url stringlengths 56 59 | text stringlengths 0 4.8M | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/4035555/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-16-00269-CR
NO. 09-16-00270-CR
________________
ALEXANDER RIDEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 08-5098, 09-5684
__________________________________________________________________
MEMORANDUM OPINION
Appellant Alexander Rideaux attempts to appeal the trial court’s failure to
grant his motion, in which he asked the trial court to rescind its order that required
payment of court costs, fees, and fines from Rideaux’s inmate trust fund account.
On August 17, 2016, we informed Rideaux that he had not established that the trial
court entered an appealable order, and we notified Rideaux that we would dismiss
the appeals unless we received a response that establishes that an appealable order
1
was entered. See Tex. R. App. P. 44.3. Rideaux filed a response, but he failed to
establish that an appealable order was entered. Accordingly, we dismiss these
appeals for want of jurisdiction. See Tex. R. App. P. 42.3(a).
APPEALS DISMISSED.
______________________________
CHARLES KREGER
Justice
Submitted on September 20, 2016
Opinion Delivered September 21, 2016
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
2 | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435461/ | It may be noted that the trial court sustained the defendant's motion for a directed verdict upon several grounds (13 in number) among which were, inter alia:
(1) That recklessness within the meaning of Section 5026-b1 was not shown.
(2) That no recklessness within the meaning of the statute herein cited was shown by the evidence to have been the direct and proximate cause of the injury to the plaintiff.
(3) That the undisputed evidence discloses that the plaintiff went to sleep in the back seat of said car, and exercised no care for her safety, and was, therefore, guilty of contributory negligence as a matter of law.
(4) That before plaintiff would be entitled to recovery, it must appear in the evidence that the driver of the car in which she was a guest was not alone negligent, but that the driver's conduct was of such a character as to indicate an indifference to the consequences of his actions and to constitute on his part misconduct, and that the driver of said car carelessly and heedlessly drove said car in a willful disregard of the rights of others.
(5) That the driver, Nelson Briggs, was not driving said car in the exercise of due care, and that there was no showing under the record of any facts or circumstances which would warrant the court in submitting the case to a jury.
(6) That the doctrine of res ipsa has no application to the facts in this case, for the reason that plaintiff elected to plead specific particulars of negligence, and not general negligence. *Page 463
It may be noted that this case was tried on October 7, 1931, and prior to the decision of this court in Siesseger v. Puth,213 Iowa 164; Neessen v. Armstrong, 213 Iowa 378; Kaplan v. Kaplan,213 Iowa 646; Wilde v. Griffel, 214 Iowa 1177.
[1] This case involves the guest statute. The plaintiff Helen Phillips is conclusively shown to have been a guest in an auto driven by Nelson Briggs. The evidence shows that on July 30, 1930, the plaintiff Helen and one Ruth Cole left Hancock, Iowa, about 7:30 P.M., in a car driven by Nelson Briggs. The three young people drove to Avoca, Iowa, about 6 or 7 miles distant. At Avoca they picked up another mutual boy friend and drove to Council Bluffs to visit certain relatives of Ruth's. They remained in Council Bluffs a short time and the four returned to Avoca about 11:30 P.M. At Avoca the guest, Helen Phillips, was invited to ride in the front seat, but expressed to the driver that she was sleepy and would lie down in the back seat. From Avoca to the scene of the accident it was six miles. The appellant, Helen Phillips, next gained consciousness when she was lying on a cot after the accident.
There was no evidence offered or introduced to show any negligence, much less recklessness, on the part of the driver Briggs at the time or immediately prior to the accident. It is shown by neighbors, who examined the tracks leading from the road to the ditch on the day following the accident, that they observed tracks leading from the traveled portion of the highway to the place where the car stopped in the ditch, and that the road was probably 66 feet wide between fences, and that the condition of the road was good, smooth, and dry; that there was a hole where the car was, on the west side of the grade, and a ditch along the edge of the road, and that the marks "started from 60 to 100 feet north of the hole;" that the tracks were out in the soft dirt; and that one of the neighbors observed that "one of the front tires was flat," and "saw one of the fenders bent." The ditch was 3 1/2 feet deep and 10 feet wide. The car was sitting right up in the ditch and was not turned over. The hole was caused by the removal of a ditch tube which had been taken out where this ditch was.
It is a legal proposition that negligence, even if proven, is insufficient to authorize recovery by a guest against his host for injuries from an automobile accident. Under our decisions the term "reckless," in the operation of a car under such circumstances, implies no care, with disregard for consequences, and proceeding *Page 464
without heed or concern for consequences. Recklessness is a stronger term than negligence. Under Section 5026-b1, Code 1931, a guest may recover from the owner or operator of a motor vehicle any damage which may have been occasioned (1) by the driver of said motor vehicle when he is under the influence of intoxicating liquor; or (2) by reason of the reckless operation by the driver of such motor vehicle. As pointed out, there is no question involved in the evidence that the driver was under the influence of intoxicating liquor. It becomes important, then, to learn from the evidence whether the driver may be charged with any recklessness within the meaning of Section 5026-b1 as has been defined and construed by this court. It is the contention of the appellee that at the time of the accident, the appellant, Helen Phillips, was in no position to determine the speed at which the car was being driven. It is the further contention that the appellant wholly failed to establish any cause of action against the defendants or either of them, or that the defendant Briggs was shown by any evidence to have been guilty of any recklessness which was the direct and proximate cause of the injury in question.
The law governing recklessness on the part of the driver of an automobile which involves injury to a guest is well defined by this court. The instant facts do not measure up to the standards required to establish recklessness on the part of an automobile driver. In Siesseger v. Puth, 213 Iowa 164, a majority of this court construed recklessness as the same is used in Section 5026-b1. It is therein said:
"In light of the circumstances under which said chapter 119 was passed, it is apparent, we think, that the legislature intended the word `reckless' therein to mean `proceeding without heed of or concern for consequences.' To be `reckless,' one must be more than `negligent.' Recklessness may include `willfulness' or `wantonness,' but if the conduct is more than negligent, it may be `reckless' without being `willful' or `wanton;' but to be reckless in contemplation of the statute under consideration, one must be more than negligent. Recklessness implies `no care, coupled with disregard for consequences.'"
To the same effect is the doctrine applied in Neessen v. Armstrong, 213 Iowa 378. The Neessen case, supra, is an automobile guest case, and the action is based upon recklessness, which follows *Page 465
in definition Siesseger v. Puth, 213 Iowa 164. Likewise are the cases of Kaplan v. Kaplan, 213 Iowa 646; Levinson v. Hagerman,214 Iowa 1296; Wilde v. Griffel, 214 Iowa 1177; Cerny v. Secor,211 Iowa 1232.
We recognize in this state that there is no such thing as degrees of negligence, and even though negligence is great, it is still negligence. See Hanna v. Central States Electric Co.,210 Iowa 864.
[2] It is contended by the appellant that the doctrine of resipsa loquitur finds application to the facts in this case. The appellee contends to the contrary. Judge Kenyon, speaking for the U.S. circuit court in Dierks Lbr. Coal Co. v. Brown, 19 Fed. 2d 732, l.c. 735, said:
"The doctrine of res ipsa loquitur raises a rebuttable fact presumption of negligence. * * * but, as said in Francey v. Rutland R.R. Co., 222 N.Y. 482, 119 N.E. 86: `This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that unless an explanation be given the only fair and reasonable conclusion is that the accident was due to some omission of defendant's duty.' This rule does not relieve the plaintiff from the burden of showing negligence, and does not shift the burden of proof in the case. The presumption arising from the circumstances may be sufficient to take the case to the jury, unless the entire evidence is such that the presumption cannot stand against it."
[3] It is true that recklessness must be proved as alleged. It is also fundamental that if any ground of a motion to direct a verdict is good, then the ruling sustaining the motion must be affirmed. Furgason v. Bellaire, 197 Iowa 277; Quellmalz Lbr.
Mfg. Co. v. Hollowell, 198 Iowa 722.
We find no case where any court has gone so far as to invoke the doctrine of res ipsa and therefore create a presumption or inference of recklessness. Even negligence cannot be predicated upon presumption or inference. In re Hill Estate, 202 Iowa 1038.
It is the general rule of this state that in matters of proof, a litigant is not justified in inferring a fact as proven from mere possibility of existence of facts. Ashcraft v. Davenport Locomotive Works, 148 Iowa 420; Dingmon v. Chicago N.W.R. Co.,194 Iowa 721; Gibson v. Iowa Central Railway Co., 136 Iowa 415; *Page 466
Rauch v. Des Moines Elec. Co., 206 Iowa 309; Anderson v. Ft. Dodge, D.M. S.R. Co., 208 Iowa 369.
For the reasons pointed out, the ruling of the trial court on the motion for a directed verdict was correct. — Affirmed.
STEVENS, C.J., and EVANS, FAVILLE, ALBERT, KINDIG, WAGNER, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435462/ | George Humphrey died testate November 26, 1929. His wife preceded him in death, but he was survived by the following children, heirs at law, and beneficiaries: Anna Humphrey Shaw, Georgianna Humphrey Lahr, and Louis Humphrey, plaintiffs-appellants, Rozella Norwood, defendant-appellee, *Page 913
and Lizzie Goodell. Rozella Norwood and C.W. Norwood, the defendants-appellees, are wife and husband.
Under the will, dated March 24, 1924, the property owned by George Humphrey, the testator, at his death was to be divided equally among the five children. There were two codicils to the will. The first codicil, dated April 23, 1924, nominated the appellant, Louis Humphrey, as executor under the will, while the second codicil, dated January 22, 1925, in effect cancelled that nomination and named A.M. Goodell and the appellee C.W. Norwood as executors. This will, with the codicils, was filed for probate in the Benton County District Court January 4, 1930, but has not yet been admitted to probate. Delay in probating the will seems to have arisen because of the commencement of the present action by appellants.
On December 30, 1929, the appellants Louis Humphrey and Anna Humphrey Shaw were appointed special administrators. In that capacity they, together with Louis Humphrey, Anna Humphrey Shaw, and Georgianna Humphrey Lahr, as individuals, commenced the present proceedings in equity against the appellees. During the trial, Louis Humphrey, Anna Humphrey Shaw, and Georgianna Humphrey Lahr withdrew as parties to the suit. Consequently the special administrators remained as plaintiffs. Hereafter these special administrators will be referred to as appellants.
Originally the suit was brought on the theory that appellees had in their possession certain property belonging to George Humphrey, deceased, for which they had not accounted. An accounting was asked accordingly. Later, however, the appellants amended the petition on the theory that the properties of George Humphrey, deceased, received and held by appellees, may have been obtained by them through a purported gift or contract. Hence, the amendment alleged that the said decedent was not mentally competent to make a gift or execute a contract. Upon those theories the case was tried, and the district court found for the appellees, and denied appellants the relief demanded. Although appellants claimed, through their pleadings, that appellees had wrongfully received and retained $15,000 of the decedent's property, during the trial it developed that $8,000 only was the amount involved.
I. Appellees admit that on or about June 2, 1926, George *Page 914
Humphrey, the decedent, then living, gave the appellee Rozella Norwood a check for $8,000. This check was signed by George Humphrey and deposited by Rozella Norwood to her own credit. She has since retained the proceeds thereof. Rozella Norwood, it is to be remembered, is the daughter of George Humphrey.
Mrs. Humphrey and her husband, George Humphrey, now deceased, for many years lived on a farm near Vinton. Sometime in 1912 the father and mother, for a reasonable price, sold the farm to Louis Humphrey, with the hope and understanding that he would retain title thereto, in order that the old home might be kept in the family. As a part of that transaction Louis gave his father a note, secured by a mortgage on the farm, for the amount of $21,000. Apparently the father and mother, after selling the farm, moved to a home in town. The mother died sometime in the fall of 1924. Shortly thereafter, George Humphrey, the father, went into the home of his daughter Anna Humphrey Shaw, at Waterloo. He remained there only a short time, and then went to live in the home of his daughter the appellee Rozella Norwood, at Vinton. Before the mother died it was her desire that after her death her husband, George Humphrey, live with the daughter Rozella Norwood. That daughter resembled her mother very much, and therefore the father considered her his favorite.
Mr. Humphrey had a lovely home with the Norwoods, and he appreciated it very much. On June 2, 1926, George Humphrey divided $15,000 among his five children above named. To each child he gave the sum of $3,000. It appears, however, that at least some of the children were at that time indebted to him, and the amount of such indebtedness in each case was deducted from the $3,000 given. Although $15,000 of George Humphrey's property was thus divided among his five children, he nevertheless received from each child a promissory note for $3,000, bearing five per cent interest, payable annually. Each note, however, according to the agreement of the parties, was to be cancelled upon the death of George Humphrey. Rozella Norwood, the appellee, on the same day received from her father the aforesaid check for $8,000.
Appellees were restricted when testifying because of the statute against the revelation of conversations of persons since deceased. According to the testimony of the appellee C.W. *Page 915
Norwood, his wife Rozella and George Humphrey had a transaction resulting in the issuance of the $8,000 check. This check was "issued" to the appellee Rozella Norwood, and, as before explained, she deposited it to her own account in the bank, and has since retained the proceeds thereof. Some explanation was furnished by the witnesses concerning the reason why George Humphrey issued this check to Rozella. Old acquaintances of George Humphrey's talked to him on the streets of Vinton and at the Norwood home upon several occasions. Mr. Humphrey told these old friends of his special love and affection for his daughter Rozella Norwood. Likewise he expressed to these friends his appreciation for the home his daughter Rozella was furnishing him. At the same time, George Humphrey indicated that he was going to show his appreciation and furnish some compensation to his daughter Rozella for the home by giving her more of his property than the amounts to be received by the other children.
Margaret Holden testified that during a conversation George Humphrey told her "his whole life history." During this conversation Mr. Humphrey stated to the witness that he had divided his property among his children. Upon this occasion, he also said that Mrs. Norwood "was going to get more than the others." Continuing the conversation, Mr. Humphrey further stated to the witness that Mrs. Norwood was "to get the lion's share."
Joseph Gillespie, another witness, also testified about a conversation which he had upon this subject with George Humphrey. According to this witness, Mr. Humphrey said he had given "his house to the girls, sold the farm to his son Louis, made a distribution of his money, and executed a will." That conversation was after the $8,000 check had been given to Mrs. Norwood.
Several other witnesses testified concerning conversations with George Humphrey during which he stated that, because of the goodness of his daughter Rozella Norwood, she was to receive more of his property than his other children. Manifestly it is evident that George Humphrey, upon the occasion in question, gave his daughter Rozella Norwood the $8,000 check as a gift, and perhaps as compensation for furnishing him a home. George Humphrey lived in that home with his daughter and her *Page 916
husband for approximately five years. He was contented there, and appreciated the love and kindness of his daughter who so much resembled her mother.
It is true, as claimed by appellants, that these witnesses sometimes said Mr. Humphrey stated "he was going to give his daughter Rozella Norwood more property than the other children." By the use of what appellants claim is the future tense, George Humphrey, they say, expressed the thought that he had not yet given the additional property to his daughter Rozella Norwood. Hence it is argued that the intended gift was never executed. That being true, appellants maintain that the $8,000 received by Rozella Norwood should be returned because the father did not fulfill his intention of giving the same to her. A fair consideration of the entire record, however, constrains us to find that George Humphrey expressed the thought that he had given the $8,000 to his daughter Rozella Norwood. Great care must be taken in considering the statements of oral. conversations. At least two witnesses testified that George Humphrey stated Mrs. Norwood was getting more of his property than the other children, and again, that she was receiving "the lion's share." This, together with the fact that the appellee C.W. Norwood testified about a transaction between his wife Rozella and her father whereby the $8,000 check was issued, indicates a conclusion of the matter at that time. When stating what he was going to do with his property, George Humphrey, of course, had in mind his whole scheme of disposing thereof. For instance, he made gifts and executed a will. Although the will was executed, George Humphrey nevertheless gave $3,000 on the occasion named to each of the children. On the same date he gave the appellee Rozella Norwood an additional $8,000 check. Notes were taken for each $3,000 gift, to be cancelled upon his death. No note was taken from Rozella Norwood for the $8,000 gift. So, when George Humphrey was talking to his old friends about "going to give Mrs. Norwood more than the other children," he undoubtedly had in mind his scheme of giving: that is to say, he perhaps considered that the $3,000 gift to each was not completed until his death, because during his lifetime he had the note of each child for the $3,000. Each note bore interest at five per cent per annum. Moreover, the property not disposed of by gifts was to be divided through the will. In other *Page 917
words, the giving referred to by George Humphrey would not be completed until his death. Thus, when he may have stated to an old friend that he "was going to give Rozella Norwood more than the other children," he undoubtedly had in mind that, when all the giving was completed, she would have more than the rest.
[1] But it is claimed by appellants that after the gift was made, the appellee Rozella Norwood did not list the $8,000 for taxes. Likewise, it is asserted that George Humphrey thereafter reported for taxation moneys and credits to the extent of $18,000. Hence, it is argued that the $8,000, regardless of the alleged gift transaction, must have remained the property of George Humphrey. Manifestly such conclusion is not the necessary result of the appellee Rozella Norwood's failure to list the $8,000 item for taxes. Nor is the fact that George Humphrey listed $18,000 for taxes after the aforesaid gift transaction indicative that the gift was not made. There are several reasons why the appellee Rozella Norwood might not have listed the $8,000 for taxation. Possibly she had debts in sufficient amounts to offset the credit. It may be that she neglected listing the item for taxation. In any event, the circumstance is not sufficient to overcome the record, which persuasively indicates that the gift was made. George Humphrey, on the other hand, when listing moneys and credits to the amount of $18,000, did not necessarily include the $8,000 gift to his daughter Rozella Norwood. He was holding five notes of $3,000 each, executed by his children in the manner and way before explained. The total of those notes would amount to $15,000. According to the record, Mr. Humphrey owned other moneys and credits. When listing such moneys and credits to the extent of $18,000, George Humphrey did not identify or specify the $8,000 contained in the gift. Apparently the $8,000 gift was not reported for taxation by George Humphrey. While the foregoing circumstances, relating to the alleged listing on the one hand and the purported failure to list on the other, must be weighed and given full force and effect, yet they are not sufficient to overcome the other evidence in the record.
Under the entire record, then, it is obvious that George Humphrey gave his daughter, the appellee Rozella Norwood, the $8,000 upon the aforesaid occasion. Perhaps the gift was partly *Page 918
to compensate her for his lovely home, kind care, and affection. Nevertheless, he gave her the money.
[2] II. Appellants contend, however, that the appellees exercised a superiority over the said George Humphrey, and a confidential and trust relationship existed between them. Furthermore, it is urged by appellants that the mentality of George Humphrey was very low because of age and disease. With the existence of that weak mentality, appellants declare that it was comparatively easy for appellees to exercise their superiority over George Humphrey and obtain from him the $8,000 gift. Such gift, appellants argue, was obtained by appellees from George Humphrey because of the confidential and trust relationship and exercise of the aforesaid superiority. Therefore appellants conclude that the gift was obtained by appellees by exercising undue influence over George Humphrey, and because thereof a constructive fraud arose. The burden of proof, then, under those circumstances, to rebut the presumption of fraud, appellants insist, is upon the appellees. On this point they cite McNeer v. Beck, 205 Iowa 196; Burger v. Krall, 211 Iowa 1160; Osborn v. Fry, 202 Iowa 129; Pruitt v. Gause, 193 Iowa 1354; and other cases.
As shown by the foregoing authorities, it unquestionably is true that under certain circumstances the son or daughter who is the grantee in a deed executed by an aged and mentally weak father or mother, or the recipient of a gift made by such parent, does have the burden of proving that the transaction is fair and free from fraud. That general rule, however, has no application to the facts revealed in this record.
"The rule is, of necessity, applied according to the peculiar circumstances of the particular case where the question arises." Osborn v. Fry (202 Iowa 129, local citation 130), supra.
Consequently, before a conclusion can be reached in the case at bar, it is necessary to review the facts revealed by the record.
George Humphrey and the appellee Rozella Norwood, as before explained, were father and daughter. This relationship, however, in and of itself is not sufficient to create a trust or confidential relationship and cast upon the recipient of a gift the burden of disproving undue influence or constructive fraud. Roller v. Roller, 201 Iowa 1077 (local citation 1082); Stonewall *Page 919
v. Danielson, 204 Iowa 1367 (local citation 1370); Albaugh v. Shrope, 197 Iowa 844; Erusha v. Wisnewski, 207 Iowa 1187; O'Neil v. Morrison, 211 Iowa 416.
In addition to the foregoing it appears from the record, as previously suggested, that George Humphrey, during the last five years of his life, lived in the appellees' home. But that fact alone does not create the relationship of confidence and trust.
"The mere fact of residence (of a parent) in the home of (a daughter) * * * is not a basis for a claim of fiduciary relationship." O'Neil v. Morrison, 211 Iowa 416, supra.
Wherefore, it is necessary to search further for evidence indicating confidential and trust relationship. Underlying the doctrine of confidential and trust relationship as applied to this case "is the presence of a dominant influence, under the impulse of which the act is presumed to have been done." That is the essential thing, and the very gist of the doctrine as applied to this record. Albaugh v. Shrope (197 Iowa 844, local citation 849), supra. Here, however, there is absolutely no evidence showing that the appellee Rozella Norwood exercised any dominance of any kind whatever over her father, George Humphrey. Rather than domineering over him, the record indicates that she at all times conducted herself as a loving and dutiful daughter, who was doing her utmost to provide for her father a comfortable and happy home. While George Humphrey was living with his daughter, appellants visited him on many occasions. George Humphrey, without molestation, invited friends and relatives into the Norwood home. Also friends, neighbors, and children visited the old gentleman when he was walking about the town of Vinton. The element of dominance, therefore, is not present.
Also there is no evidence indicating that this daughter advised her father concerning his business affairs or in any way influenced him in reference thereto. It is claimed, however, by appellants that the domineering over George Humphrey was exercised by the appellee C.W. Norwood, the husband of the appellee Rozella Norwood. On March 2, 1925, George Humphrey gave to the appellee C.W. Norwood and A.M. Goodell a power of attorney "to look after, care for, and manage" the former's business. Obviously the purpose of this power of attorney was to force the collection of the amount due George Humphrey on *Page 920
the aforesaid mortgage executed by his son Louis Humphrey. This mortgage was given by Louis Humphrey to his father to secure part of the purchase price of the above-named farm. Upon receiving the power of attorney, C.W. Norwood and A.M. Goodell compelled Louis Humphrey to pay the remainder of approximately $17,000 due on the mortgage. After receiving the proceeds of that mortgage, George Humphrey, the father, as before explained, divided $15,000 of the money among his five children, by giving each $3,000 thereof. So far as shown by the record, however, C.W. Norwood and A.M. Goodell performed no other duties under the power of attorney. At all events, neither C.W. Norwood nor A.M. Goodell had anything to do with inducing George Humphrey to give the appellee Rozella Norwood the said $8,000. She herself received the gift and made the deposit thereof to her own credit. According to the testimony, the appellee C.W. Norwood took no part in the transaction.
Consequently there is nothing to show that the gift to the appellee Rozella Norwood was obtained by dominance over George Humphrey. Neither does it appear that there was any relationship of confidence or trust between George Humphrey and the appellee Rozella Norwood. Likewise, as before explained, there is no evidence offered to indicate that the appellee C.W. Norwood had anything whatever to do with the gift transaction.
More than that, the appellants have failed to prove that George Humphrey, when he made the gift to the appellee Rozella Norwood, on June 2, 1926, was mentally incompetent or of such inferior mentality as to enable another to domineer over him. Having failed, then, to show the relationship of trust and confidence between George Humphrey and his daughter Rozella Norwood and the exercise of dominance by her over him, the burden is not upon appellees "to rebut the presumption that the `gift' transaction was fraudulent and voidable." See cases above cited. Appellants have failed to show that the transaction was not in good faith. They have proven no fraud, and have neither alleged nor proven undue influence. Under those circumstances, the district court properly refused to set aside the gift.
[3] III. Although the burden of proof above discussed was not upon appellees, appellants argue nevertheless that George *Page 921
Humphrey, when making the alleged gift, was incompetent and of unsound mind. Therefore, they conclude that he was not capable of making a valid gift or executing an enforceable contract. Again appellants have failed to carry the necessary burden of proof.
Several witnesses testified for appellants concerning the mental condition of George Humphrey. When making the gift to the appellee Rozella Norwood, Mr. Humphrey was 75 years old. Sometimes during the later years of his life, he wept when thinking of his deceased wife. That surely is no indication of insanity. The old gentleman had arteriosclerosis. How far the malady had developed does not appear. Many men who have arteriosclerosis are competent to make gifts and contracts. Furthermore, it is said that upon an occasion Mr. Humphrey did not recognize one or two of his grandchildren. This incident in itself does not necessarily indicate weak mentality. Other witnesses testifying for appellants stated that George Humphrey steadily failed after his wife died, that he was forgetful, and that his mind "was bad." Just when these conditions existed in reference to June 2, 1926, when the gift was made to Rozella Norwood, does not appear. Nor is it indicated what the witnesses meant by saying that George Humphrey's mind was bad. There is nothing to indicate the degree of "badness." These witnesses called by appellants made other statements in reference to the mental condition of George Humphrey, but there is nothing in this testimony which suggests that on the occasion in question he was not capable of making the gift. Moreover, on the day Mr. Humphrey gave the appellee Rozella Norwood the $8,000, he gave each of the appellants $3,000. If he was mentally competent to make one gift, he was likewise capable of making the other. At or about the same time, George Humphrey divided among his children, including the appellants, an interest in his deceased wife's estate. So, too, on that occasion he deeded them a farm. Other transactions were had between appellants and George Humphrey about the same time. Appellants, then, on those instances must have considered their father competent to transact business. Not only that, but many old friends of George Humphrey's testified for appellees concerning his mentality. Those witnesses include John Sellers, Ralph H. Niemeier, G.R. Holden, Mrs. Odille Howard Jameson, and Joseph *Page 922
Gillespie. Each of those witnesses was disinterested, and all of them emphatically stated that George Humphrey's mind was sound. It was with these last-named witnesses that Mr. Humphrey discussed the disposition of his property and the making of gifts, etc. The range of conversation between these witnesses and George Humphrey was rather broad. Many subjects were discussed. Everything indicates mental soundness. A preponderance of the evidence is in favor of soundness rather than unsoundness of mind. Consequently the district court did not err in failing to set aside the gift on the theory that George Humphrey did not have mental capacity to make it.
Wherefore, the judgment and decree of the district court should be, and hereby is, — Affirmed.
WAGNER, C.J., and EVANS, FAVILLE, ALBERT, MORLING, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435360/ | Ed. Robinson was accidentally killed in a clay pit on March 11, 1924. He left surviving him his widow, plaintiff herein, and two stepchildren, nine and twelve years old, respectively, and these are represented in this litigation by their trustee, Leo Chapman. No question is raised as to the relation *Page 903
of employer and employee, as between the deceased, Ed. Robinson, and the defendant Charles Eaves; nor is it questioned that Eaves met his death accidentally, in the course of his employment.
The commissioner denied compensation to the widow, on the ground that she had deserted the deceased three days before his death, and that she was thereby precluded, under the statute, from claiming compensation. The commissioner awarded to the stepchildren, however, the statutory compensation. This award, being affirmed in the district court, is the basis of the appeal presented for our consideration. The deceased and the plaintiff herein were married in April, 1923. The plaintiff had been previously the wife of one John Adler, and had obtained a decree of divorce from him, which decree awarded to her the custody of her minor children, whose interests are now involved in this litigation. After the marriage, these minor children became members of the family of Ed. Robinson. The home was maintained at Ottumwa, Iowa. The former home of the plaintiff was at Fairfield, and her former husband still lived there. She had also an adult son, William, who was married, and maintained a home in Fairfield. The deceased met his death on Tuesday. On Saturday preceding, the plaintiff left the Ottumwa home, and went to Fairfield. She addressed a note to her husband, advising him that she was leaving him, and that she would not return. She took with her her two minor children, and went to the home of her son, William, at Fairfield, to care for a sick child, as claimed. Her former husband, John Adler, lived under the same roof, — whether as a member of William's family does not appear.
Upon this state of facts, the question is raised whether the two minor children of the plaintiff, being the stepchildren of the deceased, were dependents upon the deceased at the time of his death. The appellants contend for the negative. The argument for appellants is predicated upon the general proposition that these stepchildren ceased to be members of the family of the deceased on Saturday, when their mother took them to Fairfield; that he was not thereafter liable for their support; and that, therefore, they were not actually dependents upon him. The further argument is that, because they were not actually dependents upon the deceased after Saturday, then the statutory *Page 904
presumption created in their favor is thereby wholly rebutted. Section 1402, Code of 1924, provides:
"The following shall be conclusively presumed to be wholly dependent upon the deceased employee: * * * 2. A child or children under sixteen years of age, and over said age if physically or mentally incapacitated from earning, whether actually dependent for support or not upon the parent at the time of his or her death. An adopted child or children or stepchild or stepchildren shall be regarded the same as issue of the body."
Section 1404, Code of 1924, provides as follows:
"In all other cases, questions of dependency in whole or in part shall be determined in accordance with the facts as of the date of the injury."
Upon the face of the statute, Section 1402 would seem to be decisive of the whole question. That these children were the stepchildren of the deceased is not controverted. What is contended for by appellants is that they were not members of his family, and that they had ceased to be dependents upon him, because their natural father had assumed their support, and because they thereby became dependents upon him, and not upon the deceased. The commissioner found, and the district court affirmed, not only that they were stepchildren, and thereby conclusively presumed to be dependents, but also that they were actual dependents upon the deceased at the time of his death, in that at no time since the marriage of the mother to the deceased had these minor children received any support from any other source than from the deceased, and that this actual support by the deceased continued up to the date of his death. As covering the three days intervening between Saturday and Tuesday, it appears from the evidence that the mother and her children subsisted, after their departure from Ottumwa, upon the money already received by her from the deceased; and the commissioner found such to be the fact.
It does appear that, when the mother obtained a divorce from her former husband, John Adler, the decree required said John Adler to pay $15 a month for the support of the minor children. It is argued, therefore, by the appellants that the children were not solely dependent. It is not claimed that John Adler ever paid any part of his obligation under this decree. On the contrary, it appears that he did not. Nor does it appear *Page 905
that anything can be collected from him, by execution or otherwise. The appellants predicate their argument upon the claim that John Adler resumed his family relation with his minor children; that he assumed the support thereof; that he did support them, and was supporting them at the time of the death of the deceased; that thereby they became his dependents, and ceased to be the dependents of the deceased.
Inasmuch as the commissioner found that John Adler had not resumed his family relation to the minor children, and had not assumed their support, and had not in any manner supported them, the very premises upon which appellants build their argument disappear. By the marriage, these children became the stepchildren of the deceased; they became actual members of his family; he assumed their actual support; they received no support from any other source. If it were possible, therefore, for the appellants, upon any hypothesis, to avoid the effect of Section 1402, above quoted, yet the hypothesis is not present in the record. Sufficient, therefore, to say that the statute is controlling.
Indeed, we deem it clear, upon this record, that the commissioner had a right to find, not only that these stepchildren were presumptive dependents, under Section 1402, but also that they were actual dependents, under Section 1404.
The order of the district court is, accordingly, affirmed. —Affirmed.
De GRAFF, C.J., and VERMILION and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435363/ | On May 29, 1919, one John P. De Cook entered into a real estate contract to sell one J.E. Reid 120 acres of farm land in Polk county, Iowa. Reid assigned the contract to the Iowa Farm Investment Company, which later assigned it to the defendants A.H. Howell and Ada E. Howell. On February 28, 1920, De Cook conveyed the real estate direct to Howell by warranty deed. Howell then executed a first mortgage of $22,000 to De Cook, a second mortgage of $8,000 to the Iowa Farm Investment Company, and paid the balance in cash. On October 15, 1922, A.H. Howell and wife executed a note of $5,600, secured by a third mortgage on the real estate in question, to the Altoona Savings Bank, hereinafter referred to as the Bank. The mortgage was duly recorded on December 1, 1922, and delivered to the Bank December 2, 1922. Appellee claims to have purchased this mortgage from the Bank, and these foreclosure proceedings were commenced thereon.
Mr. Reid was president of the Bank from 1919 until 1924, when he was appointed cashier. He held this position until February, 1925, when his connection with the bank was severed entirely. During all that time and for several years thereafter, Reid was also secretary and treasurer of the Iowa Universalist Convention, the appellee herein. He was also a real estate dealer and conducted the negotiations resulting in the sale to the Howells.
One V.M. Henney was cashier of the Bank in 1922. On October 15, 1922, the Bank, through Reid as president and V.M. Henney as cashier, entered into an agreement for the assignment of the $5,600 note and mortgage to the Iowa Universalist Convention represented by the same Reid as its secretary and treasurer; said assignment and agreement being as follows:
"In consideration of $4500 to them in hand paid the Altoona Savings Bank, a body incorporated, by its President and Cashier hereby sell, assign and set over unto the Iowa Universalist Convention the annexed agreement together with certain interest and rights under the same as follows:
"The Iowa Universalist Convention having on hands by its Treasurer J.E. Reid funds amounting $4,500 and the concensus of opinion of the Board of Trustees of the Iowa Universalist Convention that such funds should be loaned on first mortgages Iowa farm lands, the said J.E. Reid being also President of the Altoona Savings Bank had offered to him a loan of $5600 on 120 acres near Altoona Iowa which he did not care to make out of the funds of the bank *Page 1146
and which he did not have all of the amount available with the Iowa Universalist Convention, did make the loan to the Altoona Savings Bank taking note and mortgage therefor and hereby assigned the portion of $4500 to the Iowa Universalist Convention for security for a note of $4500 made to the Altoona Savings Bank and endorsed by the Altoona Savings Bank with recourse.
"This assignment and agreement is to remain in effect until the said mortgage is paid or until one of the body's Incorporate purchase of the other body its full share as shown by two promissory notes, one for $1100 in name of the Altoona Savings Bank and one for $4500 in the name of the Altoona Savings Bank and endorsed by V.M. Henney as cashier.
[Signed] J.E. Reid V.M. Henney."
The negotiations for this assignment were made by Reid and Henney on the part of the Bank with J.E. Reid, the treasurer, for and on behalf of the Iowa Universalist Convention. The records of the Bank show that $4,500 of this money was paid into the Bank on or about the 8th of December, 1922, and the balance of $1,100 was paid into the Bank on or about the 15th of October, 1924.
Plaintiff claims that when the balance of the $5,600 was paid, a regular assignment of the $5,600 mortgage was executed to the Iowa Universalist Convention. At that time a new note of $5,600, to replace the original note, was executed by A.H. Howell and wife direct to the Iowa Universalist Convention. The alleged assignment of said $5,600 mortgage, together with the new note and original mortgage, were delivered to the Iowa Universalist Convention. There is a serious conflict in the evidence as to whether or not the assignment of October 15, 1924, was in fact duly executed by the Bank. The original $5,600 note was not delivered to the Iowa Universalist Convention, but remained in possession of the Bank. Reid testified that he thought the old note was returned. The original note was indorsed on the back: "Altoona Savings Bank, J.E. Reid, president." "Interest paid April 15, 1923, $224.00." It is not necessary to decide whether or not the assignment of October 15, 1924 was in fact executed by the Bank or not, because the evidence shows without conflict that the full consideration for the assignment of the original note and mortgage, under the assignment and agreement hereinabove referred to, was fully paid by the Iowa Universalist Convention *Page 1147
to the Bank on October 15, 1924, and thereby the $5,600 mortgage became the property of the Iowa Universalist Convention.
The present bank officers and several directors testified that they knew nothing about the assignment of this $5,600 note and mortgage to the Iowa Universalist Convention, and that they believed the Bank remained and was the owner of said $5,600 note and mortgage.
The evidence also shows that on or about April 28, 1923, the Bank purchased the $8,000 second mortgage for $5,000; and on September 10, 1923, received a warranty deed to the real estate from A.H. Howell and wife. Notwithstanding this deed, the Bank granted the Howells an extension of the mortgage; but foreclosure proceedings were commenced by the Bank in 1923. These proceedings were disposed of in January, 1924. Thereafter the Howells abandoned all claim to the land and the farm was ever since operated by the Bank as owner under its deed received in 1923.
The legal title of the real estate was then in the Bank, subject to the following liens of record: First, the De Cook mortgage of $22,000; second, the Iowa Farm Investment mortgage of $8,000 which was assigned to the Bank in April, 1923; third, the $5,600 mortgage in question, originally executed to the Bank. The latter is the mortgage now claimed by appellee and upon which it commenced these foreclosure proceedings.
In 1926 and 1927 the Bank paid the De Cook first mortgage in full, amounting in all to over $23,000. De Cook then delivered the $22,000 note and mortgage to the Bank, together with a satisfaction thereof. This was duly filed for record by the Bank on March 3, 1927. On February 24, 1927, the Bank also canceled and released of record the second mortgage of $8,000 and the $5,600 mortgage in question.
[1] I. It is claimed that the president and cashier of the Bank were not authorized by the board of directors to execute the assignment and agreement referred to. While there may be no record evidence of such authorization in the minutes of the corporation, there is testimony tending to show that such authority was given. The evidence shows without conflict, however, that the assignment and agreement was executed for the Bank by its president and cashier; that the Bank received from appellee and retained $4,500 thereon. The evidence also shows without conflict that an additional $1,100 thereon was later paid by appellee to and retained by the *Page 1148
Bank. Therefore even though it be assumed that original authority to execute the assignment and agreement was not authorized, the action of the Bank in receiving and retaining the $5,600 paid thereon by appellee is a ratification of the acts of its president and cashier in executing the agreement. German Sav. Bank v. Des Moines Nat. Bank, 122 Iowa 737, loc. cit. 741, 98 N.W. 606; Porter v. Farmers Merchants Sav. Bank, 143 Iowa 629, loc. cit. 633, 120 N.W. 633; Security Sav. Bank v. Hambright,195 Iowa 1147, loc. cit. 1150, 193 N.W. 576; German Am. State Bank v. Farmers Merchants Sav. Bank, 203 Iowa 276, loc. cit. 280, 211 N.W. 386.
In Security Savings Bank v. Hambright, supra, loc. cit. 1150, we said:
"The question then arises whether the plaintiff may refuse to recognize the conditions attached to the paper by the act of its president, who negotiated the deal and at the same time insist upon the legal obligation of the note so obtained. Let it be admitted, as an abstract proposition of law, that Davis was not the bank, and that, without the authority or approval, express or implied, of the board of directors he could not bind the bank to a recognition of the agreement negotiated by him with the defendant; yet a bank, no less than a private individual, is subject to the rule which is as sound in law as in morals, by which the principal who ratifies or accepts the benefit of an unauthorized act of its agent takes it burdened with the conditions and qualifications which would attend it in the hands of the agent himself; or, to state it in plainer terms, the principal cannot ratify so much of the unauthorized act of the agent as it thinks to its advantage and repudiate the remainder."
We conclude that the action of the Bank is a ratification of the assignment and agreement, and it is now estopped from denying that it is bound thereby.
The assignment agreement clearly implies that the Bank is to assign to appellee the $5,600 note and mortgage upon full payment therefor. The appellee did pay the full amount thereof to the Bank, and it necessarily follows that the full title and ownership of the $5,600 note and mortgage referred to became vested in appellee from and after October 15, 1924, when the final payment was made. All interest payments on said note and mortgage were thereafter made to the Iowa Universalist Convention. *Page 1149
II. Appellant contends that because Reid, appellee's treasurer, knew that the mortgage was not a first mortgage, that his knowledge is imputed to the Iowa Universalist Convention; that because he knew the $5,600 mortgage was only a third mortgage appellee is estopped from having it foreclosed as a first mortgage. It is apparent that appellee understood the money with which it purchased the $5,600 mortgage was to be invested in first mortgage farm lands. The mortgage and the extension thereof both recite that it is a first mortgage, and when plaintiff paid the $5,600 to the bank therefor it was led to believe it was such.
The clear implication of the assignment and agreement is that the bank agreed to sell appellee a $5,600 note secured by a first mortgage on farm land. Under this situation, we find Reid acting as agent for both parties.
Appellee contends that where an agent acts for the beneficial interest of one of his principals, and against the interests of his other principal, knowledge of the agent cannot be imputed to his other principal. In other words, Reid's knowledge that the money was being invested in a third mortgage cannot be imputed to appellee. The application of such a rule has some slight support in Morey v. Laird, 108 Iowa 670, loc. cit. 675, 77 N.W. 835; Daus v. Short, 169 Iowa 1, loc. cit. 4, 150 N.W. 1047; Watt v. German Sav. Bank, 183 Iowa 346, loc. cit. 380, 165 N.W. 897; Port Huron Mach. Co. v. C., M. St. P. Ry. Co., 199 Iowa 295, loc. cit. 299, 201 N.W. 779; Ross v. Northrup, King Co., 156 Wis. 327, 144 N.W. 1124.
In Morey v. Laird, supra, loc. cit. 675, we said:
"The fact that the plaintiff acted as the agent of each party to the transaction did not relieve him of the duty of loyalty to each principal. * * * It is said in Mechem, Ag., section 454, that `loyalty to his trust is the first duty which the agent owes to his principal. Without it the perfect relation cannot exist.' * * * `The agent will not be permitted to serve two masters,without the intelligent consent of both.' * * * Mechem, Ag. section 67. It is the duty of the agent to inform his principal of facts material to his interests which are known to the agent. 1 Am. Eng. Enc. Law (2d Ed.) 1069."
In Port Huron M. Co. v. C., M. St. P. Ry Co., supra, an agent was employed by some farmers to purchase machinery from *Page 1150
plaintiff. Before closing the deal the agent was also employed by the Machine Company. In that case we said:
"It could not take the benefit of such an agency and escape the burden of responsibility therefor. By such arrangement also itdestroyed Hollinberger's agency for the purchasing group so faras its own right to rely on such agency was concerned." (Italics ours.)
The action of Reid in effecting the sale of a practically worthless third mortgage of $5,600 for cash was in the sole interest of his bank, and constituted a fraud upon his other principal, the appellee. In view of the matters discussed in the next division hereof, in reference to the release of the first and second mortgages by the bank, we deem it unnecessary to determine here whether or not Reid's knowledge of the character of the $5,600 mortgage can be imputed to appellee.
[2] III. Appellant contends that it paid off the first two mortgages against the real estate under the mistaken belief that it was the owner of the property; that the $5,600 mortgage was released under the belief that it still belonged to the bank. Appellant claims that having so paid the first two mortgages, the release thereof should be rescinded and that it should be subrogated to the rights previously existing under said mortgages.
It is the general rule of law that when the title owner of real estate pays off a prior mortgage lien, the mortgage does not merge in the title if it is clearly intended that a merger should not take place. Under such circumstances the owner is entitled to be subrogated to the rights of the mortgagee. Bennett Sav. Bank v. Smith, 171 Iowa 405, 152 N.W. 717; Patterson v. Mills, 69 Iowa 755, 28 N.W. 53.
It is likewise the well-settled rule of law in this state, that where the owner of the title pays off a mortgage on the real estate, with the intention of releasing, canceling, and extinguishing the same with knowledge of another outstandingjunior lien, then he is not entitled to subrogation, and if with such knowledge he does pay off, cancel, release, and extinguish such prior liens, when he was not required so to do, he is guilty of negligence in so doing, which will prevent him from the rights of subrogation to a prior mortgagee. Gammon v. Kentner, 55 Iowa 508, loc. cit. 512, 8 N.W. 348; Weidner v. Thompson, 69 Iowa 36, loc. cit. 38, 28 N.W. 422; *Page 1151
Mather v. Jenswold, 72 Iowa 550, loc. cit. 552, 32 N.W. 512, 34 N.W. 327; Fouche v. Delk, 83 Iowa 297, loc. cit. 300, 48 N.W. 1078; Ft. Dodge Bldg. Loan Assn. v. Scott, 86 Iowa 431, loc. cit. 434, 53 N.W. 283; Webber v. Frye, 199 Iowa 448, loc. cit. 451, 202 N.W. 1.
In Weidner v. Thompson, supra, loc. cit. 38, we said:
"The controlling point in the case involves the consideration of the question whether the mortgage was paid, and was intended to be canceled, and was not intended to subsist as a lien for the benefit of plaintiff. It cannot be doubted that the law will look to the intention of the parties, and the interest of the plaintiff, in order to determine whether the mortgage is to be regarded as paid and canceled. The fact that it was canceled of record, will not avail to discharge the mortgage, if the parties intended the lien should continue, and plaintiff's interest demanded it. But if the parties intended to discharge the mortgage, and the debt was in fact paid, and not transferred to plaintiff, the cancellation must stand, and the lien be regarded as discharged. The mere fact that plaintiff's interest would have been better protected by permitting the lien to stand, will not control against the intention, clearly established. The law will permit a party in such a case, as in others, to act and contract in a manner which would not result to his interest. There is no conflict of decisions upon these principles, and we think there is no dispute between counsel in relation thereto."
In Mather v. Jenswold, supra, loc. cit. 552, we said:
"The only question in the case is whether the plaintiff is entitled to have the satisfaction of the Simmons mortgage set aside, and that he be subrogated to all the rights of Simmons. It seems to us that he is not entitled to such relief. The plaintiff made the loan to Lord for the express purpose of paying the Simmons mortgage, and it was well understood that the plaintiff was to accept a new mortgage. The plaintiff got all he bargained for. There was no mistake, except that the plaintiff failed to exercise the diligence required in the examination of the records, and therefore failed to discover the existence of the judgment and sale thereunder. No one can be blamed, but he must suffer loss simply because he was negligent. There is no principle which will allow him to take advantage of that, to the injury of the diligent." *Page 1152
In Fouche v. Delk, supra, loc. cit. 300, we said:
"We do not find in the testimony a word that even remotely sustains the claim that the parties, when the deeds were executed, intended anything but an absolute payment and discharge of the mortgage lien by the defendant. Much is said in argument to the effect that the value of the land (the 30 acres) did not exceed $900; that John Delk was dealing with his son for his support; that the purpose was to release the homestead from the lien of the mortgage; and that it could only be done, so as to protect defendant, by having the mortgage assigned to him, and the lien continued; and that it is reasonable to suppose the parties so intended. But it is unreasonable to suppose they so intended, and not only failed to use any language to indicate the intent, but, on the contrary, used language of a different import. The defendant assumed the burden of showing the facts otherwise than expressed in the deeds, and to do so he must show more than that the facts as he claims them would be to his own interest. The facts are clearly expressed in the writings of the parties, and sustain the legal conclusion above announced. With the facts as we find them, we need not consider the authorities cited by appellee."
In Ft. Dodge Bldg. Loan Assn. v. Scott, supra, loc. cit. 434, we said:
"Plaintiff's contention is that, as it furnished the money with which said mortgages were paid under an agreement that it should be so applied, it is entitled to have the satisfaction of said mortgages cancelled, and to be subrogated to all the rights of the mortgagees. The right to subrogation rests upon equitable grounds, and is never granted as a reward for negligence. While it may be true, as claimed, that no equities inhere in defendant's lien, that it is simply a lien given by law, it is certainly as true that plaintiff's claim is equally void of equities. The position of the plaintiff is the result of its own negligence. It relied upon an abstract of title which was not brought up to date, and which failed to note the pendency of this defendant's action, or the judgment in his favor. An examination of the court records of the county on the day the loan was made would have informed the plaintiff of the existence of this judgment, and that it was a lien upon these lots, whether owned by both or either of the Baehrings. Without making this examination, which the most ordinary care required, plaintiff made the loan, and accepted *Page 1153
its mortgage. Surely equity will not reward such negligence by applying the doctrine of subrogation in favor of the negligent party. To do so would encourage carelessness in taking such securities."
In Webber v. Frye, supra, loc. cit. 452, we said:
"We think appellant was not only negligent, but that it was his intention that the lien of the mortgages was to be extinguished by the payment and satisfaction thereof. In such circumstances, his agreement with the mortgagor and the other parties to the contract of purchase that his mortgage should be a first lien on the premises cannot avail him. He had a right to waive the benefit of the contract in that respect, and this he must be held to have done."
In the case at bar appellant at the time it paid the $22,000 first mortgage and the $8,000 second mortgage well knew that there was a third mortgage of $5,600 outstanding against the real estate. It sold this $5,600 mortgage to appellee for that amount of money and received the cash therefor. This sale was made with the implied understanding that it was a first mortgage. With the knowledge that this was a third mortgage, the Bank in 1923 acquired the second mortgage of $8,000 by paying $5,000 therefor. In 1926 and 1927 it paid off the first mortgage and received a satisfaction thereof. The release and satisfaction of both of these mortgages were duly filed and recorded by the appellant. It is true it also released the $5,600 mortgage appearing of record in its name. All this was done deliberately and with the intention of releasing all of these mortgages. The releases of the first two mortgages were also made with full knowledge that appellee was the owner of $5,600 lien of a third mortgage. The release of the third mortgage was made without any right or authority because it well knew that such mortgage belonged to appellee and the release thereof was therefore of no effect. It now claims that it is entitled to be subrogated to the rights of the first and second mortgages under the doctrine of equitable subrogation. So far as the equities between the parties are concerned, they are all in favor of appellee. Appellant sold the $5,600 mortgage in question to appellee and received the full amount of cash therefor. It will not do now for the appellant to say it did not know of the existence of the outstanding lien of this mortgage, which it sold to the appellee herein for cash. The officers of the Bank at the time the assignment was made and at the *Page 1154
time the money was paid in knew all about the matters in controversy at that time. "`What the directors know regarding matters affecting its interests, the corporation knows.' The bank, once informed, will not be permitted to forget upon some change in its directorate." Watt v. German Sav. Bank, 183 Iowa 346, loc. cit. 366, 165 N.W. 897. The money received by the Bank from the Iowa Universalist Convention was never repaid to that society, and the appellant is not now entitled to any equities under which it is entitled to subrogation of any rights under the first two mortgages, both of which it intentionally, although negligently, fully canceled and released. The mortgages so canceled and released are fully extinguished.
The lower court held that appellee was entitled to foreclose its lien under the $5,600 mortgage as prior and superior to any claim of appellant. The consideration for this mortgage was received from the appellee with the understanding that it was receiving a first mortgage therefor. It would therefore be inequitable and unjust to deprive appellee of its rights thereunder, because its mortgage may have been raised to a first mortgage through appellant's act in paying off the first two mortgages. The lower court found that the purported release of the $5,600 mortgage by the Bank should be canceled and set aside. It further found that the Bank was not entitled to subrogation to any rights under the first and second mortgages, and entered a decree giving appellee the rights of a first mortgage under its $5,600 mortgage. Decree of foreclosure was entered thereon.
Under its deed to the land in question, appellant is only entitled to the right of redemption allowed by statute.
Some other questions are raised and considered but are not deemed of sufficient importance to affect the result of this conclusion.
We believe the decree of the lower court was right, and the same is hereby affirmed.
CLAUSSEN, C.J., and EVANS, STEVENS, ALBERT, ANDERSON, KINDIG, MITCHELL, and DONEGAN, JJ., concur. *Page 1155 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435364/ | [1] The proceedings in this estate have been reviewed by this court on two former appeals. In re Estate of Cocklin, 230 Iowa 415,297 N.W. 864; In re Estate of Cocklin, 232 Iowa 266,5 N.W.2d 577. On the first appeal, it appeared *Page 100
that decedent had executed three wills, one in September 1939, one in December 1939, and the third on February 3, 1940. The contestant, Fanny Watkins, sought to secure a consolidation of proceedings to challenge at one time the validity of all three wills. Her motion was overruled and on appeal this court affirmed the order. The second appeal was taken after the trial of the contest of the will of February 3, 1940. The jury returned a verdict for proponent both as to the testamentary capacity of testator and the absence of undue influence. This court affirmed the judgment. The questions now presented to us relate to the will contest and the entire record therein was introduced in evidence herein.
The decedent was wealthy and left a large estate. He left a widow but no issue surviving. The beneficiaries here before us are two brothers and two sisters of decedent. The first article of the will provided for numerous specific bequests, Paragraph VII thereof bequeathing $2,000 to each surviving brother and sister. The second article created a trust, with the brothers and sisters named among the beneficiaries thereof. Paragraph I of the third article provided as follows:
"It is also my will and desire and I hereby direct that if any person entitled to any legacy, bequest or annuity under the terms of this will shall directly or indirectly contest or dispute the probate of this will or institute or become a party to institute any proceedings or act in the interest of any person who shall institute any proceedings, suit or action for the purpose of abrogating, setting aside, breaking or changing the effect of this will wholly or in part, then and in that event, all the legacies, bequests or annuities declared in favor of such person by this will or provided for herein, shall immediately thereupon be revoked, cease and determine and become wholly void and of no effect."
Following the affirmance by this court of the judgment which admitted the will to probate, the executor filed a petition which recited that the will had been contested, quoted Paragraph I of the third article, above set out, and asserted that Fanny Watkins, the sole named contestant, had forfeited all bequests, legacies, and annuities made for her under the will; *Page 101
that Winifred Cocklin, Guy Cocklin, and Evelyn Schuler, and each of them, directly and indirectly participated and joined in the contest of the will, became parties thereto directly and indirectly, and thereby caused all legacies, bequests, or annuities in their favor to be forfeited; that the executor had funds with which to pay the legacies provided for in Paragraph VII of the first article of the will but was unable to carry out said provisions because there had been no lawful determination of the rights of Fanny Watkins, Winifred Cocklin, Guy Cocklin, and Evelyn Schuler whether they were entitled to participate therein and the executor was in need of instructions from the court thereon. The prayer was that the court determine the rights of said four beneficiaries under the terms of the will as affected by said will contest and their participation therein.
Fanny Watkins filed a separate answer to said petition which, as amended, asserted four defenses thereto: (1) She had reasonable ground for contesting the will (2) the forfeiture clause (Paragraph I of the third article of the will) is inoperative because there is no gift over of a forfeited legacy or devise (3) the said forfeiture clause is inoperative because against public policy (4) the executor is not a proper person to maintain a forfeiture proceeding and the court has no jurisdiction thereof. Guy Cocklin, Winifred Cocklin, and Evelyn Schuler each filed separate answer to said petition, which, as amended, asserted the defenses asserted by Fanny Watkins and, in addition thereto, specifically denied that any of them had directly or indirectly joined or participated in the will contest.
The four defendants above named asked for separate trials as to the issues so joined between each of them and the executor. Separate trials were had as to each and separate judgments were entered as to each. The court determined that the forfeiture provision is valid and that the attack thereon is foreclosed by the case of Moran v. Moran, 144 Iowa 451, 123 N.W. 202, 30 L.R.A., N.S., 898; that the executor was not a proper person to maintain the proceedings; that the forfeiture clause is operative as against Fanny Watkins and Guy Cocklin but is not operative as against Winifred Cocklin and Evelyn Schuler. The petition of the executor was dismissed as to all four defendants. The executor *Page 102
appealed from all four judgments and the four defendants appealed from those determinations in each which affected them adversely. The eight appeals were ordered consolidated in this court by order of the chief justice pursuant to stipulation of counsel.
I. The first question for our determination is whether the court erred in holding that the executor was not a proper party to maintain the proceedings herein. We are of the opinion that error was committed.
The trial court gave the following reasons for its judgment:
"It is the opinion of the court that an Executor is not the proper party to do this. His interest is in dividing and distributing the estate according to the terms of the will. The enforcement of the forfeiture clause does not augment the estate, but merely changes the direction in which the property should go. It involves a decision which the Executor has no power to make. The Executor in this case sets up that he is bound to carry out the terms of the will, and after knowing that the will had been contested it was his duty to bring this action for the purpose of protecting himself, and knowing how he should distribute the property. The court believes that the Executor could institute an action, and by a proper notice prescribed by the court, bring into court those who would be interested in the enforcement of the forfeiture clause and require them to elect whether it should be enforced or not, and upon the failure of any person who was so interested, to make such election, that the Executor should then distribute the property of the estate according to the terms of the will, and could thus protect himself."
We are unable to agree with the foregoing pronouncement of the able trial court. It undertakes to confine the activities of the executor too strictly.
Section 11825, Code, 1939, provides:
"The court of the county in which a will is probated * * * shall have jurisdiction coextensive with the state in the settlement of the estate and the sale and distribution thereof."
In Anderson v. Meier, 227 Iowa 38, 42, 287 N.W. 250, 252, we stated: *Page 103
"Undoubtedly courts of equity in Iowa, contrary to the rule prevailing in many states, entertain suits for construction of wills where there is occasion therefor; but the present action concerns only the distribution of the property of decedents. This is a matter within the jurisdiction of the probate court, and is there pending, and a court of equity cannot intervene. The probate court has jurisdiction. Its right to administer and direct the disposition of the property involved cannot be interfered with." (Citing cases.)
In Citizens State Bk. v. Victoria Sanitorium, 179 Iowa 671,676, 161 N.W. 664, 666, we stated:
"Hollingsworth, as administrator with will annexed, not only representing the estate, but also charged with the duty of carrying out the terms of the will, and having in his charge all the personal effects of the deceased, had the right, as we think, when a question arose as to the interests of that estate * * * to make application to the court for directions as to how to proceed."
In 21 Am. Jur. 492, 493, section 214, it is stated:
"An executor or administrator may ask the probate court or a court of equity, depending upon the local practice as to where such jurisdiction is lodged, for the construction of a will or for instructions as to conduct with respect to various matters relating to the administration of the estate, such as future accounts. Moreover, where there is room for doubt as to their duties or as to the policy that should be pursued, the judge of the probate court should be consulted before any steps are taken that might seriously affect the funds of the estate. In a suit by a personal representative for advice, a considerable latitude may properly be allowed in giving scope to the questions propounded, where to do so places no unfair burden upon the parties and they have not been in any way misled as to the issues to be presented to the court."
The trial court recognized that the executor did not have the power to decide the question whether the legacies were forfeited, that such question could only be decided by the court. *Page 104
It also recognized that the executor could bring the parties into court for the purpose of having the question decided, but it was the court's opinion that the executor could merely institute proceedings and that ended his functions, that he could not maintain the proceedings. We cannot agree that he should be so circumscribed.
