is not a franchise and it maintains uniform policies across each of its sixty-seven restaurants. As support for this assertion, Plaintiff points to the corporate nationwide job descriptions for servers and bartenders. In those job descriptions, Smokey Bones lays out the job duties for its server and bartender positions nationwide. Those job duties include descriptions of the side work that servers and bartenders are expected to perform. (See Am. Decl. Kevin Journiette, Ex. B, Smokey Bones Corp. Job Description Server Positions, ECF No. 39-1, at 12-13; Pl.'s Mot. Certify Class, Ex. D, Decl. Victoria Reaves, ECF No. 33-5, at 12-13.) Plaintiff asserts that those nationwide job descriptions, coupled with the declarations she has submitted from servers and bartenders at three different Smokey Bones restaurants in three different states, are more than enough to demonstrate that all Smokey Bones servers and bartenders are sufficiently similarly situated to surmount the low bar of conditional certification.
Defendant disagrees, and argues that conditional certification of this action is neither warranted nor prudent. Defendant's primary argument against conditional certification is the same as the argument it made in its motion to dismiss-that Plaintiff cannot allege a violation of the FLSA because Plaintiff never made less than minimum wage over the course *771of any workweek. Because the Court has already addressed that argument above, it does not rehash it here. However, Defendant also argues that the declarations of a smattering of employees from three Smokey Bones locations are insufficient to justify conditional certification of a nationwide class of servers and bartenders. Moreover, Defendant argues that a nationwide class would be untenable as a result of the individualized inquiries that Defendant contends will be necessary.
The Court concludes that conditional certification of a nationwide class of servers and bartenders is warranted in this case. Plaintiff has produced evidence of nationwide Smokey Bones job descriptions for servers and bartenders that on their face require side work. There is no doubt that requiring side work does not necessarily violate the FLSA. However, Plaintiff has made a sufficient showing that Smokey Bones' nationwide side work policy potentially caused FLSA violations for all Smokey Bones servers and bartenders. Plaintiff and the other opt-ins' declarations state that at least three Smokey Bones locations in three different states all implemented the side work discussed in the server and bartender descriptions in such a way as to require violations of the dual-jobs regulation and/or the FOH's twenty-percent rule. The Court recognizes that Defendant has produced declarations from a number of Smokey Bones employees at various other locations throughout the country that dispute Plaintiff's claims. However, the Court does not make credibility determinations at the conditional certification stage. Curtis v. Time Warner Entertainment-Advance/Newhouse Partnership , No. 3:12-cv-2370-JFA, 2013 WL 1874848, at *6 (D.S.C. May 3, 2013). Instead, "it is sufficient that [Plaintiff has] shown a reasonable basis for [her] claim that other similarly situated plaintiffs exist." Id.
The Court also recognizes, and shares to some extent, Defendant's concern about the manageability of the proposed class and the possibility that individual determinations will predominate. Nonetheless, because Plaintiff has provided evidence of Defendant's corporate side work policy by way of the server and bartender job descriptions, the Court is skeptical that individualized determinations will predominate after the class members are identified. Regardless, the answer to that question will be far clearer after discovery is complete. Accordingly, the Court conditionally certifies Plaintiff's proposed class of servers and bartenders as it pertains to violations of the dual-jobs regulation and the FOH's twenty-percent rule.6
*772II. Class Member Information
Plaintiff seeks the names, dates of employment, cell phone numbers, home phone numbers, e-mail addresses, last known home addresses, and the last four digits of the putative class members' social security numbers. Plaintiff requests that Defendant produce that information in an Excel spreadsheet within fourteen days of the date of this Order. District courts have taken conflicting positions and approaches as to what information regarding potential plaintiffs may or must be disclosed to named plaintiffs at the notice stage of FLSA actions.7 Although email addresses are more routinely disclosed, district courts in this circuit have required a showing of a "special need" before requiring the disclosure of telephone numbers. See Ruiz v. Monterey of Lusby, Inc. , No. DKC 13-3792, 2014 WL 1793786, at *3 n.1 (D. Md. May 5, 2014) (quoting Calderon v. Geico Gen. Ins. Co. , No. RWT 10cv1958, 2011 WL 98197, at *9 (D. Md. Jan. 12, 2011) ("Defendants will not...be required to provide phone numbers for potential opt-in plaintiffs at this time because Plaintiffs have made no showing of any 'special need' for the disclosure of this information."); Amrhein , 2014 WL 1155356, at *10 (requiring a showing of a special need for disclosure of social security numbers). The Court concludes that Plaintiff has not shown a special need for the putative class members' telephone numbers or their social security numbers. Accordingly, Defendant need only produce the putative class members' names, dates of employment, e-mail addresses, and home addresses.
III. Additional Notice Parameters
As for the methods of notice, the timeline for opting-in, and the proposed follow-up e-mail, the Court grants Defendant's request to meet and confer. In order to allow this conference without prejudicing the potential opt-ins, the Court will equitably toll the statute of limitations until the terms of the notice are agreed upon. See Cruz v. Maypa , 773 F.3d 138 (4th Cir. 2014).
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendant's motion to dismiss is DENIED , and that Plaintiff's Motion for Conditional Certification is GRANTED subject to the restrictions discussed above.
AND IT IS SO ORDERED .
The Court notes that its decision in Schmidt did not involve the FLSA's tip-credit provision.
Section 30d00(e) of the Department of Labor's FOH " 'provides that if a tipped employee spends a substantial amount of time (defined as more than 20 percent) performing related but nontipped work,...then the employer may not take the tip credit for the amount of time the employee spends performing those duties.' " Romero , 849 F.3d at 1284 (quoting Fast v. Applebee's Int'l, Inc. , 638 F.3d 872, 875 (8th Cir. 2011) ). Here, Plaintiff claims that servers and bartenders were entitled to full minimum wage for the time they spent performing non-tipped job duties that were related to their tipped job but occupied more than twenty percent of their time.
The Department of Labor has stated " 'that an employee may hold more than one job for the same employer, one which generates tips and one which does not, and the employee is entitled to the full minimum wage rate while performing the job that does not generate tips.' " Romero , 849 F.3d at 1284 (quoting Fast v. Applebee's Int'l, Inc. , 638 F.3d 872, 876 (8th Cir. 2011) ). Here, Plaintiff claims that servers and bartenders were entitled to full minimum wage when performing job duties that were unrelated to their tipped job.
The relevant regulation is the FLSA's dual-jobs regulation. See 29 C.F.R. § 531.56(e).
Although the Fourth Circuit has not yet enunciated a test for conditional certification of collective actions, district courts in the Fourth Circuit, including this Court, typically follow the two-stage, or two-step, approach when deciding whether named plaintiffs are similarly situated to potential plaintiffs. E.g. , LaFleur , 30 F.Supp.3d at 467 ("District courts within...the Fourth Circuit...have uniformly employed a two-step inquiry in deciding whether to certify a collective action under the FLSA...."); Curtis v. Time Warner Entm't , No. 3:12-cv-2370-JFA, 2013 WL 1874848, at *2 (D.S.C. May 3, 2013) ("Although the Fourth Circuit has not directly addressed the appropriate standard for certifying a collective action under § 216(b), district courts in this circuit, including this court, follow the [two-stage] process....").
The Court declines to conditionally certify Plaintiff's other claims, namely Defendant's failure to notify the putative class members that it was paying them a reduced minimum wage pursuant to the tip-credit provision, Defendant's purported requirement that Plaintiff and the putative class members use their tips to reimburse the restaurant for customer walk-outs, and Defendant's purported requirement that Plaintiff and the putative class members pay for additional Smokey Bones t-shirts out of their tips. Unlike Plaintiff's side work claims, these other claims are individual to Plaintiff, and Plaintiff has not shown that those claims arose out of a corporate policy. Specifically, Plaintiff and the other declarants allege that they were not properly notified that Smokey Bones was using the tip-credit provision. Defendant has provided evidence that it hung Department of Labor posters in each of its locations, that it orally told Plaintiff and all other employees that they were being paid using the tip-credit provision, and that the tip-credit provision was explained in its employee handbook. Next, Plaintiff has alleged that she was required to compensate the restaurant when a customer walked out without paying. However, only Plaintiff makes such an allegation. Finally, Plaintiff alleges that she was required to pay for additional Smokey Bones t-shirts with her tips. Here, only two of the five employees who provided declarations stated that they themselves actually purchased additional Smokey Bones shirts with their tips. The Court concludes that each of these claims are insufficient to justify conditional certification of a nationwide class on those claims because Plaintiff has not shown that the other nationwide servers and bartenders are similarly situated. Accordingly, those claims must proceed on an individual basis.
Compare Velasquez v. Digital Page, Inc. , No. 11-3892 LDW AKT, 2014 WL 2048425, at *15 (E.D.N.Y. May 19, 2014) ("In general, it is appropriate for courts in collective actions to order the discovery of names, addresses, telephone numbers, email addresses, and dates of employment of potential collective members."), with Amrhein v. Regency Mgmt. Servs., LLC , No. SKG-13-1114, 2014 WL 1155356, at *10 (D. Md. Mar. 20, 2014) ("Courts in this district hold that absent a showing by plaintiffs of a 'special need' for disclosure of class members' telephone numbers or other personal information, such as social security numbers or dates of birth, ordering such disclosure is inappropriate."). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3435209/ | DISSENT: Mitchell and Sager, JJ.
The defendant was charged in a county attorney's information with the crime of illegal possession of intoxicating liquor, and was further charged with two previous convictions of the intoxicating liquor laws of Iowa. The defendant entered a plea of not guilty and upon trial the jury returned a verdict of guilty. A motion for a new trial and exceptions to instructions were submitted to the court. In the motion for a new trial the principal question presented to the court pertained to the admissibility of certain evidence obtained under a claimed illegal search warrant. The motion for a new trial, exceptions to instructions and other motions presented, were overruled and the defendant was sentenced. He has appealed to this court.
The facts in this case may be briefly summarized as follows:
The defendant and his family, at the time charged in the information, were residents of Iowa Falls, Iowa. Early in the morning of January 16, 1940, the sheriff of Franklin County, accompanied by assisting officers, went to the residence of the defendant and searched his home for intoxicating liquor. The sheriff had in his possession a search warrant originally dated June 12, 1939, which authorized the search. The sheriff admitted at the trial that the date of the search warrant was changed from June 12, 1939, to January 16, 1940, but testified that before the search in question was made he telephoned the magistrate who had issued the search warrant and obtained his permission to change the date. A small amount of intoxicating liquor was found on the defendant's premises.
The defendant during the trial, by objections to the admissibility of testimony and the exhibits offered in evidence, raised the question as to the right of the court to admit the testimony and exhibits obtained as the result of an unlawful and illegal search. As previously stated this question is further raised in the motion for a new trial. It was also presented in several other motions filed wherein the defendant again raised this particular question. *Page 179
The State does not effectively deny that the search warrant which was used in this case was invalid. No search had been made within the time limit after it was issued, as provided by statute. (Section 13441.12, 1939 Code of Iowa.) Therefore, the principal question before us is as to whether or not the evidence and exhibits obtained by virtue of this illegal search could be received and properly submitted to the jury in its consideration of the defendant's guilt.
The legal proposition raised by the defendant has been repeatedly presented to this court for consideration and it has often given expression of its conclusions and holdings relative to the objections here made on behalf of the defendant. Counsel for the defendant, in a most forceful and able presentation, asks this court in its ruling on the proposition here presented to reverse our holding as expressed in State v. Tonn (1923),195 Iowa 94, 99, 191 N.W. 530. We there held that evidence obtained under a claimed illegal search was admissible and reversed our previous holdings relative to this question as expressed in State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, 94 Am. St. Rep. 323; State v. Sheridan, 121 Iowa 164, 96 N.W. 730; and State v. Rowley, (Iowa), 187 N.W. 7. This last opinion was later withdrawn and the final expression of this court as to this particular case is found in State v. Rowley, 197 Iowa 977,195 N.W. 881. Counsel for the appellant asks that we recede from our present position and follow the holdings as set forth in our earlier cases. It is contended that, in receiving the questioned evidence in this instant case, the defendant's constitutional rights as to unreasonable search and seizure, as set forth in the Fourth Amendment to the Constitution of the United States and Article I, Section 8, of the Constitution of the State of Iowa, are violated.
In State v. Tonn, supra, Faville, J., speaking for this court, set forth the historical development of the rule which we now follow. In that opinion he commented upon the two divergent courses which the several courts of this nation have followed and discussed the development of the federal rule which was first expressed in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524,29 L. Ed. 746, decided in 1885. Since this court announced its ruling in State v. Tonn, supra, we have repeatedly adhered *Page 180
to the expressions there made on this question in the following cases: State v. Gorman (1923), 196 Iowa 237, 239, 194 N.W. 225; Joyner v. Utterback (1923), 196 Iowa 1040, 1044, 195 N.W. 594; State v. Rowley (1923), 197 Iowa 977, 979, 195 N.W. 881; Lucia v. Utterback (1924), 197 Iowa 1181, 1186, 198 N.W. 626; State v. Parenti (1925), 200 Iowa 333, 334, 202 N.W. 77; State v. Wenks (1925), 200 Iowa 669, 670, 202 N.W. 753; Hammer v. Utterback (1926), 202 Iowa 50, 52, 209 N.W. 522; State v. Korth (1927),204 Iowa 667, 668, 215 N.W. 706; State v. Lambertti (1927), 204 Iowa 670,672, 215 N.W. 752; State v. Bamsey (1929), 208 Iowa 796,799, 223 N.W. 873 (certiorari denied in Bamsey v. State of Iowa (1929), 280 U.S. 595, 50 S. Ct. 40, 74 L. Ed. 642); State v. Rollinger (1929), 208 Iowa 1155, 1156, 225 N.W. 841; State v. Bourgeois (1930), 210 Iowa 1129, 1131, 229 N.W. 231.
In State v. Rowley (1933), 216 Iowa 140, 145, 248 N.W. 340; State v. Weltha (1940), 228 Iowa 519, 527, 292 N.W. 148, and Vilas v. Iowa State Board of Assessment and Review (1937),223 Iowa 604, 615, 273 N.W. 338, there are found statements that might indicate that the majority of the court questioned the soundness of the rule announced in State v. Tonn, supra. However, we have not in any degree departed from our previous holding, and we trust that in our expressions as here made in the instant case we will again, in no uncertain language, indicate our established and definite rule.
The question that is before us on this appeal has been the subject of innumerable judicial opinions, and, as previously stated, there are two divergent holdings.
In the editorial comment noted in 88 A.L.R. (1934) 349, it is stated that the following states adhere to the rule of admissibility of evidence as complained of in the instant case: Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, South Carolina, Utah, Vermont, and Virginia. This makes a total of 26 states. Since the preparation of the note in 88 A.L.R., supra, the Supreme Court of Ohio in State v. Lindway (1936), 131 Ohio 166, 182, 2 N.E.2d 490 (appeal dismissed *Page 181
in Lindway v. State of Ohio (1936), 299 U.S. 506,57 S. Ct. 36, 81 L. Ed. 375), apparently allied itself with the majority rule and held that evidence obtained by an unlawful search was admissible in evidence and that the admission of such evidence did not violate the constitutional immunity from self-incrimination and from unreasonable searches and seizures. With the Ohio court taking the position it now has there are 27 state courts that adhere to the rule as expressed in our Tonn case. There are 18 states which hold that evidence of the character as presented in the instant case is inadmissible. These states are as follows: Florida, Idaho, Illinois, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Washington, West Virginia, Wisconsin and Wyoming. The federal courts, following the Boyd case, supra, hold that evidence unlawfully obtained by federal officers is inadmissible.
This court, speaking through this majority opinion, is of the firm conviction that evidence of which the defendant complains is admissible and that our holding in State v. Tonn should be followed. We are conscious of the rights which were sought by our forefathers in writing into the Federal and State Constitutions the restriction as to unreasonable search and seizure. The wrongs sought to be guarded against, as shown by historical research, and which prompted the inclusion of the Fourth Amendment to our Federal Constitution, grew out of the issuance of general search warrants during the years of colonial development. It was to avoid a recurrence of this oppressive action that this amendment was demanded as an additional safeguard to the citizens of the several states from what was feared would be an oppressive Federal Government.
In this connection attention is called to the case of Commonwealth v. Wilkins (1923), 243 Mass. 356, 361, 138 N.E. 11,13, where it is stated:
"* * *. The Fourth Amendment to the federal Constitution does not apply to proceedings in the state courts. As was said in 1887 by Chief Justice Waite in Spies v. Illinois, 123 U.S. 131, 166,8 Sup. Ct. 21, 24, (31 L. Ed. 80):
"`That the first ten Articles of Amendment [to the United *Page 182
States Constitution] were not intended to limit the powers of the state government in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since.'"
As evidence of the fact that the federal courts have in mind that their rule applies only to unlawful search by federal officers alone, we find that in the case of Myers v. United States, 8 Cir., Okla., 18 F.2d 529, 530, it was held that evidence obtained by reason of an unlawful search by state officers was admissible in a federal prosecution. In this last case it is stated:
"Conceding, without deciding, that the search warrant was invalid as claimed, nevertheless the admissibility of the evidence found by the state officers acting thereunder is not affected, since no federal officer participated in the search or was in any way connected therewith. Weeks v. United States,232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Elam v. United States (C.C.A. 8)7 F.2d 887."
In the case of State v. Dillon (1929), 34 N.M. 366, 377,281 P. 474, 479, 88 A.L.R. 340, 347, a very pertinent statement is made:
"Appellant is no less guilty because he has been the victim of an unlawful search. The unlawful search is still a trespass, though it has resulted in appellant's conviction. Appellant should still be punished, though entitled to compensation according to the circumstances of the case and the injury done."
Cardozo, J., a recognized authority, when sitting on the Court of Appeals of New York, commented on the admissibility of evidence obtained by an illegal or unreasonable search. In People v. Defore (1926), 242 N.Y. 13, 19, 22, 23, 24, 150 N.E. 585, 587,588, 589, he states:
"We must determine whether evidence of criminality, procured by an act of trespass, is to be rejected as incompetent for the misconduct of the trespasser.
"The question is not a new one. It was put to us more than 20 years ago in People v. Adams, 68 N.E. 636, 176 N.Y. 351, *Page 183
63 L.R.A. 406, 98 Am. St. Rep. 675, and there deliberately answered. A search warrant had been issued against the proprietor of a gambling house for the seizure of gambling implements. The police did not confine themselves to the things stated in the warrant. Without authority of law, they seized the defendant's books and papers. We held that the documents did not cease to be competent evidence against him though the seizure was unlawful. * * *
"In times gone by, officialdom had arrogated to itself a privilege of indiscriminate inquisition. The statute declares that the privilege shall not exist. Thereafter, all alike, whenever search is unreasonable, must answer to the law. For the high intruder and the low, the consequences become the same. Evidence is not excluded because the private litigant who offers it has gathered it by lawless force. By the same token, the state, when prosecuting an offender against the peace and order of society, incurs no heavier liability. * * *
"We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. Another search, once more against the law, discloses counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the forger. Like instances can be multiplied. We may not subject society to these dangers until the Legislature has spoken with a clearer voice. In so holding, we are not unmindful of the argument that, unless the evidence is excluded, the statute becomes a form and its protection an illusion. This has a strange sound when the immunity is viewed in the light of its origin and history. * * * We do not know whether the public, represented by its juries, is today more indifferent to its liberties than it was when the immunity was born. If so, the change of sentiment without more does not work a change of remedy. Other sanctions, penal *Page 184
and disciplinary, supplementing the right to damages, have already been enumerated. No doubt the protection of the statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion. The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams Case strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that the change has come to pass."
To those interested in a further review of the question presented in this case, reference is here made to the extensive notes found in the following citations: 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 52 A.L.R. 477; 88 A.L.R. 348, and 134 A.L.R. 819.
It is our considered judgment that the rule as expressed in State v. Tonn, supra, is sound, is protective of the rights of all citizens and that it should again be held to be the law of this state. Instead of injuring our constitutional rights the rule set forth in the Tonn case makes possible the preservation of our constitutional government. This rule does not make possible the weakening of our government by unlawful forces working from within. We further find that the other claimed errors as noted by defendant are without merit. By reason of our expressions and holdings herein made, the trial court is affirmed. — Affirmed.
MILLER, C.J., and STIGER, GARFIELD, BLISS, OLIVER, and HALE, JJ., concur.
SAGER and MITCHELL, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435231/ | Defendant, Frank Thompson, was convicted in the Des Moines Municipal Court of the charge of cruelty to animals, in violation of section 717.3, Code of 1946. From a judgment in accordance therewith, he has appealed.
Appellant's counsel apparently has entirely disregarded Rule 344 (a)(4), Rules of Civil Procedure, in the preparation of his brief and argument and only by an examination of his *Page 908
reply brief and argument do we find the propositions relied upon for a reversal. This being a criminal case, we are reluctant to penalize appellant for his counsel's shortcoming, but again we wish to remind counsel in particular, and the bar in general, of the necessity of compliance with our Rules.
The sole question presented by appellant is the sufficiency of the evidence to sustain the conviction. Appellee has submitted five propositions in an attempt to meet whatever theories appellant may have had when his brief and argument was filed, one of them being the sufficiency of the evidence and we confine this appeal solely to that proposition.
The record does not contain the information under which appellant was convicted, however, from a statement to the trial court by appellee's counsel, we understand the charge is cruelty to animals in that he supplied insufficient water, food and shelter for dogs in violation of section 717.3, Code of 1946, which section, so far as material here, provides:
"If any person torture * * * any animal, or unnecessarily fail to provide the same with proper food, drink, shelter, or protection from the weather * * * by which unjustifiable pain, distress, suffering, or death is caused or permitted to any animal or animals, whether the acts or omissions herein contemplated be committed either maliciously, willfully or negligently * * *" he shall be punished as therein provided.
[1] There is no dispute as to the legal questions involved. All parties recognize the elementary rule that a verdict of guilty, substantially supported by the evidence, will not be set aside on the grounds of insufficiency thereof, but will only be set aside where evidence is so utterly wanting that it cannot be sustained. State v. Schmidt, 239 Iowa 440, 30 N.W.2d 473; State v. Wilson,234 Iowa 60, 11 N.W.2d 737; State v. Hiatt, 231 Iowa 499,1 N.W.2d 664; State v. Crandall, 227 Iowa 311, 288 N.W. 85; State v. McKenzie, 204 Iowa 833, 216 N.W. 29; State v. King, 198 Iowa 325, 197 N.W. 981.
The record shows the following facts: Appellant, who resides in Des Moines and is employed by the Campbell Heating Company, has for the past year been picking up stray, and *Page 909
unwanted dogs, and shipping them to a serum company in Omaha, Nebraska. On the date in question and for about three months prior, appellant rented a vacant tract, largely a weed patch, in southwest Des Moines, where he kept these dogs in pens until sold locally or shipped to Omaha. On July 24, 1947, he had approximately thirty-eight dogs thus restrained. Some of them he had had about two months, while at least nine of them were picked up a day or so prior to July 24. They were mongrels of various size, sex, color and age. The shelters were of different size and character — some were cages on stilts with board floors; some had wire netting on the floor (the ground) and sides with boards on the top. They varied in size from 2 by 6 feet to 6 by 8 feet. In a shed near by was the hide and bones of a dead hog, and in another place the bones of a dead calf. There were about ten pens in all containing from thirteen dogs to one or two.
On July 24, these dogs were taken by the Animal Rescue League. Various witnesses testified for the State. In all instances the only time they observed these dogs was on the day in question. The dogs were described as very thin; they acted quite hungry; in very bad condition, and without question they had mange and some had distemper. At the time the various parties visited the pens, it was in the heat of the day. Few if any of the pens had water in them and what food, if any, consisted of dried buns and corn. Some of the water containers were too high to be used by the small dogs in the pens. All of the witnesses testified as to the dogs' tongues being out and their panting for breath, that they seemed wild and ferocious, and the pens were dirty. In an old barrel was a bitch with young puppies, with little protection from the sun, while in the shed was another litter of pups, but in both instances the mothers were not restrained in any manner.
Defendant testified that he always fed and watered the dogs twice daily. In the early morning before work and the late evening after work. A neighbor testified to seeing him about the pens frequently in the morning and evening. At the time the dogs were taken by the Animal Rescue League, pictures by a newspaper photographer were taken of the various pens *Page 910
and dogs. These photographs were offered in evidence by the State and are as important in determining the question before us as are the statements of the various witnesses.
The charge is that because of the manner in which these dogs were kept and cared for, they suffered unjustifiable pain, distress, suffering or death. Some of the witnesses for the State are breeders of fancy dogs. Their opinions as to the condition of the shelters and the dogs are under a comparison with their kennels and dogs. The superintendent of the Animal Rescue League and his wife state that they do not consider the shelters sufficient. Beyond the suffering from distemper and mange, which occurs in the best of families, there is no evidence of unjustifiable pain or distress upon the part of the dogs other than a panting and the hanging out of tongues. The day was extremely hot. The observations were made during the heat of the day, and, while water may have been desirable for them at that time, its absence does not show suffering. The dogs were thin and appeared hungry, yet it must be remembered that these dogs were strays and used to visiting the garbage cans in the alleys for their subsistence.
There remains the photographs. As to the admissibility thereof, and their value in determining fact questions, we quote from State v. Matheson, 130 Iowa 440, 443, 103 N.W. 137, 138, 114 Am. St. Rep. 427, 8 Ann. Cas. 430, quoting from Udderzook v. Commonwealth, 76 Pa. 340, 353, wherein it is said that photography "has become a customary and common mode of taking and preserving views as well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses." Again, it is not the condition of the shelters, nor the quality of the food nor the general surroundings which constitutes the crime of cruelty to animals, but the effect thereof *Page 911
upon the animals. Under this entire record, not only do we fail to find substantial evidence of the cruelty contemplated by the statute in question, but in the light of the photographs there is a total lack of evidence of unjustifiable suffering upon the part of the dogs.
[2] The State has failed to sustain the burden of showing beyond a reasonable doubt an "unnecessary failure to provide proper food, drink or shelter" or "unjustifiable pain, distress, suffering, or death" as a result thereof.
The cause is reversed with directions to dismiss the complaint. — Reversed.
MULRONEY, C.J., and OLIVER, BLISS, WENNERSTRUM, MANTZ, and SMITH, JJ., concur.
GARFIELD and HALE, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435232/ | I respectfully dissent.
As the majority indicates, defendant's opening brief contains no statement of errors relied on for reversal as required by Rule 344, Rules of Civil Procedure, made applicable to this appeal by section 793.17, Code, 1946. We would be justified in holding defendant has presented nothing for our consideration. See State v. Briggs, 207 Iowa 221, 222 N.W. 552, and citations; State v. Perkins, 208 Iowa 1394, 227 N.W. 417; State v. Schenk, 236 Iowa 178, 186, 18 N.W.2d 169, 173. This case is not like State v. Clay, 222 Iowa 1142, 1144, 271 N.W. 212, and some others involving a grave offense and severe penalty in which we are inclined to overlook lack of compliance with our Rules.
Aside from the above, I think the judgment has sufficient support in the evidence. Of course we must view the testimony in the light most favorable to the prosecution. State v. Hill,239 Iowa 675, 32 N.W.2d 398, and citations; State v. Anderson,239 Iowa 1118, 33 N.W.2d 1, and citations; State v. Persons, 114 Vt. 435, 439, 46 A.2d 854, 857. It is necessary to refer only to the evidence which tends to support the judgment. State v. Kneedy,232 Iowa 21, 27, 3 N.W.2d 611, 615, and citations; State v. Hill, supra. *Page 912
The crime charged consists of unnecessarily failing to provide any animal "with proper food, drink, shelter, or protection from the weather * * * by which unjustifiable pain, distress, suffering, or death is caused * * * whether the acts or omissions * * * be committed either maliciously, willfully, or negligently." Section 717.3, Code, 1946.
This statute should be construed so as to effectuate the legislative intent and attain the practical object of such laws. See 3 C.J.S., Animals, 1189, section 67. The words "unnecessarily" and "proper" are to be understood in their ordinary sense. State v. Persons, supra, 114 Vt. 435, 437,46 A.2d 854, 855; Commonwealth v. Curry, 150 Mass. 509, 23 N.E. 212. "Proper" means "fit, suitable, appropriate." Miller v. Cedar Rapids Sash Door Co., 153 Iowa 735, 741, 134 N.W. 411, 415, and citation. The majority seems to ignore the statutory requirement of proper food, drink and shelter.
There is ample evidence defendant unnecessarily failed to provide at least some of these dogs "with proper food, drink, shelter, or protection from the weather." Proof that such failure caused "unjustifiable pain, distress, suffering, or death" is perhaps less clear. However, courts have held in effect it is common knowledge that lack of proper food, drink or shelter causes distress or suffering in animals. See State v. Persons, supra, 114 Vt. 435, 439, 46 A.2d 854, 857; Moore v. State,183 Ind. 114, 107 N.E. 1; Commonwealth v. Curry, supra. A great deal of evidence should not be required to prove this fact.
Defendant collected unwanted dogs and sold about six each week to a serum company in Omaha and nearly as many in Des Moines for pets. The animals were kept in about ten makeshift pens or cages in a weed patch near defendant's home. Defendant says he fed and watered the dogs before he went to work at 6:30 each morning and again after he returned from work in the evening. No provision was made to furnish either food or drink at any other time.
On July 24, 1947, several persons interested in either the Animal Rescue League or the Humane Society looked at the pens and the 40 dogs kept in them. They testified as to their observations. The largest pen was about 7 by 8 feet with solid *Page 913
sides 5 1/2 feet high. It contained 11 dogs. Except for a little water covered with scum in one of the pens, there was no water in any of them. The sides of the single container with water in it were so high the smaller dogs were unable to reach the water.
Mr. Koss, president of a construction company, testified:
"The dogs were being held in a very deplorable condition. * * * They were old barrels that had been cut in half and some with boards around the side so that the air couldn't get through and one or two were elevated pens. * * * Then there were some very small cages in which dogs were kept. They could hardly stand up or lie down. * * * There was feed corn on the ears which a dog doesn't eat. There were old stale buns and pieces of bread. It looked as if the dogs didn't have food but had had garbage dumped in at sometime * * * I saw the dogs that were shipped out of town. They were in a deplorable condition. They were in a small cage, about 6 by 5 feet and couldn't stand up or sit down. There was water in one end of the cage but * * * the dogs at the far edge couldn't get over to the water."
Mr. Winsell, superintendent of the Animal Rescue League, testified he had handled about 50,000 dogs in the sixteen years he has held such office:
"I am acquainted with their needs of shelter and food and drink. Q. In your opinion were they properly sheltered at thatplace? A. I would say by all means, no. In my opinion there was not sufficient water or facilities for water and they were also dirty. I took the dogs to the Animal Rescue League and had an opportunity to observe their condition. There were a lot of them that were awful sickly. The bars on our kennels are 2 3/4 inches apart and some of the puppies were so poor they would crawl right through those bars. Q. What did they seem to be suffering from? A. Quite a few of them had distemper. * * * Q. Were the dogssuffering from lack of sufficient water? A. I would say theywere. Q. Were there various of the dogs suffering frommalnutrition? A. I would think so from the *Page 914 looks of them. I didn't see anything for them to eat but some corn. Q. Do dogs eat corn? A. They will if they are hungry enough. Q. Is that proper dog food? A. No, it is not proper dogfood. Some dogs will eat it. It won't hurt them but it is not proper dog food. Q. Were there any evidences they had been properly fed over the week previously? A. I couldn't say there was, no. In my opinion, they were improperly fed. Since that time I have had the care of these dogs. * * * Several of of them died from distemper. Probably that is what took all of them."
Mrs. Winsell, assistant superintendent of the Animal Rescue League for sixteen years, told of her observations on the morning of July 24 when she was called to the scene:
"I saw a lot of dogs in very bad condition. * * * the pens were just dilapidated wire that looked like they might have picked it up out of the junk and put it together with old tin sink covering * * *. There was one pen like a chicken coop turned over some dogs. This was about a foot and a half high and I would say there were three or four medium sized dogs in it. I wouldn't say they were able to stand up in it. They could lie down but if they sat up their back would touch the wire. There was an old dilapidated box * * * they had a dog tied to this and several puppies around it. I would say this was about 2 1/2 feet across. I would say these pens constituted improper shelter for the size and number of dogs that were there. Q. From your experience with dogs wouldyou say they had been properly fed? A. No, I don't think theyhad. * * * Q. From your observation of those dogs, did it appear they had been receiving a proper amount of water? A. I wouldn't think they had. This was a very hot day and I wouldn't say the pens allowed them to get fresh air. One little place was in the shade but the other pens were out in the boiling hot sun. Some of them had tin roofs that made it all the hotter.
"The Court: Did you see any suffering among the dogs when you first went out there? A. Yes, they all had their tongues hanging out for wanting water and from all the heat. *Page 915
"The Court: Did you see any food? A. No, nothing only some hard buns and there were some ears of corn and I did see just a potato * * *."
The secretary of the Humane Society testified to his observations when called to defendant's place about 2 p.m.:
"An oil barrel facing the east with the sun from the west beating hot on it and 4 or 5 little puppies and the dog in it was the thing that attracted my attention."
This witness also saw at least 4 dogs in a small pen probably 2 by 5 feet. Some of the pens were so located and built it was impossible for air to get to the animals.
"Some of the dogs were irritable and barking and nervous. Others were apparently not too well * * * Yes, they were in need of water. * * * their tongues out and gasping somewhat for breath because of the heat."
Sonderleiter, who has raised dogs for twenty years, told what he observed on the afternoon of July 24 and the following day:
"In one of the hog houses there were 2 or 3 puppies and a mother and a dead calf — and the stink, you couldn't hardly stand the odor. * * * These dogs were in their own filthapproximately two or three inches thick * * * I would say they[pens] had not been cleaned for a good many months. * * * The little dogs couldn't possibly drink from the pan if it had water. * * * they were all skinny as rails. * * * pen `C' was so low the dogs couldn't stand up in it. * * * The dogs were very thin,their tongues hanging out for lack of water and they were justskeletons you might say. * * * The dogs showed evidence of having been improperly fed. Q. What evidence was there the dogs had not been properly fed? A. The evidence of the food that had been put in the cages for them to eat and the condition of their eyes, their eyes were moist, all showed signs of distemper and like a starved animal. Q. And from their condition you were able to determine they had not been fed properly over a period of time? A. Yes. I made a *Page 916
trip back the next day. * * * I saw skeletons of one dog that hadnot been dead possibly over a day or so and about three othercarcasses. They were back of these pens, I would say about three feet in this column of bushes."
Defendant did not deny Sonderleiter's testimony regarding the amount of filth or the dead dogs.
Mrs. Diltz, who has raised dogs for about fifteen years, testified:
"As I got possibly as far as this courtroom is long from the place it began to smell and in the hot sun were these dogs. Some with a sheet of tin over them and some open to the sun. There was a little female with several baby puppies, looked like they had been born about that day in a hot tin barrel with no bedding, nothing over them but the tin. There was no water in the barrel. * * * Some of these dogs were sick and their eyes were mattering.
One little puppy could just open its eyes half way. It lookedvery sick, the others were scrawny and droopy and were pantingand jumping, some of them jumping to get out. * * * Q. From their physical condition were you able to tell whether or not they had been properly fed? A. Only that they acted quite hungry and the evidence, if you call it evidence, that was there, field corn and a couple of dry buns, bones that were dried up lying in filth. Iwouldn't call that properly feeding any dog. Some of them were very thin. I would say they showed evidence of not having sufficient water."
Mrs. Goforth saw the dogs and said she thought they were in very poor condition and very thin. A neighbor testified she had seen defendant occasionally down by the pens "for 5 or 10 minutes a day during the morning and night but not every day."
It is unnecessary to summarize the testimony further. Enough has been set out to demonstrate there is competent evidence that defendant neglected to provide at least some of these dogs withproper food, drink, shelter or protection from the weather and pain, distress, suffering or death resulted therefrom. As previously indicated, it is unnecessary to refer to *Page 917
defendant's testimony. See State v. Kneedy, supra, 232 Iowa 21, 27, 3 N.W.2d 611, 615, and citations. Defendant denied only some of the State's evidence. His testimony is without corroboration. Of course the lower court was not compelled to accept it.
The majority observes, "Some of the witnesses for the State are breeders of fancy dogs. Their opinions as to the condition of the shelters and the dogs are under a comparison with their kennels and dogs." It is true Sonderleiter and Mrs. Diltz are breeders of pedigreed dogs. The remainder of the majority's statement is unwarranted. Likewise is its observation "these dogs were strays and used to visiting the garbage cans in the alleys for their subsistence."
The majority states "pictures * * * were taken of the various pens and dogs" and intimates these photographs are fatal to the State's case. Four photographs are in evidence. One shows the crate in which six dogs were shipped to the Omaha serum company. The dogs do not clearly appear. The principal inference to be drawn from this exhibit is that the crate is too small for so many dogs. One of the other photographs is an outside view of the largest pen and two small cages adjacent to it. It clearly shows the makeshift character of the pen and cages but discloses nothing as to the condition of the dogs. One of the other two photographs shows an inside corner of the largest pen and 9 of the 11 dogs kept therein. Only the heads of the other 2 animals appear. The remaining photograph is also an inside view of the largest pen showing 5 of the same 11 dogs there confined.
I can see nothing damaging — much less fatal — to the State's case in these photographs. They support the witnesses' descriptions of the pens and cages and fall far short of making unbelievable their testimony as to the condition of the animals. Further, the pictures show less than half the various pens or cages and only one fourth the 38 to 40 dogs kept by defendant. None of the half barrels is shown, nor the oil barrel containing the female and her young puppies. It is reasonably to be inferred that the smaller pens or cages not shown in the photographs afforded less proper shelter than the largest pen and *Page 918
that the animals there restrained were in more distress than those in the largest pen shown in the photographs.
As tending to support this dissent see Commonwealth v. Curry, supra, 150 Mass. 509, 23 N.E. 212; State v. Persons, supra,114 Vt. 435, 46 A.2d 854, 857.
I would affirm.
HALE, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435233/ | On February 11, 1924, the defendant issued a $5,000 policy to William C. Bender. The insured paid all the premiums up to August, 1929, and in default of the premium due at that time, the insured was notified that the policy was lapsed and that it was placed on an extended insurance basis, and that the double indemnity benefit was canceled.
On November 25th the insured applied for reinstatement, and in his application therefor stated that he was in good health and had not been ill or injured for five years prior to the date of the application, and that he had not consulted or been treated by a physician within that time.
Defendant in its answer alleges that the statements as to condition of insured's health were wholly untrue, and that he had suffered an attack of carbon monoxide within five days prior to his application for reinstatement, that he had become ill therefrom and suffered injury, all of which facts were well known by him to be untrue and misleading. Defendant relied upon the truth of the statements made by the insured in his application for reinstatement, and by reason thereof issued a certificate of reinstatement.
After proof of death, the appellant paid the administrator $5,000, being the face of the policy, and refused to pay the double indemnity. These facts were set out in defendant's answer, and also in count 2 as a cross-bill for equitable relief, asking the cancellation of the policy, and for such other and further relief as in equity it was entitled. The petition was filed on the 21st of August, 1930, and the answer and cross-bill were filed on the 16th of February, 1932.
On the 17th of February, 1932, defendant filed a motion to transfer the case to equity. The motion was overruled, and the defendant appeals.
The only question before this court is whether or not the defendant was entitled to have the equitable issues raised in its answer *Page 1165
transferred to a court of equity before proceeding with the trial of the law action. The sole question on this appeal is the correctness of the court's ruling refusing to transfer the case to equity.
This case was started as a law action. The defense interposed is that the statements made by the insured in his application for reinstatement constituted fraud, and were of such a fraudulent nature as to entitle the insurance company to a cancellation of the contract of reinstatement.
The general rule is that where the courts of law afford relief from any alleged fraudulent acts, the jurisdiction of equity is concurrent, but that the courts will not remove the case to equity where the defense in a law action is full and adequate.
"So far as courts of law afford relief from fraud the jurisdiction of equity is concurrent, but equity will generally decline to exercise it where the legal remedy is in all respects adequate, and there are no special circumstances requiring the exercise of equitable jurisdiction, unless the administration of justice will thereby evidently be facilitated. Where the parties are entitled to a trial by a jury to determine questions of fact, it is the policy of equity not to take jurisdiction, but to relegate the parties to that remedy at law where their constitutional right to have the facts in dispute submitted to a jury can be accorded them." 21 C.J. 107.
This rule was followed in the case of Biermann v. Guaranty Mut. Life Ins. Co., 142 Iowa 341, 120 N.W. 963, 964. That was an action brought to recover upon an insurance policy, and the defendant contested on the ground of false statements made in the application for the policy. In that case the company contended that the deceased in his application for the policy warranted that he was not in the habit of using intoxicating liquor and was not interested in the sale thereof; that he was in good and sound condition of health, when in fact he was addicted to the use of intoxicating liquor and was interested in certain liquor saloons in Marshalltown, and was not in sound health. These facts were stated in cross-petition, and the defendant moved to have the issues on fraud transferred to equity. In that case we said:
"Error is assigned upon the refusal of the court to separate the issues, and try the matters alleged in the cross-petition as in equity, before proceeding with the main action. It would hardly *Page 1166
seem necessary to go into extended argument to demonstrate the unsoundness of this claim. The defendant had been brought into a court of law to answer to an action upon its contract. If that contract had been procured by fraud or false representations, such fact was a full, complete, and perfect defense to the action, and, if that defense was made good, the policy would be deprived of all vitality as fully as could have been accomplished by a decree in equity formally cancelling it. * * * This court has held that equity will not entertain an action to rescind a contract for mistake, unless it appears that an injury will result for which the aggrieved party will have no adequate remedy at law. Morse v. Beale, 68 Iowa 463, 27 N.W. 461. So, too, where a court of law has already obtained jurisdiction of a controversy involving an alleged fraud, equity will not interfere. * * * To sustain the position of the appellant herein would be to sanction a practice by which the plaintiff in every action upon an insurance policy, or, indeed, upon every simple matter of contract, may be deprived of his constitutional right to have his cause submitted to a jury. The attempt so to do is by no means without precedent in this state. In the early case of Smith v. Short, 11 Iowa 523, Short brought an action at law to recover the price of certain land sold by him to Smith. The latter then sued out an injunction to enjoin the proceeding at law on the ground that the contract had been procured by fraud, and that Short had no title to the land he pretended to sell. In holding that the injunction was improperly issued, this court said: `For aught that is shown, every matter stated in the bill can be made as fully available in answer and defense to the action at law as by an appeal to equity. Under such circumstances, the parties should be left to their legal remedies and defenses.' Practically the same question was raised in Smith v. Griswold, 95 Iowa 684,64 N.W. 624. There an action at law was brought upon a duebill and upon cross-petition to reform the instrument a motion to transfer the issue to equity for trial to the court was overruled. Affirming this ruling, the opinion says: `The sufficiency of the facts pleaded as a defense was not questioned, and, if they were established, the law forum gave the same relief as was sought in equity. The facts which would reform the instrument would defeat a recovery on it. Under such circumstances equity has no jurisdiction. This is elementary.' Further discussion of this branch of the case is unnecessary. The court did not err in overruling the defendant's motion." *Page 1167
Our court has repeatedly followed this rule. Welch v. Union Central Life Ins. Co., 108 Iowa 224, 78 N.W. 853; 50 L.R.A. 774; Peoples' Trust Savings Bank v. Engle, 194 Iowa 518,188 N.W. 707; Lambertson v. Nat. Investment Finance Co., 200 Iowa 527,202 N.W. 119; Morris v. Merritt, 52 Iowa 496, 3 N.W. 504; Smith v. Short et al., 11 Iowa 523; Gray v. Coan, 36 Iowa 296; Stewart v. Johnston Co., 44 Iowa 435; Home Sav. T. Co. v. Hicks,116 Iowa 114, 89 N.W. 103; Dille v. Longwell, 169 Iowa 686,148 N.W. 637. It is also the general rule in other jurisdictions. Nash v. McCathern, 183 Mass. 345, 67 N.E. 323; Phoenix Mut. Life Ins. Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; Cable v. U.S.L. Ins. Co.,191 U.S. 288, 24 S. Ct. 74, 48 L. Ed. 188; The Sailors v. Woelfle, 118 Tenn. 755, 102 S.W. 1109, 12 L.R.A. (N.S.) 881; Eaton v. Trowbridge, 38 Mich. 454; Sweeny v. Williams, 36 N.J. Eq. 627; Bankers' Reserve Life Co. v. Omberson, 123 Minn. 285,143 N.W. 735, 48 L.R.A. (N.S.) 265. The cases bearing on this question have also been exhaustively reviewed in an opinion written by Albert, J., in the Des Moines C.R. Co. v. Amalgamated Ass'n, 204 Iowa 1195, 213 N.W. 264.
The record in the Biermann case shows that section 3435 of the Code, now section 10947, was also relied on by appellant as a ground for having the case transferred to equity. This section was also relied on in the case of Lynch v. Schemmel, 176 Iowa 499
at page 505, 155 N.W. 1019, 1021. In that case the court said:
"It will be noted from inspection of the allegations of the answer above set forth that the only defenses pleaded as against the validity of the notes sued on are duress and want of consideration. Neither of such defenses present any issue `heretofore exclusively cognizable in equity.' These defenses are without question available to the defendant as a defense at law. It is urged, however, that the defendant prayed for equitable relief in the form of a cancellation of the notes, and that such relief could be had only in equity. But we have frequently held that the mere prayer of a cross-petition asking for a cancellation of the instrument sued on by the plaintiff will not of itself entitle the defendant to a trial of the issues on the equity side. This is squarely held in Gray v. Coan, 36 Iowa 296; Biermann v. Guaranty Mut. Life Ins. Co., 142 Iowa 341,120 N.W. 963; Dille v. Longwell, 169 Iowa 686, 148 N.W. 637."
A further consideration of these cases will serve no useful *Page 1168
purpose in this case, because they all adhere to the rule announced herein. This rule is of such long standing and has been so often followed that we would not feel warranted in changing it at this time.
We believe the ruling of the lower court was right, and the same is hereby affirmed. — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4058757/ | TDQJ Offendcr Details - Page 1 of 2
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Offender lnformation Details
S|D Number: 03959551
TDCJ Number: l 01939265
Name: SNEED,ROBERT
Race:` ' B
'Gender: l\ll
DOB: 1970-04-17
Maximum Sentence Date: 2018-05-21
current F'acility: DARR\NGTON
Projected Re|ease Date: 2016-01-29
Parole Eligibility Date: ` 2014-11-05
, Offender Visitation E|igib|e: §§
information provided is updated once daily during Weekdays and multiple times per day
on visitation days. Because this information is subject to change, family members and
friends are encouraged to call the unit prior to traveling for a visit.
SPECIAL lNFORMATlON FOR SCHEDULED RELEASE:
scheduled Re|ease Date: Offender is not scheduled for release at this time.
Sehedu|ed Re|ease Type: . Wi|| be determined When release date is scheduled.
scheduled Re|ease L°eati°n§ Wi|| be determined When release date is scheduled
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Offense History:
Sentence Sentence (YY-
Offense
Offense County Case No. MM_DD)
Date 4 Date
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http://offender.tdcj .texas. gov/ OffenderSearch/offenderDetail.action?sid=0395 955 1 6/30/2015 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435206/ | The bank above named went into the hands of the receiver on May 24, 1932. On the same date an order was entered fixing the status of the great body of depositors as follows:
"It is ordered, adjudged and decreed by the court that all claim against said bank arising out of deposits and all checking account and all savings deposits, and all deposits represented by certificates of deposit, both time and demand, except certificates issued for money borrowed for said bank, as the same are shown on the books of said bank, be and the same are hereby allowed in the amounts and to the individuals as shown by the said books. Said claims being allowed as claims of depositors of said bank without further proof thereof. Provided, however, that should any depositor whose claim is so allowed claim any additional sum or sums over and above the amount as shown by the books of said bank, then said depositor shall be required to file claim for said excess amount as other claimants within the time limit as herein otherwise provided.
"It is further ordered, adjudged and decreed by the courts that all other claimants than those whose claims are allowed in the amount as stated and including depositors claiming an excess over *Page 741
the amount shown by the books of the bank (as to said excess) shall present proof against said bank on or before the 25 day of July, A.D. 1932, as follows:"
Under such order of the court the appellant was classified as a depositor and was entitled to the preference of a depositor, and her claim was recognized to the full amount now claimed by her. However, on July 23, 1932, she filed in the receivership case a petition of intervention wherein she claimed a special preference over the great body of the depositors. Her claim of special preference is not predicated upon the character of her own deposit. On the contrary, it is predicated upon the alleged conduct of the other depositors and upon certain acts done by other depositors which operated, as alleged, as an estoppel against them whereby the parity of depositors was waived by such other depositors and whereby the appellant became entitled to be first paid in full out of the assets of the insolvent bank to the exclusion of the other depositors.
The record discloses that in February, 1932, the bank in question was threatened with a "run". During a few weeks preceding such date, hundreds of thousands of dollars in deposits had been withdrawn. The rate of withdrawal of the deposits during the preceding weeks, if continued, would result in closing the doors of the bank within a brief time. A holiday was proclaimed by the mayor of the town, which continued for several days. Thereupon an appeal was made by the bank officials to its depositors for waivers. A form of waiver was prepared and submitted for the signature of depositors, which was as follows:
"Depositor's Agreement.
"In consideration of the signing of a similar agreement by other depositors, I, the undersigned, a depositor in
"The Delaware County State Bank of Manchester, Iowa, recognizing the solvency of said bank and desiring its continuance in that condition unhampered by heavy and unwarranted withdrawals of deposits, hereby agree with such other depositors in said bank and with said bank on behalf of myself, my heirs, executors and assigns, as follows:
"(1) Not to sell or assign any certificate of deposit owned or controlled by me or my minor children in said bank, and at the maturity thereof accept the interest then due and take a new certificate of deposit of the same bank for the amount of the principal *Page 742
thereof, due three years after that date, with interest at 3%, payable annually.
"(2) Not to sell or assign any savings account deposit owned or controlled by me or my minor children in said bank nor to withdraw funds from the same to reduce it below its present balance during a period of three years and to accept 3% interest thereon from the next interest paying date.
"(3) Not to reduce the balance in any checking account owned or controlled by me or my minor children in said bank more than 10% per elapsed month from the date of this agreement.
"(4) Any new deposits of any kind made by me in the above bank after the date hereof shall not be affected by any of the above restrictions.
"The consideration of this agreement is the signing of a similar agreement by those who control a sufficient number of deposits to satisfy the officers of the bank that heavy and unwarranted withdrawals can not be made.
"It is further agreed that officers of said bank may waive or modify any or all restrictions contained in this agreement if in their judgment conditions warrant it.
"Dated this 12th day of February, 1932, at Manchester, Iowa."
From 90 to 95 per cent of the depositors signed the foregoing waiver. The holiday was terminated, and the bank continued in operation until May 24, following. On that date it was compelled to close its doors. The amount of deposits covered by the waiver was in excess of $900,000. The amount of deposits not covered by the waiver was $63,000. The $63,000 comprised as a part thereof the deposit of the appellant, who had refused to sign the waiver. The theory of recovery advanced by the appellant is predicated upon three grounds. Her first ground is stated in her brief as follows:
"That those who joined in, understood and agreed that the deposits of this Intervener and those who did not sign were to be paid prior to those joining in the agreement.
"That those signing the agreement agreed with the bank, its officers, and the others joining in said agreement, in reopening the bank that the assets would be used to pay this Intervener's deposits before those signing the agreements.
"That the Intervener claims the benefit of said agreement. *Page 743
"That those signing the agreement thereby authorized, and the officers of the bank, acting on such authority, paid large amounts of money to others who did not sign the agreements between the 18th of February when the bank reopened and the 24th of May when it went into the hands of the Receiver, to the greatprejudice of this Intervener's rights."
Her second ground is that the signing of the waivers by the consenting depositors operated to the prejudice of the appellant as a nonconsenting depositor, in that it enabled the bank to continue operations, whereas it would have been to the advantage of the appellant (as alleged) to have forced the bank into receivership at that particular time. Upon the trial of the case, by an amended petition, the appellant advanced a third ground, viz: that the consenting signers by their conduct lost their status as depositors and became mere lenders of money to the bank.
The foregoing indicates the general outlines of the controversy. It will be seen that the case is unique both in its objective and in its procedure. The appellee vigorously attacks the procedure. The consenting depositors whose rights are thus assailed were not made parties to the proceeding. Nor were they named in the petition. Nor do their names appear in this record, except that the names of a few of them appear incidentally. In view of our conclusion upon the larger merits of the controversy, we are not disposed to give consideration to these contentions of the appellee. We shall therefore treat the proceeding as an intervention for the purpose of our discussion without assuming to pass upon the adequacy or propriety of the procedure.
I. Taking up the first ground above stated, it takes on the form of an express agreement by the "95%" of "signers" that the appellant should take priority over them and that she should be first paid out of the assets of the bank. The record discloses no express evidence of such an agreement. The allegation rests for its proof wholly upon legal deduction and inference. The argument is that such was the necessary legal effect of the waiver signed by the "95%". This ground is therefore reduced to the question whether the signing of the waiver by the "95%" was the legal equivalent of an express agreement that the appellant should take priority over the "95%" of consenting depositors. We think not. The implications of the record as a whole are to the effect that the "95%" had no purpose or intent or motive to lose their parity or status as depositors. They *Page 744
were assured that the distress of the bank was temporary and that it would be able to pay all its depositors if only it could be carried over the present menace of a "run". The very motive of the concessions made by them was in the direction of saving theirdeposits by saving the bank. Many of the signatures had been obtained upon the representation that all the depositors must sign. This record discloses no ground for attributing to the "95%" any other motive for their actions than the hope and belief that they could thereby save the solvency of the bank.
We hold that the first ground is untenable.
II. Were the "95%" guilty of any conduct that operated as an estoppel upon them? Appellant contends that she was prejudiced by their conduct. Appellant's mental operation, whereby prejudice becomes apparent to her, is itself quite unique. The claim is that, if the waivers had not been signed, the bank would not have opened after the holiday; that, because of the signing of the waivers, the bank did operate, and that this was contrary to the interest of appellant. She held seven certificates of time deposit. None of them was due until June 1, 1932. The idea advanced by appellant is that, if the bank had been closed in February, this would have accelerated the due date of her certificates, and that she would have been in position to collect them at once; whereas the continuation of the bank as a going concern prevented her from enforcing her certificates before their due date. The argument assumes that, if the bank had been closed in February, the appellant would have obtained full payment of her deposit. Obviously she would have obtained her pro rata share and no more. She would have stood on an exact parity with every other depositor. Such was the exact position which she occupied on May 24, when the bank did close. Of course, if the bank had continued to operate until after June 1, the appellant might have collected her certificates by presentation thereof. She would have been in a position on that date to enforce immediate payment. In such a case the operation of the bank from February to June 1 would have been in her favor. The action of the majority in extending the life of the bank, if it had been fully successful, would therefore have operated to the benefit of the appellant and not to her injury. Nothing appears in the record which would warrant a holding that the extension of the life of the bank to May 24 worked any prejudice to the appellant or made her deposit worth one whit less than it would have been if the bank had *Page 745
been closed in February. In the absence of prejudice, there could be no estoppel. Nothing is clearer upon this record than that the rights of the appellant were not prejudicially affected in any degree by the action of the "95%". If the bank was in fact solvent, then appellant was not entitled to have it closed in February. If, on the other hand, it was in fact insolvent, as appellant contends, she was not bound to submit to its continuing operation. She had power equal to that of any other depositor to put the question of solvency to the test by applying for a receiver. She was not precluded by the action of any other stockholder or by a majority thereof from pursuing any available remedy for the protection of her rights. She was not entitled to demand of any other depositor that he should vote in accordance with her views.
III. The final point urged is that the "95%" lost their status as depositors and voluntarily became lenders. The argument is that the extension of time granted by the waivers amounted in legal effect to a loan for the amount of the deposits, and that the "95%" thereby lost their parity with the appellant. The appellant cites no authority in support of her contention at this point. No authority is cited by either side which is directly in point. Such absence of authority is suggestive that the point itself is anomalous. Our own cases have considered the distinction between a loan and a deposit. The logic of these cases is against the position of the appellant.
In Murray v. First Trust Savings Bank, 201 Iowa 1325,207 N.W. 781, 783, we discussed the question as follows:
"The question before us for adjudication is whether the facts of the transaction under consideration had the legal effect to constitute the intervener a money lender rather than a depositor.The definite distinction between a deposit and a loan has neverbeen formulated. All attempted definitions recognize the close relation between the two and the difficulty of laying down any specific rule or distinction, applicable alike to all cases. A tentative or proximate definition has been put forward, and has frequently received judicial approval, as far as it goes. This is that a deposit is always subject to withdrawal upon the demand of the depositor, whereas a loan is subject to call only on and after its maturity date. The deficiency of this definition is that it takes no account of time deposits, nor of call or demand loans. This definition was approved by this court as an abstract proposition in State ex rel. Carroll v. Corning St. Sav. Bank, *Page 746 136 Iowa 79, 113 N.W. 500. And yet in the same case the holder of a certificate of time deposit due in 12 months, with 6 per cent interest, was held to be indubitably a depositor, and his claim was classified accordingly. Regardless of specific definition, the courts are agreed that there is a distinction between a deposit and a loan. Whether in a given case a transaction is to be deemed a loan or a deposit is a question to be decided upon the facts of that case."
See, also, Partch v. Krogman, 202 Iowa 524, 210 N.W. 612; Carroll v. Corning State Savings Bank, 136 Iowa 79, 113 N.W. 500; Estate of Olson, 206 Iowa 706, 219 N.W. 401; Elliott v. Capital City State Bank, 128 Iowa 275, 103 N.W. 777, 1 L.R.A. (N.S.) 1130, 111 Am. St. Rep. 198; Officer v. Officer, 120 Iowa 389,94 N.W. 947, 98 Am. St. Rep. 365; Hunt v. Hopley, 120 Iowa 695,95 N.W. 205; People v. Belt, 271 Ill. 342, 111 N.E. 93; McCormick v. Hopkins, 287 Ill. 66, 122 N.E. 151.
We will not take the time to analyze the foregoing. The trend of discussion in all of them is hostile to the position of the appellant. Clearly all these obligations of the bank were deposits in the first instance. They created the relation of debtor and creditor between the bank and its depositors. The title of the money thus deposited passed to the bank. It never was reacquired by the depositor. If we say that the depositor
later became a lender, what did he lend? He had no money to lend. He had parted with his money in the first instance. Ordinarily, one who lends money to a borrower has it in his power to lend or to withhold. Incidental to his loan is his power to choose the borrower. No power of that kind was incident to the transaction under consideration here. In this case the depositor found the bank unable to make immediate payment. He was in danger of losing his deposit because of the pecuniary condition of the bank. The deposit could be saved only by a saving of the bank. The bank could be saved only by forbearance of its depositors. The lender was not lending additional assets to the bank. His only lending was to lend forbearance. In so doing he was acting, as he believed, in his own interest as a depositor. What would it avail him to lend forbearance if as a result thereof he must surrender his rights as a depositor? Obviously he did not intentionally surrender his right of parity with every other depositor. If his conduct were to be so construed, who would dare hereafter to forbear? We deem it clear that these depositors did not intend *Page 747
to surrender their status as such and that no legal reason is apparent why a change of status should be enforced upon them.
The decree of the district court is accordingly affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435210/ | I find myself unable to agree with the majority wherein they affirm the holding of this court in the case of State v. Tonn, and respectfully dissent. *Page 185
At the time that the opinion in State v. Tonn was handed down, a very able and elaborate dissenting opinion was filed by Mr. Justice Weaver. It might be better if I were to repeat here that dissent rather than to attempt to add anything to it, and I call upon the bench and bar of the state to again read that dissent in order that they may ascertain whether or not this court is right in the majority's present interpretation of this all-important case. The majority call attention to the fact that certain other state courts are committed to the opposite view but they fail to set out that many, if not most of the cases cited, are not really in point as they were decided by courts in states not having a constitutional guarantee identical with that of the Fourth Amendment to the National Constitution. I am aware of the fact that there are cases that hold that the Fourth Amendment to the Federal Constitution does not apply to proceedings in the state court but as I understand it, the Fourth Amendment to the Constitution of the United States was re-enacted as part of the Constitution of Iowa, Article I, Section 8. The Supreme Court of the United States, which generally has been considered pretty good authority, in its interpretation of the Fourth Amendment has in no uncertain words announced that it will not countenance a violation of this amendment and that the fruits of illegal and unlawful search shall not be available to the government.
I quote with approval from Justice Weaver's dissenting opinion in the Tonn case, at page 119 of 195 Iowa, page 540 of 191 N.W.:
"It seems little less than solemn mockery for us to protest our devotion to the `sacred constitutional right,' or our virtuous purpose to rigidly enforce it, and in the same breath declare our approval of the admission of `evidence without any inquiry as to how that evidence was obtained.' The principle so involved finds a suggestive parallel in the case of the candidate for office who maintains his equipoise on the question of prohibition by declaring himself in favor of the law, but opposed to its enforcement. The suggestion that the person whose rights are invaded by a wrongful search or seizure has his remedy in an action for damages against the individual committing the trespass *Page 186
is scarcely worthy of the court which refuses to give him the protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary, as well as of the private citizen. It is this growing disregard of fundamental rights and orderly methods of justice which has given rise to the infamies of the so-called `sweat-box' and `third-degree' practices which cast discredit upon our professions of loyalty to law. The reasoning which justifies those things, and justifies a rule by which the court will refuse to inquire into the means employed to obtain evidence, if carried to its logical results, would be equally effective to admit evidence procured by physical torture, and restore the rack and thumbscrew to the dignity of judicial aids in the prosecution of alleged criminals. True, torture has been nominally outlawed in civilized lands, and the court would undoubtedly so declare, were that concrete question presented for its consideration; but the legal and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee each and every citizen against illegal searches and seizures."
I have always understood that the Constitution protected all men, including those charged with a crime. The Constitution of Iowa guarantees all the citizens of this state against unreasonable search and seizure. It is as much a part of the Constitution of Iowa as any other part. By this decision, as I read it, that constitutional provision is made of no value. In saying that I am but following the Supreme Court of the United States when it says in the Silverthorne [251 U.S. 385, 392,40 S. Ct. 182, 183, 64 L. Ed. 319, 321] and Weeks [232 U.S. 383, 393,34 S. Ct. 341, 344, 58 L. Ed. 652, 656] cases:
"It reduces the Fourth Amendment to a form of words."
I yield nothing to my brothers on the question of law enforcement but I deny that this is sufficient to sweep aside a constitutional provision. If the Constitution is in the way, then it should be amended in the manner therein provided. There is no provision in the Constitution for its amendment or nullification by sheriff, county attorney, attorney general, or even this court. *Page 187
I would reverse this case and specifically overrule the case of State v. Tonn.
I am authorized to state that SAGER, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435211/ | Appellee's petition is the ordinary form in a suit on a promissory note. Appellants filed answer and counterclaim in three divisions. The first two divisions are each a general denial, which is eventually disposed of by a pleading in which appellants admitted the due execution of the note. The third division is an alleged counterclaim, claiming damages in the amount of $2,000 for the violation of a contract between appellee and appellants on an exchange of real estate. This third division was later withdrawn. Later, Ioerger, one of the appellants, filed a further answer and counterclaim, in which *Page 1257
he alleged that he agreed to purchase from appellee certain residence property in the city of Webster City for $9,000; that certain false and fraudulent representations were made; and that he was damaged thereby in the sum of $5,000. Appellee filed a motion to strike this amendment to the answer, and appellants filed a motion to strike the motion thus filed by appellee. Appellants' motion was overruled, and appellee's motion was sustained. Whereupon, appellants filed an amendment to the answer and counterclaim in two divisions: They admit the execution and delivery of the note sued on, and that the amount due is substantially as alleged in appellee's petition, were it not for the matters hereinafter alleged. They further say, for complete answer and defense, that the appellant Ioerger, in behalf of both of these appellants, entered into a written contract with appellee, by which appellee was to convey to Ioerger Lot 4 in Block 1, Lawn Hill Addition to Webster City, and that he failed so to do; that later, an agreement was made that appellee was to collect the rents until such time as the property could be sold, and was to place a loan on said property in an amount to cover the indebtedness due from these appellants, including the indebtedness represented by the note in suit; that appellee has collected said rents since March 1, 1922, and retained possession of the property and placed a mortgage thereon; that appellee sold and disposed of the same, put the property out of his possession and power to perform said contract; and that, by reason thereof, the appellants have been damaged in the sum of $1,000.
In the second division, they allege a written contract between the appellee and Ioerger for a conveyance to Ioerger of Lot 2, Block 84, Webster City, Iowa, for $9,000, and allege false and fraudulent representations in the making of said contract, and that appellants were damaged in the sum of $2,500.
This land contract agreed upon by the parties was a contract for the exchange of a farm for the two properties above referred to, and was made between John Shaw and Fred W. Ioerger. Each of these divisions of this amendment to the answer was met by a demurrer by the plaintiff, which was sustained by the court. Appellants did not elect to stand on this ruling, so far as the record shows. Appellee made a motion for a directed verdict, but, before the same was ruled on, appellants again amended their answer. They alleged the same matters *Page 1258
alleged in their former amendment to the answer as to the exchange of this property, but alleged that Shaw was permitted to retain possession of the town property and to collect the rents in an amount which they alleged to be unknown; that he is still in possession of the property; that he has not accounted to appellants for the rents; that, by reason thereof, said note is paid; and that the action cannot be maintained. They ask that appellee's petition be dismissed. They say that the action is prematurely brought, in that, on account of an agreement to allow Shaw to collect the rents, no action would be brought upon said note, and that he would collect the said note wholly from the rents aforesaid and from any moneys which he might be able to loan on said premises. They further say, as to this land contract, that it was executed and delivered by appellee at the request of Blodgett, and with the consent and knowledge on the part of appellee that the property thus conveyed to Ioerger was in fact the joint property of the two appellants; and that appellee well knew that said property was in fact owned by said appellants; and that the representations which are alleged to have been made in Division 2 of the amendment filed were made to both of the appellants by said appellee, knowing at the time that the property mentioned in fact belonged to both of the appellants. (It might be said that all of these amendments and motions were made during the progress of the trial.)
Plaintiff moved to strike this last answer because "the answer is based upon the same identical rights and is subject to the same identical objections as were the original pleadings of the defendants, demurrer to which has just been sustained by the court, and that there is nothing in these pleadings just dictated into the record which removes the same from the defects which are raised by the demurrer and which has been sustained and this pleading." Subject to this motion, appellee demurred to the pleadings on all grounds assigned in the original demurrer.
The appellants then filed another amendment to their answer and counterclaim, alleging that they were the joint owners of the entire claim and cause of action set forth in the answer and counterclaim herein mentioned; and also, to support this allegation, set out an assignment by Fred W. Ioerger to T.E. Blodgett of a one-half interest in the claim and cause of action *Page 1259
embodied in the answer and counterclaim on file in this case. This last amendment was met by a motion to strike. The court sustained this motion to strike the last two amendments. Appellants excepted. Appellants refused to plead further, and elected to stand on the pleadings. A verdict was directed in favor of appellee accordingly.
It will be noted from the above that the first answer and counterclaim were eliminated by subsequent admissions or withdrawals; that the second was stricken on the ground that it was a claim of F.W. Ioerger individually, and that Blodgett was not a party to the same. This gives rise to the first question, to wit: where there is one plaintiff and joint defendants, whether one defendant may plead, as a counterclaim, an independent and individual claim that he may have against the plaintiff. This requires a consideration of Section 11151, Code of 1924, which reads as follows:
"Each counterclaim must be stated in a distinct count or division, and must be:
"1. When the action is founded on contract, a cause of action also arising on contract, or ascertained by the decision of a court.
"2. A cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contracts or transactions set forth in the petition or connected with the subject of the action.
"3. Any new matter constituting a cause of action in favor of the defendant, or all of the defendants if more than one, against the plaintiff, or all of the plaintiffs if more than one, and which the defendant or defendants might have brought when suit was commenced, or which was then held, either matured or not, if matured when so pled."
The matters set up by way of defense did not arise out of, nor were they connected with, the contracts or transactions set forth in the petition, nor out of the subject of the action. Hence Division 2, above quoted, has no application.
The material part of this section that must have consideration herein is the third subdivision thereof. A careful reading of this section can lead to but one conclusion, and that is that, where new matter is set up which constitutes a cause of action in favor of one defendant, when there is only one, or of all of *Page 1260
the defendants, if there are more than one, it is a good counterclaim. Some confusion has crept into our cases from lack of careful attention to this proposition, as will be observed by a comparison of the following cases: Allen v. Maddox, 40 Iowa 124; Jenkins v. Barrows, 73 Iowa, 438; Sherman v. Hale, 76 Iowa 383; Armstrong v. James Co., 155 Iowa 562; Dolan v. Buckley,197 Iowa 1363. A comparison of these cases with the text of the statute shows that the case of Sherman v. Hale, supra, is out of line with the general trend of our decisions on this section of the statute. We are satisfied that the purpose of this section of the statute was to fit the identical set of facts we have before us in the case at bar, and that the statute needs no construction, but means exactly what it says: That is, if there be but one defendant, he may file a counterclaim; if there be more than one defendant, then the counterclaim filed must belong to all of the defendants. This is the wording of the statute, and we so hold.
It might be said in passing that, prior to the adoption of the Code of 1873, a counterclaim, set-off, and cross-demand were treated separately, in different sections of the Code. Since the adoption of the Code of 1873, however, the general statute above set out is the result of a consolidation of the three different sections of the Revision of 1860, and all treated as counterclaims.
This would seem to decide the principal question involved in this case. It is met, however, by the suggestion that, at a later time in the proceedings, there is an allegation that an assignment was made by one defendant to his codefendant of a one-half interest in this claim; but there is no allegation that such assignment was made before this lawsuit was commenced. That an assignment made after the action was commenced is not available, see Cawker City St. Bank v. Jennings, 89 Iowa 230;Sullivan v. Nicoulin, 113 Iowa 76; Morrison Mfg. Co. v. Rimerman,127 Iowa 719; Cohn, Baer Berman v. Bromberg, 185 Iowa 298.
The rule as to the right of set-off in equity, under equitable principles and maxims, in a case where a set-off at law for non-mutuality might be denied, is not passed upon, as it is not involved in this case.
It is urged that, under the allegations of the last amendment to the answer, the question of payment was in the case, and should have gone to the jury. We do not so consider the matter, *Page 1261
as the allegations do not rise to the point of a plea of payment. If either of these parties has a claim, under the alleged contract, against appellee, he must recover thereon in an action brought for that purpose; as such claim, pleaded as it is here, is not available to him in this action. — Affirmed.
EVANS, C.J., and De GRAFF and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435214/ | The appellant is the executrix and trustee under the will of John J. Watson, deceased. The terms of said will provide:
"All the rest, residue and remainder of the estate, real and personal, which I shall own or possess at the time of my death I give, devise and bequeath unto my beloved wife, Josephine C.R. Watson, in trust, however, for the following uses and purposes, to wit:
"1. To manage, invest, and reinvest the same, and to pay all of the expenses thereof, hereby giving and granting to my said wife full power and authority to sell and convey any and all real property belonging to my estate and to invest and reinvest *Page 553
the proceeds thereof without application to or authority from any court, and further without such application to or authority from any court to mortgage any and all property that may belong to my estate for the purpose of paying my lawful debts or the lawful liabilities of or charges against my estate, and to renew, extend, or replace any lawful mortgages or other liens existing against my estate at the time of my death, or that may be placed against my estate or any part thereof after my death pursuant to this article or pursuant to the laws for the assessment and taxation of property for public improvements, and I further give my said wife authority to make and renew mortgages if necessary in the execution of Article 2 next following."
A codicil to said will provides:
"I hereby will and declare that my aforesaid wife, Josephine C.R. Watson, shall have full power to control, manage, sell, convey, invest, reinvest, mortgage, lease and to do all other acts and things in respect to my estate and each and every part thereof, not specifically bequeathed, as in her judgment shall seem best for the preservation, conservation, husbanding, improvement, investment, management or benefit of my estate, and I further declare that she shall have specific power to sell and convey any and all real property which shall belong to my estate at the time of my death or afterward, without application to or authority from or confirmation by any court."
The note in suit was given March 1, 1920, and is signed by the appellant, as "executrix and trustee under the will of John Watson, deceased." The cause was tried to the court, without the intervention of a jury. On or about the 14th day of August, 1919, the appellant entered into a written agreement with the appellees, whereby she purchased, as executrix and trustee under the will of Watson, a farm in Minnesota, subject to certain incumbrances. The note in suit was given March 1, 1920, as part of the purchase price of said farm, and was secured by mortgage on said farm. This action was brought directly on the note. The contract of purchase was fully consummated by the execution of conveyance.
The sole question for our determination is whether or not, under the terms and provisions of the will, the appellant, as trustee of the estate of said decedent, had authority to purchase *Page 554
the land in question and to execute the note in suit as a part of the purchase price. The terms and provisions of the will are very broad and inclusive. The purchase of the land in question with the proceeds of the estate of Watson was, we think, clearly within the broad powers conferred by the will, and especially by the terms of the codicil. The trustee is not only given specific power to "control, manage, sell, convey, invest, and reinvest, mortgage, and lease" property of the estate, but is also given specific and definite power and authority "to do all other acts and things in respect to my estate and each and every part thereof * * * as in her judgment shall seem best for the preservation, conservation, husbanding, improvement, investment, management, or benefit of my estate." We hold that the investment of the proceeds of the estate in the purchase of the land in question by the trustee was within the powers conferred upon her by the terms of the will and codicil, and that the execution of the note as evidence of a part of the purchase price of said property was within the powers so conferred, and was a valid and binding obligation. There is no claim of fraud in the purchase of the premises.
The fact that circumstances have arisen which now make it appear that the purchase of the land has proven to be an improvident and unprofitable investment on the part of the trustee does not, as between these parties, constitute a defense to this action. The discretionary power lodged in the trustee under the broad terms of this will is one which will not be controlled by a court, in the absence of fraud or of evidence of abuse of such power. Dickey v. Barnstable, 122 Iowa 572. There seems to be a paucity of decisions on the identical question presented where the question arises solely between the trustee and a third party, but, as bearing generally on the proposition that a trustee clothed with authority cannot be permitted to deny liability as such trustee for contracts incurred within the scope of the powers conferred by the trust, see 39 Cyc. 450; McClellandv. Hamilton's Admr., 8 Ky. Law Rep. 346 (1 S.W. 635); Taft v.Smith, 186 Mass. 31 (70 N.E. 1031).
The judgment of the district court was correct, and it is —Affirmed.
EVANS, C.J., and STEVENS and VERMILION, JJ., concur. *Page 555 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445637/ | Affirming.
On June 2, 1926, the board of trustees of the Bardstown graded school district for white pupils, by an order duly entered and spread upon its records, called an election to be held within the district on June 19, thereafter, for the purpose of obtaining the sense of the taxpayers as to whether the board should issue bonds of the district to the amount of $34,000.00 for the purpose of providing additional buildings and equipment for the use of the school. The election was called under the provisions of the present section 4477 of the statute as amended and re-enacted by chapter 8, page 35, Session Acts of 1922. The immediately preceding section (4476) as amended by the same act, among other things, authorized the board of trustees and vested it with power to levy a tax of not less than 25 cents nor more than $1.25 "upon each $100.00 of taxable property within the district and owned by white persons" and a poll tax upon the male inhabitants for the purpose of operating the school; while the following *Page 268
section (4477), as so amended in part, said: "If the tax levied under the provisions of section 4476 of this act is not sufficient to provide suitable grounds, buildings and equipment, boards of trustees are hereby authorized and empowered to order an election and submit to the voters of their respective graded common school districts the question whether or not the trustees thereof shall issue bonds of their respective graded common school districts, in any amount not exceeding the limit provided by sections 157 and 158 of the present Constitution of this state, for the purpose of providing suitable grounds, school buildings, furniture and apparatus for their respective graded common school districts." The section then provided for the requisite notice of the election and how it should be conducted, etc.
The order of the appellee, board of trustees in this case, calling the election for June 19, 1926, as spread upon its order book, says: "Be it resolved by the board of trustees that an election shall be held in this graded common school district to submit to the voters of the district the question whether or not the trustees thereof shall issue bonds of this graded school district to the amount of $34,000.00 for the purpose of providing suitable grounds, school buildings, furniture and apparatus for this graded common school district, and that said election shall be held on Saturday June 19, 1926, in the lobby of the graded school building in Bardstown, Kentucky, between the hours of 6 a. m. and 4 p. m." Following that language are provisions with reference to the posting of notices, the appointment of election officers and performance of other duties prescribed by section 4477 supra.
At the election there were cast in favor of the issuing of the bonds 374 votes and against the proposition 107 votes, making a majority in favor of the issual of 267 votes. This action was instituted by appellant and plaintiff below, Arch H. Pulliam, a taxpayer of the district, against the defendant, board of trustees of the school district, seeking to enjoin the issuing of the bonds upon the grounds "that said election was illegal and unauthorized and did not comply with the laws of this state, and was insufficient to authorize the issuing of said bonds by defendants, and plaintiff states that said bonds if issued will constitute a lien on real estate owned by this plaintiff in said district and will constitute a cloud *Page 269
upon plaintiff's title thereto, and he will suffer great and irreparable injury if said bonds are issued." The demurrer filed by defendant to the petition was sustained, and plaintiff declining to plead further, his action was dismissed, and to reverse that action of the trial court he prosecutes this appeal.
It is doubtful whether the general allegations of the invalidity of the election as contained in the petition are sufficient to call its validity in question. But waiving that, we have concluded to pass upon the only two possible questions that could be urged against its validity, which are: That the order did not recite that the sum sought to be raised by the issuing of the bonds was necessary to provide suitable grounds, etc., for the maintenance and operation of the school; nor did it recite, or is it anywhere made to appear, that such amount, if necessary, could not be raised by the maximum limit of authorized taxation by the preceding section, 4476. We entertain no doubt but that both of those facts should actually exist before the board would be authorized to call and hold an election for the purpose of bonding the district, since their right to call such an election is bottomed upon the pre-existing fact of the necessity of raising funds for the purposes mentioned, and which can not be done in that manner except when the rate of taxation provided for in the prior section would be insufficient to raise such needed and necessary funds. It does not necessarily follow, however, that the failure of the board to expressly find and record those prerequisites on its record would render the election invalid if such prerequisites existed in point of fact. In other words, there is nothing in the statute either expressly or by necessary implication requiring that the existence of such prerequisite facts should be evidenced by the recorded finding of the board. In elections held under the provisions of sections 4307 and 4464 of the statutes, it frequently has been held by us that the petitions for such elections must expressly contain the facts as set out in those two sections before the authority calling the elections therein provided for may be authorized to do so. In other words, that the existence of such facts is not only jurisdictional, but that they must be evidenced by a proper writing composing a part of the election proceedings.
No such petition is required for the character of election now under consideration, but, as we have seen, *Page 270
the statute only prescribes the actual existence of the two facts supra, and after the board has acted it will be presumed that it found and determined their existence before it ordered the election, under the universally recognized rule that a sworn officer is presumed to have performed his duty in the absence of a showing to the contrary. If, therefore, a taxpayer, or other person having the right to do so, would invalidate the election because of the nonexistence of either of such facts it is incumbent upon him to allege such invalidating matter, and if it should be denied, then to prove it. No effort to do so was made by plaintiff in his petition, and the court properly sustained the demurrer thereto and dismissed it when he declined to further plead.
Wherefore, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435331/ | We glean from a somewhat lengthy petition a brief statement of the salient facts.
The plaintiffs are the surviving children of one Willem Oldenkamp, deceased, and are beneficiaries of his will. The will of Oldenkamp was probated in 1918. It awarded to his widow, Tryntje Oldenkamp, a life use of all his property both real and personal, including the $10,000 mortgage in controversy herein. Pursuant to the terms of the will, Mrs. Oldenkamp took possession of the mortgage and exercised the dominion thereof. In 1922 she assigned and delivered said mortgage to the defendant bank, and said bank has held the same ever since. The circumstances attending such assignment and delivery involved a defalcation of an employee of *Page 1410
the bank, one Gelder, who was a son-in-law of Mrs. Oldenkamp. It is averred by the plaintiffs that the said mortgage was thus assigned and delivered to the bank as a "bail bond" for Gelder, or as security for the payment of the debt owing by him. The said assignment was withheld from record until the 30th day of January, 1926, on which date it was filed for record. The plaintiffs claim interest on their recovery from such date. Tryntje Oldenkamp died on July 19, 1930. The original petition alleges as follows:
"That under the last will and testament of said Willem Oldenkamp, the plaintiffs and said Harm Oldenkamp became the owners of said note and mortgage hereinbefore referred to, subject to the life estate of said Tryntje Oldenkamp in and to the same, and upon the death of said Tryntje Oldenkamp became entitled to the full possession thereof.
"That notwithstanding the fact that these plaintiffs and said Harm Oldenkamp were the owners of said note and mortgage hereinbefore referred to, the defendant, wrongfully and wilfully, on or about the 30th day of January, 1926, converted said mortgage to its own use, and ever since said date has kept and retained the same, or the proceeds thereof, and has failed and refused, and continues to refuse, to account for or deliver the same to these plaintiffs.
"That the interest of said Harm Oldenkamp in and to said note and mortgage has been duly assigned to the plaintiff, Jennie Nieuwenhuis, and she is now the holder and owner thereof.
"That said note and mortgage belong to these plaintiffs, and they are the rightful owners thereof, and entitled to the possession thereof.
"Count II.
"Plaintiffs made all of the allegations of Count I a part of this count, the same as if fully set out herein, and further allege that on or about the 30th day of January, 1926, the defendant, through fraud and deceit practiced upon the said Tryntje Oldenkamp, and duress exerted upon her, obtained from Tryntje Oldenkamp, now deceased, the surviving wife of Willem Oldenkamp, an assignment and transfer of said note and mortgage, without the knowledge or consent of these plaintiffs.
"That at the time the defendant so obtained said assignment and transfer of said note and mortgage to itself from the said Tryntje Oldenkamp it well knew that the said Tryntje Oldenkamp was not the full owner thereof, and that she did not have the right *Page 1411
to transfer and set over the same to it, and the obtaining of said note and mortgage by the defendant from the said Tryntje Oldenkamp was a fraud upon and in violation of the rights of these plaintiffs.
"That demand has been made upon the defendant by these plaintiffs for a return of said note and mortgage to them, or the proceeds thereof, but the defendant has failed and refused, and still refuses to account to these plaintiffs for said note and mortgage.
"That these plaintiffs are entitled to the said note and mortgage or the proceeds thereof, and the same are still their property.
"Wherefore, the plaintiffs demand judgment against the defendant, upon both counts of this petition, in the sum of $10,000, together with interest thereon at the rate of six per cent per annum from January 30th, 1926, and for costs."
The court having sustained the motion for more specific statement, the plaintiff filed the following amendment:
"That for some years prior to September 6, 1922, one Clarence Gelder, had been an employee of the defendant bank. That Gerrit Klay during all the times hereinafter mentioned, was a practicing attorney at Orange City, Iowa; that he is an officer and director of the defendant bank; that the said Gerrit Klay was attorney for the said Trynfje Oldenkamp during all the times hereinafter mentioned.
"That the said Tryntje Oldenkamp was a native of the Netherlands, that she could neither read nor write the English language, that she was not familiar with the English language and could not understand nor speak the English language.
"That on or about the 6th day of September, 1922, the defendant bank by its officers and by the said Gerrit Klay, by duress and by threatening to send the said Clarence Gelder to the penitentiary for alleged shortages in bank funds under his control in said bank while an employee of said bank, and by falsely and fraudulently representing to the said Tryntje Oldenkamp that the note and mortgage referred to in this petition must be assigned to said bank as an appearance bond for the said Clarence Gelder, so obtained through fraud and deceit and by duress exerted upon her, a purported assignment of said note and mortgage.
"That the defendant further fraudulently and for the purpose of misleading and deceiving the said Tryntje Oldenkamp and to induce her to execute purported assignment of said note and mortgage to said bank, orally represented to her that they would not *Page 1412
file assignment for record; and did not file the same for record until January 30, 1926; that they would keep the matter a secret and would not disclose the transaction to the plaintiff heirs; that they would account to her and to the plaintiffs for interest or principal paid on said note and mortgage. That to further defraud and deceive the said Tryntje Oldenkamp and as a part of the same scheme, defendant caused the said Gerrit Klay to represent to her falsely and fraudulently as her attorney that it would not be necessary to obtain an assignment from her children, the plaintiffs; that they would not have to sign anything and that the transaction was proper and legal and that said note and mortgage would later be returned to her.
"That as a part of the same scheme the said defendant fraudulently represented to the said Tryntje Oldenkamp that the transfer of said note and mortgage was in lieu of bail bond only for the said Clarence Gelder; that the said Clarence Gelder was making arrangements with his father to obtain funds elsewhere to make good his alleged shortage in defendant bank, and further falsely and fraudulently represented to the said Tryntje Oldenkamp and as an inducement to obtain said purported transfer of said note and mortgage, that as soon as said alleged shortage had been made good by the said Clarence Gelder to defendant bank, that they would then promptly return to Tryntje Oldenkamp said note and mortgage.
"Wherefore, having amended, plaintiffs renew the prayer of their original petition."
It will be noted that the burden of allegation in the amendment is to the effect that the defendant deceived and defrauded Mrs. Oldenkamp. It is apparently upon that theory that claim is made for damages antedating the death of Mrs. Oldenkamp. Mrs. Oldenkamp's administrator was not made party to the case; nor do the plaintiffs claim to recover as her heirs. On the contrary, the prayer of the amendment adopts that of the original petition. This suit was begun on August 18, 1931. The date of the conversion, as charged in the petition, was January 30, 1926. It will be noted that more than five years elapsed after January 30, 1926, and before August 18, 1931. The plaintiffs were therefore confronted with the presumptive bar of the statute of limitations; and such was the point made in the demurrer. Though the plaintiffs alleged that the defendant had promised Mrs. Oldenkamp to keep the events secret from the plaintiffs by withholding the assignment from record, yet *Page 1413
they failed to allege that they did not in fact know of the transaction at, or about, the time it was had. Nor do they allege that they did not know of the assignment on and immediately after January 30, 1926.
Just why the plaintiffs fixed upon January 30, 1926, as the date of the alleged conversion is not disclosed in the record. The plaintiffs doubtless had their own reasons for that. It is conceivable that the plaintiffs might have had a cause of action even though the defendant was guilty of no fraud at any time in its transactions with Mrs. Oldenkamp. If the bank took an assignment of the mortgage from Mrs. Oldenkamp, it took nothing more than her interest therein. After the assignment, the bank appropriated the accruing interest. Such was the fruit of the life use of the mortgage, which had been given to Mrs. Oldenkamp under the will of her husband. To that extent the plaintiffs had no legal interest; that is to say, their rights were neither greater nor less because of the transaction between the bank and their mother. It is conceivable also that, upon the death of the mother, the mortgage became the absolute property of the plaintiffs as the beneficiaries of the will of Willem Oldenkamp, and that they could have recovered it from the defendant at any time after July 19, 1930. The brief of appellant sounds to some extent in just this contention.
Notwithstanding, therefore, the apparent lack of skill in the formulation of the petition, and notwithstanding its duplicity and irrelevancy in various respects, and notwithstanding the fact that the alleged conversion on January 30, 1926, is within the bar of the statute of limitations, there is still left in the petition sufficient allegation of the simple fact that, by the will of Willem Oldenkamp, his widow acquired the life use of the mortgage and the plaintiffs acquired the right thereto after the death of Mrs. Oldenkamp, and that the right of the plaintiffs to the possession and full ownership of said mortgage accrued on the date of the death of Mrs. Oldenkamp, July 19, 1930. If these allegations be true, they constituted a cause of action regardless of any question of conversion, fraud, or deceit practiced on Mrs. Oldenkamp.
On this ground alone we think the ruling on the demurrer should be reversed. The defendants are doubtless entitled to the use of a pruning hook, but a demurrer is not available for that purpose. — Reversed.
All the Justices concur. *Page 1414 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435332/ | Florence Harwood and Adam Dolmage were married on the 20th of September, 1923. At that time, Florence was 47 years of age, and Adam was 68. They had been acquainted since the previous January. On the 27th or 28th of December, 1923, Adam killed his wife, and killed himself shortly thereafter. Appellant's claim is predicated upon the contention that, on March 12, 1922, Adam, who then lived at Victor, Iowa, wrote to Florence, who then resided in Chicago, a letter, in which he said to her:
"Your presence seems to make me happy and makes life worth living and would like to arrange to have you in my home and to look after me and have lots of property and can well afford to pay you so you can always support your mother. I am going to make you an offer that I know you will accept, if you will agree to quit your job, go and live with me and keep house for me and look after my wants the balance of my life, and agree to later marry me, I will transfer to you one third of all my property. You know from what I have told you that this will make you a good nest egg and you will Always Have Plenty of money for Yourself and to Keep your Mother. Let me know Florence What You Say."
The original letter referred to was not offered in evidence, but it is the contention of the appellant that a true copy of said letter was made by a witness, who produced the same in evidence. It is contended that the proposition was accepted by *Page 233
Florence, and that said parties were married, as stated, and lived together until the tragedy of their deaths.
I. It is contended that the court erred in stating the issues to the jury. In so doing, the court used the following language:
"Further answering, defendants state that said alleged contract is void, and cannot be introduced, under what is known under the statute of frauds; that the same is without consideration, and against public policy. Such, in substance, are the issues as made by the pleadings in this case."
The answer of the appellees pleaded that the contract sued upon was void, under the statute of frauds, and that it was without consideration, and contrary to public policy. Appellant's contention is that the questions raised by this 1. TRIAL: allegation were solely questions of law, which instruc- the court was called upon to determine in the tions: trial of the cause, and that, although it was statement within the substance of the pleading, it was of party's error for the court to state that these claim. questions were part of the issues in the case. The statement was in the general preliminary statement of the court, preceding Instruction No. 1. In the recent case of Langev. Bedell, 203 Iowa 1194, considering a somewhat similar situation, we said:
"The preliminary statement of the issues by the court was nothing more than a recital of the allegations of the petition and the answer. It is no doubt the better practice for the court to omit entirely from the preliminary statement all issues that have been withdrawn, or that should not, because without support in the evidence, or for some other reason, be submitted to the jury. This is frequently not done. The mere statement of the allegations of the pleadings to the jury does not operate as a submission of a question to the jury. The law by which the jury must be governed is always stated, following the recital of the allegations of the pleadings."
In Veith v. Cassidy, 201 Iowa 376, we said:
"We have repeatedly condemned this method of stating the issues to a jury. Like all pleadings, those in the instant case contain surplus matter not necessary to a proper pleading. It is the duty of the court, in stating the issues in instructions, to select the material allegations of the pleadings of the parties which make the real issues in the case, and state them in such a *Page 234
way that the jury may understand the exact contentions of the respective parties. To copy the ordinary pleading in full, with the usual elaborations contained therein, and then tell the jury that the issues and questions under dispute are above set forth, permits them to speculate, and possibly turn their decision on a matter which is wholly immaterial, and not an issue in the case.Swanson v. Allen, 108 Iowa 419; Gorman v. Minneapolis St. L.R.Co., 78 Iowa 509; Robinson Co. v. Berkey Martin, 100 Iowa 136. "
The court was in error in submitting the issues in the manner stated.
II. The court instructed the jury in one instruction as follows:
"You are instructed that the burden of proof is on the 2. TRIAL: claimant, and before he can be entitled to an instruc- allowance in your verdict on account of the tions: matters alleged in his claim, he must establish amount of and prove, by a preponderance of the evidence, proof: law — that is, the greater weight of the and equity evidence, and by evidence which to your minds, contrasted. as reasonable persons, appears to be clear and satisfactory * * *."
In another instruction the court said:
"His allegations as to the making of the alleged contract must be established, as you have been told, by the preponderance of the evidence and by evidence which to your minds, as reasonable persons, is clear and satisfactory."
In another instruction the court said:
"For the reason that the only witness who could deny the making of the contract as alleged by claimant is dead, and the claim is made against his estate, it is your duty to closely scan the evidence adduced by the claimant in support of his allegations with respect to the making of the contract upon which he relies. What I have just said must not make you overly cautious; for, if claimant has established his case by a preponderance of the evidence, and by evidence direct and positive and satisfactory to your minds, the claim sued upon should be allowed in some amount. The thought is simply that, being the sole judges of the weight of the testimony, and it being within your province to find the very truth of the facts in this case, you *Page 235
should hold a tight rein over the claimant, and require of him strict and satisfactory proof of his demands."
Appellant contends that these instructions are erroneous, in that they placed too heavy a burden upon the appellant, in requiring the appellant to establish his claim "by evidence which to your minds, as reasonable persons, appears to be clear and satisfactory," and other like statements.
From an early day we have recognized the distinction between the degree of proof required in ordinary actions and in actions in equity. Code of 1924, Section 11963, provides that, in the hearing of a contested claim in probate, "all provisions of law applicable to an ordinary action shall apply." In McAnnulty v.Seick, 59 Iowa 586, we said:
"It is insisted that a bare preponderance of evidence is not sufficient, but that the proof should be strong, clear, and satisfactory. The rule by which a chancellor governs his own action in cases in which it is sought by parol evidence to convert a deed absolute on its face into a mortgage, is that the `proof should be clear, satisfactory, and conclusive.' Corbit v.Smith, 7 Iowa 60; Hyatt v. Cochran, 37 Iowa 309. To the same effect see Cooper v. Skeel, 14 Iowa 578; Maple v. Nelson, 31 Iowa 322; Epps v. Dickerson, 35 Iowa 301. It is, however, the established law of this state that questions of fact submitted to a jury in civil cases are to be determined by a preponderance of evidence. Welch v. Jugenheimer, 56 Iowa 11."
In equity cases involving a contract with a decedent to give and convey property in consideration for services, it has been the uniform rule that the proof of such contract must be clear, convincing, satisfactory, and referable to the contract. Johnstonv. Johnston, 19 Iowa 74; Truman v. Truman, 79 Iowa 506; Wilson v.Wilson, 99 Iowa 688; McDonald v. Basom, 102 Iowa 419; Holmes v.Connable, 111 Iowa 298; Chew v. Holt, 111 Iowa 362; Briles v.Goodrich, 116 Iowa 517; Bevington v. Bevington, 133 Iowa 351;Boeck v. Milke, 141 Iowa 713; Stennett v. Stennett, 174 Iowa 431;Lynch v. Coolahan, 177 Iowa 179; Hart v. Hart, 181 Iowa 527.
In Jamison v. Estate of Jamison, 113 Iowa 720, we considered an action at law, to recover damages by reason of the failure of a decedent to convey or will a tract of land in consideration of certain promises. We therein said: *Page 236
"The court instructed, in substance, that plaintiffs must establish their case by a fair preponderance of the evidence. This instruction is objected to for two reasons: First, because of the use of the word `fair;' and second, because in such action plaintiff must make out his case by clear, satisfactory, and convincing evidence. Neither of these positions is tenable. The use of the phrase `fair preponderance of the evidence' has already been approved. Bryan v. Railroad Co., 63 Iowa 466. And in law, questions of fact are to be determined from the preponderance of the evidence. McAnnulty v. Seick, 59 Iowa 590;Farmers' Co-operative Soc. of Geneva v. German Ins. Co., 97 Iowa 749. "
Hutton v. Doxsee, 116 Iowa 13, was a case where in one count a claim was made for damages growing out of the failure of the decedent to comply with a contract whereby the decedent agreed, upon a consideration, to deed claimant a certain farm. We said:
"Defendant asked an instruction to the effect that plaintiff must prove his case by clear, unequivocal, and definite testimony. This was refused, and in lieu thereof the court instructed that a preponderance of the evidence was sufficient. There was no error in this. Jamison v. Jamison, supra. We are asked to say that that case is erroneous, and to overrule it. As it follows two other cases theretofore decided by this court, and simply reaffirms a rule of long standing, — one which seems to have support in the great majority of cases, — we do not feel like disturbing it. The distinction between the measure of proof in law and in equity cases in this respect has always been preserved by this court. All the cases relied on by appellant, save one, were suits in equity. In the exceptional case, no question was made of the instruction."
Thompson v. Romack, 174 Iowa 155, was an action in probate on the claim for the value of a farm because of the failure of the decedent to will or deed the same under no express contract to do so. We therein said:
"Cases are cited by appellant, holding that the evidence must be clear, satisfactory, and convincing. As stated, this is not a case to set aside a deed or for specific performance, and we think a preponderance of the evidence is all that is required in a case of this kind. The action was to establish a claim *Page 237
against the estate. Mosher v. Goodale, 129 Iowa 719; Jamison v.Jamison, 113 Iowa 720; McAnnulty v. Seick, 59 Iowa 586; Welch v.Jugenheimer, 56 Iowa 11; Hutton v. Doxsee, 116 Iowa 13."
See, also, Snyder v. Guthrie, 193 Iowa 624.
It therefore is clear that we have, since the early history of the state, recognized a distinction between the general class of cases involving claims of this character against estates, as to the degree of proof required where the action is in equity and where it is in the nature of a claim against the estate of a decedent, triable at law. The only case that is called to our attention that appears even to be out of harmony with the general rule is In re Estate of Rich, 199 Iowa 902. In that case the proceeding was in probate, to establish a claim against the estate of the deceased. The claim was in two counts: the first in the nature of a claim for services, and the second upon a contract to leave a part of an estate to the claimant, for services rendered. The court directed a verdict for the estate as to the second count. We reviewed the evidence on the second count, and held that the court did not err in directing a verdict for the estate. In the course of the argument we said:
"We have held that the evidence must be clear, satisfactory, and convincing, and that the acts relied upon to constitute performance should be equally clear, and referable exclusively to the contract" (citing Stennett v. Stennett, supra, Hart v. Hart,
supra, Lynch v. Coolahan, supra, — all of which, as we have seen, were cases in equity).
The rule of law as stated is correct as applied to an equity case, and the conclusion in the Rich case, although the action was at law, was correct.
The instructions above set forth placed too great a burden upon the appellant in this action. They cannot be sustained, in view of our well established rules in cases of this kind, and necessitate a reversal of the action. In this connection, we have considered the instructions as a whole. When they are so considered, there is nothing therein that overcomes the error in giving these instructions.
III. In another portion of Instruction No. 3 the court instructed the jury as follows:
"You are instructed that you are authorized by law to treat *Page 238
3. TRIAL: any improbabilities which you may find in the instruc- evidence related by witnesses, if there be any, tions: as a defense, when tested by comparison with all testimony: the other evidence in the case and by the weight and ordinary rules of human conduct as known to you sufficiency: through your knowledge of persons and affairs, effect of and your own experience of life." "improbabi- lities."
This instruction cannot be successfully defended. It is not the law that the jury are authorized to "treat any improbabilities" which they may find in the evidence "as a defense." Improbabilities in the testimony do not constitute "a defense." They are proper for a jury to take into consideration in determining the truth of the matters submitted to them, but in no proper sense can it be said that "any improbabilities" in the testimony are "a defense." The court was unhappy in the choice of the language used to express the thought which was undoubtedly in the mind of the court. We think that the instruction as framed was prejudicial and erroneous.
Appellees contend that, even though errors were committed by the trial court in the instructions, nevertheless the errors were without prejudice, because of the fact, as contended by appellees, that the court should have sustained the appellees' motion for a directed verdict, on the ground that, in no event, under the record, was the appellant entitled to recover. We limit our decision in this case expressly to the questions raised by the appellant on this appeal and to the errors herein pointed out, and we expressly reserve any pronouncement upon any other questions argued by the appellees.
It necessarily follows that, because of the errors pointed out, the judgment of the district court must be, and it is, —Reversed.
All the justices concur. *Page 239 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435334/ | The plaintiff was married on the 24th day of October 1939, to Harold Wallrich, who is the son of the defendant, Mrs. Frances Wallrich. The defendant is a widow and the mother of two sons and four daughters. The plaintiff is the daughter of a farmer living in the vicinity of Ashton, Iowa, and not far from the Wallrich farm. On the 27th day of December 1940, she commenced this action alleging that due to the conduct of the said defendant the affections of the plaintiff's husband were alienated and he was caused to leave and desert her. There was a trial to the jury, which returned a verdict for the plaintiff, and the defendant has appealed.
[1] The appellant strenuously argues that the lower court erred in overruling the motion for a directed verdict made by the appellant at the close of the appellee's testimony and renewed at the close of all of the evidence, contending that the record clearly shows that the evidence of the appellee and that of her witnesses was wholly insufficient to submit this case to the jury, and that as a matter of law it was the duty of the trial court to direct a verdict in favor of the appellant, so we turn to the record to ascertain the facts.
In the case of Stilwell v. Stilwell, 186 Iowa 177, 188, 172 N.W. 177, 182, this court said:
"In the case at bar, all we may inquire into is whether we can say, as matter of law, that the proof adduced was insufficient. The jury has found that the essentials to a verdict have been sufficiently established. We can interfere only if we may say that no reasonable mind could so find. It is not a question of what we think of the evidence. The narrow question before us is whether a jury could, in reason, find that the matters we have referred to as being necessary elements in the proof have been established. We have already said that, as a guide to appellate review, fact cases are of little help. In the last analysis, the question here is whether, as matter of law, the evidence in this very case is insufficient to sustain a recovery."
Verna Wallrich was born in Osceola county. She was the daughter of Mr. and Mrs. Joseph Klunenburg. She lived with her father and mother and two sisters on a farm not far from *Page 764
the Wallrich farm. Harold Wallrich is the son of Mrs. Frances Wallrich, the appellant. He and his brother Gilbert rented a farm from their mother, and the mother, Mrs. Frances Wallrich, lived in the town of Ashton. Harold and Verna had been acquainted all of their lives. Verna, at the time of her marriage, was 21 and Harold was 28. While they were acquainted with each other and their families were acquainted they had never gone together until the evening of September 7, 1939. On that evening Vic Winchell, a friend of both of them, arranged an engagement between Harold and Verna. Harold drove to the home of Verna's parents, Vic accompanying him, and they picked up Verna, started to a near-by town to secure a young lady friend of Vic's and then headed to Remsen for the dance, stopping on the way at Sheldon, where liquor was purchased which was consumed later by the four of them at the dance. It was early on the morning of September 8th that they started back home, and sometime before they reached home Harold and Verna had intercourse. They were together on several occasions shortly thereafter and on several of these occasions they had intercourse.
On October 1st Verna informed Harold that she was pregnant and they made plans and arrangements to get married. They went to see their pastor and talked the matter over with him, and after leaving the pastor's home they went to the house where the appellant, Harold's mother, resided, a short distance away in the town of Ashton. Harold told his mother that he was going to get married and that Verna was to be her future daughter-in-law. The evidence shows that she said at that time she thought he was crazy, that she had never expected him to get married, and finally she asked him if he had to get married, what the matter was, and Harold said, "Yes." Then she asked the appellee if she was sure that it was necessary to get married and the appellee replied that it was. They informed the appellant that they had made arrangements with the pastor. Harold and Verna kept company every night thereafter until the day of the marriage. On the 9th day of October 1939, Harold came to the home of the Klunenburgs, accompanied by his mother, the appellant. There were present *Page 765
at that meeting the appellant, the appellee, Harold Wallrich, and the parents of the appellee, Mr. and Mrs. Joseph Klunenburg. The appellant said she had heard that Verna was two and one-half months along before she ever went with Harold. Verna denied this and Verna's father said that Harold did not have to marry Verna unless he wanted to. Harold then spoke up that he believed what Verna was saying and that they would get married. There is in the record evidence of statements made by Harold to Verna prior to the time of the wedding in which Harold said that his mother had told him that Verna was not telling the truth about her condition and that his mother was trying to keep him from getting married; that she tried to keep him from getting the marriage license and was insisting that Verna was two and one-half months along already.
On the 24th day of October 1939, Harold Wallrich and Verna Klunenburg were married. A week later Harold and Verna went to the home of Mrs. Wallrich, the appellant, and offered to give her her choice of the wedding pictures. She complained about them, that she did not like them, and that they were not any good. About a week after "the shower" which was held for the young married couple, Mrs. Wallrich came out to the farm. She at that time made certain statements in which she said they were living like dogs. She called Verna a hound. There was some talk about a trip to St. Paul but she said they had better not take the trip, they had better save their money for "that brat" that "will be on your hands in a couple of months." Verna asked what she meant by a couple of months and she said, "Yes, in a couple of months." Appellant then said it was not "Harold's kid" that Verna was carrying. She said that if the child did not come on the day it was appointed for, 15th of June, that it was not any relation of hers and was not going to live on her place. Appellant then said that Harold had just married an old streetwalker and that Verna had run around with every Tom, Dick and Harry, and she said she "knew whose kid that was," and she mentioned a man's name.
The record clearly shows that Harold and Verna had no trouble from the time they were married up until the day, to *Page 766
wit, May 19, 1940, when he took Verna to the hospital at Sibley and the baby was born. During this period of time, there is evidence in the record of a continuous hostile attitude of the mother toward the appellee, Verna. This evidence, of course, is denied by the mother, but that makes it a fact question for the jury to decide.
[2] Appellant argued that as mother of this boy she had the right to counsel him in all matters relating to his welfare. This, of course, is true but there is the added condition that in so doing she must act in good faith. In the case of Heisler v. Heisler, 151 Iowa 503, 505, 131 N.W. 676, 677, this court said:
"Appellants say that even if the jury might have found that his affections had been alienated, the finding that this had been caused by wrongdoing on their part is not sustained by the evidence. In passing on this question, it must be borne in mind that the defendants are the parents of Willie, and, owing to this relation, had the right to counsel him in all the matters relating to his welfare, provided that in so doing they acted in good faith. The reciprocal obligations and the affection of parent and child continue through life, after as well as before marriage, and caution must be exercised lest the assertion of a supposed right of action be made to rest upon a proper parental regard to the welfare and happiness of the child. There is a broad distinction between a case of this kind against the parent and one against a stranger. Parents are under obligations by the laws of nature to protect their children from injury and relieve them when in distress. Their natural affections prompt them to interest themselves in the welfare of the child. Conduct of a stranger which justly would be characterized as that of a malicious intermeddler might express but the natural impulse of parents. The law recognizes the right of father or mother to advise their son concerning his domestic affairs, even though this lead to separation or that separation be effected, without incurring liability for alienation, if the advice be given honestly with a view to the welfare of both parties. Beisel v. Gerlach, 221 Pa. 232 (60 A. 721, 18 L.R.A. (N.S.) 516); Leavell v. Leavell, 122 Mo. App. 654 (99 S.W. 460); Tucker v. Tucker,74 Miss. 93 (19 So. 955, 32 L.R.A. *Page 767
623); Tasker v. Stanley, 153 Mass. 148 (26 N.E. 417, 10 L.R.A. 468); Oakman v. Belden, 94 Me. 280 (47 A. 553, 80 Am. St. Rep. 396); Barton v. Barton, 119 Mo. App. 507 (94 S.W. 574); Hutcheson v. Peck, 5 Johns. (N.Y.) 196."
This court, in the case of Moir v. Moir, 181 Iowa 1005, 1008, 165 N.W. 221, 222, again emphasizes this matter when it says:
"The circumstance that a child is married does not sever the parents' relations with him. He may lawfully and is likely always to talk over his affairs, and especially his troubles, even those relating to his domestic affairs, with them, and the law recognizes the right of parents to counsel their children, even after marriage, and concerning the most delicate relations of life. Heisler v. Heisler, 151 Iowa 503, 505; Miller v. Miller,154 Iowa 344; Busenbark v. Busenbark, 150 Iowa 7; Pooley v. Dutton, 165 Iowa 745. For this reason, more proof is required to sustain such an action against a parent than against a stranger. Even though a father's advice be unsound or foolish, if it be given in good faith, he is exonerated. Moreover, good faith is to be presumed, and malice must in all cases be proven directly, or the circumstances shown to be such that malice may be inferred. Heisler v. Heisler, supra; Geromini v. Brunelle, 214 Mass. 492
(46 L.R.A. [N.S.] 465, and all cases collected in note)."
We have no fault to find with this rule but it does not give to the parents an unlimited right to destroy the affection that a child has for his wife. They must act in good faith. They must have some basis for the rumors and the charges they make. The appellant had no right, as the mother of Harold, to accuse Verna of unchastity, of being a streetwalker, and of running around with other men. There is no basis in this record upon which any such charges could be made, for the record shows that Verna Wallrich had never had intercourse before the evening of September 7th, when she went out with Harold Wallrich. While, as most young girls, she had gone around with other men, there is no evidence that she kept steady company with any individual, nor of any improper relationship between her and any other man. Great reliance is placed by *Page 768
the appellant upon the case of Heisler v. Heisler, 151 Iowa 503, 510, 131 N.W. 676, 678, and yet in that very case this court held that it was a question for the jury in regard to the mother. We quote from that opinion:
"Probably faultfinding with plaintiff's cooking, with the arrangement of her furniture, with entertaining members of her family, with raising too many chickens, with her counsel to Willie in the operation of the farm, and even with working him to death, and the like, would not be enough to justify such a finding, but when all these were supplemented by repeated insinuations and accusations against plaintiff's character for chastity, and these were shown to have influenced Willie against his wife, and were persisted in after she must have known their effect, a case was made for the jury. It should be added that the evidence concerning the different complaints of this defendant's conduct is in sharp conflict, and we have undertaken to do no more than indicate the tendency of that introduced in behalf of plaintiff."
Certainly the record in the case at bar is stronger than in the case of Heisler v. Heisler, supra. This record shows that within a few days after the baby was born this appellant went to the doctor who delivered the child to check up on whether the child was full term or not. The appellant testified that Dr. Reinsch on that occasion told her there might be a variation of three weeks in the time that a child came, and yet we find that she went from her home in Ashton, either on the same day that she consulted with the doctor or a day or so later, out to the farm, where she talked with her son Harold. According to appellant's own testimony, when she reached the farm she found Harold out dragging the field. When Harold came in, we quote from her testimony:
"Gilbert says you said you had your baby but you said it wasn't yours. That's a great note. If that is the case you and your wife better get a house in town and better live there. It would be better for all of us if you did that."