The situation is somewhat complicated by the fact that C.T. Cocklin, the executor, is one of the principal beneficiaries of the trust set up for the residue of the estate. He would personally profit as much as or more than anyone else if the legacies were forfeited. He attempted to intervene in his individual capacity but was denied that privilege. No appeal was taken from such ruling and the propriety thereof is not before us. However, in Packer v. Overton, 200 Iowa 620, 622,203 N.W. 307, 308, we stated:
"A preliminary question, not involving the merits of this case, is presented on motion of appellees to dismiss the appeal, which, in logical sequence of the propositions submitted, should be first determined. The motion is predicated on the ground that the administrator has no right to prosecute this appeal. We cannot agree with this contention. It is the duty of an executor or administrator to carry into effect the provisions of the will; and if, perchance, an erroneous order is made or an improper judgment entered with respect to the administration of the estate, it is his right to have the matter reviewed. In re Estate of Bagger, 78 Iowa 171. An executor or administrator acts in a representative capacity. By fiction of identity he is the person of the testator, and it is to him that all interested parties must look. He is charged with the duty of resisting unfounded claims, and to see to it that there is no improper diversion of funds or property in his hands. Briggs v. Walker, 171 U.S. 466
(43 L. Ed. 243). He represents all parties and all interests in the estate. Leighton v. Leighton, 193 Iowa 1299. For this reason he was made the party defendant in the instant case, and he is the only party who could appeal and preserve rights, if any, adversely affected by the judgment."
We hold that the proceedings instituted by the executor were within the jurisdiction of the probate court and that the *Page 105
court had jurisdiction to finally determine herein whether the legacies in fact and in law had been forfeited.
[2] II. This brings us to the question whether the forfeiture clause (Paragraph VII of the third article of the will) was inoperative for any of the reasons asserted. In holding that it was operative, the court relied upon our holding in Moran v. Moran, supra, 144 Iowa 451, 462, 463, 123 N.W. 202, 206, 30 L.R.A., N.S., 898, 902. The language relied upon sustains the court on all three propositions urged by Fanny Watkins herein. We there stated:
"In this country, however, we find no authority going to the extent of holding that a testator may not under any circumstances impose upon the acceptance of his bounty a valid condition against an attack upon his will by the legatee. Without taking time to cite the cases, it may be said that some courts incline to the view that such conditions are valid only in cases where the testator names some third person to receive the legacy in the event of a breach of the condition by the legatee first named. Others sustain all such conditions attached to devises of real estate, but hold there must be a gift over upon its breach in order to make valid a condition of the same kind attached to a bequest of personalty. A few courts have held the condition inoperative where the beneficiary has probable cause for the contest of the will, while still others reject all these distinctions as arbitrary, and hold the condition valid and enforceable in all cases, whether the gift be of realty or personalty, and without regard to the cause or ground of contest. The latter view appears to be the one now generally held, and to our minds is most in consonance with reason and sound principle. Bradford v. Bradford, 19 Ohio St. 546 (2 Am. Rep. 419); Thompson v. Gaut, 14 Lea (Tenn.) 310; In re Bratt, 10 Misc. Rep. 491
(32 N Y Supp. 168); Hoit v. Hoit, 42 N.J. Eq. 388 (7 A. 856, 59 Am. Rep. 43); Donegan v. Wade, 70 Ala. 501; Sackett v. Mallory, 1 Metc. (Mass.) 355."
Counsel for the legatees herein concede that the foregoing pronouncements are squarely against their contentions. They ask us to modify and overrule the majority opinion in Moran v. *Page 106
Moran to the extent necessary to make the position of this court that taken by Judge Evans in his dissenting opinion, wherein he stated, at pages 469 to 473 of 144 Iowa, page 208 of 123 N.W., 30 L.R.A., N.S., 905, as follows: | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435365/ | Upon one branch of this case I am not able to concur in the majority opinion. The question whether a provision in a will forbidding any contest thereof under penalty of forfeiture of all legacies therein should be given unqualified effect, is one upon which there is a diversity of opinion in the courts. The cases on the subject are comparatively few. It is perhaps true that the numerical majority of the courts which have passed upon the question have adopted the affirmative of the proposition, but some of these have done so with reluctance. I am convinced that the real merit of the argument is with the other view, and that such provision in a will is contrary to public policy, unless it be limited in its application to those contests wherein an element of bad faith enters. Under the law no will can become effective in any of its provisions until it shall have been admitted to probate by the court. Before admitting it to probate, it is the duty of the court to investigate the facts and circumstances attending its execution and bearing upon its validity, and to find judicially therefrom that such will was executed in due form, voluntarily, and understandingly by the purported testator. If the court should find otherwise, it must reject the will and refuse its probate. * * * Manifestly, in order to attain true judicial results, the court has need to learn true facts. These must come, if at all, from those who are or were in a position to know them. * * * If the court is to learn the truth from outside sources of information, it is manifestly important that the highway of information to the court be kept open, and that there shall be no lion in the way. But here is a forfeiture provision in the purported will itself which may be a roaring lion intended to terrorize every beneficiary of the will. Its demand is that no adverse evidence be volunteered. Its tendency is necessarily to suppress material facts, and thus to impede the administration of the law according to its true spirit. * * * And it does sometimes happen in very truth that a will regular in form, bearing the genuine signature *Page 107
of the testator in the presence of witnesses, is nevertheless not his will. On the contrary, it was framed and dictated by another, and the dying man mayhap put to it his listless hand without knowledge to comprehend or will to resist. Into such a will the proviso under consideration will hereafter surely find a place. The dictator of such a will will be more likely to incorporate such a provision in the will than would the testator himself. On principle, therefore, and in the interest of good public policy, it seems clear to me that the contest of a will in good faith and for probable cause should not be forbidden nor penalized, nor should it be permitted to work a forfeiture of a legacy."
Judge Weaver, the author of the majority opinion, in anticipation of the foregoing dissent, reasoned as follows, at pages 463 and 464 of 144 Iowa, page 206 of 123 N.W., 30 L.R.A., N.S., 903, to wit:
"For ourselves we can not believe that public interests are in any manner prejudiced or the fundamental rights of any individual citizen in any manner violated by upholding a gift or bequest made on condition that the donee waive or release his claim to some other property right, or even upon condition that he observe some specified line of personal conduct not in violation of law, or contrary to good morals. The donee is under no compulsion to accept the gift. He is free to elect. The question he has to decide is the ordinary one which arises in nearly every business transaction — whether the thing offered him is worth the price demanded. The owner of property may give or refrain from giving. He may attach to his offer such lawful conditions as his reason, caprice, or malice may dictate, but he is dealing with his own, and the donee, who claims the benefit of the gift, must take it, if at all, upon the terms offered. The rule is well expressed in Rogers v. Law, 66 U.S. 253, (17 L. Ed. 58.) Dealing with a will which made provisions for certain heirs on condition that, if they should assert any claims under certain deeds mentioned in the will, the legacies in their favor should become void, the court there says: `We entertain no doubt as to its force and validity. The condition is lawful and one which the testator has a right to annex in the disposition of his own property. The legatees are not bound to accept the bequest, but, if accepted, it *Page 108
must be subject to the disabilities annexed. It must be taken cumonere, or not at all.' This view of the law appeals to us eminently sound, and the objection to the validity of the condition prescribed in the sixth clause of the will in controversy cannot be sustained."
It will be noted that the opposing views resulted from a disagreement as to the emphasis to be given the various factors present. Judge Weaver emphasized that an heir has no vested right to inherit; the decedent has a right to make a will and to distribute his bounty as he chooses; those he seeks to benefit need not accept the gift but if they do they must accept it with the conditions that are attached to it. Judge Evans, on the other hand, emphasized that an heir can be disinherited only by a valid will; if there is reasonable doubt that the purported will is valid, the heir should have a right to have the doubt determined by resort to the courts and should not be coerced from appealing thereto by the fact that a judicial determination could only be had at the risk of losing the bequest which the will gave him.
It is a bit difficult to reconcile Judge Weaver's position with that which he later took as the author of the opinion of this court in the case of Fleming v. Merchants' L. Ins. Co., 193 Iowa 1164,180 N.W. 202, 188 N.W. 703. In that case the question was whether a provision in a life-insurance policy that disappearance or long-continued absence of the insured, unheard of, shall not be regarded as evidence of death or of any right to recover, should be given effect. In speaking for this court, Judge Weaver states, at pages 1168 and 1172 of 193 Iowa, page 704 of 188 N.W., as follows:
"It is true that, within certain limitations, parties may enter into any contract and bind themselves by its terms, even though they appear unreasonable to the average mind; but this has respect to their personal relations and dealings with each other in matters concerning the subject of their contract; but it does not include the right to prescribe or control in advance the course of remedial justice, in the event that their contract becomes the subject of litigation. The state has provided courts, *Page 109
to which is confided jurisdiction to try and dispose of the controversies which may be brought before them. Generally speaking, every controversy brought into court involves some one or more disputes of fact; and it is for the court to ascertain, with such reasonable certainty as may be, the truth of these disputes. * * *
"The contention by appellant that to sustain a by-law of this nature does not operate to oust the court of its jurisdiction, and that the objection so stated is groundless, is correct; for in the strict sense of the word the court retains its jurisdiction, and there is no such ouster in fact. Technically, this is true; for the court still retains jurisdiction of the case, with authority to preside at the trial and to enter judgment therein. But the error in the phrase is simply in the choice of words to express a thought which is not at all obscure or uncertain. It is not meant thereby that such a right exercised by litigant parties ousts the court of its authority or power to hear the case and render judgment thereon, but it does mean that the jurisdiction is thereby so limited and circumscribed as to take from the court its authority to conduct the trial and control the introduction of evidence in accordance with the settled rules of law. The right so claimed by the appellant, once established, reduces the court to a mere judicial lay figure, upon which interested and ingenious parties may hang their devices for escaping application of the legally established tests of truth."
While the foregoing quotation discusses propositions that may appear to be foreign to the question now before us, the discussion does pertain to the right to employ a subtle devise to escape the application of legally established tests to determine the truth. If it is contrary to public policy for parties to contract in such a manner as to constitute substantial interference in the court's determination of disputes that may arise as to the rights of the parties to the contract, is it not likewise contrary to public policy for one to so draw his will that it will tend to deny a good-faith resort to the courts by an heir who has a reasonable doubt as to the validity of the instrument which substantially reduces his inheritance?
Moran v. Moran, supra, appears to be the only decision by *Page 110
this court on the question now before us. We do not know how often a forfeiture provision may have thwarted a good-faith appeal to the courts in a controversy where reasonable doubt as to the validity of a will existed but the heir was unwilling to risk everything on the outcome of litigation. All we know is that this is the first instance where an heir took the risk, lost the litigation, and appealed to this court to seek a re-examination of Moran v. Moran, supra.
At the time that the Moran case was decided (1909), there were relatively few cases on the question now before us. Judge Evans conceded that the numerical weight of authority supported the position of the majority. In an annotation published in 1940, in 125 A.L.R., pages 1135 to 1143, it is stated that the majority of the courts in this country that have passed on the question now support the position of Judge Evans' dissenting opinion and the minority view is represented by our majority opinion in Moran v. Moran. Our examination of the authorities convinces us that the rule of Moran v. Moran may represent the minority rule in this country at this time but that the division of authority is still quite close.
The courts of Missouri, Massachusetts, Michigan, California, Alabama, New Jersey, District of Columbia, and Ohio are aligned with Iowa. Illustrative cases include Rossi v. Davis,345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; Rudd v. Searles,262 Mass. 490, 160 N.E. 882, 58 A.L.R. 1548; Schiffer v. Brenton, 247 Mich. 512,226 N.W. 253; In re Miller's Estate, 156 Cal. 119,103 P. 842, 23 L.R.A., N.S., 868; Donegan v. Wade, 70 Ala. 501; Provident Trust Co. v. Osborne, 133 N.J. Eq. 518, 33 A.2d 103; Barry v. American Sec. Tr. Co., 77 U.S. App. D.C. 351, 135 F.2d 470, 146 A.L.R. 1204; Bender v. Bateman, 33 Ohio App. 66,168 N.E. 574. It might be added that, in Moskowitz v. Federman (1943), 72 Ohio App. 149, 51 N.E.2d 48, it is stated that the Supreme Court of Ohio has not as yet decided the question so that the law is still unsettled in that state.
The courts of Pennsylvania, South Carolina, Tennessee, Wisconsin, Washington, West Virginia, Connecticut, New York, Oregon, and Texas support Judge Evans' dissenting opinion. Illustrative cases include In re Friend's Estate, 209 Pa. 442,58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, *Page 111 74 S.E. 133, 39 L.R.A., N.S., 1160, Ann. Cas. 1913E, 1296; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; In re Will of Keenan, 188 Wis. 163, 205 N.W. 1001, 42 A.L.R. 836; In re Chappell's Estate, 127 Wn. 638, 221 P. 336; Dutterer v. Logan,103 W. Va. 216, 137 S.E. 1, 52 A.L.R. 83; South Norwalk Tr. Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann. Cas. 1918E, 1090; In re Will of Smyth, 246 App. Div. 820, 284 N.Y. Supp. 470, 271 N.Y. 623, 3 N.E.2d 453; Wadsworth v. Brigham, 125 Or. 428, 458,259 P. 299, 266 P. 875; First M.E. Church v. Anderson, Tex. Civ. App., 110 S.W.2d 1177. It might be added that the majority opinion in Moran v. Moran, supra, relied upon the Tennessee decision in Thompson v. Gaut, 14 Lea (Tenn.) 310, but any authority of that decision to support the Iowa rule is destroyed by the later pronouncement in Tate v. Camp, supra. Also, in the case of Fifield v. Van Wyck, 94 Va. 557, 27 S.E. 446, 64 Am. St. Rep. 745, the court refused to enforce a forfeiture clause of a will where there was no gift over because such a provision is in terrorem and inoperative, being contrary to public policy.
In the case of Calvery v. Calvery, 122 Tex. 204, 212, 55 S.W.2d 527, 530, cited in First M.E. Church v. Anderson, supra, the court states:
"The great weight of authority sustains the rule that a forfeiture of rights under the terms of a will not be enforced where the contest of the will was made in good faith and upon probable cause." (Citing many of the cases last-above cited.)
While, as above stated, we do not believe that the numerical weight of authority is as decisive as the Texas court states it to be, we are convinced that the trend of judicial decision during the last twenty-five years has been definitely and decisively in support of Judge Evans' dissenting opinion and in opposition to our majority opinion in Moran v. Moran, supra. A majority of this court, as now constituted, is of the opinion that this trend is in the interest of good public policy.
In the case of Rouse v. Branch, supra, 91 S.C. 111, 118,74 S.E. 133, 135, 39 L.R.A., N.S., 1160, 1164, Ann. Cas. 1913E, 1296, 1298, the South Carolina court states, at the end of its opinion, as follows: *Page 112
"No case has been cited, and we do not believe any can be found, sustaining the proposition, that a devisee or legatee, shall not have the right, upon probable cause, to show that a will is a forgery, without incurring the penalty, of forfeiting the estate given him by the will. The right of a contestant to institute judicial proceedings upon probable cause, to ascertain whether the will was ever executed by the apparent testator, is founded upon justice and morality. If a devisee should accept the fruits of the crime of forgery, under the belief, and upon probable cause, that it was forgery he would thereby become morally a particeps criminis; and yet if he is unwilling to commit this moral crime, he is confronted with the alternative of doing so, or of taking the risk of losing all, under the will, in case it should be found not to be a forgery. Public policy forbids that he should be tempted in such a manner. This is far more obnoxious to public policy, than a condition in the will against marriage."
By the same token, if a will were executed as the result of fraud, would not a legatee, who knew of the fraud but stood silently by fearing to risk loss of his legacy and accepted the fruits of the fraud, be morally a party to it? Also, a will executed by an incompetent is legally no more his will than if it were forged, and a will secured by undue influence is as repugnant to the law as one secured by fraud. Public policy forbids that one should be tempted to let such wills prevail. The administration of justice should not be frustrated in such a manner.
We see no occasion to interfere with the rule established by the Moran case that a testator may legally impose upon a legacy or devise a condition against attack upon the will, that such condition is valid irrespective of whether the gift be of realty or personalty, and irrespective of the presence or absence of a gift over. However, we do modify and to that extent overrule that part of Moran v. Moran, supra, which holds such condition valid without regard to the cause or ground of contest. We now hold that such condition will not be enforced against one who contests the will in good faith and for probable cause.
[3] III. This brings us to the question whether the *Page 113
forfeiture provision should be enforced herein. The trial court determined that Winifred Cocklin and Evelyn Schuler were not within the forfeiture clause under the rule announced and applied in Haradon v. Clark, 190 Iowa 798, 180 N.W. 868. Without undertaking to set out the evidence, we hold that there was sufficient evidence in the record to support such finding and the same is affirmed.
As to Fanny Watkins and Guy Cocklin, the court found that they were within the forfeiture clause. However, the court held, in obedience to Moran v. Moran, supra, that the questions whether they acted in good faith and for probable cause were immaterial. Ordinarily it would follow that the cause be remanded for a finding on such issue. However, in this case the issue was squarely raised and the record that was made was very complete. We feel certain that nothing new would be presented upon a retrial. The undisputed evidence is that both acted upon advice of counsel. The able judge who presided over the trial of the will contest, and who is now a member of this court, was satisfied that a jury question was presented on the issues of undue influence and testamentary capacity. The jury deliberated for twenty-nine hours and was unable to reach an agreement. Then a "verdict urging instruction" was given to them. They deliberated five or six hours longer before reaching a verdict. We are satisfied that there is no evidence upon which a finding of bad faith could be predicated. Since the case was fully presented and the record is undisputed that Fanny Watkins and Guy Cocklin acted in good faith and for probable cause, we see no occasion for prolonging this phase of the litigation.
By reason of the foregoing, we hold that the court erred in holding that the executor was not a proper person to maintain these proceedings and such finding is reversed. We hold that the court properly held that Winifred Cocklin and Evelyn Schuler had not forfeited their legacies and such finding is affirmed. We hold that the court erred in holding that Fanny Watkins and Guy Cocklin had forfeited their legacies and such finding is reversed. The court reached the correct result in dismissing the proceedings but for erroneous reasons. Accordingly, the cause is remanded for the entry of supplemental judgments in accord with this opinion, dismissing the proceedings on the *Page 114
merits because none of the legacies was forfeited. — Affirmed in part; reversed in part and remanded with instructions.
OLIVER, GARFIELD, MULRONEY, and SMITH, JJ., concur.
HALE, C.J., and BLISS and WENNERSTRUM, JJ., dissent.
MANTZ, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435366/ | Division II of the majority opinion overrules Moran v. Moran,144 Iowa 451, 123 N.W. 202, 30 L.R.A., N.S., 898. As to this part of the opinion I am compelled to disagree and therefore dissent from the majority opinion.
The decision announced in the Moran case has been the established rule in this state since 1909 and should not be overruled unless we find that the principles of law on which it is based are unsound. So far as precedent is concerned, there is almost an equal division of the courts, some holding that a condition of the will such as we have here is valid, some holding it to be entirely invalid, some coupling it with other conditions such as a gift over, and other courts holding the condition inoperative where the beneficiary brings the contest in good faith. The rule which we adopt among these conflicting theories should be one based upon principle.
It is my own opinion that the cases which sustain the validity of a provision forbidding contest are in consonance with general principles and the general and undisputed rules of the law relating to wills. It is a fundamental rule governing all wills that a testator may control the disposition of his own estate. His freedom to elect the recipients of his bounty and reject others who might claim to be entitled to any part of his estate is unquestioned. The only valid reason for the interference of the court in the disposition of a testator's property by will is where such disposition runs counter to public policy. No one can deny this proposition. It follows, therefore, that the testator should have a right to guard such disposition of his property by any means or any condition not contrary to public policy. The question resolves itself into whether or not this no-contest clause is of such a nature that its enforcement will offend public policy. It is in line with other rules of common application. It *Page 115
is well established that a devisee or legatee cannot accept a part of a devise or bequest which is favorable to him and reject another part which is unfavorable. He must take the devise burdened with the condition imposed by the will or not take it at all. It is so expressly stated in the Moran opinion, at page 463 of 144 Iowa, page 206 of 123 N.W., 30 L.R.A., N.S., 903, where Justice Weaver says:
"The donee is under no compulsion to accept the gift. He is free to elect. The question he has to decide is the ordinary one which arises in nearly every business transaction — whether the thing offered him is worth the price demanded. The owner of property may give or refrain from giving. He may attach to his offer such lawful conditions as his reason, caprice, or malice may dictate, but he is dealing with his own, and the donee, who claims the benefit of the gift, must take it, if at all, upon the terms offered." Citing Rogers v. Law, 66 U.S. 253, 17 L. Ed. 58.
The same thought is expressed in Elberts v. Elberts, 159 Iowa 332,337, 141 N.W. 57, 59:
"The plaintiff in this suit, having taken under the will and basing all his rights on the provisions of the will, is bound by every provision thereof."
In our recent case of Brown v. Kalene, 230 Iowa 76, 79,296 N.W. 809, 810, it is said:
"The appellees could not have the benefit of the property devised to them except under the conditions imposed by the will. They could not accept a part of the bequest or devise most favorable to them and refuse to accept the unfavorable condition."
If a devise or bequest, when accepted, must be accepted with the conditions attached, then how does the rule differ in principle from that announced in the Moran case, that a contesting devisee or legatee must forfeit his rights under the will? The question of public policy is thoroughly discussed in the Moran case at page 463 of 144 Iowa, page 206 of 123 N.W. *Page 116
In Justice Evans' dissent to the Moran case he cites extreme cases. This can be done under almost any legal proposition. Conditions and circumstances can be imagined under which the application of nearly any rule of law may lead to an absurdity. The dissenting opinion, for instance, suggests the extremely unlikely case of the purported will containing a provision forbidding that it be presented for probate and that it be deemed the genuine will of decedent without probate or other proceedings. So, in the majority opinion here is cited the case of Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A., N.S., 1160, Ann. Cas. 1913E, 1296, referring to a forged will. The case is not convincing. We know of no rule which could guard against forgery, nor do we know of any rule which could guard against a contest supported by perjury. No set of rules, however elaborate, could eliminate the possibility of criminal practices in the preparation of any instrument. Any rule might be carried to an extent which would result in injustice under some imaginary state of facts.
To maintain the position the majority opinion takes is to assume that the contestant will fail in his attempt to defeat the will. This, of course, is not necessarily true. If the will is fraudulent, is forged, or is not the true will of the testator, and this is demonstrated in court, then the contestant would prevail; the will would be a nullity and of no effect. The only means he would have of establishing such a fact would be by action in court. If a contestant lacks the proper proof he should and would fail, as he should and would fail in any other action he might bring if it were entered into with insufficient evidence to support the plaintiff's cause. In the event of' a true contest, entered into on good grounds and supported by sufficient testimony, it may be assumed that the courts will correctly decide. But every lawyer knows that there are useless and unnecessary contests brought against wills, with little or no ground therefor, and that sometimes these contests are brought for the purpose of compelling a settlement to which the contestant is not entitled. It is in preventing such contests that the enforcement of a no-contest provision in a will is of most value. Of course, any litigation must fail where evidence is lacking, and properly so, but a litigant need not be deterred from challenging a will which *Page 117
manifestly, through forgery or otherwise, is not the will of the testator, and his counsel will so advise him.
I do not think we should disturb the doctrine announced by the majority in the Moran case. Such has been the established rule in this state for thirty-five years. Clients have been advised, and wills have been drawn, by lawyers who have relied upon the decision as a part of our established probate law; property interests have been settled and cases determined upon its authority. Useless and unwarranted litigation has been prevented by the fact that wills have contained this type of provision. Of course, a rule not well founded should not be followed merely on account of its age; also, no one can contend that there must not be changes from time to time, as general conditions change, or as public interests require. Yet neither of such reasons exists here. No public interests are affected; no change of conditions in relation to wills has arisen, nor is such change likely to arise. We cannot even say that the courts generally have taken a contrary view to such an extent as to persuade us to re-examine the question. I see no reason for departing from the position taken in the Moran case.
To throw aside our own established principle, supported by respectable authority, tends to affect the value of precedent, when it is the desire and duty of all of us to render legal principles and decisions more fixed, stable, and certain. I see no necessity, either in logic or precedent, for departing from a rule which is so clearly the established law of this state. I would affirm the decision of the district court as to Division II.
BLISS and WENNERSTRUM, JJ., join in this dissent. *Page 118 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4035578/ | Cite as 2016 Ark. App. 423
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-588
Opinion Delivered September 21, 2016
ALISON ASHLEY PECK, as a APPEAL FROM THE PULASKI
QUALIFIED BENEFICIARY OF THE COUNTY CIRCUIT COURT,
PECK FAMILY TRUST and THE SIXTH DIVISION
PECK MARITAL TRUST, AND IN [NO. 60CV-14-1883]
HER INDIVIDUAL CAPACITY
APPELLANT
V.
HANNAH PECK a/k/a HANNAH HONORABLE TIMOTHY DAVIS
FINLEY, INDIVIDUALLY, AND AS FOX, JUDGE
TRUSTEE OF THE PECK FAMILY
TRUST U/D JUNE 15, 2001, AND
AS TRUSTEE OF THE PECK
MARITAL TRUST
APPELLEE REVERSED AND REMANDED
PHILLIP F. WHITEAKER, Judge
Alison Peck brings this appeal from the order of the Pulaski County Circuit Court
dismissing her first amended complaint against appellee Hannah Peck Finley where she
alleged that Finley breached her fiduciary duties to Alison under a family trust. We hold
that the circuit court did not conduct a proper analysis of the motion to dismiss; therefore,
we reverse and remand for further proceedings consistent with this opinion.
1
Cite as 2016 Ark. App. 423
I. Factual and Procedural History
The current appeal is a part of a series of litigation over the Peck Family Trust and
the Peck Marital Trust created by Robert Peck. Robert Peck was the father of Alison and
the husband of Finley. He created the Peck Family Trust, a revocable trust, on May 8,
2001. 1 Robert created the trust for the purpose of providing for the support, education,
maintenance, and preservation of the health of Finley during her lifetime. Robert was to be
the trustee during his lifetime, with Finley named as trustee upon his death. Robert also
created trust provisions for his children. Upon the death of Finley, the trust assets were to
be divided among beneficiaries, including Alison. Robert Peck passed away in 2006 and
was survived by Finley, Alison, and his other three children. 2
After Robert’s death, issues arose concerning the assets of the trust. In particular, the
ownership of a mobile by Alexander Calder known as “Autumn Leaves” (“the Calder”) was
questioned. The Calder was purchased by Robert’s parents in the 1950s, and Robert had
possession of the Calder after their deaths. Upon Robert’s death, Finley assumed possession
of the Calder. Finley maintained that she received the Calder under her husband’s will. 3
Finley eventually sold the Calder for $3.3 million net after commissions. Finley deposited
1
On June 15, 2001, Robert Peck created another Peck Family Trust that appears to
be identical to the May 8, 2001 trust.
2
Alison’s siblings are Capi Peck Peterson, Ashley Peck O’Dell, and Tony Peck.
3
In January 2005, Robert Peck amended and restated the May 2001 trust. He also
executed a will that left all artwork and most of his other personal property to Finley if she
should survive him.
2
Cite as 2016 Ark. App. 423
the proceeds into her own personal account and not the account of the trust. Finley also
invested the proceeds, which resulted in some major losses.
In May 2008, the first lawsuit in this series of litigation began. Finley filed a
declaratory-judgment action (the 2008 action) to determine ownership of the Calder. Finley
sued Alison and her three siblings, as well as her own children, as defendants. 4 Alison
defended the 2008 action, taking the position that Finley did not own the Calder but that
the Calder was instead owned by one of her siblings, Capi Peterson. Alison also filed a
counterclaim asserting that Finley had breached her fiduciary duties to her and her siblings,
that Finley was liable as trustee to them, and for an accounting. The 2008 action was
dismissed without prejudice in October 2009.
In October 2010, the second lawsuit in this series of litigation occurred (the 2010
action). Capi Peterson filed an action against Finley, as trustee. 5 Peterson alleged that she
was the owner of the Calder as the recipient of an inter vivos gift, that Finley wrongfully
sold it to a third party, and that Finley was liable to Peterson for its value. Peterson sought
an accounting for the Peck Family Trust and damages for the sale of the Calder. Finley
answered the complaint and counterclaimed for a declaratory judgment to determine that
ownership of the Calder was in the Peck Family Trust and that Peterson had violated the
terms of a share-cancellation provision of the trust. After a bench trial, the circuit court
dismissed Peterson’s complaint, finding that the Calder was an asset of the trust, that there
was no evidence that Finley acted in bad faith or with reckless indifference with regard to
4
Finley’s children were also listed as beneficiaries under the Peck Family Trust.
5
Alison was not a party to the 2010 action.
3
Cite as 2016 Ark. App. 423
her trust duties, and that Peterson had forfeited her interests in the trust through the share-
cancellation provision and thus lacked standing to sue as a beneficiary of the trust.
Peterson appealed, and we affirmed the circuit court. Peterson v. Peck, 2013 Ark. App.
666, 430 S.W.3d 797. In that case, we held that Peterson failed to prove the elements of an
inter vivos gift. We also affirmed the court’s determination that Peterson forfeited her
interest in the trust because her amended complaint questioned Finley’s actions as trustee
without any evidence that Finley had acted in bad faith.
In May 2014, the current lawsuit in this series of litigation began. Alison originally
sued Finley seeking a declaratory judgment of Finley’s duties as trustee and her own rights
as a beneficiary to be kept promptly informed of all material information regarding
administration of the trust. Alison also asserted that Finley was required to produce reports
beginning in 2006 but failed to do so despite repeated requests, and that Finley acted in bad
faith and with reckless disregard of Alison’s rights and otherwise failed to administer the trust
in good faith.
Finley adamantly defended the cause of action. Finley responded initially to Alison’s
original complaint with a motion to dismiss seeking dismissal under two theories. First, she
took the position that Alison was barred from asserting her claim by the savings statute.
Essentially, she argued that Alison filed a counterclaim in the 2008 lawsuit, voluntarily
nonsuited this claim, and failed to refile it within one year. As a result, she was precluded
from doing so now by the savings statute. Second, she took the position that Alison’s
pleadings in the 2008 action asserting that Peterson owned the Calder and that Finley had
breached her fiduciary duties triggered the share-cancellation provision of the trust, thus
4
Cite as 2016 Ark. App. 423
forfeiting her interest as a beneficiary and depriving Alison of standing. The circuit court
denied the motion to dismiss without explanation.
Finley next answered the complaint, denying that Alison was a qualified beneficiary
of the trust or had standing to seek a declaratory judgment because of the prior 2008 action.
She also filed a motion for summary judgment, asserting that Alison’s interest in the trust
had been forfeited because of the prior 2008 litigation. Finley later amended her motion for
summary judgment, contending that the interests of Alison and her sister, Peterson, were so
intertwined that they stood in privity with each other and therefore res judicata barred
relitigation. The circuit court denied Finley’s motion and amended motion for summary
judgment by separate orders without explanation.
After the denial of the summary-judgment motions, Alison amended her complaint,
seeking a declaratory judgment and adding claims for conversion, breach of fiduciary duty,
deceit, and unjust enrichment or the imposition of a constructive trust. She also sought an
accounting and punitive damages. Finley responded with a motion to dismiss, arguing that
Alison Peck was a contingent, rather than a qualified beneficiary, and, as such, lacked
standing to challenge Finley’s actions as trustee.
The circuit court granted Finley’s motion to dismiss Alison’s first amended
complaint. The circuit court found that Alison had forfeited her right as a beneficiary under
the share-cancellation clause of the trust and was deprived of standing. The share-
cancellation clause of the Peck Family Trust provides as follows:
4.9. Share Cancellation. Should any of Grantor’s children, or their issue, institute
any action to challenge the provisions of the trusts established by this document, or
to attack the validity of such trusts, or to remove Hannah Kay Peck as Trustee, or
question her actions as Trustee, then, and in that event, the share to which such child
5
Cite as 2016 Ark. App. 423
(or his or her issue) would otherwise be entitled, shall be forfeited and added to the
shares of the remaining beneficiaries.
The circuit court recognized that the share-cancellation clause was at issue in the 2010
litigation. That litigation resulted in an appellate decision. The court then relied on what it
saw as our interpretation of the share-cancellation provision in the prior Peterson appeal that
the mere filing of an action challenging Finley’s actions as trustee triggered the share-
cancellation provision. The court granted the motion to dismiss with prejudice.
Alison filed a motion for reconsideration, reasserting her argument that the share-
cancellation provision could not be applied to her because Arkansas Code Annotated section
28-73-1008(a)(1) (Repl. 2013) made such a provision unenforceable. 6 After the motion for
reconsideration was deemed denied, this appeal followed.
II. Analysis
On appeal, Alison contends that the circuit court erred in dismissing her first
amended complaint based on the share-cancellation provision. She also argues, as she did
below, that the share-cancellation provision could not be applied to her because of Arkansas
Code Annotated section 28-73-1008(a)(1). She further argues that her amended complaint
stated sufficient facts to show that Finley acted in bad faith or with reckless indifference to
come within the ambit of section 28-73-1008. Finley responds by arguing that the circuit
court’s decision is supported both by the savings statute and by res judicata.
6
Section 28-73-1008(a)(1) provides that “[a] term of a trust relieving a trustee of
liability for breach of trust is unenforceable to the extent that it relieves the trustee of liability
for breach of trust committed in bad faith or with reckless indifference to the purposes of
the trust or the interests of the beneficiaries[.]”
6
Cite as 2016 Ark. App. 423
We cannot consider the savings-statute and res-judicata issues raised by Finley.
Although Finley made these arguments to the circuit court below, she did so in her motion
to dismiss Alison’s original complaint and in her motions for summary judgment also
directed to the original complaint. The circuit court denied the motion to dismiss the
original complaint and the motions for summary judgment as to the original complaint. By
doing so, the circuit court denied the savings-statute and res-judicata arguments presented
by Finley.
Alison subsequently filed an amended complaint; however, an amended complaint,
unless it adopts and incorporates the original complaint, supersedes the original complaint.
McMullen v. McHughes Law Firm, 2015 Ark. 15, at 11, 454 S.W.3d 200, 207; Farmers Union
Mut. Ins. Co. v. Robertson, 2010 Ark. 241, at 5, 370 S.W.3d 179, 183. Here, Alison’s
amended complaint contained no language incorporating the original complaint. Moreover,
Finley’s motion to dismiss the amended complaint was based solely on the assertion that
Alison lacked standing under the share-cancellation provision to bring the action because
the amended complaint challenged Finley’s actions as trustee. She failed to raise her savings-
statute and res-judicata arguments again in opposition to Alison’s amended complaint. Thus,
we do not address the issues because they are not properly before us. See Biedenharn v.
Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005).
The amended complaint was dismissed pursuant to a Rule 12(b)(6) motion. Ark. R.
Civ. P. 12(b)(6). Our standard of review regarding Rule 12(b)(6) motions requires that we
look to the four corners of the complaint. See Biedenharn, supra. When we review a circuit
court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as true
7
Cite as 2016 Ark. App. 423
and view them in the light most favorable to the plaintiff. Id. “In viewing the facts in the
light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff’s
favor.” Id. at 441, 206 S.W.3d at 840 (internal citations omitted). Our standard of review
for the granting of a motion to dismiss is whether the circuit court abused its discretion.
Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139; Doe v. Weiss, 2010 Ark. 150.
We find that the circuit court abused its discretion when it granted the motion to
dismiss. We conclude from the circuit court’s comments from the bench that it did not look
at the factual allegations contained in Alison’s amended complaint or consider Alison’s
arguments concerning whether the share-cancellation provision was unenforceable under
section 28-73-1008. Instead, the court took the view that Peterson held that the mere filing
of a lawsuit challenging the trustee’s actions triggered the share-cancellation provision
without regard to whether the trustee was acting in bad faith or with reckless indifference.
Our decision in Peterson is not dispositive of this case because Peterson was concerned
with ownership of the Calder artwork. This is distinguishable from the present case, which
is concerned with whether Finley breached her fiduciary duties to Alison as a beneficiary.
Also, there were no allegations in Peterson that the share-cancellation provision was
unenforceable under section 28-73-1008. Moreover, Peterson was decided after a full trial
on the merits, whereas the present case was dismissed pursuant to Arkansas Rule of Civil
Procedure 12(b)(6).
Therefore, based upon the foregoing conclusions, as well as our standard of review
regarding Rule 12(b)(6) motions, we hold that the circuit court erred in granting Finley’s
motion to dismiss. Accordingly, we reverse and remand for the circuit court to determine
8
Cite as 2016 Ark. App. 423
whether Alison’s amended complaint states sufficient facts showing that Finley acted in bad
faith or with reckless disregard of the trust’s purposes or of Alison’s interests as a contingent
beneficiary.
Reversed and remanded.
KINARD and HIXSON, JJ., agree.
Eichenbaum Liles, P.A., by: James H. Penick III, for appellant.
Richard F. Hatfield, P.A., by: Richard F. Hatfield, for appellee.
9 | 01-03-2023 | 09-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3441089/ | Affirming.
Buck Divine was indicted by the grand jury of Muhlenberg county for the crime of breaking and entering a storehouse, and on his trial he was convicted and sentenced to a term of three years in the penitentiary. He was charged with breaking and entering the storeroom of the Central City Lumber
Manufacturing Company, a corporation, in Central City, Ky., and taking therefrom certain paint brushes and other articles of value.
In the second, count of the indictment it was charge that the appellant had well, theretofore convicted of a felony. Under section 11-30 of the Kentucky statutes if a person is convicted a second time of a felony the punishment for which is confinement in the penitentiary, he shall be confined in the penitentiary not less than double the time of the first conviction, but judgment shall not be given for the increased penalty unless the jury shall find from the record and other competent evidence the fact of former conviction.
It is first insisted that the identification of the property which the owner claimed was stolen was not definite and certain, and that therefore the evidence was insufficient to sustain the verdict. The proof for the commonwealth showed that the storehouse of the Central City Lumber Manufacturing Company was broken into some time in June, 1930. Several paint and varnish *Page 304
brushes and probably other acticles were taken. Soon after the storehouse had been entered several paint brushes similar to the ones that had been taken were returned to the company. Two of them had been purchased by Nathan Tanner from the appellant. Tanner testified that when he purchased the brushes appellant told him if any one asked him about them to say that he had gotten them from Virgil Conery. It was shown that appellant had sold similar brushes to Shelby Stewart and Mrs. John Stobaugh. On direct examination Walter Barnes, manager of the Central City Lumber Manufacturing Company, identified the brushes recovered from Nathan Tanner, Shelby Stewart, and Mrs. John Stobaugh as the ones that had been taken from the company's storehouse. On cross-examination he admitted there were no distinguishing marks on these brushes by which he could identify them as the property of the company, except that they were similar to the paint and varnish brushes carried in stock by the company and that no other dealer in Central City carried a like brand of brushes in stock.
Appellant introduced no witness in his own behalf, but his own affidavit was read in which he stated that his mother was unable to be present on account of illness, but, if present, she would testify that he lived in her home in Muhlenberg county during the month of June, 1930, and that he was not in Central City during that month. It is argued that the identification of the stolen articles was not definite and certain and that the evidence was not sufficient to sustain the verdict. There were circumstances, however, from which the jury might reasonably infer that appellant was guilty, and under all the facts they were warranted in returning the verdict complained of.
Appellant's next contention is that the admission of certain evidence was prejudicially erroneous. In order to procure an instruction under the second count of the indictment the commonwealth introduced as a witness the clerk of the Muhlenberg circuit court and sought to prove by him the former conviction pleaded in the second count of the indictment. The records of the former trial were introduced, which showed that appellant had been convicted at the April term, 1930, of the Muhlenberg circuit court of the crime of grand larceny and sentenced to the penitentiary for a period of three years. On the cross-examination of this witness it was developed that *Page 305
a motion and grounds for a new trial had been filed and that an appeal from the judgment in that case was pending. The court therefore gave no instruction under the second count of the indictment, but it is insisted that the evidence was incompetent and highly prejudicial. This evidence was introduced under a count of the indictment which aptly charged that the accused had been theretofore convicted of a felony. The evidence introduced by the commonwealth was competent until it developed that an appeal was pending and that the judgment had not become final. Had the appellant then requested the court to admonish the jury not to consider this evidence, the court no doubt would have complied with the request, and properly so; but no such request was made. The court did ignore this evidence, however, in instructing the jury, and under the circumstances no prejudicial error was committed.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4078874/ | Order filed, September 29, 2016.
In The
Fourteenth Court of Appeals
____________
NO. 14-16-00374-CV
____________
MISHA FERGUSON ET AL, Appellant
V.
QIAO ZHOU ET AL, Appellee
On Appeal from the County Civil Court at Law No 4
Harris County, Texas
Trial Court Cause No. 1073353
ORDER
The reporter’s record in this case was due June 27, 2016. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Lisa Moody Fort, the court reporter, to file the record in this
appeal within 30 days of the date of this order.
PER CURIAM | 01-03-2023 | 10-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1785947/ | 52 So. 2d 218 (1951)
LOW
v.
LOW.
1 Div. 413.
Supreme Court of Alabama.
April 19, 1951.
Rehearing Denied May 10, 1951.
*220 V. R. Jansen, of Mobile, for appellant.
Chason & Stone, of Bay Minette, for appellee.
FOSTER, Justice.
The bill in this case was filed by one alleged to be in possession of land to remove an alleged cloud from his title. The cloud consists of a deed signed and acknowledged by complainant with his wife (respondent) as grantee, but alleged not to have been delivered.
A demurrer raises the contention that the bill does not allege complainant was in peaceable possession of the land when the bill was filed. The demurrer taking that point was properly overruled. The bill is not set up as one to quiet title under the statute but to invoke the traditional equitable power to remove a cloud from title. If complainant's claim, when the cloud is removed, is one recognized and enforceable at law, complainant must be in possession of the property when the suit is brought, for if he is not his remedy is at law. But his possession need not be peaceable. Being in possession, when his right is to have an instrument which appears to be a deed cancelled as a cloud upon his title, the essentials of his bill stated in broad terms are the existence of an instrument which appears on its face to be valid and affects his title, but which is not so on account of matter not so appearing, so that it takes evidence other than that shown by the instrument to prove its invalidity. King v. Artman, 225 Ala. 569, 144 So. 442.
This principle has application when the invalidity of the instrument consists in the failure of its delivery as a deed. Randolph v. Randolph, 245 Ala. 689, 18 So. 2d 555.
Appellant's point is not well taken wherein he insists that the bill is defective for failure to allege that the possession of complainant was peaceable.
Assignments 3 and 4.
These assignments go to the ruling of the court upon objection made to evidence on behalf of complainant when the complainant himself was testifying. The following appears in the record with respect to which these assignments relate. The question by complainant's counsel to complainant as a witness, "Did you have any intention of delivering the deed to her at that time or any agreement to deliver it at any future time?" Defendant's counsel objected to that question because it called for a mental operation of the witness. The court overruled the objection. The witness answered: "I did not deliver the deed." The question was again propounded in the same language and his answer was, "no, sir." Defendant's counsel moved to exclude his answer on the same ground stated in the objection.
We note here that exceptions are continuously stated by counsel whenever the court made unfavorable rulings on the evidence, without regard to the fact that such exceptions have no place in the trial of equity cases. Section 372(1), Title 7, Pocket Part, Code; Threadgill v. Home Loan Co., 219 Ala. 411, 122 So. 401.
The question presented is one which this Court has considered on numerous occasions. The rule is well understood to be that ordinarily one cannot prove by a witness on direct examination what was his *221 motive, purpose or other mental operation. Armour & Co. v. Cartledge, 234 Ala. 644 (19), 176 So. 334; McGuff v. State, 248 Ala. 259, 27 So. 2d 241; Ingram v. State, 252 Ala. 497, 42 So. 2d 36.
The question was in a double aspect and called for two distinct matters of evidence, one of which was legal and the other was not. We do not think a person has the privilege of getting illegal evidence before the court by incorporating it in the same question with an inquiry as to matter which is legal and in which the answer to both questions could be united as it was in this instance. Louisville & N. R. R. Co. v. Dilburn, 178 Ala. 600(6), 59 So. 438; Holman v. Clark, 148 Ala. 286(8), 41 So. 765; Pike County v. Hanchey, 119 Ala. 36(4), 24 So. 751. See, also, Case v. English, Ala.Sup., 52 So. 2d 216.
The important question in the case is whether or not the complainant, who was the witness testifying, acted with reference to the deed after he signed and acknowledged it as that his conduct amounted to a delivery of the deed to his wife who was then living with him as such. His intention in connection with such conduct is the ultimate inquiry to be solved. That intention is to be derived from what he said and did at the time or at some other time. Perkins v. Perkins, 206 Ala. 571, 91 So. 256; Elsberry v. Boykin, 65 Ala. 336; Skipper v. Holloway, 191 Ala. 190, 67 So. 991. But it is not permissible to prove by him on direct examination what his intention was at the time he was disposing of the deed.
The admission of illegal evidence over objection in equity requires a reversal, unless the remaining evidence is without conflict and sufficient to support the judgment. Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12; Schwab v. Powers, 228 Ala. 205, 153 So. 423. This is not inconsistent with the statute which requires that it is not necessary to object to illegal evidence in equity trials. The court will, without objection, only consider legal evidence, but where the trial court overrules an objection, which was made to illegal evidence, the presumption is that he considered the evidence which was illegal and the ruling is reviewable. Act of June 8, 1943, General Acts of 1943, page 105, Section 372(1), Title 7, Pocket Part, Code.
The evidence is conflicting as to whether the complainant delivered the deed to the respondent and his intention, accompanying his manner of disposing of the deed and handling it, goes to the very essence of the contention. We are not willing to say that the illegal evidence with respect to his undisclosed intention did not affect appellant's substantial rights under Rules of Practice in Supreme Court, Rule 45, Code 1940, Tit. 7 Appendix.
Assignment No. 6.
Appellant also insists that the court committed error in excluding purported evidence to the effect that the complainant sent a telegram dated March 13, 1947, after he had knowledge of the fact that his wife had recorded the deed. The telegram was to an income tax accountant at Mobile, and contained the following words: "Tax seven dollars and fourteen cents both on state and federal." It is claimed by appellant that this telegram means that the tax accountant in the preparation of the income tax for his wife was directed to deduct seven dollars and fourteen cents tax paid on account of the property in question. We think the telegram in that connection is ambiguous and has no such clear meaning.
Assignment No. 13.
Appellant claims she should be allowed an amount necessary for suit money to pay her attorney in the defense of the instant suit.
In considering that question we are of course confronted with the nature of the particular suit and are led to observe that it is not one respecting the marital rights of the parties or their marital status in any respect, such as with respect to the duty of the husband to support and maintain his wife so long as that relation exists. We have no statute in Alabama which covers this particular subject. Our statutes have relation to suits involving the marital rights of the parties and even those statutes do not in terms provide *222 for an attorney's fee. The allowance of an attorney's fee is a feature of the provision for an allowance for the support of the wife as provided in sections 30 and 31, Title 34, Code. Ex parte Austin, 245 Ala. 22, 15 So. 2d 710. We have held that under those statutes an allowance for expenses of defending or prosecuting a suit exists in cases in which such allowance was made at common law. Torme v. Torme, 251 Ala. 521, 38 So. 2d 497; Sims v. Sims, 253 Ala. 307, 45 So. 2d 25.
We have accepted the principle in this State that, in the absence of contract, statute or recognized ground of equity, there is no right to have an attorney's fee paid by the opposing party. Penney v. Pritchard & McCall, Ala.Sup., 49 So. 2d 782; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Johnson v. Gerald, 216 Ala. 581, 133 So. 447, 59 A.L.R. 348.
Since there is no statutory provision for an attorney's fee applicable to the present situation, and there is no contract between the parties whereby the husband is to make such payment for the benefit of the wife, we are remitted to the question of whether it is authorized on recognized grounds of equity. We do not seem to have a case in this State where an effort was made to have a husband provide an attorney's fee for the wife in a controversy in court between them which only affects property rights between themselves.
In the case of Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408, 410, there was a separation agreement between the husband and wife, which was the subject of that suit. It was sought to have that agreement set aside with respect to their property rights contained in it because it was alleged that the agreement was procured by fraud and duress. The jurisdiction of the court was obtained by virtue of such general powers of a court of equity to set aside an agreement for fraud and duress. The fact that the parties were husband and wife was but a circumstance influential upon the controversy as to that contention. It was not the foundation of the litigation. The Appellate Division of the Supreme Court of New York allowed an attorney's fee. 151 A.D. 545, 136 N.Y.S. 249. On appeal to the Court of Appeals of that state the judgment was reversed, holding there was no difference so far as the equitable rights of the parties were concerned whether it be between husband and wife or parties not so related. The court observed: "I am not aware of any influential authority for the proposition that in an ordinary equity suit between wife and husband affecting property rights counsel fees should be allowed to the former during pendency of the action. Certainly no such an one has been cited."
And no such authority has been cited to us. The cases which we have been cited are manifestly different from this one. We agree with the views expressed in Johnson v. Johnson, supra, and therefore think the trial court was correct in disallowing an attorney's fee and other expenses to appellant for the defense of this suit.
Appellant has entered into an elaborate argument seeking to show that the conclusion reached by the trial court from the evidence taken before him on the trial was not properly supported. We do not think it is necessary to review that question at this time, since we are constrained to reverse the decree of the court for the admission of testimony which we think was illegal and also material, and which went to the very core of the controverted question. On another trial the evidence may not be the same.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur.
LIVINGSTON, Chief Justice (concurring specially).
My views with reference to the questions presented by assignments 3 and 4 were expressed in the dissenting opinion of McGuff v. State, supra, where similar questions were discussed and passed on. The majority opinion in the McGuff case of course established the rule in this state in that regard. So long as my brothers are disposed to follow the McGuff case it is the law in this state | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3435453/ | I regret that I am unable to agree with my Associates in regard to the admissibility of the evidence as to the number of children and instruction No. eleven and one half on that subject. I shall set out the record more fully than has been done in the majority opinion.
Plaintiff, Mrs. Nicoll, formerly Mrs. McNulty, was permitted to testify over objections as follows: "Q. Did he leave any family other than yourself? Did he have any children ? The Court: It is not admitted for the purpose of affecting damages in any way, but it is done for some other purpose. A. Four. Q. "What were their ages at the time of his death? A. The oldest was ten, the youngest was a little over a year old." In this connection, the court gave the following instruction: "(Eleven and one-half) You are instructed that there can be no recovery in this case for pain and suffering endured by the deceased resulting from the injury received by him, and you are also instructed that the remarriage of the widow of the deceased is not to be considered by you in diminishing the amount of damages sustained by said estate, if any you find. And on the other hand the amount of damages, if any you find, is not to be increased *Page 698
by reason of the deceased having children that he left surviving him; evidence of his children and the number thereof being admitted by the court solely as bearing upon the question of inducement or incentive to habits of industry in case the deceased had lived."
It is urged by appellant that admitting the evidence, as to the children, was erroneous; that the latter part of the instruction did authorize the jury to enhance the damages by reason of deceased having left children; and that the last two sentences therein are in conflict with each other. It may seem that, even though this evidence was not admissible, the exception taken to its admission was canceled by the instruction of the court that the damages were not to be increased by reason of the fact that deceased left children surviving. It has been held that where the verdict is not excessive, and the court instructed the jury to disregard the evidence, the error in admitting it is not fatal. 13 Cyc. 197, and cases, some of which are to the contrary. But it is claimed by appellant that the verdict is excessive, and that the instruction did not cure the error because the latter part of it did authorize the jury to enhance the damages. The object in introducing this evidence was, no doubt, to inform the jury that deceased had infant children dependent upon him for support. It is impossible to determine how far the assessment of damages was controlled by this evidence as to plaintiff's family of small children. The reasonable inference is that it had some influence upon the verdict. The damages in such cases are more or less uncertain in any event, and the evidence should be limited to legitimate elements of damage. Appellant contends that the question as to the admissibility of such evidence has been settled in the case ofBeems v. Railroad Co., 58 Iowa, 150, and that it is not admissible for any purpose in a case of this character. Appellee says that case was a three to two decision; that it is not in harmony with prior holdings, has not been followed since, is unsound; and that it has been an open question in this state for thirty years. It appears *Page 699
to me that the tendency of our former cases is to exclude such evidence. The question as to evidence in regard to children was not involved in the Stafford case, or the Wheelan case, and many of the other cases cited in the majority opinion. It is being now decided for the first time in this jurisdiction, or any other, so far as I am able to discover, that such evidence is competent,, under such a statute as ours, where the question is as to damages to the estate.
As stated, some of the cases hold that the evidence is not competent, but that if the court instructs the jury that it must not be considered as affecting damages, and the damages are not excessive, there is no prejudice. Other cases hold that, if such evidence is admitted and the verdict is excessive, it may be cured by remittitur, because the only effect of the evidence is to enhance the recovery. Chicago, R. I. P.Ry. v. Batsell, 100 Ark. 526 (140 S.W. 726). Though this is denied inJones v. George, 227 Ill. 64 (81 N.E. 4, 10 Ann.' Cas. 285), to which I shall again refer.
But the cases all hold that the evidence is incompetent. I am not prepared to say that a reversal should follow in every case where the evidence as to children is admitted. Cases might arise where the court instructed the jury squarely to not consider it as affecting damages and where the evidence is such that it could be fairly said that the verdict is not excessive and that there was no prejudice. But that is not the question being now determined. The question is: Is the evidence competent? The fact that jurors may learn about it on the street corners, or in the public prints, or incidentally in the courtroom is not, as I think, a reason for holding it competent.
As an original proposition, I should be inclined to say that the recovery should be the same whether a man is married or single. Conceding the rule to have been established by this court that evidence that the party is married is competent, I would not extend the rule to include evidence as to children. It occurs to me there are reasons for excluding evidence *Page 700
as to children which would not apply to the question whether the party was married. There is but one wife, who is an adult, but there may be many children, some of tender age. But the question as to whether evidence that a person deceased, or injured, is married is not the question here, and I shall not discuss it. The only question now is whether it is competent to show the number and ages of children.
I concede that it is proper for a jury to be advised, in a general way, of the situation and condition in life of the party injured, as held in the cited New York case of Perry v. Lansing, and other cases, but it seems to me the argument in support of the proposition that the evidence as to the number and ages of children is admissible is on the theory that children would be a greater inducement to earn and save. If it is an inducement for greater effort and stricter economy, the effect would be to increase the value of the estate, and, if that is so, the estate would suffer greater damage; therefore the recovery should be larger. I understand the majority to say this is not the purpose, but the reasoning and cases in support of the proposition are, as I think, based upon the theory that it is for that purpose. For instance, it is said that under the Nebraska statute, authorizing a recovery for the injury to support of dependent relatives, such evidence is competent, and that the reasoning of that court in such a case is applicable here. That such evidence is admissible, "not as a direct ground for the jury's action, but as showing what the deceased was doing, and likely to do, to make his life pecuniarily valuable to plaintiff." If the fact of having children is likely to make his life pecuniarily valuable, it should enhance the damages; if less valuable then the damages should be decreased. It would be one way or the other, depending on the character of the children, whether they were a help or otherwise.
I do not say that the evidence is not competent under the Nebraska statute, where damages do not go to the estate, as in Iowa. What I am trying to show is the false position of *Page 701
the majority when they say it is not admitted for the purpose of increasing or decreasing the damages, when it cannot have any other effect, and is not and cannot be admissible for any other purpose. It seems to be the theory under the Nebraska holding that the fact of having children would make the life more valuable, while in at least one Iowa case (Dupree v. Railway, 155 Iowa, 544) the thought seems to be that the life would be less valuable. This is so, or else I do not comprehend the ruling in that case. Here was the situation in that case, as stated in the majority opinion: "The plaintiff having shown the wages earned by the deceased, it was developed on cross-examination that he was saving none of his earnings and had no property. On redirect examination plaintiff was permitted to show that deceased was supporting a wife and three children. The defendant assigned error upon this ruling and cited Beems v. Railroad Co. in support of its position. The authority of that precedent was not discussed by the court, for we held that the evidence was admissible, in any event, as an explanation of the fact that deceased was not making any savings." If he was unable to save anything because of the expense of raising his children, what other effect could it have but to decrease the value of his estate?
It should be kept in mind that this is not a case under the Employers' Liability Act but is an action for damages to the estate of deceased. InState v. Rutledge, 135 Iowa, 581, a criminal case, it was held such evidence was not proper, and in it the Beems case is referred to and approved. In State v. Wangler, 151 Iowa, 555, a bastardy case, the ruling was the same, and the Beems case referred to, but it was held that in such a case there was no prejudice, on the theory, no doubt, that the form of the verdict in a bastardy case is guilty or not guilty, and the jury do not have to do with fixing the amount which shall be allowed for the support of the child. But these two cases do not quite reach the point now under consideration. The question first arose inDonaldson v. Railway, 18 Iowa, 280, but was not squarely decided; *Page 702
the court holding that, because the jury were, by the instructions, guarded against allowance of damages for improper causes, there was no prejudice. The court did say: "We would not be understood, however, as determining that evidence as to the number and ages of his children is strictly proper." In Lowe v. Railway, 89 Iowa, 420, 433, decided since the Beems case, it is stated that it was shown by the evidence, among other things, that deceased left a wife and three children, but the question now being considered was not raised in any manner.
Under statutes which provide that the damages for wrongful death inure to the benefit of the family, such evidence is admissible.Baltimore, etc., By. v. Mackey, 157 U.S. 72 (15 Sup. Ct. 491,39 L. Ed. 624 (2d Ed.)). In that case the statute excludes the creditors of deceased from any interest in the recovery and declares not only that the judgment shall inure exclusively to the benefit of his family but that the damages shall be assessed with reference to the injury done to the widow and next of kin. This seems to be the distinction running through the cases that, if the damages inure to the benefit of the family, it may be shown what persons compose the family, but not so if the damages go to the estate, as in this case. The question here is: What was the value of the life of the deceased to his estate ? The number of his children can have no bearing on that question. The measure of the recovery and the elements to be considered are stated inGrace v. Railway, 153 Iowa, 418, 432, and Neal v. Brick Co.,151 Iowa, 690, 695.