She said she then started to cry and lay down on the davenport. Knowing as she did from the doctor's own statement *Page 769
to her there could have been a difference of three weeks in the time of the birth of the child, yet immediately she said to her son Harold that they had better leave the farm. It must be kept in mind that this was a day or so after the child was born and it was on either the next day or the following day that Harold told Verna, when Verna was still in the hospital, that his mother was complaining bitterly, and shortly thereafter Harold abandoned Verna and the baby.
In addition to this testimony there is direct evidence that after the baby was born appellant told a witness that it was too bad about Harold and Verna, that the baby came too soon and, "it wasn't Harold's baby and that she was going to have the marriage annulled."
True, this testimony is denied by the appellant, but the question that we are now dealing with is whether or not there is sufficient evidence to take this case to the jury, in view of the evidence that there was no trouble between these young people except on the occasions when the mother would come to the house and make charges such as she did, and in view of the evidence that within a few days following the birth of this child the appellant went to the doctor that had taken care of Verna Wallrich to ascertain the facts, and shortly thereafter went out to the farm, where she talked with her son Harold about the fact that the child was not his child. True, she says that was the statement made by Harold himself, but the jury would have a right to draw certain inferences from the facts that she consulted the doctor and then traveled out to the son's farm and started discussing this very question, and that it was immediately after this conversation between the mother and the son that Harold told his wife he could not live with her any longer.
We can come to no other conclusion than the question was one for the jury and that the lower court was right in overruling the motion to direct.
[3] It is next argued that the lower court erred when stating the issues to the jury by reading practically verbatim appellee's petition and thus submitting to the jury issues upon which there was not competent evidence to support the same. This court has on numerous occasions condemned the custom *Page 770
of copying verbatim the pleadings in the court's instructions. The copying of the pleadings, however, though not approved, is not necessarily error. See Graham v. Ochsner, 193 Iowa 1196, 188 N.W. 838; Reed v. Pape, 226 Iowa 170, 284 N.W. 106; Elmore v. Des Moines City R. Co., 207 Iowa 862, 224 N.W. 28; and Hoegh v. See,215 Iowa 733, 246 N.W. 787.
In the case at bar the only reference in the instructions to appellee's claim to which appellant objects is that appellant threatened to disinherit her son if he did not abandon his wife. This is in the first instruction, which is a mere recital of the allegations of the pleadings. While it is true there is no direct competent evidence that such threat was made by appellant, some of the statements shown to have been made by her are somewhat similar and from them the inference might have been drawn that she intended to disinherit her son. There is competent evidence in the record that this appellant stated, prior to the birth of the baby to the appellee, that the child would not inherit any of her property. While we believe it would have been better if the statement had been omitted from the court's recital of the claims of the parties, its inclusion is not sufficient basis for a reversal. In the case of Evans v. City of Council Bluffs,187 Iowa 369, 375, 174 N.W. 238, 240, this court said:
"While we do not approve the setting out of all the claims of the plaintiff, whether they be supported by the evidence or not, and while we think it better practice to set out only those matters which the jury are entitled to consider, yet, as the court, in other instructions, limited the jury to the consideration of such matters only as the plaintiff had offered evidence tending to support, we cannot reverse on account of this method of instructing the jury."
In the case of Elmore v. Des Moines City R. Co., 207 Iowa 862, 867, 224 N.W. 28, 30, this court, speaking through Justice Wagner, said:
"The court in Instruction No. 1 gives a statement of the grounds of negligence claimed by the plaintiff. The appellant further complains that, in this manner, all of said grounds of negligence were submitted to the jury, and that there was no *Page 771
evidence tending to establish some of the same. There is no merit in this contention of the appellant's. Instruction No. 1 was only a preliminary statement. In a subsequent instruction, the court specifically told the jury upon what grounds of negligence a recovery could be had, and no exception to said instruction was taken by the appellant."
See, also, Groshens v. Lund, 222 Iowa 49, 268 N.W. 496.
In the case at bar the instruction complained of is the preliminary statement of the issues by the court. Later in the instructions the trial court properly told the jury what plaintiff was required to prove in order to recover. The law governing the case was correctly stated and the jury was told to base its verdict on the evidence. Both sides were represented by able counsel. The case was well tried. The issue in this case was not complicated. It was a question for the jury. It has returned its verdict, and, there being no error, it necessarily follows that this case must be, and it is, — Affirmed.
SAGER, GARFIELD, STIGER, BLISS, OLIVER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435335/ | The defendant, a married man, 53 years of age, was charged with the murder of his wife on the 3d day of October, 1934.
On the 18th day of October, 1934, the defendant, after having been duly arraigned and being present in court and represented by counsel, entered a plea of guilty as charged. Thereupon, the court, in compliance with section 12913 of the Code, fixed Tuesday, October 23, 1934, as the time for the hearing of evidence before imposing sentence. After hearing the evidence, the court, on October 25, 1934, determined that the defendant was guilty of murder in the first degree, entered judgment upon his plea of guilt, and sentenced him to death as provided by law. From the judgment defendant appeals. The evidence submitted to the court disclosed substantially the following facts:
Defendant and the deceased were man and wife, and had been married and lived together a number of years until Mrs. Tracy was shot to death on October 3, 1934. About two years prior to the shooting, defendant met and became enamored with a Mrs. Flossie Fear, a married woman of loose character. For about a year prior to the shooting he and Mrs. Fear had frequent meetings, and during that time planned the death of Mrs. Tracy. In January, 1934, they had arranged to kill her by means of a faked automobile accident, which failed. Soon afterwards another attempt to kill her was made by pushing an automobile in which she was riding over a bluff. This also failed, because the car caught on the edge of a bluff and failed to go over. Later they again planned her death, but this plan also failed. Finally in September, 1934, the defendant and Mrs. Fear completed arrangements to hire a man to fake a holdup and kill Mrs. Tracy while Mr. and Mrs. Tracy were returning to Manchester in their automobile. The man hired to do the killing was to receive $1,000, $200 of which was to be paid in advance. Tracy gave Mrs. Fear $200 to make the advance payment. Pursuant to the plan agreed on, this party held up the Tracy car on October 3, 1934, shot Mrs. Tracy in the back, and struck Mr. Tracy over the *Page 1414
head with a revolver to give the appearance of a holdup. Mrs. Tracy died within an hour as a result of the shooting.
The evidence also shows that up until the time Mr. Tracy became involved with Mrs. Fear he had been a man of good moral character. One of his character witnesses was Dr. B.H. Byers, a physician, of Manchester, Iowa. He testified that he had known defendant for over twenty years, and that during all of that time he had been a man of good moral character. Other witnesses testified to the same effect, but not one of them, including the doctor, said they ever noticed that defendant was afflicted with any mental disturbances. Mrs. Flossie Fear, with whom the defendant planned the death of his wife, was also charged with the crime of murder, and also entered a plea of guilty. After hearing the evidence, the court determined and found that the defendant and Flossie Fear were each guilty of murder in the first degree.
Thereafter, on October 25, 1934, the court entered judgment in the case against the defendant, Tracy, sentencing him to be hanged according to law. The judgment entered against Mrs. Fear was that she be imprisoned in the state penitentiary for life.
On October 25, 1934, the defendant Tracy appeared in court with his counsel, and at that time the court entered the judgment imposing sentence of death. Thereafter, on October 27, 1934, the defendant filed exceptions to the sentence, filed a motion to set it aside, and filed an application to produce additional and newly discovered evidence in mitigation and reduction of the sentence imposed.
As grounds for these applications, defendant offered to show that, before pleading guilty, his attorney had consulted one or more doctors with reference to the defendant's mental and physical condition, and was advised by such doctors that they could not help the defendant, and that he ought to plead guilty; that after the sentence was imposed, they expressed surprise at the extreme penalty imposed, and told defendant's counsel he should not have received more than a life sentence because of his mental condition resulting from prostatic trouble; that, because of the severe penalty imposed, they would testify that he was suffering from prostatic trouble, which affected him mentally to such an extent as to make him irresponsible for the crime committed. The defendant's counsel offered to make this showing by affidavit of medical experts. The court accepted the professional statement of defendant's attorney *Page 1415
in lieu of affidavits, and gave it the same consideration and effect as if so made.
The state resisted these applications by a countershowing that the defendant and his attorney, prior to the arraignment and plea of guilty, had knowledge of the prostatic trouble complained of; that a few days prior to the arraignment there was a conference between counsel on both sides with reference to defendant's entering a plea; that at that time defendant's counsel expressed a desire to have defendant examined before entering his plea, and the case was then postponed until October 18, 1934, to enable defendant to make any arrangements he saw fit. The state's resistance also shows that before the plea was entered, Dr. Stewart, of Independence, and Dr. Jones, of Manchester, made an examination of defendant at his counsel's request. On October 18, 1934, and after the examination was made, defendant appeared in court with his counsel, and pleaded guilty to the crime charged.
[1] I. Appellant claims the court erred in not granting a new trial for the purpose of receiving evidence of defendant's mental condition. Section 13905 of the Code provides that:
"If a defendant appears in any stage of the trial of a criminal prosecution, and a reasonable doubt arises as to his sanity, further proceedings must be suspended and a trial had upon that question."
The question of defendant's insanity was never raised during the trial. It is now claimed that, if a new trial is granted, the defendant would be able to show that he was mentally incompetent to commit the crime charged. This request was not made until after the trial was finished and judgment had been entered. The statutes permitting a suspension of the trial for an examination of a defendant's sanity contain no provisions for a suspension of proceeding after conviction, except in prosecution for misdemeanors. Code, section 13909. It is our conclusion that, in order to suspend proceedings in a criminal prosecution for murder, the question of insanity must be raised before the end of the trial. State v. Cooper, 169 Iowa 571, 151 N.W. 835.
[2] If the motion to set aside the judgment be considered in the nature of an application to withdraw the plea of guilt, it may be said that the rule is well settled that a plea of guilty cannot be withdrawn after judgment has been entered. State v. Harper, 220 Iowa ___, 258 N.W. 886, loc. cit. 891. *Page 1416
[3] Nor do we find the offer of any newly discovered evidence that was not available to the defendant before the judgment on the plea of guilty was entered. Under such circumstances it is not a ground for a new trial. State v. King, 97 Iowa 440, 66 N.W. 735. It is also the well-settled rule of law in this state that newly discovered evidence is not a statutory ground for a new trial in a criminal case. State v. Dimmitt, 88 Iowa 551, 55 N.W. 531; State v. Harris, 97 Iowa 407, 66 N.W. 728; State v. King,97 Iowa 440, 66 N.W. 735; State v. Cater, 100 Iowa 501, 69 N.W. 880; State v. Watson, 102 Iowa 651, 72 N.W. 283; State v. Pell,140 Iowa 655, 119 N.W. 154; State v. Pavey, 193 Iowa 985, loc. cit. 991, 188 N.W. 593.
[4] II. Appellant also claims that the court erred in entering the extreme penalty, instead of imposing sentence for life, and that this court should reduce the sentence to that of life imprisonment. The entering of a judgment on a plea of guilty and the imposing of a sentence thereunder in this kind of an action are peculiarly within the discretion of the trial court. This court cannot interfere with that discretion, unless it clearly appears that it has been abused. State v. Freeman, 27 Iowa 333; State v. Allen, 32 Iowa 248; State v. Wilmoth, 63 Iowa 380, 19 N.W. 249; State v. Pavey, 193 Iowa 985, 188 N.W. 593; State v. Olander, 193 Iowa 1379, 186 N.W. 53, 29 A.L.R. 306; State v. Griffin, 218 Iowa 1301, 254 N.W. 841.
After the plea of guilty was entered, the court heard evidence for the purpose of determining the degree of guilt, and the penalty to be inflicted, as required by section 12913 of the Code. His guilt of homicide was fixed by his own plea of guilty. From the evidence it appears that, notwithstanding his previous good character, the defendant, during the last two years prior to his wife's death, carried on illicit relations with his codefendant, Mrs. Flossie Fear. During the last year prior to the killing he and Mrs. Fear coolly and deliberately planned the death of Mrs. Tracy, which was finally accomplished after several unsuccessful attempts.
[5] Appellant offered to show that he was suffering from a physical disability which rendered him mentally incompetent to commit the offense charged. This showing, however, was met by resistance on the part of the state, under which it is shown without dispute that the defendant and his counsel knew of the physical ailment suggested, for some time before the plea was entered. During this time defendant's physical condition was under discussion between *Page 1417
counsel for the state and counsel for the defendant. The time for entering a plea was delayed for the very purpose of enabling defendant's counsel to secure a medical examination of defendant, which was done. It also appears that defendant's counsel was advised by one of his physicians that his testimony would not help the defendant, and that he ought to get a life sentence. After the death sentence was imposed, the defendant's physician expressed surprise at the extreme penalty, and then said they would testify that on account of his mental condition he should not have received more than life. In its ruling on the motion to set aside or reduce the penalty, the lower court said:
"According to the statement, (the showing made), Dr. Ladd is of the opinion that the defendant Tracy was sufficiently * * * responsible mentally to take a life sentence for his participation in the murder, but * * * is not of such mental condition as to deserve more than a life sentence. * * * if he is sufficiently accountable to deserve a life sentence, he might equally be sufficiently responsible mentally to have the extreme penalty imposed. * * * The statement of Dr. Ladd that * * * the death penalty should not have been imposed because of his mental condition, would be answered by his own statement that he should have a life sentence and deserve it. * * * Nothing that is offered to be shown here could possibly change the judgment of this court. The plea of insanity has not been interposed at anytime. * * * When evidence was taken, Dr. Ladd was subject to a subpoena and it was known for a number of days before that that he had treated this defendant for prostate trouble, and it seems to me that due diligence would have disclosed that it might be a factor in this case. I cannot conceive it possible that a statement from physicians who believed that this man was mentally responsible to the extent of taking a life sentence is not responsible for taking the other penalty."
It is the settled rule of law in this state that the judgment of the lower court will not be set aside unless there was a clear abuse of its discretion on the part of the lower court. State v. Freeman, 27 Iowa 333; State v. Allen, 32 Iowa 248; State v. Wilmoth, 63 Iowa 380, 19 N.W. 249; State v. Meloney, 79 Iowa 413, 44 N.W. 693; State v. Smith, 127 Iowa 528, 103 N.W. 769; State v. Pavey, 193 Iowa 985, 188 N.W. 593; State v. Olander, 193 Iowa 1379, 1382, 186 N.W. 53, 29 A.L.R. 306; State v. Griffin, 218 Iowa *Page 1418
1301, 254 N.W. 841; State v. Brewer, 218 Iowa 1287, 254 N.W. 834.
In State v. Smith, 127 Iowa 528, 103 N.W. 769, this court said:
"There is no doubt whatever of the defendant's guilt. Indeed, his counsel distinctly assert that there was no legal justification or excuse for his act. But they do contend that the punishment should have been life imprisonment instead of death. No error was committed by the trial court, unless it be found that it abused its discretion in fixing the penalty. * * * Manifestly, a large discretion is vested in the trial court in such cases, and we should not interfere in the absence of a showing of abuse of that discretion. The case comes to us for correction of errors, and not that we may exercise the pardoning power. Commutation of sentence does not belong to this department of the government."
In State v. Olander, 193 Iowa 1379, 186 N.W. 53, this court, speaking through Justice Evans, said:
"I cannot agree that our appellate power is a power of pardon or commutation. The pardoning power is an executive one, and is distinctly conferred upon the chief executive. To this extent we agree. If conferred upon the chief executive, why should it be conferred upon this court? Our function is judicial. It is ours to determine the guilt or innocence of the defendant, and, if he is guilty, to apply the penal statutes in such case provided. We have no function of executive mercy. Unless upon this record we can differentiate the offense therein disclosed from one of extreme guilt, and can find in the record mitigating reasons why the extreme penalty should not in this case be imposed, then we are without authority to interfere * * * with the judgment of the trial court. I am not willing to array mere judicial power to the nullification of the statutory penalty, terrible as it is. To do so would not only encroach upon the legislative prerogative; it would give to the future assassin a sense of security, already and long too great and comfortable. I think the statutory sword of Damocles above his head should be hung by a more slender thread, and that the terror thereof should be increased rather than lightened. While we have pondered upon this record, as it is meet that we should do, murder has stalked like a hunter unafraid within the domain of our jurisdiction, leaving its red trail of dead men and ravished women. If there be any means discoverable by human wisdom whereby murder contemplated *Page 1419
may be deterred by the punishment of murder done, such wisdom must find its expression by legislation. It is not a function of the judiciary to veto it. With a due sense therefore of the solemnity of our responsibility in this case, I would let the statutory penalty fall."
In State v. Griffin, 218 Iowa 1301, loc. cit. 1312, 254 N.W. 841, 847, we said:
"Neither the direction of the jury nor the judgment of the district court can be set aside by us unless error was committed below. After a very careful and complete review of the record, we are unable to discover any error. * * * The state, through its legislature, has prescribed the punishment for such a crime. It is a prerogative of the state to preserve itself and its institutions, and protect human life by thus prescribing the penalty for that crime."
So in this case we cannot reverse except for errors committed by the trial court. We can discover no error in the record unless it be for an abuse of discretion in imposing the death penalty. We are conscious of the importance of this action, and have given it our deep and serious consideration. While we realize the enormity of the punishment inflicted, we are also conscious of the gravity of the offense committed. The penalty for a conviction of murder in the first degree is either life imprisonment or death. In this action it was within the province of the trial court to impose either. After hearing the evidence, the court imposed the maximum penalty, and its judgment cannot be set aside except for error committed or for a clear abuse of the court's discretion in imposing the maximum penalty. The defendant was arraigned and pleaded guilty. Until this plea was entered, and until after judgment was rendered thereon, not a single error appears in the record. The only reason that can be urged for setting aside or reducing the sentence is an abuse of the court's discretion. If it does not clearly appear that its discretion was abused, this court should not disturb the judgment. The penalty for the commission of murder in the first degree has been fixed by the legislature. It is not our duty to legislate, neither have we the power of clemency invested in the chief executive. After a defendant is found guilty of murder in the first degree, we should let the statutory penalty fall. The trial court, under the plea of guilty entered, was required to fix the sentence. This was done, and the sentence imposed as prescribed by the legislature. *Page 1420
The record in this case reveals a cool, calculated, and premeditated killing of defendant's wife with malice aforethought. The defendant was not actuated by any sudden emotion, impulse of passion, or anger aroused by physical combat. The crime was deliberately planned by the defendant and his paramour for a whole year prior to the killing. When the defendant took his marriage vows, he assumed a binding obligation to protect his wife so far as it was within his power so to do. In the deliberate killing of his own wife as disclosed by the evidence in this case, the defendant violated both the laws of God and of man. We have given this case careful and conscientious consideration. It is not seriously contended that this appeal is anything more than an application for a reduction of the sentence. We are abidingly convinced that the lower court was deeply conscious of its duty in imposing the sentence entered and did not abuse its discretion.
We do not hold that this court cannot interfere with a sentence pronounced in all cases, but we do hold that under the record in this case we are not justified in disturbing the judgment of the lower court. For the reasons hereinabove set out, we are constrained to hold that the judgment of the lower court is right, and it is therefore hereby affirmed. — Affirmed.
ANDERSON, C.J., and ALBERT, DONEGAN, HAMILTON, PARSONS, and POWERS, JJ., concur.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435338/ | It appears that, some time in the month of June, the car in question suffered an injury from a collision with another vehicle. The details of the accident are not disclosed in the record further than that the defendant had no connection with it. Upon learning of the accident, the plaintiff took possession of the car without consultation with the defendant and proceeded to a repair thereof. Later it notified the defendant that it had incurred an expense of $168 for repairs and demanded payment therefor. The defendant denied the reasonableness of the repair bill, and the plaintiff refused to restore possession of the car unless payment of the repair bill were made or its validity be acknowledged in writing. Such writing so demanded was to include an agreement of payment at the rate of $10 per month. The plaintiff justifies its action under section 5, of the conditional sales contract, which provides as follows:
"5. That he will deliver said motor vehicle to the Seller during the usual business hours of the day, at least once each month for the *Page 1143
purpose of permitting a thorough inspection thereof. The Seller may make repairs deemed necessary for the preservation of the car in good working order and for these purposes the Seller may retain possession of the said Motor Vehicle a reasonable length of time. The Seller shall have a lien hereunder for the reasonable value of such repairs."
Notwithstanding that the plaintiff alleged in its petition that no installment had ever been paid by the defendant, it appeared conclusively upon the trial that the June installment had been paid in full. At the time the plaintiff asserted its right to demand the repair bill to the amount of $168, the defendant was not in default. The next due date of an installment was July 15. The demand of the plaintiff for $168 preceded that date. The defendant claims a breach of the contract by the plaintiff prior to July 15, in that the plaintiff made an unreasonable and unlawful demand upon him as a condition precedent to its own performance of the contract. Because of such breach by plaintiff, the defendant claims the right to declare a rescission of the contract. The plaintiff used one witness, Frazier, its shop foreman, to prove the reasonableness of its repair account. Descriptive of the damage sustained by the car, he testified:
"The fender-well, axle, frame, windshield glass and front spring, I believe was broken. I don't believe anything else in particular that I can name."
The evidence of this witness is very uncertain and unsatisfactory. The decree of the trial court allowed this repair account only in part. The reduction by the court of the amount, as claimed by the plaintiff, was justified. Whether the reduction should have been still greater, we need not determine. A decree was entered for a reduced amount against the defendant. It appears from the abstract that execution was immediately issued under the decree and the automobile sold thereunder to Manbeck for $100. That the demand made by the plaintiff on its repair account was unreasonable seems to us very clear upon the record. The legal effect of it was to excuse further performance by the defendant, and likewise to render it useless for the purposes of the contract. The attitude of the plaintiff was necessarily that it would not restore or perform unless the defendant submitted to its unreasonable demand.
Assuming that the automobile brought under execution sale its *Page 1144
approximate value, it was quite unreasonable in the plaintiff to incur an expense of $168 upon an automobile which would be worth after its repair substantially less than the cost of the repair. It appears that, in the repair of this car, free use of new parts was made. The natural effect of the use of such new parts was to render the automobile in a better and newer condition than it was before the accident. This was doubtless unavoidable to some extent. But we are impressed from a reading of the evidence that the restoration of this vehicle to its former condition could have been made at a much less expense than that incurred and demanded by the plaintiff. The unwarranted retention of the possession of the automobile by the plaintiff relieved the defendant from the necessity of restoration for the purpose of rescission. The defendant did disclaim to the plaintiff all claim upon the same. The breach of the contract by the plaintiff entitled the defendant to declare a rescission. The procedure adopted by the plaintiff in violation of the contract worked a rescission on its part at the election of the defendant.
We reach the conclusion that its petition in equity ought to have been dismissed on that ground.
II. The wife of the principal defendant is also impleaded. She signed the note as surety. Decree was entered against her as well as against her husband. There is an infirmity in the form of the decree in that the two judgments appear as cumulative. In view of the conclusion we reach on the other feature of the case, we need give no attention to the particular form of the decree.
The decree entered below must accordingly be reversed.
ALBERT, C.J., and KINDIG, DONEGAN, and CLAUSSEN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211627/ | Cite as 2016 Ark. 245
SUPREME COURT OF ARKANSAS
No. CR-15-825
ROBERT FRIAR
Opinion Delivered: June 9, 2016
APPELLANT
V. APPEAL FROM THE JACKSON
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [NO. CR-2013-75]
APPELLEE
HONORABLE HAROLD S. ERWIN,
JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Robert Friar appeals the sentencing order entered by the Jackson County
Circuit Court convicting him of capital murder, two counts of attempted capital murder,
and seven counts of committing a terroristic act. For these crimes, the circuit court
sentenced Friar to life in prison without parole for capital murder1 and, as an habitual
offender, to consecutive terms of imprisonment totaling 165 years for the remaining
offenses. For reversal, Friar contends that the circuit court erred by denying his motion to
suppress, in granting the State’s motion in limine, and by declining his request to provide
the jury with instructions on lesser-included offenses. We affirm on all issues.2
1
The State did not seek the death penalty.
2
We heard oral argument in this case in Batesville as part of our “appeals on wheels”
program. This court was honored by the presence of Attorney General Leslie Rutledge,
who ably presented argument on behalf of the State in her hometown. Friar was well
represented by Janice Vaughan, a four-time veteran of the travelling program. The court
expresses its appreciation to them both for their participation and the professionalism they
Cite as 2016 Ark. 245
I. Factual Background
Our review of the record reveals that Delana Aguirre and her children lived in a
duplex in the Crossroads area of Newport, Arkansas, with her sister and her mother, Leslie
Curl. During the early morning hours of February 27, 2013, Friar fired seven shots from
outside the home through the window of Aguirre’s bedroom where she had retired for the
evening with two of her children. Aguirre survived three gunshot wounds—one to her
back, one to her buttocks, and another to her arm. Unfortunately, Aguirre’s twenty-month-
old daughter, Tacquari, perished after being struck by a single bullet. Aguirre’s other child
was unharmed.
According to the testimony, Friar and Aguirre had been dating for seven months,
and the relationship had become volatile. Aguirre testified that Friar had physically abused
her, saying that he had choked her, had struck her with a closed fist, and once had hit her
with a belt buckle. She also testified that Friar had threatened her life and the lives of her
children and her mother. On the evening of the shooting, Friar sent Aguirre an ominous
text message saying, “YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL
D KIDS U LOVE THEM.” At 2:32 a.m., mere seconds before the shots rang out, Friar
placed a cellular phone call to Aguirre, wherein he said something that she could not
understand, and then disconnected the call. Aguirre testified that she was sitting on her bed
displayed to the court and to each other. Their exemplary arguments set a fine example for
the school children and members of the community who were in attendance.
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smoking a cigarette when Friar called and that the light from her phone was shining in the
direction of the window.
The testimony also established that Friar was in close proximity to Aguirre’s home at
the time of the shooting. Friar lived with his mother near Garfield Street, which was at
least a couple of miles from Aguirre’s residence. However, that morning he had been riding
in a vehicle with Bobbie Woodruff, who parked beside her aunt’s house, which was near
Aguirre’s duplex. Bobbie testified that Friar got out of the vehicle to relieve himself; that
he did not return to the vehicle; and that she picked him up a short while later around the
corner from where she had parked. The evidence showed that Friar and Woodruff
exchanged text messages and phone calls within minutes of the shooting and before they
reconnected.
Officers arrested Friar that morning at 4:12 a.m. on Garfield Street and transported
him to the Jackson County Sheriff’s Office. During the booking process, officers seized
Friar’s clothing and his cell phone. At that time, Friar was heard to say, “Baby mama drama.
It is what it is.” That morning, agents of the Arkansas State Police attempted to question
Friar, but Friar refused to speak with them. However, later that morning, Friar gave a
statement to an officer with the Newport Police Department, and the agents from the state
police subsequently interviewed Friar twice that same day. In his three statements, Friar
denied that he had been involved in the shooting.
II. Motion to Suppress
As his first point on appeal, Friar argues that the circuit court erred by denying his
motion to suppress. His argument is multifaceted. Friar contends that there was no probable
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cause for his warrantless arrest, which requires the suppression of his statements and of the
evidence collected from his clothing and his cell phone.3 In addition, Friar argues that the
circuit court should have suppressed his statements because the police failed to honor his
requests for an attorney and to remain silent. He also asserts that his statements were not
voluntarily given but were instead the product of coercion, intimidation, deception, and
ignorance.
A. Probable Cause
We first address the issue of probable cause for the arrest. The record of the
suppression hearing reflects that Officer Chris McClellan of the Newport Police Department
was the first officer to respond to the scene and that his superior, Lieutenant Allen Edwards,
arrived moments later. When Edwards entered the residence, he instructed McClellan to
secure the area outside the home. Edwards said that Curl was hysterical and that Aguirre
was conscious and sitting in a pool of blood on the floor in the hallway. Edwards testified
that he immediately began to clear the house to make sure that the perpetrator was not still
present. With that purpose in mind, he asked Curl who shot Aguirre and the child. Curl
replied that it was “Junior,” whom she identified as Friar. Edwards said that Curl also
informed him that Friar had sent Aguirre a text message that night telling her and Aguirre
to “kiss their babies” and that Friar had called Aguirre moments before the shots were fired.
He testified that Curl also mentioned that Aguirre and Friar had recently broken off their
relationship. Edwards explained,
3
A small amount of gunshot residue was found on Friar’s clothing.
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I asked who did this. They told me. At that point I wasn’t interrogating
them trying to gather every detail that would - like our investigators would
be doing. I was trying to make the scene safe. Provide aid. They said he did
it. I relayed that information along to the other officers and - you know, I
told Patrolman McClellan later on, you know, get one of the deputies. Go
to the lower end of town. See if you can locate Robert Friar and take him
into custody.
Edwards further testified that he had known Friar since childhood. He said that
sometimes large crowds gathered at the lower end of town and that Friar was often
combative with the police on those occasions. Edwards described Friar as an “instigator”
and said that Friar was the main focus of attention when dispersing the crowd. Edwards
recalled a previous incident in which Friar had been accused of shooting a firearm at another
person. For reasons of safety, Edwards had made other officers aware of Friar’s aggressive
behavior.
In his testimony, McClellan stated that Edwards sent him to provide security at the
hospital where the victims had been taken. He said that he spoke with Aguirre, who told
him that Friar had shot her and that Friar had purchased a gun from Bobbie Woodruff.
McClellan stated that Aguirre implied that Friar was her ex-boyfriend. When McClellan
was dispatched to take Friar into custody, he located Friar walking down Garland Street.
Detective Chuck Benish also testified at the hearing. When he arrived at the duplex,
Aguirre and Tacquari had been taken to the hospital. Benish said that Edwards advised him
that the shooter had been outside the residence because shell casings were located near the
window that was riddled with bullet holes. Benish drove to the hospital and spoke with
Aguirre. She told him that Friar had shot her and that she had received a phone call from
Friar just prior to the shooting. Aguirre also informed Benish that Friar had sent a text
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message to her that night saying that “[Aguirre] and her mother better tell their kids they
loved them.” Benish recalled that Aguirre told him that Friar had asked her which bedroom
she was sleeping in that night and that she had informed Friar that she was sleeping in her
children’s bedroom, as she did not have one of her own. Benish testified that Aguirre never
told him that she saw the shooter and that Aguirre informed him that she had not seen Friar
in two days.
For reversal, Friar argues that the officers neither individually nor collectively had
probable cause to arrest him. He contends that the evidence amounts only to a strong
suspicion based on an ambiguous text message and a phone call immediately prior to the
shooting. Friar points out that no one claimed to have seen the shooter and that the police
located him after the shooting on the other side of town. Friar asserts that the statement he
made during booking, the other statements he gave to the police, his clothing, and the
information contained on his cell phone must be suppressed as the fruits of the unlawful
arrest.
In reviewing the denial of a motion to suppress evidence, this court conducts a de
novo review based on the totality of the circumstances, reviewing findings of historical facts
for clear error and determining whether those facts give rise to reasonable suspicion or
probable cause, giving due weight to inferences drawn by the circuit court. MacKintrush v.
State, 2016 Ark. 14, 479 S.W.3d 14. A finding is clearly erroneous, even if there is evidence
to support it, when the appellate court, after reviewing the entire evidence, is left with the
definite and firm conviction that a mistake has been made. Johnson v. State, 2015 Ark. 387,
472 S.W.3d 486.
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This court has held many times that probable cause to arrest without a warrant exists
when the facts and circumstances within the collective knowledge of the officers and of
which they have reasonably trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has been committed by the person
to be arrested. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Such probable cause
does not require that degree of proof sufficient to sustain a conviction; however, a mere
suspicion or even “a strong reason to suspect” will not suffice. Id. at 147, 865 S.W.2d at
277. The assessment of probable cause is based on factual and practical considerations of
prudent men, rather than the discernment of legal technicians. Roderick v. State, 288 Ark.
360, 705 S.W.2d 433 (1986). It is based on the officers’ knowledge at the moment of the
arrest. See Friend, supra. The determination of probable cause is also measured by the facts
of each particular case. Wong Sun v. United States, 371 U.S. 471 (1963).
Here, the officers were advised by Aguirre and Curl of their belief that Friar was the
shooter. In addition, they were told that Friar and Aguirre had recently broken up and that
he had sent a threatening text message to Aguirre that night. The officers were also informed
that Friar had asked Aguirre which bedroom she was sleeping in that night and that he had
called her seconds before the shooting. The officers were also advised that Friar had
purchased a gun. Moreover, they were aware that Friar was known to be aggressive and
combative and that he had been investigated in connection with another shooting. When
the totality of the circumstances is considered, we are unable to say that the circuit court
clearly erred in ruling that the officers had probable cause to arrest Friar. Therefore, we
affirm the circuit court’s denial of the motion to suppress on this basis.
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B. Miranda Rights
In addition to the absence of probable cause, Friar argues that the officers violated
his right to counsel and his right to remain silent. He contends that, as a consequence, his
three statements to the police should have been suppressed.
At the suppression hearing, it was disclosed that Friar had asked for an attorney
multiple times during the booking process. Initially, the officers did not tell Friar why he
had been arrested. However, Sheriff David Lucas informed Friar about the reason for his
arrest within thirty to forty-five minutes of Friar’s arrival. Once the booking process had
been completed, Friar was placed in a holding cell. Agents Wendall Jines and Michael
McNeil of the Arkansas State Police had been tasked with providing assistance to the
Newport Police Department in the investigation. At 7:19 a.m., Jines and McNeil attempted
to interview Friar. They advised Friar of his Miranda rights, and Friar indicated that he
understood them by signing a rights form. However, after completing the rights form, Friar
immediately invoked his right to counsel and his right to remain silent. Consequently, the
agents discontinued the interview, and no statement resulted from the encounter.
Michael Smith, a jailer whose shift began that morning at 8:00 a.m., testified that
Friar got his attention and asked to speak with Officer Benish. Benish then came to the jail
to meet with Friar. Benish testified that he reminded Friar that he had earlier declined to
visit with the agents from the state police. He said that Friar explained that he did not speak
with the agents because he did not know them but that he wanted to talk to Benish. Benish
informed Friar of his rights, and Friar agreed to waive them. The rights form signed by
Friar was completed at 8:22 a.m., and the interview lasted approximately twenty minutes.
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In his statement, Friar denied that he had a gun and that he had been in the vicinity of
Aguirre’s home after midnight.
Friar gave a statement to Agents Jines and McNeil at 11:19 a.m. Jines testified that
he learned that Friar had initiated contact with Benish after refusing to speak with him and
McNeil earlier that morning. At the beginning of the taped interview, Jines said to Friar
that Friar’s agreement to speak with Benish gave Jines the opportunity to talk to him. Jines
did not repeat the Miranda warnings. Jines testified that Friar did not indicate that he did not
wish to speak with them or that he wanted an attorney. During this interview, Jines asked
Friar where he was at 2:32 a.m. that morning. Friar told him that he had been on Garfield
Street.4 However, after Jines told Friar that his location could be pinpointed by using cell-
phone towers, Friar stated that he was in the Crossroads area of town at that time. At the
conclusion of the interview, Friar told the agents that they could talk to him “anytime.”
Jines and McNeil met with Friar again that day at 5:34 p.m. At the start of this third
interview, the following exchange occurred:
JINES: Robert let me go back over something with you to make sure we
understand each other. This morning I came in here and talked to you
and you didn’t want to talk to me then. Then you called, had them
call Chuck Benish. Chuck came up here cause you wanted to talk to
him and then I come up here a little while later and I asked if I could
talk to you and you said it was okay. Right?
FRIAR: Yeah.
JINES: And I want to talk to you some more right now, is that okay? All right.
This is the rights form that I read to you this morning. Do you
4
The testimony established that Garfield Street was 2.7 miles from Aguirre’s
residence.
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remember me reading that to you and you initialed and signed it. Do
you understand your rights?
FRIAR: Yes.
JINES: Okay. It’s okay to talk to you?
FRIAR: I don’t care.
In this statement, Friar continued to deny that he had shot Aguirre and her child.5
For reversal of the circuit court’s decision not to suppress these statements, Friar first
argues that the officers violated his rights by failing to scrupulously honor his requests for an
attorney. The State responds that the statements were not taken illegally because Friar
subsequently initiated contact with Officer Benish.
Both the Fifth and Sixth Amendments provide a right to counsel. Vidos v. State, 367
Ark. 296, 239 S.W.3d 467 (2006). Under the Fifth Amendment, the right to counsel is
derived from the amendment’s prohibition against self-incrimination while in custody.
Wedgeworth v. State, 374 Ark. 373, 288 S.W.3d 234 (2008) (citing Miranda v. Arizona, 384
U.S. 436 (1966)). When the right is invoked, it must be “scrupulously honored.” Fritts v.
State, 2013 Ark. 505, at 8, 431 S.W.3d 227, 231 (quoting Miranda, 384 U.S. at 479). Thus,
when an accused has invoked his Fifth Amendment right to counsel during custodial
interrogation, he cannot be subjected to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself initiates further communication,
5
Jines and McNeil interviewed Friar again the following day. The State did not seek
to admit this statement into evidence. During the interview, Friar once again invoked his
right to counsel, and the agents stopped questioning him. However, while the agents turned
off the audio portion of the recording, the video continued to record their actions, and the
tape shows that the agents continued to converse with Friar after he invoked his rights.
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exchanges, or conversations with the police. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d
416. In other words, an accused may change his mind and decide to talk to law enforcement
officials. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) (citing Michigan v. Jackson,
475 U.S. 625 (1986)). While the accused may initiate further contact with the police, the
impetus must come from the accused, not the police. Airsman v. State, 2014 Ark. 500, 451
S.W.3d 565. A statement will be admissible only if the accused initiated further contact,
and in doing so knowingly and intelligently waived the right he had invoked. MacKool v.
State, 365 Ark. 416, 231 S.W.3d 676 (2006).
In this case, the record shows that Friar asked for an attorney during the booking
process and that he invoked his rights at approximately 7:19 a.m. during the attempted
interview with agents Jines and McNeil. Less than an hour later, Friar, of his own volition,
asked to speak with Officer Benish. Benish reminded Friar of his earlier request for an
attorney and of his refusal to speak with Jines and McNeil. Benish also advised Friar of his
rights, and Friar executed a rights form. Although Friar had previously invoked his rights,
he clearly waived them less than an hour later when he initiated further communication
with Benish and gave a statement after being informed of his rights. Based on established
precedent as applied to the facts of this case, the circuit court’s ruling on this point is not
clearly erroneous.
The question then becomes whether Friar voluntarily and intelligently waived his
rights. Friar asserts that his statements were the product of intimidation and deception rather
than a free and deliberate choice. He maintains that the acts of intimidation began when
he was arrested at gunpoint by two officers. Friar points out that at first the officers did not
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tell him why he had been arrested and that he requested an attorney during the booking
process. He claims that Jines threatened to build a capital-murder case against him when he
invoked the right to counsel. Friar also contends that the intimidation and deception
continued after Friar’s interview with Benish. In this regard, Friar argues that, during the
interview at 11:19 a.m., Jines gave him the impression that he could not refuse to speak
with Jines after having spoken with Benish; that Jines asked him to reveal his cell-phone
passcode; and that Jines lied in saying that his location could be pinpointed by use of a cell-
phone tower. Friar also maintains that Jines continued to deceive him during the last
interview that day by telling Friar that the prosecutor would not cut a deal unless he
cooperated; by saying that his clothes would “tell off on” him if there was gunpowder
residue; in telling Friar that Aguirre could not talk and might not survive; by advising him
that the officers would test the grass on his shoes for comparison with the grass outside
Aguirre’s home; and by saying that he could receive the death penalty. Further, Friar asserts
that he is more vulnerable to suggestion due to his low IQ of 65.
A statement made while in custody is presumed involuntary, and the burden is on
the State to prove by a preponderance of the evidence that a custodial statement was given
voluntarily and was knowingly and intelligently made. Dickerson v. State, 363 Ark. 437, 214
S.W.3d 811 (2005). In determining whether a waiver of Miranda rights is voluntary,
knowing, and intelligent, we look to see if the statement was the product of free and
deliberate choice rather than intimidation, coercion, or deception. Williamson v. State, 2013
Ark. 347, 429 S.W.3d 250. In making this determination, we review the totality of the
circumstances surrounding the waiver, including the age, education, and intelligence of the
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accused; the lack of advice as to his constitutional rights; the length of detention; the
repeated or prolonged nature of the questioning; the use of physical or mental punishment;
and statements made by the interrogating officers and the vulnerability of the defendant.
Osburn v. State, 2009 Ark. 390, 326 S.W.3d 771. We will reverse a circuit court’s ruling
on this issue only if it is clearly against the preponderance of the evidence. Grillot v. State,
353 Ark. 294, 107 S.W.3d 136 (2003).
When we examine the totality of the circumstances, there is no basis to overturn the
circuit court’s decision. As stated, Friar initiated contact by asking to meet with Benish.
Benish referred to Friar’s earlier refusal to speak with the agents from the state police, and
Friar explained to Benish that he had declined to talk to them only because he did not know
them. Before taking the statement, Benish apprised Friar of his rights, and as signified by
his signature on the rights form, Friar agreed to waive his rights and to speak with Benish.
Although agents Jines and McNeil did not repeat the Miranda warnings during the interview
at 11:19 a.m., we have recognized that there is no constitutional requirement that a suspect
be warned of his Miranda rights each time he is questioned. Bryant v. State, 2010 Ark. 7,
377 S.W.3d 152. We observe that Friar had been advised of his rights twice in the hours
before that statement was taken, and it is significant that Friar understood his rights by
invoking them on the first occasion. Also, Friar told the agents at the conclusion of the
11:19 a.m. interview that he would speak with them at “anytime.” Moreover, at the
interview at 5:34 p.m., Friar acknowledged that he had agreed to speak with the agents
earlier that day and that he was willing to meet with them at that time. During the final
interview, the agents once again reminded Friar of his rights, and Friar agreed to meet with
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them. The totality of the circumstances strongly supports the conclusion that Friar
voluntarily agreed to speak with the officers.
Concerning the allegation of intimidation, at the suppression hearing Jines testified
that he did not recall telling Friar that he would build a capital-murder case against him.
Jines did advise Friar during the interview at 5:34 p.m. that a charge of capital murder could
carry the death penalty and that the prosecutor was not likely to be lenient if he did not
cooperate. The record also supports Friar’s claim that the agents were not completely candid
with him, such as when they told him that his location could be pinpointed by use of cell-
phone towers. The agents acknowledged that this representation was false because
determining the location of a cell phone requires two cell-phone towers, and the area had
only one tower. However, the fact that a police officer makes an untrue statement during
the course of an interrogation does not necessarily render an otherwise voluntary statement
inadmissible. Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008). We have found no
fault with an interrogator trying to persuade an accused to tell the truth or to answer
questions, even though there may be misrepresentations of fact made by the interrogator,
so long as the means employed are not calculated to procure an untrue statement and the
confession is otherwise voluntarily made. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754
(1997). “The police may use some psychological tactics and coercive statements in eliciting
a custodial statement from the accused so long as the means employed are not calculated to
procure an untrue statement, and the accused’s free will is not completely overborne.”
Osburn, 2009 Ark. 390, at 54, 326 S.W.3d at 800 (quoting Rankin v. State, 338 Ark. 723,
729, 1 S.W.3d 14, 17, (1999)). We cannot say that the tactics employed by the agents were
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calculated to procure an untrue statement, and as noted above, the statements were
otherwise voluntary. It is also well worth noting that nothing the officers said produced a
confession, as Friar steadfastly maintained that he was not involved in the shooting. Under
the circumstances, we are unable to conclude that Friar’s free will was completely overborne
during the interviews.
Although mental capacity is a factor to be considered, standing alone it does not
support suppression. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Here, the mental-health
expert, who testified on Friar’s behalf at the hearing, stated that Friar’s intelligence quotient
placed him in the category of mild intellectual disability. However, the expert said that he
was in no position to say that Friar did not understand his rights. Additionally, the fact that
the defendant is not a stranger to the criminal-justice system is a factor to be considered in
determining whether a custodial statement was voluntarily made. Rankin v. State, supra. At
the suppression hearing, the State introduced into evidence Friar’s numerous previous
convictions, which demonstrate that Friar was well-acquainted with the criminal-justice
system. All things considered, we affirm the circuit court’s ruling denying Friar’s motion to
suppress.
III. Motion in Limine
Friar next argues that the circuit court committed reversible error by granting the
prosecutor’s motion in limine to exclude testimony that a third person had confessed to the
crimes. He asserts that the testimony qualifies for admission as a statement against interest.
In response, the State counters that the testimony is not admissible on that basis because the
statement is not clearly trustworthy.
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As pertinent to this issue, on May 4, 2015, a month before the trial, the prosecutor
met with Friar’s aunt, Bessie Brandon, who reported that Tony Miller had confessed to her
that he had “killed that baby.” Miller had died of ventricular fibrillation caused by cocaine
abuse on March 31, 2013, approximately one month after the shooting. Although Miller’s
death certificate stated that the manner of death was an accident, Friar represented to the
circuit court that Bessie believed that Miller had actually committed suicide because of what
he had allegedly done. Relatedly, Albert Brandon, Bessie’s son and Friar’s cousin, had
directed the police to the location of a handgun that was forensically tied to the shooting.
In arguing the State’s motion in limine to exclude Bessie’s testimony, the parties advised the
circuit court that Brandon had made a statement to the police the day of the shooting, in
which Brandon said that Friar had given him the gun; that Miller told Brandon to get rid
of it; and that Miller took Brandon to the river to dispose of the gun. It was also disclosed
that Bessie had given another statement to the police in which she professed to know
nothing about the shooting. The circuit court granted the State’s motion to exclude Bessie’s
testimony concerning Miller’s confession.
Pursuant to Rule 804(b)(3), a statement against interest is an exception to the rule
against hearsay, provided that the declarant is unavailable. The rule states in pertinent part,
A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject him
to civil or criminal liability or to render invalid a claim by him against another
or to make him an object of hatred, ridicule, or disgrace, that a reasonable
man in his position would not have made the statement unless he believed it
to be true. A statement tending to expose the declarant to criminal liability
and offering to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
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For a statement tending to expose the declarant to criminal liability and offered to exculpate
the accused to be admissible under Rule 804(b)(3), the proponent of the testimony must
show (1) that the declarant is unavailable, (2) that the statement was at the time of its making
“so far tended to subject him to criminal liability” that a reasonable person in the declarant’s
position would not have made the statement unless he believed it to be true, and (3) that
corroborating circumstances clearly indicate the trustworthiness of the statement. Winters
v. State, 2013 Ark. 193, at 11, 427 S.W.3d 597, 604 (citing Williford v. State, 300 Ark. 151,
155, 777 S.W.2d 839, 842 (1989)). We have defined the term “trustworthy” to mean
deserving of confidence; dependable; reliable. Welch v. State, 269 Ark. 208, 599 S.W.2d
717, cert. denied, 449 U.S. 996 (1980). In determining the trustworthiness of a statement
against the declarant’s penal interest, a court may consider “the probable veracity of the in-
court witness, and the reliability of the out-of-court declarant.” United States v. Rasmussen,
790 F.2d 55, 56 (8th Cir. 1986) (quoting United States v. Alvarez, 584 F.2d 694, 701 (5th Cir.
1978)). Circuit courts have broad discretion in deciding evidentiary issues, and their rulings
on the admissibility of evidence are not reversed on appeal absent an abuse of discretion.
Conte v. State, 2015 Ark. 220, 463 S.W.3d 686.
In the present case, the State does not dispute that Miller is unavailable and that
Miller’s admission tended to subject him to criminal liability. At issue is whether Friar
presented to the circuit court corroborating circumstances that clearly demonstrate the
trustworthiness of the statement. In his argument to the circuit court, Friar maintained that
Miller’s statement was trustworthy because, according to Brandon’s statement, Miller had
expressed an interest in disposing of the gun. Friar also insinuated that Brandon might have
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received the gun from Miller. In addition, Friar asserted that Bessie did not come forward
with the information because Miller was her friend and she wanted to protect him. In
response, the prosecution pointed out that Bessie was related to Friar; that she had given
inconsistent statements about her knowledge of the crimes; and that she did not disclose
Miller’s confession until the eve of trial and over two years after the shooting had occurred.
Citing United States v. Bobo, 994 F.2d 524 (8th Cir. 1993), the prosecution also asserted that
Miller’s drug usage cast doubt on the reliability of his statement.
Given the arguments presented to the circuit court, we discern no abuse of discretion
in its decision to exclude the testimony. The circuit court considered Miller’s drug usage in
assessing his reliability. The court also took into account the inconsistencies between
Bessie’s statements, and the timing of her disclosure, as well as her familial relation to Friar.
The circuit court could discard Friar’s explanation for Bessie’s failure to come forward
sooner because Miller was dead and no longer in need of protection, while her nephew was
in jail and facing the charges. The circuit court was apprised of Brandon’s statement that
Friar had given him the handgun, and not Miller. Otherwise, the record reveals scant
information surrounding the circumstances of Miller’s alleged revelation to Bessie. We
know only that the two were friends and that the statement was made in the month after
the shooting and before Miller’s death. Based on this record, we hold that the circuit court
did not err in ruling that Friar failed in his burden of demonstrating trustworthiness of the
statement.
IV. Lesser-Included Offenses
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In his last issue on appeal, Friar claims error in the circuit court’s denial of his request
for instructions on first-degree murder and second-degree murder as lesser-included offenses
to the charge of capital murder, as well as instructions on attempted first-degree murder and
attempted second-degree murder as lesser-included offenses to attempted capital murder.
He argues that there was a rational basis to support the instructions on the lesser-included
offenses, even though his defense was that he was not the perpetrator of the shooting. Friar
asserts that, based on the evidence, the jury might have concluded that, if he was the shooter,
he may not have known that anyone was in the bedroom; that he meant to injure but not
to kill; or that he acted either knowingly or purposely, rather than with premeditated intent.
The State responds that no rational basis exists for giving instructions on lesser-included
offenses because Friar denied that he had committed the shooting.
We have often stated that the refusal to give an instruction on a lesser-included
offense is reversible error if the instruction is supported by even the slightest evidence.
Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. However, we will affirm the circuit court’s
decision to not give an instruction on a lesser-included offense if there is no rational basis
for doing so. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411. It is well settled that when a
defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-
included offense because the jury need only determine whether the defendant is guilty of
the crime charged. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Atkinson v. State,
347 Ark. 336, 64 S.W.3d 259 (2002); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305
(2001).
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Given Friar’s defense of complete denial of any wrongdoing, we hold that the circuit
court did not abuse its discretion by not giving instructions on lesser-included offenses. In
Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), this court made clear that there is no
rational basis for giving an instruction on a lesser-included offense where the defense is based
on a claim of innocence. Subsequently, in Brown v. State, 321 Ark. 413, 903 S.W.2d 160
(1995), cert. denied, 524 U.S. 909 (1998), we reaffirmed our position that no rational basis
exists for instructions on lesser-included offenses when the defendant denies that he
committed the offense. The Brown court observed that we had “wisely and consistently”
applied this rule over the “past century,” and we “fail[ed] to find good reason” to overturn
that body of law. Brown, 321 Ark. at 416, 903 S.W.2d at 162. We concluded the discussion
by saying, “Sound reason undergirds the established legal principle in issue here, and stare
decisis dictates our continued application of it.” Id. The same holds true here. The circuit
court relied on this principle of law in refusing to give instructions on lesser-included
offenses. Certainly, it cannot be said that the court abused its discretion by adhering to
precedent long established by this court.6
V. Rule 4-3(i) Review
6
In her dissent, Justice Hart’s reliance on Henson v. State, 296 Ark. 472, 757 S.W.2d
560 (1988), is misplaced. There, a jury convicted Henson of aggravated robbery, and the
issue on appeal was whether the circuit court had erred in refusing to give an instruction on
the lesser-included offense of robbery. The evidence showed that Henson put his hand in
either his coat or pocket after he was caught in the act of robbing a safe. We concluded that
the case was not one of “all or nothing” and that a rational basis existed for giving a simple
robbery instruction because the question whether Henson was armed with a deadly weapon
was susceptible to more than one interpretation. By contrast here, the giving of instructions
on lesser-included offenses is inconsistent with Friar’s admitted defense of complete denial.
Thus, there is no rational basis to support instructions on lesser-included offenses.
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Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for
all errors prejudicial to Friar. No reversible error has been found.
Affirmed.
BAKER, J., concurs.
BRILL, C.J., and DANIELSON and HART, JJ., dissent.
KAREN R. BAKER, Justice, concurring. I concur in the decision to affirm the
circuit court, but I write separately because I would apply a different analysis to Friar’s claim
that the circuit court erred in denying his request for instructions on first-degree murder
and second-degree murder as lesser-included offenses to the charge of capital murder, as
well as instructions on attempted first-degree murder and attempted second-degree murder
as lesser-included offenses to attempted capital murder. Because the evidence in this case
does not support that a rational basis exists for giving the lesser-included instructions, I
would affirm the circuit court.
Friar was convicted of capital murder, which requires proof that “[w]ith the
premeditated and deliberated purpose of causing the death of another person, the person
causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013).
“Premeditation and deliberation may be formed in an instant. Winston v. State, 372 Ark.
19, 269 S.W.3d 809 (2007). Intent can rarely be proved by direct evidence; however, a
jury can infer premeditation and deliberation from circumstantial evidence, such as the type
and character of the weapon used; the nature, extent, and location of wounds inflicted; and
the conduct of the accused. Robinson v. State, 363 Ark. 432, 214 S.W.3d 840 (2005).”
Marcyniuk v. State, 2010 Ark. 257, at 9, 373 S.W.3d 243, 250.
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Here, Friar requested a jury instruction on first-degree murder, which requires proof
that “[w]ith a purpose of causing the death of another person, the person causes the death
of another person.” Ark. Code Ann. § 5-10-102(a)(2). A person acts “purposely” with
respect to “a result of his or her conduct when it is the person’s conscious object to engage
in conduct of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1). Friar also
requested a jury instruction on second-degree murder, which requires proof that the
“person knowingly causes the death of another person under circumstances manifesting
extreme indifference to the value of human life,” or “[w]ith the purpose of causing serious
physical injury to another person, the person causes the death of any person.” Ark. Code
Ann. § 5-10-103(a). A person acts “knowingly” with respect to a “result of the person’s
conduct when he or she is aware that it is practically certain that his or her conduct will
cause the result.” Ark. Code Ann. § 5-2-202(2)(B).
The test for whether an instruction should be given is whether there is the slightest
evidence to support the instruction and whether there is no rational basis for giving the
instruction. Morris v. State, 351 Ark. 426, 432, 94 S.W.3d 913, 917 (2003). Accordingly, in
reviewing whether slight evidence or a rational basis exists for giving the instructions, the
court considers what evidence Friar could have relied on as a rational basis to support giving
the instructions. Friar must point to evidence in the record that supports a finding that he
acted knowingly or purposely. See Flowers v. State, 362 Ark. 193, 213, 208 S.W.3d 113, 129
(2005).
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In the instant case, Friar is unable to point to any evidence in the record that would
support the lesser-included instructions that he acted knowingly or purposely rather than
with premeditated and deliberate intent. Instead, he summarily asserts that,
Counsel . . . reasoned that this is not a case of all o[r] nothing such as a case in which
someone walks up to someone and executes them, rather this case involves a shooting
from outside the house. . . Thus jurors could decide that even if Friar was the shooter,
he might not have known anyone was in the room into which he shot FN1; or that
he meant to injure, but not kill anyone; or that he did this knowingly or purposefully,
rather than premeditated intent.
FN1. [Aguirre’s] admission that the room she was sleeping in that night, for
the first time, was not her usual place to sleep, supports this theory.
Despite Friar’s claim, Friar does not point to any evidence to support his position. The
record demonstrates that Friar sent the following text message to Aguirre hours before the
shooting:
YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL D KIDS U
LOVE THEM.
The evidence also demonstrates that Aguirre testified that seconds prior to the
shooting, at 2:32 a.m., she was sitting on the side of her bed and felt her phone vibrate as
she was receiving an incoming call. She testified that she reached underneath her pillow to
retrieve her phone, that Friar was calling her, and that she accidentally answered his call and
then said “hello.” She testified that he “said something into the phone and hung up. And
then shots were fired.” She testified that she knew it was Friar calling because she had his
name and picture saved for when he called and she heard his voice. Aguirre also testified
that when she answered her phone that the light on her phone illuminated, her bedroom
light was off and she was facing the window. Additionally, Arkansas State Police Criminal
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Investigator Special Agent Mike McNeil testified that seven shots were fired through
Aguirre’s bedroom window. He testified that the bed where Aguirre and her children were
sleeping was pushed up against the wall in the corner of the bedroom adjacent to the
window. Special Agent McNeil further testified that the bullets traveled through the four-
paneled window into the bedroom. Specifically, he testified that seven shots were fired
through the bottom left window pane which was immediately adjacent to the bed, and the
bullets traveled at a significant downward angle toward the bed that was located right below
the window.
Based on my review of the record, as well as the facts and evidence introduced at
trial, the record does not support a rational basis to support giving the lesser-included
instructions. In sum, the evidence demonstrates the following:
Friar had threatened Aguirre in a text message earlier in the evening.
Moments before the shooting, Friar called Aguirre. Aguirre, while sitting on the edge
of the bed in her bedroom and facing the window with the lights out, answered
Friar’s call, which illuminated her phone and the bedroom.
Seconds after answering Friar’s call, a gun was used to fire seven shots through
Aguirre’s bedroom window.
The shots were fired through the same lower left pane directly at the bed where
Aguirre was located.
Accordingly, the evidence supports that Friar acted with premeditated and
deliberated intent and does not provide a rational basis to support giving the lesser-included
instructions.
PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent. I would reverse
and remand on the basis that the officers lacked probable cause to arrest Friar on the
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information they had at the time of the warrantless arrest.1 As a former city attorney, deputy
prosecutor, trial judge, and current appellate judge, I appreciate and understand pressure
faced by law-enforcement officers to find the person responsible for taking someone’s life,
especially the life of a child. However, we must always be mindful of a person’s
constitutional rights and the duty of law enforcement to follow proper legal procedures in
making an arrest. In my opinion, the proper legal procedures were not followed in this
case, leading to Friar’s unlawful arrest. While probable cause does not require a degree of
proof sufficient to sustain a conviction, a mere suspicion or even a “strong reason to suspect”
will not suffice. See Friend v. State, 315 Ark. 143, 147, 865 S.W.2d 275, 277 (1993) (quoting
Roderick v. State, 288 Ark. 360, 363, 705 S.W.2d 433, 435 (1986)). The issue of whether
the officers in this case had probable cause to arrest Friar is based on the officers’ knowledge
at the moment of arrest. See id. According to the testimony of the officers, the following
facts were known to officers at the time of the warrantless arrest: (1) that shots were fired
into the window from the outside of Aguirre’s apartment; (2) that the shooter had not
entered the house; (3) that Aguirre and her mother stated that Friar was responsible for the
shooting; (4) that there was no evidence that anyone saw the shooter; (5) that Aguirre told
Detective Benish that she received a text message from Friar stating that Aguirre and her
mother should tell their kids that they loved them; (6) that Curl told Lieutenant Edwards
that the text message from Friar told them to kiss their babies; (7) that Aguirre said that Friar
called her before the shooting and that she did not understand what was being said in the
1
I also dissent for the reasons stated in Justice Hart’s dissenting opinion, which I join.
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call, but recognized the voice as Friar’s; (8) that she had not seen Friar in two days; and (9)
that Aguirre implied that she and Friar had been in a relationship that had recently ended.
The State’s primary argument to support its claim that the officers had probable cause
to arrest Friar is that Aguirre and Curl told the officers that Friar was the shooter. The State
admits that the officers never asked Aguirre or Curl whether they had actually seen Friar
fire the shots. In an attempt to explain why the officers arrested Friar without any evidence
that he was the shooter, the State claims that at the time of the arrest, the officers were not
aware that no one had seen Friar shooting the gun. Following this flawed logic, anyone
could have been arrested for this shooting based simply on a statement by another person.
There has been no explanation by the State as to why the officers never asked the
crucial question of whether Friar had been seen firing the shots. The State had no evidence
at the time of the arrest other than mere statements from Aguirre and Curl that Friar was
the shooter. In fact, when interviewed at the hospital, Aguirre testified that she had not
seen Friar in two days. In this case, at the most, the officers had reason to suspect that Friar
was the shooter, which does not amount to probable cause. Taking into account all of the
information that the officers had (and did not have) in their collective knowledge at the
time of the arrest, I would hold that they lacked probable cause to arrest Friar. For the
reasons set forth above, I would reverse and remand.
JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent from the
majority’s conclusion that the circuit court did not err in refusing to grant Robert Friar’s
request to instruct the jury on the lesser-included offenses of first-degree murder and
second-degree murder, as well as instructions on attempted first-degree murder and
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attempted second-degree murder. Further, I dissent from the majority’s analysis regarding
whether the circuit court committed error in excluding an out-of-court declarant’s
confession to the crimes. The majority cites Brown v. State, 321 Ark. 413, 903 S.W.2d 160
(1995), cert. denied, 524 U.S. 909 (1998), and Doby v. State, 290 Ark. 408, 720 S.W.2d 694
(1986), for the proposition that there is no rational basis for giving an instruction on a lesser-
included offense when the defense is based on a claim of innocence. Although Robert Friar
pleaded not guilty, he did not present any evidence at trial. This distinction is critical in
deciding whether Brown and Doby require that the circuit court deny a defendant’s request
for a jury instruction on a lesser-included offense.
When the defendant takes the stand and denies having committed the offense, then
according to Doby and its progeny, the jury must either believe the State’s case and convict,
or believe the defendant’s case and acquit. However, when the defendant does not present
evidence, the jury is not faced with an all-or-nothing situation. In Henson v. State, 296 Ark.
472, 757 S.W.2d 560 (1988), this court considered the application of Doby, 290 Ark. 408,
720 S.W.2d 694, and reached the conclusion that, in a situation in which the defendant
“did not take the stand to deny his guilt,” it did not “lessen the state’s burden,” as his “not
guilty plea put the burden on the state to prove his guilt.” Id. at 474, 757 S.W.2d at 561.
The court held that when “the facts are susceptible of more than one interpretation, a lesser
included offense instruction should be given.” Id., 757 S.W.2d at 561. The court stated,
“This is not a case of all or nothing.” Id. at 475, 757 S.W.2d at 561. Thus, when the
defendant does not present a defense at trial, the court should consider whether the facts
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presented by the State are susceptible of more than one interpretation. If so, a lesser-
included-offense instruction should be given.
Friar was convicted of capital murder, which requires proof that “[w]ith the
premeditated and deliberated purpose of causing the death of another person, the person
causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). Friar
requested a jury instruction on first-degree murder, which requires proof that “[w]ith a
purpose of causing the death of another person, the person causes the death of another
person.” Ark. Code Ann. § 5-10-102(a)(2). A person acts “purposely” with respect to “a
result of his or her conduct when it is the person’s conscious object to engage in conduct
of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1). He also requested a
jury instruction on second-degree murder, which requires proof that the “person knowingly
causes the death of another person under circumstances manifesting extreme indifference to
the value of human life,” or “[w]ith the purpose of causing serious physical injury to another
person, the person causes the death of any person. Ark. Code Ann. § 5-10-103(a). A person
acts “knowingly” with respect to a “result of the person’s conduct when he or she is aware
that it is practically certain that his or her conduct will cause the result.” Ark. Code Ann. §
5-2-202(2)(B).
Here, the facts presented by the State are susceptible of more than one interpretation
relating to Friar’s intent. Delana Aguirre testified that the shooter fired a weapon through a
bedroom window. The lights were out in the bedroom, and the window blinds were closed,
precluding her from seeing outside the window. Because the shots were fired through a
bedroom window where the blinds were shut and the lights were out, the facts presented
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are susceptible to the interpretation that the shots were neither fired specifically at anyone
nor fired with the intent to cause anyone’s death. As Henson holds, in such instances the jury
should be instructed on the lesser-included offenses so as to put the burden on the State to
prove the defendant’s guilt.
This court has acknowledged many times that an instruction on a lesser-included
offense is appropriate when it is supported by even the slightest evidence, and an instruction
should be excluded only when there is no rational basis for giving it. See, e.g., Grillot v. State,
353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003). Recently, we restated our assertion that
“no right has been more zealously protected by this court than the right of an accused to
have the jury instructed on lesser–included offenses.” Starling v. State, 2016 Ark. 20, at 12,
480 S.W.3d 158, 165. Here, the circuit court abused its discretion in denying Friar’s request
to submit a jury instructions on the lesser-included offenses. Thus, I respectfully dissent.
I further dissent from the majority’s analysis relating to the admissibility of Tony
Miller’s out-of-court confession to the crimes. It is an open question whether Rule
804(b)(3) of the Arkansas Rules of Evidence obligates this court to inquire into the
trustworthiness of the witness, Bessie Brandon, who would have related to the jury the
declarant’s confession. As one court noted,
A strong argument can be made that the credibility of the witness is irrelevant
to admissibility under Rule 804(b)(3), which is basically a hearsay rule. A test for
admissibility of hearsay statements based on the credibility of the witness who testifies
about the statement is unrelated to the purpose of the general rule against hearsay.
Hearsay statements are usually excluded because the declarant is unsworn and
unavailable for cross-examination and because the jury cannot evaluate his demeanor.
Consistently with these rationales, exceptions to the hearsay rule in Rules 803 and
804 are made because the circumstances of the declaration indicate that the
declarant’s perception, memory, narration, or sincerity concerning the matter
asserted in the statement is trustworthy. The jury can evaluate the perception,
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memory, narration, and sincerity of the witness who testifies about the hearsay
declaration, and that witness testifies under oath and subject to cross-examination.
To exclude a hearsay statement because of doubt that it was made is to exclude it not
because of its hearsay nature but for some other reason. Although some other rule of
evidence (possibly Rule 403) may give the judge the authority to exclude evidence
on that other basis, Rule 804(b)(3), to the extent that it is a hearsay rule, does not.
United States v. Satterfield, 572 F.2d 687, 691–92 (9th Cir. 1978) (citations omitted).
Essentially, the majority affirms the circuit court’s exclusion of Miller’s statement by
focusing on whether Bessie Brandon was credible. Bessie Brandon’s credibility, however,
was a question for the jury, not the trial judge. As Satterfield suggests, the focus should have
been on the facts relating to the trustworthiness of Miller’s statement. Those facts would
have included Albert Brandon’s testimony that Miller told him how to dispose of the
weapon, as well as his intimation that Miller gave him the gun. Thus, I respectfully dissent
from the majority’s analysis on this issue.
BRILL, C.J., and DANIELSON, J., join in this dissent.
Janice W. Vaughn, Arkansas Public Defender Commission, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
30 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211633/ | Filed 6/9/16 P. v. Chan CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C079668
Plaintiff and Respondent, (Super. Ct. No. SF090168D)
v.
RATHANA CHAN,
Defendant and Appellant.
Appointed counsel for defendant Rathana Chan has asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal. 3d 436.) We order correction of the abstract of judgment to conform to the
oral pronouncement of sentence and affirm the judgment.
BACKGROUND
On September 12, 2003, defendant and another person fired shots from
defendant’s car into another vehicle, killing one person and wounding two others.
Several of defendant’s passengers told police that, when defendant pulled alongside the
victims’ vehicle, he said he believed the victims were gang members who “had shot at
1
him before in the past” and were “the enemy.” Defendant’s passengers also told police
that people in defendant’s car were also members of a gang.
On January 17, 2006, defendant was charged by third amended complaint with one
count of murder (Pen. Code, § 187--count 1),1 two counts of attempted premeditated
murder (§§ 664/187, subd. (a)--counts 2 and 3), discharge of a firearm from a vehicle
(§ 12034, subd. (d)--count 4), shooting at an occupied motor vehicle (§ 246--count 5),
street terrorism (§ 186.22, subd. (a)--count 6), and possession of a firearm by a felon
having previously been convicted of a violent offense (§ 12021.1, subd. (a)--count 7).
The complaint alleged that, in committing count 1, defendant discharged a firearm from a
vehicle with the intent to kill (§ 190.2, subd. (a)(21)) and was an active participant in a
criminal street gang (§ 190.2, subd. (a)(22)). The complaint further alleged that, in
committing counts 1 through 5, a principal personally and intentionally discharged a
handgun causing death to the victim (§ 12022.53, subds. (d) & (e)(1)) and that defendant
committed the offense for the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)). A warrant issued for defendant’s arrest on
January 17, 2006.
On October 26, 2012, defendant filed a motion to dismiss the outstanding warrant,
claiming unreasonable delay in his extradition in that he had been serving time in
Pennsylvania and was easily located. The trial court appointed counsel for defendant, but
the motion to dismiss was dropped from calendar after two appearances where
defendant’s whereabouts were unknown.
On July 8, 2013, defendant appeared in court with counsel. Defendant entered not
guilty pleas and the matter was set for a preliminary hearing. Defendant made no
mention of his motion to dismiss. The preliminary hearing was conducted and on
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
2
July 29, 2013, defendant was charged by information with allegations nearly identical to
those in the previously filed amended complaint, adding only that, in committing
counts 1 through 5, defendant personally and intentionally discharged a handgun causing
death to the victim (§ 12022.53, subds. (b)-(e)) and personally used a firearm
(§ 12022.5).
Over the course of the next two years, the trial court conducted a number of
hearings in defendant’s case and eventually appointed new counsel. On March 2, 2015,
defendant entered a negotiated plea of no contest to a charge of voluntary manslaughter
(§ 192, subd. (a)--amended count 1), a strike, and admitted a firearm use enhancement
(§ 12022.5), and a gang enhancement (§ 186.22, subd. (b)(1)) in exchange for a stipulated
20-year sentence and dismissal of the balance of charges and allegations against him, as
well as a pending petition for violation of probation. The parties stipulated to the
preliminary hearing transcript as a factual basis for the plea.
The trial court sentenced defendant to 20 years in state prison (the upper term of
11 years plus a consecutive four-year term for the firearm enhancement and a five-year
term for the gang enhancement), consistent with the plea agreement, with 795 days of
presentence custody credit (692 actual days plus 103 conduct credits). The court imposed
a $300 restitution fine (§ 1202.4), a $300 parole revocation fine, stayed pending
successful completion of parole (§ 1202.45), a $40 court security fee (§ 1467.8), and a
$30 criminal conviction fee (Gov. Code, § 70373), and reserved jurisdiction on the issue
of victim restitution.
Defendant filed a timely notice of appeal. The trial court granted his request for a
certificate of probable cause.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right
3
to file a supplemental brief within 30 days of the date of filing of the opening brief. More
than 30 days have elapsed and we received no communication from defendant.
We note one small discrepancy between the trial court’s oral pronouncement of
sentence and the abstract of judgment. The abstract contains a “$30 surcharge” not orally
imposed by the court and not accompanied by any identifying statutory basis. The
abstract of judgment may not add to or modify the judgment (People v. Zackery (2007)
147 Cal. App. 4th 380, 385, 389) and, where there is a discrepancy between the oral
pronouncement of judgment and the abstract of judgment, the oral pronouncement
controls (People v. Mitchell (2001) 26 Cal. 4th 181, 185-186). We shall direct the trial
court to correct the abstract accordingly.
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment that omits the $30 surcharge, and to forward a certified copy to the
Department of Corrections and Rehabilitation.
/s/
Duarte, J.
We concur:
/s/
Nicholson, Acting P. J.
/s/
Butz, J.
4 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211634/ | Filed 6/9/16 P. v. Bakos CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C079729
Plaintiff and Respondent, (Super. Ct. No. CRF14203)
v.
CHELSEA RAE BAKOS,
Defendant and Appellant.
Appointed counsel for defendant Chelsea Rae Bakos has filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal. 3d
436.) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
1
BACKGROUND
Over the course of approximately six months, defendant and two codefendants
committed various acts of credit card fraud. They would present a credit card to a store
clerk that could not be swiped by a card reader and the clerk would enter the information
manually. They used the cards at various fast food restaurants and local businesses. The
charges totaled almost $3,500. When law enforcement contacted defendant, she admitted
her involvement in the scheme and named another coconspirator. A search of
defendant’s car revealed several counterfeit cards and identification for multiple
individuals.
Defendant pleaded no contest to theft and fraudulent use of access cards or
account information (Pen. Code, § 484g, subd. (a))1 in exchange for dismissal of six
remaining charges, no immediate state prison, and three years’ probation, including up to
365 days in county jail. The trial court granted defendant three years’ probation,
including 240 days in county jail, and awarded her nine days of presentence custody
credit. The trial court also imposed various other terms and conditions of probation. The
trial court ordered defendant to pay $1,349.41 in direct victim restitution, a $300
restitution fine (§ 1202.4), a $300 probation revocation fine stayed upon successful
completion of probation (§ 1202.44), $40 a month for probation supervision (§1203.lb),
$370 for the presentence report (§ 1203.1b), a $40 court security fee (§ 1465.8), a $10
citation fee (§ 1463.07), a $30 conviction assessment (Gov. Code, § 70373), and a $43.50
booking fee (Gov. Code, § 29550.2).
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
1 Undesignated statutory references are to the Penal Code.
2
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal. 3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
Blease, Acting P. J.
We concur:
/s/
Butz, J.
/s/
Renner, J.
3 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4035538/ | [Cite as In re A.T., 2016-Ohio-5907.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.T. C.A. No. 28220
B.T.
D.T.
C.Q.
H.Q. APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 13-10-694
DN 13-10-695
DN 13-10-696
DN 13-10-697
DN 13-10-698
DECISION AND JOURNAL ENTRY
Dated: September 21, 2016
HENSAL, Judge.
{¶1} Appellant, Kelly Q. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her five minor
children and placed them in the permanent custody of Summit County Children Services Board
(“CSB”). This Court reverses and remands.
I.
{¶2} Mother is the biological mother of five minor children: A.T., born January 20,
2003; B.T., born January 17, 2006; D.T., born August 23, 2007; C.Q., born October 24, 2008;
and H.Q., born March 28, 2010. During August 2013, CSB became involved with this family
because Mother and the father of B.T., C.Q, and H.Q. (“Father Q.”) were living in a condemned
home that was filthy and lacked adequate food and running water. The children had not been
2
attending school regularly and had emotional and behavioral problems. CSB was also concerned
about Mother’s mental health because she had recently been hospitalized in a psychiatric ward
but was not then involved in mental health treatment. The parents entered into a voluntary case
plan with CSB, which is not part of the record, but apparently involved CSB and other service
providers assisting the parents in obtaining more appropriate housing and working on their other
parenting problems.
{¶3} On October 30, 2013, CSB filed complaints to allege that all five children were
neglected and dependent because the parents were not complying with all requirements of the
voluntary case plan. The trial court later adjudicated the children dependent, adopted the case
plan, and allowed the children to remain in Mother’s legal custody under an order of protective
supervision. The case plan required Mother to address her mental health problems, maintain
suitable housing, and demonstrate that she could consistently provide for the children’s needs.
{¶4} On December 8, 2014, CSB moved the trial court to remove the children from
Mother’s home and place them in its temporary custody because Mother was not consistently
complying with the goals of the case plan. On December 26, 2014, the children were removed
from Mother’s custody because the home was not sanitary, the children continued to have
behavioral problems and excessive school absences, and both fathers had been convicted and/or
found in violation of community control for illegal drug activity. Although the case plan was
amended in that respect, it did not add new goals or services for Mother.
{¶5} CSB had initially supported the request of the father of A.T. and D.T. (Father T.)
for temporary custody of his children and later supported his request for legal custody of D.T.
after A.T. was removed from his home for severe behavioral problems. Father T. later died of a
drug overdose, however.
3
{¶6} Because CSB believed that Mother and Father Q. had not substantially complied
with the reunification goals of the case plan, it eventually moved for permanent custody of all
five children. Mother alternatively moved for legal custody of the children and Father Q.
supported her request.
{¶7} The matter proceeded to a hearing on the alternate dispositional motions. All
children were represented by counsel because they had expressed wishes that were in conflict
with the recommendation of the guardian ad litem. A.T. was represented by his own attorney
because he wanted to be placed with an aunt. The other children were represented by another
attorney because they wanted to return to Mother’s custody.
{¶8} The evidence presented by CSB focused primarily on the parents’ lack of case
plan progress from October 2013 to December 2014, when the children remained in the home
under the protective supervision of CSB. The evidence about Mother’s progress on the case plan
after the children were removed from the home was primarily positive. She had obtained safe
and suitable housing, was receiving mental health treatment, and reported that she was employed
but had not provided verification to CSB. Mother visited the children regularly, interacted
appropriately with each one of them, and the children were always happy to see her. The
caseworker even observed that Mother made an effort to interact with each one of the children
and was able to limit the potential chaos of visiting with five children by keeping track of the
time and giving them a 10-minute warning to prepare to end each visit. Although CSB
attempted to fault Mother for failing to comply with the substance abuse component of the case
plan, the case plan included no substance abuse component for Mother, nor had Mother
otherwise been ordered to undergo substance abuse treatment or drug testing by the trial court.
4
{¶9} Similarly, the guardian ad litem based his assessment of the children’s best
interests on the lack of case plan progress and the condition of the parents’ home 17 months
earlier, before the children were removed from the home. He had not attempted to assess the
current condition of the family home because the children no longer lived there and he did not
“think that there’s a chance” that they would “end up in [that] home.” In fact, the guardian
testified at the hearing that he did not investigate the parents’ compliance with mental health
treatment or other any aspects of the case plan during the 16 months that the children had lived
outside the family home.
{¶10} After the hearing, the trial court found that the children could not be returned to
either parent or should not be returned to them and that permanent custody was in their best
interests. Mother appeals and raises two assignments of error. Although Father Q. did not
appeal from the trial court’s judgment, he entered an appearance as an appellee and filed a brief
to support Mother’s assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
TERMINATED MOTHER’S AND FATHER’S PARENTAL RIGHTS RATHER
THAN GRANTING LEGAL CUSTODY TO MOTHER.
{¶11} Mother’s first assignment of error is that the trial court’s permanent custody
decision was not supported by the evidence presented at the hearing. Before a juvenile court
may terminate parental rights and award permanent custody of children to a proper moving
agency it must find clear and convincing evidence of both prongs of the permanent custody test:
(1) that the children are abandoned; orphaned; have been in the temporary custody of the agency
for at least 12 months of a consecutive 22-month period; they or another child in a parent’s
5
custody have been adjudicated abused, neglected, or dependent on three separate occasions; or
they cannot be placed with either parent within a reasonable time or should not be placed with
either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent
custody to the agency is in the best interest of the children, based on an analysis under R.C.
2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio
St.3d 95, 99 (1996).
{¶12} Although Mother challenges the trial court’s findings on each prong of the
permanent custody case, we will confine our review to the first prong because it is dispositive.
The trial court found that CSB had satisfied the first prong of the permanent custody test solely
based on the factor set forth in R.C. 2151.414(E)(1). R.C. 2151.414(E)(1) requires the trial court
to find that the children “cannot be placed with either parent within a reasonable time or should
not be placed with either parent[]” if it finds clear and convincing evidence to demonstrate that:
Following the placement of the child outside the child’s home * * * the parent has
failed continuously and repeatedly to substantially remedy the conditions causing
the child to be placed outside the child’s home.
{¶13} This language is plain and unambiguous. “When the language of a statute is plain
and unambiguous and conveys a clear and definite meaning, there is no need for this court to
apply rules of statutory interpretation.” State v. Kreischer, 109 Ohio St. 3d 391, 2006-Ohio-2706,
¶ 12. To make a finding under the explicit language of R.C. 2151.414(E)(1), the trial court was
required to find clear and convincing evidence that the parents failed to remedy the conditions
that caused the children’s removal “following” their placement outside the home. These children
were not placed outside Mother’s home until December 26, 2014.
{¶14} The trial court’s explanation for its finding under R.C. 2151.414(E)(1), however,
focused solely on facts that predated the placement of the children outside Mother’s home. Its
6
decision repeatedly emphasized that, because the parents had failed to comply with the case plan
while the children remained in the home under protective supervision, they failed to remedy the
conditions that caused the children’s removal. Although the parents’ lack of case plan progress
before the children were removed demonstrate some of the “conditions” that caused the
children’s removal, those facts did not demonstrate that the parents had “failed continuously and
repeatedly to substantially remedy” those conditions “[f]ollowing the placement of the child[ren]
outside [their] home[.]”
{¶15} Consequently, the trial court’s factual findings do not satisfy the explicit
requirements of R.C. 2151.414(E)(1). If the trial court fails to make a proper factual finding
under R.C. 2151.414, this Court cannot do so on appeal. See, e.g., In re E.M., 9th Dist. Wayne
No. 14AP0030, 2015-Ohio-641, ¶ 9; In re D.K., 9th Dist. Summit Nos. 26272, 26278, 2012-
Ohio-2605, ¶ 11; In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, ¶ 15. “Doing so
would amount to this Court making a finding in the first instance, an act that would exceed our
jurisdiction as an appellate court. See Ohio Constitution, Article IV, Section 3(B)(2).” In re
D.K. at ¶ 11.
{¶16} Consequently, Mother’s first assignment of error is sustained and the judgment of
the trial court is reversed and remanded on that basis.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GIVING
WEIGHT TO THE TESTIMONY OF A GAL WHO DID NOT COMPLETE HIS
DUTIES AS REQUIRED BY STATUTE.
{¶17} Because Mother’s first assignment of error is dispositive, her second assignment
of error has been rendered moot and will not be addressed. See App.R. 12(A)(1)(c).
7
III.
{¶18} Mother’s first assignment of error is sustained and her second assignment was not
addressed. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is
reversed and remanded.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee Summit County Children Services Board.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
8
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
KANI HARVEY HIGHTOWER, Attorney at Law, for Appellee.
LINDA BENNETT, Guardian ad Litem. | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435339/ | Crane Company, appellee, is a corporation organized under the laws of the state of Illinois, with its principal place of business and home office in the city of Chicago. It has complied with the laws of Iowa in relation to foreign corporations transacting business within the state. It had, for some time prior to the commencement of this action, maintained an agency in the city of Des Moines. We gather from the record that it owned the business building in that city from which was distributed a line of manufactured goods, consisting of plumbing fixtures of all kinds and descriptions. Among other things, it at all times kept on deposit in one of the banks in Des Moines the sum of $3,000 for the current use of its agency. Taxes were levied against the real estate, the goods on hand, and the $3,000 above referred to, which taxes were paid; or at least no question is raised as to the correctness thereof in this proceeding.
The assessor also made a return against the corporation for assessment (after making proper deductions) of something over $35,000, representing book accounts owed the Crane Company for goods sold through its Des Moines office; also some accounts representing goods sold directly from the Chicago office, such sales being charged against the local agency in Des Moines, which was expected to collect the same. The Des Moines agency was to collect all these accounts, and remit the same promptly to the *Page 166
home office at Chicago; and remittances were made every week, covering collections so made. The Crane Company duly appeared before the city council of Des Moines as a board of review, and protested against the assessment of these book accounts. The protest was overruled, and an appeal was taken by the Crane Company to the district court of Polk County, where, as above noted, the assessment was set aside; and this appeal is from the action of the district court.
The question we have for consideration is whether or not these book accounts or the debts which they evidence are the subject of taxation under the laws of Iowa, in view of the fact that the Crane Company is a nonresident corporation.
Personal property may have a twofold situs: actual situs, as distinguished from legal situs. If a statute fixes the situs, and the statute is constitutional, the legal situs thus created is, of course, controlling. Again, the place of taxation may depend upon the character of the property: that is, real property, tangible personal property, or intangible personal property. It may also be affected by the permanency of the location or the purposes for which the property is being held.
Intangible personalty includes open accounts, credits, (whether or not evidenced by writing), promissory notes, mortgages, bonds, shares of stock, deposits in bank, judgments, etc., where the debt or obligation is the real thing which is sought to be taxed. The general rule is that the situs of intangible personal property for the purposes of taxation is the domicile of the owner. This rule is usually bottomed on the legal maxim "mobiliasequuntur personam," — i.e., "movables follow the person;" or, as sometimes stated, the situs of personal property is the domicile of the owner. We have recognized this rule in City ofDavenport v. Mississippi and Missouri R. Co., 12 Iowa 539; Hunterv. Board of Supervisors, 33 Iowa 376; Hutchinson v. Board ofEqualization, 66 Iowa 35; German Tr. Co. v. Board ofEqualization, 121 Iowa 325; Gilbertson v. Oliver, 129 Iowa 568;In re Estate of Adams, 167 Iowa 382; In re Estate of Colburn,186 Iowa 590.
An exception to this general rule has, however, always been recognized: that, where the property has acquired a business situs in another state, different from the domicile of the owner, this rule does not apply; and we have also recognized this *Page 167
exception to the general rule in this state in the cases cited supra. This exception seems to be quite generally recognized in the law of taxation, and it is settled that credits belonging to a nonresident may acquire a business situs so as to be taxable.
The term "business situs," while of modern origin, would seem to mean what the words indicate: that is, a situs in a place other than the domicile of the owner, where such owner, through an agent, manager, or the like, is conducting a business out of which credits or open accounts grow and are used as a part of the business of the agency. As between states, it does not cover merely transitory presence, for merely temporary or isolated transactions. Buck v. Beach, 206 U.S. 392 (51 L. Ed. 1106); Boardof County Com. v. Hewitt, 76 Kan. 816 (14 L.R.A. [N.S.] 493). InHinckley v. County of San Diego, 49 Cal.App. 668 (194 P. 77), it is said:
"[There must be] something like a general, or more or less continuous, course of business or series of transactions within the state where the property is physically located, as distinguished from mere sporadic and isolated transactions."
See, also, In re Estate of Jefferson, 35 Minn. 215
(28 N.W. 256). Nor is mere presence for safe-keeping enough (Buck v.Beach, supra; Commonwealth v. Green, 150 Ky. 339 [150 S.W. 353];Carmody v. Clayton [Tex. Civ. App.], 154 S.W. 1067); nor where it is sent to an agent or attorney merely for collection. Intangible personal property may acquire a business situs so as to be taxable elsewhere than in the state where the owner is domiciled, although not evidenced in writing. Liverpool London GlobeIns. Co. v. Board of Assessors, 221 U.S. 346 (55 L. Ed. 762). The rule of business situs has been applied also to credits arising from loans made by agents of foreign insurance companies.Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S. 395
(51 L. Ed. 853). It has also been applied to credits arising from premiums due in connection with the local business of an insurance company. Liverpool London Globe Ins. Co. v. Boardof Assessors, supra. It has also been held that credits arising from a business in the state by a branch of a foreign corporation may be taxed. Commonwealth v. Avery Sons, 163 Ky. 828
(174 S.W. 518); People ex rel. Burke v. Wells, 184 N.Y. 275 (77 N.E. 19);Marshall Hdw. Co. v. Multnomah County, *Page 168 58 Or. 469 (115 P. 150); Armour Packing Co. v. Mayor of Cityof Savannah, 115 Ga. 140 (41 S.E. 237); State v. Pittsburgh PlateGlass Co., 147 Minn. 339 (180 N.W. 108); Clay, Robinson Co. v.Douglas County, 88 Neb. 363 (129 N.W. 548).
It would seem in this case, therefore, under this line of authority, — there being no constitutional question raised, — that there can be no doubt of the right or power of the state in the first instance to levy taxes against these book accounts. The question left, therefore, is whether or not the state of Iowa has by legislation exercised this power.
In the Iowa statutes, appellant relies upon Sections 6963, 6966, 6984, and 6985, Code of 1927. Without setting out these statutes, it is sufficient to say that, in our opinion, they are not controlling on the question before us, in view of the fact that the legislature has, in our opinion, attempted to take care of situations of this kind by Section 6958, Code of 1927, reading as follows:
"Any person acting as the agent of another, and having in his possession or under his control or management any money, notes, and credits, or personal property belonging to such other person, with a view to investing or loaning or in any other manner using or holding the same for pecuniary profit, for himself or the owner, shall be required to list the same at the real value, and such agent shall be personally liable for the tax on the same; and if he refuse to render the list or to swear to the same, the amount of such money, property, notes, or credits may be listed and valued according to the best knowledge and judgment of the assessor."
It will be noted that this section in substance provides that, where any person is agent for another, "having in his possession or under his control or management any * * * credits, or personal property belonging to such other person, with a view to investing or loaning or in any other manner using or holding the same for pecuniary profit, for himself or the owner," such property is required to be listed at the real value thereof.
It is quite apparent that this section of the statute was intended to cover personal property within the state held by an agent under the terms specified; but the legislature has limited this by providing that, if such property is held for the purpose *Page 169
of loaning, investing, or holding for pecuniary profit, it must be listed and taxed. This is the only section of the Code dealing with property of nonresidents, and it is obvious that the kind of property we have in the case before us is not included in this section of the statute. In other words, only credits belonging to nonresidents that are held by an agent within the state for the purpose of investing, loaning, or pecuniary profit are required to be listed and assessed. This being the situation, it follows that the kind of property we have under consideration in this case, — to wit, book accounts owned by a nonresident and held by an agent in this state that are not so held for investment, loaning, or pecuniary profit, — is not subject to taxation, under the statutes as they now exist. The result of this is that the holding of the district court was right. — Affirmed.
EVANS, KINDIG, WAGNER, and GRIMM, JJ., concur.
FAVILLE, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435340/ | This accident occurred about 10:00 o'clock on the morning of August 26, 1937, where primary highway No. 60, a north-and-south road, crosses the main and switch tracks of appellee's interurban railway at approximately right angles about five miles south of Albia. The switch track is south of the main track. Decedent was approaching the crossing from the south and appellee's train was approaching from the west. The day was warm, clear, and quiet and the pavement dry. The tracks of the Wabash Railroad Company run east and west about 510 feet south of appellee's tracks. The highway is straight and practically level for a distance of 700 feet south of the railroad crossing.
The surface of the ground south of the tracks and west of the highway was comparatively level and slightly lower than the highway and tracks. West of the highway and immediately south of appellee's right of way there was a field of tomatoes and cucumbers. South of this vegetation there was a field of popcorn planted June 28th, the height of which was estimated by the owners to be from 4 to 4 1/2 feet. A witness for appellant testified the corn was from 6 to 7 feet high.
The train, approaching from the west, consisted of the motorcar or locomotive, a boxcar, a cinder car, and a caboose. The locomotive was 12 feet 4 inches high, the boxcar 13 feet 8 inches high, the cinder car 8 feet, and the caboose 13 feet 6 inches in height. The train was 144 feet in length. The transmission lines and trolley poles were 33 feet above the ground. There was a railroad-crossing sign about 4 feet high, erected and maintained by the highway commission, about 30 feet north of the Wabash tracks and about 15 feet east of the pavement. It was the standard highway commission sign containing the letters "R.R."
On the east side of the pavement and south of appellee's *Page 304
tracks about 25 feet was a sign with the lettering "RAILROAD CROSSING." The lettering was 8 inches high. About 30 feet north of the tracks and west of the pavement there was a standard railroad sawbuck warning sign.
Exhibit D-1, which is here inserted, is a fair representation of the signs maintained by appellee as they were on the day of the accident. The exhibit also shows a part of the skid marks made by the tires of decedent's car as he approached the crossing.
[EDITORS' NOTE: EXHIBIT D-1 IS ELECTRONICALLY NON-TRANSFERRABLE.]
With reference to the railroad warning sign south of the tracks an employee of appellee testified:
"These signs was put up for extra precaution. They *Page 305
thought they would make a few of them and put them up at a few crossings — thought it would help attract attention so they would pay more attention to the crossing — is what they were put up for. They was only put up at a few crossings to try it out."
The signs were plainly visible from the Wabash tracks which were 510 feet south of the crossing. The train was equipped with air brakes, hand brakes, sand valve, and air-operated bell and whistle. These instrumentalities were in good operating condition at the time of the accident. The train approached the crossing at a speed of about 25 miles an hour. The speed of the automobile was variously estimated at from 65 miles to 100 miles per hour. We are satisfied that the automobile was being driven about two and one-half to three times faster than the train, or approximately 65 miles per hour. The automobile was on the east side of the pavement as it approached the crossing and ran into the motorcar.
At the time of the collision the front part of the locomotive had passed the east edge of the pavement and was struck by the automobile back of its front trucks. The front part of the motorcar was derailed. The crash was heard one-half mile away. Decedent was driving a 1937, four-door, 143-horsepower Buick sedan, weight about two tons, and it could be driven from 80 to 95 miles per hour.
I. Section 8018, 1939 Code, reads, in part:
"8018 Signals at road crossings. A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed * * *."
Appellant's first assignment is that a conflict in the evidence required the question of compliance with this statute to be submitted to the jury.
Appellee concedes the signals were not given 60 rods west of the crossing but contends its negligence to observe this statutory requirement was not a proximate cause of the accident. *Page 306
Because of our disposition of the case it is unnecessary to pass on this issue.
[1] However, we should consider whether there is a conflict in the evidence on the question whether the signals required by the statutes were given before the crossing was reached. The engineer, brakeman, and Roadmaster Stites, who was on the train, testified the whistle was sounded and the bell was rung about 500 feet west of the crossing, and five disinterested witnesses for appellee testified the signals were given from 250 to 300 feet west of the crossing.
Two witnesses for appellant, Mr. Matthai and Mr. Feldman, testified that they did not hear a whistle or bell. They were approaching the intersection from the north in Mr. Feldman's car, which was two years old, at a speed of from 45 to 50 miles per hour. The car windows were open. They saw the train close to the highway when they were 1,000 feet north of the tracks. They were engaged in conversation when they approached the intersection. Mr. Feldman testified on cross-examination:
"As we were coming south Mr. Matthai and I were engaged in conversation. I do not remember of anything in particular we were talking about. It was not about the railroad crossing. * * * Q. Now, Mr. Feldman, when you say you didn't hear a whistle or bell the most you want the jury to understand is you didn't notice any whistle or bell? A. No, I did not. Q. You don't want to tell the jury that the whistle or bell didn't ring, do you? A. No I don't. Q. And you weren't paying any particular attention to that feature? A. No, I wasn't. Q. You wasn't looking for it? A. No. Q. And you merely want to say you don't recall hearing it? A. I don't recall, no sir. Q. As I understand it, you were in conversation with Mr. Matthai up to the time you reached this crossing? A. Yes, sir."
On redirect examination he testified:
"Q. You testified that at no time did you hear a train whistle or train bell? A. That is right. Q. Do you know any reason why you could not have heard a train whistle or train bell if same had been blown? A. I don't know — the only *Page 307
reason I have is because I was conversing with Mr. Matthai and paid no attention to it."
Mr. Matthai testified:
"Q. Now, as I understand it, according to your testimony as you were approaching this crossing from the north, coming down from Albia, you were in conversation with Mr. Feldman and was not paying any particular attention to anything? A. That is right. Q. What you merely want to tell the jury is that as far as you recall you didn't hear a whistle blow or a bell rung? A. That is right. Q. You don't want to say to this jury that a whistle was not blown or a bell was not rung — merely that you didn't hear one, isn't that right? A. I did not hear either a whistle or a bell. Q. That is all you want the jury to understand, that you did not hear them yourself? A. That is right."
Neither Mr. Feldman nor Mr. Matthai heard the crash. In view of the positive evidence the signals were given, the negative evidence of the witnesses does not, under the circumstances, create a conflict in the evidence. Lenning v. Des Moines
C.I.R.R., 209 Iowa 890, 894, 227 N.W. 828.
[2] II. Section 8000, 1939 Code, provides that every corporation operating a railroad shall erect at all points where the railroad crosses a public road, "a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains."
Appellant states:
"We urge two alternative propositions:
"1st: Sec. 8000 requires the maintenance of a warning sign at railroad crossings on both sides of the highway.
"2nd: Even if the statute was not so construed to require signs on both sides of the highway, ordinary care at any intersection with a paved trunk highway would require signs on both sides of the highway."
We cannot agree with her propositions. The statute requires a sign at the crossing for the purpose of warning travelers *Page 308
of the proximity of the tracks and the standard sawbuck sign north of the tracks and west of the highway complied with the statute. In Dolan v. Bremner, 220 Iowa 1143, 1146, 263 N.W. 798,799, plaintiff was approaching the tracks from the west. The court said:
"It appears without dispute in the evidence that the railroad company did comply with the requirement of our statute by maintaining on the east side of its railroad tracks and to the north side of the highway the ordinary cross-arm warning sign."
[3] With reference to appellant's second proposition, it is well settled in this state that if a railroad crossing is peculiarly and unusually hazardous it is for the jury to say whether warnings and safeguards in addition to statutory requirements should be provided to give reasonable protection to the public. Butters v. Chicago, M., St. P. P.R. Co., 214 Iowa 700,243 N.W. 597; Glanville v. Chicago, R.I. P.R. Co.,190 Iowa 174, 180 N.W. 152; O'Brien v. Chicago, R.I. P.R. Co.,203 Iowa 1301, 214 N.W. 608.
The photos before us and the testimony of the witnesses persuade us that this crossing was not more than ordinarily hazardous.
If it were to be conceded that because of the character of the crossing and its surrounding conditions it required an additional sign on the south side of the tracks and east of the highway, the sign shown in Exhibit D-1 fairly warned a traveler from the south of the proximity of the appellee's railroad tracks.
[4] III. Appellant alleges the court erred in ruling that decedent was contributorily negligent. We are of the opinion that the trial court was right in so ruling.
A railroad crossing is inherently a place of danger and requires the exercise of care, by the person about to cross the tracks, commensurate with the danger. Such person must vigilantly use his senses to determine whether there is danger in crossing the tracks. In High v. Waterloo, C.F. N.R. Co., 195 Iowa 304,307, 190 N.W. 331, 333, the court, speaking through Mr. Justice Faville, said: *Page 309
"A person approaching a railway crossing is bound to know that he is approaching a dangerous place. As one has laconically said, `It is always train time at any railroad crossing.' To be free from negligence, one must exercise the degree of care and caution that a man of ordinary care and prudence would exercise under the same or similar circumstances.
"In Hinken v. Iowa Cent. R. Co., 97 Iowa 603, we said:
"`We have iterated and reiterated the doctrine that a railway track is always a place of danger, and that it is the duty of one about to cross it, even in the absence of any special warnings or signals on the part of those in charge of the train, to use his senses in order to avoid injury.' * * * He must do all the acts and things that a man of reasonable care and caution would do at the time and place."
In Dean v. Chicago, B. Q.R. Co., 211 Iowa 1347, 1351,229 N.W. 223, 225, we said:
"Even the failure of the engineer to ring the bell or sound the whistle, if such be the fact, does not relieve the traveler about to cross a railroad track from the necessity of taking ordinary precaution under the circumstances which confront him."
Although appellee did not sound the whistle 960 feet west of the crossing, this negligence did not relieve decedent from exercising due care to avoid injury, from the duty of vigilantly using all of his senses to determine whether there was danger from trains approaching the crossing.
The purpose of the warning signs and signals is to warn persons using the highway of the danger of approaching trains and not to prevent them from running into a train on the crossing over the highway. Dolan v. Bremner, 220 Iowa 1143, 263 N.W. 798. If the crossing whistle, two longs, a short, and a long whistle, was given only 250 feet west of the crossing, decedent would have been approximately 620 feet south of the tracks. The bell rang continuously until the crossing was passed after the crossing whistle was given. The whistle and bell, the railroad signs, and the highway commission sign close *Page 310
to the Wabash tracks warned decedent of the proximity of the railroad tracks and of the necessity for looking out for trains.
Five witnesses for appellee testified that a traveler in approaching the crossing from the Wabash tracks and in looking northwest across the cornfield could plainly see a train approaching from the west. This evidence is supported by the testimony of Mr. Adams, a registered engineer, employed by appellee in its engineering department. He stated that approximately the top 25 feet of the transmission lines and trolley poles were visible from the Wabash tracks. The lower 7 or 8 feet of the poles were not visible. The popcorn, which was planted on June 28th, was estimated by two of appellant's witnesses to be 6 or 7 feet tall, although it had been planted less than two months at the time of the accident. As stated, the owners of the land and other witnesses testified the popcorn was from 4 1/2 to 5 feet high. Assuming it was 7 feet high, the locomotive was 12 feet high, the boxcar nearly 14 feet high, and the caboose 13 1/2 feet high. A witness for appellant testified:
"At a point approximately 250 feet south of the I.S.U. crossing a train could have been seen approaching from the west. I would say probably a thousand feet or more. A view of the tracks could be had to the west at a point farther than 250 feet from the intersection."
The north edge of the cornfield was 111 feet south of the tracks. The popcorn field only partially obscured the view of the train as decedent proceeded north from the Wabash tracks and the rails were plainly visible.
Appellee's engineer measured the skid marks and found that they commenced 182 feet south of the crossing and continued to the tracks. Exhibit D-1, which does not purport to show the full length of the marks, corroborates this witness. We are satisfied that appellant's witness who testified that the skid marks were only 75 feet long was mistaken. In fact, appellant concedes in her argument that decedent might have skidded his car 175 feet. Although decedent was duly warned of the danger of approaching trains at least 600 feet south of the tracks, it is quite apparent that, in heedless disregard of his own safety, *Page 311
he continued to drive at approximately 65 miles an hour until he was within about 250 feet of the crossing, at which time he apparently saw the train. As stated in appellant's argument:
"When Mr. Hitchcock got within 250 feet of the I.S.U. crossing he could see a train on the track and obviously did see a train on the track."
In Luse v. Nickoley, 231 Iowa 259, 3 N.W.2d 503, it appeared the "thinking distance" for applying brakes on a car driven 50 miles per hour is 55 feet. Mr. Hitchcock apparently saw the train when he was about 250 feet south of the crossing and then applied his brakes. The evidence is that the speed of his car was not materially reduced during the braking period. The impact tilted the locomotive but did not turn it over.
Section 5023.01, 1939 Code, reads, in part:
"5023.01 Speed restrictions. Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway andof any other conditions then existing * * *." (Italics supplied.)
After due warning of the proximity of the tracks and the approaching of the train 500 or 600 feet south of the crossing, decedent did not attempt to reduce his speed or proceed with caution toward the crossing until within approximately 250 feet thereof. He drove into the danger zone, a position of peril, at a speed that made it impossible for him to avoid the collision.
We can only conclude from this record that decedent, after due warning, did not exercise that care and caution and prudence in approaching the crossing required by law. It cannot be said, under this record, that decedent did not contribute in some degree to the injuries resulting in his death.
[5] IV. Another proposition advanced by appellant is that appellee must respond in damages under the last-clear-chance doctrine.
The testimony of Motorman Neely is substantially as follows:
When he was about 200 feet from the crossing, traveling at 25 miles per hour, he observed decedent's car at the Wabash *Page 312
crossing. At this time he did not think there was going to be an accident. After looking north, he again looked south when his train was about 100 feet west of the crossing and observed the automobile about 250 feet south of the tracks. "He was coming at a high rate of speed, I thought — from 65 to 85 miles an hour." He immediately stopped his long whistle and went into short blasts, threw off the current, applied the emergency air brakes and released the sand valve. He continued the alarm blast of the whistle to the place of the collision, at which time the speed of the automobile was about 60 miles an hour and the speed of the train was reduced to 20 miles an hour. The train stopped about 120 feet east of the pavement. Traveling at 25 miles per hour, the train could be stopped in a distance of about 275 feet.
The brakeman testified he first observed the car at the Wabash tracks. When it was 250 feet south of the crossing, he saw "smoke coming off his casings and out from under the car. * * * I could hear this shrieking noise [of the tires] on the pavement." At said distance, the engineer applied the brakes and gave the alarm blasts of the whistle.
"Q. Just tell the jury what did happen there as you were crossing that crossing. A. Well, the engineer tried to make an emergency stop and he got out over the half way line of the paving, going east, and this automobile hit the engine right under the cab window — right in the extreme front end of the motor — of the engine."
The roadmaster testified the air brakes were applied and current thrown off and the rails sanded about 90 feet west from the crossing and that the automobile was traveling 50 miles an hour and the train 20 miles an hour at the time of the collision.
The train crew first observed the automobile over 500 feet from the tracks, at which time decedent was not in a position of peril. The signs and signals warned decedent at that distance that there was a railroad crossing ahead, and they had a right to assume that he would use due care for his own safety and proceed cautiously into the danger zone taking all reasonable care and measures to determine whether or not a train was approaching. *Page 313
Ordinarily, a traveler on the highway who has been warned of the proximity of railroad tracks is not in a position of peril 250 feet from a crossing, but in this case the motorman, observing the undiminished speed of the automobile at that distance, when his train was 100 feet west of the crossing, used all the instrumentalities available to avoid the collision. Prior to this time the crew had no reason to believe that a collision was imminent. Appellee's employees discovered decedent in a position of peril when the train was from 90 to 100 feet west of the crossing, and, as stated, the train could not be stopped within a distance less than 275 feet. The record shows appellee's employees did all that could be done to prevent the collision after they discovered the decedent in a position of peril, at which time it was too late, by the exercise of reasonable care, to prevent the accident. In Williams v. Mason City Ft. D.R. Co., 205 Iowa 446, 453, 214 N.W. 692, 694, the court said:
"Appellee suggests that said trainman saw the approaching automobile 100 to 150 feet south of the crossing. The conductor so testifies. That, however, does not overcome the difficulty. Travelers in motor vehicles frequently and customarily drive toward an on-coming train and stop just before going upon the tracks, in order to permit the train to proceed on its way. There is in such conduct, however, no `peril,' until such wayfarer fails to stop in a zone of safety. Those in charge of the train have a right to assume that he will not drive into danger. Albright v. Chicago, R.I. P.R. Co., 200 Iowa 678; Vreeland v. Chicago, M. St. P.R. Co., 92 Iowa 279."
In Lenning v. Des Moines C.I.R.R., 209 Iowa 890, 893,227 N.W. 828, 829, the court said:
"Suppose, however, that the decedent was in plain view of the train while he was 600 feet away from the intersection. Was the motorman bound to assume, at such a distance, that the decedent did not also see the on-coming car? Surely a train is not bound to come to a stop simply because its motorman sees an automobile 600 feet distant from a crossing. Nor should he be required to put on its brakes or to slow down at such a distance." *Page 314
See Arp v. Illinois Cent. R. Co., 230 Iowa 869, 299 N.W. 413; Gilliam v. Chicago, R.I. P.R. Co., 206 Iowa 1291, 222 N.W. 12.
[6] V. Appellant's last assignment is that she was not permitted to show the habits and methods and customs of decedent in driving an automobile, and particularly his method of driving at railroad crossings. In Scott v. O'Leary, 157 Iowa 222, 227,138 N.W. 512, 514, we said:
"Where there are no eyewitnesses of a transaction, it has been held that testimony as to the habits of one whose conduct is in question, may be shown as bearing upon his care or the want of it. Frederickson v. Railroad Co., 114 Iowa, 26."
See Darden v. Chicago N.W. Ry. Co., 213 Iowa 583,239 N.W. 531.
But in the instant case there is direct testimony of the acts and conduct of decedent, of the manner in which he drove his car from the time he crossed the Wabash tracks until he reached the point of collision. The testimony of the witnesses and the physical facts preclude the application of the no-eyewitness rule.
In Stark v. Tabor N.R. Co., 161 Iowa 393, 403, 142 N.W. 977,980, it stated:
"The direct testimony covers practically every interval from the time the deceased concluded to leave his own train down to the time he was struck, and we do not think the presumption, even if it arose, as to a very short period of time, was sufficient to take the case to the jury."
See Brown v. McAdoo, 195 Iowa 286, 188 N.W. 7.
In connection with this issue and with reference to appellant's burden of proof, we state that we find nothing in the record to show that decedent was exercising the care for his own safety which a reasonably prudent man would exercise under similar conditions. — Affirmed.
WENNERSTRUM, C.J., and BLISS, SAGER, HALE, and MILLER, JJ., concur. *Page 315 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435341/ | I. This is an action in equity, to subject certain real property which it is alleged is owned by the defendant Alfred C. Evans, and described in a deed executed by him to his codefendant on November 12, 1921, purporting to convey the 1. PLEADING: same to appellant, to the payment of a judgment cross- in favor of plaintiff. The allegations of the complaint: petition are that the conveyance was without unallowable consideration, and that same was made with the counter- intent to hinder, delay, and defraud the claim. creditors of Alfred C. Evans. The appellant filed answer admitting the execution of the deed and denying the remaining allegations of the petition. Appellant also filed a cross-petition, claiming a homestead in the *Page 495
premises described in the deed, and praying that same be set off before execution sale, and also setting up a cause of action for board and room furnished to appellee Paul Evans from 1922 to 1924, and praying that she have judgment against him therefor, and that same be set off against his judgment. A motion to strike the counterclaim was sustained by the court, and this ruling is the first matter of which appellant complains. The situation presented by the pleadings was that appellant, who was in no wise indebted to appellee plaintiff, sought to set up a counterclaim upon a cause of action in her favor against him for the purpose of defeating the judgment held by him against her husband. No demand for a personal judgment is made by plaintiff against either appellant or her husband. His claim was reduced to judgment before the action was commenced.
The right to plead a counterclaim is statutory, and is limited thereby to the matter and causes of action designated. The right to plead a cause of action in the form of a counterclaim is said to be of modern origin. The Revision of 1860 recognized and defined set-off (Section 2886); counterclaim (Section 2889); and cross-demand (Section 2891). The use of the word "counterclaim" in the Revision of 1860 was an innovation. The commissioners appointed to revise the Civil Code in their report (page 304) said:
"This counterclaim is that of the new system. There are objections to it. A better might be suggested, but we fear to try the experiment, especially as this has become so well settled by decisions. The word has been railed at by opponents of the new system, but it has now got a well defined meaning. New words are necessary to create new rights of pleading. The danger of old ones is the freight of old associations, which one cannot avoid introducing by their use, any one of which may at any time rise up and defeat the new use, though ever so carefully guarded. And yet it is not true, as some have said, that this word was before quite unknown to common law; we have found it used in 1717 in Brown's Cases in Parliament, page 587."
Set-off, counterclaim, and cross-demand were combined in the Code of 1873 under Section 2659. This section, with few changes, appears as Section 3570 in the Code of 1897, and as Section 11151 in the Code of 1924.