The thought in the last sentence of instruction eleven and one-half that evidence as to the children is to be considered on the question of inducement or incentive to habits of industry, etc., is on the theory, doubtless, that, as stated by the minority in the Beems case, it "would largely add to the value of his personal services to his own estate." The majority opinion in this case says the purpose is "to stimulate him to industry, prudence, and economy." It would seem *Page 703
that, if this be true, the only effect it could have would be to increase the value of his estate, and thus necessarily to increase the damages, so that the last two clauses in instruction eleven and one half are in conflict and cannot be reconciled.
Some of the cases exclude evidence as to children because its admission is likely to prejudice the jury. It was said by a majority of' the court in the Beems case that observation and experience do not teach that one's income is likely to increase in the same ratio as the number of his children. It would seem that there are other reasons for excluding such evidence. If it is thought that children would be an inducement to habits of industry, and thus increase the value of his estate, how long would the inducement continue? Would it continue during the entire expectancy of the person injured or deceased? Would there be other children born after the injury and after the trial? Would some of these die? What is their expectancy? What are their habits? Would their earnings, until they reach their majority, add to the estate, or would it cost more to raise them than they earn ? Suppose a man has six minor children, who are dutiful, in good health, industrious, and saving; they would, when old enough, be a great help and aid to the parent in accumulating and saving money. But suppose the children are sickly, requiring medical expense, they are unable to work, or suppose they are lazy and spendthrifts, would they enhance or decrease the value of the estate? We will say that the parent is injured or killed. If proof as to the number of children is competent, then the man with the family of children who are not helpful obtains the same advantage by such proof as the man whose family is an aid to him, unless all these matters are gone into. Would defendant's attorney dare to cross-examine and show that the children are cripples or sickly? For the purpose of argument, I am assuming at this point that the sympathies of the jury would not be aroused, and that they would fairly consider such evidence for the only *Page 704
purpose for which it could be considered, and that is to either enhance or decrease damages. If it be competent to show the number of children composing the family of the person injured or deceased, why would it not be competent to show that the parents or grandchildren of such person were members of his family, if that be the fact ? These and other questions naturally arise. It seems to the writer that these matters are too remote, uncertain, speculative, and would involve the investigation of collateral matters. To hold that such evidence is admissible necessarily overrules the Beems case and overturns a precedent of thirty years' standing, is against the overwhelming weight of authority, and establishes a dangerous rule.
If the evidence is properly in the record, it would be legitimate to refer to it in argument to the jury, and hereafter, in personal injury and like cases, we may expect it to be used to the best advantage, and in all probability we will be compelled to reverse cases because of it.
Appellee cites Hamann v. Bridge Co., 136 Wis. 39 (116 N.W. 854), and quotes therefrom as follows: "In an action for negligent death, by decedent's widow, suing as administratrix, she can show the state of her health, and the number of her children; the jury being properly cautioned that she can recover only for the pecuniary damage resulting to herself from the death." The opinion is brief on this point. It cites two prior decisions of the Wisconsin court, one of which Lawson v.Railway, 64 Wis. 447 (24 N.W. 618, 54 Am. Rep. 634) cites theDonaldson case, 18 Iowa, 280, as authority; and Abbott v. McCadden,81 Wis. 563 (51 N.W. 1079, 29 Am. St. Rep. 910), in which the court says: "The court charged the jury, on the subject of damages, that the damages `must be the money value only to her and her children which the life of the deceased was worth to her and them on the day of his death.' . . . This was error. The fact that there are children left surviving, whose support will be thrown on the plaintiff, is proper to be shown in evidence and to be considered by *Page 705
the jury; but the damages recoverable are those which the widow has suffered, not those which the children have suffered." From this it appears that there is a different statute in Wisconsin from ours by which the damages are for the benefit of the widow and not the estate.
Appellee also cites as being to the same effect as the Hamann case, 7 Enc. of Evidence, 439; but an examination of the text shows that this is the rule in states which by statute allow the right of action for the benefit of the next of kin of deceased. He also cites 8 Am. Eng. Enc. of Law, 941. But at page 940 of the same volume the same distinction is made which I make. It is there stated that, where the action is brought by the widow for the death of her husband, the ground of the admissibility of such evidence is that by the death of the father the responsibility of supporting and rearing the children is cast upon the plaintiff, their mother, and it is proper to show the extent and character of this responsibility thus cast upon her. Also 13 Cyc. 358, and numerous cases there cited. The text here refers to the number and condition of persons dependent upon deceased. Some of the cases there cited are under statutes such as I have mentioned. In my opinion the rule announced in the Beems case as to evidence in regard to children of a deceased person is correct, and that it is sustained by the weight of authority. In some of the cases the party injured was deceased, in others he survived, but the rule is the same, for in one case he is suing for his own injuries, and in the other his representative is suing for damages to his estate. As sustaining the rule in the Beems case, see 13 Cyc. 196, and cases, also Pennsylvania Co. v. Roy, 102 U.S. 451
(26 L. Ed. 141, 145 (2d Ed.)); Baltimore, etc., Ry. v. Camp, 81 Fed. 808 (26 C.C.A. 626, 54 U. S. App. 111); Louisville, etc., Ry. v. Binion,107 Ala. 652 (18 So. 78); Dayharsh v. Hannibal Ry., 103 Mo. 577
(15 S.W. 555, 23 Am. St. Rep. 900); Jones v. George, 227 Ill. 64 (81 N.E. 4,10 Ann. Cas. 285); Vandalia Coal Co. v. Yemm, 175 Ind, 524 (92 N.E. 49,94 N.E. 881); *Page 706 Simpson v. Foundation Co., 201 N.Y. 479 (95 N.E. 10, Ann. Cas. 1912B, 321); Carlile v. Bentley, 81 Neb. 715 (116 N.W. 772); Maynard v. OregonRy., 46 Or. 15 (78 P. 983, 68 L.R.A. 477); Ft. Worth v. Stokes, 33 Tex. Civ. App. 218 (76 S.W. 231); St. Louis Ry. v. Adams, 74 Ark. 326
(85 S.W. 768, 86 S.W. 287, 109 Am. St. Rep. 85); Louisville By. v.Eakins, 103 Ky. 465 (45 S.W. 529, 46 S.W. 496, 47 S.W. 872);Chicago, R. I. P. Ry. v. Batsel, 100 Ark. 526 (140 S.W. 726);Union P. Ry. v. Hammerlund, 70 Kan. 888 (79 P. 152); Rio Grande Ry. v.Campbell, 44 Colo. 1 (96 P. 986); Oil Co. v. Tierney, 92 Ky. 367
(17 S.W. 1025, 14 L.R.A. 677, 36 Am. St. Rep. 595); Union P. Ry. v.McMican,194 Fed. 393 (114 C.C.A. 311). These are not all the cases which might be cited. Many others are cited in some of these. It would unduly extend this dissent to quote at any length from these cases, but I wish to refer to a few of them.
In Pennsylvania Co. v. Roy, supra, a verdict for $10,000 was set aside and the cause reversed solely because of the admission of such evidence.
In the Kansas case (U. P. Ry. v. Hammerlund, supra), it was held that the evidence was not competent, and the court said the question is not debatable.
In the Kentucky case of Louisville Ry. v. Eakins, supra, the court quotes from the opinion in the case of City of Chicago v.O'Brennan, 65 Ill. 163, as follows: "Was this evidence admissible? If it was, then it would have been competent to have gone further and shown all the circumstances of the family, such as that the mother was an invalid, that one of the daughters was blind, that one son had accidentally lost a leg, etc., if such had been the case, so as to present a most pitiable picture of a helpless family dependent upon appellee for support as a lecturer, for, as the evidence had no place in the case but as a stimulant to the jury, it would have been just as competent to make the stimulant strong as weak. But was it competent at all? It is an elementary rule that evidence must be confined to the points at issue. There *Page 707
was no point in issue to which this evidence had any relevancy. This sort of attempt to foist irrelevant matters upon the attention of the jury, with a view to creating a personal interest, is too often the secondary resort of a party on the witness stand." The Kentucky case states that this rule has received the approval of that court in a number of recently decided cases, citing them.
In the case of Jones v. George, 227 Ill. 64 (81 N.E. 4,10 Ann. Cas. 285), supra, it was said:
On the trial of this case appellee was allowed to prove that he was a married man and had three children. The evidence was objected to, and the objection overruled. The damages recoverable in this case can only be compensatory. The domestic relations, the financial standing of the parties, are therefore irrelevant. . . . Youngblood v. S. Car. Ry.Co., 60 S. C. 9 (38 S.E. 232, 85 Am. St. Rep. 835), and note, where many other authorities are collected. . . . The error in admitting this evidence is virtually admitted by appellee and was recognized by the appellate court, but it was thought that the remittitur of $1,500 ought in some way to cure this error. We cannot assent to this view. Evidence of this character not only tends to enhance the damages, but it is calculated to arouse a sympathy for appellee which is liable to unconsciously influence a jury in the decision of other controverted questions of fact in the appellee's favor. It would be a dangerous precedent to hold that a party might introduce irrelevant testimony which would appeal to the sympathy, passions or prejudices of a jury in such a way as to insure him the verdict on all doubtful questions of fact, then permit the trial court to estimate how much of a gross sum awarded as damages was due to such irrelevant testimony, and deduct that from the total verdict and render judgment for the balance, and thus cure an error, but for which the verdict might have been in favor of the other party.
Early New York and Alabama cases are cited in the majority opinion. I have not examined them, but the later cases from those states which I cite hold that the evidence is inadmissible. *Page 708
In my opinion, the evidence as to the number and ages of the children was not admissible in this case for any purpose, and the instruction cannot be sustained because of the conflict therein. I would reverse.
DEEMER, J., joins in the dissent.
*Page 326 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435464/ | [1] Plaintiff's petition asserts that plaintiff is a practicing attorney and that defendant is a realtor; that on December 30, 1940, at the instance and request of defendant, plaintiff accompanied defendant, in an automobile owned and operated by defendant, for the purpose of driving from Des Moines to Sioux City to secure an affidavit for correction of the title to property in the sale of which both parties were interested; that defendant was negligent in the operation of his automobile, resulting in serious personal injuries to plaintiff for which he sought judgment in the sum of $10,000. The petition as amended asserted eight specifications of negligence, only four of which were submitted to the jury in the court's statement of the issues, as follows:
"1. In driving said car at a high and excessive rate of speed at said time and place under the conditions and circumstances then and there existing. 2. In failing to have said car under control at the aforesaid time and place. 3. In operating said automobile at the time and place aforesaid at such a rate of speed so as not to be able to stop within the assured clear distance ahead. 4. In failing to keep a proper lookout."
The answer of the defendant contained three divisions, but, in the statement of the issues, the court submitted only the following:
"The defendant denies each and every material allegation in plaintiff's petition contained. The defendant denies that defendant was negligent but alleges that whatever the conditions of driving and conduct of the driver were at the time of the accident, plaintiff had knowledge thereof and acquiesced therein."
The jury returned a verdict in favor of the defendant, and, judgment being entered thereon, plaintiff appeals. *Page 223
While the plaintiff assigns two errors, they both relate to the court's giving of Instruction No. 12, as follows:
"You are instructed that it is the law of this State that if a passenger in an automobile acquiesces in the method and manner of operation of the same by the operator, or if the passenger voluntarily becomes a guest in an automobile and after he has assumed his position in the car it comes to his knowledge that the driver is operating the car in a negligent manner and there is danger of injury to himself, and with such knowledge on his part he acquiesces in the method and manner of the operation, he cannot recover. Therefore if you find that defendant has established by preponderance of the evidence that the plaintiff in this case, after assuming his position in the automobile driven by the defendant had knowledge that the defendant was operating his car in a negligent manner and there was danger of injury to himself in such operation, and he failed to protest the manner and method of its operation and sat by and acquiesced in such operation, he cannot recover. It is for you to determine, under all of the evidence in this case, whether the plaintiff had such knowledge and did or did not protest the manner and method of the operation of the automobile driven by the defendant at the time and place in question."
Plaintiff excepted to the giving of said instruction and made the exceptions thereto one of the grounds of his motion for a new trial. His assignment of error in this court, based upon the exceptions taken in the trial below, asserts that the instruction was erroneous because the question of assumption of risk did not arise in the case, the instruction was not limited to those matters which the plaintiff had the opportunity to see and appreciate and regarding which he had time to make a choice, but was applied generally to the conditions right up to the time of the catastrophe, when he had no opportunity to make a choice, was too broad because it was for the jury to say whether a reasonably prudent man would have protested to the driver.
The record herein presents disputed questions of fact. Briefly, the jury was warranted in finding the following facts: Plaintiff and defendant undertook to drive from Des Moines to Sioux City in defendant's car with defendant driving. They *Page 224
started out at about 3 p.m., December 30, 1940. The accident that caused plaintiff's injuries occurred about a mile and a half southeast of Mapleton, about 8 p.m. They ran into snow west of Guthrie Center. Plaintiff suggested they take the Hiawatha train on the Milwaukee railroad. It was still snowing when they turned north at Harlan. As they approached Denison, plaintiff suggested the snow was getting thick, it was getting hard to drive, that they change to a bus or train. They stopped for dinner at Denison, checked up on schedules, but continued in defendant's car. It was snowing when they left Denison. Plaintiff rode in the front seat. He made no suggestions how the car should be driven. The accident occurred at a curve in the highway as it approached a bridge. As the road approached the curve it was straight for a distance of two miles. There was snow on the ground; it was slushy and snowing; defendant was driving about sixty-five miles per hour; the windshield wipers were working; they made the corner curve but lost the road, went through a guard rail into a ravine.
In his exceptions to Instruction No. 12, plaintiff asserted:
"The whole matter happened so quickly that there was no chance to make a selection, and the plaintiff had no opportunity to get out of the car or make a choice. The question whether he in this brief interval should have spoken to the defendant is not one of assumption of risk but one of contributory negligence, and in such an interval the time for speaking is insufficient to correct the error which caused the impending accident."
Defendant, on the other hand contends:
"But it will not do for the appellant in a suit based upon a trip that lasted over four hours, and under allegation `that he was riding in the automobile of the defendant for their mutual, definite and tangible benefit', and, after testifying to the jury of driving a hundred miles through snow and on a wet and slippery pavement, to now ask this court to confine its decision to the last one and one-third seconds prior to the accident."
As above pointed out, the first and third specifications of negligence, which the court submitted to the jury, asserted that *Page 225
defendant operated the automobile at a high and excessive rate of speed under the conditions and circumstances then existing and greater than would permit him to bring the car to a stop within the assured clear distance ahead. Plaintiff's own testimony is to the effect that the weather conditions were adverse, that he was apprehensive and repeatedly suggested changing the mode of travel. Plaintiff and his witnesses testified that it had been snowing just before the accident and their testimony indicates that it was snowing at the time; the road was wet; it was dark; visibility was not good. Plaintiff testified that defendant was driving sixty-five miles an hour. The jury might have found that the speed was excessive and that the excessive speed under adverse driving conditions caused defendant to "lose the road," with plaintiff's injury resulting therefrom, and that plaintiff knowingly acquiesced in such excessive speed under adverse driving conditions for sufficient length of time to have assumed the risk of injury therefrom. On the other hand, the jury might have found that the defendant failed to keep a proper lookout when he undertook to make the turn and that this was the sole proximate cause of the accident. If the jury made the former finding on the issue of proximate cause, plaintiff could not recover because of his contributory negligence. If it made the latter finding, that would not be so, because, for acquiescence to be contributory negligence it must be in reference to that negligence which caused the injury.
For example, in 4 Blashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., 336, section 2514, the author states:
"Where, at the time a guest accepts the invitation to ride in an automobile, the weather conditions are such as to make it dangerous to take the projected trip, the guest assumes the risk of injury from the hazards thus present to his view and understanding; but he is not precluded from recovering unless the risk thus assumed is the cause from which his injury derives."
Much confusion exists over the so-called doctrine of assumption of risk. In the recent case of Garrity v. Mangan, 232 Iowa 1188,1192, 6 N.W.2d 292, 295, we state:
"Strictly speaking, assumption of risk is technically not the *Page 226
correct term, although it has by usage become as commonly known, understood, and applied as in master-and-servant cases. The words `acceptance of risk' are perhaps more purely descriptive in cases of tort. It has been held by this court that one who enters a place of danger, as in case of becoming a guest in an automobile, knowing and appreciating the driver is incompetent, inexperienced, reckless, or intoxicated, acquiesces in the operation of the car and would be held to be assuming the risk of the resulting accident. In the case of intoxication numerous cases support this rule. See White v. McVicker, 216 Iowa 90,246 N.W. 385, cited in Wittrock v. Newcom, 224 Iowa 925,277 N.W. 286. Although the distinction has been made by our courts at various times, it seems to us reasonable and clear that one who enters a car as a guest, knowing that the driver is under the influence of intoxicating liquor, should be deemed to take his chances of an accident and resulting injury, and such has been the holding of various courts."
That case arose under the so-called guest statute [section 5037.10, Code, 1939]. In such cases, liability is not predicated upon negligence, but upon recklessness or intoxication of the driver. Contributory negligence is not in issue. Assumption of risk is an affirmative defense, in the nature of confession and avoidance.
In the case of Edwards v. Kirk, 227 Iowa 684, 288 N.W. 875, attempt was made to inject the doctrine of assumption of risk as a defense to an action for negligence. In that case plaintiff was a passenger on a motorcycle which was struck by defendant's car. The allegations that plaintiff assumed the risk of the negligence of the operator of the motorcycle were stricken on motion. On appeal the order was affirmed. We point out that, for one to assume a risk there must be an opportunity to appreciate the danger, time for a choice. At page 692 of 227 Iowa, page 879 of 288 N.W., we state:
"There was no time for deliberation; no opportunity to choose. To jump would have been certain injury. He was suddenly caught in a trap not of his own choosing, but due to the combined action of the drivers of the two vehicles over which he had no control." And we conclude as follows: "We are unwilling *Page 227
to introduce into the law pertaining to the many cases based on negligence, growing out of automobile collisions, the doctrine contended for by appellant."
The facts in Edwards v. Kirk were different from those now before us. It was not contended that plaintiff assumed the risk of defendant's negligence, but that of a third party, and the time element was different than here. In view of the concluding pronouncement of that case, however, we are reluctant to inject the doctrine of assumption of risk as an affirmative defense in a case such as this. We think that the question falls properly under the issue of contributory negligence and that, so interpreted, the rights of both parties are better protected in a jury trial. In a case under the guest statute, contributory negligence is not in issue. Assumption of risk, if relied on, must be asserted as an affirmative defense. The doctrine is also defensive in those jurisdictions where contributory negligence is an affirmative defense. Such is the situation in this jurisdiction by statute in master-and-servant cases. Section 11210, Code, 1939; Lang v. Hedrick, 229 Iowa 766, 775,295 N.W. 107, 112, and cases cited therein. But in this jurisdiction, in cases like the one now before us, the plaintiff has the burden of proving freedom from contributory negligence. In such a case, acquiescence in defendant's negligence, if relied on, constitutes an issue that pertains to a matter upon which plaintiff has the burden, rather than an issue on which defendant has the burden. To require a court to instruct upon contributory negligence and include the issue of acquiescence there and also to instruct upon that issue as an affirmative defense would inject confusion into the case which should be and can be avoided by confining the issue to the instruction on contributory negligence.
In discussing contributory negligence, we state in Dreier v. McDermott, 157 Iowa 726, 736, 737, 141 N.W. 315, 319, 50 L.R.A., N.S., 566, as follows:
"Men have a right to assume positions of danger. They have a right to struggle for the mastery. They have a right, so far as they themselves are concerned, to imprudently put themselves in positions of danger, but, when they do this, the consequences of their rashness must fall upon their own heads. *Page 228
"It has been repeatedly held that where one knowingly places himself in a place of danger which he might easily have avoided he assumes all the risks incident thereto."
The foregoing pronouncement has been repeatedly followed by later decisions of this court. Quite a few such decisions are cited in the next to the last paragraph of our opinion in Lewis v. Cratty, 231 Iowa 1355, 1365, 4 N.W.2d 259, 263. In such cases, acquiescence in a position of danger that is obvious or readily apparent has been held to be contributory negligence.
In the case of Gowing v. Henry Field Co., 225 Iowa 729, 737,281 N.W. 281, 285, we state:
"When plaintiff, with his hands full standing on the roof of this two-story building facing out into space, undertook the acrobatic feat of either walking down this steep incline as he would an ordinary stairway or of balancing himself on one heel and swinging his body around as he brought his other leg over the balustrade to face the ladder without the aid or assistance of his hands, he created his own danger. He assumed the hazard or risk such conduct entailed and must be held as a matter of law to have contributed in some degree to his own injury."
Similar expressions, that plaintiff assumed the risk, have been used in automobile cases where the plaintiff acquiesced in the negligence of the driver and was said to be guilty of contributory negligence. Scory v. LaFave, 215 Wis. 21,254 N.W. 643, 645; Grassie v. American LaFrance Fire Engine Co., 95 Cal. App. 384,272 P. 1073, 1075; Maybee v. Maybee, 79 Utah 585,11 P.2d 973, 976; Rebillard v. Minneapolis, St. P. S.S.M.R. Co., 8 Cir., N.D., 216 F. 503, 507, L.R.A. 1915B, 953; Clise v. Prunty,108 W. Va. 635, 152 S.E. 201, 203; Hardie v. Barrett, 257 Pa. St. 42, 46, 101 A. 75. 76, L.R.A. 1917F, 444. In the last-cited case, the Pennsylvania court states:
"The rule is well established that, when possible dangers, arising out of the negligent operation of a hired vehicle or a conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, if he sits by without protest and permits himself to be driven on to his injury, this is negligence which will bar recovery. *Page 229
In other words, the negligence of the driver is not imputed to the passenger, but the latter is fixed with his own negligence when he joins the former in testing manifest dangers."
In the case at bar, there were manifest dangers incident to driving at a high rate of speed under adverse weather conditions. If the jury found that this constituted negligence it was also under a duty to determine whether plaintiff, with knowledge thereof, acquiesced therein and that such negligence was the proximate cause of plaintiff's injury. But, as pointed out in Edwards v. Kirk, supra, there must be sufficient time to make a choice. One does not acquiesce in a danger that presents itself suddenly with no opportunity to avoid it. The court submitted to the jury four allegations of negligence. Under the record herein, the allegedly negligent rate of speed under the weather conditions then existing was known to the plaintiff. The jury should have been charged with the duty of determining whether such negligence, if any, constituted the proximate cause of plaintiff's injury and, if so, whether plaintiff acquiesced therein and assumed the risk thereof so that he cannot recover therefor. But the alleged failure to maintain a proper lookout does not fall within the same category because such negligence, if any, arose suddenly, without time for plaintiff to have known or appreciated it.
Accordingly, we think that the giving of Instruction No. 12 was error for two reasons. In the first place, the issue there discussed should have been incorporated in the instruction on contributory negligence.
[2] In the second place, the jury should have been more adequately advised that, for acquiescence of plaintiff in negligence of the defendant to bar recovery, the negligence acquiesced in must have been the proximate cause of plaintiff's injury. — Reversed.
All JUSTICES concur. *Page 230 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435465/ | The defendants resided in Pocahontas. Their evidence is that, on May 1, 1926, they drew the check in controversy for $776, on the Farmers Trust Savings Bank at Pocahontas, and obtained its certification. The same day, they inclosed it, 1. BILLS AND with letter, and a smaller check for $79.20, in NOTES: an envelope addressed to the Commercial Credit presentment: Trust, the payee of both negligence of collecting bank. *Page 1199
checks, at Des Moines, and mailed the envelope at Pocahontas. The first of May was Saturday. The smaller check was dated May 1, 1926, indorsed by the Commercial Credit Trust May 3, 1926, by Des Moines National Bank May 4, 1926, by Federal Reserve Bank of Chicago May 5, 1926, and was paid. The plaintiffs give no account of this check or of its presentment. The check in controversy, for $776, is dated May 1, 1926, indorsed by Commercial Credit Trust May 5, 1926, by Des Moines National Bank May 6, 1926, by the Federal Reserve Bank of Chicago May 7, 1926. The cashier of the Commercial Credit Trust testified that he made out wholesale remittance reports every day from the checks, and deposited all checks in the bank on the day they were received. The report for the check in controversy and the deposit slip to the payee are dated May 5, 1926. The witness says that he took the check to the Des Moines National Bank and deposited it on that day. He also says that he does not recall receiving any other checks from the payees that day, nor whether the smaller check was inclosed with the larger one. He acknowledges putting the indorsement on and depositing the smaller check on May 3d. Defendants offered in evidence a letter from the Des Moines National Bank to the Commercial Credit Trust, stating that the bank record showed that the check was deposited May 6th and forwarded the same day to Federal Reserve Bank of Chicago; that the writer of the letter is informed that the check "went forward to Pocahontas May 7th and should have reached that Bank on May 10th, which was Monday. They state that ordinarily they should have returns on this item by May 12. Not receiving payment on that day or the next, they notified us that they were without returns and item was unpaid. Check in question was not returned to them until May 17. Apparently there was no delay on the part of either this bank or the Federal Reserve Bank in handling this item but it would seem that the delay is entirely up to the paying bank at Pocahontas." Also, a letter from the manager of the Commercial Credit Trust to defendants, stating:
"I believe, according to this letter, that if the bank at Pocahontas had not closed its doors prior to May 10, you should have no difficulty in getting paid in full, as it would appear to me you should be on the list of preferred creditors." *Page 1200
It is undisputed that, both on the day of issuing the check and on the day the bank closed, which was May 12th, the drawers had on deposit sufficient funds to pay the check. Plaintiffs' proposition is:
"There was no evidence in the record to show that the plaintiffs were guilty of any negligence which caused any material delay in the presentment of the check."
They urge that the letter offered by defendants shows that the check must have reached the payee bank several days before it failed.
We need to spend no time in discussing the question whether, as matter of law, negligence and nonpayment resulting therefrom are shown. The action was tried to the court, sitting at law; and if there is sufficient evidence supporting its findings, those findings are conclusive here. It is provided by Section 9647, Code of 1924, "A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay;" and by Section 9648, "Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance;" and by Section 9654, "In determining what is a `reasonable time' or an `unreasonable time' regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case." There is no evidence here of the usage of trade or business. It appears that the check was deposited by the payee in bank at Des Moines, and by the Des Moines Bank sent to the Federal Reserve Bank at Chicago. There is evidence that the two checks were inclosed in the same envelope, and so must have been received by the payee at the same time. The smaller one was deposited May 3d, and indorsed by the Federal Reserve Bank May 5th, and paid. The notice of protest offered in evidence by plaintiffs states that the check in controversy was, on May 13th, at the request of the Farmers Trust Savings Bank, holder of the original check, presented to the Farmers Trust Savings Bank, and payment demanded. A letter written by the payee to the defendants asks payment of acceptance for $776, "for which you sent us a cashier's check which was refused due to the closing of the bank." The reference *Page 1201
to the check as "a cashier's check" is evidently an error. It appears from plaintiffs' evidence, therefore, that the Federal Reserve Bank sent the check to the drawee bank, that the drawee bank was the holder, and that presentment for payment was made on May 13, 1926, the day after the bank closed. The payee or the Federal Reserve Bank had no authority to send the check for collection to the drawee bank, and were guilty of negligence in doing so. Leach v. Citizens' State Bank of Arthur, 203 Iowa 782;Leach v. Battle Creek Sav. Bank, 202 Iowa 871. As stated, this evidence was introduced by the plaintiffs, and the plaintiffs thereby show their own negligence, and show injury, though the fact was not pleaded by defendants as negligence. Plaintiffs have not undertaken to explain whether or not the drawee of the check was a member of the Federal Reserve system or had an account with the Federal Reserve Bank, and that to such account the check was charged by the Federal Reserve or credited by the drawee. We need not discuss the question whether such is the reasonable inference from the evidence. The plaintiffs' evidence shows presentment May 13th and refusal of payment, "due to 2. BILLS AND the closing of the bank." Furthermore, NOTES: the burden was on plaintiffs to show that presentment: defendants were not injured by their negligent negligence. Hamlin v. Simpson, 105 Iowa 125, delay: 130; Knight v. Dunsmore Chambers, 12 Iowa burden of 35, 39. See 7 Corpus Juris 757; 8 Corpus Juris proof. 1020. The judgment is supported by the evidence.West Branch State Bank v. Haines, 135 Iowa 313, 317; Fritz v.Kennedy, 119 Iowa 628. — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435466/ | I. The plaintiff attached to his petition copies of his three promissory notes, as exhibits, and alleged concerning *Page 626
the same that he was induced to take "three notes therefor, copies of which said notes are hereto attached, 1. SALES: marked Exhibits A, B, and C, and made a part fraud: hereof; and that plaintiff took said notes un-allowable believing, at the time, that the said sum of rescission $5,500 due him from the defendant was the same in law indebtedness of defendant aforesaid, but in action. another form."
In the second count of his petition, he charged as follows:
"And defendant, by its cashier, L.A. Nisely, gave to him three notes, copies of which are hereto attached, marked Exhibits A, B, and C, aggregating in amount to $5,500, which said notes the defendant, by its cashier, L.A. Nisely, falsely and fraudulently represented that said notes were the notes of defendant; and plaintiff, relying thereon, was induced to believe, and did believe, said notes were the notes of defendant, when in fact and in truth they were not, which was well known to the defendant; and plaintiff, relying upon the false and fraudulent representations aforesaid, that the notes above described were the notes of defendant, believed, and did believe, that the sum represented by said notes was the same indebtedness of defendant to him, but in another form; and that, by reason of the false and fraudulent representations aforesaid, and upon which he relied, plaintiff has been damaged in the sum of $5,500, for which he asks judgment against defendant, with interest and costs."
In support of these allegations, the plaintiff testified as follows:
"I told him that these certificates in there were only drawing 4 per cent, and that it is worth 6 per cent to me any place. He said: `If you can leave this in here any length of time, we will insure you 7 per cent as long as you could leave it with us.' He said: `The bank can give you 7 per cent, on account of this here shortage.' We figured up, and seen how much we had. He proposed to give me these bank notes, and I said I didn't want them. I said: `I need this money; I want to buy some stock and build me a residence;' and so he went back and showed me the deposit boxes. I told him I had no place to keep these notes, and I didn't want them on that account. He went back and showed me the deposit boxes, and said: `You can have this box as long as these notes are in here, as long as the *Page 627
bank owes it to you.' I said I would have to have the notes so I could draw some out occasionally. We drew them that way. He said: `If you have to have the money, we can pay you any time.' He fixed up the notes there in the bank."
It also appears that the plaintiff at the same time delivered to Nisely certain certificates of deposit and checks, including a personal check issued by Nisely personally to the plaintiff in a personal transaction between them. It also appeared in evidence on behalf of the defendant that the consideration of the notes included the surrender by plaintiff to Nisely of a note for approximately $3,100, which had been executed and delivered one year prior. The existence of this item is denied by the plaintiff, and we treat the denial as true, for the purpose of our consideration of the case. This transaction was had on May 5, 1919. On November 1, 1919, the state banking department closed the doors of the defendant bank, and continued in possession thereof for a period of five weeks. Account was taken of its assets and liabilities, and its capital was found to be greatly impaired. An effort was made to rehabilitate it by issuing additional stock to new investors. This effort was successful. New men were induced to put in new capital, and new stock was issued therefor. With its new blood, the bank was reopened, and new officers were elected and new control was effected. The plaintiff knew these facts at the time. He knew that the operation of the bank was suspended, and that new capital was being subscribed for its reorganization. He made no claim at any time that the bank was owing him the debt now sued on. On the contrary, he claimed the debt from Nisely personally. On April 1, 1920, he began an action on the notes against Nisely personally, and such action is still pending. In September of the same year, he commenced this action against the bank. His acts subsequent to May 5, 1919, which are here set forth, are pleaded in the answer as an estoppel.
It will be seen that the question which goes to the heart of the case is: Can the plaintiff, in an action at law against this defendant alone, gain any standing by his purported repudiation or rescission of the notes which he accepted from Nisely on May 5, 1919? Can he, in an action at law against this defendant alone, rescind his contract with Nisely as the same is *Page 628
embodied in the notes set forth? And can he, by such purported rescission, reclaim from Nisely the cause of action originally held by him against this defendant? Can he revive such former cause of action against this defendant without re-establishing the status quo of this defendant? Having transferred his cause of action against this defendant to Nisely personally, and accepted from Nisely his personal notes, and having enabled Nisely legally to collect such original cause of action from this defendant, can he ignore such transaction and recover directly from this defendant upon his former cause of action, notwithstanding the discharge of such cause of action by a payment to Nisely?
It avails him nothing, as against this defendant, to say that Nisely fraudulently represented the notes to be the notes of the bank. He does not claim to recover on them as such. He pleads, in support of his charge of fraud, that they are not the notes of the bank. The notes showed on their face that they did not purport to be the notes of the bank. The plaintiff is an intelligent man, long experienced in business, and able to read and write. He was charged with knowledge of the contents of the notes accepted by him. Even if fraudulent, they were not void, but voidable only. If voidable, they were so only at the election of the plaintiff. In consideration of these notes, he transferred to Nisely personally the evidence of debt which he held against this defendant in the form of certificates. Some of these bore 4 per cent interest. The notes received by him bore 7 per cent interest. Needless to say that, if Nisely has collected these certificates from the bank, or has transferred them for value to others, the transaction between Nisely and plaintiff would operate as a fraud upon the bank, in the event that plaintiff were permitted now to establish his former claim against the bank. If the action of Nisely was a fraud upon the plaintiff, it was because Nisely concealed his insolvency. But the transaction between plaintiff and Nisely operated no less as a fraud upon the bank, if the bank is to be held liable to the plaintiff for the former indebtedness. In such fraud the plaintiff participated, in that he knew that Nisely was acting in his own personal interest. The bank received no benefit whatever from the transaction, and was not responsible as a principal for an act which *Page 629
Nisely purported to do in his own personal right. All that need be said now is that the plaintiff is in no position in this action to rescind his transaction with Nisely, whereby he parted with his cause of action against this defendant. In a suit to rescind or to reform, Nisely would be a necessary party, and the jurisdiction would be in equity. If we were to assume equity jurisdiction in the consideration of this record, the plaintiff would still fail. For the purpose of this appeal, we are required to accept all the plaintiff's evidence as true, so far as it is consistent with itself. But in an equity suit, triable here denovo, the credibility of his evidence would be subject to question. Some of it appearing in this record could not be accepted as true. This is so as to his sweeping denial of signatures. Nor could we doubt, upon such consideration, that the indebtedness represented by the three notes includes a previous note taken by plaintiff from Nisely in 1918. All that we hold, however, at this point is that plaintiff's transaction with Nisely is not subject to reformation or rescission in this action, and that, while such transaction stands unreformed and unrescinded, the plaintiff has no title to his former cause of action which he transferred to Nisely. For this reason alone, he must fail in this action.
II. In overruling the motion for a new trial, the trial court filed his decision in writing, as follows:
"I have given very careful attention to the motion for a new trial filed in this case, and have examined the briefs and authorities with great care. In deciding to overrule the motion for a new trial, I wish to state that when, upon 2. NEW TRIAL: the trial of this case, a motion for a directed grounds: verdict in favor of the defendant was made, I failure to was of the opinion at the time that the facts in satisfy evidence did not authorize the plaintiff to court of recover in this action. This opinion of mine, right to however, was not of that certitude which I recover. deemed should be entertained by the trial judge in sustaining the motion. I am still of the opinion that the facts in evidence do not authorize a recovery in favor of the plaintiff, but my opinion still lacks that certitude which I think should be possessed by the trial judge in sustaining this motion for a new trial. The motion raises several very serious legal questions. *Page 630
They are all, however, clearly raised in the record, and are such that the Supreme Court can pass upon and finally determine. If the motion for a new trial should be sustained, the same doubtful legal questions would be presented to the trial judge, and I deem it better that they be first determined and disposed of by the Supreme Court. I have prepared an order overruling the motion for a new trial, giving the defendant its proper exceptions."
The foregoing of itself constitutes sufficient ground for reversal. There was no burden of certitude upon the defendant. On the contrary, such burden was upon the plaintiff. This writing discloses that the plaintiff obtained a judgment which did not have the approval of the court that entered it. The defendant was entitled to a directed verdict or to a new trial, unless the trial judge was convinced that the plaintiff was entitled, upon the record, to judgment. The writing discloses that he was not so convinced. On the contrary, he believed that the plaintiff was not entitled to judgment. His want of certitude operated against the plaintiff, and not against the defendant. State v. Billings,81 Iowa 99.
III. Appellee has filed a motion to strike appellant's argument, for failure to comply with the rules. The principal attack is directed against the failure to use the kind of type legally required in the printing of the same, in 3. APPEAL AND that a considerable amount of the argument is ERROR: printed in capitals. It must be said that the argument: appellant has made very free use of capitals, form of which, in some parts of his argument, cover the printing entire page. This method has undoubtedly been condemned. adopted in good faith and in pardonable zeal to bring the matters thus printed to the attention of the court. We have to say, however, that such method is not helpful to the end thus desired. The growing practice is one which we prefer to check, rather than to encourage. There can be no special objection to their occasional use in a headline. When used to a greater extent, they become only an annoyance and an added difficulty to the reading of the page. Counsel for appellant have not originated the sin thus charged against them. The same practice has been indulged in hitherto not infrequently by other counsel, who have not evoked, however, the challenge *Page 631
of their adversaries. We think the use of capitals in appellant's brief has been clearly excessive, as a departure from our rules of printing. We do not, however, in such a case, strike the argument. We deem it a sufficient remedy to penalize the violation of the rules by a proper taxation of costs. No costs will be taxed for the printing of appellant's brief.
The judgment entered below is reversed. — Reversed.
ARTHUR, C.J., and PRESTON and FAVILLE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435669/ | A demurrer to an indictment having been sustained the State has appealed. In the indictment the grand jury accuse appellee of Keeping Liquor Where Beer Is Sold as defined in code sections (now Code of 1939) 1921.126 and 1921.132, and charge that appellee kept liquor for beverage purposes having an alcoholic content greater than 4 per cent by weight in the place of business of a class "B" beer permit.
The basis of the demurrer was the alleged invalidity of section 1921.126, which the indictment charged had been violated. No direct attack was made upon section 1921.132, which is the criminal penalty section. Upon hearing on said demurrer the trial court entered an "Order" reciting that it "finds that said Demurrer should be sustained and indictment dismissed. It is therefore hereby ordered, adjudged and decreed that the defendant's demurrer to said indictment be and the same is hereby sustained."
The appeal of the State was taken from this "Order".
[1] I. Code section 13995, governing appeals in criminal cases, provides that "An appeal can only be taken from the final judgment, * * * ." Appellee has moved to dismiss this appeal upon the ground that the "order" appealed from was not a "final judgment". Involved in a consideration of said motion are certain statutes relating to demurrers.
Code section 13790 provides:
"The defendant may demur to the indictment when it appears upon its face, either:
"1. That it does not substantially conform to the requirements of this code, or
"2. That the indictment contains matter which, if true, would constitute a legal defense or bar to the prosecution."
In this case the demurrer was not based upon the failure of the indictment to conform to the requirements of the Code, as set out in subsection 1 of code section 13790. On the contrary it was founded solely upon the claimed unconstitutionality of the statute alleged to have been violated. Therefore, it properly *Page 1318
falls under subsection 2 of said code section in that it alleges only that the indictment contained matter which would constitute a legal defense or bar to the indictment.
Section 13796 of the Code provides:
"If a demurrer is sustained because the indictment contains matter which is a legal defense or bar to the indictment, the judgment shall be final and the defendant must be discharged."
Obviously, the foregoing section applies to the demurrer in this case. However, there was no formal judgment ordering the discharge of the defendant. The finding of the trial court was that the demurrer should be sustained and the indictment dismissed but it was ordered, adjudged and decreed only that the demurrer be sustained. Did this constitute a "final judgment" from which an appeal by the State would lie?
We have heretofore had occasion to consider this proposition in analogous cases. In State v. Fields, 106 Iowa 406, 411,76 N.W. 802, 804, there had been a demurrer to an indictment on the ground that it contained matter which was a legal defense or bar to the indictment. The demurrer had been sustained and it had been ordered that the defendant be discharged and that his bonds be released. Holding this constituted a final judgment, the court said:
"The order made on the ruling was not in the form of a judgment, but, it, in terms, discharged the defendant and released his bonds, and was, in legal effect, a final judgment."
Referring to a similar order, we said in State v. Bair, 92 Iowa 28,29, 60 N.W. 486:
"We regard that as a judgment. An action was pending; an issue was made, tried and determined; and the adjudication was final in that proceeding. Every final adjudication of the rights of the parties in an action is a judgment."
In State v. Sexsmith, 202 Iowa 537, 540, 210 N.W. 555, 556, the court said:
"It is not questioned that, if the demurrer was sustained because the indictment contained matter which was a legal defense *Page 1319
or bar to the prosecution, the judgment thereon was final and a bar to further prosecution. Section 13796 leaves no room for controversy on that point."
Since the case at bar is within the rule of section 13796 we need not consider at length the question of re-submission of the case to the grand jury under section 13797 as discussed in some of the cited cases. It is sufficient to say no attempt to re-submit appears and any such order in this case would have been invalid. State v. Fields, supra. In the case at bar the court found the demurrer should be sustained and the indictment dismissed and ordered, adjudged and decreed that the demurrer be sustained. Under the rule enunciated by the cited authorities we conclude this terminated the case and constituted a final judgment from which an appeal could be taken by the State. Other grounds of appellee's motion to dismiss the appeal have been considered and are overruled.
II. Upon the merits of the case the only question involved is the contention that the statute under which appellee was indicted was unconstitutional and void under Article III, section 29 of the constitution of Iowa which states in part:
"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. * * *."
The act in question is chapter 16, Forty-sixth General Assembly, and its title is as follows:
"AN ACT to amend chapter twenty-five (25), acts of the Forty-fifth General Assembly in extraordinary session, relating to the manufacture, sale and distribution of beer; creating a state permit board and defining its powers and duties; providing for the issuance and revocation of permits authorizing boards of supervisors to adopt rules and regulations and cities and towns to pass ordinances governing the sale and distribution of beer; providing for hearings by the state permit board; and fixing the hours during which beer may be sold, delivered, or consumed."
The particular portion of the above amendatory act which appellee was charged with having violated was section 7-a which is now part of section 1921.126, Code of 1939, and recites: *Page 1320
"No liquor for beverage purposes having an alcoholic content greater than four [4] percent by weight, shall be used, or kept for any purpose in the place of business of class `B' permittees, on the premises of such class `B' permittees, at any time. * * *"
The penalty section for violating any provision of the beer law was contained in the original act and is now section 1921.132, Code of 1939.
A brief history of the beer law is necessary to the consideration of this case. Section 1923 of the 1931 Code defined as liquor and intoxicating liquor, alcohol and various alcoholic beverages, including beer. The following section forbade its manufacture, sale or keeping except in certain cases not here material. It may be noted that in 1933 the legislature enacted a3.2 per cent beer law which was afterwards in effect repealed and is not here directly involved.
The present beer and malt liquor law was enacted in 1934 as chapter 25 of the Forty-fifth Extra General Assembly, which for convenience will be referred to herein as the original act. This original act amended section 1923 of the 1931 Code by providing that "liquor" or "intoxicating liquor" should not be construed to include beer or malt liquor containing not more than 4 per cent of alcohol. It also in effect repealed the former beer law and enacted new, comprehensive and restrictive regulations governing its manufacture, distribution and sale.
The original act was entitled in substance: An Act to amend sections 1923 (and other sections not here material) of the 1931 Code, all relating to intoxicating liquors, to repeal chapter 38 and to amend chapter 37, Forty-fifth General Assembly, relating to the manufacture, sale and distribution of beer; "defining beer; providing for the regulation of the manufacture, sale and distribution of beer; * * * providing for issuance of permits therefor and by providing penalties for the violation of the provisions hereof."
As above-noted chapter 16, Forty-sixth General Assembly, was an amendment to the original act. Section 31 of the original act had provided for the revocation of a permit if the holder was convicted of a felony, bootlegging or the sale of beer contrary to the act. Section 7 of the amendatory act amended this by adding as grounds for revocation the sale or dispensing *Page 1321
of wines or liquors in violation of law, permitting the mixing or adding of alcohol to beer or other beverages or any violation of the act as amended. This was followed by section 7-a of the amendatory act under which the indictment was found.
The original and amendatory acts with other amendments now constitute chapter 93.2 of the 1939 Code, entitled "Beer and Malt Liquors". It is a comprehensive and general statute regulating these subjects. This chapter is one of the chapters of Title VI of the Code which was "Intoxicating Liquors" in the 1935 Code. In the 1939 Code Title VI is entitled "Alcoholic Beverages".
The beer law withdraws certain alcoholic malt beverages from the classification "intoxicating liquors" and declares them to be nonintoxicating. Intoxicating liquors and nonintoxicating malt beverages are intimately related yet the line of legal demarcation between them is sharply drawn. It is placed at an alcoholic content of 4 per cent by weight. The sale of beverages containing more than 4 per cent alcohol is forbidden. The sale of malt beverages containing not more than 4 per cent alcohol is allowed.
But this legalized beer is not treated as an article of commerce in which any person may lawfully deal. On the contrary the beer act recognizes it as being in a zone which borders upon intoxicating liquor and that its boundaries must be closely guarded to prevent abuses. Therefore, the act permits it to be sold only by certain approved permittees, in certain approved locations and under certain strict regulations therein set out.
The conduct of the business of selling by permittees and their places of business are regulated by prohibitory as well as affirmative requirements. Manifestly, these regulations were in part purposed not only to prevent the sale of intoxicating liquors at said places but also to completely separate and divorce the beer business from any connection with the handling of intoxicating liquors containing more than 4 per cent alcohol. Illustrative of this is the provision in the original act forbidding the display in said places of signs containing the words "bar" or "saloon" or words of like import, the provision for the cancellation of the license of a permit holder who should be convicted of bootlegging, the requirement that the beer to be sold at retail be purchased from certain wholesale permittees *Page 1322
and that containers be labeled as containing not more than 4 per cent alcohol.
[2] Under the circumstances is section 7-a of the amendatory act void because of failure of the title of said act to comply with the provisions of section 29 of Article III of the constitution of Iowa? In passing upon the constitutionality of acts of the legislature such acts are given the benefit of a presumption in favor of constitutionality. An act of the legislature will be declared unconstitutional by the courts only when it is clearly, plainly and palpably so, and it is the duty of the courts to give such a construction to an act, if possible, as will avoid this necessity and uphold the law. State v. Woitha,227 Iowa 1, 287 N.W. 99, 123 A.L.R. 884; Witmer v. Polk County,222 Iowa 1075, 270 N.W. 323.
[3, 4] The decisions involving the sufficiency of titles to legislative enactments lay down certain general rules. It is held this constitutional provision should be liberally construed so as to embrace all matters reasonably connected with the title and which are not incongruous thereto or have no connection or relation therewith. It was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another. However, the title need not be an index or epitome of the act or its details. The subject of the bill need not be specifically and exactly expressed in the title. It is sufficient if all the provisions relate to the one subject indicated in the title and are parts of it or incidental to it or reasonably connected with it or in some reasonable sense auxiliary to the subject of the statute. It is unnecessary that each thought or step toward the accomplishment of an end or object should be embodied in a separate act. Nor is it important that a law contain matters which might be and usually are contained in separate acts or would be more logically classified as belonging to different subjects provided only they are germane to the general subject of the act in which they are put. Witmer v. Polk County, supra; Iowa-Nebraska Light Power Co. v. City of Villisca, 220 Iowa 238, 261 N.W. 423; State of Iowa v. County Judge, 2 Iowa 280; Cook v. Marshall County, 119 Iowa 384,93 N.W. 372, 104 Am. St. Rep. 283; State v. Gibson, 189 Iowa 1212,174 N.W. 34; Clear Lake Co-op. Livestock Shipper's Assn. v. Weir,200 Iowa 1293, 206 N.W. 297; *Page 1323
Chicago, R.I. P. Ry. Co. v. Rosenbaum, 212 Iowa 227,231 N.W. 646; McGuire v. Chicago, B. Q.R. Co., 131 Iowa 340,108 N.W. 902, 33 L.R.A., N.S., 706.
[5] Applying these rules to the situation in the case at bar we think the provision forbidding beverages containing more than 4 per cent alcohol in a place where beer is permitted to be sold is germane to an act relating to the sale of 4 per cent beer. As we have already pointed out the act relating to the sale of beer is highly regulatory in nature and is threaded throughout with provisions designed to completely segregate the legalized handling of 4 per cent malt beverages from the related intoxicating liquors. Nor is it a matter of particular concern that the prohibition contained in section 7-a of the amendment might properly have been the subject of other legislation or have been placed in another chapter of the Code. Under the rules laid down by the authorities above-cited that is not important.
Furthermore, we think it may be fairly said that an act or an amendment to an act relating to the sale by permittees to consumers of 4 per cent beer might reasonably be expected to include such regulatory provisions as the legislature might deem advisable to assist in the enforcement of the act, and that such provisions might properly forbid beverages containing more than 4 per cent alcohol in the places of business of such permittees. Consideration must be given the circumstance that the legislature has by these very acts legalized things heretofore illegal. Were it not for the original act, 4 per cent beer would still be in the category of intoxicating liquor and its sale by individuals prohibited.
The recitation in the title that the act relates to the sale of beer (a 4 per cent alcoholic beverage) indicates regulation and we do not think the inclusion, in the body of an act so entitled, of various prohibitory provisions relating to beverages containing a larger per cent of alcohol would be a legitimate cause for surprise to anyone. As a practical proposition it cannot be said that an interdiction against the presence of intoxicating beverages in a licensed beer parlor would not be reasonably connected with an act relating to the sale of legalized beer. Nor would the fact that the title to the act made reference to certain regulations necessarily invalidate it as to other *Page 1324
regulations not specifically expressed therein but which might be properly inferred from the general subject of the title.
Employing the liberal rules of construction enunciated in the cited cases, we conclude that the provisions of the portion of section 7-a in question are not incongruous to the title of the act, that such provisions are related to and properly connected with the subject of said title as indicated therein and that the title of the act is sufficient to comply with section 29 of Article III of the constitution. It follows that the trial court erred in sustaining the demurrer to the indictment. The ruling upon the demurrer is reversed but under the statute the case may not be remanded. The costs will be taxed to appellant. — Reversed.
HAMILTON, C.J., and HALE, STIGER, BLISS, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435671/ | I. The record discloses some controversy between the parties as to the validity of the appointment of the guardian, who acts as plaintiff in this case. It is contended also by the defendants that Martin Schreck was not an incompetent, 1. DEEDS: within the meaning of the statute, and that he validity: was not subject to guardianship. It appears that fraud: Martin never went to school, and never learned evidence. to read or write. There is evidence that he was subnormal mentally. The only allegation of fact upon which the petition for guardianship was predicated, and likewise the appointment, was that he was "susceptible to influence." The record discloses irregularities in the matter of the appointment. *Page 123
We shall have no occasion to deal with any of these questions. Martin disclosed himself on the trial as a good and capable witness. At the time of the appointment, he was 52 or 53 years old. He had been an industrious and frugal man all his life, and had transacted all his own business. It appears to have been done at all times intelligently. Substantial reasons for the appointment of a guardian for the purpose of this suit are not prominent in the record. In view of the fact that the result in this case turns, as will later appear, upon the essential fairness of the transaction under attack, the degree of competency possessed by Martin will not be discussed.
The petition charges in substance that, in April, 1915, the signature of Martin was procured to a deed which purported to convey his farm of 160 acres to the defendant Peter Schreck, for a purported consideration of $24,000, no part of which was in fact paid; that Martin did not know that he had signed any such deed at all, though he knew that he had signed various papers at the request of Benson, to whom he had lent the use of his name in various transactions; that afterwards, by a continuance of the same fraud and conspiracy, the defendants induced Martin to accept a $10,000 mortgage on the farm, duly executed by Peter, in discharge of Peter's obligation to him; and that no other consideration was ever received by Martin. It is further averred that Peter Schreck had sold the land for $24,000, and that it had since appreciated in value, and was worth $40,000. It is also averred that, in the sale of such land, Peter took conveyance of other lands in partial payment therefor, and that the subsequent appreciation in value of said other lands is $5,000. The prayer of the petition is for the peak sum of $45,000.
The substance of the defense is that Martin never owned but a half interest in the farm in question, though he held the record title to all of it, and that such fact was always understood and recognized by Martin himself; that the defendant Peter Schreck took the conveyance subject to incumbrances amounting to $4,300; that the net value of Martin's interest in the property was a little less than $10,000; and that $10,000 was paid to him therefor by Peter, in the form of a mortgage covering the entire property. This defense was sustained by the decree of the trial *Page 124
court. It will be noted, therefore, that the pivotal fact in the case is whether Martin was or was not the absolute and unqualified owner of the entire farm, or was the owner of only a half interest therein. The fighting points in the case are purely questions of fact. The record is voluminous, comprising nearly 500 printed pages. It will not be possible for us to discuss the details of the case within the proper limits of an opinion. The record includes a considerable discussion of the detailed facts in the case by the judge of the district court rendering the decree. Such discussion analyzes the evidence very fairly. We find ourselves in full accord with such discussion, and with the conclusion reached. The few salient reasons for such conclusion will be stated herein as briefly as practicable.
This is a family lawsuit; hence the voluminous record. Martin and Peter Schreck are brothers. Mary Benson is their sister. S.E. Benson, known in the record as "Sam," is the husband of Mary. He is a man of varied occupation, including that of real-estate agent. His character has been somewhat perforated in this record by stray bullets from various directions, which have served no other function in the case. He is charged by the plaintiff as being the chief manipulator of the conspiracy complained of.
The Schreck family came from Ohio to Iowa in 1878 or 1879, and located in Franklin County, near the county line between Franklin and Wright Counties. The family consisted of father and mother and six children. The children in order of ages were Fritz, Minnie, Kate, Charles, Martin, and Mary. Mary, the youngest, was then 9 or 10 years of age; Martin was 2 years older; and Charles, 2 years older than Martin. The father bought a half section of land, and the family moved upon it. Title was taken in the name of the oldest son, Fritz. Upon this farm, in 1880, Peter, defendant herein, was born. Shortly after the birth of Peter, the father died. The mother and her children continued the struggle for 4 or 5 years longer, but did not prosper. They lost the farm, and with it all else that they had. In the meantime, the two older daughters had sickened and died. At about this time, also, Fritz, Charles, and Mary married, and the dissolution of the family as a unit had become quite complete. Thereupon the mother, who, like Naomi of old, *Page 125
had found only sorrow and sepulcher in this land of Moab, turned back to the home of her girlhood in Ohio, taking with her her two younger sons, Martin and Peter. She found such employment as she could, and took in washing for a living. Martin, then a boy in his teens, engaged employment, and earned such wages as he could. After about one year or more of the sojourn in Ohio, they received a communication from Charles, to the effect that he had contracted to buy a quarter section of land in Wright County, in the near vicinity of the former home, at a price of $7.50 per acre. $50 of the purchase price was to be paid down, and the balance in annual payments of $100. Charles advised that the undertaking was larger than he was willing to carry alone, and he proposed to them that they return to Iowa, and that they take a half interest in such contract. In response to this proposal, they came back to Iowa, the mother and Peter coming first. Martin was attracted by promised employment in Wisconsin, which he took, to his later disappointment, and which delayed somewhat his return to Iowa. The result was that, with such assistance as Charles could give them, they built a very humble little house upon the north 80 of this quarter section, and thereafter occupied it as their home; the household consisting of the mother and Martin and Peter. The quarter section then contracted for by Charles, and by him shared with his mother and Martin, is the identical quarter section herein involved. They received no title papers at that time, so far as is disclosed by the record. Their equitable title consisted in their agreement with Charles, who held an executory contract of sale. This equitable title under which they took possession was their only title until September, 1897, at which time the vendor of Charles executed a deed to Martin. The mother and her two sons, both minors at the time, occupied and worked the land together, and devoted all their energies and their earnings from the farm to a common fund, if "fund" it could be called. No other source of revenue was available to any of them. They so occupied and worked this farm for several years as a family. The mother was the head of this family. She was legally entitled to the services and wages of her minor sons.
This was the origin of Martin's title to the quarter section now involved in this litigation. *Page 126
Sometime in the nineties, the mother was called back to Ohio to care for her parents, and was detained there for a period of two or three years. In the meantime the farm was rented, and Martin and Peter engaged employment. Martin looked after the farm and collected the rent, and paid whatever was paid upon the contract. When the mother returned from Ohio, about the year 1897, she brought with her about $1,000, which she had just received from the estate of her parents. It was about this time that the farm was finally paid for, and legal title thereof taken in the name of Martin.
In 1898 or 1899, the mother greatly desired to acquire a home in the near neighborhood of Charles, who had acquired a home 35 miles distant, near Iowa Falls. A 60-acre farm in his near vicinity was for sale at $35 per acre, and it was purchased and title taken in the name of Martin. This was improved, with the view of making a home upon it for the mother and her two unmarried sons. In 1900, Peter was married to the daughter of S.E. Benson by a former marriage. That is to say, Benson, his brother-in-law, became also his father-in-law. In 1901 or 1902, Benson and Martin and Peter went together to North Dakota, and filed homestead claims there, — an enterprise that resulted in no advantage to any of them. The mother went with them, and died there in August, 1902. In 1904, Charles conveyed the south 80 of the quarter section to Martin, in exchange for the 60-acre farm which had been acquired during the mother's life in his neighborhood. Each tract was figured at $150 an acre, and Martin executed mortgages on the quarter section, amounting to $3,000, to pay the difference in the exchange price. Neither Martin nor Peter resumed occupancy of the farm at this time. It was rented by Martin for several years, Peter in the meantime having entered upon an enterprise in Missouri. In 1909, Martin and Peter reoccupied the farm, Martin making his home with Peter and his wife thereon. Their contract was informal and verbal, and was, in substance, that they would work the farm together, and share equally in everything. The household expenses were paid out of the earnings of the farm, and Martin paid no board in any other sense. This arrangement continued up to the year 1917, when Peter claims *Page 127
to have purchased Martin's interest, for which he executed the $10,000 mortgage heretofore referred to.
Into the foregoing outline the defendants introduced many details of evidence tending to show a fairly distinct arrangement, well understood in the family, between the mother and Martin, that he owned a half interest in the land, and that Peter was to have the other half interest, and Martin was to protect him in it by proper conveyance. This is the crucial point in the case. A reading of the evidence convinces us that this contention is fairly sustained. The trial court so found. The circumstances surrounding the parties all point in the same direction. We are satisfied from the record that Martin always so understood it, and always intended in good faith to recognize his mother's equitable right and his own obligation to hold title in trust for Peter to a half interest in both farms. It appears that the deed under attack bears the date of April 2, 1915. It was actually executed at that time. If the defense rested upon that deed alone, it could not prevail. That deed was colorable only. It represented no actual transaction. Peter had nothing to do with it, and did not know of its existence. The sister, Mary, was largely responsible for the execution of that deed. She knew the understanding between the mother and Martin. She conceived the idea that her brother Charles was about to institute some proceeding to establish the mother's title and to partition the farm among the mother's heirs. She testified that Charles had proposed such a course to her. She communicated the fact to Martin. Mary and Martin, in their ignorance, and perhaps with the advice of Mary's husband, conceived the idea that Charles' plan could be foiled by a conveyance of the whole farm from Martin to Peter. Benson went with Martin to a notary public, who prepared the deed, and Martin signed and acknowledged the same. The deed was then put into the hands of the sister, Mary, who held the same unrecorded, and deemed herself to be thereby protecting both Martin and Peter. Martin received nothing for this deed at that time. Later, however, and in the year 1917, it was agreed between Martin and Peter that Peter would buy out Martin at a valuation of $150 an acre. The farm was incumbered by a mortgage for $2,200 and a drainage tax for approximately $2,100. After the deduction *Page 128
of these incumbrances, it left a net purchase price of one half of approximately $20,000 to be paid to Martin for his half interest. If that was a fair price to be paid at that time, then the contract between Martin and Peter is unimpeachable. At the time of this transaction, Mary produced the deed of 1915, and, in lieu of having Martin execute a new conveyance, this old deed was then and there delivered to Peter. Under the circumstances shown, it was a good and valid delivery of a good and valid instrument, though the instrument was voidable before. Martin took the full benefit of it, and continued to ratify the transaction for a period of two years before he brought this suit. From the time of this transaction, he ceased to make his home with Peter, and took up his home with Charles. If Martin needed an advisor, Charles assumed to advise him. Charles knew of the transaction for two years before the beginning of this suit.
We do not overlook that there was some controversy later over the possession of the $10,000 mortgage. Martin had left all his papers in the custody of Mary. Sometime later, when Martin wanted his mortgage to use in some proposed Missouri investment, Mary refused to let him have it, because she was afraid of Missouri investments and afraid that he would lose his money. Mary's attitude was unjustifiable; but she yielded, and gave Martin his mortgage. The record would not justify a finding that Peter had any responsibility for that controversy.
The foregoing is sufficient to give a general idea of the ground of decision. We hold, upon this record, as did the trial court, that, though Martin held the legal title to all this property, he never owned equitably more than a half interest therein; that it was in recognition of this fact by him that he accepted the $10,000 as the value of his half interest, subject to the incumbrances.
The question whether the verbal agreement and understanding 2. FRAUDS, between Martin and his mother was such as could STATUTE OF: have been proved against him, is not a material real consideration in this case. We are only property: concerned now with the question of the fairness executed and honesty of the transaction into which he oral voluntarily entered in 1917. If the transaction agreement to under attack is fairly explained convey: effect. *Page 129
by this preceding understanding and agreement, then the performance of such agreement by Martin and the acceptance of performance by Peter were in all respects fair and honorable, and furnished a complete answer to the charge of fraud. If Martin later repented his honor, he could not thereby change the character of the transaction already had, nor revive his right, if any, to rely upon the statute of frauds. The transaction itself became such evidence as satisfied that statute. Only theweight of such evidence may now be challenged.
II. There is a cross-appeal by Peter. It appeared on the trial, from the testimony of Peter, that, after the transaction in 1917, they had a public sale of the personal property. The proceeds of this sale would be owned equally by Martin and 3. APPEAL AND Peter. The $2,200 mortgage was about to fall ERROR: scope due, and Peter had no money with which to pay of review: the same, except the proceeds of sale of the inadvertent personal property. It was agreed between him and error caused Martin that he might pay this mortgage out of by the personal property, and that he should appellant. reimburse Martin therefor later. The proceeds of the personal property, all told, were $3,487.92. Martin was, therefore, entitled to receive $1,743.96. It appears further that Peter gave Martin a note for $610.96. These facts appeared quite casually from Peter's testimony on the trial. No claim was made in the petition for either of these items. In announcing his conclusion upon the main case, the trial judge called attention to this feature of the record, and suggested, in effect, that, if there was no objection, he would enter judgment for Martin against Peter for these amounts. This appears to have been taken for granted and assented to at the time, and judgment was entered accordingly.
The ground of reversal on the cross-appeal by Peter is that the inclusion of the item of $610.96 was an inadvertent duplication, and that such item was in fact included in the $1,743.96. This contention has support in the figures made by the clerk of the sale. He appears to have deducted $2,266, being the amount of the $2,200 mortgage, from the proceeds of the sale. This left a balance of $1,221.92, one half of which would be $610.96; and such is the amount for which Peter gave his note. Manifestly, Peter should have given his note for $1,743.96. The *Page 130
figures made by the clerk of the sale would indicate his understanding that the funds of both Martin and Peter were to be devoted to the payment of the $2,200 mortgage. It is quite possible that he did not know that, under the arrangement between Martin and Peter, the mortgage had become the debt of Peter. Peter owed Martin not only the $610.96, but also the $1,133 which had been taken from Martin's share of the proceeds and applied upon the payment of the mortgage. Peter, being permitted to retain all the proceeds of the sale, was indebted for one half thereof to Martin, $1,743.96. The amount of such indebtedness was not changed by the fact that a note was mistakenly given for part of it only.
While we have no doubt of the correctness of the figures herein indicated, and that the item of $610.96 covered by the note is a duplication of what was already included in the larger sum of $1,743.96, yet we are confronted with some difficulty to award the cross-appellant relief because thereof. The judgment entered by the court was in accord with the literal terms of Peter's own testimony. Ordinarily, such a situation would be deemed quite conclusive against him. It appears, however, that all the figures pertaining to this sale were proved by Exhibit 67. This was the report and computation made by the clerk of the sale. Peter produced this exhibit, and his oral testimony was merely incidental thereto and somewhat in the nature of an interpretation thereof. At that stage of the trial, this particular fact was not material to the issues made by the pleadings. For this evident reason, the figures did not, at the time, command the scrutiny of the attorneys on either side. Exhibit 67 makes it very clear that the total obligation of Peter to Martin, from the proceeds of the sale, was $1,743.96. Counsel for the appellant makes no contrary contention in argument. We are of the opinion that Peter's inadvertent error in the interpretation of the figures should not be deemed to conclude him against the correction here of a manifest error. We reach this conclusion the more readily because this particular indebtedness was not in issue in the pleadings, and had never been in dispute between the parties.
The judgment will, therefore, be modified in this respect. *Page 131
Interest will be computed from October 31, 1917, at 8 per cent on $610.96, and at 6 per cent on $1,133.
III. It further appears that the court entered judgment against Peter for all the costs. Such order could be predicated only upon the ground that a judgment for some amount had been entered against him. This fact might have furnished a 4. COSTS: reason for an apportionment of the costs. But it taxation: appears affirmatively that no costs of the trial improper were incurred in the proving of this item. It taxation. was proved solely by the concessions of Peter as a witness. No claim had been made for it in the petition. No demand had been made for it otherwise. There was never any dispute or controversy between the parties over it. Upon such a state of facts, we think that it was error to tax any part of the costs to Peter.
The judgment below will, therefore, be modified in that regard also.
On appeal of the plaintiff, the decree below is — Affirmed.
On the cross-appeal of the defendant Peter Schreck, it is —Modified and affirmed.
ARTHUR, VERMILION, and ALBERT, JJ., concur.
FAVILLE, C.J., having been of counsel in the court below, takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435673/ | On the 21st day of September, 1926, one Minnie B. Cormany, a widow (since deceased), sold and conveyed by warranty deed a certain Woodbury County, Iowa, tract of land, comprising 386.74 acres, to Irene Pope. The said deed contained the following covenants:
"And I covenant with said Irene Pope that I hold said premises by good and perfect title, that I have good right and lawful authority to sell and convey the same; that they are free and clear of all liens and incumbrances whatsoever, except the $18,000.00 mortgage of record in Book 295 on page 453 of the mortgage records of said county, less whatever amount has been paid on said mortgage indebtedness, and all ditch taxes of record that are not due at this time; and also the general taxes of 1926 against said premises which general taxes of 1926 the grantee herein hereby agrees to pay when due. Said grantee hereby agrees to pay the interest upon said mortgage from this date as same becomes due, and I covenant to warrant and defend the title to the said premises against the lawful claims of all persons whomsoever, except as above stated. It is expressly agreed and understood between the parties hereto that the said Minnie B. Cormany hereby reserves possession of all that part of said premises now in corn and the right to harvest and remove said corn from said premises as her own individual property; and the said grantee is hereby given possession and the right of possession of all of said premises not in corn at this time. Said grantee is to have possession of all of said premises March 1, 1927."
Upon the death of the grantor, Minnie B. Cormany, on May 13, 1927, the appellee, George W. Coe, was appointed administrator *Page 761
of her estate. On the 4th day of June, 1927, the appellant, Irene Pope, filed her verified claim in said estate, in which she alleged that she was entitled to damages in certain amounts, based on allegations to the effect that she "had been withheld from the possession of any of said land for the crop year of 1927 until it was too late for grantee to farm said lands or make arrangements for lease of same." In plaintiff's petition in the instant case, the plaintiff, Irene Pope, alleged that the administrator (defendant-appellee) failed and neglected to allow this claim as a proper charge against the estate of Minnie B. Cormany, and asked for a hearing on said claim, and to establish the said claim as a proper charge against the estate in question. The defendant administrator answered by general denial, and in addition thereto alleged that, if any person or persons were in possession of said premises, or any part thereof, after plaintiff became such owner, such persons were not in possession and did not claim to be in possession of said premises by virtue of any right acquired from Minnie B. Cormany, the grantor in said deed; that, if the said plaintiff may have been prevented from taking possession of said premises according to the terms of the said deed relied upon by her, Irene Pope, on account of any act, conduct, or omission on the part of said grantor, such facts were known to said Irene Pope at the time she became such owner; that, had she attempted to obtain possession, which was reasonably possible for her to do, she would have greatly reduced and minimized her damages; but that she made no effort to eject the person or persons in possession of said premises, or to have the said Minnie B. Cormany eject said person or persons. Upon the conclusion of the evidence, the defendant administrator moved the court to direct the jury to return a verdict in favor of the defendant, for the following reasons: (1) That the evidence of plaintiff is wholly insufficient to establish her alleged claim; (2) that the plaintiff bases her claim for damages on the alleged breach of covenant of a certain warranty deed (heretofore mentioned), especially the warranty to defend the title to the real estate against the lawful claims of all persons whomsoever; and that there is no evidence offered by plaintiff that the plaintiff was prevented from taking possession of said land because any person or persons made a lawful claim to the said premises under Minnie B. Cormany; (3) that there is no evidence that the said Minnie B. Cormany, by any *Page 762
act or omission on her part, prevented the plaintiff from having possession of the said real estate, in strict accordance with the terms and provisions of the said warranty deed; (4) that there is no evidence that any person occupied the said real estate under and by virtue of any right or claim derived or claimed to have been derived under said Minnie B. Cormany; (5) that the evidence shows that the plaintiff never at any time requested of the said grantor the possession of or the right of possession of said premises; (6) that there is absolutely no evidence that the plaintiff was prevented from taking possession of the real estate in accordance with the terms of said warranty deed; (7) that the evidence affirmatively shows that Minnie B. Cormany relinquished any and all claim to the possession of said real estate, or right of possession of said real estate, at the time of the signing and delivery of the said deed, and there is no evidence that at any time thereafter she ever claimed or asserted any right, title, or interest in and to said real estate, nor did anyone under her assert any right of ownership to the land.
The court sustained the motion to direct generally. If any ground of the motion for a directed verdict is good, the ruling sustaining the motion must be affirmed. The application of this rule is determinative of this case, for the reason that it may be said that certain grounds of the motion are sustainable. This case presents primarily a question of fact. Did the plaintiff establish a prima-facie case when she rested? There can be no quarrel concerning applicable legal principles herein. It may be conceded that a covenant against incumbrances is broad enough to warrant that there is no mortgage or other lien of any kind upon the property, and that the property is not subject to a valid existing lease. Scienter on the part of the covenantee is not material. Harrison v. Des Moines Ft. D.R. Co., 91 Iowa 114. In an action of covenant, the deed governs, and in such an action by the grantee against the grantor, the latter cannot, in order to defeat the operation of the covenant, establish by parol the grantee's knowledge of an incumbrance or defect in the title, or by parol engraft upon the deed exceptions and reservations not therein mentioned. Van Wagner v. Van Nostrand, 19 Iowa 422. See 3 L.R.A. 789, l.c. 792, note.
In the instant case, we are not dealing with a dispute between a landlord and tenant, but between grantor and grantee. *Page 763
There is a recognized line of demarcation between these two relationships, and a different rule obtains as between these relationships. See Clark v. Strohbeen, 190 Iowa 989. The alleged tenant is not a party defendant in the case at bar; and although the covenant entitled the plaintiff to possession and the right of possession, he did not take possession, and permitted a third person, alleged to be the tenant of the grantor, to remove and sell the wheat which was planted at the time of the delivery of the deed by grantor to the grantee. Plaintiff was in position to protect his rights and to prevent the alleged tenant from harvesting the wheat, selling it, and appropriating it to his own use and benefit. The law afforded plaintiff ample remedy as against the acts of the alleged tenant. Sufficient to state that what the alleged tenant did, under the record facts, did not constitute a breach of covenant, under the recitals of the deed in question.
The facts disclose that one Henry Boyd, brother of the grantor, Minnie B. Cormany, planted wheat on 100 acres of the farm, subject to the deed in question, and that the planting was prior to the delivery of the deed in question. No one can successfully contend that whatever was on the land or in the land, belonging to the grantor, would not pass to the grantee, under the deed. A reservation by the grantor was necessary to be expressed in the deed, to preserve to the grantor any rights or property in the land conveyed.
The trouble is that there is no evidence in the record to establish the nature of Boyd's possession, or by what right he claimed or had possession. In order to constitute a breach of warranty, the title or right to which the covenantee yields must be paramount to his own. The mere existence of an outstanding claim or title, even though it may be paramount, will not entitle the covenantee to a recovery in an action for breach of covenant, in the absence of evidence of some hostile assertion of the adverse title. 15 Corpus Juris 1288, Section 157; Wilson v.Irish, 62 Iowa 260; Eversole v. Early, 80 Iowa 601. There is no competent evidence that plaintiff-grantee ever attempted to take possession of the land, or was prevented from taking possession of the land through hostile assertions of title by anyone. It is well settled that the title or right to which a covenantee yields must be lawful, and paramount to his own, and that there must be some hostile assertion of the adverse title. The testimony of *Page 764
plaintiff is silent on this proposition. This court will not enter the door of assumption and presumption. The covenant relied upon by plaintiff is against the "lawful claims" only of other persons.
The allegations of plaintiff's claim and petition were met by a general denial. Other pleaded matters by way of defense have now become immaterial. The plaintiff had the burden of proving, in the first instance, the essential allegations of her cause of action. This she failed to do, and the trial court properly sustained defendant's motion for a directed verdict. Wherefore, the judgment entered is — Affirmed.
ALBERT, C.J., and STEVENS, FAVILLE, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435675/ | This is a second claim, arising out of the same facts, filed by the present claimant. On her first claim, claimant was given the status of a general creditor. Leach v. Burton Co. State Bank ofKellogg, 206 Iowa 675. As will be seen from that case, a depositor in the insolvent bank, Mendenhall, gave claimant a check on the (now) insolvent bank for $2,000, which claimant deposited in a Davenport bank. The Davenport bank mailed the check to the drawee bank, with instructions to collect and remit. The drawee bank, on receiving the check, charged it against the depositor's account, and issued to the Davenport bank a draft on its Des Moines correspondent. This draft was presented, but payment was refused because of the suspension of the drawer of the draft (drawee of the check). In her former claim, claimant alleged that the draft was then held by her, asked to have a trust established in her favor, and also alleged "that, in addition to being a beneficiary of said trust, this claimant is entitled to the rights of said Mendenhall as a depositor in said bank." Hence she presented to the court her claim to, and was denied, the same relief that she asks here. For she now asks to be "subrogated" to the right of the depositor and drawer *Page 1349
of the check which she received from Mendenhall, asks for establishment of her claim as a depositor, and asks that the receiver be directed to pay to her dividends accordingly. Claimant, on the dishonor of the draft, if her present contention is sound, was entitled to renounce her rights under the draft and to have the apparent payment of the depositor's account to the amount of the check, $2,000, set aside, to have the depositor's account established as unpaid, and to have herself substituted to the right of the depositor accordingly; or she had the right to stand on the draft, and take the rights against the insolvent bank which she had as holder of the draft. In taking her stand as a holder of a draft issued by the bank, and entitled to enforce the obligations of the bank resulting therefrom, she necessarily affirmed the validity of the check for which the draft was given, and affirmed the payment of the check and the charge of the check against the depositor's account. She could not claim that the draft issued in payment of the check was a subsisting obligation of the bank, and that she was entitled to recover upon it as such, and at the same time claim that the deposit in payment of which the draft was given was not thereby paid. The contention which she now makes she made alternatively then. She prosecuted her action to final judgment. By the judgment her status was established as the holder of the draft and as a general creditor. That judgment is still in full force. Her present contention was, in effect, denied. She cannot now, in contradiction of the judgment, and in defiance of her status as a general creditor established by it, have the same claim established as a depositor's claim, having priority over general claims. It is resadjudicata that the claimant has not the status of a depositor, but has that of a general creditor. — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, WAGNER, and GRIMM, JJ., concur. *Page 1350 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247179/ | SUSIE MORGAN, UNITED STATES DISTRICT JUDGE
*793Before the Court is Defendants Louisiana Department of Health and Hospitals ("DHH"), Darlene Warren Smith, and Devin George's (collectively "Defendants") Motion to Dismiss Plaintiff Deneen Montgomery-Smith's Second Supplemental and Amending Complaint.1 The motion is opposed.2 For the reasons that follow, the Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART .
BACKGROUND3
Plaintiff Deneen Montgomery-Smith is an African-American female who is more than 40 years old.4 Plaintiff became a permanent employee for the State of Louisiana on December 4, 1989,5 working at the Department of Health and Hospitals, Office of the Bureau of Protective Services.6 She alleges that on July 29, 2007, she was "transferred without her agreement" to the office of Vital Records after she brought an employment discrimination suit against DHH on April 13, 2007 in the Civil District Court for the Parish of Orleans ("Montgomery-Smith I ").7 Plaintiff's first suit was based on EEOC charge No. 461-2006-01386 ("Charge 1").8 Complaining of further discrimination and retaliation, Plaintiff filed a second employment discrimination suit against DHH on October 24, 2008 pursuant to EEOC Charge No. 846-2008-25755 ("Charge 2") alleging racial discrimination, retaliation, and hostile work environment ("Montgomery-Smith II ").9
According to Plaintiff, "[f]or over four years after filing the lawsuits..., [she] remained enthralled in active litigation against [DHH]."10 During this time, Plaintiff alleges Hugh Eley, who was promoted to Deputy Secretary of DHH in 2015; Darlene Smith, State Registrar; and Devin George, a supervisor, met "to discuss the first two pending lawsuits,"11 and to "obtain[ ] negative information about [Plaintiff] as an employee."12 Plaintiff also alleges Darlene Smith told Devin George that Plaintiff was transferred to vital records as punishment for having filed her employment discrimination suits,13 and that Hugh Eley told Plaintiff "she would never be promoted as a DHH employee."14
*794In 2014, Plaintiff "began applying for competitive positions posted by DHH that were consistent with her training, education, and experience, and that would have provided her increases in salary between 7% and 14%."15 Plaintiff alleges she was passed over for several positions, which were either filled by less-qualified employees or the position was cancelled after Plaintiff applied.16 On March 26, 2015, Plaintiff filed a third employment discrimination charge with the EEOC,17 No. 461-2015-00606 ("Charge 3"), for which she received her right-to-sue letter on August 31, 2015.18 "Out of an abundance of caution, on November 5, 2015, [Plaintiff] filed another charge of discrimination and retaliation for continuing discrimination between July 1, 2015 and October 7, 2015,"19 No. 461-2016-00165 ("Charge 4").20
Plaintiff brought suit against DHH based on Charge 3 and Charge 4 on November 30, 3015 ("Montgomery-Smith III ").21 Although Plaintiff had filed Charge 4, she had not yet received her right-to-sue letter based on this charge by the time she filed suit in Montgomery-Smith III . On February 21, 2017, the Court dismissed Plaintiff's claims based on Charge 4 for failure to exhaust administrative remedies.22 Following a trial on Plaintiff's remaining claims, on July 28, 2017 a jury found in favor of Defendants as to all claims.23
Plaintiff alleges she received her right-to-sue letter for Charge 4 for the first time on March 7, 2017, despite the letter being dated December 1, 2015.24 On February 9, 2017, Plaintiff filed her fifth charge of discrimination, No. 461-2017-00431 ("Charge 5"), with the EEOC and received her right-to-sue letter for that charge on September 28, 2017.25 Plaintiff filed the instant suit ("Montgomery-Smith IV ") on June 5, 2017, based on both Charge 4 and Charge 5.26
In Charge 4, Plaintiff complained of conduct that took place between July 1, 2015 and October 7, 2015.27 Under the type of discrimination, she checked the "retaliation" and "age" boxes.28 In the Particulars *795section she claimed to have "been subjected to unfair treatment due to [her] age and retaliated against for filing prior claims with the EEOC, and with the Agency (sic) Lawsuits and Grievances."29 She also complained that she had "been denied promotional and progressive advancement opportunities,"30 and stated that she believed she had "been discriminated against because of [her] age, 51 years, and retaliated against in violation of The Age Discrimination in Employment Act of 1967, as amended."31
In Charge 5, the alleged violations took place between September 7, 2016 and December 5, 2016.32 Under the type of discrimination, Plaintiff checked the "race," "retaliation," and "age" boxes.33 In the particulars section, Plaintiff reported that since she filed Charge 3 and Charge 4, she was not selected for two promotions for which she applied, complaining that the two individuals selected "were younger, less qualified than [her] and one of them was white."34 She concluded the particulars section stating that she believes she "was discriminated against due to [her] race, and age (52) in that [she] was not selected for a promotion...in retaliation for filing EEOC charges of Discrimination [sic], filing a lawsuit in court, and filing internal grievances due to unfair treatment all in violation of Title VII of the Civil Rights Act of 1964, as amended and the Age Discrimination in Employment Act of 1967."35
In her complaint, Plaintiff alleges she has been denied promotions and advancement opportunities and subjected to a hostile work environment through purposeful discrimination, harassment, intimidation, isolation, denial of promotion, denial of advancement opportunities, retaliatory conduct, refusal to have discussions with Plaintiff about grievances, and refusal to hold hearings for grievances filed by Plaintiff.36 According to Plaintiff, "[t]he denial of promotions and details in this case are between effective dates of August 3, 2015 and December 5, 2016."37 During this time frame, Plaintiff alleges she applied for, but was not hired to the following positions:
a. Program Manager 2 application by Deneen Montgomery Smith on or about June 27, 2015 to which Robin Lewis (BF) was promoted effective August 3, 2015;
b. Program Manager 1-B-DHH application by Deneen Montgomery-Smith on or about June 27, 2015 to which Jemimah Mickel (BF) was promoted effective August 3, 2015;
c. Program Manager 1-B-DHH application by Deneen Montgomery-Smith on or about August 29, 2015, and the position was cancelled after Deneen Smith applied;
d. Reposted Program Manager 1-B-DHH application by Deneen Montgomery-Smith on or about September 15, 2015 to which Omar Khalid (Islamic Male) was promoted effective October 12, 2015;
e. Program Monitor Supervisor application by Deneen Montgomery-Smith to which Jira Shea Davis (BF) was promoted effective September 28, 2015;
*796f. Program Monitor Supervisor application by Deneen Montgomery-Smith on or about May 22, 2016, and the position was cancelled after Deneen Smith applied;
g. Program Monitor Supervisor application by Deneen Montgomery-Smith on or about September 7, 2016 to which Lauren Tran (WF) was promoted effective December 5, 2016;
h. Program Manager II application by Deneen Montgomery-Smith on or about September 20, 2016 to which Jemimah Mickel (BF) was promoted effective December 5, 2016.38
Plaintiff alleges that after she applied to these positions, the position was either canceled because she had applied, or the position was filled by an employee who is less qualified for it than Plaintiff.39 According to Plaintiff, Devin George and Darlene Smith harassed her, interfered with the terms and conditions of her employment, and prevented her promotional opportunities under the Louisiana State Merit System by detailing and promoting candidates who are less qualified than her in retaliation for having filed previous EEOC charges.40
Plaintiff additionally alleges she "requested Devin George offer her opportunities to be detailed into available positions to gain more experience that would have also provided her increases in salary between 7% and 14%," but never received the opportunity.41
According to Plaintiff, she "is still employed at DHH Office of Public Health, Louisiana Center for Records and Statistics and is still being subjected to discrimination, retaliation, denial of promotion, advancement opportunities, intimidation, isolation, harassment[,] and a hostile work environment."42
On August 11, 2017, Defendants filed their first motion to dismiss.43 On September 21, 2017, the Court issued an Order dismissing Defendants' motion without prejudice, granting Plaintiff leave to amend her complaint, and allowing Defendants the opportunity to re-urge the motion upon the filing of Plaintiff's amended complaint.44 On October 2, 2017, Plaintiff filed a First Supplemental and Amended Restated Complaint.45 On October 25, 2017, Defendants filed their second motion to dismiss for failure to state a claim.46 Having received the right-to-sue letter for Charge 5 on October 14, 2017,47 Plaintiff sought leave to file a Second Amended and Restated Complaint on October 30, 2017.48 The motion was referred to the magistrate.49 On November 16, 2017, the magistrate granted Plaintiff's motion for leave to file an amended complaint,50 which is the subject of Defendant's instant Motion to *797Dismiss.51 The Court, having granted Plaintiff leave to amend her complaint, denied Defendants' second motion to dismiss without prejudice as moot.52 On December 18, 2017, Defendants filed their third motion to dismiss, which is now before the Court.53
In her second amended complaint, Plaintiff alleges five causes of action against DHH and against Smith and George in their official and individual capacities arising under:
(1) 42 U.S.C. § 2000e, based on retaliation, race discrimination, and a hostile work environment;54
(2) 42 U.S.C. § 1981, based on retaliation, race discrimination, and a hostile work environment;55
(3) 42 U.S.C. § 1983, for violations of Title VII and Louisiana Revised Statutes 9:2798.1 ;56
(4) Louisiana Revised Statutes 23:301 -312;57 and
(5) Louisiana Revised Statutes 51:2256, based on retaliation for having filed her previous suits against Defendants.58
In their motion to dismiss, Defendants argue Plaintiff's claims based on Charge 4 should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and that her remaining claims based on Charge 5 should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.59
I. LEGAL STANDARD
A. Dismissal under Rule 12(b)(1)
"Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims."60 A motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) challenges a federal court's subject-matter jurisdiction.61 Under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case."62 "Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts."63 Thus, in examining a Rule 12(b)(1) motion, the district court is empowered to consider factual matters that may be in dispute.64 "When, as here, *798grounds for dismissal may exist under both Rule 12(b)(1) and Rule 12(b)(6), the Court should, if necessary, dismiss only under the former without reaching the question of failure to state a claim."65
B. Dismissal under Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief.66 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "67 "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."68 However, the court does not accept as true legal conclusions or mere conclusory statements,69 and "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."70 "[T]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements" or "naked assertion[s] devoid of further factual enhancement" are not sufficient.71
"Factual allegations must be enough to raise a right to relief above the speculative level."72 "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-that the pleader is entitled to relief."73
II. ANALYSIS
A. Timeliness of Defendants' Motion to Dismiss
As an initial matter, Plaintiff contends Defendants' motion to dismiss should be denied as untimely.74 She argues the time limitations set forth in Federal Rule of Civil Procedure 15(a)(3) apply to Defendants' motion. Rule 15(a)(3) states: "Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later."75 Defendants respond, pointing out that Rule 15's time constraints do not apply to their motion, as it is not a "required response" within the meaning of the Rule.
In Hoffman v. Jindal , the U.S. District Court for the Middle District of Louisiana held that Rule 15(a)(3)'s time limitations do not apply to motions filed pursuant to Rule 12.76 As the court in *799Hoffman explained, "[S]ince a 12(b)(6) motion is not a responsive pleading it [does] not need to be filed within the time constraints imposed by Rule 15(a)(3). Instead, the motion to dismiss should be governed by the time constraints imposed by Rule 12(b)(6)."77 Rule 12 simply requires a motion filed pursuant to the rule be filed before pleading.78 As a result, because the time limitations detailed in Rule 12 apply to Defendants' motion, not Rule 15 as Plaintiff contends, the Court finds Defendants' motion is timely.
B. Defendants' 12(b)(1) Motion
Defendants argue Plaintiff's claims related to Charge 4 must be dismissed as untimely, arguing Plaintiff failed to file suit based on that charge within 90 days of receiving her right-to-sue letter.79 Plaintiff counters claiming that, although the issue date noted on the right-to-sue letter is December 1, 2015, she did not actually receive the letter until March 7, 2017. Thus, having filed this suit on June 5, 2017, Plaintiff submits the suit is timely.
Before filing a claim in federal district court, a plaintiff alleging employment discrimination must exhaust the administrative remedies available to her.80 Administrative remedies include timely filing a charge of discrimination with the EEOC, and if the EEOC dismisses this charge, it must "notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge."81 Plaintiffs have ninety days from the date they receive their right-to-sue letter to file a lawsuit.82 The requirement that a plaintiff file a lawsuit within this ninety-day period is "strictly construed."83 "Although [the] filing of an EEOC charge is not a jurisdictional prerequisite, it 'is a precondition to filing suit in district court.' "84 Plaintiff filed this suit on June 5, 2017.85 Thus, whether Plaintiff's complaint based on Charge 4 should be dismissed as untimely depends on whether Plaintiff received the notice of her right to sue before March 7, 2017.
"When doubt exists as to whether [and when] an addressee received a letter,"86 the court must apply the mailbox rule, which provides that "[p]roof that a letter properly directed was placed in a *800U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed."87 In this Circuit, once a party establishes this presumption, courts assume a properly mailed letter would be received within three days.88 "A threshold question for the application of the mailbox rule is whether there is sufficient evidence that the letter was actually mailed."89 "Placing a letter in the mail may be proved by circumstantial evidence," such as "evidence of the sender's standard mailing practices,"90 or a sworn statement that the letter was sent.91 Once the presumption is created, "[t]he addressee's 'bare assertion of non-receipt' is insufficient to rebut the assumption."92
In Duron v. Albertson's LLC , the Fifth Circuit reversed the district court's grant of summary judgment based on the mailbox rule.93 The Fifth Circuit found the court below improperly applied the rule and that, as a result, a genuine issue of material fact remained as to whether and when the plaintiff received notice of her right to sue.94 The plaintiff alleged she did not receive her right-to-sue letter, which was dated October 4, 2004, until August 24, 2006.95 She presented evidence that, prior to receiving the letter, she and her attorney made several calls to the EEOC inquiring as to the status of her case that went without response.96 The employer moved for dismissal or, alternatively, summary judgment, based on the plaintiff's failure to timely bring suit. The district court granted the employer's motion for summary judgment, holding that the plaintiff's evidence of non-receipt was insufficient to rebut the mailbox-rule's presumption, thus rendering her lawsuit untimely.97
On appeal, the Fifth Circuit noted that the employer "ha[d] not produced any business records or other physical evidence that the EEOC sent the notice of the right to sue."98 "Instead, the only evidence of mailing that [the employer] provided was a copy of the EEOC notice of right to sue with '10/4/04' written in the 'Date Mailed' field."99 Because the employer failed to provide any "proof that a letter properly directed was placed in a post office," and the plaintiff provided some, albeit weak, evidence of non-receipt, the employer failed to create a presumption of receipt and the mailbox rule did not apply.100
Similarly, in Zamora v. GC Services, LP , the Fifth Circuit reversed the district court's grant of summary judgment, finding *801the employer had failed to provide sufficient evidence to create the presumption that the plaintiff's right-to-sue letter was sent on a particular date. The Court stated:
[T]he evidence shows that the notice in this case contains a "Date Mailed" field, stamped August 19, 2014. An internal EEOC log notes the notice was "issued" on August 18, and that the file was returned to a different EEOC division on August 22, 2014, effectively closing the case. A declaration from an EEOC official in the relevant office notes the EEOC's "usual and regular procedure" is "to mail the [right to sue notice] on the same day, or in some instances on the following day" as the date reflected on the notice. This furnishes some circumstantial evidence of normal business practices, but does not definitively show the notice was mailed on August 19. Indeed, it is some evidence that it might have been mailed on August 20. That one day difference is enough to impact this case.101
The Fifth Circuit concluded that based on this evidence, the district court incorrectly applied the mailbox rule in treating August 19 as the undisputed date the letter was sent, as the Defendants had failed to bear their initial burden of proof.102
In their motion to dismiss, Defendants point to: (1) two emails an EEOC enforcement officer sent to Plaintiff, both of which are referenced in and attached to Plaintiff's complaint;103 (2) the notice of charge of discrimination Devin George allegedly received on December 9, 2015;104 and (3) the notice of charge of discrimination DHH allegedly received on December 9, 2015.105
The first email sent to Plaintiff from the EEOC enforcement officer, dated March 2, 2017, states "The Notice of Right to Sue was issued by the EEOC (not DOJ)...to you on December 1, 2015 as requested by you. It was mailed to your address on record."106 The second email dated March 7, 2017, to which Plaintiff's right-to-sue letter was attached electronically, states "Attached is a copy of the Notice of Right to Sue that was issued to you on December 1, 2015."107 Defendants otherwise offer no evidence to establish the letter addressed to Plaintiff was actually placed in the mail, thereby establishing the applicability of the mailbox rule.108 There is no direct testimony or business records evidence from either party of whether the right-to-sue letter was ever mailed.109
Based on the evidence presently before the Court, the Court finds Defendants *802have failed to demonstrate that Plaintiff's right-to-sue letter based on Charge 4 was actually "properly directed [and] placed in a U.S. post office mail receptacle," and therefore, Defendants have failed to establish that the mailbox rule applies. "[W]hile proof of receipt is unnecessary, we cannot forget that proof of mailing is still required."110 Defendants' motion to dismiss for lack of jurisdiction is denied.
C. Defendants' 12(b)(6) Motion
a. Res Judicata
Defendants argue Plaintiff's claims based on Charge 4 are precluded by Montgomery-Smith III .111 Plaintiff responds that she "does not seek to make any claims prior to March 26, 2015."112 Rather, "[t]he denial of promotions and details in this case are between effective dates of August 3, 2015 and December 5, 2016."113 She argues that, because she has not been promoted in ten years, and "alleges in this case that the hostile work environment continues and the same behavior that existed before March 25, 2015 continues today," Montgomery-Smith III , does not preclude her from bringing the instant claims.114
The doctrine of res judicata, or claim preclusion, prevents the relitigation of claims that were or could have been raised in a prior action.115 Res judicata has four elements:
(1) the parties in both the prior suit and current suit must be identical;
(2) a court of competent jurisdiction must have rendered the prior judgment;
(3) the prior judgment must have been final and on the merits; and
(4) the plaintiff must raise the same cause of action in both suits.116
The first three elements of res judicata are clearly met in this case. Only the fourth factor-whether the causes of action were the same in both suits-is at issue.
In support of their argument that Plaintiff's claims based on Charge 4 are precluded by Montgomery-Smith III , Defendants point to Davis v. Dallas Rapid Area Transit .117 In Davis , the Fifth Circuit considered whether the doctrine of res judicata applied in the employment discrimination context. In that case, the plaintiffs had previously brought suit based on a prior-issued right-to-sue letter, but brought a second suit after having received a second right-to-sue letter. Notably, the plaintiffs in Davis did not receive their second right-to-sue letter until over a month after final judgment in the first suit was entered. The employer moved to dismiss the second suit as res judicata. The plaintiffs asserted that the claims in their second suit could not be considered part of the same series of transactions as those in in their first suit, because the conduct alleged in the second suit, which spanned March 2001 to April 2002, was different from that alleged in their first suit, which spanned November 1998 to February 2001.118
The Fifth Circuit first analyzed whether the first and second cases were both based on the same series of transactions. The court concluded that, although the "factual *803allegations articulated in the two complaints differ, all of the claims in question originate from the same continuing course of allegedly discriminatory conduct by DART and Chief Rodriguez. Additionally, both lawsuits cite the same motivation for the alleged discrimination-that Appellants 'continue to publicly speak out against race discrimination [at DART].' "119
The Fifth Circuit then considered whether a Title VII claim may be barred by res judicata if, at the time of the earlier suit, the plaintiffs have not yet received a right-to-sue letter. In holding that the plaintiffs' first suit precluded the second suit, the Fifth Circuit noted that "[t]o prevent their claims from being precluded, Appellants could have requested a stay in Davis I until they received their letters."120 In so holding, the Fifth Circuit cited several of our sister circuits, all of which have similarly held that Title VII claims are barred "where the plaintiff failed to take measures to avoid preclusion under res judicata while they pursued the requisite Title VII remedies."121
The case presently before the Court is distinguishable from Davis and its progeny. Plaintiff initially brought Charge 4 as a part of her case in Montgomery-Smith III , but the Court dismissed the allegations based on that charge for failure to exhaust.122 Because Charge 4 was dismissed without prejudice in Montgomery-Smith III , Plaintiff brought the present suit based on Charge 4 and Charge 5 on June 5, 2017.123 On June 8, 2017, the Court issued a rule to show cause why Montgomery-Smith III and Montgomery-Smith IV were not related,124 and on June 16, 2017, Plaintiff moved to have the cases consolidated.125 In her motion to consolidate, Plaintiff explained that she sought to consolidate the two cases "to avoid any issues of collateral estoppel if the related cases are not tried together before the same jury, and to avoid inconsistent results from two juries involving essentially the same material causes of action."126 On June 19, 2017, the Court denied Plaintiff's motion to consolidate the cases, explaining that "[b]ecause trial is set to begin in approximately *804one month, [and] the parties have already filed their proposed jury instructions, jury verdict form, and voir dire questions," the "Court [would] not delay the trial of [Montgomery-Smith III ] at [that] late date."127
The causes of action in this case unquestionably overlap with the underlying allegations in Montgomery-Smith III . However, because in this case Plaintiff states she does not "make any claims prior to March 26, 2015,"128 the date the Court in Montgomery-Smith III found was the last date upon which Plaintiff could rest her claims,129 and took "measures to avoid preclusion under res judicata while [she] pursued the requisite Title VII remedies,"130 the Court finds Plaintiff's Title VII claims based on Charge 4 and Charge 5 are not barred by collateral estoppel. Defendants' motion to dismiss based on res judicata is denied.
b. Plaintiff's § 1981 claims
Defendants next contend Plaintiff's claims based on § 1981 must be dismissed as improperly pleaded.131 They contend § 1981 is not a viable claim against state actors standing alone, and must instead be pleaded through § 1983.132
Section 1981 prohibits intentional discrimination based on race in contracting and certain other activities133 and is frequently used to assert employment discrimination claims against private actors.134 The statute provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.135
"Although § 1981 does not itself use the word 'race,' the [U.S. Supreme] Court has construed the section to forbid all 'racial'
*805discrimination in the making of private as well as public contracts."136
In Jett v. Dallas Independent School District ,137 the U.S. Supreme Court explicitly held that "the express 'action at law' provided by § 1983 for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor."138 Following the U.S. Supreme Court's holding in Jett , there was uncertainty as to whether Jett's holding extended to both official capacity and individual capacity claims alike.139
The Fifth Circuit interpreted Jett's scope in Felton v. Polles .140 In Felton , the Fifth Circuit held that the rule articulated in Jett applied to both individual and official capacity claims against state actors,141 explaining that "[t]he Supreme Court did not make a distinction between state entities and individuals acting pursuant to color of state law."142 Thus, "when a state employee seeks to hold an individual fellow state employee liable in damages for violation of § 1981 rights, such claim must also be pursued under the remedial provisions of § 1983."143
In this case, it is clear Plaintiff pleaded § 1981 and § 1893 as independent causes of action.144 For example, she lists 42 U.S.C. § 1981 as her "SECOND CAUSE OF ACTION,"145 followed by her "THIRD CAUSE OF ACTION"146 for claims arising under § 1983. Nowhere in the allegations under her second cause of action based on § 1981 does she reference § 1983 ; similarly, Plaintiff does not reference § 1981 in her third cause of action pursuant to § 1983. "[R]equiring § 1981 claims against state actors to be pursued through § 1983 is not a mere pleading formality."147 Accordingly, because Plaintiff pleaded § 1981 as an independent cause of action against Defendants, and not under the remedial provisions of § 1983, Plaintiff's claims based on § 1981 must be dismissed.
c. Plaintiff's § 1983 claims
Plaintiff brings *806§ 1983 claims against Defendants alleging they conspired "to retaliate, discriminate, intimidate, isolate, deny promotions, and create a hostile work environment against [Plaintiff],"148 and that "Devin George (WM) and Darlene Smith harassed [Plaintiff], retaliated against [her] and interfered with the terms and conditions of employment, [and] prevented [Plaintiff from obtaining] promotional opportunities under the Louisiana State Merit System" by hiring, detailing, and promoting employees who were less qualified than Plaintiff.149 Plaintiff alleges "[t]he pattern and practice of discrimination, harassment, and retaliation against Plaintiff, Deneen Smith(BF), violated Title VII of the Civil Rights Act of 1964 and 1991 as amended."150 Plaintiff further alleges Defendants' conduct also violates Louisiana Revised Statutes 9:2798.1, because "[t]he acts of Devin George and Darlene Smith as alleged herein are malicious, intentional, willful, outrageous, reckless, flagrant misconduct with evil motive and inter [sic] for which they can be held liable."151
Defendants assert Plaintiff may not plead Title VII as her underlying § 1983 violation. Further, Defendants contend Plaintiff may not allege an underlying violation of Louisiana Revised Statutes 9:2798.1, as it is a "discretionary immunity statute."152 Plaintiff counters, citing Gallentine v. Housing Authority of City of Port Arthur ,153 apparently arguing that the conduct alleged in her compliant violates both Title VII and a separate constitutional or statutory right.154
An underlying constitutional or statutory violation is a predicate to liability under § 1983.155 However, § 1983"is not an available remedy for deprivation of a statutory right when the right itself"-in this case, the right to be free from discrimination in the workplace under Title VII-"provides an exclusive remedy for violations of its own terms."156 Thus, although allowing a plaintiff to pursue a separate claim for a violation of a constitutional or statutory right under Title VII is proper, "[a]llowing a plaintiff to state a discrimination claim under § 1983 as well would enable him to sidestep the detailed and specific provisions of Title VII."157
In Gallentine , the court explained that "even if a plaintiff alleges the same conduct for both Title VII and § 1981 claims, he or she may seek redress under both statutes, as long as the conduct violates both Title VII and a separate constitutional or statutory right."158 In that case, in addition to her Title VII claims, the plaintiff alleged a violation of 42 U.S.C. § 1981, which she brought through § 1983. Although the underlying conduct that formed the basis of Plaintiff's Title VII and § 1981 claims was the same, the plaintiff's § 1983 *807claim "was being brought for a violation of her rights to make and enforce contracts under § 1981."159 Thus, the Court found the plaintiff could bring a § 1983 claim in addition to her Title VII claim because she alleged a violation of a separate statutory right under § 1981 apart from Title VII.160
In this case, Plaintiff alleges that the actions and inactions of Devin George and Darlene Smith, in their individual capacities, in conspiring to retaliate, discriminate, intimidate, isolate, deny promotions, and create a hostile work environment against her violate 42 U.S.C. § 1983,161 but does not reference any underlying violation other than Title VII and Louisiana Revised Statutes section 9:2798.1. With respect to Plaintiff's alleged § 1983 claim pursuant to Louisiana Revised Statutes section 9:2798.1, a review of this statute shows that the statute is a "discretionary immunity statute"162 and does not provide a cause of action for plaintiffs. As a result, Louisiana Revised Statutes section 9:2798.1 does not provide a separate statutory violation under § 1983. Plaintiff has otherwise failed to allege a statutory right separate and apart from those protected by Title VII. In fact, under her § 1983 cause of action, Plaintiff specifically alleges "[t]he pattern or practice of discrimination, harassment, and retaliation against [her]," as detailed in the previous paragraphs within her § 1983 cause of action,163 "violated Title VII of the Civil Rights Act of 1964 and 1991."164 Thus, Plaintiff's reliance on Gallentine is misplaced, and her § 1983 claims must be dismissed.
d. Claims based on Louisiana Revised Statutes 23:301 et seq.
i. Against DHH
Plaintiff's fourth cause of action is against her employer, DHH, pursuant to Louisiana Revised Statutes 23:301 et seq .165 As the Fifth Circuit explained in Raj v. Louisiana State University , "sovereign immunity bar[s] federal courts from hearing state law claims brought in federal court against state entities."166 For the purpose of sovereign immunity, DHH, a Louisiana state agency, is considered an "arm of the state" and, therefore, protected by the Eleventh Amendment.167 As a result, Defendant's motion to dismiss Plaintiff's claims based on Louisiana Revised Statutes 23:301 et seq . against DHH is granted.
ii. Against Devin George and Darlene Smith in Their Official Capacities
To the extent Plaintiff's state law discrimination claims are alleged against Devin George and Darlene Smith in their official capacities, these claims are also *808barred by the Eleventh Amendment.168 "It is well established [that] a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office and that therefore the official-capacity defendants are entitled to invoke sovereign immunity."169 As a result, the Defendants' motion to dismiss Plaintiff's state law discrimination claims against Devin George and Darlene Smith in their official capacities is granted.
iii. Against Devin George and Darlene Smith in Their Individual Capacities
To the extent Plaintiff alleges discrimination claims under Louisiana state law against Devin George and Darlene Smith in their individual capacities, Plaintiff has failed to state a claim upon which relief could be granted.
To be held in violation of the Employment Discrimination Law (EDL), Louisiana Revised Statutes section 23:301, et seq ., "one must (1) receive services from an employee and in return give compensation to that employee and (2) must meet the requirement of a minimum number of employees."170 Pursuant to that statute, an "employer" is "a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee."171 As it is clear from the face of the complaint that Devin George and Darlene Smith were not Plaintiff's employer, the Defendants' 12(b)(6) motion to dismiss Plaintiff's state law discrimination claims against Devin George and Darlene Smith in their individual capacities is granted.172
e. Claims based on Louisiana Revised Statutes 51:2256
In her fifth cause of action, Plaintiff alleges claims pursuant to Louisiana Revised Statutes section 51:2256, which makes it unlawful for an employer to:
[R]etaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this Chapter or Chapter 3-A of Title 23 of the Louisiana Revised Statutes of 1950, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this Chapter or by Chapter 3-A of Title 23 of the Louisiana Revised Statutes of 1950.173
Like Plaintiff's claims based on Louisiana Revised Statutes 23:301 et seq., Plaintiff's state law claims against her employer pursuant to Louisiana Revised Statutes section 51:2256 are barred by Eleventh Amendment sovereign immunity.174 To the *809extent Plaintiff's state law claim under this statute is alleged against Devin George and Darlene Smith in their official capacities, these claims are also barred by the Eleventh Amendment.175
The Court finds the Plaintiff's claims pursuant to Louisiana Revised Statutes section 51:226 against Devin George and Darlene Smith in their individual capacities must also be dismissed. As explained in Smith v. Parish of Washington , it is clear "that as a matter of law, § 51:2256 no longer applies to unlawful discrimination."176 Instead, liability under Louisiana Revised Statutes section 51:2256"is limited to retaliation against practices made unlawful under the Louisiana Human Rights Act and does not extend to provisions repealed from that Act and now incorporated into La. R.S. § 23:302."177 Further, under Louisiana Revised Statutes section 51:2256, co-employees, officers, and directors of the employer are not subject to liability because they are not considered "employers" under the statute.178 Plaintiff's state law claims under Louisiana Revised Statutes section 51:2256 are dismissed.
Accordingly;
CONCLUSION
IT IS ORDERED that the Defendants' Motion to Dismiss179 is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(1) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on EEOC Charge No. 461-2016-00165 as untimely filed is DENIED.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(6) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on EEOC Charge No. 461-2016-00165 as res judicata is DENIED.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(6) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on 42 U.S.C. § 1983 is GRANTED and those claims are DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(6) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on 42 U.S.C. § 1981 is GRANTED and those claims are DISMISSED WITH PREJUDICE pursuant *810to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(6) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on Louisiana Revised Statutes 23:301 et seq. is GRANTED and those claims are DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants Louisiana Department of Health and Hospitals, Darlene Warren Smith, and Devin George's 12(b)(6) Motion to Dismiss Plaintiff Deneen Montgomery-Smith's claims based on Louisiana Revised Statutes 51:2256 is GRANTED and those claims are DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
R. Doc. 60.
R. Doc. 64.
The facts stated herein derive from Plaintiff's original complaint, R. Doc. 1, as supplemented and amended by R. Docs. 27, 54. The Court accepts all of Plaintiff's well-pleaded facts as true. See Baker v. Putnal , 75 F.3d 190, 196 (5th Cir. 1996). Unless otherwise indicated, "R. Doc." refers to record documents in the instant matter, No. 17-5564.
R. Doc. 54 at ¶ 3.
Id. at ¶ A, 4(j).
Id. at ¶ 6.
Id. ¶ 6, 7.
Id. at ¶ 6, 7, 9.
Id. ¶ 9. See Montgomery-Smith v. Louisiana Department of Health and Hospitals, Office of Aging and Adult Services, Bureau of Protective Services , No. 08-4737 (E.D. La. Oct. 24, 2008) (before Lemmon, J.). The Court dismissed Montgomery-Smith II on November 21, 2011 after having been informed that the parties had reached a firm agreement. See No. 08-4737, R. Doc. 158.
R. Doc. 54 at ¶ 10.
Id. at ¶ 11(e).
Id. at ¶ 11(d).
Id. at ¶ 11(b), (c).
Id. at ¶ 11(a).
Id. at ¶ 14.
Id. at ¶ 14(a)-(h).
R. Doc. 30-4 at 3 (EEOC Charge filed March 26, 2015).
R. Doc. 33-5.
No. 15-6369, R. Doc. 23 at ¶ 34.
R. Doc. 54 at ¶ 91.
No. 15-6369, R. Doc. 1.
No. 15-6369, R. Doc. 45 at 12-14 ("Plaintiff has not exhausted her administrative remedies with respect to her claims alleged in her November 5, 2015 EEOC compliant and therefore these claims must be dismissed. Stated differently, Plaintiff's Title VII claims based on acts that occurred after March 26, 2015 are dismissed for failure to exhaust.").
No. 15-6369, R. Doc. 111. Following trial, Plaintiff filed a motion for judgment notwithstanding the verdict. No. 15-6369, R. Doc. 119. In her opposition to Defendants' motion to dismiss, Plaintiff states this motion is "still pending." R. Doc. 64 at 2 (filed 01/05/2018). Contrary to Plaintiff's assertion, the Court denied Plaintiff's post-verdict motion on November 27, 2017. No. 15-6369, R. Doc. 142.
R. Doc. 54 at ¶ 93, 94.
Id. at ¶ 76.1.
R. Doc. 1.
R. Doc. 60-5. Although Charge 4 is attached to Defendants' motion to dismiss, the Court may consider it without converting Defendants' motion to dismiss to one for summary judgment, as "the complaint refers to the document and [it is] central to the claim." Kane Enterprises v. MacGregor (USA) Inc. , 322 F.3d 371, 374 (5th Cir. 2003).
Id. The Court notes that Charge 4 is based on age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"); however, in this case, Plaintiff does not bring a claim under the ADEA.
Id.
Id.
Id.
R. Doc. 60-7.
Id.
Id.
Id.
R. Doc. 54 at ¶¶ 76, 76.1, 94, and 94.1.
R. Doc. 64 at 25-26.
R. Doc. 54 at ¶ 14(a)-(h).
Id. at ¶¶ 16-24 (Robin Lewis), ¶ 49 (Omar Khalid), ¶ 57 (Jira-Shea Davis), ¶ 68 (Lauren Tran), ¶ 70.6 (Jemimah Mickel).
Id. at ¶¶ 72, 85, 100, 106, 107, 115, 126, 133.
Id. at ¶ 15.
Id. at ¶ 87.
R. Doc. 15.
R. Doc. 25.
R. Doc. 27.
R. Doc. 33.
See R. Doc. 35-1 at 1. The right to sue later based on Charge 5 was mailed on September 28, 2017. See R. Doc. 54-2.
R. Doc. 35.
Id.
R. Doc. 53. Although he granted Plaintiff's motion for leave to file her second amended complaint, Magistrate Judge Knowles denied Plaintiff's motion to withdraw her previously made jury demand. Id. at 2.
R. Doc. 54.
R. Doc. 55.
R. Doc. 60.
R. Doc. 54 at ¶¶ 97-103.
Id. at ¶¶ 104-10.
Id. at ¶¶ 111-21.
Id. at ¶¶ 122-28.
Id. at ¶¶ 129-35.
R. Doc. 60. The Court notes that in her Opposition, Plaintiff concedes her Title VII claims against all Defendants for punitive or exemplary damages and § 1981 claims against DHH for punitive or exemplary damages must be dismissed. R. Doc. 64 at 25, 28. Accordingly, these claims are dismissed.
In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs) , 668 F.3d 281, 286 (5th Cir. 2012).
See Fed. R. Civ. P. 12(b)(1).
Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss. , 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted).
In re FEMA , 668 F.3d at 287.
Crane v. Johnson , 783 F.3d 244, 251 n.21 (5th Cir. 2015) ; Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981).
Valdery v. Louisiana Workforce Comm'n , No. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept. 10, 2015).
Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007).
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).
Id.
Id.
S. Christian Leadership Conference v. Supreme Court of the State of La. , 252 F.3d 781, 786 (5th Cir. 2001) (citing Fernandez-Montes v. Allied Pilots Ass'n , 987 F.2d 278, 284 (5th Cir. 1993)).
Iqbal , 556 U.S. at 663, 678, 129 S.Ct. 1937 (citations omitted).
Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
Id. (quoting Fed. R. Civ. P. 8(a)(2) ).
R. Doc. 64 at 3.
Fed. R. Civ. P. 15(a)(3).
No. 12-796, 2014 WL 130981 (W.D. La. Jan. 10, 2014).
Id. at *3 (citations omitted) (citing Automotive Indus. Pension Trust Fund v. Ali , No. 11-5216, 2012 WL 2911432 (S.D. Cal. July 16, 2012) ; Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC , No. 10-677, 2012 WL 202664 (S.D. Cal. Jan. 23, 2012) ).
Fed. R. Civ. P. 12.
R. Doc. 60-1 at 12-15. The Court notes that Defendants refer to what the Court refers to as "Charge 4" as "Charge 1." However, both refer to Charge No. 461-2016-00165.
Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996) (per curiam).
42 U.S.C. § 2000e-5(f)(1).
Duron v. Albertson's LLC , 560 F.3d 288, 290 (5th Cir. 2009) (per curiam) ("A plaintiff alleging employment discrimination must file a civil action no more than ninety days after she receives statutory notice of her right to sue from the EEOC."); Taylor v. Books A Million, Inc. , 296 F.3d 376, 379 (5th Cir. 2002) ("Title VII provides in no uncertain terms that the ninety-day period of limitations begins to run on the date that the EEOC right-to-sue letter is received....").
Taylor , 296 F.3d at 379 ; see also Butler v. Orleans Parish Sch. Bd. , No. 00-0845, 2001 WL 1135616, at *2-3 (E.D. La. Sept. 25, 2001) (dismissing Title VII claims when plaintiff filed her complaint one day beyond the ninety-day period).
Taylor , 296 F.3d at 379 (quoting Dao , 96 F.3d at 789 ).
See R. Doc. 1.
Gamel v. Grant Prideco, LP , 625 Fed.Appx. 690, 694 (5th Cir. 2015).
United States v. Ekong , 518 F.3d 285, 287 (5th Cir. 2007) (per curiam) (quoting Beck v. Somerset Techs., Inc. , 882 F.2d 993, 996 (5th Cir. 1989) ); see also Taylor , 296 F.3d at 379 (applying presumption of receipt in Title VII context).
Zamora v. GC Servs., LP , 647 Fed.Appx. 330, 332 (5th Cir. 2016).
Duron v. Albertson's LLC , 560 F.3d 288, 290 (5th Cir. 2009).
Gamel , 625 Fed.Appx. at 694 (citing Custer v. Murphy Oil USA, Inc. , 503 F.3d 415, 420 (5th Cir. 2007) ).
Custer , 503 F.3d at 420.
Ekong , 518 F.3d at 287.
560 F.3d 288, 289-90 (5th Cir. 2009).
Id.
Id. at 290.
Id. at 289.
Id.
Id. at 291.
Id.
Id. (quoting Hagner v. United States , 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932) ).
647 Fed.Appx. at 332-33 (internal citations omitted).
Id.
R. Doc. 54 at ¶ 92-93; R. Doc. 27-1.
R. Doc. 60-6.
R. Doc. 60-7.
R. Doc. 27-1 at 3-4.
R. Doc. 27-1 at 2.
In contrast, Plaintiff: (1) alleges she did not receive her right-to-sue letter until March 7, 2017; (2) attaches to her complaint a series of emails demonstrating that she had inquired about her right-to-sue letter on (a) November 12, 2015; (b) May 3, 2016; (c) February 28, 2017; and (d) March 5, 2017; and (3) attaches the EEOC enforcement manager's email responses to her inquires, dated March 2 and March 7, 2017, the second of which included a copy of Plaintiff's right to sue.