Some of the matters pleaded by appellant were barred by *Page 496
the statute of limitations. A cause of action arising on contract or ascertained by the decision of a court may be set up in an action founded on contract, as may also any new matter constituting a cause of action in favor of the defendant which the defendant might have brought when suit was commenced, or which was then held, whether matured or not. A counterclaim, therefore, is a cause of action which, if established, will tend to reduce or offset the plaintiff's demand. It is true, of course, that, if the plaintiff fails to establish the cause of action pleaded, judgment may be rendered in favor of the defendant upon the counterclaim, if he has established a right of recovery. Appellant's cause of action existed at the time judgment was entered against her husband and also at the time this cause of action was commenced; but it cannot be pleaded in this action, as appellee asserts no claim for a personal judgment against her, but prays only for the cancellation of the deed executed by her codefendant to her, and that the property therein described be subjected to the payment of his judgment. Appellant's claim does not come within the original definition of a set-off, and could not have been pleaded under our former statutes, as a counterclaim or a cross-demand. The motion to strike was properly sustained.
II. The voluntary character of the conveyance by Alfred C. to his wife, Mary C. Evans, is conclusively established by the evidence. Counsel assert that a recital in the deed that the conveyance was subject to prior incumbrances in 2. FRAUDULENT some way makes the appellant liable therefor. CONVEYANCES: That it does not, is too well established to voluntary require discussion or the citation of conveyance: authorities. Moreover, it is extremely doubtful presumption. whether the deed was ever delivered. The testimony of appellant on this point is squarely contradicted by her husband. Both agree that it was prepared by an attorney in Oskaloosa, and left in his office. It was never recorded. The trial court found against appellant on this point. Whether it was delivered or not, it was executed without consideration, and was presumptively fraudulent, as against the creditors of the grantor. It is not claimed that the grantor has other property out of which to pay plaintiff's judgment. Dolan v. Newberry,200 Iowa 511; Kolb v. Mall, 187 Iowa 193. The decree of the trial court setting aside the conveyance is right.
III. Appellant asked that 40 acres of the tract which comprises *Page 497
200 acres be set off as a homestead. The evidence shows that she and her husband lived for many years on the farm in question; that, some two or three years prior to the 3. HOMESTEAD: trial, the dwelling house in which they resided abandonment: was destroyed by fire; and that they then moved evidence. to Oskaloosa, and purchased a residence in that city, in which they have since resided. Both have voted in state and city elections in Oskaloosa. Appellant testified that they moved to town and purchased a residence for the temporary purpose of educating a son, and that they always had the intention of returning to the farm. The farm has two sets of improvements, in one building of which an older son and his family have resided for five years. Nothing appears to have been done about rebuilding a residence to take the place of the one destroyed by fire. The defendant Alfred C. Evans appeared by counsel, but filed no pleadings in the case. He gave no testimony whatever touching the subject of homestead. What his intention was at the time the family moved to Oskaloosa is not disclosed by him, although he was examined at length as a witness upon the trial. He was the head of the family, and the selection of the residence rested, at least primarily, with him. Illinois Oldsmobile Co. v.Miller, 199 Iowa 894.
The evidence was clearly insufficient to establish a homestead in the premises. The burden was assumed by and rested upon appellant to negative the presumption that the homestead was abandoned when they moved to Oskaloosa, and secured and occupied other premises as their home. She failed to meet this burden.
Many other propositions are suggested and discussed by counsel in their brief and argument, but what we have already said disposes of the case, and we shall not separately consider the remaining points urged. The decree is affirmed. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. *Page 498 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435342/ | Plaintiff employed defendant as salesman, under contract dated April 23, 1924, to continue until January 1, 1925, unless canceled by either party upon five days' notice. By the contract the defendant agreed not to engage in similar business for the period of one year after the termination of the contract, without plaintiff's written consent. On June 3, 1924, defendant gave plaintiff written notice of resignation, effective June 7, 1924. Plaintiff thereupon brought this suit, to restrain defendant from engaging in competing business, and obtained a temporary writ of injunction. Motion to dissolve and motion to dismiss were sustained on May 21, 1925. On September 21, 1925, this appeal was taken.
Plaintiff questions whether the employment terminated at the time specified in defendant's notice, but it is immaterial. The contract expired by limitation January 1, 1925. The agreement not to engage in competition with plaintiff in any event expired one year from that date, or January 1, 1926. The only relief claimed is temporary and permanent injunction against engaging in competing business in violation of the contract. The period during which the defendant might, on plaintiff's contention, have been restrained, has long since expired. The case is moot.Richman v. Letts, 202 Iowa ___; Horrabin v. City of *Page 579 Iowa City, 160 Iowa 650. See cases cited in 4 Corpus Juris 574, 584, 1134.
The judgment is — Affirmed.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435343/ | This is a special proceeding brought by the attorney general at the request of the board of control under the provisions of section 3592 of the Code, 1939, to determine the legal settlement of an insane patient at the Cherokee Hospital. The petition asserts that such legal settlement is in Woodbury County and that a dispute has arisen between Woodbury County and its board of supervisors on the one hand and the board of control on the other, as to such settlement. The prayer was that the court determine the residence, domicile and legal settlement of the patient and that appropriate findings, orders and judgments be made in the premises, "plaintiff specifically reserving, however, its right to appeal to the Supreme Court of Iowa from any ruling, finding, order or judgment adverse to this plaintiff."
The answer of the County and its board of supervisors admitted certain allegations of the petition and denied others. It specifically denied that the legal settlement was in Woodbury County and asserted it to be in a foreign state or unknown. Trial was had, as in equity, and on May 14, 1941, the court entered a decree determining that, when the patient was committed to the hospital at Cherokee, she was a resident of Woodbury County, Iowa. The court accordingly adjudicated that the residence and the legal settlement of the patient were in Woodbury County, Iowa, and that all expenses for her care and treatment were properly charged to Woodbury County, Iowa. From such decree the County and its board of supervisors appeal.
Abstract of record was filed herein October 28, 1941, and appellants' argument was filed November 25, 1941. The cause is now pending for submission at the January, 1942, term of this court. In the meantime, the attorney general has filed a motion to dismiss the appeal and appellants have filed a resistance thereto, which have been submitted to the court for its decision.
The State contends that the last sentence of section 3594 of the Code, 1939, which provides, "Any decision by the court shall be final", precludes the possibility of an appeal herein, relying upon our decision in the case of State v. Webster County,209 Iowa 143, 227 N.W. 595. We are of the opinion that, pursuant *Page 358
to such decision, the motion to dismiss the appeal herein must be sustained.
In the Webster County case, supra, the same type of proceeding was brought to determine the legal settlement of an insane patient at the Cherokee Hospital. The district court found that the legal settlement had not been established in any of the counties that were made defendants, that the residence of the patient was unknown, and ordered that the patient be maintained at the expense of the State. The State appealed. A motion to dismiss was filed wherein the counties in that case made the same contention that the State now makes herein. In dismissing the appeal, we state (209 Iowa 150, 227 N.W. 598) as follows:
"The legislative mandate that the decision of the district court shall be final can have no other possible meaning than that such decision shall mark the termination of procedure. This is only another way of saying that the limit of jurisdiction conferred by the statute has been reached by decision in the district court. Nor should we lose sight of the fact that the statute under consideration is not one which deals with private rights. The procedure provided does not purport to deal with private rights. It purports to deal with some of the humane functions of the state as a sovereignty. Public burdens have been assumed by the state, and these are subject to distribution among the component parts of the state. The duties involved are purely public duties. The procedure provided is in the nature of an inquiry of fact, for the guidance of these public bodies in the performance of their humane duties. It bears some analogy to an ex-parte proceeding. Whatever duties or obligations are involved are all statutory. The methods of relief are all statutory. None of the questions presented are justiciable, in the sense in which such term is applied to ordinary litigation. We reach the conclusion that the word `final,' as used in the statute, is intended to terminate the inquiry, and thereby to declare the end of jurisdiction."
Appellants seek to distinguish the holding above quoted by contending that such interpretation should apply only to an attempted appeal from a decision against the State, referred *Page 359
to in section 3594 of the Code, 1939, and should not apply to an appeal from a decision in favor of the State and against the County, referred to in section 3593 of the Code, 1939. We are unwilling to make such a distinction.
The statutes before us for construction and interpretation are sections 3592, 3593 and 3594 of the Code, 1939. All three of these statutes refer to the same subject matter, namely, a controversy between a county or counties on the one hand and the state on the other relative to the expense incurred for the support of an insane person in a state hospital. The last sentence of section 3592 provides, "Said action shall be tried as in equity." Obviously, this sentence applies to all three sections. The sentence which was relied upon by this court in the Webster County case, supra, to wit, "Any decision by the court shall be final", is the concluding sentence of section 3594 and is the final sentence of these three sections. We think it should likewise apply to all three sections.
It will be noted that the subject matter of section 3592 of the Code, 1939, appeared in sections 2270 and 2282 of the Code, 1897, and its amendments, the subject matter of section 3593 of the present Code was treated in sections 2282 and 2308-a of the former Code and its amendments and the subject matter of section 3594 of the present Code was treated in section 2270 of the prior Code and its amendments. The subject matter of the three sections of the present Code was collected from various parts of the prior Code and its amendments and, by sections 325, 326 and 327 of H.F. 84, Acts of the 40th Ex. G.A., was brought together in one place for the purpose of treating a specific subject matter in its entirety. This being the legislative history, we think that the three sections should be interpreted and construed together. Accordingly, we think that the rule established in the Webster County case, supra, relative to an appeal from a decision against the State, referred to in section 3594, is also applicable to an appeal from a decision in favor of the State, referred to in section 3593.
The assignments of error asserted by the appellants herein challenge the court's findings of fact on the issue of legal settlement and certain issues of waiver and estoppel. There is no *Page 360
claim that the court exceeded its jurisdiction nor that it acted in excess of its powers. The procedure invoked is that ordinarily afforded a litigant in securing a trial de novo on appeal to this court in an equitable action. By virtue of the foregoing pronouncement of this court, such a trial de novo has been denied the State on the one hand or the County on the other in proceedings of this character by the express mandate of the legislature.
In a somewhat analogous situation in the case of In re Blatt,41 N. Mex. 269, 287, 67 P.2d 293, 304, 110 A.L.R. 656, 670, the court states:
"This being a special proceeding with no right of appeal provided (Los Alamos Ranch School v. State, 35 N.M. 122,290 P. 1019), the judgment therein is reviewable, if at all, only upon certiorari, as we have just held it to be."
Since no right of appeal exists, the motion is sustained and the appeal dismissed. — Appeal dismissed.
HALE, OLIVER, STIGER, WENNERSTRUM, SAGER, GARFIELD, and BLISS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435450/ | On June 25, 1940, Sylven Berg became a permanent guest in a hotel operated by the defendants in the town of Jewell. He both roomed and boarded at the hotel. While he was such a guest, and on December 23, 1940, he married, and he and his wife continued to board and room at the hotel. A few weeks prior to his marriage, Berg, upon hearing that a certain unfurnished room in the hotel was to be vacated on January 1, 1941, entered into an agreement with the defendants to rent the room as soon as it was available, at a rental of $20 a month, payable monthly. The room was vacated shortly after January 1, 1941, and Berg took possession of it on the morning of January 15, 1941, by moving into the room certain furniture and furnishings which he had acquired from the plaintiff on January 4, 1941, under a written lease or conditional sales contract. This instrument was not executed by both vendor and vendee as provided in section 10016, Code, 1939. Berg, only, executed and acknowledged its execution. He did both on January 4, 1941. It was filed for record in the office of the recorder of Hamilton county at 10 a.m. January 14, 1941, and indexed in the current book of chattel mortgages. This property, as described in the petition and the lease or conditional sales contract, and the prices thereof, were as follows:
1 Mahogany Vanity, Chest, Bed, Bench, 1 set of Lamps $124.50 1 Nite Stand 10.95 1 Spring 11.95 1 Slumberwell Matt. 19.75 2 27x54 Rugs 7.90 1 Green Studio 39.00 1 Chair to Match 21.00 1 Rocker Ottoman 34.75 1 Walnut Buffet, 1 T 40 1/2 Table, 6 Walnut Brown Leather Chairs 94.00 ------- $363.80
The room was not furnished in any manner when it was rented. It had neither toilet, laundry facilities, nor cooking equipment. The defendants had no furnished apartments. Berg and his wife occupied the room which they had rented and *Page 1260
furnished until August 16, 1941. During all of this time, up to July 10, 1941, they boarded at the defendants' hotel. On August 1, 1941, because of the nonpayment of the rent for the room and of money for their board, Berg and wife were dispossessed of the room. Defendants retained possession of the furniture and furnishings. The total combined charges against Berg and wife from June 25, 1940, to August 16, 1941, were $497.25. On this indebtedness Berg had paid $255, which the parties agreed should be credited upon the oldest charges. The balance of $242.25 was all for charges made after the renting of the room. Of this balance $140 was for room rent for seven months.
By the terms of the conditional sales contract the title and ownership of the property sold remained in the vendor until the purchase price was paid, and for specified breaches of the contract, or whenever the vendor might choose to do so, the vendor could repossess himself of the property. No part of the purchase price was ever paid. It was agreed that the defendants had no knowledge of either the existence of the contract or the filing of it for record until the writ of replevin was served on October 3, 1941.
In answer to plaintiff's petition for a writ of replevin and for damages, the defendants alleged the relationship of hotel-keeper and guest which existed between them and the Bergs, the furnishing of the board, lodging, etc. above noted, the nonpayment therefor, the bringing into the hotel of the property replevined, and its detention by virtue of the innkeeper's lien of defendants. They also alleged that neither of them had any proper notice of any conditional sale or lease, and that any such instrument was not executed as required by section 10016, Code, 1939.
The trial court rendered judgment dismissing the plaintiff's petition at his cost and ordering the replevined property to be restored to the defendants. In its judgment the court said:
"I infer from the record that defendant's hotel is an ordinary, standard small town hotel, engaged primarily if not entirely in furnishing accommodations for transients. I think without a doubt it is a `hotel' within the meaning of Section *Page 1261
10348; that the defendant is a `hotel keeper', that Sylven Berg and his wife were `guests', and that the property in question was `baggage', within the definitions of said section. This being so, defendant would be entitled to a hotel keeper's lien on all said furniture, under Section 10349, for the unpaid bill aforesaid.
"The furniture in question, however, had been purchased by Berg from the plaintiff on January 4th, 1941, under a conditional sales contract, or so-called lease, which was filed for record on January 14th, 1941, the contract appearing in evidence as Exhibit `B'. Unfortunately for plaintiff this contract was not signed by him as vendor as required by Section 10016. Under this section the vendor's signature is a prerequisite to its validity as against a creditor without notice; and in this case it appears that defendant had no notice or knowledge of Exhibit `B' or the lien claimed thereunder by plaintiff. It follows, as I think, that Exhibit `B' cannot affect the landlord's lien of the defendant."
The cause was submitted to the trial court on a stipulation of the facts. The only issues below and the only issues before this court are those of law.
I. Did the appellees have a hotelkeeper's lien on this property under the provisions of chapter 458, Code, 1939? If they had no such lien, the judgment appealed from should be reversed. It is our conclusion that the appellees had no such lien. The appellees, in their answer, based their right to hold and to subject the property to the payment of their claim solely upon their innkeeper's lien. It was on such lien, or rather the statutory hotelkeeper's lien, and lack of notice of any right of the appellant, that the trial court based its judgment. The same grounds, for affirmance of the judgment, are urged upon this court. No contention has at any time been made of any rights on the part of the appellees because of any landlord's lien.
Appellant assigns as error the decision of the trial court that the appellees had a hotelkeeper's lien upon this property. It is his contention that the relationship between the appellees and the Bergs, with respect to this unfurnished room, was that *Page 1262
of lessor and lessee, or landlord and tenant, and not that of hotelkeeper and guest.
Whatever lien as hotelkeepers which the appellees may have against this property is given them by chapter 458, of the Code of 1939. The following sections are in this chapter:
"10348 Definitions. For the purposes of this chapter:
"1. `Hotel' shall include inn, rooming house, and eating house, or any structure where rooms or board are furnished, whether to permanent or transient occupants.
"2. `Hotelkeeper' shall mean a person who owns or operates a hotel.
"3. `Guest' shall include boarder and patron, or any legal occupant of any hotel as herein defined.
"4. `Baggage' shall include all property which is in any hotel belonging to or under the control of any guest."
"10349 Nature of hotelkeeper's lien. A hotelkeeper shall have a lien upon the baggage of any guest, which may be in his hotel, for:
"1. The accommodations and keep of said guest.
"2. The money paid for or advanced to said guest.
"3. The extras and other things furnished said guest."
The subsequent sections cover matters pertaining to the enforcement of the lien.
It is clear that the appellees operated a hotel, and that Berg and wife during the time they ate their meals at the hotel, up to July 20, 1941, were in that respect guests or boarders. They were also guests of the hotel insofar as they occupied a room furnished by the hotel prior to their occupancy of the room which they rented and furnished. The only question for determination is their relation to the appellees because of their renting and furnishing the bare room in the hotel building, and their occupancy of that room from January 15, 1941, to August 16, 1941. It is our conclusion that such relationship was neither that of a guest, roomer, nor patron of the hotel, but was that of lessee or tenant of the appellees. In Cedar Rapids Investment Co. v. Commodore Hotel Co., 205 Iowa 736, 738, 218 N.W. 510, 511, 56 A.L.R. 1908, the question was whether the occupant was a "roomer" or "lodger" in a "rooming *Page 1263
house," or a housekeeper in an apartment. In holding that he was the latter, the court said:
"The defendant operated a hotel, but it also rented apartments. It may be that defendant rented rooms under such circumstances that it could be found to be operating a `rooming house.' The same building may undoubtedly be operated as an inn and rooming house, eating house, and apartment house, as a single institution, and under the same management. Such operation, however, would not make the relationship between the proprietor and all of the occupants of the house of the one class either guests, roomers, or tenants. The defendant's relationship with some of them might be that of innkeeper and guests, and with others, that of landlord and tenants. * * * The room in a rooming house is usually in the immediate possession (when the occupant is not there) and dependent on the care of the proprietor. The apartment may be furnished with maid service, but it is understood to be in exclusive occupancy and use of the tenant as a sitting room and a home and for household purposes, as well as for sleeping purposes."
In 28 Am. Jur., Innkeepers, 549, section 16, the author states:
"The chief distinction between a tenant and a lodger apparently rests in the character of the possession. Generally, where the occupant of premises under a contract with the owner or proprietor has exclusive possession and control of the premises, he being responsible for the care and condition thereof, he is to be regarded as a tenant."
In Mathews v. Livingston, 86 Conn. 263, 267, 85 A. 529, 531, Ann. Cas. 1914A, 195, where the facts were somewhat similar to those in the case before us, the court said:
"* * * when it appears that the hirer of rooms in a building devoted to a lodging-house secures the exclusive possession of certain rooms therein, over which the lodging-house keeper retains no control, the law, in the absence of provision of the contract or extraneous circumstance indicating a contrary intention, will presume that it was the intention of the parties to *Page 1264
create the relation of landlord and tenant, and not that of lodging-house keeper and lodger." (Citing authorities.)
In that case the court stated that the facts that the care of the rooms rented was taken by the hirer, who procured her own board and furniture, and that the price charged was at the rate made to a tenant rather than a lodger, and the receipt read "for rent," tended to show that the relation of tenant, and not of lodger, existed.
While the appellees operated a hotel, the relation existing between them and the Bergs was entirely different from that between them and the usual transient or roomer to whom they furnished all of the ordinary accommodations for his needs and comfort. It was different from the relation which existed prior to the time the Bergs occupied this room. A number of facts indicated that the Bergs were not guests of the appellees in their possession of this room. The appellees leased them this room, for which they were to pay "rent" by the month. It was a bare room — merely room space — which the Bergs rented. The appellees furnished merely the shelter. The Bergs furnished everything in the way of household goods to make it habitable as living quarters. While the record is silent as to who had the care of the room and its furnishings, it is a reasonable inference that the Bergs, who had possession of the furniture and were responsible for it, performed these duties. The room, as furnished, afforded something more than mere sleeping quarters. It was the home of the occupants. It was where they lived, rather than where they merely slept. It was a bedroom and living room combined. It had a buffet, dining table, and dining-room chairs, so that meals could be partaken of. It had a studio couch where a guest of their own might sleep. Their status with respect to the appellees was not different than if they had rented a room from the appellees in a building across the street from the hotel and furnished it and had taken their meals in the hotel. Simply because the vacant room which the Bergs rented and furnished and occupied was in a hotel did not make them guests of the hotel.
It is our conclusion that the Bergs did not occupy the room as guests of the appellees, and that the relation of guests or *Page 1265
roomers and hotelkeeper did not exist between them, and that the property replevined was not "baggage" as defined in Code section 10348 (4), and that the appellees had no hotelkeeper's lien thereon, and were not entitled to its possession under such a lien.
It is not necessary to pass upon other questions raised. The judgment is, therefore, reversed, and the cause is remanded to the district court for judgment not inconsistent herewith. — Reversed and remanded.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435456/ | Some years ago, there was an elevator catastrophe in the Hotel Randolph, at Des Moines, in which many persons were injured. Among them was the appellant Lois Hoskins, who brought an action, as plaintiff, in the district court of Polk County, against the Hotel Randolph Company, as defendant, to recover for her injuries. During those proceedings, the appellant Hotel Randolph Company, through written notice, vouched in the Otis Elevator Company, appellee, as the manufacturer of the elevator. Thereafter, the appellee defended against the claim of the appellant Lois Hoskins, for and in the *Page 933
name of the Hotel Randolph Company, appellant. There was a verdict for the appellant Lois Hoskins, and judgment was duly entered against the Hotel Randolph Company, appellant, then a defendant.
No appeal was taken therefrom, but after the entry thereof, the Hotel Randolph Company, appellant, moved the district court that the same be established against the Otis Elevator Company, appellee, because of the previous calling into court to defend. Furthermore, the motion asked that the Otis Elevator Company, appellee, be designated in the judgment aforesaid as primarily liable, on the theory of a principal, and that the Hotel Randolph Company, appellant, be named therein as surety, under Section 3779 of the 1897 Code. That motion was denied by the trial court, and Lois Hoskins and the Hotel Randolph Company appealed to this court. As the result of the appeal, the judgment of the district court was reversed. See Hoskins v. Hotel Randolph Co., 203 Iowa 1152. In the discussion therein, we said:
"The motions in effect are that the sentence of the law upon the ultimate facts shown by the record be formally pronounced, as among all the real parties to the record. Under analogous circumstances, the entry of formal judgment against one similarly concluded has been made in the original litigation. * * * We are of the opinion that, on the plaintiff's motion, judgment should have been entered on the verdict against the Otis Elevator Company. By Section 3779, Code of 1897, a judgment against principal and surety shall recite the order of their liability, and the term `surety' includes `all persons whose liability on the claim is posterior to that of another.' We are of the opinion that the case is within this section, and that the liability should be declared to be primarily that of the Otis Elevator Company."
Afterwards, upon application made by the Otis Elevator Company, appellee, to the Honorable Truman S. Stevens, he, on the 15th day of July, 1927, at his chambers, entered the following order:
"It is ordered that, upon the entry of the final judgment herein, reversing the order and judgment of the court below, all proceedings herein in this court and in the district court of the *Page 934
county of Polk and state of Iowa, including the issuance of any writ of execution out of either court, be, and hereby are, in all things stayed, pending the petition of the Otis Elevator Company for writ of certiorari to the United States Supreme Court. The said Otis Elevator Company shall file in this court a bond executed by a surety company in the sum of $38,000, to be approved by the undersigned, conditioned that, if the Otis Elevator Company fails to make application for such writ of certiorari within the period allotted by law therefor, or fails to obtain an order granting its application or fails to make its plea good in the Supreme Court of the United States, it shall answer for all damages and costs which either the plaintiff, Lois Hoskins, or the defendant, Hotel Randolph Company, may sustain by reason of the stay."
Said bond was signed by the American Employers' Insurance Company, and was duly approved by Justice Stevens.
Then, application for the writ of certiorari was made to the Supreme Court of the United States by the Otis Elevator Company, appellee, and denied by that court. Subsequently, the Hotel Randolph Company and Lois Hoskins, appellants, by separate motions filed in this court, asked for judgment against the American Employers' Insurance Company, the surety aforesaid, for the original adjudicated amount, including interest and costs, as specified in Hoskins v. Hotel Randolph Co., supra. Whereupon, the American Employers' Insurance Company filed a resistance to each motion, upon the theory that there is no authority in the Supreme Court to enter a summary judgment upon this particular kind of a bond, but that suit therefor must be brought in the district court.
I. Section 4 under Article V of our state Constitution provides:
"The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and exercise a supervisory control over all inferior judicial tribunals throughout the state."
Manifestly, the Supreme Court does not have original *Page 935
jurisdiction, and if, in any event, it has the power to enter judgment in the case at bar, it must be under its authority rising out of the appeal in Hoskins v. Hotel Randolph Co., supra.McGregor v. Gardner, 16 Iowa 538; Westbrook Skinner v. Wicks,36 Iowa 382; Simonson v. C., R.I. P.R. Co., 48 Iowa 19;Chicago, R.I. P.R. Co. v. Dey, 76 Iowa 278; Security Tr. Sav.Bank v. Gallup, 195 Iowa 243. Westbrook Skinner v. Wicks,
supra, declares: "This court is one of appellate jurisdiction."Security Tr. Sav. Bank v. Gallup, supra, aptly suggests: "Our jurisdiction is appellate, and not original."
II. The correction of errors is not asked, nor is complaint made about a judgment, order, or decree of the district court. But rather, an original judgment is sought here for the first time.
When the writ of certiorari was denied in the Supreme Court of the United States, procedendo duly issued in Hoskins v. HotelRandolph Co., supra, and, in accordance with the mandate of this court, judgment and decree was entered in the district court. Consequently, this court is not called upon to "exercise a supervisory control over" any inferior judicial tribunal "throughout the state," as authorized by Section 4, Article V, of the state Constitution. Moreover, it is not required that this court issue any "writs" or "process necessary to secure justice to parties," within the purview of that constitutional provision.
Hence, we are called upon to exercise original jurisdiction in the premises, unless it can be said that the remedy sought grows out of our appellate jurisdiction through implication, analogy, or inference.
III. Elucidation will result from a parenthetical consideration of the supersedeas statute at this place. Code of 1927, Section 12872, contains the following:
"The Supreme Court, if it affirms the judgment, shall also, if the appellee asks or moves therefor, render judgment against the appellant and his sureties on the appeal bond for the amount of the judgment, damages, and costs referred to therein in case such damages can be accurately known to the court without an issue and trial."
Clearly, however, the bond referred to in the enactment just quoted is different from the one involved in this controversy. *Page 936
Here the suretyship agreement is not conditional to a supersedeas, pending an appeal from the district to the Supreme Court, as contemplated by the aforesaid section of the statute. Legislation does not exist in this state authorizing a bond given as a condition to the procurement of a stay order pending application for a writ of certiorari in the Supreme Court of the United States.
IV. Evidently, then, statutory implication or analogy does not assist at this juncture.
If, at any time (a question which we do not decide), it can be said that, by "implication or analogy," Section 12872, supra, may be extended to embrace a bond in the nature of the one in litigation, even then that principle would not aid those who made the motions in the present proceeding, because the appellant had no judgment in the district court, and none was entered here. Resultantly, there was no affirmance, as contemplated by Section 12872, supra. We said in Berryhill v. Keilmeyer, 33 Iowa 20:
"Again, there being no money judgment rendered against appellants in the court below, the sections of the statute before set out [legislation similar to that under consideration] do not confer power on this court to render such judgment here. This court is an appellate tribunal, having no jurisdiction to render an original money judgment. The statute authorizes this court, when it affirms a judgment rendered in a court of original jurisdiction, to give force and effect to that judgment, by rendering judgment against the appellant and his sureties in the appeal bond; but there must have been a money judgment in the court below, appealed from, before we are authorized to render such a judgment on the appeal bond."
It is to be remembered that the trial court refused to enter a money judgment against the Otis Elevator Company, appellee, and upon the appeal, this court reversed the decision below. So there was no "judgment" in the Supreme Court upon that occasion. Therefore, the "implication," even though permissible in some instances (a point not decided by us), would have no application under the circumstances, due to the fact that the written law previously set out herein does not cover the situation, *Page 937
and the corresponding similarity cannot extend further than the original statutory basis for the "analogy."
V. Appellants, however, insist that there is inherent power to enter the judgment desired.
Inherency presupposes a primary object. Application of that thought to the instant case reveals that "inherent power" in the Supreme Court, under the constitutional provision before mentioned, can arise out of only appellate, as distinguished from original, jurisdiction. Wherefore, if this particular quality is not an element of appellate jurisdiction, there is no ground for its support.
VI. While discussing the general subject, we said, in Wehrmanv. Moore, 177 Iowa 542:
"The following express grants of power to the Supreme Court exist: It shall have power to issue all writs and process necessary to secure justice to parties, and to exercise a supervisory control over all inferior tribunals throughout the state. Constitution, Section 4, Article 5. It has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law. Code, 1897, Section 4100. It may issue all writs and processes necessary for the exercise and enforcement of its appellate jurisdiction. Code Section 4109. Aside from all this, the power to grant orders which will make the appellate jurisdiction effective and preserve the status, pending appeal, is inherent."
Protection is not here sought for the judgment of the district court during the pendency of an appeal, because there was none there. Instead of there being a previous, existing money judgment below before the appeal, the situation is presented where a reversal resulted in this court, due to the trial court's failure to enter such judgment, and, through procedendo, the cause was remanded, with directions to allow judgment contrary to what had formerly been done. The only judgment existing now against the Otis Elevator Company, appellee, is in the district court. Throughout this process, there was no judgment in the Supreme Court, and one was entered in the district court only after the reversal, as shown by the evidence now produced. For that purpose, the jurisdiction of this court was at all times effective, to the end that the district court was reversed, and the *Page 938
cause sent back to it for the recording of a proper judgment. Preservation of the status quo pending the appeal was not demanded by appellants, for they asked a reversal, rather than the affirmance of a judgment. Special writs and processes from this court are not demanded, but rather, it is asked that there be entered an original judgment upon the bond in question. Plainly, then, Wehrman v. Moore, supra, does not apply.
VII. To safeguard was the object of requiring a bond as a prerequisite for the adventure into a realm beyond the bounds of an appeal during the pendency of the application to the Supreme Court of the United States. Undoubtedly, that was the exercise of a power possessed by this tribunal and by the justice who utilized it, because the issuance of such stay order is a part of our appellate jurisdiction. Nevertheless, when the security was required as a basis for the stay, a sufficient guaranty was accomplished, and no other order, writ, or process was necessary, under the facts in this case. Our appellate jurisdiction ended at the point where it was not necessary that more be done to secure justice for the parties and further exercise a supervisory control over inferior judicial tribunals.
No attempt was made to exercise the appellate jurisdiction any further. The condition for the stay was not for a bond with a surety consenting to a summary judgment in this court (assuming, without deciding, that this requirement could be made), but only that there be a bond with a surety.
Necessarily, then, we cannot now grant the relief prayed, in view of the fact that, in so doing, exercise would be made of original, and not appellate, jurisdiction. Appropriate proceedings, therefore, must be brought for the proper redress in the court of original jurisdiction where the judgment is pending. Not having jurisdiction of the controversy, we do not pass upon the question as to what is meant by the term "damages and costs," as used in the bond.
The motion, accordingly, must be, and hereby is, overruled. —Motion overruled.
STEVENS, C.J., and FAVILLE, ALBERT, MORLING, and WAGNER, JJ., concur. *Page 939 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435458/ | [1] This is an appeal from a judgment rendered in an action to determine the paternity of a child born out of wedlock and involves, among other things, a determination as to the constitutionality of ch. 544-A1 of the 1935 Code of Iowa. The chapter in question is not found under Title 35 of the Code *Page 816
relating to criminal law and public offenses and it is, in fact, a special proceeding designed particularly and only for the purpose of establishing paternity and providing for the support of illegitimate children. It is not a criminal proceeding and is tried as an ordinary action. The chapter was enacted by the 41st G.A. The enactment repealed chapter 544 known as "Bastardy Proceedings" which had been the statutory remedy with slight change since the second territorial legislative assembly and appeared for the first time in the Revised Statutes of 1843 as chapter 52. The title to that act was "An Act to Provide for the Support of Illegitimate Children" and section 5 of the act provided for judgment to be entered against the person accused of being the father, in the event of such a finding by a jury, for the costs of prosecution and the expense for the maintenance of such child in such sum or sums as the court might order, and that the defendant should be required to give security to perform the order of the court. And the act further provided that:
"In case the reputed father shall refuse or neglect to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the proper county, there to remain until he shall comply with the order of the court, or until such court shall, on sufficient cause shown, direct him to be discharged."
In the present act, sections 12667-a35 to -a44, inclusive, we find provisions practically the same as those quoted above from the Revised Statutes of 1843, and these are the provisions with which we have to do in the disposal of this appeal. The act as originally appearing in the Revised Statutes of 1843 was held unconstitutional by this court in the case of Holmes v. State, 2 G. Greene (Iowa) 501, to which we will later refer. The mandate of the supreme court as contained in the Holmes decision was obeyed by the General Assembly and the penal provisions of the original act were omitted from the Code of 1851, § 848 et seq., and no subsequent legislature attempted to ignore that mandate until the present existing act was passed by the 41st G.A. in the year 1925. The act as appearing in the Code of 1851 continued in the Revision of 1860, § 1416 et seq., in the Code of 1873, § 4715 et seq., in the Code of 1897, § 5629 et seq., and in the Code of 1924, § 12658 et seq. And, as we have indicated, remained the settled statutory law of Iowa until its repeal by the 41st G.A. which enacted in its *Page 817
stead ch. 544-A1, and now appears under that title in the Code of 1935.
The defendant in this case was charged in the district court of Adams County with being the father of an illegitimate child born to one Pauline Bissell in April, 1937. The complaint was filed by Pauline Bissell as the mother of the illegitimate child and prayed that the defendant be required to answer the complaint; that she have judgment declaring the paternity of said child; and that she have judgment for the necessary expense incurred in connection with the birth of said child, and for judgment in the sum of forty dollars per month for the support of said child until it reaches the age of sixteen years, "and prays for such other orders by the court as the court may deem just and equitable in the premises." The defendant appellant by answer generally denied the allegations of the complaint. There was a trial to a jury resulting in a verdict finding the defendant "guilty of being the father of an illegitimate child * * * and liable for its support." Upon return of this verdict the court pronounced a judgment decreeing that the defendant Arley Devore is the father of the illegitimate child involved in the action. And the trial court went further than this and made the following additional finding and pronouncement:
"The Statute provides that in a case of this kind where the man is found to be the father of the child that he must furnish support for the child in a reasonable amount. Now, that altogether depends upon the things surrounding the child and things surrounding the defendant and his ability to pay. Mr. Stanley says he has no money or property at this time, so the only thing the Court can do is to order he furnish a bond for support. I am going to provide that he shall pay the costs of confinement of the mother of $93.00, then I am going to provide that he will pay at the rate of $10.00 per month from the birth of the child till the first of January, 1938, for which sum the judgment will be entered at this time. Then I am providing that he must pay $10.00 per month payable quarterly, that is four times a year, to the Clerk of this Court for the aid and benefit of the mother Pauline Bissell until this child reaches the age of sixteen years. Judgment entry will also provide that if this defendant is unable or unwilling to pay the confinement charges and the support money at this time that he must be confined in *Page 818
the jail of this County unless he gives a bond conditioned to pay those charges and the continuing charges during the period of time until the child reaches the age of sixteen years, then the order will be and mittimus will issue for the confinement of this boy in jail for one year's time. I want to say to him and his folks that may be here, the confinement in the jail, if he does go to jail, doesn't discharge the judgment, it will always be over him, then at the end of that period of time he could be charged with child desertion just as often as he didn't pay, he could be committed to the penitentiary for failure to support this child, so it wouldn't gain him anything or wouldn't gain his people anything by allowing him to go to jail here, a year in jail, because at the end of that time he could be charged with child desertion, and just as often as he didn't pay for the support of the child he could be committed all the time up to the time this child is sixteen years of age. But that will be the order. I have drawn a tentative form of judgment order, Mr. Turner, and this boy will be in the custody of the Sheriff then, until this bond is given conditioned to pay these amounts. You see that the Sheriff takes charge of him, mittimus will issue.
"I don't think the Court could imprison him, the cost of the action might be a judgment against him, but for these amounts he will have to go to jail, and then he will have to stay in jail for a year's time if he doesn't continue to meet these payments. If the bond is filed with sureties approved by the Clerk, I want you men to prepare the proper form of bond. It must be conditioned he will meet these payments promptly and the Clerk of the Court will see that proper sureties go on it."
At the close of the quoted pronouncement by the court, Attorney Fackler, who was special assistant to the county attorney in the trial of the case, made the following announcement:
"For the benefit of parties on both sides, if your Honor please, I want it understood unless these conditions are met the defendant can expect to spend his next sixteen years in either the penitentiary or county jail."
On the same day of the foregoing quoted finding and pronouncement of the court a formal order was prepared and filed in the office of the clerk of the trial court entering judgment *Page 819
against the defendant in the amount indicated in the quoted order and further ordering that the defendant file a bond with sureties conditioned that he would pay the judgment entered against him, and that upon his failure so to do that the clerk issue a mittimus directing the sheriff to confine the defendant in the county jail "for one year's time at hard labor, or until the judgment is paid and a bond filed and approved as above set forth."
Immediately following the proceedings had in the court room on December 3, 1937, as we have above quoted, a mittimus was issued and the defendant was committed to the county jail, and we find from the abstract that the defendant remained a prisoner in the county jail at least up until the filing of the abstract, March 28, 1938, and there is no showing that he has ever been released. From the above proceedings the defendant has appealed to this court and at the same time sued out a writ of certiorari. The appeal and the issues joined in the certiorari proceeding are submitted together and we will dispose of the case on the appeal only as such disposal will determine all of the questions raised in the certiorari proceedings.
[2] The appellant complains that the judgment directing his imprisonment for failure to pay, as indicated in the order, is erroneous and that the provisions of ch. 544-A1, providing for such punishment is in contravention of Art. I, section 19, of the Constitution of the State of Iowa, and therefore invalid.
The section of the Constitution referred to provides that no person shall be imprisoned for debt in any civil action, and we are in agreement with the appellant as to this contention. The case of Holmes v. State, supra, as well as many other cases in this and other jurisdictions determine the question raised by this assignment of error adversely to the claim of the appellee. As said in the Holmes case, the charge of bastardy in itself is in no sense of a criminal nature. The defendant has not violated any criminal or penal statute. He could not have been indicted or punished in any manner as a criminal offender. The statute simply provides a remedy summary in its character to determine the paternity of an illegitimate child and relieve the mother, and possibly the public, to a certain extent, from the cost of its maintenance and support. So, the judgment of the court ordering confinement of the defendant until he should comply with the conditions of the order is not the infliction of punishment for a *Page 820
criminal offense but at most a punishment for not complying with the order of the court.
The act provides that the court may require security for the payment of the judgment of support and that in default of such security the court may commit the defendant to jail and "after one year the person so committed may be discharged * * *." Code 1935, § 12667-a41. There is a further provision of the act attempting to extend to the court the power to adjudge the defendant guilty of contempt and to order him committed to jail therefor in the same manner as in the case of commitment for default in giving security.
In the instant case it will be noted from the record in the trial court, as we have heretofore quoted, that no citation or charge or hearing was had on any contempt charged and the defendant was not permitted an opportunity to purge himself of any alleged contempt. And while the order of the court indicated that he would be confined to the county jail if he did not pay the judgment and secure the future payments by January 1st following, yet, the mittimus issued on December 3d, the same day the order was entered and the defendant was committed to jail, so that the defendant had no opportunity to raise or earn money to pay the judgment and no opportunity, before the commitment, to furnish the security required by order of court.
The pronouncement in the Holmes case, supra, is still the law of this state and has been referred to in many subsequent cases. However, without such precedent we would be impelled to hold the criminal features of the present statutory provisions here in question unconstitutional.
[3] The appellant also contends that the act is in violation of Art. I., section 17, of the Constitution of Iowa in that it provides for punishment which is cruel and unusual. And with this contention we are also inclined to agree. Not only the statement of the court at the time of imposing the penalty but also the unwarranted and intimidating statement of the assistant county attorney when he said, "I want it understood unless these conditions are met the defendant can expect to spend his next sixteen years in either the penitentiary or county jail" indicates to what an unusual extent the punishment may be carried. And if the assistant county attorney is permitted to carry out his expressed threat then the defendant will be restrained of his liberty for sixteen years. Again the statute itself, section 12667-a41, provides *Page 821
that "after one year the person so committed may be discharged * * *." So that, it is apparently left up to the trial court to terminate the imprisonment. We cannot believe that the legislature had in mind any such construction of the language of this statute as has been made in the instant case. The appellee contends that the statutes under consideration are analogous to the statutes in relation to divorce actions where a statutory contempt is provided for, but the statute in question is not at all analogous to section 10482 of the Code which provides for contempt for a failure to comply with a divorce decree for the payment of alimony or the maintenance of children. That section provides for a contempt proceeding upon citation and a hearing, and if a showing is made that the order of the court has been willfully disobeyed by the defendant that he might be adjudged guilty of contempt and punished accordingly. In the present act there is no provision for a citation for contempt or a hearing and no provision that the failure to comply with the civil order of the court must be willful, and no provision permitting the defendant to purge himself of any contempt.
There are other questions raised by the appellant touching the validity of the act in question, but in view of our conclusion, as indicated in the preceding part of this opinion, it will be unnecessary for us to notice other alleged errors.
We are satisfied that the action brought in this case was a civil suit and that the defendant was exempt from punishment as in a criminal case, and we are constrained to hold that the judgment and order of the court imprisoning the defendant or finding him guilty of contempt was erroneous and such order or orders must be reversed. In so holding it is our finding and pronouncement that the sections of ch. 544-A1 providing for punishment by commitment to jail or by commitment to a custodian or by commitment for contempt are in contravention of the Constitution of Iowa and absolutely void.
The reversal above announced also disposes of the certiorari case No. 44452 with which the instant case was consolidated. — Reversed.
SAGER, C.J., and MITCHELL, HAMILTON, STIGER, RICHARDS, and DONEGAN, JJ., concur. *Page 822 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435460/ | The appellant and Cecil Mickle were jointly indicted for the murder of Thomas P. Griffin. They were separately tried. Mickle's conviction was affirmed by this court. State v. Mickle, 199 Iowa 704. While the evidence in the two cases was not in all respects identical, there was evidence in the instant case tending to show that the shooting of Griffin occurred under circumstances substantially as set out in the opinion in the Mickle case. In that case, however, the written confession of Mickle was in evidence, to the effect that he fired the fatal shot, and he testified on his own behalf in denial of the truthfulness of the statement in the confession. On the trial of this case, Mickle appeared as a witness for the State, and detailed the circumstances of the shooting substantially as he did in his own defense; and the admission in his written confession was used in impeachment of his testimony. With this explanation, it will not be necessary to here set out the circumstances of the crime, further than may be required for a consideration of the questions presented on the appeal.
It is the contention of the appellant (1) that the evidence is insufficient to sustain the verdict; (2) that there is no sufficient corroboration of the testimony of Mickle, an accomplice; and (3) that the court erred in admitting in evidence a certain lease signed by appellant in an assumed name.
I. It will be more convenient to consider the first two assignments of error together.
The testimony of Mickle was to the effect that he and appellant, at about 6:30 P.M., or a little later, on the evening of the shooting, November 15, 1923, left the residence of his mother *Page 646
1. HOMICIDE: on Third Street in the city of Des Moines, to go murder: into the Rock Island railroad yards, to see what evidence: merchandise they could find in the cars; that sufficiency. they each had an automatic gun, Mickle's being a .45, and appellant's of smaller caliber; that, when in the yards in the vicinity of Sixteenth Street, as a freight train was pulling out, he heard someone calling, wanting to know what they were doing down there; that they started to run, and he heard a shot; that he did not know who fired it; that appellant told him to come back, and he turned around, but did not go back; that, as he turned around, he saw firing that seemed to be north of him; that next he saw appellant coming from the north; that they went south along the track for a way; that he asked appellant if anyone was shot, and appellant said he thought so, and told him (Mickle) to keep still; that they went back to Mickle's place, and Mickle gave his gun to appellant, who said he would get rid of them; that Mickle went in the house a few minutes, and they then went to Betty Ruth's house on Ninth Street, and appellant made arrangements for them to sleep there, which they did; that, the next morning, they went back to Mickle's, and that appellant cleaned the guns there; that they remained there that day, and about 8 o'clock went to a restaurant, entering the back door and eating in the kitchen; and that that night they spent at Mickle's.
There was testimony from others that two men were seen in the vicinity of the shooting just before the shots were heard, and after the shooting, were seen running from the scene; but the witnesses were unable to identify them. It was then dark. There was abundant corroboration of Mickle's testimony as to the movements of himself and appellant from the time they reached Mickle's residence, after the shooting, until sometime later, and that, on the day following the shooting, Mickle was cleaning a small automatic pistol. Griffin was found dead immediately after the shooting. The testimony showed that two bullets fired from a .32-caliber automatic gun were found in his body and his clothing, and exploded shells of the same caliber were found on the ground near where the body lay. There was testimony from others than Mickle that, on the second night after the shooting, Mickle and appellant were talking about *Page 647
running, and that someone shot at them; that, on another occasion, when those present were talking of the Griffin murder, appellant said he had been in a tight place, and had to shoot his way out. Jack Bass testified that, on the Sunday following the shooting, appellant asked him to go with him (appellant) to the east side and get a car; that he said he had a sale for it, and told the witness to bring a gun; that Bass said he did not need a gun, and appellant said, "You never can tell, — I had to use one the other night, — I had to plug a copper;" that later, when they were in jail, appellant wrote him two notes, in one of which he said he could beat the case if Bass did not testify against him, and in the other note there were questions and answers that Bass was to memorize and repeat as a witness in appellant's behalf. There was testimony from another witness that, while appellant and Bass were in jail in different cells, they were talking to each other through holes in the wall; that appellant would ask Bass questions, and furnish the answers; that the questions related to what Bass was to say on appellant's trial; and that they would repeat them seven or eight times a day. Bass was a boy 15 years old.
We have not referred to all of the circumstances the evidence tended to establish, but to sufficient of the testimony to show that there was ample evidence, if it was believed by the jury, to sustain the verdict. Much of the argument for appellant is devoted to criticisms of the methods used by the police in obtaining the testimony of various witnesses, particularly Mickle and Bass. They were repeatedly interrogated while in jail. Mickle was represented by an attorney, to whom he testified he first told his story, and who was present at the time his confession was signed. The mother of the Bass boy appears to have been present at some of the interviews with her son, and told him she wanted him to tell the truth, but did not want him scared into telling a lie. Mickle, at one time, in the presence of the jury, refused to testify, and later, when a witness, testified that he had talked with his attorney in the meantime. No complaint is made that full opportunity was not given appellant to present the facts in this connection to the jury. The instructions are not before us, and there is no contention that the court did not properly instruct upon the subject of what should be *Page 648
taken into consideration in determining the credibility of the witnesses. While we would not be understood as expressing approval of all that it was claimed the officers did, they were seeking to discover the facts from persons who were unwilling at first to tell what they knew, but who on the trial testified freely to what they claimed to be the facts. The credibility of the witnesses and the reasonableness and consistency of their stories were for the jury to determine, under all the facts.State v. Madden, 170 Iowa 230; State v. Huckelberry, 195 Iowa 13.
Much is said in argument about the fact that witnesses for the State who testified to seeing two men near, and running away from, the scene of the killing said that they were about the same size, and described their clothing; while the evidence shows that appellant was shorter and lighter in weight than Mickle, and it is claimed that he was not dressed as the men were described. It was dark, the men observed were seen in the light from an engine headlight, and at one time they were running. The facts were fully before the jury; and this, like other discrepancies and contradictions in the testimony, was a matter for the jury's consideration and determination. We find nothing in the record that requires us to interfere with the result reached. State v.Carson, 185 Iowa 568; State v. Hessenius, 165 Iowa 415; State v.King, 198 Iowa 325.
There was sufficient corroboration of the accomplice Mickle. The statute, Section 13901, Code of 1924, does 2. CRIMINAL not require corroboration of the testimony of an LAW: accomplice at all points, but the corroboration evidence: is sufficient if it is as to material facts, and accomplices: tends to connect the defendant with the corrobo- commission of the offense. State v. Seitz, 194 ration. Iowa 1057; State v. Arhontis, 196 Iowa 223.
II. The appellant testified, on direct examination, at considerable length as to his previous life, his 3. CRIMINAL service in the army, and his occupations. On LAW: cross-examination he testified, without evidence: objection, that he had signed a lease of a materiality: building in another name than his own. The harmless State, over objections, was permitted to error. introduce the *Page 649
lease so signed. There was no prejudicial error in this; the fact had been admitted by the appellant.
The judgment is — Affirmed.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435347/ | The facts are not in dispute. The Federal Reserve Bank of Chicago sent by mail, direct to the Citizens' State Bank of Arthur, checks drawn by various parties on the latter bank. The checks were sent in two lots, and with each was a communication called a cash letter, which read:
"We enclose herewith for collection and remittance at par items listed below."
The Citizens' State Bank charged the various checks to the accounts of the several drawers, and issued its two drafts upon the Continental Commercial National Bank of Chicago, payable to the order of the Federal Reserve Bank, one for 1. BANKS AND the amount of the checks inclosed with each cash BANKING: letter. These drafts were received by the insolvency: Federal Reserve Bank, and, through the clearing preference: house, presented to the drawee. They were not drawee bank paid, and were returned marked: "Not sufficient as agent to funds." On the next business day, the drafts collect from were by messenger again presented. Payment was self. again refused, and the drafts marked: "Drawing bank reported closed." The Citizens' State Bank closed its doors on the morning of the day the drafts were for the second time presented to the drawee for payment, and before such presentation. The appellant the state superintendent of banking was subsequently appointed receiver, and the bank is insolvent and in process of liquidation.
The Citizens' State Bank was not a member of, or stockholder in, the Federal Reserve Bank, and had no deposit account in that bank, nor did the appellee have any deposit in the Citizens' State Bank. There was another bank in the town of Arthur. It had, at one time, been the practice of the Federal Reserve Bank to send checks on the Citizens' State Bank to such other bank for collection; but, at the request of the Citizens' State Bank, for some time immediately prior to these transactions, such checks had been sent directly to the latter. This arrangement was made by correspondence, and did not include any agreement as to the manner of remitting the proceeds of collections.
Upon this state of facts, and a further showing from which *Page 784
it is claimed it appears that the amount of the checks went to augment the assets in the Citizens' State Bank, and was traced into the possession of the receiver, the Federal Reserve Bank asked that its claim for the amount of such checks be established as a preferred claim against the assets in the hands of the receiver, on the theory that a trust was created.
The determination of the question of the existence of a trust depends primarily upon whether the relation of the Federal Reserve Bank to the Citizens' State Bank was that of principal and agent, with respect to the fund. If the relation was that of principal and agent, and the fund augmented the assets in the Citizens' State Bank, and has been traced into the hands of the receiver, it is not open to question that, under our prior decisions, a trust was established, and the preference was properly allowed. Nurse v. Satterlee, 81 Iowa 491; Brown v.Sheldon St. Bank, 139 Iowa 83; Messenger v. Carroll Tr. Sav.Bank, 193 Iowa 608; Murray v. North Liberty Sav. Bank, 196 Iowa 729.
I. The relation of the Federal Reserve Bank to the Citizens' State Bank, as the holder of checks drawn upon the latter, clearly involved no relation of trust. It was merely the holder of checks drawn by depositors in the latter bank upon funds so on deposit therein, and as to which the Citizens' State Bank was the debtor of the depositor. If the checks had been personally presented at the counter of the Citizens' State Bank by an agent of the Federal Reserve Bank, and the draft of the latter had been accepted therefor, or if such an agent and the drawee bank had cleared checks held by one against the other, by the draft of the one against whom the balance was found, no trust arising from a relation of principal and agent would have been created. In such case, no element of agency between the holder of the checks and the drawee bank is present, and the relation is only that of debtor and creditor. We so held in Danbury St. Bank v. Leach,201 Iowa 321, and Leach v. Iowa St. Sav. Bank, 202 Iowa 95.
The question is narrowed to the proposition whether the relation of principal and agent arose when the Federal Reserve Bank sent the checks by mail directly to the drawee bank. At this point, appellee stresses the language of the accompanying letter: that they were sent "for collection and remittance." But that, in our opinion, is far from conclusive. When the holder of *Page 785
a check presents it to the drawee and receives the amount called for by it, he may, in a sense, be said to collect it, but, more properly speaking, he receives payment of it. Certainly, such a transaction involves no question of agency between the parties immediately concerned, but it is one between two principals, one of whom is entitled to receive, and the other is bound by its obligation to its depositor to pay, the amount called for by the check. Each is acting for himself; not one for the other. Such was the holding in Danbury St. Bank v. Leach, supra.
The checks were, obviously, not sent for collection in the sense that the drawee bank should collect them from the drawers by presenting them to, and receiving payment from, the drawers. They were sent to the bank on which they were drawn, for payment by that bank. The drawee bank was under obligation to its depositors, the drawers of the checks, to pay out their funds upon their orders. The checks were such orders, and the Federal Reserve Bank, as the holder of the orders, was entitled to such payment on presentation, if the drawers' funds on deposit were sufficient for that purpose.
We are unable to see that the sending of the checks to the drawee bank by mail gave rise to any other or different relation than would their presentation over the counter. The drawee was under, and assumed, no obligation except such as it sustained to the drawers of the checks to pay them, if their deposits were sufficient. The drawee, to the extent its draft was payment, paid the checks, in pursuance of its obligation to its depositors to do so. It did not act, or assume to act, for or as the representative of the holder, but in discharge of its own obligation. The checks, it is true, were intrusted to the bank, but only for payment by it, not for the bank to do something with them for the holder, as to collect them from the drawers or some third person, but to do what it was itself bound to do in respect to them. The manner of payment, by remittance to the holder, was at the direction of the holder. But, when we consider the remittance as a mere manner of payment, in so doing the drawee was still simply fulfilling its own obligation, in the manner directed by the holder.
It is an elementary principle of the law of agency that an agent cannot, except with the full knowledge and consent of his principal, act for the principal in a transaction where he has, *Page 786
either in his own right or for a third party, an adverse interest. Where one acts in a transaction with another in performance of an obligation resting upon him, the knowledge and consent of the other that he is so acting would seem to have the effect rather to destroy all idea of agency than to bring the transactions within the exception. In such case, the one demands what he has a right to demand of the other, and the latter does what he is bound to do.
It is generally held, although there is authority to the contrary, that, as between the owner of a check and a bank to which it is given for collection, the drawee bank, particularly where there is another bank in the same city, cannot be considered a suitable agent, in contemplation of law, to enforce, on behalf of the owner, the demand against itself, and that the bank so sending the check to the drawee bank is guilty of negligence. Western Wheeled Scraper Co. v. Sadilek, 50 Neb. 105
(69 N.W. 765); Pickett v. Baird Inv. Co., 22 N.D. 343, (133 N.W. 1026); German Nat. Bank v. Burns, 12 Colo. 539 (21 P. 714);Anderson v. Rodgers, 53 Kan. 542 (36 P. 1067); WinchesterMilling Co. v. Bank of Winchester, 120 Tenn. 225 (111 S.W. 248, 18 L.R.A. [N.S.] 441); Minneapolis S. D. Co. v. MetropolitanBank, 76 Minn. 136 (78 N.W. 980); First Nat. Bank v. Bank ofWhittier, 221 Ill. 319 (77 N.E. 563); First Nat. Bank v.Citizens' Sav. Bank, 123 Mich. 336 (82 N.W. 66); Herron Co. v.Mawby, 5 Cal.App. 39 (89 P. 872); Jefferson County Sav. Bankv. Hendrix, 147 Ala. 670 (1 L.R.A. [N.S.] 246); 7 Corpus Juris 615. These cases are illuminative of the attitude of the courts toward the principle involved, that no agency is created by the sending or presentation of checks to the drawee for payment.
The cases where the question has arisen in the precise situation presented here are not in agreement. In People v.Merchants Mechanics' Bank, 78 N.Y. 269, speaking of a like situation, the court said:
"The learned counsel contends that the Troy bank was agent of the Chemical Bank to receive payment of the check. * * * But it is rather metaphysical to argue that any such agency was created. The check was sent by mail to the bank upon which it was drawn, for payment, not for collection. True, the holder entrusted the bank with the custody of the check until *Page 787
it should be paid. But that is done every time a check is presented over the counter for payment. The only difference in this case is that, instead of standing at the counter, or sending someone to stand there, to receive payment, the holder requested the bank to remit by mail."
In Lamro St. Bank v. Farmers' St. Bank, 34 S.D. 417
(148 N.W. 851), it was held that, since the checks were issued prior to the enactment of the Negotiable Instrument Law, they amounted to an assignment of the credit of the depositor to the extent of the checks, and the payees of the checks to that extent became creditors of the bank, and it was said:
"When the checks were indorsed to the appellant, it became a creditor of the respondent bank, to the extent of the face of the checks; and when appellant exchanged the checks for the drafts, it in no wise changed its relationship to the respondent. It was a creditor of the respondent bank before the issuance of the drafts, and it was a creditor after they had been issued."
It was said that the case fell within the rule of People v.Merchants Mechanics' Bank, supra.
In Missouri, the St. Louis Court of Appeals, in American Bankv. People's Bank (Mo. App.), 255 S.W. 943, said that it could not become reconciled to the proposition that, where the depositor of a bank by his check ordered the bank to pay to another all or a portion of his deposit, and the payee of the check applied to the bank for payment of the check, he thereby constituted the bank his agent, to collect from itself for him the amount of the check; or that thereby the bank became a trustee for the use and benefit of the payee. The Supreme Court of that state has, however, held, in Bank of Poplar Bluff v. Millspaugh, 313 Mo. 412 (281 S.W. 733), and Federal Reserve Bank v. Millspaugh, (Mo.), 282 S.W. 706, that the act of one bank in sending to another a check or draft drawn on the latter for "collection" was equivalent to designating the latter as the agent of the sender, to present the paper to itself, and collect and send the money; and that in such a situation a trust relation existed, from which, under proper circumstances, a right to a preference would arise.
The Supreme Court of Virginia has held, in Federal Reserve Bankv. Peters, 139 Va. 45 (123 S.E. 379), that, when a bank receives from its correspondent a check upon itself, it is an agent *Page 788
for its correspondent, to make presentation to itself. It cites, in support of the doctrine announced, only the case of Hilsingerv. Trickett, 86 Ohio St. 286, which merely holds that the sending of a check to the drawee bank where there is no other bank in the town is not negligence. The Peters case was followed in FederalReserve Bank v. Bohannan, 141 Va. 285 (127 S.E. 161), without discussion of the particular point.
The Supreme Court of Kansas, in Kesl v. Hanover St. Bank,109 Kan. 776 (204 P. 994), by a divided court, held that such a transaction had the same effect as though the drawee bank, in its capacity as agent of the holder of the check, had presented the check to itself, in its capacity as drawee, for payment, and received the actual money.
Distinguished as are the courts so holding, we are unable to subscribe to a doctrine that will create what, we think, is a wholly fictitious relation of principal and agent, out of the presentation of a check by the holder bank to the drawee bank, with directions to remit the amount called for, or to distinguish, — as would be necessary, should we so hold, in view of our former decisions, — between the presentation of the check over the counter of the drawee bank and its presentation by mail, with directions to remit.
The case of Messenger v. Carroll Tr. Sav. Bank, 193 Iowa 608, does not support appellee's contention at this point. In that case, a sight draft drawn on a depositor of the bank was sent to the bank for collection, and we held that the relation was that of principal and agent. The fact that the draft was paid to the bank by the check of its depositor did not bear upon the relations between the sender of the draft and the collecting bank, but was urged as showing that the funds in the bank were not augmented by the amount so collected.
It seems to us to be more in consonance with sound reasoning to say that the mere sending of checks to the drawee bank by mail, with direction to remit, instead of presenting them at the bank's counter for payment, does not create a relation of principal and agent, than to overlook the obvious inconsistency involved in holding that by so doing the drawee bank becomes the agent of the holder, to collect from itself. No such relation arose from the mere fact that one bank held checks upon the other, and no such relation would be created by their presentment for payment; *Page 789
nor do we think it would be created by the manner of their presentment, considered as a mere demand for payment, whether in person or by mail.
II. It is generally held that the mere purchase of a draft gives rise to no trust relation between the purchaser and the bank issuing the draft. American Exp. Co. v. Cosmopolitan Tr. Co., 239 Mass. 249 (132 N.E. 26); Beecher v.
2. BANKS AND Cosmopolitan Tr. Co., 239 Mass. 48 (131 N.E. BANKING: 338); Legniti v. Mechanics Metals Nat. Bank,
insolvency: 230 N.Y. 415 (130 N.E. 597); Spiroplos v.
purchase of Scandinavian-American Bank, 116 Wn. 491 (199 draft: Pac. 997); Chetopa St. Bank v. Farmers Merch.
nontrust St. Bank, 114 Kan. 463 (218 P. 1000); Harrison
relation. v. Wright, 100 Ind. 515; Jewett v. Yardley, 81 Fed. 920; Clark v. Toronto Bank, 72 Kan. 1 (82 P. 582, 2 L.R.A. [N.S.] 83); Danbury St. Bank v. Leach, supra.
We may say here that there is no claim that the officers of the Citizens' State Bank had knowledge, when the drafts were issued, that the bank was insolvent, and that for that reason a trust relation arose. See Whitcomb v. Carpenter, 134 Iowa 227.
III. But it is contended that the drafts issued to the Federal Reserve Bank constituted equitable assignments of a fund in the Continental Commercial National Bank, as against the drawer, or against the receiver, representing the drawer, 3. BILLS AND and that out of such fact a trust arose. We have NOTES: held to the contrary in Leach v. Mechanics
drafts and Sav. Bank, 202 Iowa 899, and it is checks: unnecessary to further discuss the question operation here. We conclude that no relation of trust was and effect established, and that the Federal Reserve Bank in re was not entitled to a preference. assignment.
A motion to dismiss the appeal submitted with the case is overruled.
The judgment and decree are — Reversed.
De GRAFF, C.J., and EVANS, J., concur.
MORLING, J., concurs in the result.
STEVENS, FAVILLE, and ALBERT, JJ., take no part. *Page 790 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435356/ | [1] It appears without conflict in the evidence that on the evening of September 16, 1931, the appellant David Hinkley invited Joseph Hall and Eugene Hart to accompany him in his father's automobile, an eight-cylinder Dodge sedan, from Eagle Grove to Fort Dodge. The course pursued was due west four miles and then south over a graveled highway. When the automobile reached a point in the highway about three and one-half miles from where they turned south, it ran off the road into a ditch, killing Eugene Hart. The automobile was thrown against the fence, top downward facing north and demolished. It was found about 300 feet south of a small bridge in the highway over a drainage ditch.
This action is based upon section 5026-b1 of the Code of 1931. Three charges of recklessness on the part of the operator of the automobile were submitted to the jury, in substance as follows: (a) That he was reckless in the operation of the automobile, in that he drove it at an excessive and dangerous rate of speed, considering the character of the highway and the surroundings; (b) that the said driver was reckless in that he was heedless to the obvious danger involved and was recklessly inattentive in the operation of the car; (c) that the said driver recklessly operated the same over the road, around the curve, and over the bridge near the scene of the accident without having the same under control.
At the conclusion of the evidence and after both parties had rested, appellant moved the court for a directed verdict in behalf of both appellants, jointly and severally, upon the ground that the evidence was insufficient to sustain a verdict against either of them.
Immediately before going into the ditch, the automobile crossed a small bridge in the highway over a drainage ditch. It was a wooden bridge about fifteen feet long with railings on either side. So far as the evidence shows, the bridge, which was located several feet west of the center of the highway, was in good condition for travel. The course of traffic as it approached the bridge was, by reason of the location thereof, to the west and, after crossing it, quite sharply to the east. The condition of the highway was apparently substantially that of graveled highways generally. Whether the presence of the bridge was clearly disclosed by the lights on the car is somewhat doubtful. The testimony tended to show that the speed of the car at the time of the accident was from forty-five to seventy miles per hour. Called as a witness before the coroner's jury, the driver of the automobile testified that the speed of the car was from fifty to *Page 917
fifty-five miles per hour. According to alleged admissions made by him it was seventy miles per hour. To one other witness, the driver stated that the speed was too fast. According to the testimony of one of the occupants of the automobile, it began swerving in the highway after crossing the bridge, causing the driver to lose control thereof. The driver was familiar with the highway generally but had not perhaps recently driven over it. The admissions alleged to have been made by him were not denied. A detailed statement of the evidence is unnecessary.
The driver of the car stated on the day of the funeral that deceased requested him to reduce the speed of the automobile. There was ample testimony from which the jury could find that the car was being driven some distance north of the bridge at a rate of speed so great as to attract the attention of several persons residing in the vicinity. It is conceded that the automobile was in the possession of and being driven by David Hinkley with the knowledge and consent of his father, the owner thereof. The motion for a directed verdict specifically challenged the sufficiency of the evidence to sustain a verdict against the owner of the automobile. It is urged at this point that admissions of the driver as to the speed of the car and the request of the deceased that same be reduced were in no sense binding upon the owner and that, with this testimony eliminated, there is nothing in the record to sustain the charge of reckless operation as against him. The court instructed the jury that the admissions of the driver could not be considered or given weight as against the owner of the automobile. The writer at this point has difficulty in giving practical application of the foregoing rule of evidence to the present action. The right of a guest of the operator to recover damages of the owner for injuries resulting from the reckless operation of an automobile by one operating the same with the consent of said owner is in no way challenged in this case. The case was tried on the theory that such liability exists.
Section 5026 of the Code of 1931 makes the owner liable in all cases where damages are done by any car driven by any person with his consent by reason of the negligence of the driver. It is manifest that the owner of the automobile in this case was not personally guilty of reckless operation thereof. He was not present, the deceased was not his guest, and he had nothing to do therewith. His liability, if any, is purely statutory. We held in Wilkinson v. Queal Lbr. Co., 208 Iowa 933, 226 N.W. 43, that negligence *Page 918
on the part of the driver must be established against the owner by the usual and ordinary rules which prevail in establishing the liability of a master for the negligence of his servant. This rule has been followed in other cases. Cooley v. Killingsworth,209 Iowa 646, 228 N.W. 880; Broderick v. Barry, 212 Iowa 672,237 N.W. 481, 75 A.L.R. 1530; Ege v. Born, 212 Iowa 1138,236 N.W. 75, and other cases.
Whether a particular speed of an automobile is dangerous depends upon the surroundings. Cerny v. Secor, 211 Iowa 1232,234 N.W. 193. In McQuillen v. Meyers, 213 Iowa 1366, 241 N.W. 442,445, we said:
"The jury were told that the rate of speed was not alone determinative of recklessness; that it was not sufficient for her to show that the driver was guilty of negligence, but that she must go further and show that the driver operated the automobile in a reckless manner. Mere violation of speed standard, or mere failure to have the car under control, while it might be prima facie evidence of negligence, would not of itself be recklessness."
Something more is shown in this case than mere speed. Seventy miles per hour in the nighttime upon a graveled highway would be more or less hazardous at the best. When considered in the light of the surroundings and circumstances shown in this case, we think the evidence quite sufficient to sustain the verdict against the driver of the automobile. The course of the highway, as it approached the bridge, necessitated an abrupt turn to the right and a more or less abrupt turn to the left after making the crossing, which is a circumstance to be considered. It is obvious from the testimony that the driver of the automobile lost control thereof because the speed at which he was driving was so great that he was unable to maintain control of the car and guide it across the bridge and make the necessary turn to the left. It may be that the speed of the car was less than seventy miles per hour, but when considered in the light of the facts and circumstances, was so great as to constitute reckless operation within the meaning of the statute. Proof of reckless operation in this case does not, therefore, rest alone upon the undenied admissions of the driver of the automobile. Other testimony, coupled with the surroundings and circumstances of the unfortunate accident, are quite sufficient at this point.
[2] II. The jury returned a verdict of $15,000. This verdict *Page 919
was reduced by the court, with the acquiescence of appellee, to $10,000. The deceased was seventeen years of age. He was a student in the Eagle Grove high school. A verdict of $15,000 was, we think, clearly excessive. There is nothing, however, in the record, except the amount, to indicate that it was the result of passion and prejudice on the part of the jury. The court is of the opinion that the verdict should be further reduced to $7,500.
[3] III. Complaint is also made of the failure of the court to submit an issue to the jury alleged to have been raised in the evidence. The court submitted all issues tendered by the pleading. The thought of counsel appears to be that the court should have submitted a mere issue of fact arising upon the trial of the case to the jury by some sort of instruction. The cases cited at this point do not sustain the proposition urged. In each of the cases cited, the issue was raised in some form by the pleading. Kaufman v. Borg 214 Iowa 293, 242 N.W. 104; Overhouser v. American Cereal Co., 128 Iowa 583, 105 N.W. 113; Babbage v. Second Baptist Church, 54 Iowa 172, 6 N.W. 253; Fernbach v. City of Waterloo, 76 Iowa 598, 41 N.W. 370; First Nat. Bank v. Cook,171 Iowa 41, 153 N.W. 169, 172; Faust v. Hosford, 119 Iowa 97,93 N.W. 58; Clark v. Monroe County Fair Ass'n., 203 Iowa 1107,212 N.W. 163; Wise v. Outtrim, 139 Iowa 194, 117 N.W. 264, 130 Am. St. Rep. 301. In any event, the assignment of this proposition is wholly inadequate under the rules of this court to invite review.
[4] IV. Complaint is made of paragraphs 9 and 10 of the court's charge to the jury. Instruction 9 related to the measure of recovery. The court in this instruction told the jury that the amount for which recovery could be had was the present worth of the deceased's estate. Instruction 10 related to and advised the jury what consideration and effect should be given to mortality tables offered in evidence. The court did not in either of the instructions tell the jury that the present worth of his estate should be estimated upon the basis of his expectancy at majority. The court should, no doubt, have so instructed, but this went only to the measure of recovery. Owing to the fact that deceased was a student in the high school, a difference between the present worth of his estate based upon his present age and his age at twenty-one would not be very great. As stated, the verdict was reduced $5,000, and we think, with the reduction now made, sufficiently met the requirements at this point.
If, therefore, appellee shall within thirty days from the date *Page 920
of the filing of this opinion remit all in excess of $7,500 and costs, the judgment will be affirmed; otherwise reversed. — Affirmed on condition.
KINDIG, C.J., and UTTERBACK, DONEGAN, ALBERT, and EVANS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435357/ | Appellant's assignments of error are based upon erroneous instructions and the failure to properly instruct the jury. The appellee contends that if it be conceded the trial court so erred, it was error without prejudice, since its motion to direct a verdict because the appellant had failed to establish either negligence on the part of appellee or her own freedom from contributory negligence should have been sustained. If there is merit in the appellee's contention, it is decisive of this appeal and makes it unnecessary to pass upon the merits of the errors assigned. Some review of the record is therefore first required.
[1] The appellant, aged sixty-four years, weighing at the time about 223 pounds, accompanied by her daughter and the latter's daughter, having paid the required admission, entered the Des Moines Theater, operated by the appellee, about five o'clock in the afternoon of June 8, 1941, to attend a moving-picture show. Patrons, after passing through the entrance traverse the lobby, foyer, and promenade, in succession, before taking their seats in the auditorium. The auditorium is approximately one hundred feet east and west, and probably somewhat farther north and south, from its rear to the screen at the north end. The main or ground floor of the auditorium *Page 932
consists of four sections of seats, the two center sections having forty rows of seats and the side sections having two or three rows less. There are five aisles extending from the rear north to the screen aisle, number 1 being along the west wall and the other aisles being numbered consecutively to the aisle along the east wall. The entire floor of the auditorium extends from the stage toward the rear, south, on a gradually rising gradient or incline, until it reaches the third row of seats from the rear wall of the auditorium. From the elevation of this line, the level of the aisles gradually slopes downward toward the aisle entrances and coincides with the floor level of the promenade. But the level of the floor under the last three rows of seats in the auditorium, and between those parts of the aisles which slope southward and down, continues on a rising incline to the rear wall. As a result of this method of construction the passageway to the seats in the third row from the rear is on the same level as the aisle and there is no step-up from the aisle into this passageway. But to enter the passageway to the seats in the second row from the back there is a step-up of approximately five inches, which continues as a ramp or upward-sloping way, for a short distance into the passageway. Entrance from the aisle into the last row at the rear of the auditorium is in like manner except that the step-up is somewhat higher.
Appellant and her daughter and granddaughter entered the auditorium at aisle 2, the second from the west wall. An usher, with a flashlight, seated them in the second row from the rear, in the section of seats on the left or west of this aisle. The granddaughter sat in the third seat from the aisle, the appellant in the second seat from the aisle, and the daughter in the seat on the aisle and just over the step-up. None of them had any difficulty in taking her seat, and the appellant testified that she did not notice the step-up. The usher did not call their attention to the step-up. Other patrons were passing along the aisle as they came in. Patrons were entering and leaving the auditorium throughout the entertainment. The picture was shown, as is customary, in partial darkness. After they had been in the theater for about three hours, the daughter went to the rest room. She almost fell in stepping to the aisle but retained her balance. About five or ten minutes later the appellant *Page 933
took hold of the granddaughter's hand with her left hand and stepped toward the aisle. Not seeing the step-down because of darkness, and not knowing of its presence, and thinking there was no change in level of the floor on which she was walking, she lost her balance when her foot went to the aisle floor, and she fell forward, striking her head on the metal seat across the aisle. She had never been in this theater before.
Her petition alleged negligence thus:
"The proximate cause of the plaintiff's injuries and damages was the negligence of the defendant in negligently permitting an uneven condition in its floor to exist, over which patrons would be likely to stumble and fall, with insufficient lighting and without warning of the danger."
The petition was in no way attacked. The answer was a general denial.
There was uncontradicted evidence that the riser of this step and about two inches in width of its tread had been repainted with white enamel paint about the end of April 1941. There was also evidence that it was repainted as it became soiled, darkened, or worn off, but no evidence of its being painted between April 1941 and June 8, 1941, the day of the injury. After taking her mother to the hospital, the daughter came back to the theater to get the name of the gentleman who had aided her mother after she fell, and to make some observations. She testified:
"The theater was dark and then the promenade was a little lighter and the main entrance was real light. When I left to go up to the rest room I didn't see the edge of the aisle and when you sit there awhile you forget about anything. When I went out of there, I staggered myself, I happened to catch myself. At that time I didn't notice any aisle lights but I know there is lights there. I did not observe any whitewashing or any white paint on the edge of the floor where it joins the aisle floor. When we were first ushered into the theater the usher did not state to Mrs. LaSell, nor me, nor any of the three of us to take note of the stepoff there. No one said anything to us upon our entrance into that theater with reference or regard to the stepoff at the point where we were ushered into our seats." *Page 934
On cross-examination she testified:
"I never seen any white stuff on there. I looked afterwards but I didn't see anything. If there was white stuff there at the time, it was awfully dirty, you couldn't see it. The light was so bad you couldn't see in there. I didn't look at the step when I stumbled but I did afterwards, that night. * * * I didn't examine it very thoroughly when I went back, but I did see there was a step there. * * * As to the carpet in front of the step, you couldn't see the carpet. I never seen any lights at that place. The lights were scattered up and down the aisle. I don't say there were no lights there at that time because I didn't see any. I didn't see the step there or I wouldn't have stumbled myself. * * * I never thought of looking down when I was leaving. I didn't think of an uneven floor, didn't think there was any necessity of it."
The appellant testified:
"When we went into the Des Moines Theater I was ushered to my seat by an usher there. He had a flashlight. It cast a light on the floor so you could see to get to the seat. * * * Within the place where the audience watches the show the interior was quite dark, just real dim lights. * * * I got up and started to walk out, and I reached back for Darlene's hand, and of course, looked at the floor, tried to look at it, but it was so dark you couldn't see the floor, so I just walked out, or started to walk out. I hadn't stepped any more than two steps, I think, until I fell just as soon as I come to the end of the seat and stepped down here, lost my balance and went headlong into the seats on the other side of the aisle. * * * At the time I got up and walked out I did not know there was any set-off where the floor goes into the aisle. When the usher ushered me into my seat he did not tell me there was a step-off there. Neither the usher or any one told me to remember that there was a step-off there when I came out. Neither the usher or any one told me that I should watch my step as I left the theater. I did not notice that condition there when I went into the seat. As I stepped out at the end of the seat not knowing that there was a step-down, I just walked right out like I was walking on a level floor, and *Page 935
of course, I lost my balance and then I went right on over. The edge of the step-off was not illuminated by a light. It was dark. I could not see where the edge of the floor left and the aisle began lower. The usher did not use a flashlight to help me get out of there. * * * I tried to see, but it was so dark that you couldn't see the floor there where I came out."
On cross-examination she testified:
"An usher took us at the door and seated us. I came into the seat I was sitting over the same path I went away on. I suppose I stepped up this step when I went into the seat but I didn't notice it. We had been out in the light when we came into the theater. * * * I noticed some lights on the posts down the side of the theater scattered along there. When we went in I noticed little dim lights down the aisle but they weren't light enough to light the aisle. The lights weren't showing on the edge of the step. There was no light on the end of the aisle [on the end seat of the aisle] * * * and if there was it was out, because there was no light there when I walked out. There was no light on that floor, it was dark there. I looked down to see where I was walking, couldn't see the floor at all. I walked out, I supposed it was all level, didn't know there was any jumpoff. I must have walked up the step when I came into the place but I didn't notice it, there were other people went in ahead of us. * * * I did not appreciate that the back portion of the theater was raised above the front portion, it was the first time I was ever in there. I didn't look around at the fixtures, and seats, and elevation, anything of that, I was looking at the picture. There was no light lighting the aisle under the seat in which Mrs. Wakefield [daughter] was sitting, if there was a light there it wasn't lit, because it was totally dark, it was plumb dark where I stepped off. The floor part was all dark. There was no white line to be seen. I supposed I was on level floor. There was no light so that you could see white if there was any white there. * * * Some of the lights on the edges of the seats show down onto the aisle and some of them are so far apart there are places in between they don't show. There is lots of space where they don't light." *Page 936
Mr. Wessels, a coal salesman and treasurer of the city of Rock Island, Illinois, was a witness for appellant. He testified:
"My wife and I were sitting in the Des Moines Theater, Sunday, June 8, 1941, * * * in the middle section in either the rear row or second from the rear row. I was on the seat next to the aisle. * * * Mrs. LaSell fell just immediately in front of me. * * * she struck her head immediately in front of the line where I was sitting. * * * An usher was a foot or two to my left in the doorway aisle at the time. [The witness carried and dragged Mrs. LaSell to a divan in the promenade.] Mrs. LaSell fell just opposite the aisle where she came out. * * * She fell in a row just opposite the row ahead of me in this other section at my left. * * * As to the condition of the interior of the theater at the time of her fall, it wasn't light, because that would interfere with the showing of the picture. I would say it was relatively dark. * * * it seems to me, beginning at a point about three or four rows from the rear, would think there was an elevation built up so that people sitting back here could see over the heads of the people sitting in front of them. Of course, that was graduated down there, wherever it started, the third or fourth row from the rear. It was almost level with the aisle, and of course, tapered up in this manner. I would say that curb in the rear must have been about six inches high, I am just guessing, it tapered from nothing up to about six inches in the back. The floor upon which the seats are placed is level with the aisle at about the fourth row from the back, but from that place, then to the back of the theater the floor where the seats are placed rises higher than the level of the aisle. There is about a six inch curb in the vicinity of where I and Mrs. LaSell were. They had little lights that seemed to be staggered up and down the aisle, one on this row, one there and one here. * * * They of course were not very bright. The lights were shielded from the top to deflect the lights to the floor so they don't interfere with anybody's vision. * * * They weren't bright. I would say a very small candlepower bulb in there. Perhaps don't provide much illumination, perhaps provides nothing, I don't know. Q. Did those lights illuminate the edge of the curb at the level of the floor where it was elevated *Page 937
above the aisle floor? A. Well perhaps the best way to answer that, after I came back from carrying Mrs. LaSell * * * I recall coming back and feeling with my foot so I would get it high enough to go into the aisle. I didn't feel the illumination was adequate, or perhaps the pupils of my eyes had [not] become dilated so I could see inside. I remember feeling for the curb, so I could get in and take my seat again. * * * People would come and go during the performance. * * * I would say they [aisle lights] appeared to be about the same as other theaters I have been in. * * * Either the row of seats in which Mrs. LaSell was had an aisle light or there was one on the row straight across, I don't recall which. * * * There were lights in the aisle, whether a light right there, I wouldn't say. * * * I was one row back of the place from which Mrs. LaSell emerged and across the aisle. * * * I felt with my foot, I didn't feel the visibility was so good I could just walk into my seat."
Witnesses for the appellee testified: A balcony, about ten feet above the floor covers the three back rows in the auditorium; the distance from the rear of one row of seats to the rear of another row is thirty-two inches; there are four clusters of lights in the ceiling of the promenade; there are eight posts in the aisles along the east-and-west walls, and on each post a 40-watt light in straw-colored glass; there were two similar lights on each side of aisle 3 in the middle of the back wall; there were six lights on each side of an aisle, each about six rows of seats apart — the twelve lights being alternated on each side of the aisle; these lights were 10-watt bulbs with clear glass, placed on the aisle side of an end seat, completely covered with a metal hood, which had a grilled or barred opening at the bottom; this hooded light was placed just below the arm of the seat about two feet above the aisle floor; there was such a fixture on the aisle seat of the second row in which the appellant was sitting, and also one in the seat across the aisle; these cast a light about a 40-inch arc, and would cover the white portion of the step; immediately under the end seat of this second row, just south of the step in question, and sunk in a recess of the concrete which forms the vertical plane of the riser of the step, was a frosted 15-watt bulb; across the face of the recess and *Page 938
protecting the globe was a metal plate with a slotted grill about four inches square, the louvers or slats of which were at a diagonal pitch, casting the rays of light downward; there was an exit light inside, above the aisle entrance; the light from the promenade would diffuse some light into the aisle about as far as the third row from the back, if the aisle entrances were open; these entrances were closed when the seats along an aisle were filled. The foregoing testimony was given by appellee's electrician and its assistant manager. The latter was in the lobby or foyer when the appellant was injured and first saw her on the davenport in the foyer. He testified that the aisle light on the end seat of the row in which appellant was seated was burning, as was also the light down in the concrete, and another aisle light lower down the aisle but not directly across, when he went back and checked the scene of the accident. He also testified that it requires semidarkness in order to properly see a motion picture, and that you cannot have a satisfactory picture with normal illumination. No usher or anyone else testified for the appellee, respecting the above matters, excepting a theater architect, who stated that:
"Where it is necessary to have the level of the floor on which the seats were placed above that which the aisle runs on, a step between the aisle and the floor on which the seats are placed is an approved method of construction."
On July 8, 1941, a picture of the step was taken. It was received in evidence without objection. It quite clearly shows the end seat, step, and surroundings. But the view which impressed itself on the film of the camera, and is reproduced on the photograph, is a much clearer and more definite view than was disclosed to the eyes of the appellant and her witnesses at the time of her fall. Their eyes saw it with the light which we described herein, while the eye of the camera saw it in the rays of all of the theater lights, and of the photographer's 2,500-watt floodlight, augmented by a flashlight bulb. This photograph, Exhibit No. 1, was certified to this court.
In rebuttal, a sixteen-year-old boy, who was sitting just a few seats ahead of appellant and across the aisle, testified in *Page 939
her behalf. He assisted in removing her from the aisle when she fell and then came back into the theater. He said:
"The picture Exhibit `1' is not correct in two respects. The illumination, of course, to take the photograph is a great deal greater than lighting they have when they show a moving picture, I believe that is necessary, and the other thing, I would say the white enamel on the step here I don't believe it showed up that plain. I didn't see any enamel, it could have been covered up or was dark, I couldn't see it, but I saw none there, as to the conditions of visibility when I made the observation I would say that this was rather poorly lighted, there was a light there in that vicinity and some light coming from the door into the lobby there, but it was insufficient as far as I was concerned if I were coming out of that seat. As I recall the dim light that lit the aisles did not light the top of the step. This picture Exhibit `1' does not show such lights and shadows as were there at the time I made the observation. This picture does not show the situation as I viewed it on my eye at the time; that shows more than I saw because there is more light on that. * * * I do not recall as to where any of the lights in the aisle set. I don't remember whether there were lights on the seat at that place. I do remember there were lights set in the concrete."
Appellee introduced a statement signed by this witness and procured, apparently, by an investigator of its insurance carrier, but it in no way impeaches the witness nor impairs his testimony.
I. We have set out the substance of the testimony which bears upon the issues of negligence and contributory negligence, and upon the pleaded allegations of faulty construction, insufficient lighting, and lack of warning. It is our judgment that appellee's motion to direct was rightly overruled and that all such issues and questions of fact were for the determination of the jury.
It is a well-recognized principle, needing no citation of authority in support thereof, that the appellee, in moving for a directed verdict, must be considered as admitting the truth of all evidence offered by appellant and every favorable inference fairly and reasonably deducible therefrom.
There is a conflict in the evidence as to the existence and *Page 940
the adequacy of the lighting, and as to the visibility of any painting on the step. The appellant and her daughter testified that it was so dark that neither the floor nor the step was seen by them. Two strangers to the appellant testified to facts supporting the testimony of appellant and her daughter respecting the absence of lighting and the nonvisibility of any painting, and also, without objection, gave their opinions as to the inadequacy of the lighting at the step and vicinity. One of them, sitting in an aisle seat across the aisle and one row back from the row in which appellant was sitting, which seat was reached by a similar step, returning to it after assisting the appellant, testified:
"I recall coming back and feeling with my foot so I would get it high enough to go into the aisle [meaning the passageway between the rows]. I didn't feel the illumination was adequate. * * * I remember feeling for the curb, so I could get in and take my seat again. * * * I felt with my foot, I didn't feel the visibility was so good I could just walk into my seat. * * * I couldn't say the aisle was lighted, as I recall it, but I don't believe the floor level on which the seats were situated was lighted, I don't think that is the case. I believe that is true."
Speaking of this step, appellee's witness, the theater architect, testified:
"It would not be a safe method of construction for the use of patrons if there were no lights to reveal the stepoff from the floor level of the seat to the floor level of the aisle. I think there should be lights and painted. I think you would want both of them, good practice would probably dictate that."
The hooded aisle-seat light and the light in the concrete recess were of small candle power. The globe of the latter was frosted. The recess was covered by a grill. It was located where dust would be continuously settling while the theater was in use. Its location, a short distance removed from the step, lower than its tread and on the same vertical surface of the concrete as the riser, prevented it from casting much, if any, light on the step. The question of reasonable lighting, under the circumstances, was certainly for the jury to determine. *Page 941
Of a similar situation, in Vale v. Indiana County Theaters Co., 3 Cir., Pa., 120 F.2d 495, 497, where there was a six-inch drop in the floor level of the rest room and the floor of the foyer, the court, in affirming judgments for plaintiffs (wife and husband), said:
"The defendant's negligence lay in its failure to light the step sufficiently so that it was readily observable to invited users. That such was the defendant's duty is indicated by the Haddon case [Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8] where it was expressly pointed out, 293 Pa. pages 336, 337,143 A. page 9, that `where such difference in elevation exists, the place should be sufficiently lighted artificially to enable users to see the step, unless lit by daylight.' * * * Certainly, the law furnishes no standard by which the court could have determined whether the light in the room was sufficient to reveal the step to one entering therein. The trial court properly declined to base a conclusion of law upon unknown factors and assumptions. * * * The question of the defendant's negligence was peculiarly for the jury."
With respect to the allegation that no warning was given the appellant, the record shows without dispute that the only warning, or attempt to give warning, was such as may have been given by the lighting and the painting and the use of a flashlight by the usher in directing the appellant and her companions to their seats. No verbal notice was given to them by the usher or by anyone else at any time. Whether warning was given and whether it was sufficient was for the jury to pass upon.
Respecting the allegation of negligence in maintaining the uneven floor, or step, there is no denial other than might be in the general denial of the answer. Appellee, by evidence and by argument, admits the existence of the step, and asserts that it was necessary and was an approved method of construction. The probative value of this testimony was greatly weakened, if not destroyed, by proof that, after appellant's injury, under the direction and advice of the theater-architect witness who gave this testimony for appellee, the steps were removed from these two rows of seats — the last two rows on the ground floor — and ramps were substituted for the steps. *Page 942
One ground of appellee's peremptory motion for a directed verdict is:
"4. The theatre is constructed and lighted in an approved manner, and in accordance with the customary method of lighting and constructing theatres of similar character and nature."
Appellee cited Rynn v. Fox-New England Theatres, 299 Mass. 258,12 N.E.2d 728 (directed verdict for defendant); Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534 (judgment for defendant on jury verdict); Suggs v. Saenger Theatres, 15 La. App. 142,130 So. 817 (nonsuit against plaintiff); Foran v. Buffalo Palace Corp., 237 N.Y. 599, 143 N.E. 758 (nonsuit against plaintiff); Peck v. Yale Amusement Co., Mo., 195 S.W. 1033 (directed verdict for defendant). Of these authorities, the appellee states:
"Appellee respectfully submits that the above cases hold as a matter of law that it was not per se faulty construction for appellee to place the seats of the auditorium or theatre at a higher level than the aisle between them as such arrangement has advantages which are obvious; that there is nothing uncommon in this form of construction * * *."
We call attention to other cases not cited by appellee, some of which give support to its contention that if the lighting or the elevated-seat construction of a moving-picture theater, defendant in a case of this kind, is in accordance with the customary method of lighting or constructing theaters of similar character and nature, such defendant is not negligent in either respect, as a matter of law, since such a prevailing practice, or approved method, in itself, furnishes the legal standard, test, or measure of the duty or care which such theater owner or operator owes to his invitee or patron for the latter's safety. Such other cases are Rosston v. Sullivan, 278 Mass. 31, 179 N.E. 173; Miller v. Poli's New England Theatres, 125 Conn. 610, 7 A.2d 845; Falk v. Stanley Fabian Corp., 115 N.J. Law 141, 143, 178 A. 740; Bergstresser v. Minnesota Amusement Co., 68 S.D. 579,5 N.W.2d 49, 143 A.L.R. 53; Falso v. Poli-New England Theatres,127 Conn. 367, 17 A.2d 5; Osborne v. Loew's Houston Co., Tex. Civ. App.,120 S.W.2d 947; Johnson v. *Page 943
Mathews-Moran Amusement Co., 164 Or. 636, 102 P.2d 703, 705; Gunn v. Saenger-Ehrlich Enterprises, La. App., 192 So. 744.
[2] One witness testified that the lighting in appellee's theater was like that which he had seen in other moving-picture theaters. There was also testimony that the use of a step to reach a row of seats was approved construction. All of this testimony was admitted without objection. We do not agree with the contention of appellee that because its lighting and construction were in accord with the customary or standard practice of theaters generally in these respects, these issues of alleged negligence were issues of law for the court rather than issues of fact for the jury. The standard of custom cannot be substituted for the legal standard of reasonable or ordinary care under the circumstances. Following an approved method is merely evidentiary and is not conclusive on the question of ordinary care. The standard of care is ordinary care under the circumstances, and not what others have done under like circumstances. Habitual practice of any number, for any period of time, cannot make a negligent act an act of due care and caution. In Walgreen Texas Co. v. Shivers, Tex. Civ. App.,131 S.W.2d 650, 657, the court quoted from French v. Southwestern Telegraph Telephone Co., Tex. Civ. App., 162 S.W. 406, 408, as follows:
"`The fact that appellee and other companies had habitually and customarily used the same does not, of itself, show that they had exercised ordinary care. * * * "Evidence of such use by other persons engaged in the same kind of business is admissible upon the issues of ordinary care, but the question * * * is whether, under the facts of the particular case, there has been an absence of ordinary care."'" [Lyon v. Bedgood, 54 Tex. Civ. App. 19,117 S.W. 897, 900.]
The rule was tersely stated by Justice Holmes in Texas Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 623,47 L. Ed. 905, 906, thus:
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." *Page 944
In Farris v. Interstate Circuit, 5 Cir., Tex., 116 F.2d 409, 411, it was not a question of proper lighting, but of proper construction in a moving-picture theater. The elevated portion of the floor on which row of seats and passageway in front of them was located was raised four to six inches higher than the platform in the row ahead. Plaintiff, in passing down to the aisle, caught her heel between the raised edge of the passageway and the leg of a seat in the row ahead. Judgment for defendant notwithstanding verdict for plaintiff was reversed because unqualified so-called experts were permitted to testify that the theater was constructed according to standard and approved design, and was reasonably safe. The court said:
"If it be conceded that the theatre was constructed after a universal custom and long-followed design, it does not necessarily follow that such care was taken as reasonable prudence would require." Citing Wabash Ry. Co. v. McDaniels,107 U.S. 454, 2 S. Ct. 932, 27 L. Ed. 605, opinion by Justice Harlan; Hellweg v. Chesapeake Potomac Tel. Co., 71 App. D.C. 346, 110 F.2d 546, and other cases.
The rule is aptly stated by the able court of the second circuit, speaking through Judge Learned Hand, in The T.J. Hooper, 60 F.2d 737, 739, 740. The owners of cargoes in towed barges sued the barge owners and tug owners for the loss of the cargoes through the negligence of the defendants in not having radio receiving sets through which they would have been warned of the approaching storm. The defendants contended that it was not the general practice to carry such sets. In affirming judgments for plaintiffs, the court said:
"Is it then a final answer that the business had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. Ketterer v. Armour Co. (C.C.A.) 247 F. 921, 931, L.R.A. 1918 D, 798; Spang Chalfant Co. v. Dimon, etc., Corp. (C.C.A.) 57 F.2d 965, 967. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available *Page 945
devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." Citing Shandrew v. Chicago, St., M. O.R. Co., 8 Cir., Minn., 142 F. 320, 324, 325, and other cases.
Speaking of evidence of customary conduct and standard methods, Wigmore on Evidence, 3d Ed., 488, 489, section 461, says:
"The proper method is to receive it, with an express caution that it is merely evidential and is not to serve as a legal standard."
In Smith v. Penn Federal Corp., 315 Pa. 20, 23, 172 A. 147,148, an action for damages against defendant as the operator of a moving-picture show, based on inadequate lighting in view of the construction of the theater at the place of plaintiff's fall, there was a judgment for defendant on the jury's verdict, which was affirmed. The court said:
"There is nothing in the complaint that defendant's witness was permitted to testify that the type of lighting in the theatre was `in accord with the best known practice in [his] profession in theatre lighting'; the value of his evidence as to the use of the shaded light at the end of the second last row of seats, referred to above, was for the jury."
In James v. Rhode Island Auditorium, 60 R.I. 405, 414,199 A. 293, 298, there was judgment on a verdict for plaintiff, and exceptions were overruled. The court said:
"The defendant, relying upon the testimony of its expert, argues that it discharged its full duty to its invitees when it constructed its rink like other hockey rinks in various cities. We do not agree with this contention. The practice in other places and the opinion of the expert in this case are circumstances entitled to proper consideration as evidence, but they are not conclusive." Cited in Thurman v. Ice Palace, 36 Cal.App.2d 364,97 P.2d 999. *Page 946
Respecting similar testimony, in McCartan v. Park Butte Theater Co., 103 Mont. 342, 62 P.2d 338, the court held that the issue as to lighting was for the jury.
The decisions of this court are fully in accord with the sound and general rule announced by the various courts above noted. We have held that what others in the same line of business have been accustomed to do in any particular is not in itself a standard of care, but is evidence only of that standard, which the jury may consider, under proper instructions, in determining whether the defendant exercised ordinary care. See Kirby v. Chicago, R.I.
P. Ry. Co., 150 Iowa 587, 590 et seq., 129 N.W. 963; Korab v. Chicago, R.I. P. Ry. Co., 165 Iowa 1, 11, 12, 146 N.W. 765, Ann. Cas. 1916E, 637; Middleton v. City of Cedar Falls, 173 Iowa 619,622 et seq., 153 N.W. 1040; Hall v. Chicago, R.I. P. Ry. Co., 140 Iowa 30, 32, 116 N.W. 113; Austin v. Chicago, R.I. P. Ry. Co., 93 Iowa 236, 61 N.W. 849.
[3] When any method of theater lighting or construction is sought to be established by expert-opinion testimony, the probative value of such testimony is for the jury. Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646.
[4] The appellant was rightfully upon the premises. Appellee had received its admission charge for her and she was in the theater as its invitee. It is a general rule, recognized without dissent, that an owner or occupant of buildings or premises, who directly or impliedly invites or induces others to enter therein, owes an active, affirmative duty to such persons to use reasonable, ordinary care to keep such premises in a reasonably safe condition, so as not to unreasonably or unnecessarily expose them to danger. Citation of authority sustaining this principle is not necessary, but we mention a few of our own decisions and other authorities. See Osborn v. Klaber Bros., 227 Iowa 105, 107,287 N.W. 252; Nelson v. Smeltzer, 221 Iowa 972, 975,269 N.W. 924; Noyes v. Des Moines Club, 178 Iowa 815, 821, 822,160 N.W. 215; Upp v. Darner, 150 Iowa 403, 407, 130 N.W. 409, 32 L.R.A., N.S., 743, Ann. Cas. 1912d 574; Graham v. Ochsner, 193 Iowa 1196,1200, 188 N.W. 838; Whitman v. Chicago G.W. Ry. Co.,171 Iowa 277, 283-287, 153 N.W. 1023; Wilsey v. Jewett Bros. Co.,122 Iowa 315, 319, 98 N.W. 114; Blakeley v. White Star Line,154 Mich. 635, *Page 947 118 N.W. 482, 19 L.R.A., N.S., 772, 129 Am. St. Rep. 496; 3 Cooley on Torts, 4th Ed., 186, section 440; 47 C.J. 826, section 237; 20 R.C.L. 55, 56, sections 51, 52; II Restatement of the Law, Torts, 932, 938, sections 342, 343.
[5] The general rule above stated applies in full force to the operators of places of public amusement of all kinds, operated for profit, including moving-picture theaters. As stated in Emery v. Midwest Amusement Realty Co. (operating a moving-picture show), 125 Neb. 54, 58, 248 N.W. 804, 805:
"So, too, the approved rule appears to be: `Ordinary or reasonable care on the part of a proprietor of a theater or moving-picture theater to keep the premises in a reasonably safe condition requires the exercise of reasonable care in lighting the aisles, stairways, etc.; and this is such lighting as an ordinarily prudent person would have furnished under the same or similar circumstances, that is to say, taking into consideration the purpose for which the theater was used and having due regard for the safety of patrons. * * *'" (Quotation from 62 C.J., Theaters and Shows, 869, section 56.)
Decisions sustaining the above-stated rule and holding the operators of moving-picture theaters to the duty of reasonable, ordinary care in properly lighting all parts of the theater to which the patrons are invited, and maintaining seats, aisles, stairways, and equipment in a reasonably safe and suitable condition for their patrons, and allowing recovery for the breach of this duty, are: Farris v. Interstate Circuit, supra, 5 Cir., Tex., 116 F.2d 409, 411 (seat on platform elevated four to six inches); Central Amusement Co. v. Van Nostran, 85 Ind. App. 476,152 N.E. 183, 184, 185, 154 N.E. 390 (step of three or four inches from aisle to seat); Magruder v. Columbia Amusement Co.,218 Ky. 761, 292 S.W. 341, 342 (floor occupied by seats four or five inches above aisle); Standard Theaters Corp. v. Hughes,185 Okla. 377, 91 P.2d 1058, 1062 (floor occupied by seats four inches above floor of adjoining aisle; defendant required to exercise "a high degree" of care to plaintiff to keep its premises in a safe condition); Branch v. Klatt, 165 Mich. 666,131 N.W. 107, 109 (an insufficiently lighted stairway); *Page 948
Oakley v. Richards, 275 Mo. 266, 276, 204 S.W. 505, 507 [error dismissed 248 U.S. 541, 39 S. Ct. 134, 63 L. Ed. 411] (floor occupied by seats four inches above aisle). The court said: "`It is a matter of common knowledge' that a four-inch depression in a floor `is sufficient to cause one to fall' who, in the absence of light and knowledge of its presence, steps into or upon the edge of it." Citing New Theater Co. v. Hartlove, 123 Md. 78, 86,90 A. 990 (three and one-half inch drop from seat floor); Dondero v. Tenant Motion Picture Co., 94 N.J. Law 483, 110 A. 911, 912
(steps not sufficiently lighted); Andre v. Mertens,88 N.J. Law 626, 96 A. 893-895 (balcony stairway not sufficiently lighted); Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145
(dimly lighted balcony stairs); Emery v. Midwest Amusement
Realty Co., supra, 125 Neb. 54, 248 N.W. 804, 805 (plaintiff stepped on an unlighted stairway in a balcony without knowing its close proximity to her); Coleman v. Washington Theatre Co.,294 Mich. 343, 293 N.W. 674 (dimly lighted balcony stairway); Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840, 843 (collapse of seat); Rutherford v. Academy of Music, 87 Pa. Super. 355 (dark corridor leading to gallery); Denham Theatre v. Beeler, 107 Colo. 116, 109 P.2d 643 (dimly lighted stairway and aisle in balcony); Maxfield v. Fox Kansas Theatre Co., 152 Kan. 716, 107 P.2d 685, 687, 688 (caught heel in hole in carpet in dimly lighted balcony); Vale v. Indiana County Theaters Co., supra, 3 Cir., Pa., 120 F.2d 495, 497 (six-inch drop in floor of dimly lighted foyer to floor in rest room); Castino v. Di Menzo, 124 N.J. Law 398, 11 A.2d 738, 739
(six-or seven-inch step in floor of dimly lighted box); Purdy v. Loew's St. Louis Realty Amusement Corp., 220 Mo. App. 854,294 S.W. 751, 753 (step-off in alley exit); Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336 (floor occupied seats raised above level of aisle four inches in the front and eight inches in the back — dimly lighted); Keenan v. E.M. Loew's, Inc., 302 Mass. 309, 19 N.E.2d 37 (defective seat); Tovey v. G.E. Lothrop Theatres Co., 288 Mass. 346, 193 N.E. 19 (tripped over defective carpet in balcony aisle); Bavosi v. Interstate Theatres Corp., 307 Mass. 124, 29 N.E.2d 688 (foot struck tarry substance in dimly lighted aisle in balcony, causing *Page 949
plaintiff to stumble over step); Bass v. Southern Enterprises, Inc., 32 Ga. App. 399, 123 S.E. 753 (seat elevated on a platform five or 6 inches above the aisle); Henry v. Publix Theaters Corp., Tex. Civ. App., 25 S.W.2d 695, 697 (plaintiff injured by person falling from balcony because of narrow aisle and low railing); Olsen v. John Hamrick's Tacoma Theatres, 9 Wn.2d 380,115 P.2d 718 (plaintiff, sixty-seven years old, in leaving seat on floor elevated eleven inches above aisle, spanned by a nine-inch step, painted white, and a two-inch step, dimly lighted, stumbled and fell); Griffen v. Cascade Theatres Corp.,10 Wn.2d 574, 117 P.2d 651 (patron stumbled over display sign protruding over rubber mat in lobby); Trame v. Orpheum Theatre Co., 60 Ohio App. 323, 21 N.E.2d 178, 180 (plaintiff, in going from her seat to the rest room, fell over a six-and one-half-inch rise in the floor of a dimly lighted corridor over that of the rest-room floor); Poppleston v. Pantages Minneapolis Theatre Co.,175 Minn. 153, 155, 220 N.W. 418 (plaintiff, in going from seat to rest room, fell on an insufficiently lighted stairway — the court saying: "A stairway, unless properly lighted, may be a source of danger, especially for persons who are not accustomed to use it."); McCartan v. Park Butte Theater Co., supra,103 Mont. 342, 62 P.2d 338 (plaintiff and her four children were being conducted to a balcony seat by an usher with a flashlight. A step eight inches long extended into the aisle, on which they walked from an aisle between the rows of seats, over which she stumbled. The defendant claimed that the theater was lighted in the manner approved and practiced by theaters generally.); Fox Tucson Theatres Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183, 185
(plaintiff, in going from a dimly lighted lounge up three steps to a lavatory, fell); Majestic Theater Co. v. Lutz, 210 Ky. 92,275 S.W. 16 (plaintiff slipped on highly polished marble steps leading from promenade to the first floor. Experts testified the steps were constructed according to approved methods and good building practices); Texas Consolidated Theatres v. Pittman, 5 Cir., Tex., 93 F.2d 21, 23 [certiorari dismissed 305 U.S. 3,59 S. Ct. 40, 83 L. Ed. 5] (plaintiff fell on defectively laid carpet on concrete stairs).
Respecting the duty of theater proprietors to safeguard *Page 950
their patrons, the authors of "The Law of Motion Pictures and the Theatre" (1917), 299, section 92, after stating that they are not insurers and are required as a general rule to exercise reasonable care and prudence in maintaining their premises in a safe condition, say:
"In many of the states the measure of this duty has been defined as analogous to that owed by the owner of a tenement house. The trend of the decisions, however, has of late years been away from this doctrine, and indications are not wanting that a high degree of care is imposed upon the proprietor, in keeping with the peculiar conditions that exist when great crowds gather for the purpose of recreation and amusement."
Speaking of tripping in darkened theaters, aisles, steps, and exits, the authors state at pages 306-308, section 95:
"The case of Branch v. Klatt [165 Mich. 666, 131 N.W. 107] has laid down the best rule of all the reported decisions with respect to the liability of the theatre proprietor when his theatre is darkened during a performance. It holds that the patron, in such case, has the right to rely on the premises being in safe condition, and that his duty is lighter than that of a pedestrian. That is an eminently sensible doctrine, and should be followed in all the states. Unfortunately it is not."
Marchetti on the "Law of the Stage, Screen and Radio" (1936), 302, chapter 5, section 145:
"He who solicits and invites the public to his resorts must have them in a reasonably safe condition, and not in a condition to risk the lives and limbs of his visitors."
This court has not heretofore passed upon the particular issues involved herein, with respect to moving-picture theaters, but has ruled upon the duty owing patrons at places of public entertainment, in Williams v. Mineral City Park Assn., 128 Iowa 32,102 N.W. 783, 1 L.R.A., N.S., 427, 111 Am. St. Rep. 184, 5 Ann. Cas. 924; Clark v. Monroe County Fair Assn., 203 Iowa 1107,1112, 212 N.W. 163, 165, and Coakley v. Dairy Cattle Congress,228 Iowa 1130, 1134, 293 N.W. 457, 459. The *Page 951
rule of care announced in the second case, and reannounced in the last case, is as follows:
"`While a proprietor or manager of a place of public amusementor entertainment is held to a stricter account for injuries topatrons than the owner of private premises generally, the rule is that he is not an insurer of the safety of patrons, but owes to them only what under the particular circumstances, is ordinary and reasonable care.'" (Italics ours.) The italicized portion states the rule in Nebraska. Emery v. Midwest Amusement Realty Co., supra, 125 Neb. 54, 248 N.W. 804.
[6] There has been a tendency by a few courts to depart from the sound general rule of reasonable or ordinary care and prudence owing to invitees and patrons, as it applies to moving-picture exhibitors, with respect to lighting their theater auditoriums, by lessening and lightening that duty. The reason urged therefor is that, since the pictures are best viewed in partial darkness, the exhibitors may fulfill their legal obligation for the safety of their patrons by keeping the lighting at the maximum, least interfering with the presentation of the pictures. In other words, the interests of the exhibitors, and the better enjoyment of the patrons are given preference over the safety of the latter with respect to their lives and limbs. This doctrine was first announced, as we believe, in Rosston v. Sullivan, supra, 278 Mass. 31, 35, 179 N.E. 173, 175. The Massachusetts court there said:
"While pictures were being shown the defendant violated no duty to the plaintiff if the condition of light was that ordinarily used in exhibiting moving pictures to enable the audience to get a reasonably clear view of the image thrown on the screen. * * * The defendant undoubtedly had a duty to turn on the house lights for the convenience of its patrons within a reasonable time after the show was over."
The courts take judicial notice that it is the common practice of moving-picture exhibitors to permit patrons to enter and leave the theater at all times during the show.
The rule of the Rosston case is adopted in Falk v. Stanley Fabian Corp., supra, 115 N.J. Law 141, 142, 178 A. 740, 741. *Page 952
The court, after commenting that there could be neither too much light nor too much darkness, said:
"Where is the line that marks ordinary care? Is it to be determined in each specific instance as an isolated fact without regard to standard equipment or prevailing practice? We think not. Grave difficulties would attend such a course, for it appears that the degree of illumination must be something of a compromise between two opposing objectives — successful showing of the picture, which calls for darkness, and the safety of those for whom the entertainment is provided, which calls for light. The misadventures that may befall persons moving about in a darkened room are legion, both in number and variety of incident."
The opinion ties in the rule with the other rule discussed herein, and advocated by the appellee, that the legal standard of care is the standard of customary practice, for it states:
"To hold otherwise would vary the result with each case and subject a moving picture operator to the danger of being found guilty of negligence no matter what plan of lighting he adopted."
The Connecticut court subscribed to this same doctrine in Miller v. Poli's New England Theatres, supra, 125 Conn. 610, 615,7 A.2d 845, 847, saying:
"Under the general rule of duty the issue is not to be decided solely upon the degree of visibility afforded an individual patron, as an isolated fact, without regard to the necessities arising from the nature of the entertainment, and as to these prevailing practice appears to afford a logical standard or test."
That court, in Falso v. Poli-New England Theatres, supra,127 Conn. 367, 370, 371, 372, 17 A.2d 5, 6, 7, found this test was not applicable in doing justice to the injured patron, for whom a favorable judgment was affirmed. Evidently the plaintiff offered no express testimony that the lighting was not in accord with the usual standard, since the opinion states:
"The defendant's principal contention as summarized in *Page 953
its brief is that there was `no competent evidence upon which to predicate a finding of non-compliance with or deviation from standard practice.'"