Compare Duron , 560 F.3d at 291 (noting the absence of this evidence was insufficient for presuming receipt of a right to sue notice), with Gamel , 625 Fed.Appx. at 694-95 (involving business records and testimony that the notice was mailed on a particular date). The Court notes that the letters addressed to Devin George and DHH constitute evidence outside the pleadings and evidence more appropriate for summary judgment. Even if the Court could consider them, they alone are not proof the right-to-sue letter was actually sent to Plaintiff .
Custer , 503 F.3d at 422.
R. Doc. 60-1 at 16-19.
R. Doc. 64 at 25.
Id. at 25-26.
Id. at 64.
Allen v. McCurry , 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
Howe v. Vaughan , 913 F.2d 1138, 1143-44 (5th Cir. 1990).
383 F.3d 309 (5th Cir. 2004).
Id. at 314.
Id. at 314.
Id. at 316.
Id. at 315-16 (citing Owens v. Kaiser Found. Health Plan, Inc. , 244 F.3d 708, 714-15 (9th Cir. 2001) (holding Title VII claims were not exempt from claim preclusion where plaintiffs failed to seek a stay of proceedings or to amend their complaint); Herrmann v. Cencom Cable Assocs., Inc. , 999 F.2d 223, 225-26 (7th Cir. 1993) ("Parties to Title VII actions enjoy no immunity from res judicata...."); cf. Boateng v. InterAmerican Univ., Inc. , 210 F.3d 56, 63 (1st Cir. 2000) (holding Title VII claim subject to res judicata where plaintiff received right-to-sue letter during pendency of prior action); Jang v. United Techs. Corp. , 206 F.3d 1147, 1149 (11th Cir. 2000) (finding ADA claim was not exempt from res judicata where plaintiff failed to obtain right-to-sue letter during pendency of previous litigation); Churchill v. Star Enters. , 183 F.3d 184, 193-94 (3d Cir. 1999) (same); Rivers v. Barberton Bd. of Educ. , 143 F.3d 1029, 1032-33 (6th Cir. 1998) (plaintiff's claims were barred by res judicata where she could have obtained a right-to-sue letter and perfected her claim during the two-year pendency of prior action) ).
No. 15-6369, R. Doc. 45 at 12-14 ("Plaintiff has not exhausted her administrative remedies with respect to her claims alleged in her November 5, 2015 EEOC compliant and therefore these claims must be dismissed. Stated differently, Plaintiff's Title VII claims based on acts that occurred after March 26, 2015 are dismissed for failure to exhaust.").
R. Doc. 1.
R. Doc. 3.
R. Doc. 6.
Id. at ¶ 8.
R. Doc. 8 at 1-2.
Id. at 25
No. 15-6369, R. Doc. 45 at 32-33 (dismissing all claims based on events that occurred after March 26, 2017 without prejudice).
Id. at 315-16 (citing Owens v. Kaiser Found. Health Plan, Inc. , 244 F.3d 708, 714-15 (9th Cir. 2001) (holding Title VII claims were not exempt from claim preclusion where plaintiffs failed to seek a stay of proceedings or to amend their complaint); Herrmann v. Cencom Cable Assocs., Inc. , 999 F.2d 223, 225-26 (7th Cir. 1993) ("Parties to Title VII actions enjoy no immunity from res judicata...."); cf. Boateng v. InterAmerican Univ., Inc. , 210 F.3d 56, 63 (1st Cir. 2000) (holding Title VII claim subject to res judicata where plaintiff received right-to-sue letter during pendency of prior action); Jang v. United Techs. Corp. , 206 F.3d 1147, 1149 (11th Cir. 2000) (finding ADA claim was not exempt from res judicata where plaintiff failed to obtain right-to-sue letter during pendency of previous litigation); Churchill v. Star Enters. , 183 F.3d 184, 193-94 (3d Cir. 1999) (same); Rivers v. Barberton Bd. of Educ. , 143 F.3d 1029, 1032-33 (6th Cir. 1998) (plaintiff's claims were barred by res judicata where she could have obtained a right-to-sue letter and perfected her claim during the two-year pendency of prior action) ).
R. Doc. 60-1 at 20-21.
Id. at 20.
Gen. Bldg. Contractor's Ass'n v. Pennsylvania , 458 U.S. 375, 384-86, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).
See, e.g. , Saint Francis College v. Al-Khazraji , 481 U.S. 604, 614, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (Brennan, J., concurring); Bellows v. Amoco Oil Co. , 118 F.3d 268, 273-74 (5th Cir. 1997).
42 U.S.C. § 1981(a).
Saint Francis College , 481 U.S. at 609, 107 S.Ct. 2022 (citing Runyon v. McCrary , 427 U.S. 160, 168, 174-75, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) ).
491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).
Id. at 735, 109 S.Ct. 2702 (emphasis added).
In Jett , the specific issue addressed by the Supreme Court was whether "§ 1981 provides an independent federal cause of action for damages against local government entities, and whether such a cause of action is broader than the damages remedy available under 42 U.S.C. § 1983, such that a municipality may be held liable for its employees' violations of § 1981 under a theory of respondeat superior," a form of liability unavailable under § 1983. Id. at 705, 109 S.Ct. 2702. In concluding that it does not, Jett emphasized that the consequence of the holding is that "the school district may not be held liable for its employees' violations of the rights enumerated in § 1981 under a theory of respondeat superior." Id. at 738, 109 S.Ct. 2702. Thus, arguably, Jett only addressed whether § 1981 could be asserted as an independent cause of action against a state or municipal entity.
315 F.3d 470, 482 (5th Cir. 2002), abrogation on other grounds recognized by Jackson v. Honeywell Intern., Inc. , 601 Fed.Appx. 280 (5th Cir. 2015).
Id.
Id.
Id.
See R. Doc. 54 at ¶¶ 104-10 (§ 1981 claims), ¶¶ 111-21 (§ 1983 claims)
Id. at 38.
Id. at 40.
Felton , 315 F.3d at 482.
R. Doc. 54 at ¶ 112.
Id. at ¶ 115.
Id. at ¶ 117.
Id. at ¶ 121.
R. Doc. 60-1 at 23.
919 F.Supp.2d 787 (E.D. Tex. 2013).
Id. at 810.
Johnston v. Harris Cty. Flood Control Dist. , 869 F.2d 1565, 1574 (5th Cir. 1989) ("Rather than creating substantive rights, § 1983 simply provides a remedy for the rights it designates.").
Id. at 1574.
Jackson v. City of Atlanta , 73 F.3d 60, 63 (5th Cir. 1996).
919 F.Supp.2d at 810.
Id. at 810.
Id.
R. Doc. 54 at ¶ 111-16.
See, e.g. Anderson v. Bossier Par.Police Jury , 49,471 (La. App. 2 Cir. 11/19/14), 153 So.3d 550, 555, writ denied , 2014-2664 (La. 3/13/15), 161 So.3d 640.
Id.
Id. at ¶ 117; see also id. at ¶ 118 ("As a result of the violations of the Civil Rights Act of 1964 and 1974 , as amended, Deneen Smith is entitled to promotion, back pay, front pay and or compensation for all employee benefits lost as a result of the violations of the Civil Rights Act of 1964 and 1991 , as amended, attorney fees and costs, as well as compensatory and punitive damages in accordance with applicable law.") (emphasis added).
R. Doc. 23 at ¶ 51.
Raj v. Louisiana State University , 714 F.3d 322, 330 (5th Cir. 2013) (citing Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 117, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ).
See, e.g., Advocacy Ctr. for Elderly & Disabled , 731 F.Supp.2d at 589 n.20.
See Pennhurst State Sch. & Hosp. , 465 U.S. at 102, 104 S.Ct. 900.
Union Pac. R. Co. v. Louisiana Pub. Serv. Comm'n , 662 F.3d 336, 340 n.3 (5th Cir. 2011) (internal quotations omitted) (quoting Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ).
Id. (emphasis in original).
Dejoie v. Medley, 9 So.3d 826, 829 (La. 2009).
See No. 15-6369, R. Doc. 45 at 27.
La. Rev. Stat. 51:2256 ; Seal v. Gateway Companies, Inc. , 2002 WL 10456, at *6 (E.D. La. Jan. 3, 2002) ("Louisiana's Employment Discrimination Law and the LHRA permit suits only against 'employers,' which are defined as persons receiving services from an employee and, in return, giving compensation of any kind to an employee.") (emphasis in original) (internal quotations and citations omitted).
See Sartin v. Seven Acres , 2003 WL 1790847, at *3 (E.D. La. Apr. 2, 2003).
See Pennhurst State Sch. & Hosp. , 465 U.S. at 102, 104 S.Ct. 900.
318 F.Supp.2d 366, 373 (E.D. La. 2004).
Id. (citing Hollister v. Gallagher , 2004 WL 224547 (E.D. La. 2003) ; Anderson v. Guste Homes , 2004 WL 224567 (E.D. La. 2004) ; Johnson v. Integrated Health Services, Inc. , 2002 WL 31246762 (E.D. La. 2002) ). The amended Louisiana Human Rights Act makes unlawful discriminatory practices: (1) in public accommodations and advertising public accommodations, (2) against breast-feeding mothers, (3) by financial institutions in providing financial services, and (4) in credit transactions. See Smith v. Parish of Washington , 318 F.Supp.2d 366, 371 n.3 (E.D. La. 2004) (citing La. R.S. §§ 51:2247, 51:2248, 51:2247.1, 51:2254 and 51:2255 ).
See Seal , 2002 WL 10456, at *6 ("Louisiana's Employment Discrimination Law and the LHRA permit suits only against 'employers,' which are defined as persons receiving services from an employee and, in return, giving compensation of any kind to an employee.") (emphasis in original) (internal quotations and citations omitted).
R. Doc. 60. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3435692/ | Plaintiff operates a farm within the corporate limits of the city of Sioux City, Iowa, near which runs the line of defendant railway company. There is no dispute that two fires occurred on the 3d and 25th of March, 1925, respectively, which burned over part of the farm of plaintiff and caused some damage. The two dominating questions at the time of the trial were: First, whether the defendant railroad company set said fires, and second, the amount of damage sustained.
The evidence introduced on behalf of the plaintiff was sufficient to take the case to the jury, and no question was raised with reference thereto. Among other 1. DAMAGES: things, the jury was instructed on the question mitigation: of mitigation of damages, and plaintiff insists submission that the same was not an issue in the case, without because not pleaded. There is evidence in the plea. case, however, even from the plaintiff himself, in which he admits that he knew of these fires, and made no effort whatever to stop them or to reduce the damages.
Section 11173, Code of 1924, provides:
"No mitigating circumstances shall be proved unless pleaded, except such as are shown by or grow out of the testimony introduced by the adverse party."
The testimony introduced by plaintiff in this case tends to show that he was informed and knew of said fires, and made no effort whatever to mitigate his damages. This comes clearly within the exception of the statute, and the court properly instructed the jury thereon.
Further than this, plaintiff insists that the instruction on mitigation of damages is not referred to in 2. APPEAL AND Instructions 1, 2, and 3, which set out and ERROR: harm- limit the issues. Plaintiff is not in a position less error: to complain about this, because the error was unjustifia- against the defendant, and not against the ble chance plaintiff, and, the jury having for recovery. *Page 293
found for defendant, plaintiff was not injured thereby; and if it be error, it is error without prejudice.
Plaintiff further insists that the instruction placed upon the plaintiff the burden of disproving defendant's affirmative issue of mitigation of damages, instead of placing such burden upon the defendant. We find no instruction to which this complaint is applicable. When plaintiff established the fact that the fires were set by the engines of the defendant railway company, and showed his damages, this made a prima-facie case for him, under Section 8160, Code of 1924. So long as the court sent the case to the jury, the plaintiff had the full benefit of this claim, and there is nothing in the instructions that conflicts therewith.
Complaint is made of an instruction on circumstantial evidence. This instruction reads as follows:
"The evidence offered and relied upon by the plaintiff to establish the allegation that a switch engine started said fires is of a kind and character known as and called in law circumstantial evidence. Circumstantial evidence 3. EVIDENCE: is proof of certain facts and circumstances in a circumstan- certain case from which the jury may infer other tial evi- and connected facts which usually and reasonably dence: follow, according to the common experience of sufficiency mankind. Circumstantial evidence is legal to support evidence, and is not to be disregarded merely finding. because it is circumstantial. Circumstantial evidence may be weak and of little weight, and it may be quite as conclusive in its convincing power as direct and positive evidence of eyewitnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarging or belittling its force. A fact sought to be proven cannot be said to be established by circumstantial evidence alone, unless the circumstances relied upon and proven are of such a nature and are so related to each other that it is the only conclusion that can be reasonably drawn from them. It is not sufficient that they are merely consistent with the facts sought to be proven. However, the circumstantial evidence should have its just and fair weight with the jury, and if, when it is taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, the jury should give such circumstantial evidence its just and proper weight. You are not to fancy situations and circumstances which do not appear in the evidence, but you are to make those just and *Page 294
reasonable inferences from the circumstances proven which the guarded judgment of a reasonable person would ordinarily make under like circumstances, and you will consider the same in connection with all other evidence, facts, and circumstances proven upon the trial."
Under the evidence in the case, there was no eyewitness to the fact that any of the locomotives of the defendant emitted sparks or fire of any kind, nor is there any eyewitness to the starting of either of these fires. From a reference to the instruction of which complaint is made, it will be noticed that the instruction limits itself to the allegation that a switch engine started these fires, and says, in substance, that the evidence tending to show these facts is wholly circumstantial. What else could be the situation in this case? The instruction is strictly in accord with what we said in the case of Kennedy v. Chicago N.W.R. Co.,90 Iowa 754:
"No one is called who witnessed the accident, and therefore the cause has to be determined from the circumstances."
In the case of Asbach v. Chicago, B. Q.R. Co., 74 Iowa 248, we said, with reference to the question of circumstantial evidence:
"A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent, merely, with that theory, for that may be true, and yet they may have no tendency to prove the theory. This is a well-settled rule, and it is manifest that under it plaintiff's theory is not established. The facts relied upon to prove it are quite as consistent with the theory that the animal went upon the bridge of his own volition, as that he was frightened by something else than a train, and ran upon it, as with it. Plaintiff, then, has not shown the cause of the injury."
This has been our holding since the Asbach case. See, also,Kling v. Chicago, M. St. P.R. Co., 115 Iowa 133; Gibson v. IowaCent. R. Co., 136 Iowa 415; Johnson v. Corn Products Ref. Co.,157 Iowa 420; Ohlson v. Sac County Farmers' Mut. F. Ins. Assn.,191 Iowa 479; Hemminger v. City of Des Moines, 199 Iowa 1302. *Page 295
There is nothing whatever in the instruction given that is inconsistent with this rule. In fact, the body of the instruction is apparently a copy of what we said in the Asbach case.
Complaint is made of the portion of the instruction which says:
"A fact sought to be proven cannot be said to be established by circumstantial evidence alone, unless the circumstances," etc.
Complaint is made of the use of the word "alone." We think it was appropriate, and in no way impinged upon the rule laid down in the Asbach case. That we are not mistaken as to this situation in the record is proven by the following statement from appellant's brief and argument, at page 41:
"The circumstance that no one actually saw the wind carry sparks or cinders from the defendant's locomotive to its right of way, or to the plaintiff's field, and that no one actually saw the sparks or cinders fall to the ground and start the fires, is the only circumstantial evidence in this record."
Appellant cites a long line of authority in this state on the proposition that the circumstantial evidence need not exclude every other reasonable hypothesis. With this doctrine we have no contention. The instruction attacked does not contain any such statement, but is strictly in accord with our previous rulings.
This same instruction is also attacked for the use of the words "guarded judgment" therein. The use of the word "guarded" is unfortunate, but neither brief cites any authority on this proposition, nor have we in an independent 4. TRIAL: in- search been able to find any touching this exact structions: question. But taking the instruction as a whole, "guarded" as elaborated in Instruction 8 following, we do judgment of not feel that the use of the word "guarded" in jurors. its setting in this instruction was reversible error. Generally, however, its use should be avoided.
This instruction is further attacked wherein it says:
"Circumstantial evidence may be weak and of little weight, and it may be quite as conclusive in its convincing power as direct and positive evidence of eyewitnesses. When it is strong *Page 296
5. TRIAL: in- and satisfactory, the jury should so consider structions: it, neither enlarging nor belittling its force." circumstan- tial evi- The complaint is as to the use of the words dence: force "strong and satisfactory." This amounts to no and effect. more, however, than saying that, if the jury found this evidence to be strong and satisfactory, they should so consider it, and that they were not to enlarge or belittle its force because of the fact that it was circumstantial evidence. We can see no error in this. If error it be, it is more favorable to the plaintiff than to the defendant; hence the plaintiff cannot complain.
Complaint is made of Instruction No. 9, which reads as follows:
"In determining whether or not the fires in question, or either of them, was started by sparks emitted from the 6. TRIAL: in- switch engine in question, you may and should structions: consider, so far as shown by the evidence, the non-applica- other causes, if any, from which said fire or bility to fires might have originated." evidence: error cured by limitation.
The complaint about this instruction is that there is not a scintilla of evidence in the record to show that the fires originated from any "other causes" than sparks from defendant's locomotive. The instruction is, however, guarded both ways. First, it is limited by the phrase "so far as shown by the evidence," and second, followed by the limitation specified by the words "if any." We feel that this is a sufficient limitation on this instruction. The alleged error is not valid.
Instruction No. 5 is complained of because it directs the jury that the burden of proof is on the plaintiff to prove by a preponderance of the evidence the allegations of his petition, as set out in Paragraph 1 of the instructions. The complaint is that this is erroneous because it is incomplete, and an incorrect statement of the law under Section 8160, Code of 1924. The instruction was a general instruction on burden of proof. The full benefit of Section 8160, Code of 1924, was given to the plaintiff by subsequent instructions in the case.
It is insisted that the verdict of the jury is not sustained by the evidence. Suffice it to say that, under the theory of plaintiff in his case and the instructions of the court, if the plaintiff proved his damages, this, plus the provisions of the aforesaid Section 8160, made a prima-facie case for him. The *Page 297
real fight in this case seems to have been, first, whether the railroad company set one or both of said fires, and second, if so, the amount of damage. Both of these questions, under the record, were questions for the jury, and, they having passed upon them, they are settled, and cannot be reviewed by us.
We have read the record carefully, however, and feel that there is sufficient evidence to support the verdict. — Affirmed.
FAVILLE, De GRAFF, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435731/ | The contention of the contestants requires the recital of certain events preceding the election in question.
The Iowa City Light Power Company for a number of years distributed electricity in Iowa City under a franchise which expired in January 1934. On October 11, 1932, a special election was held in said city at which was submitted to the voters the question of the renewal of said franchise for a period of 25 years, and at which election the renewal thereof was defeated by a vote of approximately 3 to 1. On April 17, 1934, a special election was held in said city for the purpose of voting on an issue of $917,000 of revenue bonds for the establishment of a municipally owned electric light plant and distribution system, which proposition carried by a majority of 155 votes. Following the special election in April 1934 an ordinance was introduced before the city council providing for the establishment of a municipally owned plant which was tabled, and in October 1934 the same council returned unexecuted to the Federal government a PWA contract for a loan and grant which had been requested by the city, and which had been allocated by the PWA.
At the regular city election in Iowa City in March 1935 the ballot contained a Municipal Ownership Non-Partisan ticket, as well as the Republican and Democratic tickets. At this election all candidates upon the Municipal Ownership Non-Partisan ticket were elected; following which the new council took office the fore part of April 1935; enacted the ordinance that had been tabled in 1934; and filed a new application with the PWA for a loan and grant in connection with the construction of said plant, which was later changed to an application for a grant only. In August 1935 a grant was made to the city of $413,000, of which amount nearly $30,000 was advanced. The council then engaged engineers to prepare plans and specifications and published notices in December 1935 calling for bids on the light plant and equipment. However, all further progress of the council relative *Page 874
to letting any construction contract, or proceeding with the construction of the plant and distribution system, was stayed by an injunction, which enjoined the council from using tax funds in connection with said project; and by a restraining order procured by the light and power company which prohibited the advancement of any further PWA funds to the city, and likewise enjoined the city from doing any act or things in furtherance of the plan of erecting and acquiring a municipally owned plant.
At a meeting of the council on May 27, 1935, a resolution was adopted directing the Iowa City Light Power Company to submit to the city a sale price for its electric distribution system in Iowa City and immediate vicinity. On June 20, 1935, the company replied thereto by a letter addressed to the mayor and city council, therein refusing to dispose of its distribution system only, but therein offering to sell its entire electric property, consisting of power house, dam, water rights, transmission lines and distribution system, for the sum of $1,125,000. In that letter the company also proposed that if purchase of its entire electric property was not consummated, that it would reduce the rates upon electric current furnished by it, and therein submitted a schedule of rates under such proposed reduction; stating however in its offer to so reduce rates, as follows:
"Confronted, as the Company is, by ouster proceedings with the threatened destruction of its property and probable protracted litigation, it must seem reasonable that the Company would not unconditionally lower its schedule of rates now in effect unless the threat of municipal ownership is withdrawn, and we, therefore, propose that the foregoing rates shall be applicable only after the City has taken some action indicative of the abandonment of the municipal ownership plan. Therefore, effective on the date of the first meter readings in July, the Company proposes to keep the records of each customer so as to show the amount of the monthly charge for electricity on the basis of the present rates, upon which basis payment will be made. The Company will also keep the record of the customers' accounts on the basis of the reduced rates herein proposed. The difference between the two accounts will be impounded and paid to each customer immediately upon the abandonment by the City of its present intention to establish a municipal electric light and *Page 875
power plant and distribution system, and the reduced rates will be effective thereafter."
On June 27, 1935, the mayor and council wrote a letter to the light and power company, therein stating that the company's offer to sell its entire electric property for the sum of $1,125,000 could not be accepted as the voters at the election in April 1934 had authorized an expenditure of only $917,000 for the establishment of a complete plant and distribution system. This letter also stated that the proposed rate contract of the company was of doubtful enforceability and that municipal ownership could not be abandoned in exchange for an unenforceable and temporary rate agreement. The light and power company on July 5, 1935, replied thereto, stating that for the sole purpose of removing any doubt as to the enforceability of its rate reduction proposal, it was willing to grant the city a five-year option to purchase for a consideration of $900,000, plus net additions after July 1, 1935, the entire electric plant and electric distribution system of the company, including the dam in Coralville and transmission lines to Iowa City; such proposed option to be exercisable only upon the company's failure to abide by the terms of the reduced rate proposal; and that the consideration for said option would be the abandonment by the city council of its intention to establish a municipal light plant and distribution system. The record contains no mention of any further communication between the council and the light and power company.
Commencing with the month of August 1935, and every month thereafter, the Iowa City Light Power Company sent to each of its electricity consumers, some 5,500 in number, a monthly notice therein referring to the contents of its two letters of June 20, 1935, and July 5, 1935, to the mayor and council; stating that, in conformity with its reduced rate proposal, it was keeping a record of each account on the basis of the proposed reduced rates in addition to the record of each account on the present rates; that the difference between the two accounts was being impounded and would be paid each consumer in cash whenever the council abandoned its plans for a municipal light plant; and each of said monthly notices also showed the exact amount impounded to the credit of the customer. Likewise, during the period from August 1935 to March 1937, the company openly *Page 876
advertised in the local newspapers of Iowa City that these impounded funds would be paid its customers whenever the city council abandoned its plans for a municipal light plant. This amount of impounded funds naturally increased every month, and in February, immediately preceding the city election held on March 29, 1937, this fund had reached a grand total of $72,294.42.
On March 5, 1937, at a convention held in Iowa City, a ticket known as the Citizens Non-Partisan ticket was selected for the city election to be held on March 29, 1937. At this convention the incumbents were selected as candidates for the city council; and a platform was adopted in which was included the following plank:
"We pledge strict and fair regulation of our public utilities so that essential services may be supplied to the consumer at minimum cost now, and whatever future profits may accrue will be equitably shared among the rate payers, the taxpayers and the owners of these properties.
"We are opposed to the building of a municipal light plant or to any other project which involves the city in further obligation without bringing the citizens increased benefits. WE BELIEVE THAT NO FRANCHISE SHOULD BE GRANTED TO ANY PRIVATELY OWNED LIGHT AND POWER COMPANY UNTIL THEIR CONTINUED WILLINGNESS TO SERVE THEIR SUBSCRIBERS EFFICIENTLY AND AT RATES JUSTIFIED BY THEIR INCOME, HAS BEEN PROVEN TO THE VOTERS' SATISFACTION."
On March 7, 1937, a convention was held by the Municipal Ownerhsip League, wherein the contestants were selected as candidates for the city council, which convention adopted a platform again favoring the building of a municipal light plant. Both platforms were widely and generally circulated in Iowa City prior to the election.
[1] In the notices of contest appellants claim that the incumbents are not eligible to hold, and were not legally elected to the offices of councilmen, for the reason that as candidates for such offices they concurred in, joined with, and were parties to an offer made by the Iowa City Light Power Company, to bribe and illegally influence the voters in the aforesaid city election, in the election of incumbents to the offices of councilmen; it being the contention of appellants that the offer of the Iowa City Light *Page 877 Power Company to reduce electric rates and to pay each electricity consumer a definite sum in cash, conditioned upon the city council abandoning plans for building a municipal plant, was an offer of a bribe made for the specific purpose of influencing all electric consumers, as electors, to elect to the city council candidates who publicly announced they were opposed to building a municipal plant, and that appellees acquiesced, joined in and ratified said offer of the light and power company, and thereby became parties to an offer of bribes to the electors.
Section 981 of the 1935 Code sets out the grounds upon which an election of a candidate for office may be contested by any person eligible to such office, and contains seven separate grounds of contest. The actions involved herein are all predicated upon the fourth ground thereof, which reads as follows, to wit:
"That the incumbent has given or offered to any elector, * * * any bribe or reward in money, property, or thing of value, for the purpose of procuring his election."
Appellants contend that the action of the light and power company in mailing monthly notices to each of its 5,500 customers, of its offer to reduce rates and pay in cash the impounded funds when the city council abandoned its plans for the construction of a municipal plant, constituted bribery upon the part of said company to influence electors to vote for candidates opposed to building a municipal plant. However, we do not find it necessary to determine whether or not this conduct on the part of the light and power company did in fact constitute bribery. Without determining that question, but conceding for the purpose of analysis only, that this conduct constituted bribery, the same could not and would not invalidate the election of appellees, unless by some act or conduct upon their part they acquiesced in, and approved and ratified such offers on the part of the light and power company, and thereby in effect became parties to such offer. The very wording of the statute in question requires that the incumbent himself must have given or offered to an elector a bribe or reward in money, property, or thing of value, for the purpose of procuring his election.
Appellants recognize the necessity of establishing the acquiescence in and the approval and ratification of the claimed bribery by the incumbents themselves, and claim that the facts hereafter set out establish such acquiescence in, and approval and *Page 878
ratification of such claimed bribery. In January 1934 there appeared in Iowa City an organization known as the Iowa City Consumers Protective Association of which organization Herman Smith was president, Will J. Hayek was secretary-treasurer, and Dr. D.F. Fitzpatrick was a member of the board of directors. This organization, through advertisements in newspapers and through circulars distributed among the voters, conducted a very active and intensive campaign against the proposal to establish a municipally owned plant preceding the special election of April 1934, and likewise, preceding the city election of March 1935, actively campaigned against the candidates on the municipal ownership ticket. Following said election of March 1935 this association continued to carry on its very active and intensive campaign unfavorable to municipal ownership, and in favor of the abandonment of the plans for the construction of a municipal plant, and the acceptance of the reduced rate schedule and impounded funds as proposed by the light and power company. Said Herman Smith, Will J. Hayek and Dr. D.F. Fitzpatrick were active in the convention at which the Citizens Non-Partisan ticket was nominated, and also active in the campaign preceding the March 1937 election in behalf of the appellees. Appellants claim that there was a conspiracy between the light and power company, the Consumers Protective Association and the Citizens Non-Partisan organization to elect appellees to the city council for the purpose of abandoning the plans for the municipal plant then in the process of execution, and base this contention upon the association of Herman Smith, Will J. Hayek and Dr. Fitzpatrick with the Consumers Protective Association and the Citizens Non-Partisan organization. The evidence establishes that Herman Smith is a member of the firm of Smith Berger, general contractors in Iowa City, which firm has done work for the light and power company as independent contractors on a cost-plus basis; that Will J. Hayek, although not a regular counsel for the company, had been retained on two or three occasions as its attorney in particular matters; and that Dr. Fitzpatrick was the regular physician for the company. This evidence constitutes the basis of appellants' contention of such conspiracy, but the record fails to reveal any showing whatever that the company had anything to do with the organizing, financing or determining policies of either of said organizations. Each of the incumbents testified that he was opposed to municipal ownership in *Page 879
Iowa City; that he had been so opposed long before becoming a candidate, and had joined with other citizens similarly opposed in organizing the Citizens Non-Partisan party for the purpose of combatting municipal ownership. None of the appellees was approached or talked to by any representative of the light and power company relative to being a candidate on the Citizens Non-Partisan ticket, other than appellee John Ostdiek, who was first approached by Will J. Hayek, who, as we have heretofore shown, had had occasional employment as an attorney for the light and power company. With this record before us we are unable to agree with the contention of appellants that there existed a conspiracy between the light and power company and the appellees; or that the evidence establishes such acquiescence in, and approval and ratification of the claimed bribery of the light and power company by appellees as to make them parties thereto.
[2] The result of this conclusion leaves remaining for our determination the question of whether or not appellees must be disqualified from holding the offices to which they were elected, for the reason that at the time they were candidates for election upon the Citizens Non-Partisan ticket, upon a platform opposed to municipal ownership, that they knew that the light and power company had for some eighteen months been informing their customers by monthly circulars, and by advertisements, that such customers would be paid in cash the impounded fund amounting to over $72,000 upon the abandonment by the council of its plans for the construction of a municipal light plant. The evidence is undisputed that each of the appellees was opposed to municipal ownership, and without any showing that they were parties to the offers made by the light and power company, we do not believe that they were disqualified under the quoted section of the Code of Iowa relevant thereto. If the contention of appellants is to be sustained and appellees are to be disqualified on account of being candidates upon a ticket opposed to the principle of municipal ownership, the result of necessity must be that the offer made by the light and power company to the city council and to their customers precluded all possibility that any group of candidates could have run in 1937 on a platform opposed to municipal ownership. The fact that some third person may have given or offered a bribe for the purpose of procuring the election of some candidate certainly should not *Page 880
be construed as disqualifying the particular candidate from holding office, unless of course the candidate actually participated therein and approved thereof.
Appellants cite numerous cases to the effect that the giving or offering of a reward, money or thing of value by a candidate to an elector for the purpose of influencing his vote, disqualifies the candidate from holding office, and include therein the Iowa case of Carrothers v. Russell, 53 Iowa 346, 5 N.W. 499, 36 Am.Rep. 222. We are heartily in accord with the principle of law pronounced in each of those cases, but are not here confronted with a state of facts wherein said principle is applicable, and being convinced that appellees herein were not parties to the claimed bribery, it follows under the provisions of the statutory law of this state that they were not disqualified from holding the offices to which they were elected.
[3] The trial court rendered its decision on July 15, 1937, and on the same date appellants served and filed their notice of appeal. Thereafter, on the 31st day of August, 1937, appellants filed a motion for new trial; therein alleging that during the month of August 1937, the city council of Iowa City enacted an ordinance repealing the ordinance passed by the previous council providing for the establishment of a municipal light plant and distribution system in Iowa City; and likewise passed a resolution surrendering the grant of $413,000 from the PWA; and that on the 25th of August, 1937, the light and power company paid to their consumers the impounded funds. Therein they claimed that said facts constituted competent newly discovered evidence sufficient to warrant a new trial. The trial court overruled this motion for new trial, and appellants now contend that the overruling of said motion for new trial was erroneous. We find it unnecessary to determine whether or not these alleged facts occurring subsequent to the trial come within the rule announced in Guth v. Bell, 153 Iowa 511, 133 N.W. 883, 42 L.R.A. (N.S.), 692, Ann. Cas. 1913E, 142, to the effect that acts and declarations, subsequent to the trial, made by the successful party and inconsistent with his right to recover, may be shown as a ground for a new trial. Such facts must be material and have definite probative value, and we fail to see where these claimed facts would prove of value to appellants. Such action upon the part of the city council was simply the fulfillment and carrying out of the platform plank of the Citizens Non-Partisan party *Page 881
relative to municipal ownership. Finding as we do that the evidence fails to show that appellees were disqualified on account of having participated in the offer of a bribe, this subsequent action could not be held to establish that thereby they did participate in the offer of a bribe. Having reached the conclusion herein set out, it follows that the action of the trial court must be and the same is hereby affirmed.
In view of the conclusions that we have reached upon the merits of the case, it is unnecessary to pass upon the motion of the appellee R.J. Phelps to dismiss the appeal of appellant George E. Johnston. — Affirmed.
STIGER, C.J., and MITCHELL, SAGER, and DONEGAN, JJ., concur.
KINTZINGER and RICHARDS, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3212416/ | DISMISS; and Opinion Filed June 9, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00760-CV
HARTFORD ACCIDENT AND INDEMNITY CO., Appellant
V.
SEAGOVILLE PARTNERS, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-01975
MEMORANDUM OPINION
Before Justices Lang, Brown, and Schenck
Opinion by Justice Brown
After we granted appellant Hartford Accident and Indemnity Co. (“Hartford”) permission
to bring an interlocutory appeal of the trial court’s order denying its motion for summary
judgment, appellee Seagoville Partners (“Seagoville”) filed a motion to dismiss for want of
jurisdiction. For the following reasons, we withdraw our order granting Hartford permission to
appeal and dismiss this appeal for want of jurisdiction.
Background
In 2012, thieves removed the copper wiring from a shopping center unit in Seagoville,
Texas. At the time of the theft, Brookshire was subleasing that unit from Food Lion, Inc.
Brookshire had executed the sublease in 1997 and thereafter opened a grocery store on the
premises. But, in 2009, Brookshire closed that store. Brookshire nevertheless retained the
sublease and continued to perform its obligations thereunder.
Seagoville owns the shopping center and leased it to Food Lion. After the theft,
Seagoville made a claim for benefits under a business insurance policy it had purchased from
Hartford. That policy provided coverage for direct physical loss of or damages to covered
property, which included the shopping center building and any permanently attached fixtures,
equipment, and machinery. The policy contained a vacancy provision, which provided that
Hartford was not required to pay for damages or losses caused by theft or vandalism if the
building was vacant for more than sixty consecutive days prior to the loss. Under the terms of
that provision, the building was considered vacant unless at least thirty-one percent of the
building’s total square footage was (1) rented to a lessee or sub-lessee and used by the lessee or
sub-lessee to conduct its customary operations, and/or (2) used by the building owner to conduct
customary operations.
After investigating Seagoville’s claim, Hartford determined there was no coverage
because the grocery store unit itself constituted over thirty-one percent of the total square footage
of the shopping center and it had not been used by Seagoville, a lessee, or any sublessee to
conduct customary operations since Brookshire closed its store in 2009, well over sixty days
before the 2012 theft. Therefore, Hartford denied the claim.
Seagoville then sued Hartford for breach of contract asserting its claim was covered
under the policy. Seagoville also asserted Hartford’s reliance on the vacancy exclusion was
wrongful because, at the time of the loss, both it and Brookshire were using the unit to conduct
their customary operations.
Hartford filed a traditional and no-evidence motion for summary judgment. In its
traditional motion, Hartford asserted it did not breach the policy because the vacancy provision
precluded Seagoville’s claim. Hartford relied largely on its assertion that the facts Seagoville
relied on to show the building was not vacant failed as a matter of law. Hartford also asserted it
was entitled to summary judgment on no-evidence grounds. According to Hartford, it was
–2–
Seagoville’s burden to show the property was not vacant and, because Seagoville could not do
so, it was entitled to judgment as a matter of law.
Seagoville filed a response to the motion for summary judgment. First, Seagoville
asserted that Hartford’s no-evidence motion for summary judgment was improper on its face
because the vacancy provision was an exclusion on which Hartford had the burden of proof.
Seagoville also asserted Hartford was not entitled to summary judgment on traditional grounds.
According to Seagoville, the vacancy exclusion was ambiguous and it could be reasonably
construed to provide coverage. Specifically, Seagoville asserted (1) its customary operations
could reasonably be construed to include it using the unit to lease it to Food Lion and/or (2)
Brookshire’s customary operations could reasonably be construed to include Brookshire’s use of
the unit by maintaining its sublease, paying rent and utilities for the unit and using the unit for
storage. At a minimum, Seagoville asserted there was a genuine issue of material fact precluding
summary judgment.
The trial court denied Hartford’s motion for summary judgment, thus concluding it was
not entitled to summary judgment on either traditional or no-evidence grounds. Hartford
subsequently obtained the trial court’s permission to appeal that order under section 51.014(d) of
the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)
(West 2015). This Court then granted Hartford permission to appeal. However, upon further
review, we now conclude this appeal does not meet the requirements of section 51.014(d).
Applicable Law
It is well-settled that we have no jurisdiction to review an interlocutory order unless
authorized by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352-53 (Tex. 2001);
Rawlins v. Weaver, 317 S.W.3d 512, 514 (Tex. App.—Dallas 2010, no pet.). Section 51.014
provides “narrow exception[s] to the general rule that only final judgments and orders are
appealable” and we strictly construe its jurisdictional requirements. Bally Total Fitness Corp.,
53 S.W.3d at 355; State Fair of Texas v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 262-
–3–
63 (Tex. App.—Dallas 2009, no pet.). If the record fails to show the propriety of appellate
jurisdiction, we must dismiss the appeal. Rawlins, 317 S.W.3d at 514; Gulf Coast Asphalt Co.,
L.L.C. v. Lloyd, 457 S.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(withdrawing order granting permission to appeal and dismissing appeal for want of jurisdiction
because trial court’s order did not comply with section 51.014(d)).
Under section 51.014(d), a trial court may permit an appeal of an otherwise unappealable
order if: (1) the order involves a controlling question of law as to which there is a substantial
ground for difference of opinion, and (2) an immediate appeal may materially advance the
ultimate termination of the litigation. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). If a
trial court grants permission to appeal, the order to be appealed must show permission was
granted and identify the controlling question of law the trial court relied upon in determining the
appeal was authorized. See TEX. R. CIV. P. 168. The trial court may amend its order to meet
this requirement. Id.
Inherent within section 51.014(d)’s jurisdictional requirements is that the appeal involve
the trial court’s substantive ruling on the controlling question of law we are being asked to
resolve. Double Diamond Delaware, Inc. v. Walkinshaw, 05-13-00893-CV, 2013 WL 5538814,
at *2 (Tex. App.—Dallas Oct. 7, 2013, no pet.) (mem. op.); Bank of N.Y. Mellon v. Guzman, 390
S.W.3d 593, 597 n. 2 (Tex. App.—Dallas 2012, no pet). If there is nothing in the record to show
the trial court made a substantive ruling on a controlling question of law or if the appeal does not
involve our resolution of that question, we have no jurisdiction. See Guzman, 390 S.W.3d at
598; Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.—San Antonio 2011, no
pet.).
–4–
A trial court’s denial of a motion for summary judgment is not itself a substantive ruling
on a controlling question of law for purposes of rule 51.014(d). 1 See, e.g., Double Diamond
Delaware, 2013 WL 5538814, at *2; Gulley, 350 S.W.3d at 208. If the trial court denies a
motion for summary judgment based on the existence of fact issues or the movant’s failure to
meet its burden on summary judgment rather than a substantive ruling on a controlling legal
issue, we have no jurisdiction to review the trial court’s ruling under rule 51.014(d). See City of
San Antonio v. Tommy Harral Constr., Inc., 04-15-00286-CV, 2016 WL 327886, at *3 (Tex.
App.—San Antonio Jan. 27, 2016, no pet.) (trial court’s denial of motion for summary judgment
motion based on the existence of fact issues does not constitute substantive ruling on a
controlling legal issue); In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana
2014, no pet.) (article 51.014(d) does not permit an appeal from denial of a motion for summary
judgment that turns on a controlling fact issue, not a legal one); Diamond Prods. Intern. Inc. v.
Hammond, 142 S.W.3d 491, 494 (Tex. App.—Houston 2004, no pet.) (denial of summary
judgment not appealable if its resolution did not rest on controlling legal issue).
Analysis
Here, Hartford complied with the procedural requirements of section 51.014(d).
Specifically, after the trial court denied its motion for summary judgment, Hartford sought and
obtained the trial court’s permission to bring an interlocutory appeal and the trial court amended
its order to satisfy the requirements of rule 168 of the rules of civil procedure. See TEX. R. CIV.
1
As with all summary judgments, whether a summary judgment movant conclusively established its entitlement to summary judgment or
the non-movant raised a genuine issue of material fact is a legal question subject to de novo review. Hightower v. Baylor Univ. Med. Ctr., 251
S.W.3d 218, 221 (Tex. App.—Dallas 2008, pet. struck) (“[b]ecause summary judgment is a question of law, we review a trial court's summary
judgment decision de novo”). But that question is determined by the burdens established under the rules of civil procedure, not the substantive
law applicable to the case. In construing the “question of law” requirement of the federal permissive appeal statute, the Seventh Circuit observed:
Formally, an appeal from the grant or denial of summary judgment presents a question of law (namely whether
the opponent of the motion has raised a genuine issue of material fact), which if dispositive is controlling; and often
there is room for a difference of opinion. So it might seem that the statutory criteria for an immediate appeal would
be satisfied in every case in which summary judgment was denied on a nonobvious ground. But that cannot be
right. Section 1292(b) was not intended to make denials of summary judgment routinely appealable . . . . A denial
of summary judgment is a paradigmatic example of an interlocutory order that normally is not appealable.
Ahrenholz v. Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 676 (7th Cir. 2000); see also 28 U.S.C.A. § 1292(b); Gulf Coast Asphalt Co., 457
S.W.3d at 545 (federal courts interpretation of similar language in 28 U.S.C. § 1292(b) provide guidance in determining the controlling question
of law requirement in the Texas statute); Austin Commercial, L.P. v. Texas Tech Univ., 07-15-00296-CV, 2015 WL 4776521, at *1 (Tex. App.—
Amarillo Aug. 11, 2015, no pet.) (mem. op.) (same).
–5–
PRO. 168. In its amended order, the trial court stated that Hartford’s traditional and no-evidence
motion for summary judgment “is still denied, but therein, this matter involves the following
controlling questions of law as to which there is a substantial ground for difference of opinion: 2
(1) does a grocery store tenant’s continuing to pay rent, temporarily storing existing equipment,
and maintaining utilities constitute ‘customary operations’ as that term is used in the [v]acancy
[p]rovision . . . so as to make the property not vacant; and (2) does a property owner managing
and leasing space to tenants constitute ‘customary operations’ as that term is used in the
[v]acancy [p]rovision . . . so as to make the property not vacant.”
After the trial court amended its order, Hartford petitioned this Court for permission to
bring an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f) (when a trial
court has permitted an appeal from an interlocutory order that would not otherwise be
appealable, a party seeking to appeal must petition the court of appeals for permission to appeal).
In its petition, Hartford asserted it sought to appeal the trial court’s order denying its motion for
summary judgment on both traditional and no-evidence grounds and claimed the order involved
a matter of first impression concerning the interpretation of a property insurance policy’s
vacancy provision and, specifically, the interpretation of what constitutes customary operations
under that provision. “To that end,” Hartford asserted we would be asked to consider whether
the activities the trial court had identified in its order without more constituted their respective
customary operations.
After we granted Hartford permission to appeal and we reviewed Hartford’s brief on the
merits and the summary judgment record, at oral argument, we notified the parties we had
jurisdictional concerns. We specifically questioned whether the trial court had made a
substantive ruling on a controlling question of law. Hartford acknowledged that the record did
not show how the trial court had ruled on the “questions of law” identified in the order, but that
2
Due to the trial court’s phrasing, it is unclear whether it determined Hartford’s motion for summary judgment involved a controlling
question of law or that its order on that motion involved its ruling on a controlling question of law.
–6–
the trial court had identified the issues it felt needed to be addressed by this Court, specifically
whether the five activities identified in the order constituted “customary operations.”
Seagoville subsequently filed a motion to dismiss asserting this appeal did not involve the
trial court’s substantive ruling on a controlling question of law. Hartford filed a response
asserting its appeal met the requirements of rule 51.014(d) and that the trial court had made a
substantive ruling that each of the five activities identified in the order constituted customary
operations. Nevertheless, before we ruled on Seagoville’s motion to dismiss, Hartford obtained
an amended order from the trial court to show it denied its motion for summary judgment based
on its determination that certain of the activities identified in the order constituted customary
operations. In that order, the trial court restated the same controlling questions of law it had
identified in its prior order, but then further indicated which activities it had determined
constituted Seagoville’s and Brookshire’s respective customary operations and which did not.
Specifically, the trial court determined that (1) Brookshire’s payment of rent and maintaining of
utilities constituted its customary operations, but that its temporary storage of equipment did not,
and (2) Seagoville’s leasing of the property constituted its customary operations, but that its
management of the property did not. Hartford filed a supplemental response to the motion to
dismiss asserting the trial court’s second amended order cured any possible jurisdictional
concerns.
We conclude the trial court’s amended order only illustrates that the trial court’s denial of
Hartford’s motion for summary judgment did not involve a substantive ruling on a controlling
question of law. Instead, in the context of the issue before the trial court, the trial court’s
“rulings” necessarily related to whether Hartford met its burden to show the absence of a genuine
issue of material fact and/or whether Seagoville came forward with sufficient evidence to raise a
genuine issue of material fact. In any event, neither the trial court’s order nor the record reflects
the trial court made a substantive ruling with respect to the proper legal interpretation of the
vacancy provision or the phrase “customary operations” or, if it did so, that that ruling was
–7–
“controlling.” To the contrary, the trial court could have accepted Hartford’s position that the
vacancy provision was unambiguous, but nevertheless, giving the term “customary operations”
its ordinary meaning, denied its motion for summary judgment if it concluded the specified
3
activities raised a genuine issue of material fact.
Hartford’s brief on appeal further reflects the nature of the trial court’s ruling. Hartford
does not contend the trial court committed a legal error in interpreting the policy or the phrase
“customary operations,” which resulted the trial court’s erroneous denial of its motion for
summary judgment. Instead, Hartford asks this Court to determine whether, giving the phrase
“customary operations” its ordinary meaning, the activities the trial court identified in its order
constituted Seagoville’s and/or Brookshire’s customary operations. 4
We conclude the questions the trial court relied on in authorizing this appeal and the questions
presented for our review do not involve controlling questions of law with respect to the proper
interpretation of the policy or any other controlling question of law for which substantial grounds
for disagreement exists. See Gulley, 350 S.W.3d at 208. Therefore, we have no jurisdiction over
this appeal. We withdraw our order granting Hartford permission to appeal and dismiss the
appeal.
/Ada Brown/
ADA BROWN
JUSTICE
150760F.P05
3
On the other hand, if the trial court accepted Seagoville’s position that the policy was ambiguous and that there was coverage based on the
undisputed facts, the trial court’s denial of Hartford’s motion for summary judgment did not, and could not, constitute a ruling on that issue,
substantive or otherwise.
4
We note Hartford challenges only the trial court’s ruling on its traditional motion for summary judgment. In doing so, Hartford does not
contend the question of whether Seagoville or Brookshire were using the building to conduct customary operations is a question of law. At the
same time, however, Hartford does not contend it conclusively established either Seagoville or Brookshire were not using the building to conduct
customary operations. Nevertheless, Hartford asks us to make this determination as a matter of law because the underlying facts are not disputed.
Regardless of whether underlying facts are in dispute, in a traditional motion for summary judgment, the movant must show those underlying
undisputed facts conclusively establish or conclusively negate the ultimate fact at issue. See Upper Valley Aviation v. Mercantile Nat. Bank, 658
S.W.2d 952, 956 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) (fact issues exist when evidence of essential fact is inconclusive).
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HARTFORD ACCIDENT AND On Appeal from the 191st Judicial District
INDEMNITY CO., Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-14-01975.
No. 05-15-00760-CV V. Opinion delivered by Justice Brown. Justices
Lang and Schenck participating.
SEAGOVILLE PARTNERS, Appellee
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that appellee SEAGOVILLE PARTNERS recover its costs of this
appeal from appellant HARTFORD ACCIDENT AND INDEMNITY CO.
Judgment entered this 9th day of June, 2016.
–9– | 01-03-2023 | 06-13-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436036/ | The controversy is over the construction of Paragraph 7 of the will of Abraham Fletcher. This paragraph provided as follows:
"Seventh. I will to William H. Fletcher, my son, and Frederickey, his wife, during their natural lifetime and then totheir children after their death [description]."
This controversy is concentrated upon the two particular words "their children."
The testator was the father of William H. Fletcher, devisee. The will was made in 1885. Whether, at the time of the making of said will, there was already issue to the marriage of W.H. and Frederickey, does not appear from the record. It seems to be assumed in the briefs, however, that there were children of said marriage at that time. William H. Fletcher had also one child by a former marriage, Thomas A. Fletcher. The plaintiffs, appellees herein, are the widow and heirs of Thomas A. Fletcher. Ultimately there were ten children born to W.H. Fletcher, as the issue of the second marriage. The question presented is, do the words "their children" include the children of each, or only the children of both? The plaintiffs contend for the first; and the defendants for the latter. The ambiguity presented is latent,
rather than patent. That is to say, the words used are not necessarily ambiguous on the face of the instrument. They become ambiguous only by reason of extraneous facts. If William and Frederickey had had no other children than the issue of their marriage, there would be no ambiguity; nor would there be ambiguity if they had no children other than those by former marriages. Under either hypothesis, the words would of necessity apply to such children as they had. Manifestly, therefore, the words are capable of a construction in accord with either contention. Clearly, the pronoun "their" has for its antecedents, "William and Frederickey." The fact that they are husband and wife carries with it a ready implication that the children referred to are the fruit of the union. On the other hand, such is not a necessary implication, though it might be deemed an inviting one, were it not for other considerations *Page 137
to be stated. Appellants urge that a strictly grammatical construction favors their contention. If this be conceded, yet it appears from the context that the testator's use of this word was not strictly grammatical. In the three lines which we have quoted from Paragraph 7, this pronoun occurs three times: "their natural lifetime;" "their death;" "their children." Manifestly, "their natural lifetime" means the "natural life-time" of each of them; "their death," means the death of each of them; "their children" means the children of _____?
This is perhaps a sufficient indication of the nature of the ambiguity. It has arisen out of facts extraneous to the instrument, and such facts must be considered in its solution. Thomas Fletcher sustained the same relation to the testator as did the issue of the second marriage. There is a well recognized rule of construction of wills, which tends to solve ambiguities in accordance with the laws of descent and distribution. This rule is stated in 40 Cyc. 1412, as follows:
"Where any ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will."
The foregoing statement is fully sustained by authorities therein collated, and we shall not enlarge upon it. The same rule is recognized in Cope v. Cope, 45 O. St. 464, 470, as follows:
"Though the privilege of making a will is one highly respected by the law, yet, as the law itself makes a just and equitable disposition of the property of an intestate among the natural objects of his bounty, it should prevail over the provisions of any attempted disposition that are so obscure that the general scheme and purpose of the testator cannot be ascertained with any reasonable certainty."
We recognized the rule in Marvick v. Donhowe, 191 Iowa 214. We said:
"The law favors such a construction of a will as most nearly conforms to the statutory rule of descent and distribution."
"The devolution of title to the property of a person dying, cast by the statute of descent and distribution upon his heir or *Page 138
next of kin, makes it indispensable, if a testator wish to disinherit him, not only to express his intention to that effect, but to vest the title, by plain words of gift, or necessary implication, in some other person." 3 Woerner on American Law of Administration (3d Ed.) 1384, Section 418.
The ambiguity arising in the application of this will to the object of the testator's bounty, calls for the application of this rule. We think the presumption arising under this rule is strongly fortified by the context provisions of the will, and by the circumstances surrounding the testator.
Thomas Fletcher sustained a closer relation to the testator than did any other of the children of William H. Fletcher. When his mother died, he entered the home of his grandfather, the testator, and there remained until his father remarried. He had at all times lived in the near neighborhood of his grandfather, and for a time after his marriage lived in the same house with his grandfather. Paragraph 7 was the only provision of the will made for the benefit of the children of William H. Fletcher. If Thomas was not included as a beneficiary of this paragraph, then he was wholly overlooked by the testator.
It further appears from the provisions of the will that, at the time of its making, three of the testator's children had died, leaving issue. These were John, David, and Eleanor. Paragraphs 2, 3, and 4 of the will make special provision for the issue of such deceased children. The provisions of the will indicate the purpose of the testator to distribute his property equitably among his heirs. The ninth paragraph provides that any residue "be equally divided among my heirs." Appellants argue plausibly that the construction of the will which is contended for by appellees would be the equivalent of saying that children of Frederickey by former marriage, if any, would have been included within the intention of the testator. This argument overlooks the fact that the rule of presumption in accordance with the laws of descent would not operate in favor of the children of Frederickey by a former marriage. This is the rule upon which we predicate decision herein.
Such was the holding of the trial court, and its decree is, accordingly, affirmed. — Affirmed.
FAVILLE, C.J., and ARTHUR and ALBERT, JJ., concur. *Page 139 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4043992/ | MANDATE
The Fourteenth Court of Appeals
NO. 14-13-00623-CV
Yigal Bosch, Appellant Appealed from the 281st District Court
of Harris County. (Trial Court No.
v. 2012-13519). Memorandum Opinion
delivered by Justice Boyce. Justices
3 Park’s Enterprises, LLC d/b/a LAH
Cleaners, Appellee Busby and Wise also participating.
TO THE 281ST DISTRICT COURT OF HARRIS COUNTY, GREETINGS:
Before our Court of Appeals on July 29, 2014, the cause upon appeal to
revise or reverse your judgment was determined. Our Court of Appeals made its
order in these words:
This cause, an appeal from the judgment in favor of appellee, 3 Park’s
Enterprises, LLC d/b/a LAH Cleaners, signed May 17, 2013, was heard on the
transcript of the record. We have inspected the record and find no error in the
judgment. We order the judgment of the court below AFFIRMED.
We order appellant, Yigal Bosch, to pay all costs incurred in this appeal.
We further order this decision certified below for observance.
WHEREFORE, WE COMMAND YOU to observe the order of our said
Court in this behalf and in all things have it duly recognized, obeyed, and executed.
WITNESS, the Hon. Kem Thompson Frost, Chief Justice of our Fourteenth
Court of Appeals, with the Seal thereof affixed, at the City of Houston, January 29,
2015. | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4043995/ | FILE COPY
Court of Appeals
Twelfth Court of Appeals District at Tyler
BILL OF COSTS
Court of Appeals No. 12-14-00350-CV
Trial Court No. 87-12099
Anthony Gozdowski
Vs.
T.D.C.J.-I.D., Larry Berger, Mark Sandlin, Michael Odom and Preston
Maxwell
DOCUMENTS FILED AMOUNT FEE PAID BY
Required Texas.gov efiling fee $20.00 Indigent
Filing $100.00 Indigent
Supreme Court chapter 51 fee $50.00 Indigent
Indigent $25.00 Indigent
�
TOTAL: $195.00
I, Cathy S. Lusk, Clerk of the Court of Appeals, Twelfth Court of Appeals District at Tyler,
Texas, certify that the above copy of the Bill of Costs is true and correct. GIVEN UNDER MY
HAND AND SEAL OF SAID COURT, at Tyler, this 7th day of April 2015, A.D.
CATHY LUSK, CLERK
By:_____________________________
Katrina McClenny, Chief Deputy Clerk | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211699/ | United States Court of Appeals
For the First Circuit
No. 15-1351
MOUNT VERNON FIRE INSURANCE COMPANY,
Plaintiff, Appellee,
v.
VISIONAID, INC. f/k/a H.L. Boulton Co. Inc.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,*
and Barron, Circuit Judge.
Kenneth R. Berman, with whom Heather B. Repicky and Nutter,
McClennen & Fish LLP were on brief, for appellant.
James J. Duane III, with whom Scarlett M. Rajbanshi and
Peabody & Arnold LLP were on brief, for appellee.
June 9, 2016
* The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
THOMPSON, Circuit Judge. This dispute between an insurance
company and its insured has potentially wide-reaching implications
for how liability insurers must conduct themselves in the
Commonwealth of Massachusetts. The controversy here revolves
around whether an insurer may be required to, as part of its
defense of a claim against its insured, provide and pay for counsel
to prosecute its insured's counterclaim against the claimant.
In this case, the insured, VisionAid, Inc. ("VisionAid"), is
a defendant in a state court suit filed by a former employee, Gary
Sullivan, who alleges that his termination was the product of
illegal age discrimination. VisionAid's defense includes, among
other bases, a claim that it terminated Sullivan not because of
his age, but because it discovered that he had misappropriated
several hundred thousand dollars of corporate funds. But VisionAid
does not want to simply rely on this as a defense. It wants to
sue Sullivan for misappropriation in an attempt to recover those
funds. Importantly for our purposes, it wants its insurer, Mount
Vernon Fire Insurance Company ("Mt. Vernon"), who is covering the
defense against the age-discrimination claim, to also cover the
prosecution of the misappropriation claim. Whether or not Mt.
Vernon has to do this is the crux of this case.
To resolve this issue, we have to look to Massachusetts law,
which governs in this diversity action. When we do that, it
becomes clear that the dispositive state law questions here have
- 2 -
not been resolved by the Massachusetts Supreme Judicial Court
("SJC"). As a result, we respectfully certify the questions for
resolution by the SJC. See Mass. S.J.C. Rule 1:03.1
I.
Although the facts in the underlying dispute are contested,
the ones bearing on the issues before us today are not. We'll
give a rundown to put the legal issues into perspective.