But instead of such evidence, the plaintiff, by testimony of tests made by an electric cell photometer showed that at the place of the fall the instrument registered "less than one tenth of a foot candle," that is, less than one tenth of the light given by a one-candle-power light located one foot therefrom — which was practically no light. The opinion also discloses that the stairway was covered by a wine-colored carpet which absorbed eighty per cent and reflected twenty per cent of the light falling upon it. The court therefore held:
"That test [prevailing practice] is not exclusive * * * Under such circumstances [the particular facts in the case] the test of that care which an ordinary reasonably prudent man would exercise under the circumstances is adequate without resort to that of the standard practice urged by the defendant."
The impracticability and the probative weakness of the standard-practice test of negligence is made manifest when you consider the great variety of theater construction; the diversity of lighting in capacity and shading; the variety, presence, and absence of balconies, pillars, etc. which cast shadows; the reflecting powers of the carpeting, tapestries, wall coloring; and numerous other factors. There is ordinarily no absolute test, where human conduct is a controlling factor, of either negligence or due care in a particular instance, unless it is by statute or statutory construction. In Gunn v. Saenger-Ehrlich Enterprises, supra, La. App., 192 So. 744, 745, plaintiff was injured in passing down a dimly lighted stairway to a lavatory. Judgment dismissing his petition was reversed. The quotation of the Louisiana Court of Appeals respecting proper lighting in the auditorium is a bald, though rather equivocal statement of this rule, to wit:
"It is evident that a motion picture theater, from the very nature of its business, while a picture is being projected, isnot required to provide lighting in its auditorium, balcony and *Page 954 galleries of sufficient illumination to allow its patrons to seetheir way to, locate and occupy seats as is the case in otherplaces of public amusement. The reason for this is obvious. To do so would necessarily interfere with the satisfactory projection of the picture on the screen, thus depriving patrons of the benefit of that for which they pay admission to see. There is, however, a duty upon the theater management to furnish as much light as may be consistent with its duty toward its mass patrons." (Italics ours.)
Supposing one of these patrons who has paid his money to see the show feels that he should go to the lavatory, or he desires to change his seat, or to answer a telephone or other call, or he wishes to leave the show, while the picture is being projected, or enters the theater during that time. Does he take the risk of injury from hazards existing because there is not "sufficient illumination to allow its patrons to see their way"? We cannot subscribe to any doctrine which would require him to assume all liability for such risk. The Oregon court, which favors the "standard practice" theory, nevertheless states, in Johnson v. Mathews-Moran Amusement Co., supra, 164 Or. 636, 642,102 P.2d 703, 705:
"We agree with respondent [plaintiff] that, while the theater is in darkness, the operator thereof must exercise reasonable care to see that patrons reach their seats in safety."
As said in Rutherford v. Academy of Music, supra, 87 Pa. Super. 355
:
"But it is a matter of common knowledge that it is the practice of the proprietors of theatres and moving picture establishments to protect patrons against this necessary darkness by equipping ushers with flash lights and requiring the ushers to assist the patrons when they enter such a place of entertainment when it is dark. The law required this defendant to do nothing unreasonable. Reasonable protection to plaintiff under all the circumstances is the measure of its responsibility."
It would have been no unreasonable burden for the appellee to have discontinued the use of the two rows of seats containing *Page 955
the dangerous steps. They constituted approximately one twentieth of the main floor seating capacity. Their discontinuance might have reduced the net income slightly, but it would have entirely eliminated the danger. As it was, after the appellant was injured, on the advice and under the direction of its expert witness, who would not say whether the danger was thereby lessened, the appellee replaced the steps with ramps. When one goes into a hazardous business — and it must be conceded that a darkened theater has its hazards — he must take that into consideration, and assume the burdens, and take the precautions which a reasonably and ordinarily prudent person would use under all of the circumstances. The fact that partial darkness is essential to the conduct of the business does not exempt him from this duty of reasonable care, nor does it lighten his burden thereunder. In fact, it requires him to increase his care and watchfulness, if necessary, to make it commensurate with and in proportion to the patent and to the reasonably expectable and foreseeable dangers which may injure his invitees and patrons. Such increased care, nevertheless, is nothing more than the legal standard of ordinary, or reasonable, care. This well-known rule needs no citation of authority.
In Olsen v. Edgerly, 106 Ind. App. 223, 231, 18 N.E.2d 937,940, the court, after mentioning the necessity of a darkened theater, said:
"This would not, however, excuse the proprietor or operator or owner from the duty to use ordinary and reasonable care to keep the premises in a reasonably safe condition for its patrons, and this would require that the aisles, stairways and other places used by the patrons be kept reasonably lighted taking into consideration the purpose for which the theatre was used andhaving due regard for the safety of the patrons." (Italics ours.)
The same thought is expressed by Judge Phillips, speaking for the Circuit Court of Appeals, in Whitham Construction Co. v. Remer, 10 Cir., Okla., 93 F.2d 736, 738, thus:
"The duty is that of exercising reasonable care, whether the business is comparatively safe or is extremely dangerous * * *. `Occupations, however important, which cannot be conducted *Page 956
without necessary danger to life, body, or limb, should not be prosecuted at all without all reasonable precautions against such dangers * * *.' [Mather v. Rillston, 156 U.S. 391, 399,15 S. Ct. 464, 467, 39 L. Ed. 464.]"
The issue of appellee's negligence was for the jury.
[7] Was the appellant contributorily negligent as a matter of law? We are satisfied that she was not. Appellee had invited her to its theater and had accepted her as a paying patron. As such invitee she had the right to assume that the theater was reasonably safe for her. The party of three was met by an usher who seated them scarcely six feet from the door. She had come from the daylight through the lighted lobby, foyer, and promenade. Her eyes could hardly have been accustomed to the darkness of the auditorium. The usher had a flashlight, but the granddaughter was first ushered into the seat passageway, followed by the appellant. Her attention was not called to the step by the usher. Appellant testified she passed over the step without noticing it, which might very well be. She could reasonably assume that appellee would not admit her to a darkened theater to which she was a stranger without warning her of any dangers underfoot. In the absence of knowledge or warning of danger, she was not required to be on the lookout for dangers not reasonably to be apprehended. Having been ushered to the seat, she was entitled to assume that means of access to and egress from it were not accompanied by any danger, and she was justified in assuming that she might safely walk to the aisle even though she could not see the floor where she was walking. As said in Branch v. Klatt, supra, 165 Mich. 666, 670, 131 N.W. 107, 109:
"One would have a right to presume that the defendant had discharged his duty of having the premises in a reasonably safe condition, as to lights and construction; and the ordinary person would naturally suppose that it would be safe to pass along a passageway provided for his exit, with reasonable assurance of its being in safe condition. The very fact of the premises being maintained in a darkened condition might give him added assurance of its being reasonably safe." *Page 957
In Bloomer v. Snellenburg, 221 Pa. 25, 27, 69 A. 1124, 21 L.R.A., N.S., 464, in speaking of a customer invited into a store, the court said:
"It is not reasonable to expect that the same degree of attention shall be bestowed upon the placing of the feet, under such circumstances, as would properly be required outside upon the public highway."
This excerpt is quoted with approval in Nelson v. F.W. Woolworth, Co., 211 Iowa 592, 605, 231 N.W. 665, 670.
Of such a traveler upon the public highways, we have said:
"A traveler is not bound to apprehend danger nor to be vigilant in discovering obstructions but may walk or drive in daytime or nighttime, relying upon the assumption that the municipality has performed its duty in maintaining the streets in a reasonably safe condition for public travel and has not by its neglect exposed him to danger." Frohs v. Dubuque, 169 Iowa 431, 436,150 N.W. 62, 64.
See, also, Spiker v. City of Ottumwa, 193 Iowa 844, 849,186 N.W. 465. In Riggs v. Pan-American Wall Paper Paint Co.,225 Iowa 1051, 1057, 283 N.W. 250, 252, the court said:
"* * * it is well settled that persons rightfully in a building may go about for the purpose for which they have been invited to enter, assuming that reasonable precautions have been taken for their safety, and are not bound to especially look for dangers the existence of which would imply negligence on the part of the owner."
For similar holding, see Drummy v. Minneapolis St. L.R. Co.,153 Iowa 479, 482, 133 N.W. 655; McNaughton v. Illinois Cent. Ry. Co., 136 Iowa 177, 181, 113 N.W. 844; Gardner v. Waterloo Cream Separator Co., 134 Iowa 6, 10, 111 N.W. 316; Nelson v. F.W. Woolworth Co., supra, 211 Iowa 592, 604, 605, 231 N.W. 665. We have also held that, "There is no rule by which failure to look out for or discover danger, when there is no reason to apprehend any, can rightfully be held contributory negligence, as a matter of law." Spiker v. City of Ottumwa, supra, 193 Iowa 844, 849,186 N.W. 465, 467. *Page 958
See, also, Downing v. Merchants Nat. Bank, 192 Iowa 1250, 1254,1255, 184 N.W. 722, 20 A.L.R. 1138. In Gibbons v. Balaban Katz Corp., 242 Ill. App. 524, one leaving a darkened theater unattended while the picture was being exhibited was held not guilty of contributory negligence as a matter of law. It may be said of appellant as was said of the plaintiff in Geninazza v. Leonori Auction Storage Co., Mo. Supp., 252 S.W. 417, 420:
"In the light of the facts, plaintiff was not required, as a matter of law, to stop and cautiously feel her way; that measure of care would be extraordinary. Her duty was to exercise ordinary care and that was a question of fact for the jury."
The issue of contributory negligence was also for the jury in the case before us.
[8] II. Appellant's first assignment of error complains of the court's failure to instruct the jury on the issue of appellee's failure to give any notice or warning to her of the step. No verbal warning was given of its existence. Such notice or warning would not have been necessary if the appellant knew the step was there or it was so obvious that any person of ordinary intelligence should have seen it. It could have been made obvious by adequate lighting. Appellant alleged that the lighting was not sufficient, and supported the allegation by substantial testimony. In the absence of lighting sufficient to make the step readily visible, the jury could find that the exercise of reasonable care required appellee to warn appellant by oral or other means. There is no evidence that this was done. This failure was a pleaded issue. It was for the jury to pass upon the issue and it should have been instructed as to the law upon it, whether an instruction was requested or not. Here such a requested instruction was submitted to the court. We have recently discussed the duty of the court to instruct, in such a situation as this, where the issues require it, whether specific request therefor be made or not. Without further citation of authorities, we call attention to Harrington v. Fortman, 233 Iowa 92,8 N.W.2d 713, 717 et seq., which also applies to Division III herein.
It is a well-recognized general rule that an owner of land or a building owes a duty to use reasonable care to give warning *Page 959
of any dangers that are hidden, or not reasonably observable in the exercise of ordinary care, to any invitee upon the premises. Gardner v. Waterloo Cream Separator Co., supra, 134 Iowa 6, 8-10,111 N.W. 316; Walker v. Roosevelt Hotel Co., 214 Iowa 1150, 1155,241 N.W. 484; Drummy v. Minneapolis St. L.R. Co., supra,153 Iowa 479, 482, 133 N.W. 655; Mann v. Des Moines Ry. Co., 232 Iowa 1049,7 N.W.2d 45, 54; Bowden v. S.H. Kress Co., 198 N.C. 559,152 S.E. 625, 626; Eastern Shore of Virginia Agr. Assn. v. LeCato, 151 Va. 614, 144 S.E. 713, 714; Calvert v. Springfield Elec. L. P. Co., 231 Ill. 290, 83 N.E. 184, 185, 14 L.R.A., N.S., 782, 12 Ann. Cas. 423; 3 Cooley on Torts, 4th Ed., section 440; II Restatement of the Law, Torts, 932, 938, sections 342, 343; 20 R.C.L. 55, section 51; Kelley v. Goldberg, 288 Mass. 79,192 N.E. 513, 514; Cole v. North Danville Coop. Creamery Assn.,103 Vt. 32, 151 A. 568, 570; Breit v. Haas, 126 Fla. 835,172 So. 697; Hudson v. Kansas City Baseball Club, 349 Mo. 1215,164 S.W.2d 318, 142 A.L.R. 858; 62 C.J., Theaters Shows, 870, section 57d; Correira v. Atlantic Amusement Co., 302 Mass. 81,18 N.E.2d 435; Coffer v. Bradshaw, 46 Ga. App. 143, 167 S.E. 119; Lemoine v. Springfield Hockey Assn., 307 Mass. 102, 29 N.E.2d 716, 718; Easler v. Downie Amusement Co., 125 Maine 334, 133 A. 905,53 A.L.R. 847, 850.
Moving-picture exhibitors are held to stricter account in the performance of this rule, because of their darkened theaters. See the following cases cited above: Bennetts v. Silver Bow Amusement Co.; Trame v. Orpheum Theatre Co.; Emery v. Midwest Amusement
Realty Co.; McCartan v. Park Butte Theater Co.; Central Amusement Co. v. Van Nostran; Dondero v. Tenant Motion Picture Co.; Haugh v. Harris Bros. Amusement Co. See, also, Gray v. Fox West Coast Service Corp., 93 Mont. 397, 18 P.2d 797; Bass v. Southern Enterprises, Inc., supra.
Failure to instruct the jury on this issue was prejudicial error.
[9] III. Appellant's second assignment of error asks reversal because of the refusal of the court to instruct, as requested, that the appellant was entitled to assume the appellee *Page 960
had exercised reasonable care to make its theater safe, and that it would have warned her of any obstruction underfoot, or other dangers. In the discussion of contributory negligence we have cited and quoted decisions of this court, and other authorities, that the appellant was entitled to rely on this assumption. Other decisions, cited above, involving motion-picture exhibitors, so holding are: Olsen v. John Hamrick's Tacoma Theatres; Texas Consolidated Theatres v. Pittman; Griffen v. Cascade Theatres Corp.; Tovey v. G.E. Lothrop Theatres Co.; Majestic Theater Co. v. Lutz; Branch v. Klatt; Magruder v. Columbia Amusement Co.; Standard Theaters Corp. v. Hughes; Purdy v. Loew's St. Louis Realty Amusement Corp.; Oakley v. Richards; Olsen v. Edgerly; Johnson v. Mathews-Moran Amusement Co.; Andre v. Mertens. See, also, Durning v. Hyman, 286 Pa. 376, 133 A. 568, 570,53 A.L.R. 851; Sharpless v. Pantages, 178 Cal. 122, 172 P. 384.
The failure to give this instruction was particularly prejudicial on the issue of contributory negligence, upon which the jury may have based its verdict against the appellant. The assignment is a meritorious one.
[10] IV. It appeared in the examination of appellee's theater architect that under his supervision the appellee's theater was remodeled somewhat, after the appellant's injury, by removing the step which caused the appellant's fall and other similar steps in the theater, and putting in their place ramps or gradually sloped inclines the lower ends of which were level and flush with the aisle floors. This expert witness had testified that the use of the steps was necessary and approved theater construction. The witness was cross-examined at length respecting this substitution and the reasons therefor, and the results effected. He admitted that both methods of construction were used. He testified that the ramp construction "is one practical way to do it. I don't think it is more dangerous to do it that way. Q. Now, as a matter of fact, isn't it less dangerous? A. I don't believe I can give you a yes or no on that, because there are some elements that enter into it. We considered the danger of coming from this seatdown to that change, lower level, stepping into that aisle, andwhether there wasn't a possibility of that. I am giving you the practical *Page 961
considerations that came into this argument. Anybody might form their opinion on it. * * * We debated over the safe method of construction. We don't know yet which way is the best. We did do it. * * * The only method we have is to hark back to experience and judgment and consultation with our clients."
This examination is an admission that the elevation of seats making it necessary to reach them by a "step construction" is dangerous. One of the factors entering into such construction of elevated seats, according to the witness is "how many seats are required. Maybe how much money they can afford to spend." Approximately nineteen twentieths of the seats in the ground floor of the auditorium were elevated so that all might see, but it was by a gradual incline of the floor from the stage to the rear of the auditorium, and without any steps.
The matter of the discontinuance of the steps and the substitution of ramps had a very important relation to and bearing upon the claim of appellee, and the testimony of the expert that the step construction was necessary and was approved construction. The jury was entitled to have the full benefit of the testimony relative to the remodeling, and all reasonable inferences deducible therefrom, with respect to this claim of the appellee and this testimony of the expert. Yet the court instructed the jury as follows:
"No. 9. You are further instructed that the evidence in this case shows that since the accident in question the Des Moines Theatre has been remodeled and the condition of the floor is not the same now as it was at the time of the accident in question, and in this connection you are instructed that if in the process of remodeling the theatre the condition of the floor has been changed, such change cannot be received and considered as evidence of an admission of a previous defect in the construction, or as evidence tending to establish prior negligence of the defendant. Negligence of the defendant, if any, must be established by the plaintiff as heretofore instructed on evidence showing the condition of the floor and its construction and maintenance at the time of the happening of the accident in this case, and the fact that the building has been remodeled *Page 962 and changes made in the floor should not be considered by you inarriving at your verdict in this case." (Italics ours.)
At the same time the court told the jury in Instruction No. 8 as follows:
"In determining whether the defendant did use reasonable and ordinary care you may consider the evidence offered showing approved plan of construction, and construction of theatres in accordance with the general use, consistent with the practical operation of the theatre."
The italicized portion of Instruction No. 9 is clearly erroneous and prejudicial. The testimony respecting the remodeling, both direct and cross-examination, was all in the record and went to the jury. It was competent, relevant, and material. The weight and probative value of this testimony and of all reasonable inferences therefrom were for the jury to consider, and the court invaded the province of the jury in instructing them to give no consideration to the testimony.
[11] We are not questioning the rule that generally subsequent repairs or changes in the place causing the injury cannot be shown to prove the alleged negligence.
[12] Both Instruction No. 9 and the excerpt from Instruction No. 8 stressed testimony favorable to the appellee but omitted to give equal, or any, prominence to pertinent testimony of the appellant bearing on the same matters and weakening the force of appellee's testimony. We condemned such practice emphatically in Whitman v. Chicago, Great Western Ry. Co., 171 Iowa 277, 284,285, 153 N.W. 1023, 1026, in the following language:
"While we deprecate the recital in instructions of facts and circumstances which have probative force upon the issues tendered, because they tend to give undue prominence to the facts recited, we are clearly of the opinion that, if the court undertakes to recite the facts disclosed by the evidence which have probative force upon the issues tendered, it must recite all the facts favorable to the party as well as those which militate against his claim. We most emphatically dissent from the practice of reciting facts which militate against one party, without a recitation of the facts favorable to his contention, and *Page 963
reciting facts which are favorable to the other party's contention, without a recitation of facts disclosed by the evidence which militate against his contention, and we think that is the condition that confronts us here."
The error assigned is reversible error.
We find no merit in appellee's contention that appellant's exceptions to instructions do not comply with the statute, or that the assignments of error violate our Rule 30.
For all of the reasons given the judgment is reversed and the cause is remanded for new trial. — Reversed and remanded.
MULRONEY, C.J., and OLIVER, GARFIELD, WENNERSTRUM, and MANTZ, JJ., concur.
SMITH and HALE, JJ., dissent.
MILLER, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435358/ | There is no substantial dispute in the record as to the material facts bearing on the question of contributory negligence. I am compelled to dissent from the conclusion of the majority on that question. I think there should have been a directed verdict for defendant and that all discussion of the alleged errors urged by appellant is immaterial and unnecessary.
Plaintiff herself testifies:
"When we went into the Des Moines Theater I was ushered to my seat by an usher there. He had a flashlight. It cast a light on the floor so you could see to get to the seat. * * * We didn't get in at the beginning of the picture. * * *
"Within the place where the audience watches the show the interior was quite dark, just real dim lights. * * *
"Well I got up and started to walk out, and I reached back for Darlene's hand, and of course, looked back at the floor, tried to look at it, but it was so dark you couldn't see the floor, so I just walked out, or started to walk out. I hadn't stepped any more than two steps, I think, until I fell just as soon as I come to the end of the seat and stepped down here, lost my balance and went headlong into the seats on the other side of the aisle. * * * *Page 964
"At the time I got up and walked out I did not know there was any set-off where the floor goes into the aisle. When the usher ushered me into my seat he did not tell me there was a step-off there. * * * I did not notice that condition there when I went into the seat. * * * Q. I ask you to state whether you were looking or not as you got up to leave. A. I tried to see, but it was so dark that you couldn't see the floor there where I came out."
There is more of her testimony but the foregoing is the substance of her direct examination bearing on this question.
On cross-examination she says:
"I came into the seat [where] I was sitting over the same path I went away on. I suppose I stepped up this step when I went into the seat but I didn't notice it."
Plaintiff was sixty-four years old at the time of the accident and weighed 223 1/2 pounds.
Under this record it seems to me plaintiff must be held guilty of contributory negligence as a matter of law. It is true she was an invitee, but there was in the situation a mutuality of interest and of duty. She was in the theater for her own and not for defendant's purposes. She had a right to assume defendant would not be negligent but there was a reciprocal obligation on her part to exercise care for her own safety. See 45 C.J. 956 et seq.; Hammer v. Liberty Baking Co., 220 Iowa 229, 233 et seq.,260 N.W. 720.
When plaintiff came in, defendant lighted her past the danger spot. Her granddaughter went up the step ahead of her. Plaintiff knew the darkened condition of the theater. She knew defendant's usher used a flashlight in escorting her to her seat. "It cast a light on the floor so you could see to get to the seat." The darkened condition of the theater was necessary to the very purpose of plaintiff's presence there. It was a warning to her of danger. Hammer v. Liberty Baking Co., supra; Central Publishing House v. Flury, 25 Ohio App. 214, 157 N.E. 794, 798 [aff.118 Ohio St. 154, 160 N.E. 679]; Kurre v. Graham Ship by Truck Co.,136 Kan. 365, 15 P.2d 463, 466. It is incredible that she could have stepped up out of the aisle to her seat without knowing of the difference in floor level. If she *Page 965
paid no attention to what she was doing when she went in, she was indeed negligent. She knew she would have to retrace her steps to get out. If there was danger she knew of it then, or in the exercise of due care should have known of it. A person is conclusively presumed to know what he would have known if he had made ordinary use of his senses. Seabridge v. Poli, 98 Conn. 297,119 A. 214; De Honey v. Harding, 8 Cir., N.D., 300 F. 696. See Buchholtz v. Incorporated Town of Radcliffe, 129 Iowa 27,105 N.W. 336.
Plaintiff sat throughout the performance only one seat removed from the aisle, which was at the lower level. A part of that time her daughter sat in the seat at her right and next to the aisle, and for a time that seat was vacant. Some five or ten minutes before the accident the daughter left her seat beside plaintiff, and in stepping down into the aisle staggered on this step but happened to "catch" herself. This happened right beside plaintiff.
When plaintiff started to leave she knew the theater was still dark and that there was no usher with a flashlight to light her out as she had been lighted in. She could not, as a reasonably prudent person, close all her senses to the situation into which she had voluntarily (even though by defendant's invitation) placed herself. She was bound to exercise due care, even though she was an invitee. Kurre v. Graham Ship by Truck Co., supra. When she "tried to look" at the floor, as she testifies, and found that "it was so dark you couldn't see the floor," but nevertheless "just walked out or started to walk out," she did not exercise the due care required by law.
Either she failed to use her intelligence when she entered or she ignored or forgot when she went out what she learned as she came in. In either case she must be held negligent, unless her attention, at the moment of departure, was diverted by some unexpected fact or circumstance of which there is no showing in the record. Sanderson v. Chicago, M. St. P. Ry. Co., 167 Iowa 90,149 N.W. 188.
Forgetfulness is not such a diverting circumstance. Davis v. City of Dubuque, 209 Iowa 1324, 1328, 1329, 230 N.W. 421. In fact, forgetfulness of danger is itself usually negligence. *Page 966
Miller v. White Bronze Monument Co., 141 Iowa 701, 711,118 N.W. 518, 18 Ann. Cas. 957; 38 Am. Jur. 863, section 187; Reynolds v. Los Angeles G. E. Co., 162 Cal. 327, 122 P. 962, 39 L.R.A., N.S., 896, Ann. Cas. 1913d 34; Rice v. Goodspeed R.E. Co.,254 Mich. 49, 235 N.W. 814.
We have said: "* * * generally speaking, the very essence of negligence is inadvertence." Cahill v. Illinois C.R. Co.,148 Iowa 241, 248, 125 N.W. 331, 333, 28 L.R.A., N.S., 1121.
If defendant could, under the record, be found guilty of negligence which was the proximate cause of the accident (a proposition I do not pass on), plaintiff was clearly guilty of contributory negligence. See St. Louis, I.M. S. Ry. Co. v. Forbes, 63 Ark. 427, 39 S.W. 63; Ware v. Evangelical Baptist B. M. Soc., 181 Mass. 285, 63 N.E. 885; Watkins v. Piggly Wiggly Bird Co., 8 Cir., Mo., 31 F.2d 889.
The burden was on plaintiff to show freedom from contributory negligence. If her conduct contributed in any manner and to any degree to her injury she is not entitled to recover. Riess v. Long, 229 Iowa 378, 294 N.W. 592. The same condition of darkness that imposed an extra degree of care upon defendant placed a similar burden upon plaintiff.
Citations from other jurisdictions, and even our own decisions, are inconclusive as precedents. Each case must stand on its own facts. It seems clear to me that a verdict for plaintiff under this record would have had to be set aside. The cases cited in the majority opinion do not fit the facts revealed by this record.
I express no opinion as to any of the other questions discussed by the majority opinion. For the reasons herein stated, I think the case should be affirmed.
HALE, J., joins in this dissent. *Page 967 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435359/ | The initial step in the proceedings to revoke the license of appellant to practice medicine was a resolution adopted by the Wright County Medical Society on June 26, 1924. This resolution was later filed in the office of the secretary of the board of medical examiners, and, on the first day of August, notice of the charges therein contained was served upon the wife of appellant at his usual place of residence in Wright County. At this time appellant was serving a sentence pronounced against him by the United States district court in and for the northern district of Iowa, in the Federal prison at Fort Leavenworth, for the violation of what is known as the Harrison Law. On September 11th, counsel appeared for him before the board, and filed a motion, supported by affidavit, for a continuance. The affidavit set up that the defendant was absent *Page 581
from the state, and that, by reason of his incarceration in the Federal prison, counsel was unable to make proper preparation for the hearing on the charges filed. The motion was overruled, and a trial had upon the charges contained in the resolution above referred to, and other charges filed by order of the board of medical examiners. Evidence was offered before the board to sustain the charges aforesaid, but no evidence was introduced in appellant's behalf. The board found that the charges were sustained, and permanently revoked appellant's license to practice medicine. Thereupon, an appeal was taken to the district court.
No evidence was introduced in the district court, and the proceedings therein were upon three separate motions filed by appellant. All of the motions were overruled, and the finding and order of the board of medical examiners revoking the certificate was sustained. We will dispose of the several motions in the order in which they were filed in the court below.
I. The first motion was to set aside and cancel the finding and order of the board of medical examiners and to dismiss the proceedings certified by the board to the district court upon two grounds: (a) That the board of medical examiners acted without jurisdiction; and (b) that the law relating to the revocation of certificate to practice medicine was not complied with by the board. Want of jurisdiction of the board is asserted on the following grounds: (1) That no charges were legally preferred or filed against appellant; (2) that no notice, with copy of the purported charges, was served upon appellant, as required by law; (3) that the proceedings and order of the board of medical examiners were arbitrary and without authority; (4) that appellant was deprived of a fair trial, and also of his constitutional right of due process, by the board of medical examiners.
Section 2578 of the 1913 Supplement to the Code, so far as at present material, is as follows:
"The board of medical examiners * * * shall revoke any certificate issued by it to any physician who is not of good moral character * * * or who is guilty of gross unprofessional conduct, or for incompetency, or for habitual intoxication or drug habit; * * *."
The words "gross unprofessional conduct," so far as the *Page 582
charges involved in this proceeding are concerned, are defined as the "conviction of any offense involving moral turpitude."
The statute makes no specific provision as to the form of the charges to be filed before the board, but, as already appears, it does specify the precise grounds upon which a certificate may be revoked. The procedure upon the filing of 1. PHYSICIANS charges is prescribed by Section 2578-a of the AND 1913 Supplement. This statute requires that a SURGEONS: notice containing a statement of the charges and license: the date and place set for hearing be served revocation: personally upon the accused at least twenty days charges. before the time fixed for such hearing. The notice served upon appellant stated that he was accused of gross moral and unprofessional conduct as a physician, and a copy of the resolutions of the Wright County Medical Society was attached thereto. The statute provides that the notice be served in the same manner as original notices for the commencement of an action. One of the methods provided by statute 2. PHYSICIANS for serving an original notice is upon a member AND of the defendant's family over fourteen years of SURGEONS: age, at his usual place of residence, if such license: defendant is not found within the county. revocation: Section 3518, Code of 1897. The service of the service of notice in this case, therefore, complied with notice. the statute. The resolutions adopted by the Wright County Medical Society charged appellant with drunkenness, inebriacy, and two convictions in the Federal court for the violation of the Harrison Law, and requested that his license to practice medicine be revoked.
The charges are specific, and give the dates on which appellant repeatedly pleaded guilty to intoxication in the mayor's court of Eagle Grove, and of his incarceration in the inebriate hospital at Knoxville, on the charge of being a dipsomaniac, inebriate, and user of drugs, and of his convictions in the Federal court. The charges filed by the state board of medical examiners were habitual intoxication and the use of narcotic 3. PHYSICIANS drugs. The appearance of appellant, by counsel, AND and the filing of a motion for a continuance, SURGEONS: waived all defects in the notice. Hall v.
license: Biever, 1 Morris 113; Paddleford v.
revocation: Cook, 74 Iowa 433; Childs v. Limback,
defective 30 Iowa 398; Andre v. City of Burlington,
service cured by appearance. *Page 583 141 Iowa 65; Chrisman v. Brandes, 137 Iowa 433; Ewing v. HawkeyeOil Co., 187 Iowa 1037.
It may be conceded that the charges were somewhat informal in character, but they are in no sense lacking in precision and definiteness, and we deem them, in substance, quite sufficient. They might easily have been made more formal, but the substance of all that was necessary to constitute formal charges is included therein, together with the charges filed by the board of examiners. The charges preferred by the board were not signed by the secretary, but they do appear to have been signed by the board. The record does not disclose the filing date of any of the charges referred to. The omission of the signature was not necessarily fatal. First Nat. Bank v. Stone, 122 Iowa 558; Mohrv. Civil Serv. Com., 186 Iowa 240.
The only action of the board that could in any respect be said to have been arbitrary was its refusal to grant a continuance. The application therefor contemplated a continuance until the expiration of the period of appellant's 4. PHYSICIANS incarceration in the Federal prison. The refusal AND to continue the hearing for that length of time SURGEONS: was not arbitrary, and no claim was made before license: the board that preparation could be made by revocation: counsel for the trial within a reasonable time. arbitrary There is nothing in the record to indicate that refusal of the board of medical examiners acted arbitrarily continuance. or were actuated in any way by improper motives. The charges preferred were of a grave nature, and were abundantly supported by much credible testimony. Appellant's term in the penitentiary had expired at the time the cause was reached for hearing, and no continuance was asked, and a trial upon the merits was declined. We will discuss the challenge of the board's jurisdiction upon constitutional grounds a little later.
We have already sufficiently disposed of appellant's contention that the law governing proceedings of the character here involved was not complied with, except the suggestion that the statute under which the proceedings were instituted is void for uncertainty. The suggestion is without merit, and will not be discussed.
II. The next motion filed by counsel for appellant was to *Page 584
strike from the record all of the record and documents certified to the district court by the secretary of the board, upon various grounds therein stated, most of which were, in substance, included in the prior motion. The only matter urged in this motion not covered by the preceding one was that the instruments sent up were not signed, returned, or certified, as required by law. The particular defects in the certificate are not pointed out in the motion, and an examination thereof fails to disclose any.
III. The grounds of the third motion, in substance, are that the right vested in appellant by his certificate to practice medicine is a valuable one, having the characteristics of a property right, and that he was deprived thereof 5. CONSTITU- without due process of law, in violation of the TIONAL LAW: Fourteenth Amendment to the Constitution of the due process: United States and Section 9, Article I, of the revocation Constitution of the state of Iowa. The of license. particular in which appellant contends that he was denied due process was the refusal of the court to grant him a jury trial. The delegation by the legislature to inferior tribunals of authority to revoke certificates or licenses to practice medicine has been uniformly sustained by the courts of this country, as within the police power. Green v. Blanchard,138 Ark. 137 (211 S.W. 375); Smith v. State Board of MedicalExaminers, 140 Iowa 66; Thompson v. State Board of MedicalExaminers (Colo.), 151 P. 436; Indiana Board of Pharmacy v.Haag, 184 Ind. 333 (111 N.E. 178). The function of the board in the proceedings under the statute is ministerial or quasi judicial. Smith v. State Board of Medical Examiners, supra;Traer v. State Board of Medical Examiners, 106 Iowa 559.
No provision is made by law for a jury trial in such cases, either before the board of medical examiners or upon appeal to the district court. Due process of law requires only that the proceedings shall be uniform and regular, and that notice be given the accused, together with opportunity to be heard. Smithv. State Board of Medical Examiners, supra; Louisville N.R. Co.v. Schmidt, 177 U.S. 230. A jury trial is not indispensable to due process. The legislature having made no provision therefor, the motion was properly overruled.
It is further urged by appellant that the board of medical *Page 585
examiners could not be both accuser and judge. The charges filed before it by the Wright County Medical Society, although informal, were sufficient to comply with the requirements of the statute, and those filed by the board were to the same effect, and were desired only to make them somewhat more formal. The evidence showed conclusively that appellant is a habitual user of narcotics and intoxicating liquors. Upon the facts shown, it is difficult to conceive how the board could have reached a contrary conclusion. He had an opportunity to be heard in the district court on the merits, but did not see fit to avail himself of it.
Counsel for appellant stresses the point that the count of the indictment charging the violation of the Harrison Law, to which he pleaded guilty in the United States district court at Ft. Dodge, did not charge moral turpitude, and that, 6. PHYSICIANS therefore, he was not guilty of gross AND unprofessional conduct. The particular violation SURGEONS: of the Harrison Law charged, to which the plea license: of guilty was entered, was the giving of an revocation: order for the purchase of narcotics without proof: making or causing to be made a duplicate sufficiency. thereof, on a form issued in blank for such purposes by the commissioner of internal revenue. Other counts in the indictment which did charge moral turpitude were dismissed at the time the plea of guilty was entered. Whether the charges of gross unprofessional conduct based upon the proceedings in the United States court constitute moral turpitude or not, other grounds for the revocation of the certificate were fully proven. On the question of what constitutes moral turpitude, see Hildreth v. Crawford, 65 Iowa 339; Indiana Board of Pharmacy v.Haag, supra; In re Disbarment of Coffey, 123 Cal. 522
(56 P. 448); In re Disbarment of Hopkins, 54 Wn. 569 (103 P. 805);Holloway v. Holloway, 126 Ga. 459 (55 S.E. 191); Senior v. Boardof Health (R.I.), 96 A. 340.
Although he was entitled to introduce testimony upon the hearing in the district court, and was given the opportunity to do so, he declined. The implication of appellant's unfitness and incompetency to practice medicine necessarily arising from the evidence is very strong. We are of the opinion that he had a fair trial before the board of medical examiners, and that the *Page 586
order thereof was properly sustained by the district court. —Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435362/ | Many years ago certain tracts of land were platted as additions to the city of Sioux City. In a general way, these additions lie in the eastern or southeastern portion of the city. The land is rolling and is sparsely settled. The platted streets were not generally opened for travel for many *Page 1199
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 1200
years and some are still unopened. Two of these streets are East Tenth Street, running east and west, and St. Mary's Street, running north and south. Prior to the summer of 1930 it appears that little, if any, work had been done to improve or open said two streets for public travel. Some work had been done on a part of East Tenth Street. However, people living in that vicinity, seeking to go to and from Sioux City, had traveled in a diagonal course across the privately owned land in a northwesterly and southeasterly direction.
The accompanying plat will aid in an understanding of the situation.
As shown thereon, the platted lots are unoccupied except for the house marked on the plat.
Martha Street is unopened. East Tenth Street and St. Mary's Street were not open until shortly before the accident. At the time of the accident decedent was traveling in a northwesterly direction on the diagonal road. The automobile in which he was riding was upset near the junction of said diagonal road with East Tenth Street.
In the summer of 1930 the appellee opened up East Tenth Street eastward to its intersection with St. Mary's Street, and also improved the latter street southward from East Tenth Street to its intersection with the diagonal road. Said work appears to have been completed about June 7th. No barriers were placed at the intersection of St. Mary's Street and said diagonal road, nor at the intersection of said diagonal road with East Tenth Street. About 1925 the appellee city, acting through its proper officer, did some grading on this diagonal road at and near its juncture with east Tenth Street. This was done at the request of property owners living in that vicinity and for their convenience. It appears that before the appellee opened East Tenth Street people drove across these privately owned lots "in all directions." In any event, it clearly appears that the travel was not confined to one track.
A few days before the time of the accident, the appellee in improving East Tenth Street and St. Mary's Street used a considerable amount of dirt, which was taken from at and near the juncture of East Tenth Street and the diagonal road. This left a condition which is shown by the following photograph, which was an exhibit in the case: *Page 1201
[EDITORS' NOTE: EXHIBIT D IS ELECTRONICALLY NON-TRANSFERRABLE.]
As shown therein, there was a cut in the diagonal road leaving an abrupt and rather high bank on the left-hand side of one traveling on the diagonal road toward Sioux City, and a comparatively level space about 12 to 16 feet in width, as shown *Page 1202
at the position of the heavy black line in the photograph. To the right or northeast of this less dirt was removed. This left what is described as "a ridge" near the center of the whole excavation. The right wheels of the automobile in which the decedent was riding as a passenger were driven upon this ridge, causing the automobile to tip over at the place shown by the heavy black line in the photograph. Appellant's decedent was pinned beneath the automobile and killed.
All the parties concerned in the transaction herein described are Russians. The decedent was employed in a packing house in Sioux City. It appears that he was about 48 years of age, a married man, and the father of four children. The appellant is the widow of said decedent. An aunt of the appellant, named Kozak, lived near the decedent and his family. There is a farmer by the name of Katz, who lives on a farm about two miles east of the scene of the accident. June 8, 1930, was on Sunday. The appellant and Mrs. Kozak desired to go to the home of Katz to obtain his signature to some papers. A party was made up, consisting of the appellant and the decedent, Mrs. Kozak, and one Simonsky who boarded in appellant's family. A friend by the name of Donolovitch owned an automobile, and all the parties named, together with Donolovitch as the driver of the car, went to the Katz place. It appears that there were two ways of going from their starting point to the Katz farm. One, known as the Correctionville Road, was about half a mile longer than the other route and was the better road. The Correctionville road was taken in going to the Katz farm. The return trip, however, was not made on this road but was by another route which brought the parties over the diagonal road previously referred to. The afternoon and evening were spent by the party at the Katz place. The three named left there about ten o'clock on the return trip. The appellant and the boarder, Simonsky, did not return with the others. On the return trip the driver, Donolovitch, and Mrs. Kozak, occupied the front seat of the car, and the decedent occupied the rear seat alone. At the point on the diagonal road already described, and about 36 feet from its juncture with East Tenth Street, Donolovitch drove the right wheels of his car upon the ridge previously described, causing the car to upset to the left. The *Page 1203
decedent fell from the car, was pinned under the running board, and killed.
I. We first consider the question as to whether or not the diagonal road in question was a public road or street of the appellee, for the condition of which the appellee can be held liable.
From an examination of the record we are satisfied that there is an entire want of evidence to establish that the said diagonal road had ever been dedicated to said city, or that it had been established as a road by prescription and was adopted and recognized by the appellee as a public highway, so that the city could be held liable for its condition. The evidence shows that before the opening of East Tenth Street and St. Mary's Street people living in the vicinity of said streets traveled across the vacant lots in that vicinity until they came to East Tenth Street, that the road did not always follow the same direction, and that travel was not always in the same place. The diagonal road was a private way, used by individuals residing in that vicinity for their personal convenience in getting to and from East Tenth Street. It is true that at one time some years before, a city official, at the request of a party living in that vicinity and who used said diagonal road, did a small amount of work at the point of juncture between this traveled track and the diagonal road, in smoothing down the diagonal road so that access from said road to East Tenth Street would be easier. This, however, appears to have been without any purpose or intent on the part of the city to assume any jurisdiction whatever over said diagonal road, and was in effect a favor granted to a local party for the convenience of himself and his neighbors. This did not make the city liable for the maintenance of said diagonal road as a city road or street.
We therefore hold that the evidence fails to establish that the diagonal road in question was a city road or street.
II. Appellant contends, however, that even though the diagonal road was not a city street, the appellee is liable for negligence causing the death of the decedent, because of the fact that the city, knowing that the diagonal road was used for travel, removed the dirt in and along said diagonal road near this juncture with East Tenth Street and failed to place any barrier on said diagonal road at the point of its intersection *Page 1204
with St. Mary's Street. Appellant contends that such a barrier would have prevented the driver of the automobile in question from going upon the diagonal road, and hence to the place where the accident occurred.
To put it another way, the contention is that the city, by the excavation near East Tenth Street, created a dangerous place in the diagonal road; that even though this was a private way and not a public road, the city knew of the condition which it created therein, and that it owed a duty to keep travelers from going upon the diagonal road by properly placing a barrier across it at St. Mary's Street.
It must be remembered that the diagonal road was a private and not a public road. The city owed appellant's decedent no duty while traveling on this private way or to keep him from entering thereon. A perfectly safe and proper way was provided over the public streets by way of St. Mary's Street and East Tenth Street.
The situation does not present a case of defective construction of a public road or a failure to place a barrier along or across a public road so as to prevent a traveler thereon from going into an obstruction or excavation "bordering" on the traveled public road.
Appellant places reliance on Bixby v. Sioux City, 184 Iowa 89. That case did not involve such a situation as we have in the instant case.
It is true that in that case we recognized the rule that an excavation or pit that borders on a street and that lacks a proper barrier may constitute a defect for which the city may be liable under certain conditions.
As bearing on the question, see, also, Morse v. Incorporated Town of Castana, 213 Iowa 1225.
However, the case at bar does not present a situation calling for the application of this rule. There is no claim that either St. Mary's Street or East Tenth Street was not properly graded and in a perfectly safe condition. There was no danger to anyone traveling on said streets. The injury to appellant's decedent did not arise by reason of any faulty construction of the streets of the appellee city. He was on a private road and at a place where the city owed him no duty.
The case of Manderschid v. City of Dubuque, 29 Iowa 73, *Page 1205
is likewise not in point under the facts therein disclosed. In that case the bridge in question was in fact located as an extension of a duly established street. The bridge was apparently beyond the limits of the street "but in its general direction." We held that the city could not permit the street to terminate as a cul-de-sac, leading to precipices and pitfalls endangering life, and that it was a question for the jury to determine whether, under the circumstances of that case, the defective bridge was so near the public highway as to be dangerous to persons traveling thereon.
In the instant case the driver of the automobile was not attempting to follow a public highway at all. The excavation in the private road was not even in the general direction of the public highway. The driver was several hundred feet from where he crossed St. Mary's Street before he came to the excavation in question. If he had been properly traveling upon the public highway, it would not have led him in the direction of the excavation.
None of the cases cited by the appellant meet the situation which we have in the case at bar. We recognize the rule that the city is liable for defects in its streets, and for obstructions, pitfalls, and excavations therein or bordering upon such streets, so that ordinary care for the safety of travelers on the public streets may require the erection of barriers, lights, or other means of preventing injury. But, as previously said, the instant case does not present any such situation. The city cannot be held liable for failure to erect a barrier preventing travelers who choose to do so, from going upon a private way for their own purposes.
In Goodin v. City of Des Moines, 55 Iowa 67, we considered a case where a party was injured by falling from a generally used private path into a street which had been excavated at the point of juncture. It was alleged that the path in question "was generally used and by a great many people." Nevertheless, it was a private way passing from private property into the street. We held that the city was not liable under such circumstances and it was not bound to provide a safe way by which streets may be entered from private property. This being true, it certainly must follow that the city cannot be liable for negligence in failing to place a barrier so as to prevent one *Page 1206
on a public highway from passing therefrom onto private property, even though following a private way.
The rule in the Goodin case seems to be one of general recognition. As bearing on the question see Talty v. City of Atlantic, 92 Iowa 135; Sparhawk v. City of Salem, 1 Allen (Mass.) 30, 79 Am. Dec. 700; Griffin v. City of Chillicothe, 279 S.W. 84 (Mo.). See, also, comprehensive note to said case in 42 A.L.R., p. 1281; Schimberg v. Cutler, 142 Fed. Rep. 701. See, also, extensive note, 20 L.R.A. (N.S.) 512; Mulvane v. City of Topeka, 25 P. 217 (Kan.).
We therefore hold that the appellee was not guilty of negligence in failing to place a barrier across the private diagonal road at its junction with St. Mary's Street.
III. We are not to be understood as intimating that the excavation of earth at the junction of the diagonal road and East Tenth Street created a dangerous situation to one properly driving on said road. We are merely assuming that it was a negligent construction for the purposes of the rules of law discussed herein.
Holding as we do that under the record the appellee city was not guilty of negligence in the matters charged in the petition of the appellant, the question of contributory negligence on the part of the appellant's decedent necessarily becomes immaterial.
Upon the entire record the court did not err in sustaining the appellee's motion for a directed verdict, and the judgment entered thereon is — Affirmed.
WAGNER, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435711/ | In 1920, the defendants, Lena A. Breniman and husband, Dr. E.M. Breniman, purchased of a Mr. Reed, residing in Cedar Falls, Iowa, a 368-acre farm located in Franklin County, Iowa, paying therefor $44,600. The farm is divided by a highway running east and west, 188 acres lying on the south side and 180 acres on the north side of the road. Title was taken in the name of Mrs. Breniman and so remains. At the time of the purchase they borrowed of Henry Fossler $10,000, giving a first mortgage on the 188 acres to secure the same. This is the mortgage which plaintiff, the 73-year-old widow of Henry Fossler, now deceased, is seeking to foreclose. There is a second mortgage of $5,000 on this same tract, held by defendant, Morton H. Fossler. The $10,000 note and mortgage were twice extended, and the interest rate reduced to five per cent. Plaintiff acquired title to the note and mortgage through assignment from the administrator of her husband's estate and accepted the same as a part of her distributive share in his estate. There was no default in payment of interest until 1932. On April 1, 1933, this action was commenced. There was a continuance under the first moratorium statute to March 1, 1935. In February, 1935, the mortgagors applied for a second continuance under chapter 115, acts of the 46th General Assembly, which was resisted by the plaintiff. After a hearing the court granted a continuance until March 1, 1937.
The fact situation brings the case near the borderline, but after a very careful consideration of the facts and the legitimate inferences to be drawn therefrom, we find the weight of the evidence causes the scales to preponderate in plaintiff's favor. Defendants do not reside on the premises. They purchased this farm in 1920 during the land boom in Iowa. According to Dr. Breniman's own testimony, he had bought two or three other *Page 126
farms and made good on them. He is just one of thousands of other business and professional men throughout Iowa who went into the land business as pure speculation, with the result that when the boom was over he had left on his hands this farm. Like the rest, it has been, figuratively speaking, a "rat hole" down which he has been pouring everything he could make on the farm and in his profession. It is a deplorable situation. Defendants now find the mortgage indebtedness far above the value of the farm. $50 an acre or $9,400 was as high as anyone would put the value. There is considerable waste land on the farm. Much of it is low bottom land, subject to overflow. It is a good corn producing farm when not too wet. The total mortgage indebtedness against this tract is $15,000, plus interest and costs. There is no equity to save. In a last desperate effort, defendants seek refuge in the moratorium statute. While we have never held that this law applies only to farm home owners, it must be recognized that to prevent the ousting of farmers from their homes was an important consideration in the enactment of the moratorium laws. This widow lady, the mortgagee, has some rights which, under a fair, candid and equitable consideration of the case, must be recognized. Her sustenance depends largely upon farm income. Her daughter lives upon the old home farm where Henry Fossler and his wife, Mary, lived for many years and reared their family. The interest on the mortgage she holds against the daughter, and upon this $10,000 mortgage she holds against the defendants, which represents actual cash loaned to the defendants for use in their land dealings, constitutes the major portion of her income. She, too, is a farmer's wife, not a money lender or speculator. She only asks for what rightfully belongs to her. She has no desire to own the defendants' farm.
It appears that defendants made a very earnest effort to bring about a composition among their creditors. Mrs. Fossler offered at that time and also at the trial still offered to accept $7,500 in full settlement. Defendants admit that they only offered her 50 cents on the dollar or $5,000. Mrs. Breniman persisted in her testimony in the statement that she offered plaintiff $7,500 and was ready to pay this sum, but the plaintiff refused to attend the conciliation board meeting. Therefore she gave up trying to borrow the money from the Federal Land Bank, thus leaving the impression that Mrs. Fossler refused to *Page 127
accept the $7,500. But the doctor's testimony throws a different light on the subject. He admits that out of this $7,500 they were going to pay the plaintiff, she was required to take care of another $2,500 item of indebtedness which would reduce the $7,500 in the amount required to settle this item. They both say in substance that because plaintiff refused to accept their offer they used what money they could raise to settle with other creditors who were willing to compromise. The result was that plaintiff received nothing, while more than $2,000 was applied in the settlement of debts owing to other persons. During the period of the first continuation, the taxes were paid by the receiver, and he had on hands some $500 in money and grain at the time of the trial which he said was available. But strangely enough, he had paid none of it to the plaintiff. Of course, defendants are not to blame for the dereliction of the officer of the court.
The evidence shows the defendants own this 180-acre tract of land across the road with only $2,500 against it. They own a home in town, a business property and some stock and machinery on the farm. We think the evidence warrants us in saying that defendants could, and would be willing to, make use of all their available means to liquidate this indebtedness on terms suitable to them. While it is a laudable thing for parties in difficulty of any kind to amicably adjust such difficulties if possible, however, the moratorium statute was not intended to force settlement at 50 cents on the dollar nor to penalize those who refused to consent to such settlements.
The equities are with the plaintiff. The order of the court granting continuance to March 1, 1937, is reversed. The conclusion reached makes it improper to pass upon the question raised as to the constitutionality of the second moratorium statute found in chapter 115, acts of the Forty-sixth General Assembly. — Reversed.
PARSONS, C.J., and RICHARDS, DONEGAN, and MITCHELL, JJ., concur. *Page 128 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435712/ | Plaintiff's petition demands judgment for $2,999.99, upon a policy of accident insurance which provided *Page 911
for payment of $3,750 in the event of accidental death sustained "while the Insured is operating, driving, riding in, demonstrating, adjusting, repairing or cranking a private passenger automobile of the pleasure car type." The answer of defendant admitted that the policy was in force on December 12, 1940, the date of insured's death; that it was notified of his death and had denied liability; it denied all other allegations of the petition; specifically denied that the insured met his death through any connection with "a private passenger automobile of the pleasure car type," and denied that such death was covered by the policy. The cause was submitted to a jury which returned a verdict for the plaintiff. Defendant appeals.
The principal question presented by this litigation is whether the automobile which the insured was driving at the time of the accident which caused his death was a "passenger automobile of the pleasure car type". Exhibit 1, a photograph of the vehicle, is as follows:
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
This automobile is referred to as a 1938 Ford pickup, with maximum gross weight of three tons. It was registered as a *Page 912
truck, Class A, and a license fee of $15 was paid. Its previous registration number had been T99-510. At the time of the accident the car was towing a wagon in which was loaded some lumber. There was nothing in the box of the pickup at the time.
Over objections of defendant, plaintiff was permitted to show that the Ford pickup was purchased for transportation back and forth to the farm of insured's father where the insured worked; the insured used it to take a hired man back and forth, to and from work; it was not used to haul anything in it; the motor, transmission, differential, wheels, and tires were the same as a Ford sedan except that the gear ratio for passenger cars was 1 to 3.78 and that for a pickup 1 to 4.11; the insured used the pickup to call upon his wife before they were married; after their marriage both of them drove the pickup; they had no other means of transportation. The evidence also showed that the box on the pickup was a regular Ford factory box with no arrangement for seating passengers in it; the frame and springs were heavier than those of a passenger car; the pickup weighed less than a sedan, had a capacity of one-half ton; the frame of a pickup costs $75, that of a passenger car $40.
At the close of the evidence, the defendant made a motion for a directed verdict. Among the grounds therefor were the following:
"1. The provisions of the policy upon which plaintiff's suit is predicated provides for liability only `while the insured is operating, driving in, demonstrating, adjusting, repairing, or cranking a private passenger automobile of the pleasure car type'. The evidence without dispute shows that the assured came to his death while operating a pickup truck, and that said vehicle in which the assured came to his death was not a private passenger automobile of the pleasure car type. * * *
"2. There is no evidence in this record that would warrant a jury in finding that the vehicle in question came within the provisions of the policy hereinbefore in this motion set forth."
The motion was overruled. It should have been sustained. *Page 913
We think that it is important to bear in mind that this is not a case where there was a general insuring clause and, in opposition thereto, an exclusion clause which tended to limit the general insuring clause. Here we are dealing solely with the insuring clause. For there to be any coverage whatever, as to the fatal injury at hand, it was necessary that such injury be sustained "while the Insured is operating * * * a private passenger automobile of the pleasure car type." It was incumbent on the plaintiff to prove that the motor vehicle was "a passenger automobile of the pleasure car type." The question is not whether the defendant has established an affirmative defense. It is solely, did the plaintiff prove his case. We hold that he did not.
As above pointed out, the Ford pickup was registered as a Class-A truck and a license fee of $15 was paid. This was done to comply with sections 5000.01 (4), 5008.05 and 5008.15 of the Code, 1939. Paragraph 4 of section 5000.01 provides:
"`Motor truck' means every motor vehicle designed primarily for carrying livestock, merchandise, freight of any kind, or over seven persons as passengers."
Section 5008.05 provides:
"The annual fee for all motor vehicles except motor trucks, hearses, motorcycles, and motor bicycles, shall be equal to one percent of the value as fixed by the department plus forty cents for each one hundred pounds or fraction thereof of weight of vehicle, as fixed by the department."
Section 5008.15 provides:
"For motor trucks equipped with all pneumatic tires, the annual registration fee shall be: For a gross weight of three tons or less, fifteen dollars per annum."
According to the motor-vehicle law, it is clear that this pickup truck was not classified as a "passenger automobile of the pleasure car type." This is not necessarily conclusive, however, though it is persuasive.
We find no decisions of this court that involve the exact question now before us. A case that involved almost the same *Page 914
insuring clause is that of Lloyd v. Columbus Mut. L. Ins. Co.,200 N.C. 722, 158 S.E. 386, 387, wherein the court states:
"The policy provided an indemnity of $1,000 for death from accidental bodily injuries if such death resulted from `the wrecking or disablement of any private horse-drawn vehicle, or private automobile of the pleasure-car type in which the insured is riding or driving,' etc."