VisionAid is a Massachusetts-based company, which
manufactures and distributes (among other things) lens cleaning
and eye safety products. At the times that matter to us, VisionAid
was insured, under an "employment practices" liability policy (the
"Policy"), by Mt. Vernon.
In October 2011, VisionAid fired Sullivan, its then-Vice
President of Operations. About a year later, Sullivan brought
VisionAid before the Massachusetts Commission Against
Discrimination ("MCAD"), alleging that VisionAid's termination of
him was based on his age and, therefore, illegal. VisionAid told
Mt. Vernon about the MCAD claim, and Mt. Vernon appointed counsel
to defend VisionAid in that forum. Counsel sought to defend the
1 Neither party requested that we certify questions to the
SJC; VisionAid did ask the district court to do so but the court
denied the motion. The parties were, however, advised that this
court was inclined to seek certification on its own initiative, as
it is permitted to do, and, at our request, they provided proposed
certification questions. See Mass. S.J.C. Rule 1:03 § 2 (providing
that this court may invoke this rule upon its own motion).
- 3 -
claim by arguing that VisionAid fired Sullivan because of
legitimate non-discriminatory reasons, namely his sub-par
performance and misappropriation of company funds.
Settlement negotiations proved fruitless. Sullivan, who had
started with a demand of $400,000, repeatedly reduced this number
(bottoming out at $5,000) before he eventually told VisionAid's
appointed counsel that he would walk away with no money at all if
VisionAid would agree to sign a mutual release. VisionAid was
unwilling to do this as it still wanted to go after Sullivan for
the allegedly stolen money and, as such, it did not consent to the
settlement. Sullivan voluntarily dismissed his MCAD complaint in
February 2013.
A few months later, Sullivan filed an age discrimination
complaint (which asserted several additional causes of action)
against VisionAid in Massachusetts state court. Mt. Vernon
indicated that it would continue to defend VisionAid in the state
court action subject to a reservation of rights.2 The "reservation
of rights letter" indicated that counsel appointed in connection
with the MCAD proceedings would continue to represent VisionAid in
2
Mt. Vernon advised VisionAid that, in its opinion, Counts I
through III of Sullivan's complaint (styled as claims for unlawful
termination in violation of the covenant of good faith and fair
dealing, breach of contract, and promissory estoppel) were not
covered by the Policy. Mt. Vernon did admit, though, that Count
IV's allegations of unlawful age discrimination set forth a claim
that was covered.
- 4 -
the state court action "unless and until such time that it is
determined that there is no coverage under this policy" and that
VisionAid had the right to accept or reject this defense.
VisionAid reacted. It asserted that it did not accept Mt.
Vernon's reservation of rights and that it would exercise its right
to choose its own attorney. Mt. Vernon responded via letter. It
withdrew its reservation of rights and, because of this, indicated
that appointed counsel would remain VisionAid's defense counsel.
The letter also stated that while Mt. Vernon was aware that
VisionAid wished to pursue a counterclaim against Sullivan, Mt.
Vernon's position was that the Policy was strictly a defense-
liability policy and that it was not required pursuant to the
Policy to pay for the prosecution of counterclaims or affirmative
actions. Mt. Vernon told VisionAid to hire (and pay for) its own
lawyer if it wished to pursue the counterclaim.
Mt. Vernon then filed the underlying suit for a declaratory
judgment seeking to have the district court decide whether it was
required to pay for the prosecution of VisionAid's proposed state-
court misappropriation counterclaim.3 VisionAid answered and
3 The parties to the state court action agreed to stay the
action while the coverage issues were worked out. But faced with
statute of limitations issues, VisionAid went ahead and answered
Sullivan's complaint and filed the counterclaim. The answer was
drafted and signed by appointed panel counsel retained by Mt.
Vernon. Mt Vernon's panel counsel, however, refused to draft or
sign the counterclaim. VisionAid had its independent counsel do
this.
- 5 -
counterclaimed. It sought a declaration that Mt. Vernon's duty to
defend against Sullivan's lawsuit included the duty to prosecute
the misappropriation counterclaim and, on top of that, that
VisionAid had the right to be represented by independent counsel
for the entire Sullivan action at Mt. Vernon's expense. On the
latter point, VisionAid's theory was that it and Mt. Vernon's
interests were no longer aligned. VisionAid suggested that Mt.
Vernon had an interest in diminishing the value of the counterclaim
or eliminating it since the counterclaim had become an impediment
to settlement with Sullivan refusing to walk away absent a mutual
release.
The parties cross-moved for summary judgment. The district
court granted Mt. Vernon's motion, denied VisionAid's, and entered
judgment in Mt. Vernon's favor. In short, it found that according
to the plain language of the Policy, Mt. Vernon was not required
to fund an affirmative counterclaim and that this result did not
run afoul of any Massachusetts rules of law or create any conflict
of interest. VisionAid filed this appeal. Before getting into
its position, we start with the Policy.
II.
In pertinent part, the Policy states that it "covers only
those Claims first made against the Insured during the Policy
Period." The Policy goes on to state that Mt. Vernon agrees that
it "will pay on behalf of [VisionAid], . . . Loss for which this
- 6 -
coverage applies that [VisionAid] shall become legally obligated
to pay because of Claims first made against [VisionAid]." That
section also says that Mt. Vernon "has the right and duty to defend
any Claim to which this insurance applies." "Claim" is defined as
"any written notice received by [VisionAid] that any person or
entity intends to hold [VisionAid] responsible for a Wrongful Act,"
or "any proceeding initiated against [VisionAid], . . . seeking to
hold [VisionAid] responsible for a Wrongful Act." "Wrongful Act"
is defined as "any actual or alleged act of" discrimination,
harassment, retaliation, etc., "committed or allegedly committed
by [VisionAid]."
The Policy also says that "Defense Costs shall be applied
against the Retention." "Defense Costs" is defined as the
"reasonable and necessary legal fees and expenses incurred by the
[Mt. Vernon], or by any attorney designated by [Mt. Vernon] to
defend [VisionAid], resulting from the investigation, adjustment,
defense and appeal of a Claim."
III.
VisionAid contends that the district court got it wrong. It
argues that the Policy language establishes that its counterclaim
against Sullivan is covered. According to VisionAid, while the
Policy provides that "Defense Costs" include the "fees and expenses
incurred by [Mt. Vernon] . . . to defend [VisionAid]," the Policy
does not elaborate on what is included in such a defense. One
- 7 -
reasonable interpretation, VisionAid suggests, is that it includes
"all work a defense lawyer would typically do in the defense of a
client, including prosecuting counterclaims that would defeat
liability or diminish damages." Since "defense" is thus
susceptible to more than one reasonable interpretation, VisionAid
argues, the Policy is ambiguous and under Massachusetts law an
ambiguous insurance agreement is to be interpreted in the light
more favorable to the insured.
VisionAid also argues that under Massachusetts's "in for one,
in for all" or "complete defense" rule, Mount Vernon's duty to
defend includes prosecuting the counterclaim. Under that rule,
"an insurer must defend the entire lawsuit if it has a duty to
defend any of the underlying counts in the complaint." Liberty
Mut. Ins. Co. v. Metro. Life Ins. Co., 260 F.3d 54, 63 (1st Cir.
2001) (emphasis added); see GMAC Mortg., LLC v. First Am. Tit.
Ins. Co., 985 N.E.2d 823, 827-28 (Mass. 2013) (providing a more
detailed description of the rule).
On top of all this, VisionAid persists that it and Mt. Vernon
have conflicting interests because the counterclaim is impeding it
from reaching an accord with Sullivan since he is unwilling to
settle without a mutual release. According to VisionAid, the only
workable solution, and indeed the one Massachusetts law dictates,
is that it be allowed to select its own attorney (whose fees shall
be paid by Mt. Vernon).
- 8 -
Mt. Vernon disagrees on all points. It argues that the Policy
language clearly states that it only provides coverage for claims
brought against VisionAid and for support it points to the first
paragraph of the Policy, which states: "This Policy covers only
those Claims first made against [VisionAid] during the Policy
Period." It also suggests that the term "Defense Costs," despite
what VisionAid says, is not ambiguous and is specifically limited
to expenses resulting from the defense of a claim as defined by
the Policy.
As for Massachusetts's "in for one, in for all" rule, Mt.
Vernon theorizes that it does not include a duty to prosecute
VisionAid's counterclaim because the rule is limited to the defense
of covered and uncovered claims asserted against an insured. It
avers that the only time an insurer may be required to prosecute
a counterclaim on behalf of an insured is "when that counterclaim
will be asserted for the purpose of defeating or offsetting
liability as to the claims that trigger coverage under the policy."
And VisionAid's counterclaim, Mt. Vernon argues, is largely
unrelated to the defense of the age discrimination claim, seeks to
obtain money for VisionAid's sole benefit, and will not serve to
defeat or offset liability as to Sullivan's claims.
Finally, Mt. Vernon insists that there is no conflict of
interest between its appointed defense counsel and VisionAid such
that it should be called on to pay for VisionAid's personal
- 9 -
counsel. It claims that settled Massachusetts law says that an
insured is entitled to have its personal counsel handle the defense
of a claim only when an insurer is defending under a reservation
of rights, which Mt. Vernon no longer is. Mt. Vernon also disputes
the proposition that it and VisionAid's interests don't square.
It characterizes VisionAid's assertion that Mt. Vernon has an
interest in devaluing the counterclaim as counter-intuitive
because Sullivan would have little incentive to settle if the
counterclaim was weak, and, Mt. Vernon adds, there is no record
evidence to suggest that Mt. Vernon has ever sought to so weaken
the counterclaim.
With that back-drop in place, we proceed to the issues in
play.
IV.
This case requires us to consider first whether Mt. Vernon
(through appointed counsel) owes a duty to VisionAid to prosecute
its counterclaim for damages, whether in accordance with the
Massachusetts "in for one, in for all" rule or pursuant to the
Policy, which provides that the insurer has a "duty to defend any
Claim" — i.e., "any proceeding initiated against [the insured]."
Second, we must consider whether Mt. Vernon (again via
appointed counsel) owes a duty to fund the prosecution of the
counterclaim for damages, where the Policy requires the insurer to
cover "Defense Costs," or the "reasonable and necessary legal fees
- 10 -
and expenses incurred by [the insurer], or by any attorney
designated by [the insurer] to defend [the insured], resulting
from the . . . defense . . . of a Claim."
Third, assuming the existence of a duty to prosecute the
counterclaim, in the event it is determined that Mt. Vernon has an
interest in devaluing or otherwise impairing the counterclaim,
does a conflict of interest arise that entitles VisionAid to select
independent counsel to handle both the defense of any covered
claims and the prosecution of the subject counterclaim?
"The SJC permits a federal court to certify questions of state
law that are 'determinative of the cause then pending in the
certifying court' but for which there is no controlling precedent
by the SJC." In re Pereira, 791 F.3d 180, 183 (1st Cir. 2015)
(quoting Easthampton Sav. Bank v. City of Springfield, 736 F.3d
46, 50 (1st Cir. 2013)). That is precisely the position we find
ourselves in. The questions posed above are of course
determinative -- their outcome is the very reason the parties are
seeking a declaratory judgement -- and they present questions of
first impression in Massachusetts. Massachusetts courts have not
weighed in on whether an insurer's duty to defend can include
affirmative claims by the insured, and what the scope of that duty
might be.
While we could attempt to "make an informed prophecy as to
the state court's likely stance," Andrew Robinson Int'l, Inc. v.
- 11 -
Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008), the
factors at play counsel against this. See Easthampton Sav. Bank,
736 F.3d at 52-53 (setting out some additional factors to consider
when deciding to certify). The outcome of this case could affect
scores of insurance contracts in Massachusetts, insurance is an
area of traditional state regulation, and the policy arguments
here do not clearly favor one side or the other. Certification is
the most prudent course.
V.
For the above reasons, we certify the following questions of
Massachusetts law to the SJC:
(1) Whether, and under what circumstances, an insurer
(through its appointed panel counsel) may owe a duty to its insured
-- whether under the insurance contract or the Massachusetts "in
for one, in for all" rule -- to prosecute the insured's
counterclaim(s) for damages, where the insurance contract provides
that the insurer has a "duty to defend any Claim," i.e., "any
proceeding initiated against [the insured]"?
(2) Whether, and under what circumstances, an insurer
(through its appointed panel counsel) may owe a duty to its insured
to fund the prosecution of the insured's counterclaim(s) for
damages, where the insurance contract requires the insurer to cover
"Defense Costs," or the "reasonable and necessary legal fees and
expenses incurred by [the insurer], or by any attorney designated
- 12 -
by [the insurer] to defend [the insured], resulting from the
investigation, adjustment, defense, and appeal of a Claim"?
(3) Assuming the existence of a duty to prosecute the
insured's counterclaim(s), in the event it is determined that an
insurer has an interest in devaluing or otherwise impairing such
counterclaim(s), does a conflict of interest arise that entitles
the insured to control and/or appoint independent counsel to
control the entire proceeding, including both the defense of any
covered claims and the prosecution of the subject counterclaim(s)?
The Clerk of this court is directed to forward to the SJC a
copy of the certified questions and our opinion in this case, along
with copies of the parties' briefs and appendices. We retain
jurisdiction over this appeal pending resolution of the certified
questions.
So ordered.
- 13 - | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4261062/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RICHARD DON CUTHBERTSON, )
)
Appellant, )
)
v. ) Case No. 2D17-4414
)
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 Pinellas County; Joseph A. Bulone,
Judge.
PER CURIAM.
Affirmed. See §§ 775.084(1)(d)(1)(a), 776.08, Fla. Stat. (2014); Johnson
v. State, 60 So. 3d 1045 (Fla. 2011); Young v. State, 739 So. 2d 553 (Fla. 1999); Zink v.
State, 951 So. 2d 34 (Fla. 2d DCA 2007); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA
2005); Greenlee v. State, 591 So. 2d 310 (Fla. 2d DCA 1991); Curi v. State, 36 So. 3d
853 (Fla. 3d DCA 2010); Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009); Cala v.
State, 854 So. 2d 840 (Fla. 3d DCA 2003).
MORRIS, SLEET, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4261150/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 04 2018, 10:09 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Lakesha L. Norington Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lakesha L. Norington, April 4, 2018
Appellant-Plaintiff, Court of Appeals Case No.
33A04-1709-MI-2290
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Defendant Judge
Trial Court Cause No.
33C02-1704-MI-36
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 33A04-1709-MI-2290 | April 4, 2018 Page 1 of 4
[1] Lakesha Norington appeals pro se from the trial court’s order dismissing her
petition for writ of mandamus due to her failure to pay a partial filing fee of
$1.67, as calculated by the trial court pursuant to Ind. Code § 33-37-3-3. On
appeal, Norington argues that the trial court’s dismissal was improper.
[2] We affirm.
Facts & Procedural History1
[3] Norington is an inmate at the New Castle Correctional Facility. In April 2017,
Norington sought to file a pro se petition for writ of mandamus in the Henry
Circuit Court.2 To that end, she filed a pro se appearance and a motion for
waiver of court filing fees. On May 1, 2017, the trial court ordered Norington
to file a certification of offender trust account as required by I.C. § 33-37-3-3
within forty-five days or have the case dismissed. Norington filed the
certification of offender trust account as ordered on May 22, 2017. On June 6,
2017, the trial court issued an order finding that Norington was required to pay
a partial filing fee of $1.67 within forty-five days. Norington did not pay the
partial filing fee as ordered or seek an extension of time within which to do so,
1
Norington has not provided us with an appellant’s appendix. Accordingly, we have relied upon the
appellee’s appendix provided by the State and we have taken judicial notice of Norington’s filings not
furnished by the State. See Ind. Evidence Rule 201(a) (providing that judicial notice may be taken of the
“records of a court of this state”); Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012) (explaining that
judicial notice may be taken at any stage of the proceedings, including on appeal), trans. denied.
2
In the petition, Norington sought to enjoin the Department of Correction and its employees from engaging
in allegedly discriminatory behavior.
Court of Appeals of Indiana | Memorandum Decision 33A04-1709-MI-2290 | April 4, 2018 Page 2 of 4
and the trial court dismissed her case on August 23, 2017. Norington now
appeals.3
Discussion & Decision
[4] On appeal, Norington claims that she was unable to pay the $1.67 filing fee and
that the dismissal of her civil case based on her failure to do so violates
numerous statutory and constitutional provisions, as well as at least one
international treaty. The flaws in her arguments are too numerous to discuss in
detail; it suffices for our purposes to say that the authority she cites is
inapplicable4 and the arguments she makes are misinformed and based on the
unproven premise that she is unable to pay the partial filing fee.
[5] Pursuant to I.C. § 33-37-3-3(a), an offender confined by the Department of
Correction who commences an action or proceeding without paying fees or
court costs must provide a certified copy of his or her prisoner trust account
statement for the six months immediately preceding the submission of the
complaint or petition. I.C. § 33-37-3-3(b) provides that
The offender shall pay a partial filing fee that is twenty percent
(20%) of the greater of:
3
This court granted Norington’s motion to proceed in forma pauperis on appeal on October 13, 2017.
4
The same can be said of Norington’s “Request for Judicial Notice”, filed on February 12, 2018, in which
she asks this court to take judicial notice of Indiana’s Administrative Orders and Procedures Act.
Court of Appeals of Indiana | Memorandum Decision 33A04-1709-MI-2290 | April 4, 2018 Page 3 of 4
(1) the average monthly deposits to the offender’s account;
or
(2) the average monthly balance in the offender’s account;
for the six (6) months immediately preceding the filing of the
complaint or petition.
[6] Norington’s trust account statement showed that her average monthly balance
was zero, but her average monthly deposits were $8.34. Consequently,
Norington was required by statute to pay a partial filing fee of $1.67 as ordered
by the trial court. I.C. § 33-37-3-3(c) allows an offender who is unable to pay
the partial filing fee to seek relief from the requirement by filing an affidavit of
special circumstances, but Norington failed to do so.5 Norington has not
established that the trial court’s dismissal due to her failure to pay the partial
filing fee was in any way improper.
[7] Judgment affirmed.
[8] Najam, J. and Robb, J., concur.
5
On November 11, 2017, Norington filed a motion to correct error in the trial court in which she claimed
that she was unable to pay the partial filing fee because all of the funds deposited into her trust account are
automatically deducted to pay a restitution award totaling $2000. The motion was clearly untimely, and
because Norington had already initiated this appeal and the notice of completion of clerk’s record had been
issued on October 19, 2017, the trial court did not rule on the motion. See Ind. Trial Rule 59(C) (providing
that a motion to correct error shall be filed not later than thirty days after the entry of a final judgment); Ind.
Appellate Rule 8 (providing that “[t]he Court on Appeal acquires jurisdiction on the date the Notice of
Completion of Clerk’s Record is noted in the Chronological Case Summary”).
Court of Appeals of Indiana | Memorandum Decision 33A04-1709-MI-2290 | April 4, 2018 Page 4 of 4 | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1782852/ | 466 S.W.2d 272 (1971)
Lloyd L. HAYS et ux., Appellants,
v.
Ottis WATSON et ux., Appellees.
No. 5-5557.
Supreme Court of Arkansas.
May 3, 1971.
*273 Niblock & Hipp, Fayetteville, for appellants.
Charles W. Atkinson, Fayetteville, for appellees.
JONES, Justice.
This appeal originates from a suit in the Washington County Chancery Court brought by the appellees Ottis Watson and his wife against the appellants, Lloyd L. Hays and his wife to enforce restrictive covenants contained in a bill of assurance, and for an injunction against the use of a septic tank sewage disposal system installed by Hays on lots purchased from Watson. The chancellor granted the relief prayed and we agree with the chancellor.
The facts are briefly these: In 1960 Ottis Watson and his wife, Helen, subdivided some land they owned in Washington County and platted it into 105 residential building lots dedicated to the public as Bird Haven Terrace Addition to the City of Fayetteville. On June 23, 1960, they filed for record a bill of assurance for Bird Haven Terrace Addition, the pertinent provisions of which, as applied to the case at bar, are as follows:
"2. No lot shall be used except for residential purposes, no building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.
7. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance nuisance to the neighborhood.
11. No lot shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition.
12. No individual sewage-disposal system shall be permitted on any lot unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of State Approval of such system as installed shall be obtained from such authority.
14. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded for successive periods of 10 years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
*274 15. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenants either to restrain, violation or to recover damages."
The above provisions are obviously deficient in punctuation and sentence structure but their meaning, as relates to this case, is clear.
Block "F" of Bird Haven Terrace Addition consists of 14 lots consecutively numbered from south to north along the east boundary line of the Addition. Lloyd L. Hays and his wife, Joan, own land immediately east of Bird Haven Terrace Addition and their west boundary line coincides with the east boundary line of Block "F" in Bird Haven Terrace Addition. Mr. and Mrs. Hays maintain a trailer park on their property and as of the date of trial, they had 52 trailers in the park. About June 3, 1969, Mr. and Mrs. Hays purchased from Mr. and Mrs. Watson, through a Mrs. Elizabeth Beaty, Lots 3 and 4 in Block "F" of Bird Haven Terrace Addition. Prior to the purchase of the lots Hays had plans and specifications prepared for a septic tank sewage disposal system designed for the lots and to accommodate or service 45 of his trailer spaces. Immediately following the purchase of the lots, Mr. and Mrs. Hays started construction of their sewage disposal plant thereon, resulting in the decree as already stated and as hereafter more specifically set out. Mr. and Mrs. Hays have designated the following points on which they rely for reversal:
"That the appellees did not sustain their burden of proof in presenting clear, cogent, and decisive evidence as to the alleged violation of the covenants in the bill of assurance.
It was error for the court to overrule the appellants' demurrer to the evidence.
That the appellees did not present clear, cogent and decisive evidence of any irrepairable damage.
That the court did not give sufficient weight to the appellants' compliance with all State and local building requirements for a sewage disposal system."
None of the testimony is abstracted in this case, nor is the bill of assurance abstracted. It is rather difficult for any one of the seven members of this court to whom has been assigned the transcript along with a set of briefs, to circulate the transcript among the other six members of the court for a determination of whether the appellee has sustained his burden of proof by the evidence, or whether the court erred in overruling a demurrer to the evidence, or whether evidence is clear as to damage, or for any other purpose necessary to a clear understanding of the case. It is even more difficult and time consuming for the six members of the court to whom the case has not been assigned, to review the evidence from a single, and in many instances, a voluminous record. See Hurley v. Owens, 238 Ark. 874, 385 S.W.2d 636.
In the case at bar, however, the excellent memorandum opinion with which the chancellor has favored us enables us to avoid the unpleasant duty of applying our Rule 9(d). As a matter of fact, we have thoroughly examined the chancellor's opinion and his application of the law to the evidence recited, so nearly coincides with our own opinion, that we adopt it as the opinion of this court.
Before quoting the chancellor's opinion, however, we emphasize that this was originally an action for the enforcement of restrictive covenants in a bill of assurance and was not, as might be interpreted from the appellants' argument, a suit to enjoin or restrain the creation of a prospective nuisance. After stating some of the facts as above set out, the chancellor continues:
"Hays commenced preparations for construction of his sewage disposal system in April, 1969, before he acquired title to lots 3 and 4 (Stp. Ex. #8), and by June 9, 1969, or shortly thereafter construction had commenced. *275 At some time, not certainly fixed by Watson, he observed excavation on lots 3 and 4, and upon inquiry of Hays, learned its purpose, and upon voicing his objections, was told by Hays that the latter had authority from the city, and Hays may have told him he had authority from the state, as well. It is not shown that plaintiff had any knowledge of the projected construction before he saw the excavation. This suit for injunction was filed on August 26, 1969, at which time, according to Hays, the total job was about 2/3 completed, and was completed about two months later.
At the time construction commenced in June, 1969, plaintiff still owned 94 of the original 108 lots. Prior thereto, all of the unsold lots were listed for sale at $850.00 per lot, with The Stanton Company, a licensed real estate brokerage business in Fayetteville. No lots have been sold since construction started; The Stanton Company, by letter to Watson, October 16, 1969, (Plf. Ex. 1) advised that persons theretofore prospectively interested in buying all of Bird Haven Terrace were no longer interested, in view of completion of the sewer system on lots 3 and 4. Plaintiff, on his own account, has made no lot sales when the fact of the sewer system was discovered by prospects. It is shown that one residence was under construction on a lot diagonally across the street from lots 3 and 4, after the sewer system construction was commenced, but the only evidence in the record (Watson's) is that this lot was sold before Hays started his construction.
There is no evidence that the sewer system has thus far caused any noxious or offensive odors, no manifestation of surface percolation of sewage effluent, nor that the surface of lots 3 and 4 presents other than a generally grassy and green appearance. Evidence by the city plumbing inspector indicates that the field was properly laid out and should function properly.
Watson contends in essence, that Hays' actions are a clear violation of the covenants in the Bill of Assurances; that the existence of the sewer system has inhibited his sale of lots, and that he is entitled to protection and enforcement of the Bill of Assurances.
Hays contends that no nuisance condition has in fact been created or made manifest, no damage has been suffered by Watson; and that it would be inequitable to enforce the covenants against him under these harmless conditions, and after he has expended substantial sums in construction.
The general rule governing the interpretation, application and enforcement of restrictive convenants of the kind here considered is that the intention of the parties as shown by the covenant governs. 20 Am. Jur.2d 755, `Covenants, Conditions, etc.,' Sec. 186. The rule of strict construction against limitations on use is likewise basic; but this rule is itself limited by the basic doctrine of taking the plain meaning of language employed.
The latest reported Arkansas case squarely in point is Casebeer v. Beacon Realty, [Inc.], 248 Ark. 22, where, after stating the strict construction rule, it is said, at page 26 [449 S.W.2d 701]:
`This doctrine was recognized by this court in Faust v. Little Rock School Dist., 224 Ark. 761, 276 S.W.2d 59, wherein we said that where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint would be decreed. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction.'
This latter language is consonant with general authority, as stated in Am.Jur.2d (supra) Sec. 187:
`* * * but such strict rule of construction shall not be applied in such a way as to *276 defeat the plain and obvious purpose of the restriction.'
The plain purpose of the restrictions in this case, particularly set out in item 2 of the Bill of Assurances, above quoted, is to limit the use of each lot in Bird Haven Terrace to single family, residential purposes. Item 12 of the Bill of Assurances prohibits an `individual sewage disposal system' on any lot unless it meets with `State approval.'
These two items must be read together, and can mean nothing other than that a single family residence on each lot (no more permitted) can have only a single disposal system. * * * The covenants mean, quite clearly, one dwelling house, one septic tank sewage disposal system.
The conclusion is inescapable that the construction of numerous septic tank sewage disposal systems on and under lots 3 and 4, even without dwelling houses, is a plain violation of the plain, unambiguous restrictions of the covenants. It is equally plain that the purpose of the restriction is to prevent such multiple systems, as a matter of general assurance and protection to all lot owners in the addition, whether a demonstrable nuisance condition exists or not.
On the question of damages to Watson, as a requisite to injunctive relief, it is true that the loss of lot sales by Watson is only speculative. But the general rule does not require a showing of damages. Again referring to Am.Jur.2d (supra) Sec. 330:
`As a general rule, it is not necessary to show damages in order to obtain equitable relief against violations of a restrictive covenant.'
The fact remains that no lots have been sold, and the only evidence of record as to why is the existence of the large sewage disposal field. Defendant Hays' cited case of Ryall v. Waterworks [Improvement Dist.], 247 Ark. 431 [445 S.W.2d 883], is not in point. That case dealt with attempted injunction against a prospective nuisance, not the enjoining of violation of a restrictive covenant.
On the related point of Watson's right to have mandatory cessation and/or removal of Hays' sewage disposal network, as against Hays' money investment, the text writer in Am.Jur.2d, Sec. 313 says:
`Mere pecuniary loss to the defendant, as a result of the enforcement of a restriction will not prevent a court of equity from enforcing it.' Cited as footnote support for this statement is Storthz v. Midland Hills Land Co., 192 Ark. 273 [90 S.W.2d 772]. In that case, this language appears:
`It has been held * * * that the fact that the restricted property is of less value for residential purposes than it would be for some other purpose is no valid reason to ignore the restriction.'
Thus, here, while lots 3 and 4 may be of little or no value to Hays for residential purposes, and the fact that he has chosen to render them less valuable by expending his money for purposes violative of the restrictions, is no valid reason for denying Watson the right of enforcement, even though it be costly to Hays. To the same general effect, see the concluding paragraph in the opinion of Robertson v. Berry, 248 Ark. 267 [451 S.W.2d 184].
The court concludes that plaintiffs are entitled to the relief sought, insofar as continuation of use of the entire sewage disposal system on lots 3 and 4 is concerned. Defendants will be enjoined from such use henceforth.
Because the restrictive covenant is addressed to the limitation of only one system per lot, no harm is seen to plaintiffs, nor any violation of covenant effected, if Hays desires to use his existing system as a sewage outlet for a single residence only, on each lot; in this case, one of his mobile home units. Or, if he should build a dwelling on either lot, that dwelling is entitled to be served, as a single unit, by such system as is now in place.
*277 No further protection would be afforded Watson by requiring Hays to dig up and remove all of the existing system; Hays may do so if he wishes as, for example, to cut his losses, but he will not be required to do so.
It is therefore, ordered, adjudged and decreed that the defendants, Lloyd L. Hays and Joan C. Hays, be, and they are hereby enjoined from using and operating their private sewage disposal system installed underground on Lots 3 and 4, Block F, Bird Haven Terrace, a subdivision in the City of Fayetteville, Arkansas, and said defendants be, and they are hereby ordered, to disconnect the discharge lines running from their mobile home park upon their adjoining property to said sewage disposal system within sixty days after this date, and in disconnecting said lines running from their mobile home park to the septic tank or tanks located on said Lots 3 and 4, Block F, Bird Haven Terrace it shall be done in such a manner that they cannot be reconnected.
It is further ordered, adjudged and decreed that the said defendants, Lloyd L. Hays and Joan C. Hays, husband and wife, be, and they are hereby permanently enjoined from using their sewage disposal system located on Lots 3 and 4, Block F, Bird Haven Terrace to serve any portion of their said mobile home park and said sewage system may be used only to serve not more than two single family residence units, only one of which may be located on each of said lots.
The costs of this action are assessed against the defendants."
The decree is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3435732/ | The record in this case shows a persistent and determined effort on the part of the public utility company in Iowa City to defeat the efforts of the people to secure a municipally-owned electric light and power plant.
The light and power company's franchise expired in January 1934. A special election was held on October 11, 1932, at which the renewal of the company's franchise was defeated by a vote of 2,700 to 900. Thereafter on April 17, 1934, another special election was held for the purpose of voting on a $917,000 bond issue to establish a municipally-owned plant. This issue was carried by a majority of the voters.
Pursuant to that election an ordinance was introduced for the establishment of a plant. This ordinance was laid on the table by a majority of the then constituted membership of the city council. That council also returned to the federal government a P.W.A. contract for a grant of over $400,000 to aid in the construction of the plant. Another city election was held in March 1935, at which the municipal ownership candidates were elected by a majority. This council then proceeded to carry out the provisions of the election for a municipally-owned plant and adopted the ordinance which had been laid on the table in 1934, providing for the establishment of the plant. Thereupon the city again made arrangements for receiving a federal grant of $413,000 to aid in the construction of the plant.
In May 1935 the city council asked the power company to *Page 882
sell its distribution system to the city. The company refused to do that, but offered to sell its generating plant in Coralville and its distribution system to the city for $1,125,000, an amount far in excess of the bond issue authorized by the people.
On the rejection of its offer, the company commenced a systematic campaign against municipal ownership, and secured a temporary injunction restraining the city from proceeding with the establishment of the plant as authorized by the people. Upon the rejection of the offer, and after securing a temporary injunction, the company offered to the city and all consumers an immediate but conditional reduction in rates, and a scheme of paying its consumers the difference between the reduced rates and the rates then in operation, upon condition however that the city council abandon its plan for a municipal plant. This offer was refused.
Thereupon the light and power company in the month of August, and every month thereafter until the next city election, sent monthly notices to each of its consumers showing how much money had been impounded for each consumer, promising to pay this amount to them in cash upon the abandonment of the plans for a municipal light and power plant by the city council. The light company also publicly advertised by hand bills and in the local newspapers that the impounded fund would be paid to their consumers if and when the city council abandoned plans for a municipal plant. The record shows that the impounded fund accumulated to such an extent that it amounted to over $72,000 immediately preceding the city election in February 1937.
The promise of such reward for the abandonment of the plan was given such wide publicity and sent to all consumers of electricity in Iowa City so repeatedly before the election of 1937 that it must have been known by the appellees herein.
In March preceding the election a convention was arranged for and held in Iowa City by friends of the light and power company. At this convention a ticket, opposed to municipal ownership and designated as the Citizens Non-partisan Ticket, was selected. The appellees herein were at that time and by that convention nominated as candidates for the city council in the city election to be held March 29, 1937. At this convention a platform was adopted and published wherein it was stated, inter alia, that "weare opposed to the building of a municipal light plant in IowaCity." *Page 883
The appellees in this case were the persons nominated by the so-called Citizens Non-partisan Ticket and made their campaign upon the platform adopted by the convention as being opposed to the building of an electric light plant in Iowa City. A bitter campaign was waged between the forces favoring a municipally-owned plant and those opposed thereto, at the end of which appellees, the candidates on the Citizens Non-partisan Ticket, were elected.
The record shows without dispute that all consumers of electricity in Iowa City were repeatedly promised a cash refund if the candidates on the municipal ownership ticket were defeated and the plan for municipal ownership abandoned. This action is brought to contest the election under section 5629 of the Code of 1935, which provides:
"The election of any person to a city or town office may be contested on the same grounds and in the same manner provided for contesting elections to county offices."
Section 981 of the Code of 1935 relating to contesting the election of county officers provides, among other things, as follows:
"The election of any person to any county office * * * may be contested by any person eligible to such office; * * * and the grounds therefor shall be as follows:
"4. That the incumbent has given or offered to any elector, * * * any bribe, or reward in money, property, or thing of value, for the purpose of procuring his election."
In Dishon v. Smith, 10 Iowa 212, bribery was defined as:
"* * * the giving (and perhaps offering) to another, anything of value or any valuable service, intended to influence him in the discharge of a legal duty. * * * Our statute * * * declares (section 339) that the election of any person may be contested when the incumbent has given or offered any elector, etc., any bribe or reward in money or property for the purpose of procuring his election."
The provision of the statute in force at that time is substantially similar to paragraph 4 of section 981 of the Code of 1935. It is therefore clear, and it is practically conceded by the record, that if the offer of money, service, or reward had been *Page 884
made directly by the appellees, who were elected members of the city council at the election in question, their election would be invalid. Appellees contend, however, that the offer of reward was not made by them directly and that they are therefore not responsible for the offers made by the light and power company.
Appellants contend, however, that while the offer was not made directly by appellees, the record shows without dispute that they were running on a platform opposed to municipal ownership and thereby indirectly ratified the promises made by later adopting the legislation necessary to enable the electors to secure the money promised them by the light and power company. The platform of the convention, under whose auspices and upon whose ticket appellees were running, was an implied promise that they would do all in their power to defeat municipal ownership in Iowa City; and, as contended by appellants, "this promise was a political party declaration, ratified by its candidates that if elected they would not build a municipal plant, and this act of forbearance would necessarily result in the payment of the money promised by the light and power company in the event of the defeat of municipal ownership in Iowa City."
Under the special circumstances existing in Iowa City, appellees impliedly promised the electors some thing of real value, because the light company's promise was followed up by appellees' action, as councilmen, in repealing the ordinance providing for a municipal light and power plant almost immediately after the election. This action of the council was something of real value. While the promise of either the electric light company to make a refund, or the promise of appellees to defeat municipal ownership in Iowa City, made by the appellees before the election, might not separately, in and of themselves, have amounted to a complete offer of reward, it does follow that when linked together in the manner shown by the evidence in this case it amounted to an implied offer of reward as an inducement for their election.
The record shows that soon after the appellees were elected they repealed the ordinance providing for the establishment of a municipal light and power plant; and immediately thereafter the light and power company refunded to its consumers over $90,000 which it had impounded for them under its promise made about a year and a half before the election.
That such action amounted to an offer of reward as an *Page 885
inducement for their election, see: Carrothers v. Russell,53 Iowa 346, 5 N.W. 499, 36 Am. Rep. 222; Glover v. State,109 Ind. 391, 10 N.E. 282; Robinson v. United States, 8 Cir.,32 F.2d 505, 66 A.L.R. 468; Commonwealth v. Root, 96 Ky. 533,29 S.W. 351; Chicago, M. St. P.R. Co. v. Shea, 67 Iowa 728,25 N.W. 901, 904; State v. Purdy, 36 Wis. 213, 224, 17 Am. Rep. 485.
In Carrothers v. Russell, 53 Iowa 346, 5 N.W. 499, 36 Am. Rep. 222, this court said [page 349, of 53 Iowa, page 501 of 5 N.W.]:
"`It contains a distinct proposition to the electors that if they will elect the particular candidate he will donate all fees received from the office, in excess of a certain sum, to the taxpayers of the county by paying the same into the county treasury. Such a proposition introduced into elections would be a mischievous element very nearly allied to bribery, and if the incumbent (Mr. Russell) indorsed the resolution and pledged himself publicly and privately that, if elected to the office, he would carry out the proposition, then as I have before explained he is, under the law, disqualified from holding the office; and this is so without regard to whether there were few or many votes changed thereby. * * *'
"It is true that in that case [State v. Purdy, 36 Wis. 224] the court did not go further than to hold that the votes secured by the relator by reason of his offer should be rejected. If an offer like the one in question, when acted upon by a voter, becomes to him a bribe, it is, when not acted upon, the offer of a bribe; and under our statute the offering of a bribe by a candidate disqualifies him for the office. In our opinion the offer made by the incumbent was the offer of a bribe, and that by such offer he became disqualified for the office. * * *
"`It is of the highest importance that the purity of the ballot box shall be maintained. And there can be no difference in principle between the sale of an office for a valuable consideration, and the disposing of it to the person who will perform its duties for the lowest compensation. The same objection lies to both. It is inconsistent with sound public policy and tends to corruption. It diverts the attention of the electors from the personal merits of the candidates to the price paid or the cheapness of the offer. If it were allowed it is evident that there would be the *Page 886
greatest danger of offices being filled, not by those best qualified, but by those whose purses enabled them to obtain it.' * * *
"`We fully recognize the validity of the objection to the sale of offices, whether viewed in a moral, political, or legal aspect. It is inconsistent with sound policy. It tends to corruption. It diverts the attention of the electors from the personal merits of the candidates, to the price to be paid for the office. It leads to the election of incompetent and unworthy officers, and on their part to extortion and fraudulent practices to procure a remuneration for the price paid. Nor can we discover a difference in principle between the sale of an office and the disposing of it to the person who will perform its duties for the lowest compensation. In our opinion the same objection lies to both.'"
In State v. Elting, 29 Kan. 397, the court, speaking through Justice Brewer, later of the United States Supreme Court, said:
"When a candidate gives an elector personally money or property there is a direct attempt to influence his vote by pecuniary considerations. The expectation is that such vote will be controlled, not by the elector's judgment of the fitness of the candidate for the office, but by the pecuniary benefit he has received. In other words, it is money and not judgment which directs the ballot; and so the election turns not on considerations of fitness or public good, but of private gain. Let such be tolerated, and elections will be simply the measure of the size of the candidates' purses. In the closing and degenerate days of Rome's august empire, preceding its immediate downfall, the imperial purple was sold at public auction to the highest bidder. Equally base and equally significant of present decay and impending downfall would be the toleration of the private purchase of electoral votes. That which is wrong when done directly, is equally wrong when done indirectly. Salaries are paid by taxation, and when a candidate offers to take less than the stated salary, he offers to reduce pro tanto the amount of taxes which each individual must pay. If the candidate went to each elector and offered to pay one dollar of his taxes, that clearly would be direct bribery; and when he offers to take such a salary as will reduce the tax upon each taxpayer one dollar, he is indirectly making the same offer of pecuniary gain to the voter; so that those cases rest upon the simple proposition that the election *Page 887
of a candidate for office cannot be secured by personal bribery offered directly or indirectly to the voter. * * *
"A further question may arise when the offer of the candidate carries with it no pecuniary benefit to the voter. As, for instance, should a candidate for a county office offer to give if elected a portion of his salary for the erection of a public fountain; or, if a candidate for a state office should offer if elected to endow a chair in some college: here it may be said that the voter is in no way influenced by consideration of personal gain. He receives no money in hand, his taxes will not be reduced, and he may in no manner be pecuniarily benefited by the donation. This presents a case going still beyond those which have been decided, and yet very probably the same decision should control such a case, and for this reason: wrong considerations are thrown into the scale to influence the vote of the elector. The theory of popular government is that the most worthy should hold the offices. Personal fitness — and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions — is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter."
McCrary's Treatise on the American Law of Elections, 3d Ed., section 298, says:
"In England and in many states of the union, it is expressly provided by law that bribery in procuring an office creates a disability to holders. Such is the case especially in Iowa, in Kansas, in Oregon. * * *"
It goes without saying that the action of the city council in abandoning the municipal ownership plant in Iowa City made it possible for the electric light and power company to fulfill its offer to refund to the consumers of light in Iowa City funds amounting to over $90,000, if the municipal ownership plant in Iowa City was abandoned. Such abandonment could only be accomplished by the action of the newly elected city council. The *Page 888
offer was made good by the payment of this large amount to the electors of Iowa City in consideration of the election of appellees, who were candidates upon the ticket opposed to municipal ownership. The election was tainted with fraud and carried by and through the action of both the light and power company and the candidates of the Citizens Non-partisan Ticket.
As a general rule an election which is materially influenced by bribery is void. Except in some jurisdictions the election of a particular person to an office may be annulled on account of bribery committed in his behalf without his knowledge. 20 C.J. 186, 187; Adkins v. Phipps, 159 Ky. 349, 167 S.W. 134; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248.
Ordinarily a limit is placed upon the expenditure that may be incurred by or on behalf of a candidate, and while he may bar himself from office by violating such provision, it seems clear that expenditures of money for a candidate without his knowledgeor consent should not work a forfeiture of his office. 9 R.C.L. 1189, Note 1; State v. Bland, 144 Mo. 534, 46 S.W. 440, 41 L.R.A. 297.
It may be, as shown by the foregoing cases, that where the expenditure of money is made in behalf of certain candidates without their knowledge, there should be no forfeiture; but if the money is spent with their knowledge and implied consent, a different rule should apply.
In the case of Adkins v. Phipps, 159 Ky. 349, 167 S.W. 134, the Supreme Court of Kentucky, in ruling upon a somewhat similar question, said [page 135]:
"There was no attempt to prove that Adkins or his party used any money, or bribed any person to vote for him, or that any person voted for him, who, for any cause, had no right to do so. Phipps seems to rest his defense on the sole ground that he was not a party to the bribery in his behalf, and had no knowledge of it, and his counsel by brief submit the case to this court to determine whether the proof shows that 8 of the voters above named were bribed to vote for Phipps, and, if we so determine, we are asked to set aside the election as to this office, and declare there was no election. * * * The fact that Phipps had no knowledge of the bribery committed in his behalf does not legitimize the vote so cast and counted for him. It is a plain question as to whether he received a majority of the legal votes *Page 889
cast. The bribed votes were illegal, whether he knew of them or not. As is stated in the case of Butler v. Roberson, 158 Ky. 101,164 S.W. 340:
"`Nor is it necessary that the improper use of money should be traced directly to the candidates for office. The position or personality or connection with the election of the person using the money is of minor importance compared with the fact of its use.'"
Under the theory of this case, it does seem to me that if offers of reward were made to a sufficient number of voters to indicate that they were influenced by such offers, then the votes cast for the persons in whose behalf the offers were made should be declared illegal.
The record shows that notices of refund were sent out to about 5,500 consumers in Iowa City. The record also indicates that there are not that many electors in the city. It is therefore fair to presume that a sufficient number of electors were influenced by the promise of the payment to them of a refund on their electric rates upon condition that the plan for a municipal plant be abandoned by the city, and this could be done only by the successful candidates on the ticket opposed to municipal ownership.
It is no doubt true that many of the electors opposed to municipal ownership might not have been influenced by the offer of reward made by the light and power company, but, in view of the fact that the electors at an election for a renewal thereof refused to renew the light and power company's franchise, and in further view of the fact that the proposition for a municipal light and power plant had once been carried by a majority of the electors, it is fair to assume that enough of the electors voting at the election for councilmen were sufficiently influenced by the offers of reward made by the utility company to affect the result of that election.
Under all the facts and circumstances in this case it seems to me that the entire election was tainted by fraud and should be declared invalid. The judgment of the lower court should therefore be reversed, and I respectfully dissent from the majority opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435829/ | This is an action of right in which the plaintiffs ask for the possession of approximately 500 acres of land which was owned by John A. Crouse, who died intestate March 4th, 1927. The plaintiffs, eight in number, are the children and sole heirs of said deceased, and the defendant is his surviving widow.
John A. Crouse had been a widower for a number of years prior to his marriage to the defendant on December 8th, 1926. It is the claim of the plaintiffs that the death of their father was the result of acts on the part of the defendant-widow which constitute involuntary manslaughter. It appears that on the day of his death, the decedent had on deposit in the City Trust
Savings Bank of Boone the sum of $3500.00, and that he was indebted to a relative in California in the sum of $4000.00. The defendant and the decedent appeared at the bank, where discussion arose as to the best and safest way — whether by draft or postal money order — to make remittance of said $3500.00 to his creditor. The defendant took the attitude that the better course to pursue was to send the remittance by postal money order. Mr. Rice, an officer of the bank, paid Mr. Crouse, at *Page 727
that time, the $3500.00 in seven packages of $500.00 each, telling him: "If you conclude you want a draft, come back and I will make you out a draft." Mr. Rice, as a witness for the plaintiffs, testified that he did not detect anything at that time which indicated any anger or ill feeling between the defendant and her husband. They left the City Trust Savings Bank at approximately the noon hour. The automobile, which was owned by the deceased, was parked on the opposite side of the street, west of the bank. The defendant drove the automobile and the deceased was seated by her side. She drove the car to the first corner south, and then turned west upon 8th Street in the direction of their home, which is located in or near the northwest portion of the city. The post office is located on the north side of 8th Street, approximately two blocks west of the City Trust Savings Bank. The accident occurred a short distance west of the post office. There were workmen engaged in making repairs upon a tenant house upon the Crouse farm, who were expected to get their noonday meal at the Crouse home. There is testimony that the defendant proceeded down 8th Street at a rate of speed of thirty-five miles per hour, and that the car did some swerving or zigzagging prior to the time of the accident. There is no evidence of any speed ordinance. The evidence tends to show that Crouse suddenly appeared upon the running board of the car and fell therefrom upon the pavement, receiving a fractured skull, which caused his death the same day. Because of the provisions of Section 11257, Code, 1927, the defendant was not permitted by the court to relate all that transpired between her and her husband after leaving the bank and prior to the time of the accident. We need not, and do not, determine whether the court was in error in sustaining the objections to this offered testimony. The defendant was arrested the same day and quizzed by the officers. The sheriff gave in testimony a portion of the conversation between them, and because thereof, she was permitted to give the remainder of the conversation, which it may be said fairly gave her version of the transaction. She testified as follows:
"I told them [the officers] we [the defendant and her husband] came into the bank and Mr. Crouse talked with Mr. Rice and told him that he wanted to draw out the money that he had *Page 728
to pay a niece that he owed in California. We went there to draw out the money to pay this note that Mr. Crouse wanted paid. Mr. Crouse asked Mr. Rice which would be the best way to send it. I don't remember the exact words. I suggested getting post-office money orders. Mr. Rice wrote out the check. I told them [the officers] that Mr. Crouse got the money and that when we came out of the bank it was five minutes to twelve and that Mr. Crouse said we would go home, so we walked across the street in front of Mann's furniture store, where we had our car parked. Then they asked me what we did, and I said we drove south on Story Street till we came to Eighth Street; then we drove west on Eighth Street. Mr. Boone or Mr. Hanson [the officers] asked me what John said after he spoke about going home on account of it being nearly twelve. Mr. Crouse said we would go home and have our lunch and would come back, and when we returned in the afternoon we would get the postoffice money orders and send the money out that we had got at the bank. Then they asked me what we did after we got in the car. I said we drove south on Story Street till we came to Eighth Street, then we went west on Eighth Street, and just a little west of Greene Street Mr. Crouse said, `I am going to get out and get those post-office money orders now.' And I said, `No, wait until after lunch,' and then Mr. Crouse swore, and said that he was going to get out right then; and I saw that he was going to get out of the car, and I asked him if he would wait till I stopped, till I could stop the car; and he got out on the running board some way. I told them [the officers] I asked Mr. Crouse if he could wait until I could stop the car, when I saw he was going to get out. Mr. Boone asked me why I didn't stop the car, and I said I started to put my foot on the brake, and it slipped on the accelerator, and then it all happened so quick, I didn't know how anything — I couldn't tell anything more, and I didn't know what happened. I told them then I could see he was going to get out, — I took hold of his hand to have him stay in the car until I could get it stopped, — and that I tried to stop the car and that I got my foot on the accelerator instead of the brake, and that when I did get my car stopped it was too late. I told them I thought Mr. Crouse pulled loose from my hand, and that I stopped the car as quickly as I could. * * * They asked me if I knew after we had gotten onto *Page 729
Eighth Street away from Story Street that Mr. Crouse wanted out. I told them `No, sir.' They asked me if I knew that Mr. Crouse wanted to get out at the post office. I told them I didn't know he wanted to get out until after we had passed west of Greene Street."
The aforesaid testimony given by the defendant is not denied.
Mr. Meyers, the only eyewitness who was in position to see the occurrence, testified as a witness for the plaintiffs:
"I said he suddenly went off the running board. It looked to me like he might have stepped off and was suddenly thrown off. It looked to me like he just went off. I didn't say he was pushed off. It didn't look like he was pushed off. I did answer at the other trials the question: `Did he fall off the car as though someone pushed him off? A. Well, he just dropped off. It looked like he might have stepped off and was suddenly thrown off, but it didn't look like he was pushed.'"
As stated by the appellees in their argument: "The evidence tends to show that he [the decedent] was a man who made quick decisions, with whom to think was to act."
To set out the testimony in extenso would unduly extend the length of this opinion. It is sufficient to say that we have read the record with care, and there is no evidence from which the jury could properly find that the defendant at the time in question had any intent, purpose or design to kill, or even injure, her husband. The plaintiff-children base their right to the recovery of the possession of the property upon the alleged claim that the defendant-widow feloniously took the life of her husband, alleging, in substance, that she is guilty of manslaughter by reason of her gross negligence in that, having knowledge that the decedent was upon the running board of the automobile and in a place of danger, she omitted and failed to stop the automobile to avert a threatened injury to him; in that, having knowledge that the decedent was in a perilous position upon the running board of the automobile, and although she knew of the danger of an injury to him if the automobile was not stopped, she failed so to do, although she had means to stop the same, and instead accelerated the speed of said automobile *Page 730
and drove the same at an excessive rate of speed and in a zigzag and irregular manner, causing him to fall or to be thrown therefrom; and in that she drove the automobile at an excessive rate of speed and in a zigzag and irregular manner at the time and place and under the circumstances in question, with utter indifference to the life and safety of the decedent. They further allege in their petition that the said reckless acts were the proximate cause of the death of the decedent, "and that she thereby feloniously caused his death."
The plaintiff-children base their right to recovery upon Section 12032, Code, 1927, which provides:
"No person who feloniously takes or causes or procures another so to take the life of another shall inherit from such person, or receive any interest in the estate of the decedent as surviving spouse, or take by devise or legacy from him, any portion of his estate."
Sections 12033 and 12034 were enacted at the same time as the original enactment of Section 12032, and at that time all of said three sections comprised only one section. See Section 3386, Code, 1897. It is provided by Section 12033, Code, 1927, that:
"No beneficiary of any policy of insurance or certificate of membership issued by any benevolent association or organization, payable upon the death or disability of any person, who in like manner [that is, feloniously,] takes or causes or procures to be taken the life upon which such policy or certificate is issued, or who causes or procures a disability of such person, shall take the proceeds of such policy or certificate."
It is the claim of the plaintiff-children that the defendant-widow feloniously took the life of her husband within the meaning of the aforesaid statutory law. There is neither evidence nor claim that she is guilty of murder or of voluntary manslaughter; but it is the contention of the plaintiff-children that one "feloniously takes" the life of another, within the meaning of the aforesaid statute, by the commission of involuntary manslaughter. We find it unnecessary to determine that question, because, from a careful reading of the record, we are abidingly satisfied that there is not sufficient evidence of recklessness or reckless *Page 731
conduct upon the part of the defendant-widow in the management or operation of the car from which the jury could properly find, even under the preponderance of evidence rule applicable to civil actions, that she is guilty of involuntary manslaughter.
At the close of plaintiff's evidence, the defendant moved for a directed verdict, and the motion was renewed at the close of all of the evidence. On each occasion, the motion was overruled, and the appellant assigns said rulings as error. The court was in error in not sustaining appellant's motion for a directed verdict.
Many other propositions are urged by the appellant as grounds for reversal, but because of our conclusion on the matters hereinbefore considered, it is unnecessary to consider other propositions urged by the appellant. The judgment of the trial court must be, and the same is hereby, reversed.
Appellees' objections to the jurisdiction of this court to entertain the appeal, their motion to dismiss the same, and their motion to strike appellant's second amendment to the abstract, all of which were ordered submitted with the case, have had our consideration, and they are without merit, and the same are hereby overruled. — Reversed.
All justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435833/ | Plaintiff's mortgage was executed in May, 1924, by C.P. Martin and wife, as mortgagors. In October, 1924, Martin conveyed to the Parnell Savings Bank, subject to the mortgage. Martin was the cashier of the Parnell Savings Bank at the time be took title and at the time he conveyed the same. It is contended that Martin held the title as a mere trustee for the bank. The plaintiff brought his foreclosure suit on June 13, 1927. In April, 1927, L.A. Andrew, as superintendent of banking, *Page 908
had instituted a proceeding in the same court against the Parnell Savings Bank, alleging its insolvency, and praying that he be appointed receiver thereof. Decree was entered in such proceeding on April 14, 1927. Pursuant to such decree, the said receiver, L.A. Andrew, took possession of all the assets of the insolvent, and proceeded to liquidate the same. At the time of such appointment as receiver, Hahn was in possession of the land, as renter thereof, for money rent. The lease passed to the receiver by virtue of his appointment. The rent notes also passed to his possession. These are dated December 1, 1926. These were drawn to the Parnell Savings Bank, as payee. There is some dispute in the record as to whether these notes were in existence at the time of the receivership, or whether they were notes taken by the receiver after the receivership was instituted. In our view of the case, the dispute is not material. The cause of action for rent did pass to the receiver, whether it rested in parol or in writing.
Upon these facts, the question is, Which party has the prior claim upon the rents and profits?
The argument for appellee is that the Parnell Savings Bank stood in the shoes of Martin; that the bank did orally assume the mortgage when it took conveyance from Martin; that the right of the receiver can rise to no higher level than that of the bank; that, therefore, the rights of the plaintiff are precisely the same as they would have been if Martin had continued as owner of the premises.
If Martin had continued as owner of the premises, he could have transferred the lease and the rents, whether in the form of notes or not, to any purchaser. Such purchaser, under our repeated holdings, would take priority over the receivership clause of the mortgage later foreclosed. The differentiation which appellee would make at this point is that the receiver is not a purchaser, but is simply a representative of the insolvent debtor himself.
The receiver is something more than the representative of the debtor. He is the representative also of the creditors. Indeed, he is primarily such. He may assert, as against the debtor and those claiming under him, any right which the creditors themselves could have asserted. We think his position is necessarily analogous to that of a creditor who had taken the rent notes *Page 909
either as payment or security of a debt. In such a case, the subsequent right accruing to the mortgagee to assert a lien under his receivership clause will not relate back so as to defeat the creditor, who already has a lien upon the subject-matter. Our recent case of Lynch v. Donahoe, 205 Iowa 537, is quite conclusive on this point. In that case, we allowed a second mortgagee to take priority over a first mortgagee as to the rents and profits, because he asserted and acquired his lien first. This is the logical result of our holding that the receivership clause is merely remedial, and that it is not a present lien upon the crops or rents, but becomes such only as a part of the remedy in event of foreclosure. If Martin or the Parnell Savings Bank had rented this land to Andrew for the redemption period, he could have held it by right superior to the claim of the mortgagee. If Andrew, as such lessee, had sublet the farm to Hahn for an agreed rental, he could have held such rental.
The necessary effect of the receivership was to convey to the receiver all the property of the bank of whatever kind, subject only to plaintiff's lien. Whatever rights the receiver acquired by such transfer, on April 14, 1927, may not be defeated by the assertion of a later lien under the receivership clause. The plaintiff had no lien on the rents and profits at the time of such transfer.
This proposition is not affected by the fact that the receiver took subject to the mortgage. In the Lynch case, the second mortgage was subject to the first one. Nevertheless, the mortgagee was permitted to retain the lien which he acquired by his prior proceeding.
Some argument is devoted by appellee to the question of waste and repair. He claims to have shown that the property was suffering waste, and was needful of repairs, and that the taxes were delinquent. We think the question cuts no figure in the case. The plaintiff applied for a receiver under the terms of his mortgage, for the purpose of satisfying a deficiency judgment. The appointment was made upon that very ground, and upon none other. If the order below were affirmed, the appellee could not devote the proceeds to the repair and improvement of the land. He had already put his reduced bid upon it. He necessarily took it as it was. He is presumed to have made his bid on that basis. *Page 910
We reach the conclusion that the appellant stands in the position of a creditor who has taken an assignment of these rents and profits for the security of his debt.
The judgment below must, accordingly, be — Reversed.
ALBERT, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435834/ | On August 27, 1929, the plaintiff caused to be served upon the defendant, by leaving copy of notice with his wife at his place of residence, a purported original notice of which the following is a copy:
"Original Notice
"To C.M. Oxley and John W. Patterson
"You are hereby notified, That on or before the 31 day of August A.D. 1929 there — — — — — filed in the office of the Clerk of the District Court of the State of Iowa, within and for the *Page 1019 Story of Marshall, the petition of J.V. Rhodes claiming of you Judgment in the sum of Eight Hundred and Fifty-eight Dollars and Fifty-six cents ($858.56) with interest at eight percent (8%) from and after August 22d 1929, together with costs, including statutory attorney's fees.
"All on promissory note given by C.M. Oxley to John W. Patterson and assigned to plaintiff — the note being dated October 19, 1917, in the principal sum of Seven Hundred and Sixty (760.00).
"For further information see Petition to be filed as aforesaid.
"Now, unless you appear and make defence thereto, at or before noon of the second day of the next September term of said Court,
to be begun and held at Nevada, Iowa, on the 16th day of September A.D. 1929, your default will be entered and a judgment rendered thereon as prayed for in said petition.
"Dated this 13th day of August A.D. 1929.
"J.V. Rhodes, Plaintiff.
"Ray P. Scott, Attorney."
The instrument thus served carried the title or caption:
"Original Notice District Court Marshall County"
This caption appeared upon the notice when folded in ordinary form.
Section 11055 of the present Code is as follows:
"11055. Original notice. Action in a court of record shall be commenced by serving the defendant with a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought, naming it, and stating in general terms the cause or causes thereof, and if it is for money, the amount thereof, and that unless he appears thereto and defends before noon of the second day of the term at which defendant is required to appear, naming it, his default will be entered and judgment or decree rendered against him thereon." *Page 1020
The question presented is whether the foregoing notice is so defective in form and so wanting in compliance with the requirements of the statute as to be wholly nugatory. It is not enough for the complaining defendant to show such a degree of defectiveness as would have entitled him to a continuance or to a setting aside of the default upon timely application for the purpose of interposing defense. That is to say the question is not whether the notice is defective, but whether it is so defective as to be utterly void. We have many cases dealing with the defects of original notices and have adopted a rule of considerable liberality in sustaining the jurisdiction of the court notwithstanding many defects in the original notice. Needless that we enumerate herein such cases. We have none that, as a precedent, is decisive of this case.
Referring to the statute, three particular requisites may be noted: (1) the notice must inform the defendant "that a petitionis, or on or before the date named therein will be filed"; (2) that the court in which the petition is or will be filed shall benamed; (3) that the term at which defendant is required to appear, shall be named. It will be noted that none of the foregoing requisites were complied with unless it be by inference. The petition was actually filed in the district court for Story County. There is no direct statement in the original notice so advising the defendant. He was notified to appear at the "September term of said court". The words "said court" purport to relate to an antecedent for their meaning. But there was no antecedent which named the court. The notice did not state that a petition is filed. Nor did it state that it will be filed. It did notify the defendant to appear at Nevada, Iowa. This part of the notice carried an inference that the district court of Story County was the place of appearance. In such a case the defendant might naturally guess, and perhaps fully believe, that it was the jurisdiction of that court that was being asserted upon him. The question is how far may the specific requirements of the statute be condoned and the burden put upon the defendant to exercise his powers of deduction. Suppose for instance that this plaintiff had made one further mistake, if such, and had actually filed his petition in the district court of Marshall County. Might not the plaintiff with equal plausibility contend that the notice contained sufficient reference to Marshall *Page 1021
County to put the defendant upon his inquiry and thereby to discover the filing place of the petition? In short the notice might be deemed sufficient to advise the defendant that the asserted jurisdiction was either in Story County or in Marshall County and yet fail to advise him with certainty which one. Notwithstanding our liberality of construction in support of the jurisdiction of the court, there must be a limit to the privilege of error. The specific requisites of the statute are not to be wholly ignored. The statute provides for a certain degree of formality as requisite to confer jurisdiction. For instance an original notice must be in writing. Oral notice, however emphatic or frequent, will confer no jurisdiction. If the writing is essential to the jurisdictional power of the notice, then it would seem equally as essential that the statutory requisites should be incorporated in such writing. We are of opinion that the defects in this notice cut so deeply as to destroy its essential character as a statutory notice and that for such reason it should be deemed not simply defective, but wholly void.
The motion therefore should have been sustained. — Reversed.
STEVENS, ALBERT, MORLING, WAGNER, and GRIMM, JJ., concur.
KINDIG, J., and FAVILLE, C.J., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435944/ | This is a fraud case. It is the sordid story of the duplicity and depravity of a human male, and of the weakness and credulity of a foolish woman. Like most cases of fraud, the decisive questions are of fact and not of law. The decree of the able trial judge is amply sustained by the facts and the law. A somewhat detailed narration of these facts is necessary.
Bea Banks, the intervenor, in 1932, became the owner of a residence property in one of the better residence districts of Cedar Rapids. She married Ralph West, in June 1929, and divorced him in November 1932, in Wisconsin. He was a bootlegger and a rather violent character. In December 1932, she married Moorehead, in Illinois. Because the marriage was within one year after the Wisconsin decree and contrary to the statutes of Wisconsin, they became somewhat alarmed over their marital status, and together they consulted an attorney in Cedar Rapids, and Moorehead procured the divorce, in March 1933. She had paid $6,000 for the home and had expended approximately an equal amount in fixtures and furnishings. Sometime in 1933 she became acquainted with the appellee, Rance. She was then about thirty-six years old, and he about thirty-three. He was a bachelor living with his mother, and holding a responsible position with the Builders Material Company. They were together quite often and were very good friends. While her home and personal property were clear, she had no income, and the plaintiff advanced her money from time to time. Her ex-husband, West, made her considerable trouble with threats of various kinds, demands for money, and on one occasion came into her home and broke some of the furniture. Up to November 1933, Rance had loaned her $500, and it was apparent she would need more in the future. On November 16, 1933, they consulted E.J. Dahms, a lawyer in Cedar Rapids, whom she and Moorehead had consulted, and who represented Moorehead in the divorce action. She told Dahms that she wished to secure Rance with a mortgage. Dahms suggested that since Rance was going to loan her money as she might need it, that the consideration of the mortgage be put at $1,100. She then suggested that it would be agreeable to her to give Rance a deed to her home, as security, particularly, as her former husband, West, would be less likely to bother her if she did not have title. Dahms then prepared, and she executed a straight warranty deed conveying her residence property to Rance, for a *Page 534
stated consideration of one dollar and other valuable consideration. There is little, if any, dispute as to the above stated facts.
There is evidence tending to show the following facts: The intervenor met the appellant, Roy Gaddis, in March 1934, and in the following July, they began keeping company steadily. Gaddis professed his love for her and proposed marriage. The intervenor became very much infatuated with Gaddis and accepted his proposal of marriage. She then told him that Rance held a deed to her home as security, and Gaddis told her that Rance would beat her out of her property, and that since he was going to marry her, he wished to have the property in his name, and that he would protect the property and herself and Rance. The intervenor believed the promises of Gaddis, and, at his insistent demands, arranged a meeting of the two of them and Rance at the office of attorney Dahms. This meeting was held as arranged, on August 3, 1934, and at it Gaddis assured those present that if Rance would convey the property to him he would hold it as trustee for the intervenor and Rance, and that as soon as he and the intervenor returned from their wedding trip to Minneapolis he would pay Rance the $1,100 and interest which the intervenor was owing him. Relying upon the representations of Gaddis, and having faith in the intervenor, Rance agreed to this and at once executed and delivered to Gaddis a warranty deed, prepared by Dahms, conveying the property to Gaddis. Revenue stamps to the amount of $7 were affixed to the deed. No money or other consideration passed from Gaddis to either Rance or the intervenor at this meeting. The deed was filed for record on the day of its execution. That evening Gaddis and the intervenor went to Minneapolis in the former's automobile. Arriving at Minneapolis at an early morning hour, on Saturday, August 4th, they registered as Mr. and Mrs. Roy Gaddis, and immediately went to a room and went to bed. They continued in this relationship at the hotel until Monday afternoon, when they returned by automobile and arrived at Cedar Rapids on the morning of August 7th. They were not married on this trip. The next day, according to the testimony of the intervenor, Gaddis stated to her that it would look better for him, as a business man, if he also held title to her household goods. These had cost her in excess of $4,000. She had a dining room set for which she had paid $1,800, a bedroom suite costing $1,000, and a radio for which she spent $700. *Page 535
On August 8, 1934, she executed a bill of sale conveying to Gaddis, "all my household goods and chattels now owned by me or located" in her home. She carried fire insurance for $10,000 on this personal property. He filed it for record at 4 o'clock p.m. on the same day. The intervenor testified that he paid her nothing for this property. Gaddis, at once, became active in seeking to procure a mortgage loan on the residence property. He first sought a loan at Waterloo. On August 10, 1934, he made written application to the appellant, Perpetual Savings Loan Association, for a loan of $5,000 on this property. He also agreed to take fifty shares of stock in the association. In the application he stated that the property had been purchased in 1934 for $9,000 and that he had received wages in 1933 of $10,000. He testified that he filed no income tax return in 1934 for the year 1933 as he did not make enough above his exemptions. The appellant association's committee appraised the property at $6,800 and recommended a loan of $4,500. The application was accepted and on August 11, 1934, Gaddis executed a mortgage and note to the appellant association for $4,500, which was filed for record by it on August 13, 1934. The intervenor testified that she never gave Gaddis the abstract, but that he took it from her home. The next morning, Rance saw the report of the mortgage in the daily report published by the Linn County Abstract Company, and telephoned the intervenor that Gaddis had placed a $4,500 mortgage on her residence. She immediately went to the office of Attorney Dahms and told him of the mortgage. Both she and Dahms testified that the latter at once telephoned the appellant association to ascertain about the mortgage and one of its officers informed Dahms that it was true and that it had paid Gaddis $2,000 of the loan. Dahms then told the officer that he was giving the association notice for the intervenor that the property did not belong to Gaddis, that he had paid no consideration for it, that the intervenor was at all times in possession of it, and that he was giving the association fair warning so it could protect itself, and that if it paid another cent on the mortgage it would do so at its peril. The association had paid Gaddis $500 on August 11th, $1,500 on August 13th. After the claimed telephone notice from Dahms, it paid out the balance of $2,500 less some items of expense, to Gaddis on August 18, *Page 536
1934, without making any further inquiry as to the rights of the intervenor, so far as the record discloses.
On the 14th day of August, the intervenor sent word to Gaddis to meet her at the German Village — a beer parlor and eating place. According to the intervenor, when she asked him, at this time, why he placed the mortgage on the home, he replied that he needed the money. He promised her to deed the property back and pay off the mortgage. She demanded the return of her household goods, and on the same day he executed to her a bill of sale of the same property which was included in her bill of sale to him. The intervenor saw him frequently for a short time thereafter, as she sought a return of her home, and he repeatedly promised to give the property back and to make the mortgage right, if she would keep away from attorneys. When he failed to do this, the appellee, Rance, on August 27, 1934, filed his petition in equity to quiet title in himself.
Before stating the version of the appellants as to what took place between these people, it will be informative and an aid in ascertaining the truth, to say something of the background of the appellant, Gaddis. He was about twenty-six years old in 1934. Shortly after his marriage he worked as a laborer in a tile factory at Fort Dodge. Then he was a tractor driver at South Bend. After about two years he returned to Fort Dodge and began sawing wood. He then had four children. In 1931 he divorced his wife and went to Dubuque and trucked meat into Chicago. For the next two years he operated a portable sawmill around Dubuque, Hopkinton, Zwingle and Amana. His children and their mother were with him. He testified: "After our divorce we lived apart a short time then she was engaged through a bargain between her and I as a housekeeper." By this "bargain" she had the responsibilities and obligations of wifehood without the name of wife. He remarried her on or about November 1934. During all of these years he never had a bank account. Most of the equipment which he bought was on time. During the first half of 1934 he operated his saw. mill for the Webster Lumber Company of St. Paul. He had no capital and all expenses were paid by the company.
He testified that in July 1934, he had sold George Taylor, a dealer in fuel, some slabs, and incidentally inquired of him where he could buy a residence property. He said that Taylor knew of no such property. In explanation of the transaction by *Page 537
which be obtained the deed from Rance, on August 3, 1934, Gaddis testified substantially as follows: — That within a few days after his inquiry of Taylor, which conversation Taylor testified never took place, he had a telephone call from the appellee, Rance, who was a complete stranger to him, stating that he had heard that Gaddis was in the market for a residence, and that he had such a property for sale, out on Bever avenue, and that the lady in charge (the intervenor) would be glad to show it to him. Gaddis said he was admitted to the house and taken through it by a woman whom he then saw for the first time. After he was overwhelmed with testimony to the contrary, he later testified that he had been "told" that he met her in March 1934, but that he had no such recollection as he and an uncle had drunk a quart and a pint of whisky that evening, and he was too intoxicated to have much memory of the occasion.
After a few other telephone negotiations with Rance, during which the latter reduced his price from $8,000 to $7.000, providing the payment was cash, the transaction was closed. Gaddis went to the seat of his sawing operations near Amana, where he had $7,000 or more concealed in the sawdust pile, and then to his home in Cedar Rapids, where he searched and found about $1,000 more which he had hidden away in odd places. That evening he and his housekeeper and his brother and his wife sorted and counted the $7,000 — forty one hundred dollar bills and the remainder in tens and twenties. The money was wrapped in a newspaper and tied with twine — a package fifteen or eighteen inches long. By previous arrangement he was to meet Rance at Dahm's office to close the transaction, and he was to bring the intervenor with him to identify Rance. With the bundle of money and his identifier, he drove to the building where Dahms had his office. Rance was waiting at the street entrance. After he was duly introduced by a stranger to a stranger, the latter suggested that they go up to Dahm's office, but Gaddis said he would prefer to do business in the car. After dismissing the intervenor, they seated themselves in the front seat of the car, upwrapped the bundle and the money was counted — once by Gaddis, and twice by Rance. Rance then produced a warranty deed, signed, but not notarized. All blanks were filled in typewriting, except that for the name of the grantee, which was not filled. The recited consideration was *Page 538
one dollar and other good and valuable consideration. Gaddis asked for the abstract of title. The instruments, being satisfactory to Gaddis, he accepted them and delivered the money wrapped and tied, to Rance. The intervenor, who was waiting, for some reason, accompanied Gaddis and Rance to the law office. There the deed was acknowledged, and the name of Gaddis was inserted as grantee, and revenue stamps affixed and the deal was closed. Gaddis said Rance asked him to pay for the revenue stamps, as he did not wish to break into the package.
The Gaddis version of the personal property transaction varies somewhat from the intervenor's. His counsel concedes that his client's conduct as shown by his own testimony "is in some respects unusual." Gaddis testified that the intervenor, without solicitation from him, asked him to buy her furniture and house furnishings, and, after demurring some, he offered her $800 in cash, which she accepted. This was on August 8th. On August 14th, he states that she asked him to resell this property to her, and after some haggling, and time to think it over, he consented to accept her offer of $1,000, providing it was in cash, as he had paid her cash. He was content with a modest profit of $200. The property had never left her possession. Such chivalry to the companion of his joys! He felt that he had been taken advantage of. In speaking of their Minneapolis trip, he testified:
"If she hadn't been there I wouldn't have been with her, it was her suggestion, — she was the moving spirit. It commences tolook like I was just her victim."
One might wonder if he did not also fool his veteran counsel, after reading paragraph 8 of his amended and substituted answer, filed February 21, 1936. (The trial began February 3, 1936.) This is the language of the pleader, duly verified by Gaddis:
"8. This defendant denies specially that he ever courted the said Bea Banks, or ever asked her to marry him, or that he ever promised to marry her; he admits, however, that he was impressionable and likewise that he was not immune, and that he became entangled in the net spread by the festive God and which net was the peculiar property and under the exclusive control of the said Bea Banks, and while so enmeshed, his *Page 539
reason and sound judgment were unable to remain on guard for the protection of his just rights."
How he steeled himself "for the protection of his just rights" is further disclosed in his testimony relative to what his counsel describes as the "love jaunt" to Minneapolis. He said:
"After we got to Minneapolis on this 3rd of August trip, we did some drinking after we got there. I did not make any love to Bea Banks and did not put my arm around her and did not kiss her; I would not say that I never did do that, but I don't recall doing that after we got to Minneapolis. There were no demonstrations of love and affection between Bea Banks and me at any time in Minneapolis; there was no making love to her, — not a bit; there was no demonstration, hugging and kissing; I do not take the position that while Bea Banks and I were registered as man and wife at the hotel in Minneapolis, that there was no intimate relations between us. I admit the intimate relations; I tell thiscourt that these relations were absolutely cold and I understandyour question, and you have stated my position correctly."
No doubt there are gradations among lechers. Some must be utterly more contemptible than others. He also became "enmeshed in the net spread by the festive God" in the person of a waitress, who was a witness for the appellants, and whose testimony varied greatly from previous statements made by her to others, according to their testimony. Further light on his character was his voluntary and wholly unprovoked besmirching of witnesses on both sides, when it was of no advantage to his cause. The wife of a railroad man had testified that she had seen him kissing the intervenor, in the presence of herself and a game warden companion of Gaddis. The game warden was a friend of Gaddis and a witness for him. He was married and the father of two children. Gaddis denied the testimony of the wife of the railroad man, and said that after a drinking party that night, he and the intervenor slept together, and then volunteered that the game warden and the railroad man's wife occupied the same room and bed until morning. Both of these persons, as witnesses in the case, denied this testimony of Gaddis. *Page 540
After securing the proceeds of the mortgage, Gaddis deposited about $3,500 of it in the Merchants National Bank of Cedar Rapids and continued to make deposits therein until October 12th following. Thereafter he did his banking business with the Farmers Savings Bank of Walford, Iowa. He became indebted to this bank in the sum of $1,600 and gave a mortgage on much of his equipment and supplies to secure its payment.
He never paid any part of the $1,100 owing to Rance. The latter afterwards loaned that, or more, additional money to the intervenor. Later the appellee and intervenor were married. The testimony of the appellee and the intervenor was corroborated by other disinterested witnesses. The testimony for appellants was largely from interested witnesses.
The appellee first filed a petition against the appellants. setting up the fraud herein stated and asking that Gaddis be decreed to have no right in the property, that the deed from the appellee to him, and the mortgage to the appellant association be canceled, and title to the property quieted in him. The intervenor filed a petition of intervention asking the same relief, except that the title be quieted in her subject to security rights of Rance. Later the appellee filed an amendment to his petition amplifying the charges of fraud on the part of Gaddis, and alleging the notice to and knowledge of the appellant association respecting the rights of the appellee and intervenor in the property, and asking judgment for damages against Gaddis for whatever part of the mortgage of the association, that was held to be a lien on the property.
The appellant, Gaddis, by amended and substituted answer denied the allegations of fraud, denied that he was to hold the title in trust for any one or for any purpose, alleged full knowledge and consent of the appellee and the intervenor to the sale to appellant, and knowledge of the appellee of the mortgage to the appellant association. The latter filed pleadings with allegations substantially like those of its co-appellant. Each prayed for the dismissal of the petitions of the appellee and intervenor. Appellee's reply was a general denial.
After the litigation was started the intervenor conveyed all of her right and title to the real estate to the appellee, and assigned to him all of her rights of recovery and interest in the litigation, so that the only parties to the suit, or interested therein are the appellee and the appellants. *Page 541
[1] I. It is the contention of the appellee that Gaddis fraudulently procured the deed of August 3, 1934, through false representations, false promises, and false pretenses, with the wrongful intention and purpose of cheating and defrauding both the appellee and the intervenor. He accomplished this by deceiving the intervenor as to his love for her, and his marital intentions toward her. He deceived her and the appellee by his false representations and assurances that he would hold title to the property solely as trustee for both of them and to protect her ownership in the property, and the appellee's security therein, when he had no such intention at the time he made the representations. That he had no such intention is evidenced by the fact that he immediately gave the appellant association a mortgage of $4,500 on the property. Because of this fraud, and the fraudulent intentions of Gaddis, a constructive trust was established, and Gaddis became a trustee ex maleficio. If the testimony adduced by the appellee is to be believed, and we are firmly convinced that the trial court was right in finding it to be true, then Gaddis parted with nothing in procuring the deed and the title to this property, and made his promises of trusteeship solely for the purpose of repudiating them as soon as he had acquired title. The principle of law contended for by the appellee has been settled doctrine in this state for many years. One of our latest pronouncements is that of Justice Anderson, in Eliason v. Stephens, 216 Iowa 601, 607, 246 N.W. 771, 774, in which the court said:
"The general rule is that fraud in the procurement of any written instrument vitiates it in the hands of one seeking to benefit thereby, and it is a familiar rule that fraud vitiates every transaction in which it enters, and that equity will interpose to prevent that which, if allowed, would work a manifest fraud, and it is unnecessary to cite authorities in support of these fundamental propositions. It is also true that equity will construct a trust where one, through actual fraud, abuse of confidence, or questionable means, gains something which in equity and good conscience he should not be permitted to hold.
"It is also a well-settled rule that if one person obtain a legal title to property, not only by fraud or by the violation of confidence or fiduciary relations, but in any other unconscionable manner, so that he cannot equitably retain the *Page 542
property, which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner. Teuscher v. Gragg, 136 Okla. 129,276 P. 753, 66 A.L.R. 143, 149.
"And one who acquires property by fraud, misrepresentation, imposition, concealment, or under any other such circumstances as to render it inequitable for him to retain it, is in equity regarded as the trustee of the party who suffers by reason of the fraud or other wrong and who is equitably entitled to the property. Burgan v. Smith, 47 Iowa 286; Hall v. Doran, 13 Iowa 368; Henninger v. McGuire, 146 Iowa 270, 125 N.W. 180; Barnes v. Thuet, 116 Iowa 359, 89 N.W. 1085; Carlson v. Smith, 213 Iowa 231,236 N.W. 387, 80 A.L.R. 186; Stout v. Stout, 165 Iowa 552,146 N.W. 474, L.R.A. 1915A, 711."
After reference to, or quotation from, Wellman v. Wellman,206 Iowa 445, 220 N.W. 82; Gregory v. Bowlsby, 115 Iowa 327,88 N.W. 822; Bird v. Jacobus, 113 Iowa 194, 84 N.W. 1062; Stout v. Stout,165 Iowa 552, 146 N.W. 474, L.R.A. 1915A, 711, and other authorities, speaking through Chief Justice Faville, we said, in Carlson v. Smith, 213 Iowa 231, 238, 236 N.W. 387, 390, 80 A.L.R. 186 (brief on pages 195 et seq.):
"The evidence in this case comes squarely within the rule announced in these and other similar cases. The trial court was fully justified in finding from the record that there existed the intent on the part of the appellant at the time of the delivery of the deed not to reconvey the property. Her conduct in soliciting the deed from the appellee in the manner in which she did was an inducing cause of the conveyance and was made by her for the purpose of procuring the conveyance to be made with the intent in her mind at the time not to perform the same in the event the appellee returned, but to repudiate said agreement and retain the property. Under such a situation equity uniformly establishes a constructive trust and holds the recipient of the property as a trustee ex maleficio."
See, also, Neilly v. Hennessey, 208 Iowa 1338, 220 N.W. 47; 26 R.C.L. 1233-1243; 35 A.L.R. 280. *Page 543
[2] II. Appellants have also urged that it was error to consider parol testimony in establishing that the deed of November 16, 1933, from the intervenor to the appellee, was in fact a mortgage, and was so intended. We have heretofore held to the contrary. Neilly v. Hennessey, supra. King v. Cole, 188 Iowa 562,176 N.W. 299; Kaldenberg v. Boyd, 196 Iowa 133,194 N.W. 211; Bigler v. Jack, 114 Iowa 667, 87 N.W. 700; Fort v. Colby,165 Iowa 95, 144 N.W. 393; Votaw Hartshorn v. Diehl, 62 Iowa 676,13 N.W. 757, 18 N.W. 305; Beroud v. Lyons, 85 Iowa 482,52 N.W. 486; Bradford v. Helsell, 150 Iowa 732, 130 N.W. 908.
[3] III. Appellants also insist that the appellee is precluded, as a matter of law, by the recital of consideration in the deed, of August 3, 1934, to Gaddis, that the latter took title thereunder in trust. This contention is without merit. Appellee is not claiming under an express trust, but under a constructive and ex maleficio trust — one arising from fraud. Where one obtains the confidence of another by false pretenses or false promises and robs and betrays that person, equity will not permit him to retain the fruits of his treachery, nor deprive itself of the use of parol testimony in order to accomplish that purpose.
In Carr v. Craig, 138 Iowa 526, at page 530, 116 N.W. 720, at page 722, the court, having held that a constructive trust had arisen, uses the following language:
"We see no difficulty about establishing such a trust obligation in a court of equity by parol evidence. Such evidence is not to be shut out on the ground that it tends to show an express trust in land in violation of the statute of frauds, but is admissible to establish a constructive trust, arising from the violation by the defendant of the confidence reposed in him by his own procurement, violation of which constituted a fraud. There is enough in this record to show that, while defendant induced plaintiff to allow him to acquire title to her land by foreclosure, by means of a promise to refund to her the money she had invested, his real intention was to acquire title, and hold it in violation of such agreement. This purpose is evidenced by his subsequent conduct. Under such circumstances a court of equity will treat the acts of the defendant as constructively fraudulent, and defeat his attempted wrong by imposing *Page 544
upon him a duty in the nature of a trust to carry out his agreement, although established only by parol evidence."
In 26 R.C.L., sec. 79, p. 1233, it is said:
"79. Effect of Statute of Frauds and Statute of Trusts and Uses. It (the statute) has no application to cases where the law raises a constructive trust by reason of the fraudulent acts and purposes in procuring title to the land. The rule in equity always has been that the statute is not allowed to operate as a protection for a fraud, or as a means of seducing the unwary into a false confidence, whereby their intentions are thwarted or their interests are betrayed, and parol trusts in real estate have been frequently established in direct contradiction of the statute, on the ground of fraud. * * * The statutes of the various states relating to the creation of trusts in realty generally except from their operation trusts created by construction, implication or operation of law" (as do the statutes of Iowa).
See, also, Stout v. Stout; Wellman v. Wellman; Carlson v. Smith; Gregory v. Bowlsby, all cited above, and Newis v. Topfer,121 Iowa 433, 96 N.W. 905; Wahl v. Taylor, 176 Iowa 353,157 N.W. 867.
IV. In order to defeat a title, regular on its face, by parol evidence of a constructive trust, the evidence must be clear and satisfactory. Carr v. Craig, supra; Fort v. Colby, 165 Iowa 95,144 N.W. 393. Appellant argues that the appellee has not sustained this burden. It is our judgment that the evidence supporting the trial court's decree is very clear, satisfactory and convincing.
[4] V. The Perpetual Savings Loan Association appealed from the decree because it reduced the amount of the indebtedness secured by its mortgage from $4,500, the face of the note and mortgage, to $2,000, and canceled and reduced the lien of the mortgage on the property down to the amount of $2,000. The reason for this being that it had actual notice of the defective title of Gaddis, and of the adverse rights of the appellee and the intervenor, or such notice and knowledge of these adverse rights as would put a prudent person upon inquiry that would lead him to complete knowledge, and that after receiving this notice and knowledge, it ignored it, refused to make inquiry, and paid to the mortgagor the remainder of the loan, in the sum of $2,500. *Page 545
It is a well-known principle of law that this appellant was affected with the knowledge of all the facts which a reasonable and diligent inquiry would have made known to it, and it must, be presumed to have had that knowledge. Cook v. Chicago, B. Q.R. Co., 40 Iowa 451; Johnson v. Chicago, B. Q.R. Co., 202 Iowa 1282,211 N.W. 842. The rule is and should be that if a prospective mortgagee has the notice or knowledge, above stated, of rights in the mortgaged property, adverse, prior, or superior to the right or title of the mortgagor, and then advances money to the mortgagor, it does so at its peril, and subject to any such superior rights or title. 2 Pomeroy Eq. Jur., 3d Ed., sections 659-665, section 646, sections 750 to 762; Norwood v. Parker, 208 Iowa 62, 224 N.W. 831; Millowners Mut. Life Ins. Co. v. Goff, 210 Iowa 1188, 232 N.W. 504; Aultman v. Kennedy,114 Iowa 444, 87 N.W. 435, 89 Am. St. Rep. 373.
[5] We have already set out the testimony relative to the notice to this appellant. Dahms advised it of the adverse claims of the appellee and intervenor on August 14, 1934. It paid the $2,500 to Gaddis on August 18, 1934. Bennett was the officer of appellant, to whom Dahms said he telephoned. Bennett did not testify that he did not receive this message. His testimony was of that kind, so familiar to courts and trial lawyers: "I don't remember. As far as my memory is concerned, I can't say. Well, I wouldn't care to say that such conversation did not take place because this is over a year and a half ago. I have closed over three hundred loans since then." We would put more credence in this testimony had not the same witness distinctly remembered telephoning Rance a few days before that the appellant was placing a loan on the property. Testimony of the kind given by Bennett is of no probative value. In Eckert and Vaughn v. Century Fire Insurance Co., 147 Iowa 507, 124 N.W. 170, in a similar situation, we held that the agent's testimony, that he had no recollection that insured informed him that there was a mortgage on the property, was not sufficient to create a conflict in the evidence. It appears on page 510, 124 N.W. on page 171, Eckert testified that, when Flynn was filling out the application, he answered that the property was incumbered. Flynn testified in the cause, but did not deny that Eckert had informed him of the mortgage. He did testify, however, that he had no recollection of being so informed and that as far as he could remember, his first *Page 546
knowledge was received through a letter from the president of the company after the loss. This court said:
"We think the testimony of Flynn did not raise a conflict in the evidence on that point. The fact that he did not remember the conversations * * * would not necessarily tend to create such conflict. Nor would his further statement that, as far as he could remember, he did not know of the mortgage until after the fire."
In Pranger v. Pranger, 182 Iowa 639, at page 644, 164 N.W. 607, at page 609, a witness said: "I do not remember of having a conversation during the middle of February, 1904, with Ben and his wife or with Ben in the presence of his wife concerning the land."
We said in Eckert v. Century Fire Insurance Company, 147 Iowa 507, at page 510, 124 N.W. 170, at page 171, that such testimony — that is, that a witness had no recollection of a conversation — "did not raise a conflict in the evidence."
The evidence fully sustains the trial court on this issue. The appellant is in no position to complain. It had no right to shut its eyes and ears to the inlet of information, and then insist that it is a bona fide mortgagee without notice. Burwell's Admrs. v. Fauber, 21 Grattan, Va., 446, 463.
VI. There remains another matter. It appears that the trial court, on July 2, 1936, made certain findings on the calendar sheet, in this cause, which were entered of record in Volume 107 District Court Record, page 408. On page 222 of appellant's abstract, this entry is set out as the "Judgment and Decree." On September 6, 1938, the appellee filed in this court a denial of and amendment to the appellants' abstract, alleging that only as amended is said abstract true and correct. In this amendment the appellee denies that judgment and decree as set out by the appellants is in fact the judgment and decree of the court, but states that it was but a statement of the court's findings, and that the true judgment and decree was rendered on July 30, 1936, entered of record and the judgment and decree and the record thereof signed by the trial judge. Appellee sets out in his amendment both the findings and the final and enrolled judgment and decree. On November 3, 1938, the appellants filed in this court a motion to strike that part of the amendment, *Page 547
on the ground that the judgment and decree of July 30, 1936, is null and void.
The entries as set out by appellee in his amendment to abstract is as follows:
"Appellee further amends said abstract by striking out all of Page 222 thereof and substituting therefor the following:
"On July 2, 1936, the Court made and entered in the calendar sheet certain findings which were thereupon duly entered and spread of record in District Court records Vol. 107, P. 408, in said cause as follows:
"`The Court finds that the equities in this cause as between the plaintiff, Wencil Rance, and the defendant, Roy Gaddis, on account of the fraud committed by the defendant, Roy Gaddis, are with the plaintiff; and it is ordered that the title to the property in question be quieted in Wencil Rance as against the defendants Roy Gaddis and wife;
"`As between the plaintiff, Wencil Rance, and the defendant, Perpetual Savings Loan Association, it is the finding of the Court that the equities are with the Perpetual Savings Loan Association as to the first payment, $2,000.00, made by the Perpetual Savings Loan Association to the defendant Gaddis, and that the lien of the mortgage as to $2,000.00 is confirmed.
"`As to the remainder, $2,500.00, of the mortgage, it is the finding of the Court that the Perpetual Savings Loan Association had sufficient notice to warn it from paying out this sum of $2,500.00, and the Perpetual Savings Loan Association is directed to release $2,500.00 from the lien of this mortgage or else a decree will be entered cancelling that amount.
"`Judgment will be entered against the defendants, Roy Gaddis and wife, for the whole amount of the costs, but against the Perpetual Savings Loan Association only for the fees of the witnesses called by it.'
"To all of which all parties except.
"Thereafter, on July 30, 1936, it being a day of the May, 1936, Term of the District Court of Linn County, Iowa, there was duly entered in said cause upon the calendar sheet, the following, to-wit:
"`7-30-36 — Final decree as per enrolled decree of this date.' *Page 548
"And on the same date, to-wit, July 30, 1936, it being a day of the May, 1936, Term of the District Court of Linn County, Iowa, there was duly signed by the Court and filed in said Court and cause, the following
JUDGMENT AND DECREE
which said judgment and decree was duly entered and spread of record in Vol. 106 of the District Court records of Linn County, Iowa, Page 299, to-wit:
"Now, to wit, this 30th day of July, 1936, it being a day of the regular May 1936 Term of the District Court of Iowa, in and for Linn County, there were present the Honorable John T. Moffit, Judge, the clerk, sheriff and other officers of the court. The court finds that heretofore at the January A.D. 1936 Term of this court, the above entitled cause came on for trial and hearing before the court upon the introduction of evidence and the arguments of counsel, and that the cause was finally submitted and taken under advisement by the court.
"That on July 2d 1936, it being a day of the regular May 1936 Term of the above court, the court made and entered its findings of fact and conclusions as to facts and law in said cause, which were duly entered in the calendar and to which reference is hereby made.
"AND NOW, to-wit, this 30th day of July, 1936, it still being a day of the regular May 1936 Term of said court, as aforesaid, this cause comes on for final decree and judgment upon the final submission, as aforesaid, and upon the findings and conclusions of fact and law, as aforesaid, under date of July 2d 1936, and being fully advised in the premises, the court finds and so adjudges that it has jurisdiction of the parties to this cause and of the subject matter thereof, and that the equities are with the plaintiff as against the Defendant, Roy Gaddis, and partially with the plaintiff as against the Defendant, Perpetual Savings
Loan Association, and partly in favor of the Defendant, Perpetual Savings Loan Association as against the plaintiff, as more particularly set forth herein. * * *
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that by reason of the fraud and misrepresentations of the Defendant, Roy Gaddis, and because of his fraudulent acts and conduct, all as alleged in plaintiff's pleadings, that the said Roy Gaddis, defendant as aforesaid, has damaged plaintiff in the *Page 549
sum and amount of Two Thousand Dollars ($2,000.00), with interest thereon from and after the 11th day of August, 1934, and that by reason thereof he is indebted to plaintiff in said amount, and that by reason thereof plaintiff is given a judgment against the defendant, Roy Gaddis, as follows, to-wit, that it is hereby ORDERED, ADJUDGED AND DECREED that plaintiff have and recover of, from and against the Defendant, Roy Gaddis, the sum of Two Thousand Dollars, ($2,000.00), the same to bear interest at six percent (6%) per annum from and after the 11th day of August, 1934, together with costs and accruing costs, and judgment is hereby entered against the defendant, Roy Gaddis, in favor of plaintiff, accordingly, and execution to issue therefor. The costs assessed against the defendant, Roy Gaddis, and to be taxed by the clerk and which are included in the foregoing judgment, shall be and are the whole amount of taxable costs in this suit except as to witnesses called by the Perpetual Savings Loan Association, and as to such costs judgment is entered against the Defendant, Perpetual Savings Loan Association.
"All parties to this suit except to the above and foregoing.
"DONE IN OPEN COURT AND BY THE COURT.
"John T. Moffit "Judge of the Eighteenth Judicial District of Iowa."
[6] Appellants' motion to strike from the amendment to the abstract is not the proper procedure. Appellee had made a specific denial of the correctness of appellants' abstract. The proper way for the appellants to have taken issue was to have had the record in question certified to this court, as provided by Rule 17 of this court's rules.
[7] The appellants, however, are in no way harmed by this error, since the entire questioned record is set out in the amendment, and must be taken by us as correct, since it is not impeached by a certified record. The issue raised by the appellants can therefore be determined on its merits.
[8] It is apparent from the language of the court's notations on the calendar sheet that he was merely making a memorandum of his findings of fact to be used as a guide in the preparation of a more definite and detailed final decree. The decree was to be a link in the chain of title to real estate. The *Page 550
title was to be quieted in Rance. A description of the real estate should appear in such a decree. The court must have intended to cover that in his final decree. The memorandum recites that unless the appellant association release the property from the lien of its mortgage to the extent of $2,500, "a decree will be entered cancelling that amount." This clearly indicates future attention in a final decree. The final part of the memorandum states: "Judgment will be entered against the defendants." This denotes something more that the court would do in the future.
[9] This memorandum or findings of fact was not signed by the judge, nor was the record made thereof by the clerk of the court signed by the judge.
It is true that such a calendar memorandum may be sufficient basis for a judgment entry by the clerk in the proper record,when approved. But this memorandum or record was never approved by the judge. Kuhlman v. Wieben, 129 Iowa 188, 105 N.W. 445, 2 L.R.A. (N.S.) 666. The fact that the trial judge did not sign or approve the record entry of July 3d, but did prepare a final decree and did sign the recorded entry thereof, is convincing proof that he did not intend the calendar memorandum to be a final decree.
[10] The recitations in the final decree state that entries on the calendar sheet were only findings and conclusions preparatory to the final decree.
Section 10801 of the 1935 Iowa Code is:
"The record aforesaid is under the control of the court, and may be amended, or any entry therein expunged, at any time during the term at which it is made, or before it is signed by the judge."
Both entries were made at the same term of court, and the record was not signed until after the complete entry of the final and enrolled judgment and decree of July 30th.
A case very much in point in its facts and decision, is Hess v. Hess, 184 Iowa 796, 169 N.W. 111. On November 3d the court made a finding on the calendar of the same nature as was made in this case, to which exceptions were noted as in this case. This finding was as follows:
"Court finds for the plaintiff, Mary Hess, and that she *Page 551
was the lawful wife of J.O. Hess, and is his widow (see decree), to all of which defendant administrator excepts."
On the 10th day of November, and at the same term of court, a final enrolled and signed decree was entered.
In the Hess case it was claimed that the entry above set out constituted the final judgment, so that a motion for a new trial would have to be filed within three days from November 3d, rather than within three days from November 10th, when the final judgment and decree was filed.
In deciding this matter, this court used the following language, which is equally applicable to the situation involved in the case at bar:
"This calendar entry was copied into the district court record by the clerk. This is the record upon which the appellant relies as being the final judgment; whereas, the appellee relies upon an enrolled decree, which was filed later, on November 10th, and duly spread upon the records of the court. This appears to be the net result of the conflict in the abstracts of the parties. Doubtless a calendar entry, spread upon the district court records, may be sufficient as a final judgment. But it is not necessarily such, nor does it terminate the jurisdiction of the court to cause to be entered a more extended and enrolled decree as the final judgment. In this case, the calendar entry made parenthetical reference to such proposed decree, as being either in existence or in contemplation. True, the enrolled decree purported on its face to have been made on November 3d. In this respect, it was in accord with the calendar entry as to date; but it appears that it was not, in fact, filed with the clerk until November 10th, and was, therefore, not entered of record prior to such date. The record of this enrolled decree was the final judgment, and the defendant was entitled to file a motion for a new trial within three days thereafter. Such was the view of the trial court."
In the Hess case it is to be noted that the calendar entry said "see decree".
In the case at bar it is to be noted that the calendar entry said "or else a decree will be entered."
[11] If the appellants desired any correction of the trial court record, they should have there moved to correct or *Page 552
expunge, and not in the appellate court. Educational Film Exchanges v. Thornburg, 217 Iowa 178, 251 N.W. 66; Coggon State Bank v. Woods, 212 Iowa 1388, 238 N.W. 448; Jamison v. McCormick,172 Iowa 666, 154 N.W. 898; Gardner v. Burlington Ry., 68 Iowa 588,27 N.W. 768. As stated in Jamison v. McCormick, supra [172 Iowa 675, 154 N.W. 900], "the record to be presented here must be made there. The record made there canot be avoided here."
[12] The appellant association has no cause to complain because of the judgment entry as both are the same with respect to it. In the final decree the court entered personal judgment against Gaddis. This was justified by the pleadings, the prayer of the amended petition, and by the record. Certainly if his fraud justified the purely equitable relief decreed, it was imperative that judgment for damages should be entered against him.
The judgment and decree, in all its provisions, must be and is affirmed. — Affirmed.
Chief JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435954/ | [1] On May 24, 1944, plaintiff and his family lived on approximately one hundred acres of rented farm land located between the railroad tracks to the north and the Raccoon River to the south in the city of Des Moines. His residence address was 1304 Market Street. He had lived there about six years. For convenience we will refer to the premises *Page 350
as if they were his. The land there lies in a bend of the river, which comes from the west and at about the Eighteenth Street bridge west of plaintiff's premises makes a wide sweep south and then east. Plaintiff's buildings and about seventy or seventy-five acres of his land were inside of what is called the levee built within the river bend. This levee is distant sixty or eighty rods from the buildings at the nearest point. It begins near the Eighteenth Street bridge, thence extends southerly, then curves southeasterly, finally turning north and running to the railroad tracks at a point some distance east of plaintiff's premises.
His buildings consisted of a house, barn, chicken house, brooder house, corncribs, milkhouse, and cave. He had some dairy cattle, milked eight cows, and had fifteen or sixteen head of young stuff. He also had about forty hogs and an undisclosed number of chickens.
A sewer line extended from the west, easterly along the south side of the railroad tracks north of plaintiff's premises, and on May 24, 1944, this sewer broke at a point about forty rods north and slightly west of plaintiff's buildings. The land within the enclosure of the levee is not flat but varies in elevation as much as twenty feet, being lower in some places than around plaintiff's buildings.
From the break in the sewer line water shot up ten or twelve feet high. The lower places filled first. For a week or ten days the land was flooded and the water got deep enough to surround plaintiff's house and be under the floor; it filled his cave and ran into the chicken house about six inches deep. He had to raise the brooder house and take his young chickens to his brother-in-law's place and put the old hens up in the haymow. He took some of his hogs to Camp Dodge and turned them on pasture and the sows with pigs he put "over on the dump in hog houses" on higher ground. He moved his milk cows to his brother-in-law's and put his stock cattle on pasture at Camp Dodge. His brother-in-law lived three miles west of Johnston Station — the record does not show how far from plaintiff's home. They had to pull his stuff out with a tractor and pulley. The water reached its highest peak when about three feet deep over Market Street. *Page 351
About when the water was coming up around the house plaintiff went to the city hall to complain but received little attention. The record does not clearly show with whom he talked. The water went down something like ten days after it had first broken out. Plaintiff and his witnesses could then see the place where the water came out of the sewer. One says it rose about six or seven days and then started to go down and must have taken seven or eight days to go down.
At that point there was a manhole casing built up from the sewer and projecting several feet above ground with a manhole cover on top. The break was in the side of this casing at about the ground level. The wall of the casing at that point appeared to be about eight inches thick. One witness estimates it as a foot thick. It was made of brick and mortar — "some sand, lime, a little cement, water, mixed up to harden between the brick." One witness says it was "good material" and explained that mortar with a little cement will hold better than with all cement, or with all mortar and no cement.
The hole in the casing where the water came out was from eight inches to a foot square. The lower edge was slightly below and the upper edge above the level of the ground. The hole was not round and the edges smooth, but looked as if bricks were shoved out. The manhole cover was still on top but plaintiff did not know whether fastened down or not. The hole in the side was approximately one and a half or two feet below the cover. Plaintiff says at the place where the chunk was broken out "the construction looked pretty good."
When plaintiff looked down into the hole there was not any water either going into it from the outside or coming out from the inside. From the hole down to the top of the water in the sewer line, as plaintiff looked into it, appeared to be about six feet. This hole was the only break in the sewer any of the witnesses could observe.
About the middle of June (one witness says "around the 9th") the water started coming out again and flooded the lands about the same place as before, all the water coming out of this same hole. Before the first flood came plaintiff had planted about fifteen acres in corn and he had alfalfa and brome grass *Page 352
planted in about three acres in the hog lot. After the first waters went down part of this ground was prepared again. Plaintiff had just disked ten acres a couple of times and gotten it ready to plant when the water came up a second time. After the second flood subsided it was the first part of July. Plaintiff then planted seven or eight acres of sweet corn and a little sorgo corn for seed. All he finally realized from these efforts was about two acres of unmatured sorgo that made feed but no crop and no pasture. He later brought the hogs and chickens back, but not the cattle: "There wasn't anything there for them to eat."
Plaintiff and his witnesses describe the sediment that was spread around by the flood as looking like "raw sewage," with offensive, rotten odors that continued for a month "or better" after the last of the water went down. The City Health Department condemned the wells and posted signs. "We got city water put in there along in the fall."
The foregoing is a summary of the testimony of plaintiff and his witnesses. Further details will be referred to as we discuss the propositions of law involved.
Appellant in argument bases his claimed right of action upon three propositions: 1. Appellee city was negligent in failing to maintain the sewer so as to avoid breaking by pressure from within. 2. After the sewer line broke and appellee city had notice thereof the city was negligent in failing to repair same promptly so as to protect against the subsequent flood. 3. The result of the floods constituted a nuisance, causing damage for which the city was liable.
The city relies for affirmance upon these several propositions: 1. Appellant failed to show any negligence in construction or maintenance; failed to show the existence of a nuisance; or any act or omission of the city constituting a proximate cause of the sewer's breaking. 2. Appellant failed to show there was reasonable opportunity to repair the sewer break between the two floods. 3. Appellant's proof of damages was wholly conjectural and uncertain.
The trial court, at the close of appellant's evidence, found: That appellant's evidence failed to show any negligent act or omission to act which could be the proximate cause of the *Page 353
break in the sewer or of the resulting nuisance; that the break was caused by pressure from within, due to unusual, heavy rainfall just prior to the first flood; that it was impossible under the evidence to separate the damage caused by the second flood from that caused by the first; that it is doubtful if the city had sufficient time to repair the break before the coming of the second flood; that there was a failure of proof as to the proper measure of damages and to submit the case would leave the question of damages to conjecture and uncertainty; and that there was a failure to show any damages proximately resulting from any wrongful act of the city. Verdict was directed against appellant at the close of his evidence.
I. We find in the record no evidence that the break in the sewer on May 24th was due to any negligence of appellee city. The doctrine of res ipsa loquitur is not invoked by appellant. Negligence cannot be presumed but must be proven. The trial court found the "first flood" was "caused from pressure from within, due to the unusual and unexpected heavy rainfall * * *."
Appellant argues the possibility that there may have been an obstruction farther down in the sewer that caused the water and sewage to back up and force its way out at this particular point. But if we were to assume the correctness of this conjecture there would still be an absence of any showing that the break was due to any negligence of the city.
In fact the cause of the break is unexplained under the record. We do not know what caused the pressure from within. We do not know whether the manhole cover was fastened or remained in place of its own weight. There is no showing as to what became of the bricks from the hole or whether they were forced out when the water "shot up." The only evidence as to the construction of the manhole casing where the break occurred indicates affirmatively that it was proper. Why the break occurred at the particular place or why it occurred at all can only be conjectured.
The city was not an insurer and can be held liable only for negligence in the performance of its duty. Hemminger v. City of Des Moines, 199 Iowa 1302, 1303, 1304, 203 N.W. 822; *Page 354
43 C.J., Municipal Corporations, section 1888. We are compelled to conclude that so far as concerns the damage caused by the first flood following the break there is not sufficient evidence to make a case for the jury.
[2] II. But appellant urges that the city failed to exercise due diligence in repairing the break promptly after the first flood subsided and before the second one came. We think there was sufficient evidence to make this a jury question. It is true the testimony is not entirely clear as to the date of the second inundation or when the effects of the first one disappeared sufficiently to permit repair of the break.
The first flood was May 24th. Appellant testifies the second came "about the middle of June." He also testifies that he had in the meantime "disked ten acres a couple of times and gotten it ready to plant when the water came up a second time."
There is evidence that witnesses had been able to get to the manhole and inspect the break and several describe it in some detail. One says from seven to ten days elapsed "between the time when the water got down so that it didn't enter through this break * * * until the water started coming out again." This witness explained how, in his opinion, the repair might have been effected. The testimony of other witnesses tends to show that there was a period of time between floods when the manhole was readily accessible and might have been repaired.
We hold that it was a jury question whether the city was guilty of negligence in failing to act for the protection of appellant from injury from the second flood.
[3] III. The city contends, and the trial court found, there was a failure of proof as to the proper measure of recovery to be submitted to the jury. If it were a case in which the city might be found liable on account of both floods, the appellant might conceivably avail himself of the rule that where "the cause [of the injury] was reasonably certain, the mere difficulty in ascertaining or measuring the damage will not justify the denial of the recovery thereof." See Swift Co. v. Redhead, 147 Iowa 94,104, 122 N.W. 140, 143. See, also, *Page 355
City of Corning v. Iowa-Nebraska L. P. Co., 225 Iowa 1380,1390, 282 N.W. 791; 25 C.J.S., Damages, section 28.
A more difficult question, however, arises when the court is confronted, as here, with a case in which there is evidence of damages from various causes, as to a portion of which defendant cannot be held responsible. It has been many times held that if there is no evidence to enable the jury to form a reasonable estimate as to the portion of damage resulting from the separate causes, it cannot arbitrarily apportion a part of the damages to the acts for which defendant is responsible. 25 C.J.S., Damages, section 28; Tesdell v. Des Moines City Ry. Co., 197 Iowa 563,565, 197 N.W. 629; Wappenstein v. Schrepel, 1943, 19 Wash. 2d 371,142 P.2d 897, 899; Landeen v. DeJung, 1945, 219 Minn. 287,17 N.W.2d 648, 652; Lusk v. Onstott, 1944, Tex. Civ. App.,178 S.W.2d 549, 551; Parker v. Pettit, 1943, 171 Or. 481,138 P.2d 592, 596; Panhandle S.F. Ry. Co. v. Wiggins, Tex. Civ. App.,161 S.W.2d 501; Kershaw Mining Co. v. Lankford, 213 Ala. 630,105 So. 896. Earlier cases are cited in support of the same text in 17 C.J. 758, 759, note 82.
[4] This situation confronts appellant here as to the property damage claimed. Of course, reasonable certainty only is required. "The law is generous in the license that it accords to the triers of the facts when seeking to segregate the damages." Burt Olney Canning Co. v. State, 230 N.Y. 351, 356, 130 N.E. 574, 576. But under this record we have, in addition to the uncertainty of the evidence as to the total damage caused by both floods, the further uncertainty of apportionment of damage between the two floods. No reasonable yardstick is given by which the jury might make this apportionment. We are compelled to agree with the finding of the trial court, so far as property damage is concerned, that there was not sufficient evidence to go to the jury. Of course, upon another trial additional evidence may be offered. Therefore, we deem it unnecessary to discuss further appellant's right to recover damage to his property.
[5] But in addition to the damage to property heretofore discussed there is also alleged, and evidence offered to prove, substantial injury to appellant by reason of the "foul, *Page 356
obnoxious odors" caused by the deposit of sewage in the vicinity of appellant's home. Damages from such injury are not susceptible of exact measurement. The rule above announced does not apply to them. There is sufficient showing in the record from which the jury, if it were to find the city negligent under Division II of this opinion, might appraise the total damage suffered by appellant by reason of noxious and offensive odors and determine what part of same was fairly and reasonably attributable to the second flood. Certainly proof of "inconvenience and discomfort suffered by plaintiff and his family by reason of noxious odors," if caused by the city's lack of diligence, is a sufficient basis for the allowance of damages. See Duncanson v. City of Fort Dodge, 233 Iowa 1325, 1328 et seq., 11 N.W.2d 583, 585, and cases therein cited and reviewed.
It follows that the decision of the trial court must be reversed. — Reversed.
BLISS, C.J., and HALE, MANTZ, GARFIELD, OLIVER, MILLER, and MULRONEY, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435958/ | While the truck owned by appellee's insured was temporarily stopped on the highway without lights or flares of any kind, the appellant's truck driver, while operating his heavily loaded truck upon the same highway, approached said parked truck from the rear at a speed of from 20 to 25 miles per hour, in a fog which cut down visibility to 35 feet, and while so proceeding, met an approaching vehicle, did the usual and proper thing, switched on his dim lights, and when he stepped on the switch to again put on the regular lights they did not come on, and he was left in complete darkness at a point 50 feet from the stalled truck, which had not been observed, and which, because of the limited visibility, was not discernible at the fifty-foot point where his lights failed to come on. Appellant's truck was equipped with an emergency spotlight not connected with the regular lights, which he might have turned on. Appellant's truck — so the driver testified — at the speed he was going, could probably have been stopped within a distance of 25 feet, had the brakes been immediately applied. Instead of immediately applying the brakes and immediately turning on the spotlight, he first attempted to restore his lights by manipulating the switch back and forth a "couple of times" without avail. He then turned on the spotlight which revealed to him for the first time the stalled truck only ten or fifteen feet ahead of him. The pavement was slippery. He "eased" on his brakes, pulled to the left, but was too close to avoid a collision. The front of appellant's truck ran into the left rear corner of the other truck, shoving the front part of the stalled truck to the right into the ditch, the appellant's truck coming to rest on the left side of the pavement, traveling about five feet after the impact. The question is, Was the driver of appellant's truck guilty of contributory negligence as a matter of law? The trial court was of the opinion that he was and accordingly directed a verdict for the defendant. Appellant alleged and now insists that his driver was faced with a sudden emergency not of his own making, in that his lights refused to come on, while appellee contends the emergency was of his own making, and hence will avail him nothing.
It can readily be seen that the record presents a hair-splitting situation. The difficulty is not so much in determining the law, but in applying it to the facts in the particular case. The trial court, after summing up the evidence, based his ruling *Page 890
as follows: "Assuming all this testimony to be true, the court finds that when the driver's light failed him, that he had no vision whatever, and that under section 5029 of the Code it was his duty to stop his truck. It was his duty to immediately apply his brakes and proceed to make his truck come to a stop. This he failed to do when he was aware that he was without lights and had no vision. If he had done his duty and immediately applied his brakes, according to his own testimony, he should have come to a stop within from 20 to 25 feet, and if this had been done, according to the testimony of the driver of the car, this collision would not have taken place. The court therefore finds that the driver of plaintiff's truck, immediately prior to the collision of the trucks, was guilty of negligence which contributed in some way to the collision in question, and the negligence of the driver of the truck being imputable to the plaintiff, plaintiff likewise was guilty of negligence which contributed in some way to the collision in question."
Appellant in his argument calls attention to the following evidentiary matters, all of which he contends bear upon the matter of legal excuse and which presented a fact situation which should have been submitted to the jury for their determination as to whether such excuse was established:
1. Weather condition existing at the time of accident. "It was foggy from Council Bluffs to point of accident."
2. Color and condition of pavement. "It was cold and freezing a little with mist causing pavement to become wet and black." "The road was a little more slippery at the point where the road led into the field than at other places on the highway." "I didn't know there was any mud on the paving right at the spot of the accident."
3. Color of McCord's truck. "McCord's truck was kind of light grey color and blended with the color of the pavement in the dark."
4. Unanticipated failure of lights on appellant's truck. "He (driver of appellant's truck) pushed the dimmer button a couple of times, but the lights failed to come on."
5. Car approaching from opposite direction. "There was a car approaching my truck from the opposite direction about the time and place of accident." "The lights of the car coming from the opposite direction were bright but I could see against and into them." *Page 891
6. The curve and grade of highway at the point where collision occurred. "McCord's truck was at a point where a gentle curve started in the road." "The point where the accident happened is slightly upgrade until you get there, then level."
Under the facts and circumstances in this case, we can eliminate from our consideration everything except the failure of the light to come on. Both appellant and the driver of his truck were quite familiar with this road between Sioux City and St. Joseph, Missouri. Appellant had been operating this truck over this route two or three times a week for several years, and the driver had been so engaged for four years, a sufficient length of time to become familiar with all the ordinary conditions that might prevail, not only in clear weather, but in foggy and rainy weather, not only when the pavement was dry, but also when it was wet and slippery. All these matters were inherent in the ordinary hazards of driving. Appellant's truck was heavily loaded. There is no claim that they suddenly drove into a foggy condition of weather. This had existed more or less from Council Bluffs to the scene of the accident, becoming worse as they proceeded northward. Likewise, the slippery condition of the roads gradually became worse. However, the failure of the light to respond when the switch was applied without question presented an emergency not of the appellant's or the truck driver's making, and therefore the issue narrows down to a consideration of what the driver did in the second or two that elapsed after the lights failed and before the time of the collision. The driver of appellant's truck could have immediately reached for his emergency spotlight switch, located on the dash to his left and applied the brakes, and had he done so, under his own testimony the accident would probably have been averted, for he states that he probably could have stopped within 20 or 25 feet, but instead of doing so, he did what the jury might have found any ordinarily prudent person might have done, first pressed down on the foot switch a time or two in an effort to get the lights to respond. Failing in this, he reached for and turned on the emergency light, and at the same time applied the brakes. No one was holding a stop watch or looking at the speedometer, but at most under the evidence as presented to us, and to the trial court, the entire time did not exceed two seconds, *Page 892
and perhaps less, from the time the lights went out until the accident occurred.