In sustaining a judgment entered pursuant to a directed verdict for the defendant, the court states:
"Is a Ford one and a half ton truck, used principally for hauling milk, `a private automobile of the pleasure-car type?' * * *
"There is no material controversy between the parties with reference to the facts. Hence the question whether a Ford truck used principally for hauling milk is a `private automobile of the pleasure-car type,' becomes a bald proposition of law.
"The motor vehicle statute of North Carolina recognizes the difference between automobiles and trucks. This difference appears from C.S., 2612, which levies license fees for motor vehicles. The license fee for an automobile is based upon horse power, and that on motor trucks is based upon carrying capacity or tonnage. * * *
"The word `type' used in the policy implies the idea of classification.
"Manifestly, the truck in which plaintiff's intestate was riding at the time of his death was by intention, use and construction a commercial vehicle and so classified by the North Carolina statute. Consequently the coverage clause of the policy issued by the defendant did not, upon the evidence, include the accidental death of plaintiff's intestate, and the ruling of the trial judge is upheld."
Applying the foregoing pronouncements to the record herein, about the only difference is that in that case the vehicle was a one-and-a-half-ton truck, whereas here it was a half-ton pickup. We think that the result should be the same in each case. Neither automobile was "of the pleasure car type."
The foregoing pronouncement of the North Carolina court *Page 915
was quoted with approval in the later case of Taft v. Maryland Cas. Co., 211 N.C. 507, 191 S.E. 10.
Counsel for plaintiff have urged upon us quite a number of cases wherein a different result was reached as sustaining the decision of the trial court herein. However, the cases are all distinguishable, in our judgment.
In the case of Fidelity Casualty Co. v. Martin, 9 Cir., Mont., 66 F.2d 438, 439, the coverage is quoted as follows:
"`Bodily injury sustained during the term of one year from noon, standard time, of the day this policy is dated, through accidental means —
"`(1) While riding in or on, driving, operating, demonstrating, or while cranking, adjusting, repairing, a private passenger automobile.'
"Also, there are `Additional Provisions' as follows:
"`A. This insurance shall not cover * * * injuries fatal or otherwise sustained by the insured: * * *
"`3. While riding or driving in or on any motorcycle, automobile truck. * * *'"
The insured was killed while driving a Ford roadster pickup. In affirming a judgment for plaintiff, the court states, at pages 440 and 441, as follows:
"The primary question for our consideration is whether or not the implied finding of fact by the trial judge that the deceased was riding in a `private passenger automobile' is without substantial evidence to support it. That it was a private automobile carrying a passenger is conceded. That it was carrying nothing else except fishing apparatus is clear. That it was equipped to carry freight (750 pounds) is equally plain. If, under the evidence, the ultimate question involved is one of fact, the decision of the trial court is supported by substantial evidence. We see no escape from the proposition that under the evidence the question was one of fact. If the car had been a Ford roadster equipped to carry passengers only, or a heavy truck solely adapted to carry freight, and the necessary attendants and operators, no doubt the question of the applicability of the policy of insurance to accidents occurring therein would *Page 916
be a question of law, but, where the automobile is of the character disclosed by the evidence, its classification is one of fact to be determined by the court or jury, as the case may be."
However, it will be noted that the insuring clause there included "a private passenger automobile," with no requirement that it be "of the pleasure car type," and a later clause excluded an "automobile truck." The question presented there was very different from that which confronts us here. Substantially the same situation that was presented in Fidelity Casualty Co. v. Martin, supra, was presented by the cases of Gaumnitz v. Indemnity Ins. Co., 2 Cal. App. 2d 134, 37 P.2d 712; Smith v. Maryland Cas. Co., 63 N.D. 99, 246 N.W. 451; Poncino v. Sierra Nevada L. Cas. Co., 104 Cal. App. 671, 286 P. 729; Paetz v. London G. A. Co., 228 Mo. App. 564, 71 S.W.2d 826; and Paltani v. Sentinel L. Ins. Co., 121 Neb. 447, 237 N.W. 392. All of such cases are, therefore, distinguishable from that now before us.
Reliance is placed on the decision of this court in the case of Boles v. Royal Union L. Ins. Co., 219 Iowa 178, 180, 257 N.W. 386, 387, 96 A.L.R. 1400. The case is not controlling here because a different question was presented. This court describes the question of insurance coverage involved in that case thus:
"Boles was insured under two separate policies in the Royal Union Life Insurance Company. Each of these policies was for $1,000, and contained a provision for double indemnity if death resulted from accident sustained while the insured `is a passenger and is within a passenger elevator (mine elevators excepted).' The insurance company admitted its liability for $1,000 on each of the policies, but denied liability under the double indemnity provision."
Boles was fatally injured while riding on a freight elevator in the Hotel Maytag. The elevator was used to carry passengers at times. At pages 182 and 183 of 219 Iowa, page 388 of 257 N.W., the contentions of the parties are stated thus:
"It is the contention of the appellant that the clause of the insurance policy, providing for double indemnity if the death of *Page 917
the insured resulted from an accident while he was a passenger and within a passenger elevator, had reference to and was understood by the parties to mean an elevator of such size, type, equipment, and construction as is generally and commonly known as a passenger elevator, as distinguished from the type of elevator which, because of its size, equipment, and construction is generally and commonly known as a freight elevator; * * * that the fact that what is generally and commonly known as a freight elevator may sometimes be used for the service of passengers does not make such elevator a passenger elevator, such as was within the contemplation of the parties to the insurance contract; * * *.
"Appellee challenges this contention of the appellant and urges that the ordinary and reasonable meaning of the language used in the policy does not support such a construction, and that the language itself shows that even the insurer had in mind that freight elevators may be considered as passenger elevators when used for that purpose. The clause of the policies here involved contained the further provision — `mine elevators excepted'. Appellee argues that it is well known that there are no elevators of the type known as passenger elevators in mines and that, by the exception contained in the policies, it is quite evident that the parties had in mind that the double indemnity clause would apply to elevators used for passengers even when such elevators were of the type known as freight elevators, except in the case of mine elevators."
In holding for the appellee, this court, at page 184 of 219 Iowa, at page 389 of 257 N.W., quotes with approval from Wilmarth v. Pacific Mut. L. Ins. Co., 168 Cal. 536, 143 P. 780, 782, Ann. Cas. 1915B, 1120, the following language:
"`Appellant contends that the purpose which the insurer had in mind was to offer double indemnity for accidents suffered in elevators devoted to the carriage of passengers exclusively, because such elevators are commonly more carefully safeguarded than those used for the moving of freight, and that the chances of accidents from their operation are very slight. The answer to this position of appellant is that if the insurer *Page 918
had intended such a limitation upon the term "passenger elevator" it would have been very easy to express the exact meaning desired.'"
In following the foregoing pronouncement, this court in effect held that the term "passenger elevator" would not be interpreted as meaning "passenger type elevator" because, if the insurance company intended such a limitation upon the term, it would have been very easy to express the exact meaning desired. The thing that distinguishes that case from the one now before us is that here the insurance company did the very thing that the Royal Union failed to do there. Here it definitely provided that, not only must the injury be received while operating a "passenger automobile" but also it must be "of the pleasure car type." Clearly, the Boles case does not decide the question which now confronts us.
The case of Lloyd v. Columbus Mut. Ins. Co., supra, is the only case cited to us, or which we have been able to find, where the insurance company took the precaution to limit its insuring clause to a pleasure car type of automobile. Accordingly, it is the only case directly in point. We are in accord with the holding there made. Here the parties have made their contract. We must see that it is enforced as made. The insurance coverage was limited definitely, specifically to injuries involving a passenger automobile "of the pleasure car type." The automobile involved herein is not of that type. The evidence is clear and undisputed. The court should have so held as a matter of law.
The judgment is — Reversed.
WENNERSTRUM, C.J., and MITCHELL, STIGER, GARFIELD, SAGER, and HALE, JJ., concur.
BLISS, J., takes no part. *Page 919 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435715/ | I. Appellant Beechen is the owner of the building in controversy, which is located at 209 West Fourth Street, in the city of Des Moines. The particular premises involved in this litigation are the upstairs portion of the 1. INTOXICATING building, which is an apartment used for living LIQUORS: rooms. The lower portion of the building is nuisance: occupied by a beauty parlor and a tailor shop. necessary There are two main questions urged upon this abatement appeal by the owner of the premises for our and closing consideration: (1) Did the court err in of premises. decreeing that injunction issue against the premises, closing the same for a period of one year unless sooner released as provided by law; and (2), did the court err in entering judgment against the owner for the statutory mulct tax?
On the first proposition, that the court erred in decreeing that the place should be closed for a period of one year as a nuisance, unless sooner released, as provided by law, we think the evidence is amply sufficient to justify the decree of the trial court in this regard. Where the court finds against the owner that a nuisance in fact exists, and that the same should be enjoined, the statute is mandatory as to an order for abatement of the nuisance and the closing of the place for one year unless sooner released according to law. Section 2032, Code of 1924;State ex rel. Seeburger v. Deeney, 202 Iowa 742, and cases cited therein.
Appellant contends that he abated the nuisance before trial, and hence that his property was not subject to injunction. In some instances, we have recognized the rule that, where the *Page 1215
2. INTOXICATING party charged with maintaining a nuisance has in LIQUORS: good faith abandoned the same prior to the nuisance: commencement of an action of injunction, the non-good- court may deny a decree of injunction. faith Davidson v. Benevolent P.O.E., 174 Iowa 1; abatement: Sawyer v. Termohlen, 144 Iowa effect. 247.
But these cases do not reach the case at bar. We hold with the trial court that, under the evidence in the case, an injunction was properly issued, not only against the unlawful seller (tenant), but also against the property. Such being the case, the provisions of the decree regarding abatement and conditional closing of the building follow as a matter of course, under the statute. The owner can release the property in the manner provided by Section 2036, Code of 1924.
II. Appellant complains of the portion of the decree allowing a mulct tax against the appellant and the said premises. The statute, Code Section 2051, is as follows:
"When a permanent injunction shall issue against any person for maintaining a nuisance as herein defined or against any owner or agent of the building kept or used for the purposes prohibited by this title, a tax shall be imposed upon said building and upon the ground upon which the same is located, and against the persons maintaining said nuisance and against the owner or agent of said premises, when they knew, or ought in reason to have known, of said nuisance."
Section 2053 is as follows:
"On the issue whether a party knew or ought to have known of such nuisance, evidence of the general reputation of the place shall be admissible."
At this point, the question is whether or not there was sufficient evidence to sustain the decree of the trial court imposing a mulct tax on the ground that the owner knew, or ought in reason to have known, of said nuisance. The 3. INTOXICATING statute expressly makes evidence of the general LIQUORS: reputation of the place admissible upon this nuisance: question. The appellant at one time occupied the justifiable north half of the first story of said building assessment as a tailor shop, and, about five years prior to of mulct the trial, he gave up the occupation of said tax. premises and leased the same. About May, 1923, he engaged in the tailor business at 320 Ninth Street, and continued in that business until about the 15th of March, 1925. He looked after *Page 1216
the renting of the premises himself. In May, 1924, he rented the premises to one Gustafson, who remained in possession about fifteen days, during which time there was a liquor prosecution against him for keeping and selling intoxicating liquor on the premises. Appellant testifies that, sometime in September, 1924, he leased the premises to a party by the name of Dickson. The place was again raided, about Christmas time, and was at said time being maintained as a liquor nuisance. Appellant testified that, at the time he leased it to Dickson, he did not make any inquiry about his character; that Dickson told him he was a steam fitter. The appellant testified that he learned afterward that Dickson was a professional bootlegger. Dickson left the premises about the 28th of December, 1924, and on January 2, 1925, appellant leased the premises to one McGrean. In regard to this party, appellant testified that McGrean told him that he was working at the Fort Des Moines Hotel. He says:
"I took him for what he told me. He said he was a bell hop down there, was married, making good money, and wanted a place down town. I didn't get any further information about him. I didn't call the hotel. I didn't think he would lie, the way he looked."
He did not go down to the place to collect the rent, but it was brought to his shop by the tenant. It seems that the appellant was starting a new business in Sioux City, and left Des Moines on March 27th or 28th, and returned on April 4th. That night, McGrean and two other men were arrested in the premises in controversy, on the charge of selling intoxicating liquor. Appellant learned of said raid. He left for Sioux City that night, but instructed his wife to proceed Monday to get rid of the tenant. The wife attempted to telephone the place on Monday, but without success. Later, she communicated with the tenant, who objected to going out. He finally left the premises, May 1st. The appellee offered the testimony of a number of witnesses who testified that the place was one that bore the reputation of being a place where intoxicating liquors were sold unlawfully. The appellant offered no evidence whatever with regard to the reputation of the premises. The evidence clearly establishes that the appellant had for a considerable period of time been leasing the property in controversy to people who were engaged in the unlawful sale of liquor, and who were maintaining a *Page 1217
nuisance upon the premises. Prior to leasing the premises to the tenant McGrean, the appellant knew that the two preceding tenants had been accused of the unlawful sale of liquor upon said premises. It is evident from the record that the reputation of the place as one where liquors were sold unlawfully existed during the occupancy of the same by the last tenant, McGrean. The past experience of the appellant with the two immediately preceding tenants would have caused an ordinarily cautious and prudent man to exercise some degree of care in selecting the tenant who would go into the premises. The evidence shows that the appellant made no such investigation. He did not even call up the hotel where this tenant claimed to be employed. He testifies that he did not get any information about him except what the tenant told him, "that he was working as a bell hop at the Fort Des Moines Hotel." It was nearly a month from the time of the raid and the information to the appellant that the tenant was maintaining a nuisance upon the premises, before the tenant left the premises. No action of ejectment or for cancellation of the lease was attempted.
Upon the whole record, we are convinced that the appellant is properly chargeable with knowing, or that he ought in reason to have known, that said premises were being used for an unlawful purpose. See State ex rel. Seeburger v. James, 202 Iowa 1137. We are not disposed to disturb the decree of the trial court upon the record disclosed in this case, and it must be, and is, in all respects, ordered affirmed. — Affirmed.
EVANS, C.J., and STEVENS and VERMILION, JJ., concur.
De GRAFF, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247178/ | JUDGE SHELLY D. DICK, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
Before the Court is a Motion for Summary Judgment filed on behalf of the Defendant, the Baton Rouge City Constable's Office.1 Plaintiff, Deborah Morris, has filed an Opposition to which the Defendant has filed a Reply.2 The Court's jurisdiction exists pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For the following reasons, the Motion shall be granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Deborah Morris ("Morris" or "Plaintiff") is a female deputy constable who has worked for the Baton Rouge City Constable's Office ("Constable's Office" or "Defendant") for approximately eight years.3 From 2010 until 2016, Morris was assigned to Court Security.4 Her regular duties included working the security line at the entrance of Baton Rouge City Court ("City Court").5 Occasionally Morris was stationed in a courtroom to provide security.6 For a period of time Morris was also stationed at the Department of Motor Vehicle branch ("DMV") located on the third floor of the City Court to provide security.7
Initially, Morris and her immediate supervisor, Sergeant Alvin Jackson ("Jackson"), had a good working and personal relationship.8 For instance, Jackson accommodated Morris' work schedule because she was a single parent to enable her in facilitating her childcare needs.9 Morris was allowed to report for duty at 8:00am, instead of the regular 7:30am start time.10
Plaintiff contends their relationship became hostile after she declined Jackson's *777unwelcome sexual advances.11 According to Morris, shortly after she was assigned to Court Security in May of 2010, Jackson invited her to go to lunch with him.12 Jackson brought Morris to his home for lunch, explaining that he invited every new deputy in his division to his home for lunch.13 While touring his home, Jackson told Morris: "If you push me back against the wall, I'll have to fight you back."14 Morris also attests that Jackson would repeatedly call her into his office and instruct her to close the door.15 Eventually, Morris claims that she confronted Jackson explaining that "his actions towards [her] were inappropriate and disrespectful."16 In response, Morris believes that Jackson began to treat her differently than her colleagues.17
Morris contends that Jackson monitored her behavior, specifically her arrival time and the amount of time she spent at lunch, more closely than her male coworkers.18 Deputy Mark Hinson ("Hinson") testified that Jackson kept an eye on everyone, but seemed to focus on Morris' arrival and departure times.19 Morris also claims that Jackson told her she needed to wear "Depends ... because [she took] too many restroom breaks."20 Morris further attested to the fact that Jackson began denying her "coveted job assignments, overtime, transfers, vacation time, and leave."21 Instead, Jackson assigned her to the "most undesirable division" in Court Security-the DMV.22 According to Morris, Jackson also told her fellow colleagues to "stay away from [her]" and not to speak to her.23
Morris asserts that Jackson's mistreatment of her affected how her co-workers treated her.24 For instance, Morris' co-workers teased her about her hair when she dyed it and "it came out a little redder than she wanted."25 Her co-workers also teased her about her appearance by telling her that she looked like a Tasmanian devil.26 Corporal Thomas Flynn ("Flynn") also raised his voice at Morris in a way that offended her.27 On February 22, 2013, Morris filed a Letter of Complaint with Jackson in which she complained about Flynn's mistreatment.28 According to Morris, Flynn "raised his voice at [her] in a disrespectful manner" in front of others on at least three occasions, and was making every attempt to require her to work the "walk through metal detector because it is believed to be the least liked work area in the front lobby."29 Morris submitted a Grievance Letter to Jackson dated August 16, 2013 in which she complained about working in a hostile working environment.
*77830 She specifically complained of Flynn's use of a loud and disrespectful tone towards her on August 13, 2013, and claimed that he routinely abused his authority.31 Morris also stated that she felt ostracized as the only female in the division.32
Jackson disputes Morris' contentions and asserts that he treated Morris more favorably than the male deputies, and he claims that she was never denied access to extra duty or overtime assignments.33 Jackson also asserted that he has no control over transfers or reassignments.34 According to Jackson, all deputy constables that reported to him were monitored equally and required to "properly and accurately sign in on a timesheet when they arrive for work, leave and return from lunch, and leave for the day."35 Pursuant to the time management directive of the Constable's Office, all deputies assigned to Courtroom/Building Security were to report to front door security each morning and sign-in, all deputies were to sign-in and sign-out for lunch breaks, and no deputy could leave or abandon her post without being properly relieved,36 Morris signed and acknowledged the receipt of the foregoing directives on October 8, 2012.37
Jackson contends that "from a performance perspective, Deborah Morris is an employee that must be managed actively."38 It is undisputed that Morris had a history of back-dating her arrival times, and forward dating her departure times.39 Morris has been disciplined and counseled on her attendance for arriving late to work.40 It is also undisputed that Jackson discovered Morris asleep on the job at varying posts.41 As a result, Morris was reassigned to a post in a public area.42
On June 12, 2014, Morris was placed on administrative leave with pay pending the outcome of an investigation into whether Morris had violated Constable's Office Policy.43 The results of an Internal Affairs' investigation revealed that on June 12, 2014, Morris had violated Constable's Office policy by pursuing an individual in her personal vehicle.44 It was also determined *779that Morris' exercise of poor judgment throughout the incident amounted to neglect of duty.45 Based upon these findings, Internal Affairs personnel recommended a ninety (90) day suspension without pay for Morris.46 In spite of this recommendation, on August 14, 2014, the Constable's Office suspended Morris for thirty (30) days without pay.47 Later, the Constable's Office agreed to reduce her suspension to fifteen (15) days without pay and the removal of the action from her personnel file.48
On or about May 12, 2014, Morris filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") complaining of discrimination because of her sex.49 She did not mark the box next to "retaliation" on her Charge; she only marked the box next to "sex."50 On January 27, 2015, the EEOC issued Morris her Right to Sue letter.51
On April 28, 2015, Morris filed her lawsuit in state court asserting that she was discriminated against because of her gender and subjected to unlawful retaliation in violation of Title VII and the Louisiana Employment Discrimination law.52 Thereafter, Defendant removed Plaintiff's lawsuit to federal court.53 Plaintiff subsequently filed an Amended Complaint.54
Defendant now seeks dismissal of Morris' claims on summary judgment. Defendant contends that Morris' retaliation and sexual harassment hostile work environment claims must be dismissed for failure to exhaust administrative remedies. In the alternative, Defendant asserts that Morris' retaliation and sexual harassment hostile work environment claims should be dismissed because she cannot prove essential elements of the claims. Defendant further contends that Morris cannot show that its legitimate non-discriminatory reason for her suspension was pretext; therefore, her sex (gender) discrimination claim must also fail. Morris disagrees with the Defendant's arguments.
II. LAW AND ANALYSIS
A. Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."55 "An issue is material if its resolution could affect the outcome of the action."56 "When assessing whether a *780dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence."57 "A party moving for summary judgment 'must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case.' "58 If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting 'forth specific facts showing the existence of a genuine issue concerning every essential component of its case.' "59 However, the non-moving party's "burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."60
Notably, "[a] genuine issue of material fact exists, 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' "61 The Court must resolve all reasonable factual inferences in favor of the nonmoving party.62 However, "[t]he court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim."63 "Conclusory allegations unsupported by specific facts, however, will not prevent an award of summary judgment; 'the plaintiff [can]not rest on his allegations ... to get to a jury without 'any significant probative evidence tending to support the complaint.' "64
B. Exhaustion of Administrative Remedies
Defendant seeks dismissal of Morris' retaliation and sexual harassment hostile work environment claims for failure to exhaust her administrative remedies. Federal courts lack jurisdiction to consider Title VII claims unless they have been administratively exhausted, which generally means they have been presented to the Equal Opportunity Employment Commission ("EEOC").65 In the Fifth Circuit, "[a]n employee may not base a Title VII claim *781on an action that was not previously asserted in a formal charge of discrimination to the EEOC, or that could not 'reasonably be expected to grow out of the charge of discrimination.' "66 While the "scope of an EEOC complaint should be construed liberally" and courts "look slightly beyond" the "four corners" of the EEOC complaint "to its substance rather than its label," it must be sufficient to "trigger the investigatory and conciliatory procedures of the EEOC" for that claim.67 Importantly, "[c]ourts should not condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would thwart the administrative process and peremptorily substitute litigation for conciliation."68
i. Retaliation Claim
It is undisputed that Morris did not mark the "retaliation" box on her EEOC Charge of Discrimination ("EEOC Charge").69 Instead, Morris only marked the "sex" box on her EEOC Charge.70 Importantly, the Fifth Circuit has found that a plaintiff's failure to check a box on an EEOC Charge is not always fatal error.71 In Sanchez v. Standard Brands , Inc. , the Fifth Circuit concluded that a plaintiff's failure to check the "national origin" box on her EEOC Charge was "a mere 'technical defect or omission' "72 and "decline[d] to hold that the failure to place a check mark in the correct box [was] a fatal error."73 The Sanchez court explained that "[t]he selection of the type of discrimination alleged, i.e., the selection of which box to check, is in reality nothing more than the attachment of a legal conclusion to the facts alleged."74 Instead, the court noted that "the only absolutely essential element of a timely charge of discrimination is the allegation of fact contained therein."75 Because the plaintiff had alleged sufficient facts to give rise to a national origin discrimination claim, the Sanchez court found that plaintiff's failure to mark the appropriate box did not bar her from including her national origin discrimination claim in her complaint.76
Morris' EEOC Charge includes the following relevant facts or "particulars":
I have been subjected to harassment since August 1, 2008.
Since I began working in Court Security in August 2008 I have been subjected to frequent and repeated harassment, which created a hostile and/or offensive work environment, thereby making it difficult to perform my duties. Corporal Thomas Flynn, Male, was verbally abusive, including yelling and embarrassing me in front of co-workers and courtroom patrons. I was never given any special assignments or allowed to work overtime. Deputy Constable Steven Bell, Male, was allowed to work overtime. In January 2014, I was told by Sergeant Alvin Jackson, Male, that I could not work overtime because the additional *782jobs were covered and I was not needed. As the only female courtroom bailiff, I am treated differently from my male colleagues.
I believe I have been discriminated against based on my sex, Female, in violation of LSA R.S. 23:301 et seq and Title VII ....77
Unlike the plaintiff in Sanchez , the Court finds that Morris failed to allege any facts in her EEOC Charge that signal an intent to make a claim of retaliation. Specifically, Morris' statement does not refer to retaliation and is devoid of any facts suggesting that Morris complained about the harassment or disparate treatment she allegedly experienced because of her sex, or that she experienced any retaliatory conduct for making such complaints. In sum, nothing on the face of Morris' charge suggests that the EEOC should have investigated a retaliation claim, nor was the Defendant put on notice of same.
The Court further finds no merit in Morris' argument that her retaliation claim could have reasonably been expected to "grow" out of her EEOC Charge because her claims "contain[ed] the same core of operative facts that would have prompted an EEOC investigation into the retaliation claim."78 Initially, the Court points out that Morris' reliance on Smith v. Bisso Marine, LLC , is flawed, because it offers no guidance on whether a Title VII claim has been exhausted.79 Rather, the Smith court applied Rule 15 of the Federal Rules of Civil Procedure to determine whether newly asserted claims in an amended complaint related back to the claims in the original pleading.80
Morris also points to the United States Court of Appeals for the Sixth Circuit decision, Tisdale v. Federal Express Corp. , for support of her argument.81 In Tisdale the appellate court found that the plaintiff had exhausted his administrative remedies even though the retaliation claim was not included in the charge because "both his discrimination claim and retaliation claim contain[ed] the same common core of operative facts," which would have prompted an EEOC investigation into the retaliation claim."82 The Court finds that Morris' reliance on Tisdale is misplaced, because it is a Sixth Circuit decision that does not rely upon any Fifth Circuit authority for the portion of the decision that is relevant to this case. Within the Fifth Circuit "a claim is not reasonably expected to grow out of a Plaintiff's EEOC Charge where the claim is not alleged in the charge."83 As recently as last year, the Fifth Circuit held that a plaintiff does not exhaust her administrative remedies when she has not marked the box for retaliation or described a claim retaliation in her charge.84
In this case, Morris did not mark the box for retaliation on her Charge or allege facts that would give rise to a retaliation claim. Furthermore, a retaliation claim *783would not have reasonably expected to grow out of an EEOC Investigation of Morris' Charge. Therefore, the Court finds that Morris has failed to exhaust her administrative remedies as to her retaliation claim, and it shall be dismissed without prejudice.
ii. Sexual Harassment Hostile Work Environment Claim
Defendant also argues that "because the factual allegations supporting a Sexual Harassment Hostile Work Environment claim were not stated in the Charge, Plaintiff has failed to exhaust her administrative remedies with respect to such a claim, requiring dismissal of this claim."85 The Court disagrees. As previously mentioned, Morris marked the box next to "sex" on her EEOC Charge. In the factual statement or "statement of particulars" Morris claims that she was subjected to harassment. Specifically, Morris asserted that since she began working in Court Security in 2008, she had "been subjected to frequent and repeated harassment, which created a hostile and/or offensive work environment."86 Construing the factual allegations liberally, the Court finds that Morris' EEOC Charge alleges facts which can be read to give rise to a sexual harassment hostile work environment claim. Therefore, the Court finds that Morris has exhausted her administrative remedies as to her sexual harassment hostile work environment claim.
C. Sex (Gender) Discrimination Claim
Title VII protects individuals from discrimination by an employer based on the "individual's race, color, religion, sex, or national origin."87 Discrimination claims may be proven by direct or circumstantial evidence.88 In cases such as this, where the plaintiff only presents circumstantial evidence related to her discrimination claim, the McDonnell Douglas burden shifting analysis applies.89 Initially, the plaintiff must establish a prima facie case of sex discrimination by showing that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) she was either replaced by someone outside of her protected class or treated less favorably than other similarly situated employees outside of her class.90 If the plaintiff makes her prima facie showing, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action.91 The defendant's "burden is one of production, not persuasion, and involves no credibility assessment."92 "If the defendant meets this burden, 'the onus shifts back to the plaintiff' to provide substantial evidence that the given reason is merely pretext or that the stated reason 'is only one of the reasons ... and another 'motivating factor' is the plaintiff's protected characteristic.' "93
*784i. Adverse Employment Actions
Defendant raises no challenge to the elements of Plaintiff's prima facie case of sex discrimination, save to dispute that some of the employment actions complained of do not rise to the level of adverse employment actions. Although Defendant concedes that Morris' fifteen day suspension without pay amounts to an adverse employment action, Defendant maintains that Jackson's alleged denials of Morris' "requested and coveted job assignments, overtime, transfers, vacation time, and leave" do not.94 As a threshold matter, for Title VII discrimination claims, "[a]dverse employment actions include only ultimate employment actions, such as hiring, granting leave, discharging, promoting, or compensating."95 "[A]n employment action that 'does not affect job duties, compensation, or benefits' is not an adverse employment action."96 The Court will now address each of the alleged adverse employment actions in turn.
a. Coveted Job Assignment
Aside from her conclusory attestation in her Declaration, Morris has cited no competent summary judgment evidence demonstrating that Jackson ever denied Morris' request for a "coveted" job assignment. Therefore, the Court finds that this is not a viable adverse employment action for purposes of Morris' prima facie case.
b. Denials of Overtime or Leave Requests
Before addressing the merits of whether denials of overtime or leave requests amount to adverse employment actions, the Court must address an evidentiary matter.
On July 27, 2016, Morris was deposed in this case.97 During her deposition, Morris stated that she had been denied overtime requests.98 When asked to describe these instances, Morris could describe only one: Morris asked Jackson if she could work schools, but he denied her request.99 Similarly, when Morris stated she had been denied leave, she identified only one instance, where she was denied two days of leave before Christmas.100 In a subsequent Declaration, Morris attested that Jackson would "routinely deny [her] request for leave and vacation time" and that "Jackson refused to allow [her] to work overtime."101 A court may consider a declaration that merely supplements rather than contradicts prior deposition testimony on summary judgment.102 A declaration supplements testimony when it "clarifie[s] or amplifie[s] the facts by giving greater detail or additional facts not previously provided in the deposition."103
*785In this instance, the Court finds that Morris' Declaration fails to provide any greater detail or additional facts as to Jackson's denial of Morris' leave or requests for overtime. Accordingly, these post deposition attestations shall not be considered by the Court.
Once again turning to the merit of Morris' claims, the Fifth Circuit has acknowledged that decisions that affect compensation may constitute actionable adverse employment actions in Title VII discrimination cases.104 In her deposition Morris testified that Jackson had denied her request to work school detail, because it was already covered.105 A one-time denial of overtime, does not amount to an adverse employment action.106 In other instances where overtime was deemed to be an adverse employment action, the evidence showed that the employee was "consistently denied opportunities to earn overtime" throughout her employment.107 In this case, Morris has offered evidence showing that she was denied overtime/detail on one occasion. The Court finds that this single incident of denial of overtime does not amount to an adverse employment action
For similar reasons, Jackson's denial of Morris' two day request for leave before Christmas does not amount to an adverse employment action. While denying an employee leave can constitute an adverse employment action, "[a] single denial of leave is not an adverse employment action when it affects leave on a specific date and time, but not the employee's amount of or right to take leave in general."108 Morris has provided no other competent summary judgment evidence of other instances where Jackson denied her leave requests. Accordingly, the Court concludes that Morris' two day leave request before Christmas does not amount to an adverse employment action.
c. Job Assignment or Transfer to DMW
Morris also appears to argue that her job assignment in the DMV was an adverse employment action because, in her opinion, it was the "least desirable division of all."109 Morris testified that none of the other male deputies wanted to take the new assignment in the DMV because "it was a new division" and "they didn't know how the job would be up there."110 In this position, Morris sat in a student type desk/chair in the corner, where she claims she was "isolated from her colleagues."111
*786When she began her new assignment in the DMV, Morris also fingerprinted individuals and had to provide coverage for court.112
The Fifth Circuit has held that being given less favorable work assignments does not constitute a legally cognizable "adverse employment action."113 Therefore, Morris' belief that the DMV position was an undesirable job assignment, does not amount to an adverse employment action. To the extent Morris may be arguing that her job assignment in the DMV was a transfer that amounted to a demotion, the Court finds that she has not offered any evidence showing that the reassignment was objectively worse.114 In other words, Morris has not offered any evidence showing that the reassignment or transfer to the DMV affected her pay, benefits, or was objectively less prestigious or interesting.115 Importantly, Morris' "subjective perception that a demotion has occurred is not enough."116 Without any additional evidence to show that her reassignment to DMV was objectively worse, the Court finds that Morris' reassignment or transfer does not amount to an adverse employment action.
In summary, the Court finds that the only adverse employment action which survives summary judgment is Morris' fifteen day suspension without pay from the Constable's Office.
ii. Defendant's Legitimate, Nondiscriminatory Reason
Having satisfied her burden of establishing a prima facie case of sex (gender) discrimination, the burden now shifts to the Defendant to offer a legitimate, non-discriminatory reason for suspending Morris from duty.
The Defendant has offered evidence showing that Morris was ultimately suspended for fifteen days without pay for violating Constable's Office Policy by pursuing a suspect in her personal vehicle on June 12, 2014. The Defendant has provided a copy of the police report of the incident, internal memorandum outlining Morris' policy violation, disciplinary documentation related to the incident and supporting Morris' suspension, and General Order 103, which outlines the Defendant's policy prohibiting pursuits in unauthorized vehicles.117 General Order 103 allows a driver of an authorized emergency vehicle to engage in a pursuit.118 The Defendant's investigation and corresponding police reports show that Morris was not operating an authorized emergency vehicle when she pursued the suspect; rather, Morris was in her personal vehicle.119 The Defendant also concluded that as a POST certified law enforcement officer, Morris' decision to not take any action at the conclusion of the pursuit-after she had "pursued a speeding, careless driver over several miles, *787weaving in and out of trafficking and received Code-3 assistance from 8-10 Baton Rouge Police Department units"-amounted to neglect of duty.120 Therefore, due to these violations of Constable's Office policies, the Defendant suspended Morris for fifteen days without pay.121 The Court finds that the Defendant has satisfied its burden of showing that it had a legitimate, non-discriminatory reason for suspending Morris for fifteen days without pay.122
iii. Pretext
Because the Constable's Office has met its burden of articulating a legitimate, nondiscriminatory reason for suspending Morris, she must now come forward with evidence sufficient for a reasonable trier of fact to conclude that the Defendant's stated reason for suspending Morris is "false or 'unworthy of credence,' " and that Morris' sex or gender was a motivating factor.123 In her opposition, Morris devoted no time or energy to show that the Defendant's proffered reason was merely pretextual. In her statement of contested facts, however, Morris did object to the findings of the Defendant's investigation, and asserts what could be construed as a disparate treatment argument regarding her suspension. The Court considers these points as arguments made in support of Morris' pretext argument.
Morris disputes certain factual findings of the Defendant's investigation into the incident on June 12, 2014. According to Morris, she did not pursue a suspect in her personal vehicle; rather, she merely "followed" a suspect because she believed she was assisting another police officer in an unmarked vehicle.124 This is not the proper dispute at the pretext stage. The Fifth Circuit has explained that "[s]imply disputing the underlying facts of an employer's decision is not sufficient to create an issue of pretext."125 In this case, the issue at the pretext stage is whether the Defendant's proffered reason-Morris' alleged violations of Constable's Office policies-even if incorrect, was the "real reason" for Morris' fifteen day suspension.126 Therefore, Morris' dispute with the factual findings of the *788Defendant's investigation will not carry her burden of showing pretext.
The Court further finds that Morris' attempt at a disparate treatment argument regarding her suspension must also fail. Disparate treatment can create a genuine issue of material fact as to pretext, but in order to do so, Morris must adduce evidence that would enable a reasonable juror to find that the Defendant gave "preferential treatment to another [similarly situated] employee under 'nearly identical' circumstances."127 "The 'nearly identical standard' is a stringent standard-employees with different responsibilities, different supervisors, different capabilities, different work rule violations, or disciplinary records are not considered to be 'nearly identical.' "128 Morris falls far short of satisfying this stringent standard. She has failed to proffer evidence of any fellow employees as a comparators who were disciplined differently under nearly identical circumstances. Instead, Morris offers only her own subjective belief that her "status as a female" was a factor in her suspension, and the conclusory generalization that no other male deputy had ever been suspended like her "for an alleged violation of policy which resulted in no harm to civilians or damage to property."129 Conclusory statements and Morris' subjective belief alone cannot create a genuine dispute of material fact that the Defendant's proffered legitimate non-discriminatory reason was merely pretext for gender or sex discrimination.130 Accordingly, Morris' sex (gender) discrimination claim shall be dismissed.
D. Sexual Harassment Hostile Work Environment Claim
The Defendant seeks dismissal of Morris' sexual harassment hostile work environment claim because she cannot show that her employer knew or should have known of Jackson's harassment and failed to take prompt remedial action.131 Defendant points to evidence in the record showing that Morris refused to file a complaint against Jackson.132 To establish a Title VII sexual harassment claim based on hostile work environment, the plaintiff-employee must show: (1) that she belongs to a protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition, or privilege" of employment, and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action."133 However, *789in cases where the alleged harasser is a supervisor with immediate or higher authority over the harassed employee, the employee need only satisfy the first four elements of the foregoing test.134 In this case, it is undisputed that Jackson was Morris' immediate supervisor, therefore, Morris need not satisfy the fifth element. Hence, Defendant's argument lacks merit.
Nonetheless, the Court has reviewed Morris' Amended Complaint and finds that she has failed to allege a sexual harassment hostile work environment claim against Jackson. On March 8, 2017, the Court ordered Morris, who has been represented by counsel throughout this lawsuit, to file an Amended Complaint due to the confusion caused by the description of her claims.135 Morris was "advised to specifically allege all facts that give rise to her claims and to clearly state what causes of action she is bringing."136 The Court finds that, while Morris clearly pled a gender (sex) discrimination claim against Jackson in her Amended Complaint , she failed to allege a sexual harassment hostile work environment claim against Jackson. Therefore, Morris' sexual harassment hostile work environment claim against Jackson shall be dismissed with prejudice.
In her Amended Complaint , Morris alleges that she experienced mistreatment by her fellow coworkers at the Constable's Office. She contends that Flynn raised his voice in a disrespectful manner on several occasions, and that other coworkers would call her names or mock her hair or appearance. The Court construes these factual allegations as supporting a co-worker sexual harassment hostile work environment claim. Whether or not this claim can withstand summary judgment has yet to be determined. Because the Defendant has not sought summary judgment on this particular claim, it remains Morris' only viable Title VII and state law claim.
The Court hereby sua sponte orders each of the parties to provide supplemental memoranda, citing to record evidence, addressing whether Morris' co-worker sexual harassment hostile work environment claim should be dismissed on summary judgment grounds.137 This is the only claim that shall be briefed in the parties' respective memoranda.
III. CONCLUSION
For those reasons set forth above, the Motion for Summary Judgment filed on behalf of the Defendant, the Baton Rouge City Constable's Office, is hereby GRANTED IN PART and DENIED IN PART.138 It is hereby ordered that Deborah Morris' Title VII and state law claims of retaliation are hereby dismissed without prejudice for failure to exhaust her administrative remedies. It is further ordered that Deborah Morris' sex (gender) discrimination claim and supervisor sexual harassment hostile work environment claim are hereby dismissed with prejudice.
*790It is further ordered that the parties shall have 21 days from the date of entry of this Ruling to file supplemental memoranda, citing to record evidence, addressing whether Morris' co-worker sexual harassment hostile work environment claim should be dismissed on summary judgment grounds. The parties shall be limited to fifteen (15) pages for their respective briefs, exclusive of exhibits.
IT IS SO ORDERED.
Doc. 41. This is the Defendant's third motion for summary judgment.
Doc. 50; Doc. 51.
Doc. 41-1, p. 1; Doc. 50-1, p. 1.
Doc. 41-1, p. 1; Doc. 50-1, p. 1.
Doc. 41-1, p. 1; Doc. 50-1, p. 1.
Doc. 41-1, p. 1; Doc. 50-1, p. 1.
Doc. 41-1, p. 1; Doc. 50-1, p. 1.
Doc. 50-6, p. 29. Jackson served as Morris' immediate supervisor while she was assigned to Court Security. As of April 2016, Jackson is no longer Morris' direct supervisor. Doc. 41-5, p. 1. Morris no longer works in Court Security; she is now working in the jail. Doc. 50-2, p. 8.
Doc. 50-1, p. 2; Doc. 41-1, p. 2; Doc. 41-5, p. 1; Doc. 50-6, p. 29.
Doc. 41-5, p. 1.
Doc. 50-1, p. 2.
Doc. 50-4, p. 1.
Doc. 50-4, p. 1.
Doc. 50-4, p. 2.
Doc. 50-4, p. 2.
Doc. 50-4, p. 2.
Doc. 50-4, p. 2.
Doc. 50-2, pp. 13-14.
Doc. 50-3, p. 32.
Doc. 50-2, p. 14; Doc. 50-4, p. 3.
Doc. 50-4, p. 2.
Doc. 50-4, p. 3.
Doc. 50-4, p. 2.
Doc. 50-4, p. 4.
Doc. 50-4, p. 4; Doc. 50-3, p. 43.
Doc. 50-4, p. 4; Doc. 50-3, p. 43.
Doc. 50-4, p. 4.
Doc. 41-11, pp. 4-5; Doc. 50-2, pp. 31-32.
Doc. 41-11, pp. 4-5; Doc. 50-4, p. 4.
Doc. 41-11, pp. 1-2; Doc. 50-4, p. 4.
Doc. 41-11, pp. 1-2.
Doc. 41-11, pp. 1-2; Doc. 50-2, p. 30. The last page of Morris' Grievance Letter indicates that a copy was sent to Lieutenant Wagner, Captain Lawton, Chief Navarre, and Major Brown. It also indicates that copy of her February 22, 2013 Letter of Complaint was included with August 2013 her Grievance. Doc. 41-11, p. 2.
Doc. 41-5, p. 1-2.
Doc. 41-5, p. 3.
Doc. 41-5, p. 2.
Doc. 41-7. The new directives were implemented on October 8, 2012, and provided, in pertinent part, as follows: "1. All Deputies assigned to Courtroom/Building Security shall report to (FDS) front door security each day upon arrival including the duty court deputy. There will be no exceptions without prior notice or authorization, sign in is required;" "3. No deputy shall leave or abandon any post [o]r assigned duties without being properly relieved;" and "5. All Deputies shall use the sign-in/sign-out sheet for lunch breaks." Doc. 41-7.
Doc. 41-7.
Doc. 41-5, p. 1.
Doc. 41-1, p. 2. Undisputed.
Doc. 41-6, pp. 1 and 3.
Doc. 41-5, pp. 2 and 4 (photograph).
Doc. 41-5, p. 2.
Doc. 41-9. The letter to Morris was dated June 13, 2014, but effective as of June 12, 2014 at 1700 hours.
Doc. 41-9, pp. 2-5.
Doc. 41-9, p. 4.
Doc. 41-9, p. 2; Doc. 41-4, p. 2.
Doc. 41-9, p. 3; Doc. 41-4, p. 2.
Doc. 41-4, p. 2; Doc. 41-9, p. 6. (On June 18, 2015, the Personnel Board of the Parish of East Baton Rouge "voted unanimously, 5-0, to approve the settlement offer between the City-Parish Constable's Office and Ms. Deborah Morris for the reduction of a 30-day suspension without pay to a 15-day suspension without pay and the removal of the action from Ms. Morris' employee file at the Constable's Office with reimbursement to be effective by the next pay period.").
Doc. 25-3, p. 1 (signed and dated copy); Doc. 41-3, p. 1.
Doc. 25-3, p. 1; Doc. 41-3, p. 1.
Doc. 41-3, p. 2.
Doc. 1-2, pp. 5-8.
Doc. 1.
Doc. 38; Doc. 37, p. 4 ("The Plaintiff is ORDERED to file an Amended Complaint within ten days of this Ruling. The Plaintiff is advised to specifically allege all facts that give rise to her claims and to clearly state what causes of action she is bringing."(emphasis original) ).
Fed. R. Civ. P. 56(a).
DIRECTV Inc. v. Robson , 420 F.3d 532, 536 (5th Cir. 2005) (quoting Weeks Marine, Inc. v. Fireman's Fund Ins. Co. , 340 F.3d 233, 235 (5th Cir. 2003) ).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co. , 530 F.3d 395, 398-99 (5th Cir. 2008) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
Guerin v. Pointe Coupee Parish Nursing Home , 246 F.Supp.2d 488, 494 (M.D.La. 2003) (quoting Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)(quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) )).
Rivera v. Houston Independent School Dist. , 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World Wide Moving, Inc. , 144 F.3d 377, 380 (5th Cir. 1998) (internal quotations omitted) ).
Willis v. Roche Biomedical Laboratories, Inc. , 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (internal quotations and citations omitted) ).
Pylant v. Hartford Life and Accident Ins. Co. , 497 F.3d 536, 538 (5th Cir. 2007) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
Galindo v. Precision American Corp. , 754 F.2d 1212, 1216 (5th Cir. 1985).
RSR Corp. v. International Ins. Co. , 612 F.3d 851, 857 (5th Cir. 2010) (citing Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998) ).
Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Tex. , 40 F.3d 698, 713 (5th Cir. 1994) (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 )(citation omitted) ).
Pacheco v. Mineta , 448 F.3d 783, 788 (5th Cir. 2006).
Filer v. Donley , 690 F.3d 643, 647 (5th Cir. 2012) (quoting Pacheco , 448 F.3d at 789 ).
Pacheco , 448 F.3d at 788-89.
McClain v. Lufkin Indus., Inc. , 519 F.3d 264, 273 (5th Cir. 2008).
Doc. 50, p. 9 (Plaintiff admitted that she "neglected to check the 'retaliation' box in her Charge."); Doc. 41-3, p. 1.
Doc. 41-3, p. 1.
Sanchez v. Standard Brands, Inc. , 431 F.2d 455 (5th Cir. 1970).
Id. at 462.
Id. at 463.
Id. at 462.
Id. at 463 (citing with approval the holding in Wilson v. Monsanto Co. , 315 F.Supp. 977, 979 (E.D.La. 1970) ).
Id. at 463-64.
Doc. 41-3.
Doc. 50, p. 10.
Doc. 50, p. 10; Smith v. Bisso Marine, LLC , Civ. Action No. 14-0697, 2016 WL 952043, at *4 (W.D.La. Mar. 4, 2016).
Id.
Doc. 50, p. 10; Tisdale v. Federal Express Corp. , 415 F.3d 516 (6th Cir. 2005).
Id. at 528.
Barnes v. Rite-Aid , Civ. Action No. 09-6629, 2010 WL 4553493, at *4 (E.D. La. Oct. 28, 2010) (quoting Slocum v. Guardsmark, L.L.C. , No. 08-685, 2008 WL 8872892 at *2-3, 2008 U.S. Dist. Lexis 111360 at *7 (E.D. La. Dec. 20, 2008) (citing Kebiro v. Walmart , 193 Fed.Appx. 365, 367 (5th Cir. 2006) ; Thomas v. Dep't. of Crim. Justice , 220 F.3d 389, 395 (5th Cir. 2000) )).
Anderson v. Venture Express , 694 Fed.Appx. 243, 247 (5th Cir. 2017).
Doc. 41-2, p. 14.
Doc. 25-3, p. 1; Doc. 41-3, p. 1.
42 U.S.C. § 2000e-2(a)(1).
Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C. , 778 F.3d 473, 475 (5th Cir. 2015).
Easterling v. Tensas Parish School Bd. , 682 Fed.Appx. 318, 321 (5th Cir. 2017) (citing Wallace v. Methodist Hosp. System , 271 F.3d 212, 219 (5th Cir. 2001) (citations omitted) ).
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 512-14 (5th Cir. 2001)
McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 2007).
Id.
Carr v. Sanderson Farms, Inc. , 665 Fed.Appx. 335, 338 (5th Cir. 2016) (quoting Autry v. Fort Bend Indep. Sch. Dist. , 704 F.3d 344, 347 (5th Cir. 2013) (quotations omitted) ).
Doc. 50-4, p. 2; Doc. 41-2, pp. 1, 7-10.
McCoy , 492 F.3d at 559 (quoting Green v. Adm'rs of Tulane Educ. Fund , 284 F.3d 642, 657 (5th Cir. 2002) ).
Pegram v. Honeywell, Inc. , 361 F.3d 272, 282 (5th Cir. 2004) (citing Banks v. East Baton Rouge Parish Sch. Bd. , 320 F.3d 570, 575 (5th Cir. 2003) (quotation omitted) ).
Doc. 50-2, p. 1.
Doc. 50-2, p. 25.
Doc. 50-2, p. 26. Morris further stated that when Jackson denied her overtime request, "[h]e had said that he someone to work them already."
Doc. 50-2, p. 26. From her deposition testimony, it is unclear which year this incident occurred.
Doc. 50-4, p. 3 (signed on October 17, 2016).
S.W.S. Erectors, Inc. d/b/a, Southwest Signs v. Infax, Inc. , 72 F.3d 489, 496 (5th Cir. 1996).
Id.
Pegram , 361 F.3d at 282.
Doc. 50-2, pp. 25-26 ("Q. Have you ever been denied an overtime request? A. Yes. Q. Can you tell me about that? A. I asked Sergeant Jackson could I work schools, and he told me I couldn't work them. He said he had someone to work them already.").
Waters v. City of Dallas , 3:11-CV-0540, 2012 WL 5363426, at *9 (N.D. Tex. Nov. 1, 2012) (citing Walker v. Thompson , 214 F.3d 615, 629 (5th Cir. 2000), abrogated on other grounds by Burlington Northern , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ).
Holden v. Illinois Tool Works, Inc. , Civ. Action No. H-06-2981, 2008 WL 183334, *10 (S.D. Tex. 2008).
Ogden v. Potter , 397 Fed.Appx 938, 939 (5th Cir. 2010) (in the context of retaliation). The Court notes that while this quote applied to the plaintiff's retaliation claim in Ogden , it applies with equal force in the discrimination context, because the applicable standard for determining whether an adverse employment action has occurred in a retaliation case is less stringent than that needed to establish a prima facie case of discrimination. See Burlington Northern & Santa Fe Ry. Co. v. White , 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
Doc. 50-4, p. 3.
Doc. 50-2, pp. 19-20, and 24.
Doc. 50-2, pp. 20-21; Doc. 50-1, p. 1.
Doc. 50-2, p. 24.
Southard v. Texas Bd. of Criminal Justice , 114 F.3d 539, 555 (5th Cir. 1997).
Pegram , 361 F.3d at 283 (quotation omitted).
Alvarado v. Texas Rangers , 492 F.3d 605, 613 (5th Cir. 2007).
Forsyth v. City of Dallas, Tex. , 91 F.3d 769, 774 (5th Cir. 1996). See also , Lutman v. McHugh , 20 F.Supp.3d 575 (W.D. Tex. 2014) ("A plaintiff's subjective belief that a new position is less prestigious, however, is insufficient to show that an adverse employment action has occurred: '[r]ather, a plaintiff must produce enough evidence to allow a reasonable trier of fact to conclude that, when viewed objectively, the transfer caused [him] harm.' "(quotation omitted) ).
Doc. 41-8; Doc. 41-9; Doc. 41-10.
Doc. 41-10 (General Order 103: Vehicle Pursuits).
Doc. 41-9, p. 4.
Doc. 41-9, p. 4.
She was originally suspended for thirty days without pay; however, on appeal, Morris' suspension was reduced to fifteen days. Doc. 41-9, pp. 3 and 6.
The Fifth Circuit has found that an employee's violation of company policy can be a legitimate, non-discriminatory reason for termination. See , Ng-A-Mann v. Sears, Roebuck & Co. , 627 Fed.Appx. 339, 341 (5th Cir. 2015) ; Elliott v. Group Medical & Surgical Service , 714 F.2d 556, 566 (5th Cir. 1983).
Vaughn v. Woodforest Bank , 665 F.3d 632, 637 (5th Cir. 2011) (quoting Laxton v. Gap, Inc. , 333 F.3d 572, 579 (5th Cir. 2003) ).
Doc. 50-1, p. 3. Morris believed that the other unmarked vehicle was a police unit because she "saw the handcuffs hanging in the window of the unmarked vehicle." Doc. 50-2, p. 40.
See LeMaire v. La. Dep't of Transp. & Dev. , 480 F.3d 383, 391 (5th Cir. 2007). See also , Kiel v. Texas Parks and Wildlife Dept. , No. 1:14-CV-748-LY, 2016 WL 7616532 (W.D. Tex. June 16, 2016) ("the pretext 'dispute is not whether the incident happened' or whether the employer's decision was correct or fair" (quoting Burton v. Freescale Semiconductor, Inc. , 798 F.3d 222, 235 (5th Cir. 2015) ; Hernandez v. Johnson , 514 Fed.Appx. 492, 498 (5th Cir. 2013) ).
Burton , 798 F.3d at 235 (citing Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 899 (5th Cir. 2002) ). See also, Jackson v. Tex. Parks and Wildlife Dept. , Civ. Action No. 1:14-748-LY, 2016 WL 7616532, *7 ("the inquiry is whether the employer's perception of the plaintiff's actions, accurate or not, was the real reason for the adverse employment action" (quoting Laxton v. Gap Inc. , 333 F.3d 572, 579 (5th Cir. 2003) ).
Bryant v. Compass Group USA, Inc. , 413 F.3d 471, 478 (5th Cir. 2005) (quoting Okoye v. Univ. of Tex. Houston Health Sci. Ctr. , 245 F.3d 507, 514 (5th Cir. 2001) ).
Eyob v. Mitsubishi Caterpillar Forklift America, Inc. , 2017 WL 3215171, *7 (S.D. Tex. July 28, 2017) (citing Player v. Kan. City S. Ry. Co. , 496 Fed.Appx. 479, 481 (5th Cir. 2012) (quoting Lee v. Kan. City S. Ry. Co. , 574 F.3d 253, 259-60 (5th Cir. 2009) ).
Doc. 50-1, p. 4; Doc. 50-4, p. 4.
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc)(citations omitted)(on a summary judgment motion a non-moving party must come forward with more than "conclusory allegations, speculation, and unsubstantiated assertions.").
Doc. 51, pp. 4-5.
Doc. 50-6, pp. 19-20; 23-24. (When Lt. Vernon Scott with Internal Affairs learned of an incident from another Deputy, where Jackson allegedly gave Morris a key to a hotel room, Scott contacted Morris "to see if it was true and [he] told her it's [his] job to protect her." Although Morris did not deny the incident had occurred, she told Scott that "we don't tell on supervisors in New Orleans." Scott further testified that Morris did not file a complaint, even though he made sure that opportunity was available to her.).
Woods v. Delta Beverage Group, Inc. , 274 F.3d 295, 298 (5th Cir. 2001) (citing Shepherd v. Comptroller of Public Accounts of the State of Tex. , 168 F.3d 871, 873 (5th Cir. 1999) ). To affect a term, condition, or privilege of employment, the harassment must be "sufficiently severe or pervasive so as to alter the conditions of the [plaintiff's] employment and create an abusive working environment." Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
Watts v. Kroger Co. , 170 F.3d 505, 509 (5th Cir. 1999).
Doc. 37. It is also worth noting that Plaintiff never asserted a sexual harassment hostile work environment claim in her original Petition (Doc. 1-2) or in the Joint Status Report (Doc. 5).
Doc. 37, p. 4.
The Court notes that the Plaintiff will have to prove all five elements for her co-worker sexual harassment hostile work environment claim.
Doc. 41. | 01-03-2023 | 07-25-2022 |
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