[1] In a situation like this, are we to lay down the rule that the failure on the part of the truck driver to do under any and all circumstances the thing which the evidence shows could have been done, namely, make immediate application of the brakes, or switch on the emergency light, either of which in this instance would probably have enabled the driver of appellant's truck to avoid striking the stalled truck, or, are we to lay down a rule that the driver's conduct in this emergency of sudden extinction of lights is to be measured by the ordinary careful and prudent person standard in determining whether or not he created his own emergency? Our court has spoken quite emphatically and rightly so in reference to this matter of driving blindly, as a few quotations from our decisions will indicate:
"At no time should an automobile be operated upon the public highways when the driver cannot see ahead for a distance which will enable him to bring his car to a stop without injuring anyone. The automobile driver should not `take a chance' or `trust to luck'. Wosoba v. Kenyon, 215 Iowa 226, 243 N.W. 569, supra. While taking a chance, or trusting to luck, he may injure or kill a human being or destroy the property of another. To avoid such catastrophe, the legislature required that the operator drive his automobile at such a speed as to enable him to stop it `within the assured clear distance ahead', and thereby avoid injury or death to human beings and the destruction of property. Consequently, it is evident that the words `within the assured clear distance ahead', as used in the statute, signify that the operator of the automobile, when driving at night as well as in the day, shall at all times be able to stop his car within the distance that discernible objects may be seen ahead of it." Lindquist v. Thierman, 216 Iowa 170, at page 177,248 N.W. 504, 507, 87 A.L.R. 893.
[2] "It is the well-settled rule in this state that, where the view of the driver of an automobile is obstructed by smoke, fog, or other conditions of the weather, so that his visibility is entirely gone, he must stop until his vision has cleared, and the failure so to do is negligence. Hart v. Stence, 219 Iowa 55,257 N.W. 434, 436, 97 A.L.R. 535; Kadlec v. Johnson Construction Co.,217 Iowa 299, 252 N.W. 103." Townsend v. *Page 893
Armstrong, 220 Iowa 396, 403, 260 N.W. 17, 21. Again in the same case, speaking of the loss of visibility, the court said: "He knew of his entire loss of visibility and, under our general rule, he was required to stop before going forward. If he went forward under such circumstances, he did it at his own hazard and risk."
In the case of Greenland v. City of Des Moines, 206 Iowa 1298,1301, 221 N.W. 953, 954, we again said:
"When visibility was lost, the car should have stopped. It availed him nothing to carry automobile lights if his windshield was obscured. The loss of visibility and the venture of the driver to proceed without it were clearly the proximate cause of this accident."
In the Thierman case, supra, is this further quotation:
"If, then, the driver of an automobile, because of the defective lights, cannot see more than ten feet ahead of his car, he must so control the same that he can stop it if necessary within such radius of the lights."
In the instant case, when the plaintiff lost visibility because of the lights of the approaching car, he should have reduced his speed so that when he lost all visibility he could stop immediately. Had he done this, the accident in question would not have occurred.
It will be noticed from these cases that the rule is laid down emphatically that speed must be reduced accordingly as visibility is reduced. We have here, however, a little different situation. At the time these lights refused to work, according to the testimony, appellant's driver was operating his car at a speed which would enable him to stop within the distance that he could discern an object in the highway. The visibility was 35 feet. His testimony was that he could probably stop within 20 to 25 feet. Therefore he was within this rule insofar as speed was concerned up to the moment his lights went out. If we apply it literally to the instant case then the appellant would be negligent if his car moved ahead six inches after the lights went out. Of course it was his duty to stop and not proceed blindly.
[3] In passing on this motion it was the duty of the court to construe the evidence in the light most favorable to appellant.
[4] Here is the driver's story: *Page 894
"When the approaching car passed me I put my bright lights on high, but they didn't trip on; I pushed the button a couple of times but it didn't work and I tried to use the brake, and while I was reaching for my brakes I turned on my other light; the other light is an emergency road lamp located on the front bumper; I must have been about 50 feet from the rear end of the McCord truck at the time the other car passed me going in the opposite direction. There isn't much difference in visibility in a fog with the lights on dim than when on high. Our lights penetrated the fog that night so as to be able to discern an object on the highway about 35 feet away. I was not very long trying to put the lights on before I tried the brakes; the minute the lights didn't come on I started using the foot brake; I used the foot brake first and then reached for the emergency light and turned that on. I then saw the McCord truck right ahead of me, not over 10 or 15 feet away. I probably was about 35 to 40 feet back of McCord's truck when I first applied my brake. I had been slowed down somewhat by the brakes and I don't believe I was traveling more than 10 to 15 miles per hour when I first saw the McCord truck 10 feet away. I attempted to swing out but I couldn't because it was slick. The brakes weren't catching. The wheels slipped when I turned and I released the brakes. I hit the left rear corner of McCord's truck; the right front end of our truck was hit; the cab was demolished. There was some mud on the pavement where they had been driving cattle across. I probably could stop the outfit in 20 to 25 feet under the conditions then existing. It takes a little time to apply the brakes. I used the foot brake — not emergency. I meant that the truck would probably stop in 25 feet after the brakes were on. I can't stop any quicker with emergency brake than with foot brake because of slippery pavement. If the roads were dry at the time and place of the accident under the circumstances as they were that evening and with the load on my truck, I believe our truck could be stopped with the brakes we had within 20 feet. I was about 10 feet from the rear end of McCord's truck when it first loomed in sight. The road was a little more slippery at the point where the road led into the field than at other places on the highway. I was about 15 feet back of the rear end of McCord's truck when I first applied my brakes after the lights went out and about 10 feet from the rear end of the truck when I first saw it. I was about *Page 895
15 feet back when I started to apply the brake and I traveled about 35 feet during the time I was attempting to put the lights on."
In announcing legal principles governing the conduct of individuals, care should be taken not to require the impossible. There must be enough elasticity in the rule to render it reasonably practicable and capable of observance. No better measure has ever been devised than that known as the ordinarily prudent person standard. What then, would an ordinarily prudent person have done under the circumstances? The trial court by his ruling says as a matter of law he would have first applied his brakes. We confess it is a close question, very troublesome and difficult, but under all the facts and circumstances in this case, we are inclined to hold that this matter should have been submitted to the jury under proper instructions.
It therefore follows that the trial court was in error in sustaining the motion to direct the verdict, and the case must be and is reversed. — Reversed.
RICHARDS, C.J., and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435959/ | Plaintiffs' petition in twenty-eight counts seeks damages resulting from a flood on May 23, 1944, to twenty-eight properties in defendant-city. At least most of the damaged properties are residences and contents thereof in an area adjacent to a diversion channel or race used by the city in the operation of its hydroelectric plant. Each count in turn consists of two divisions. The first division charges specific negligence of the city and the second is based on the doctrine of res ipsa loquitur.
Count 23 for damage to the Yeoman property was first tried under an arrangement whereby a verdict for plaintiff Yeoman would control as to the remaining counts except upon the issues of injury and amount of damage to the other properties. There was a verdict and judgment for Yeoman of $980 from which this appeal is taken.
The general course of the Des Moines River through Ottumwa is from northwest to southeast. At Turkey Island the river curves to the south and then makes a U turn to the northeast. On each side of Turkey Island is a dam 330 feet long. The diversion channel or race above mentioned extends southeast for about three fourths of a mile from an opening in the river near the east side of Turkey Island to the end of the U turn. Defendant's hydroelectric plant is at the lower end of the channel where it maintains four Tainter gates or floodgates in the channel which is 200 feet wide. Each gate is 25 feet long, 17 feet high, and can be raised 7 feet 7 1/2 inches from the bed of the channel.
The flooded area is immediately northeast of the race, between it and the Burlington railroad tracks which parallel the race, and between Blackhawk Street on the northwest and Cass *Page 959
Street on the southeast. Along each side of the race is a levee. Tracks of the Milwaukee railroad are built on the northeast levee. The bridge across the race just below Blackhawk Street belongs to the Milwaukee. The accompanying plat may help visualize the physical layout.
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 960
About 7:30 a.m. on Tuesday, May 23, 1944, water began to overflow the northeast levee of the race about 75 feet northwest of Benton Street (the second street below Blackhawk) into the area in question. This overflow from the race continued during the day until the water in this area averaged about three feet deep. Mr. Brown, superintendent of the waterworks, and other employees of defendant were fully aware of what was happening.
About 8:30 a.m., a proprietor of a business establishment in the flooded area asked Mr. Brown about opening the floodgates above referred to. Mr. Brown replied it might endanger the Milwaukee's bridge to do so. There was a similar conversation between a resident of the area and Mr. Brown about 10:45 a.m. The gates remained closed until about 8:30 that evening when they were opened.
[1] I. Defendant contends there is insufficient evidence the damage complained of was caused by the negligence charged in division 1 of the various counts. The only specific charge of negligence submitted to the jury was defendant's failure to open the floodgates, thus blocking the flow of water through the race. We think the evidence, in the light most favorable to plaintiffs, sufficient to warrant submitting to the jury the claim based on this charge of negligence.
Incidentally we may observe this contention of defendant seems somewhat inconsistent with its contention both in the trial court and here that plaintiffs were not entitled to rely on the doctrine of res ipsa loquitur because they had introduced evidence of specific negligence.
The floodgates were opened upon the recommendation of Colonel Peel, an army engineer from Rock Island who had come to Ottumwa at Superintendent Brown's request because of the flood. Opening the gates permitted about 8.4 per cent more water to go through the race in a given time. There is substantial evidence that soon after the gates were opened at 8:30 p.m. the flow of water over the northeast levee diminished, by eleven p.m. or before entirely stopped, and no water thereafter overflowed that levee. The only water in the flooded area was overflow from the race. The jury could properly conclude that raising the gates diminished and soon stopped the overflow into this area *Page 961
and that the delay of twelve hours in opening the gates was the proximate cause of the flooding.
The stage of the river at Ottumwa at seven a.m. on May 23, about when the overflow from the race started, was 13.3 feet. This reading increased until a peak of 17.7 feet was reached at seven p.m. on May 24. The only other flood of this area was in 1903 when the river stage at Ottumwa was at least 20.7 feet. But there is substantial evidence that in 1903 the floodwater came direct from the river over Blackhawk Street and not as here from the race.
Nine times between the 1903 flood and the trial in March, 1946, the river stage exceeded 13.3 feet. On one of these occasions, when the river stage reached 14.24, Superintendent Brown assured residents of this area they would not be flooded because the height of the water in the race could be regulated by manipulating the floodgates and this was done. On another of these occasions, when the river stage was 13.5, witnesses testify water in the race was not within four feet from the top of the northeast levee. It may be inferred this condition was the result of opening the gates.
At 1:15 a.m. on Wednesday, May 24, defendant made an opening 60 feet wide and 15 to 18 feet deep in the southwest levee along the race at the curve about midway between the lower end of the flooded area and the end of Tisdale Street, immediately north of Cass Street. Defendant argues this opening in the southwest levee rather than the raising of the floodgates brought relief to the flooded area.
It is doubtless true this "blowing" of the southwest levee materially accelerated flowage through the race after the gates were opened, helped prevent more overflow along the northeast levee and minimized further damage. But the jury could find the damage was done by the time the gates were opened. The evidence concerning the blowing of the southwest levee does not conclusively demonstrate that failure to open the gates until the flood had progressed thirteen hours was not the proximate cause of the damage.
In support of our holding on this branch of the case see Jefferis v. Chicago N.W. Ry. Co., 147 Iowa 124, *Page 962
124 N.W. 367; Vyse v. Chicago, B. Q. Ry. Co., 126 Iowa 90, 101 N.W. 736; Darling v. Thompson, 108 Mich. 215, 65 N.W. 754; Kearney Canal
W.S. Co. v. Akeyson, 45 Neb. 635, 63 N.W. 921. Issues of negligence and proximate cause in cases of this kind are usually for the jury. 56 Am. Jur., Waters, section 174, page 641.
[2] II. Defendant's requested instruction No. 13 states "that if plaintiffs' property, in its natural condition before theconstruction of any dams, race or levees, would have been overflowed by the Des Moines River in May 1944, then plaintiffs are not entitled to recover." Defendant complains of the refusal of this and similar requests and the giving of instruction No. 9.
The substance of instruction No. 9 is that the city was not required to provide protection against overflow of plaintiff's (Yeoman's) property by dikes or levees and would not be liable for failure to do so or for negligence or defective construction so long as no more water was thrown on the property than would have naturally flowed over it if no dikes or embankments had been constructed; plaintiff claims his damage resulted from defendant's negligence in the operation and not the construction of its plant, gates, etc.; it was defendant's duty to exercise reasonable care to so operate its plant, gates, etc. as to avoid overflow of plaintiff's property; if it failed to exercise such care it would be negligent; if such negligence was the proximate cause of plaintiff's damage and plaintiff was free from contributory negligence then defendant would be liable for the damages sustained by plaintiff without regard to whether the landwould or would not have overflowed had it been in its naturalstate.
Defendant excepted to this instruction, particularly the clause italicized by us, on the ground that if "plaintiff's property would have been flooded had it been in its natural state" defendant would not be liable. The refusal of defendant's thirteenth request and similar ones and the giving of instruction No. 9, in connection with the instructions as a whole, was not error.
The instructions make it plain the only specific charge of negligence submitted to the jury was defendant's failure to open the gates and that both divisions 1 and 2 of the various counts of the petition are bottomed on claimed negligence only in the operation of defendant's plant. The jury was told in effect at *Page 963
least twice that in order to be the proximate cause of plaintiff's damage it must be shown the overflow would not have occurred if defendant had not been negligent in the operation of its plant as claimed by plaintiff.
Further reference to the evidence is called for. The race was first constructed in 1875-76 to a width of 60 to 80 feet. The northeast levee was then in its present location but was made higher about 1884 when the Milwaukee placed its tracks there. In 1917-18 the city replaced its old water power plant with a hydroelectric plant. The two dams were rebuilt in 1917. The present plant was constructed in 1930-31. The race was widened on the southwest side in 1932 to its present width of 200 feet and the levee on that side was then built.
Defendant owed plaintiffs the duty of exercising reasonable care in the operation of its plant and if it failed in this duty and such failure was the proximate cause of the damage complained of it would be liable therefor provided of course there was no contributory negligence. Defendant could not relieve itself from liability to plaintiffs for the direct consequences of its negligent operation of the plant on the theory that if conditions had remained as they were some sixty-eight years previously the river would have overflowed plaintiffs' property. This is the effect of instruction No. 9.
The area in question has not been in its natural state since the dams, race and levees were built. It is not material in this particular case whether it would have been flooded from the river if it had remained in its natural condition. The fallacy of defendant's thirteenth request is the inclusion therein of the portion above italicized by us, "in its natural condition before the construction of any dams, race or levees." The substance of the request with these words eliminated is embodied in the instructions given to the effect plaintiff could not recover unless he established he would not have been flooded if defendant had not been negligent in the operation of its gates.
Defendant was required to exercise due care in operating its plant under the conditions as they existed in May 1944, and not prior to 1875. In determining whether defendant was negligent in failing to open the gates plaintiffs were in effect entitled *Page 964
to whatever protection the improvements made by the city and its predecessors afforded their property.
Numerous authorities support our conclusion defendant was obligated to use reasonable care in the operation of its plant to prevent damage to neighboring property from escaping water. See Kelly v. Inhabitants of Town of Winthrop, 219 Mass. 471, 107 N.E. 414; Scott v. Longwell, 139 Mich. 12, 102 N.W. 230, 5 Ann. Cas. 679; City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 128 N.W. 817, 32 L.R.A., N.S., 59, Ann. Cas. 1912A 108; Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 1 L.R.A., N.S., 596; 3 Farnham, Waters and Water Rights, section 982, page 2798; 56 Am. Jur., Waters, section 171; 67 C.J., Waters, section 375. Some of these authorities say in substance the care to be exercised in such cases is in proportion to the danger of injury from escape of the water.
The refusal of requested instruction No. 13 and others like it and the giving of instruction No. 9 in the respect complained of find support in Jefferis v. Chicago N.W. Ry. Co., supra,147 Iowa 124, 130, 131, 124 N.W. 367.
Decisions cited by defendant do not conflict with our conclusion here. We will mention most of them. In McAdams v. Chicago, R.I. P.R. Co., 200 Iowa 732, 205 N.W. 310, and Pfannebecker v. Chicago, R.I. P.R. Co., 208 Iowa 752, 226 N.W. 161, part of the flooding was caused by a railroad embankment or trestle and part by natural overflow from a stream. We held the railroad was not liable for the entire injury. In Platter v. City of Des Moines, 237 Iowa 348, 355, 21 N.W.2d 787, 780, there were two separate floods for only one of which the city was responsible and there was no evidence of the damage caused by that flood. Here, as stated, all the water in the flooded area came from defendant's race and, the jury could find, as a result of the negligence charged against defendant.
King v. Chicago, B. Q. Ry. Co., 71 Iowa 696, 29 N.W. 406, Brainard v. Chicago, R.I. P. Ry. Co., 151 Iowa 466, 131 N.W. 649, and Hinkle v. Chicago, R.I. P. Ry. Co., 208 Iowa 1366, 227 N.W. 419, cited by defendant, involve the right — and duty — of a railroad company to install an opening in its embankment to permit water to flow in its natural course. *Page 965
[3] III. Defendant's witnesses Professor Waterman and Superintendent Brown express the opinions the flooded area would have been overflowed from the Des Moines River if it had remained in its natural state and also if the hydroelectric plant, including the gates, had been removed, other conditions remaining as they were in May 1944. The witnesses say they reached these conclusions from computations largely based on maps and charts showing various distances, ground elevations and river stages. Their testimony is much too involved to be explained in detail here. Defendant contends it was entitled to a directed verdict because of this evidence.
Division II hereof disposes of this contention insofar as it is based on testimony as to flooding of the area if it had remained in its natural state. Opinions that the area would have been flooded if the gates had been removed, other conditions remaining as they were in May 1944, were entirely proper since they tend to show failure to open the gates was not the proximate cause of the flood.
However, this opinion evidence did not entitle defendant to a directed verdict. The jury was not compelled to accept these opinions as verities. Such testimony is not infallible but is subject to infirmities that characterize other evidence. The jury was fully instructed as to the weight to be given the expert opinion testimony in accordance with expressions by us in Moore v. Chicago, R.I. P. Ry. Co., 151 Iowa 353, 359, 360, 131 N.W. 30; Thompson v. Chicago N.W. Ry. Co., 158 Iowa 235, 139 N.W. 557; Fowle v. Parsons, 160 Iowa 454, 141 N.W. 1049, 45 L.R.A., N.S., 181; Crouch v. National Livestock Remedy Co., 210 Iowa 849, 231 N.W. 323; Wood v. Wood, 220 Iowa 441, 444, 262 N.W. 773.
Defendant did not except to the instruction and says in argument it has no quarrel with it. The instruction includes the statement, in substance, controlling effect need not be given the opinions of experts although they may not be arbitrarily rejected.
Defendant contends that because the opinions of Professor Waterman and Mr. Brown purport to be based on data as to distances, elevations and river stages the verdict here is contrary to undisputed physical facts. We think, however, the so-called *Page 966
"physical facts rule" defendant invokes is not applicable here and did not entitle it to a directed verdict.
The decisions cited last above support our conclusions on this phase of the case.
[4] IV. Defendant complains of the receipt in evidence of Exhibit P-2 which purports to be a certified copy of records in the Des Moines office of the United States Weather Bureau showing the river stage at Ottumwa on six occasions of high water between May 31, 1903, and June 19, 1944. The exhibit is signed by H.C.S. Thom, senior meteorologist in charge, as custodian of the records.
After Exhibit P-2 had been read to the jury early in the trial defendant as part of its case offered testimony by Mr. Thom that the river stage of 24.8 feet for May 31, 1903, shown on the exhibit is not substantiated by records in his office but was taken from an official bulletin gotten out by such office under Mr. Thom's predecessor as head meteorologist. Defendant then moved to exclude Exhibit P-2 because it appeared from Mr. Thom's testimony the figure given for May 31, 1903, was not certified from an official record. The motion was overruled.
Admission of Exhibit P-2 and refusal to exclude it, under the circumstances here, do not constitute reversible error. There seems to be no controversy as to the river stage on the five occasions shown by the exhibit other than May 31, 1903. Three of these five stages appear on other exhibits offered by defendant and two of the three are also shown by oral testimony of defendant's witness Crawford. Mr. Brown has been superintendent of defendant's plant since February 1912, and seems to have closely watched the river stage in times of high water. No effort was made to show the incorrectness of Exhibit P-2 except as to the river stage for May 31, 1903. Mr. Thom does not deny he certified the exhibit as true copies of the records of his office.
There is much testimony, including that of Mr. Brown, that the highest river stage at the time of the 1903 flood was 20.7 feet rather than 24.8 as shown by Exhibit P-2. Any uncertainty as to the exact figure for 1903 is apparently due to the fact, testified by Mr. Thom, that the weather bureau had no official observer of river stages in Ottumwa in 1903. The testimony *Page 967
fully explains how the figure 24.8 came to be inserted in Exhibit P-2. The evidence, including defendant's, is all to the effect the river stage during the 1903 flood was the highest within memory. Defendant's Exhibit D-37 states it is reported as the highest stage since 1850.
Even if the river stage in 1903 did not exceed 20.7 as contended by defendant, it was still 7.4 feet higher than on the morning of May 23, 1944, and 3 feet higher than on the evening of May 24 at the time of the flood here in question. Under these circumstances there could have been little if any prejudice to defendant from Exhibit P-2.
When offered, the exhibit seems to have been properly received under section 622.43, Code, 1946, which applies to "Duly certified copies of all records and entries or papers belonging to any public office * * *." Mr. Thom's subsequent testimony was a matter for consideration by the jury, along with Exhibit P-2, but the court was not required because of such testimony to exclude the exhibit. See 7 Wigmore on Evidence, Third Ed., section 2135; 32 C.J.S., Evidence, section 625, page 477.
[5] It was not reversible error to refuse defendant's fifteenth requested instruction which states Exhibit P-2 is not conclusive upon plaintiffs' claim that the river stage was 24.8 on May 31, 1903, and that Mr. Thom's testimony should be considered in determining the weight to be given this exhibit. The practice of setting out in an instruction testimony on which one party relies is not to be commended because it tends to give undue prominence thereto. State v. Dunne, 234 Iowa 1185, 1194, 15 N.W.2d 296, 301, and citations; 53 Am. Jur., Trial, sections 566, 567. The court's instructions upon the weight of the evidence were sufficient.
[6] V. Defendant argues it was error to submit the case to the jury under the res ipsa loquitur doctrine invoked by division 2 of the various counts because plaintiff offered evidence in support of one of the specific charges of negligence contained in division 1 and such charge was submitted to the jury. We think, however, the mere introduction of evidence to support this specific charge and the submission thereof to the jury did not deprive plaintiff of the right to have submitted to the jury *Page 968
the res ipsa doctrine in support of the general allegation of negligence contained in division 2, provided such doctrine is properly applicable to the case.
While no Iowa decision is direct authority for our conclusion, we have held several times it is proper to allege specific negligence in one count and to invoke the res ipsa doctrine by alleging general negligence in another count. (Here of course the divisions of the various counts are themselves equivalent to counts.) Rauch v. Des Moines Elec. Co., 206 Iowa 309, 313, 218 N.W. 340; Crozier v. Hawkeye Stages, 209 Iowa 313, 320, 228 N.W. 320; Sutcliffe v. Fort Dodge Gas Elec. Co., 218 Iowa 1386, 1393, 257 N.W. 406; Pearson v. Butts, 224 Iowa 376, 379, 276 N.W. 65. The petition here is patterned after these decisions. Intimations in the Rauch case and especially the Crozier case, both supra, support our conclusion here.
If a plaintiff is permitted to plead in separate counts both specific negligence and general negligence as a basis for the application of the res ipsa doctrine the mere introduction of evidence to support the specific allegations or the submission thereof to the jury should not render such doctrine inapplicable. Not until the jury has spoken can it be known whether plaintiff has succeeded in establishing the specific negligence charged.
For numerous cases which hold that alleging specific negligence does not preclude reliance upon res ipsa loquitur where general negligence is also alleged, see annotations 79 A.L.R. 48, 59; 160 A.L.R. 1450, 1464. See also 38 Am. Jur., Negligence, sections 263, 305; 45 C.J., Negligence, section 786, page 1228. That the mere introduction of evidence of specific negligence does not prevent resort to the res ipsa rule under general allegations, see Cassady v. Old Colony St. Ry. Co., 184 Mass. 156, 68 N.E. 10, 12, 63 L.R.A. 285; Partin's Admr. v. Black Mountain Corp.,248 Ky. 32, 58 S.W.2d 234, 93 A.L.R. 606, and annotation 609; 38 Am. Jur., Negligence, section 299, page 996; 45 C.J., Negligence, section 774, page 1207.
[7] Where the precise cause of the injury clearly appears or is beyond dispute, of course there is no room for inference and the res ipsa rule has no application. See authorities last above. However it cannot be said here the cause of the overflow from the race is established beyond doubt. *Page 969
Submission of both divisions to the jury here, provided of course the evidence gives rise to the res ipsa doctrine, finds support on principle in decisions that a plaintiff is entitled to join and have submitted to the jury, if there is sufficient supporting testimony, a count based on express contract and one bottomed on quantum meruit. Donahoe v. Gagen, 217 Iowa 88, 250 N.W. 892, and citations; Russell v. Clemens Co., 196 Iowa 1121, 195 N.W. 1009. Wells v. Wildin, 224 Iowa 913, 277 N.W. 308, 115 A.L.R. 169, is a like decision where one count was based on the theory plaintiff was a guest entitled to recover for recklessness and the other count on the theory he was not a guest and could recover for mere negligence.
[8] VI. There remains defendant's contention the res ipsa doctrine is not applicable to the case.
Under this doctrine, where injury occurs by instrumentalities under the exclusive control and management of defendant and the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference that defendant was negligent. See Orr v. Des Moines Elec. L. Co., 207 Iowa 1149, 1154, 222 N.W. 560; Sutcliffe v. Fort Dodge Gas Elec. Co., supra, 218 Iowa 1386, 1394, 257 N.W. 406; Pearson v. Butts, supra, 224 Iowa 376, 380, 276 N.W. 65; Highland Golf Club v. Sinclair Refining Co., 8 Cir., Iowa, 59 F. Supp. 911, 915 (Judge Graven); annotations 53 A.L.R. 1494; 167 A.L.R. 658, 665; 38 Am. Jur., Negligence, section 295.
The res ipsa rule should not be confused with the proposition that negligence, like other facts, may be proven by circumstantial evidence. Existence of circumstantial evidence of negligence in a particular case does not mean the res ipsa doctrine is applicable in that case. Nor does rejection of such doctrine in a given case mean that negligence may not be established in that case by circumstantial evidence.
[9] In considering the applicability of res ipsa loquitur, the question whether the particular occurrence is such as would not happen if reasonable care had been used rests on common experience and not at all on evidence in the particular case that tends in itself to show such occurrence was in fact the result of *Page 970
negligence. Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722, 729, and annotation 731; Eickhoff v. BeardLaney, 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010, and annotation 1016; Waddell v. Woods, 158 Kan. 469, 148 P.2d 1016, 152 A.L.R. 629, 634; annotation 59 A.L.R. 468; 38 Am. Jur., Negligence, section 297; 45 C.J., Negligence, section 778.
[10] Here the physical cause of plaintiff's damage was overflow from the race. Defendant's answer admits the race, hydroelectric plant and gates were under its exclusive control and management although it denies the res ipsa doctrine is applicable. Although defendant was in exclusive control of the race and gates, it cannot fairly be said the floodwater flowing into the race from the river was exclusively under defendant's control and management. Such floodwater is one of the instrumentalities that caused the damage.
Our decisions involving the res ipsa rule have uniformly stressed the necessity of defendant's complete and exclusive control of the instrumentalities that cause the injury. Pierce v. Gruben, 237 Iowa 329, 347, 21 N.W.2d 881, 889, 19 N.C.C.A., N.S., 73; Whetstine v. Moravec, 228 Iowa 352, 368, 291 N.W. 425; Highland Golf Club v. Sinclair Refining Co., supra, 8 Cir., Iowa,59 F. Supp. 911, 915.
Further, we think it may not fairly be said that in the ordinary course of things or, as frequently stated, according to common experience, water does not overflow the banks of such a race where those in control of the race exercise reasonable care. Evidence which may show negligence in this particular case is not to be considered in determining this question.
Certainly it is common experience for natural watercourses to overflow their banks in time of heavy rains without lack of care by any human agency. Flooding of lowlands along swollen streams in wet seasons is common. It appears here the Des Moines River overflowed its banks and flooded other portions of Ottumwa at this particular time. Turkey Island and territory on all sides of it were under water. The dams were scarcely visible. That the water which caused the damage here escaped from an artificial channel that carries water from the river rather than from *Page 971
the river itself seems insufficient basis for an inference the occurrence was the result of negligence.
No authority has come to our attention that would support a holding this is a res ipsa case. City Water Power Co. v. City of Fergus Falls, supra, 113 Minn. 33, 128 N.W. 817, 32 L.R.A., N.S., 59, Ann. Cas. 1912A 108, holds merely that the petition, if amended to allege negligence, stated a cause of action under the res ipsa doctrine for damages from flooding when defendant's dam "suddenly and without previous warning gave way." So far as the opinion discloses, it was not a time of heavy rains.
Willie v. Minnesota Power Light Co., 190 Minn. 95,250 N.W. 809, seems to hold, although not clearly so, res ipsa loquitur applied where damage resulted from flooding caused by partial breakage of a dam which necessitated the opening of the floodgate.
In addition to these two Minnesota decisions, plaintiffs cite Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 70 S.E. 126, 33 L.R.A., N.S., 1061, and Wigal v. City of Parkersburg, 74 W. Va. 25, 81 S.E. 554, 52 L.R.A., N.S., 465, which apply res ipsa loquitur where flooding was caused by bursting of large water tanks on hillsides.
These Minnesota and West Virginia decisions more nearly than does the case at bar resemble the category of cases which apply res ipsa loquitur where damage is caused by collapsing structures. It is significant too that both the Minnesota and West Virginia courts have looked with favor upon the English decision in Rylands v. Fletcher, L.R., 3 H.L. 330, 1 Eng. Rul. Cas. 236, which imposes liability irrespective of negligence for damage from artificially stored water, although in most states this decision is now regarded as unsound. See City Water Power Co. v. City of Fergus Falls, supra; 56 Am. Jur., Waters, section 167; 67 C.J., Waters, section 356.
Decisions are not uniform as to whether res ipsa loquitur applies where damage is caused by breakage of an underground water pipe. See Foltis v. City of New York, 287 N.Y. 108,38 N.E.2d 455, 153 A.L.R. 1122, where the doctrine is held applicable. Contra is Goldman v. City of Boston, 274 Mass. 329, 174 N.E. 686. See also 56 Am. Jur., Waterworks, section 38; note, Ann. Cas. 1916C 1050, 1051. *Page 972
The underlying reason for the res ipsa rule or, as Dean Wigmore expresses it, "the particular force and justice" thereof, is "that the chief evidence of the true cause * * * is practically accessible to him [defendant] but inaccessible to the injured person." See 9 Wigmore on Evidence, Third Ed., section 2509, pages 380-384; Pierce v. Gruben, supra, 237 Iowa 329, 346,21 N.W.2d 881, 889, 19 N.C.C.A., N.S., 73; Savery v. Kist, 234 Iowa 98, 103, 11 N.W.2d 23, 25; Fink v. New York Cent. R. Co.,144 Ohio St. 1, 56 N.E.2d 456, 458; annotation 169 A.L.R. 953, 969-972; 38 Am. Jur., Negligence, section 299; 45 C.J., Negligence, section 773.
It does not appear that the chief evidence of the cause of the overflow from the race was accessible to defendant but inaccessible to plaintiffs. Apparently such evidence was equally accessible to plaintiffs as to defendant. The underlying reason for the application of the res ipsa rule is therefore not here present.
[11] Further, we think there was error, of which proper complaint has been made, in the manner of submitting the res ipsa rule to the jury, if the doctrine were here applicable. Instruction No. 12, in effect, makes such rule applicable to the specific charge of negligence made in division 1 of the various counts and submitted to the jury thereunder. This is contrary to our decisions that res ipsa loquitur may not be invoked in aid of specific charges of negligence. See Rauch v. Des Moines Elec. Co., supra, 206 Iowa 309, 313, 218 N.W. 340, and citations; Orr v. Des Moines Elec. L. Co., supra, 207 Iowa 1149, 1156, 222 N.W. 560; Bauer v. Reavell, 219 Iowa 1212, 1219, 260 N.W. 39; Luther v. Jones, 220 Iowa 95, 99, 100, 261 N.W. 817.
The conclusions stated in this division require a reversal. — Reversed.
HAYS, C.J., and BLISS, OLIVER, HALE, WENNERSTRUM, SMITH, and MULRONEY, JJ., concur.
MANTZ, J., not sitting. *Page 973 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4302260/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 09 2018, 9:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Craig A. Dechert Mark A. Dabrowski
Kokomo, Indiana Dabrowski Law Office
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Rees, August 9, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-DR-447
v. Appeal from the Howard Superior
Court
Judith Rees, The Honorable Brant J. Parry,
Appellee-Petitioner Judge
Trial Court Cause No.
34D02-1604-DR-300
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 1 of 9
[1] Thomas Rees appeals the trial court’s order dissolving the marriage between
Thomas and Judith Rees. Thomas contends that the trial court erroneously
valued an asset and erred in dividing the marital assets equally between the two
parties. Finding no error, we affirm. We also find that Judith is entitled to at
least a portion of her appellate attorney fees. Therefore, we remand for
calculation of her fees and a determination of what portion Thomas owes.
Facts
[2] Thomas and Judith were married in February 2009; each party brought a
Kokomo residence into the marriage. On April 26, 2016, Judith filed a petition
to dissolve the marriage. At the time the petition was filed, the couple owned
several motor vehicles, including a 2007 Chateau motor home.
[3] During the marriage, Judith was “separated from” the couple’s financial
dealings. Tr. Vol. II p. 36. She had no access to any information about
Thomas’s retirement account and had no information about anything related to
a lien on the motor home.
[4] On May 20, 2016, Judith’s counsel served discovery on Thomas, including
interrogatories and a request for production. Thomas did not respond;
therefore, on August 26, 2016, Judith’s counsel filed a motion to compel, which
the trial court granted. Thomas never provided any documents in response to
the request for production. He provided interrogatory responses on September
8, 2016. In response to a series of detailed questions regarding real property,
vehicles, lienholders of vehicles, and debt, he repeatedly responded “N/A[.]”
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 2 of 9
Tr. Ex. p. 48. At the hearing on the dissolution petition, the following
discussion occurred between Thomas and Judith’s attorney regarding Thomas’s
discovery responses:
Q: Can you tell me please since I’ve been waiting to get here
for a number of months in to court, why you didn’t
disclose the existence of your real property, your motor
vehicles, the amounts that you now claim are owed or
otherwise?
A: You want to know the reason why?
Q: Yes can you tell us why you didn’t?
A: Because I was just plain ass pissed off. Matter of fact
when, if my lawyer would confirm, when I came in and
they handed this to me I threw it back to them and then
most recently I didn’t fill it out at all.
Q: How about interrogatory number 30 did we ask you about
what you owed?
A: I suppose you did.
Q: Did you answer it?
A: Probably not.
***
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 3 of 9
Q: Did you bring anything with you here today sir that
establishes the lien you allege is on the RV? The payment
that you make?
A: No.
Q: Nothing?
A: No.
Tr. Vol. II p. 17-18. It was eventually established that Thomas had even
stonewalled his own attorney. Judith’s attorney later asked Thomas, “were you
so pissed off that you didn’t even tell your lawyer about the liabilities that you
owe?” Thomas responded, “No, I did not.” Id. at 29.
[5] The final hearing on the petition to dissolve took place on December 4, 2017.
At the hearing, Thomas claimed, in relevant part, that the couple had a lien on
the motor home, which had an original purchase price of $130,000, totaling
approximately $100,000. He offered no documentary evidence, either before
the hearing in response to discovery requests, or at the hearing itself, to support
this claim (or any of his other claims).
[6] Thomas has a retirement account worth approximately $296,000; Judith has a
retirement account valued at approximately $38,500. Thomas receives
approximately $250 per month from Social Security and approximately $3,600
per month from other sources; Judith receives approximately $1,150 from
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 4 of 9
Social Security per month and approximately $105 per month from other
sources.
[7] On December 6, 2017, the trial court entered a decree of dissolution. In
relevant part, the trial court found that the value of the motor home was
$130,000, noting as follows:
[Thomas] testified that there is a debt on the vehicle. However,
[Thomas] could not provide an exact amount. Further, as
[Thomas] did not provide discovery to [Judith], [Judith] was
unable to obtain evidence of the same. [Thomas’s investment]
account decreased several hundred thousand dollars during the
course of the marriage. It is not clear whether this vehicle was
purchased with a portion of that money. Therefore, the Court
will not include a debt for the vehicle.
Appealed Order p. 2. The trial court awarded each party the residences they
respectively owned prior to the marriage. Ultimately, having considered the
required statutory factors, the trial court ordered that the marital estate be
divided equally. It also ordered Thomas to pay a portion of Judith’s attorney
fees in the amount of $3,500. Thomas now appeals.
Discussion and Decision
I. Valuation of Motor Home
[8] Thomas first argues that the trial court erred by valuing the motor home at
$130,000. He contends that the amount of the alleged lien on the motor home
should have been subtracted from the overall amount. Trial courts have broad
discretion in ascertaining the value of property in a dissolution action. E.g.,
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 5 of 9
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We will not reverse unless
the valuation is clearly against the logic and effect of the facts and
circumstances before the trial court, and in conducting our review, we will not
reweigh the evidence. Id.
[9] In this case, there is no evidence supporting Thomas’s assertion that there is a
lien on the motor vehicle other than the bald declarations he made during his
testimony. The reason that there is no such evidence is his dogged refusal to
respond to Judith’s interrogatories in an honest and forthright manner and his
outright refusal to produce any documents at all. It is readily apparent that the
trial court questioned his credibility—which is certainly a fair assessment, given
Thomas’s testimony reproduced above—and declined to credit his statements
absent documentary evidence to back them up.
[10] Thomas notes that after the decree of dissolution was entered, he filed a motion
to correct error, seeking to introduce evidence of the vehicle lien for the first
time. But this is evidence that he has had in his possession from the start. By
his own admission at the final hearing, he simply and intentionally refused to
produce it or to answer Judith’s questions about it honestly. Under these
circumstances, the trial court was perfectly correct to deny the motion to correct
error.
[11] As it stands, the only evidence in the record that the trial court found to be
credible establishes the value of the motor home to be $130,000. Therefore, its
decision to value the vehicle in that amount was not erroneous.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 6 of 9
II. Division of the Marital Estate
[12] Thomas also argues that the trial court erred by dividing the marital estate
equally. According to Thomas, he brought the majority of the couple’s assets
into the marriage by way of his retirement account. He also admits that Judith
is economically disadvantaged at the time of dissolution but argues that he left
her “in a better position” than she was in when they got married. Appellant’s
Br. p. 13.
[13] When dividing a marital estate, the presumption is that the estate should be
divided equally. The presumption may be rebutted by evidence that an equal
division would not be just and reasonable. Ind. Code § 31-15-7-5. Among
other things, the following factors may be considered:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was
income producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time
the disposition of the property is to become effective,
including the desirability of awarding the family residence
or the right to dwell in the family residence for such
periods as the court considers just to the spouse having
custody of any children.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 7 of 9
(4) The conduct of the parties during the marriage as related
to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
Id. The party challenging the trial court’s property division must overcome a
strong presumption that the court complied with the statute and considered the
evidence on each of the statutory factors. E.g., Harrison v. Harrison, 88 N.E.3d
232, 234 (Ind. Ct. App. 2017), trans. denied.
[14] In this case, the only evidence presented by Thomas was his own testimony and
one document, which established the value of a retirement account in 2014—
two years before the petition to dissolve was filed—and which was included in
the exhibits introduced by Judith. As noted above, the trial court evidently
found Thomas to be lacking in credibility, which is a sound conclusion given
his admitted dishonesty throughout the proceedings. As a result, there is no
evidence supporting Thomas’s argument or assertions. In other words, he fails
to overcome the strong presumption that the trial court complied with the
statute.
[15] The trial court awarded Judith a portion of her attorney fees in the decree of
dissolution. Given that Thomas’s arguments on appeal all stem from his own
obstinacy and obstreperousness during discovery and at the final hearing, we
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 8 of 9
believe it warranted to remand to the trial court to calculate Judith’s appellate
attorney fees and decide what portion1 of those fees Thomas should bear.
[16] The judgment of the trial court is affirmed and remanded for calculation of
appellate attorney fees.
May, J., and Robb, J., concur.
1
The trial court is free to find that Thomas should bear all, or only a part, of Judith’s appellate attorney fees.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 9 of 9 | 01-03-2023 | 08-09-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3211661/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MOHAN NIRALA, DOCKET NUMBER
Appellant, DC-1221-16-0230-W-1
v.
DEPARTMENT OF DEFENSE, DATE: June 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mohan Nirala, Laurel, Maryland, pro se.
Jack W. Rickert, Springfield, Virginia, 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 this individual right of action (IRA) 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 interpretation of statute or regulation or the erroneous application of
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
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. Except as
expressly MODIFIED by this Final Order to dismiss this IRA appeal for lack of
jurisdiction on other grounds, we AFFIRM the initial decision.
¶2 Effective November 27, 2015, the agency removed the appellant from his
excepted-service position as a GEOINT Analyst at the National
Geospatial-Intelligence Agency because the revocation of his security clearance
and access to classified information rendered him unqualified for this position.
Initial Appeal File (IAF), Tab 1 at 10. The appellant filed an IRA appeal alleging
that he was removed in reprisal for engaging in protected whistleblowing
activity. 2 IAF, Tab 2 at 2. The administrative judge informed the appellant of
the criteria for establishing jurisdiction over an IRA appeal and ordered him to
submit proof that he exhausted his administrative remedies before the Office of
Special Counsel (OSC). Id. at 3-4. The administrative judge also stated that he
would dismiss the appeal for lack of jurisdiction if the appellant failed to respond
to the order. Id. at 4.
2
The appellant filed an appeal with the Board challenging his removal. See MSPB
Docket No. DC-0752-16-0189-I-1, Initial Appeal File (0752 IAF), Tab 1. The appellant
raised several affirmative defenses on appeal, including a claim of whistleblower
reprisal. 0752 IAF, Tab 1, Tabs 5-6, 10-14. Based on the written record, the
administrative judge dismissed the appeal for lack of jurisdiction and forwarded his
claim of whistleblower reprisal for docketing as this IRA appeal. 0752 IAF, Tab 15,
Initial Decision at 5 n.4.
3
¶3 After the appellant failed to respond to the order, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 3, Initial Decision (ID). In the decision, the administrative judge found that
the appellant failed to prove that he exhausted his administrative remedies before
OSC. ID at 2-3. The appellant filed a petition for review and submitted a closure
letter from OSC, issued 1 day before the initial decision, as proof of exhaustion.
Petition for Review (PFR) File, Tab 2 at 58.
¶4 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in activity protected by the Whistleblower
Protection Enhancement Act of 2012 (WPEA); and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action. See Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015).
¶5 Although, on review, the appellant submitted new evidence that he
exhausted his administrative remedies before OSC, we find that the Board has no
jurisdiction over this IRA appeal because his former employer is not an agency
covered under the WPEA. 3 Under 5 U.S.C. § 2302(a)(2)(C)(ii), “agency” means
an Executive agency and the Government Publishing Office, but specifically
excludes the appellant’s former employing agency, the National
Geospatial-Intelligence Agency, from coverage. See Presidential Policy Directive
3
On review, the appellant submitted a copy of OSC’s December 29, 2015 letter closing
its file on his complaint alleging that his former employer, the National
Geospatial-Intelligence Agency, removed him and revoked his security clearance in
reprisal for whistleblowing, discriminated against him based on race and national
origin, and retaliated against him for filing equal employment opportunity complaints.
PFR File, Tab 2 at 58. In the letter, OSC stated that it had no jurisdiction to investigate
allegations of prohibited personnel practices filed against the National
Geospatial-Intelligence Agency because 5 U.S.C. § 2302(a)(2)(C)(ii)(I) specifically
excludes that agency from coverage. Id. OSC also provided the appellant with a link to
a website with information about how employees of the intelligence community can
seek redress for whistleblower reprisal. Id.
4
19 (Oct. 19, 2012). 4 Because the appellant’s former employer is specifically
excluded from the generally applicable definition of “agency” covered under the
WPEA, we find that the Board has no jurisdiction over this IRA appeal. We
therefore deny his petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit.
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 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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
4
Presidential Policy Directive 19 (PPD-19), “Protecting Whistleblowers with Access to
Classified Information,” requires the National Geospatial-Intelligence Agency and other
covered agencies to provide an internal review process for retaliation claims by
employees “(1) serving in the Intelligence Community or (2) who are eligible for access
to classified information.” PPD-19 also provides for an Inspector General External
Review Panel process. PPD-19, ¶ C.
5
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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
6
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/4100003/ | Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Necessity )
for the Hospitalization of ) Supreme Court Nos. S-15847/15868
)
JACOB S. ) Superior Court No. 3AN-14-03156 PR
)
) OPINION
)
) No. 7133 – November 18, 2016
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Meg Allison Zaletel, Zaletel Law, Anchorage,
for Appellant. Dario Borghesan, Assistant Attorney General,
Anchorage, and Craig W. Richards, Attorney General,
Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
The respondent in involuntary commitment and medication proceedings
appeals a number of issues related to findings that he was mentally ill and posed a risk
of harm to others. The superior court ordered both 30- and 90-day commitments — the
latter following a jury trial. The court also entered medication orders after finding the
respondent unable to make mental health treatment decisions.
Primary among the issues the respondent raises are two legal questions.
First, when a respondent requests a jury trial on a 90-day commitment petition, who —
between the jury and the court — decides the factual underpinning for and the ultimate
question of least restrictive alternative to commitment? We conclude that this decision
making is for the court. Second, AS 47.30.837(d)(1) sets out a four-part test — joined
by the conjunctive “and” — for determining whether a respondent is competent to make
mental health treatment decisions; can a respondent be found incompetent if one part is
not met? We conclude that the answer is “yes.”
With these conclusions in mind, we resolve the issues raised by the
respondent in the State’s favor. We therefore affirm the superior court’s commitment
and medication orders.
II. FACTS AND PROCEEDINGS
Jacob S.1 was hospitalized for a mental health evaluation in January 2015,
after his domestic partner filed an involuntary commitment petition because Jacob
stopped taking his medication, she observed him experiencing paranoid delusions about
their neighbor, and she thought his delusions had caused him to act violently toward their
neighbor. After an evaluation Dr. David Mack at Alaska Psychiatric Institute (API) filed
a 30-day commitment petition asserting that Jacob had a mental illness and was likely
to cause harm to himself or others. Dr. Mack also petitioned for court approval to
administer psychotropic medication because Jacob lacked capacity to give informed
consent.
A magistrate judge held a hearing on the petitions. Both Jacob’s neighbor
and Jacob’s partner testified telephonically. Jacob’s neighbor testified that Jacob had
filed a restraining order against her in November 2014 alleging that she was stalking him,
1
A pseudonym has been used to protect the respondent’s privacy.
-2- 7133
had broken into his house, and had been tasing him with a “stop gun.” The neighbor also
testified to her suspicion that Jacob had thrown a rock through her window and
attempted to set fire to her house with a “Molotov cocktail” on two separate occasions
the previous month.
Jacob’s partner testified that she recognized several bottles from the
“Molotov cocktail” incident as having come from their house. She also testified that
Jacob had been doing “strange things” and then did not remember what he had done, for
example connecting an electric welder to their house’s back door. He had unplugged the
telephone then denied doing so. He layered towels, cardboard, newspaper, and pillows
over the house’s windows and couch to protect himself from the neighbor’s “tasing.”
Dr. Mack testified about Jacob’s delusional disorder diagnosis. Dr. Mack
was concerned that Jacob’s strange behavior concerning his neighbor was connected to
his fixed delusions, but Dr. Mack thought psychotropic medication might soften those
delusions. Jacob refused to acknowledge he was suffering from delusional disorder, and
he had not yet received medication.
Finding that Jacob suffered from a mental illness and posed a risk of danger
to others, the magistrate judge recommended the 30-day commitment. The magistrate
judge then addressed the medication petition. The court-appointed visitor testified that
although Jacob “demonstrate[d] rational thought process in regards to medications,” his
inability to recognize his mental illness meant “he would not have the capacity based on
that particular reason alone.” Dr. Mack stated that treatment methods other than
psychotropic medication would not be successful and that Jacob could meaningfully
participate in treatment decisions only if he recognized his disorder. The magistrate
judge found that Jacob lacked capacity to give informed consent, that medication was in
Jacob’s best interests, and that no less restrictive alternative was available. The superior
court approved and adopted these findings and issued the orders.
-3- 7133
Dr. Mack filed another petition in February for a 90-day commitment order
and an accompanying petition to continue administration of psychotropic medication.
Jacob requested a jury trial.2 Much of the trial testimony concerned Jacob’s mental
health and actions prior to his original commitment and was repetitious of that given at
the 30-day commitment hearing. Jacob’s brother testified that he was willing to provide
housing if Jacob were released from API. Because Jacob’s brother’s residence is only
two blocks away from Jacob’s, the State questioned whether that placement would
protect Jacob’s neighbor. Jacob’s brother responded that he would monitor Jacob and
prevent him from returning there. Timothy Mannen, a board-certified psychiatric nurse
practitioner at API, testified that someone with Jacob’s delusions would not simply get
better over time and that merely moving Jacob to a new residence would not alleviate the
delusions. Mannen stressed that although treatments other than commitment and
medication, like therapy, are available, it is difficult to convince a person suffering from
delusional disorder to “restructure or realize that what . . . they are thinking that is fixed
and false and disordered is not true.”
The jury found that Jacob was mentally ill; that as a result he was likely to
cause harm to others; and that he was advised of, but did not accept, voluntary treatment.
The superior court then held a further evidentiary hearing to decide whether a less
restrictive alternative to commitment existed and whether involuntary medication was
in Jacob’s best interests. Jacob testified, expressing a willingness to take medication and
participate in therapy if he were released to a family member’s home. Mannen testified
that placement with a family member was not appropriate because Jacob’s response to
the medication was not yet “robust” enough. The court visitor who had interviewed
2
AS 47.30.745(c) entitles a 90-day commitment petition respondent to a jury
trial on request. In contrast no similar right is provided under AS 47.30.735(b)(1)-(9)
for a 30-day commitment petition.
-4- 7133
Jacob a week earlier testified that he did not have the capacity to participate in his
treatment planning. The court determined that until Jacob’s delusions softened, releasing
him to a family member would not adequately protect the public. The court also
expressed doubt that Jacob would take his medication if released from API. The court
determined that no less restrictive alternative to commitment at API existed at that time,
and that medication was in Jacob’s best interests.
Jacob appeals, arguing that allowing telephonic testimony at the 30-day
hearing violated his due process rights and was an abuse of discretion and that the 30
and 90-day commitment orders and the medication orders were erroneously issued. The
State contends that the superior court’s rulings were correct and that Jacob’s challenges
to the medication orders are moot.
III. STANDARDS OF REVIEW
We review a trial court’s decision to allow telephonic testimony for abuse
of discretion.3 “We will find an abuse of discretion when the decision on review is
manifestly unreasonable.”4 “Factual findings in involuntary commitment or medication
proceedings are reviewed for clear error,” and we reverse those findings only if we have
a “definite and firm conviction that a mistake has been made.”5 Whether those findings
meet the involuntary commitment and medication statutory requirements is a question
3
See Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 71 P.3d 811, 817 (Alaska 2003) (citing Midgett v. Cook Inlet Pre-Trial
Facility, 53 P.3d 1105, 1109 (Alaska 2002)).
4
Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508
(Alaska 2015) (citing Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005)).
5
Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)
(citing Martin N. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs.,
79 P.3d 50, 53 (Alaska 2003)).
-5- 7133
of law we review de novo.6 “We apply our independent judgment to the interpretation
of both the Alaska Constitution and statutes, adopting ‘the rule of law that is most
persuasive in light of precedent, reason, and policy.’ ”7 We use our independent
judgment to determine if a pending controversy is moot.8
IV. DISCUSSION
A. The 30-Day Commitment Order
1. It was not error to allow telephonic testimony at the hearing.
Jacob asserts that it was a violation of his due process rights to allow his
partner and his neighbor to testify telephonically at the 30-day hearing because their
credibility was a central issue. “A civil litigant’s right to confront witnesses is . . .
founded upon notions of procedural due process,” and the question we must decide is
“whether due process, in this case, necessitates that” Jacob “be afforded the right to
[confront]” the witnesses in person rather than telephonically.9 Alaska uses the Mathews
v. Eldridge three-part balancing test “for determining the necessary extent of due
process” in the commitment context.10 We consider:
6
Id.
7
Id. (footnotes omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)) (first citing Grinols v. State, 74 P.3d 889, 891 (Alaska 2003); then citing
Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235, 1237 (Alaska 2001)).
8
In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (quoting Clark v. State,
Dep’t of Corr., 156 P.3d 384, 386 (Alaska 2007)).
9
See In re A.S.W., 834 P.2d 801, 805 (Alaska 1992) (citing Thorne v. State,
Dep’t of Pub. Safety, 774 P.2d 1326, 1332 (Alaska 1989)) (determining whether due
process required civil litigant be given the right to confront witness against him).
10
Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 181 (Alaska 2009) (citing
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
-6- 7133
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.[11]
Involuntary commitment imposes a serious limitation on an individual’s
liberty interest,12 and Jacob’s insistence that witnesses testify in person thus implicates
a private interest of significant weight.
We have previously examined the risk of erroneous deprivation of a right
and stated that “[a]lthough the due process analysis is a flexible and contextual one
focusing on the interest and not the outcome, there must be some actual prejudice under
the second prong and not merely the ‘theoretical possibility of prejudice.’ ”13 This means
Jacob must show that he “was likely to have achieved a more favorable outcome” had
the witnesses testified in person.14 Jacob’s attorney cross-examined the witnesses, but
chose not to attack their credibility during the cross-examination. When Jacob’s attorney
objected to the telephonic testimony, the magistrate judge responded that he would “be
11
Id. (quoting Whitesides v. State, Dep’t of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1135 (Alaska 2001) (setting out Mathews balancing test)).
12
Wetherhorn, 156 P.3d at 375-76 (noting that involuntary commitment
represents a “massive curtailment of liberty” (quoting Humphrey v. Cady, 405 U.S. 504,
509 (1972))).
13
Paula E. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs.,
276 P.3d 422, 433 (Alaska 2012) (footnote omitted) (quoting D.M. v. State, Div. of
Family & Youth Servs., 995 P.2d 205, 212 (Alaska 2000)).
14
Id.
-7- 7133
careful” about credibility issues. Because Jacob’s right to cross-examine the witnesses
was protected and he made no express attempt to bring their credibility into question, we
cannot easily conclude that a different result would have been reached had the witnesses
testified in person.
The State’s asserted interest is in providing evidence quickly so that
“potentially dangerous people will [not] be released from the hospital without treatment
that protects them and the community.” Involuntary commitment hearings must occur
within 72 hours of the respondent’s initial detention,15 requiring flexibility in gathering
evidence to meet the deadline. We recognize the significant weight of the State’s interest
in protecting respondents and the community by providing evidence within that short
time period.
Because the low erroneous deprivation risk and the State’s great health and
public safety interest tip the scale in the State’s favor — even balanced against Jacob’s
significant liberty interest — we conclude that telephonic testimony at the 30-day
hearing did not deprive Jacob of his due process rights.
In addition to his due process argument, Jacob contends that the magistrate
judge abused his discretion because no good cause existed for the witnesses to appear
telephonically. Courts have discretion to allow a witness to appear telephonically at a
hearing “for good cause and in the absence of substantial prejudice to opposing
parties.”16 The State expressed doubt that the witnesses could arrive at the hearing in a
timely manner, in part because one witness is wheelchair bound; both witnesses also had
protective orders in place against Jacob. The record supports that there was good cause
for allowing telephonic testimony and Jacob has failed to establish any resulting
15
AS 47.30.725(b).
16
Alaska R. Civ. P. 99.
-8- 7133
prejudice. We therefore conclude that the magistrate judge did not abuse his discretion
in allowing the telephonic testimony.
2. The 30-day order was not erroneously issued.
At the conclusion of a 30-day commitment hearing a court “may commit
the respondent to a treatment facility . . . if it finds, by clear and convincing evidence,
that the respondent is mentally ill and as a result is likely to cause harm to the respondent
or others.”17 The respondent is “likely to cause serious harm” if the respondent “poses
a substantial risk of harm to others as manifested by recent behavior causing, attempting,
or threatening harm, and is likely in the near future to cause physical injury, physical
abuse, or substantial property damage to another person.”18
The superior court found that Jacob was mentally ill and was likely to cause
harm to others as a result of his mental illness because of: (1) Jacob’s partner’s “serious
concerns” about Jacob “doing things . . . that he was disavowing any knowledge of,”
including connecting an electric welder to their home’s metal door; (2) his partner’s
recognition of “the bottles used to make the so-called Molotov cocktails . . . from her
own house”; (3) his partner’s testimony that there were “a couple incidents” involving
“dangerous things occurring”; and (4) Dr. Mack’s statements about whether Jacob’s
“delusions . . . [and] fixed false beliefs, [were] resulting in behavior that poses a
substantial risk to others.”
Jacob does not challenge the finding that he was mentally ill. But Jacob
urges us to review de novo the superior court’s decision regarding harm to others
because Jacob “was committed based on speculation and not on facts sufficient to meet
a clear and convincing standard of proof.” We decline to do so because Jacob’s
17
AS 47.30.735(c).
18
AS 47.30.915(12)(B); In re Joan K., 273 P.3d 594, 598 (Alaska 2012).
-9- 7133
argument, though couched as a legal question, simply asks us to reweigh the evidence
presented at the 30-day hearing and choose between conflicting interpretations. We will
not overturn a fact finding unless left “with a definite and firm conviction that a mistake
has been made.”19 Conflicting evidence is generally insufficient to overturn a fact
finding, and we will not reweigh evidence if the record supports the court’s finding.20
Jacob’s partner testified that she was concerned for her safety because of
his actions. She stated that she recognized the bottles used to set fire to their neighbor’s
house as coming from her house. The neighbor’s testimony also supports the court’s
inference that Jacob had been involved with both the rock and “Molotov cocktail”
incidents. Dr. Mack described the danger of Jacob’s delusional disorder as his false
beliefs about his neighbor manifesting in actions like “setting dangerous booby traps,
taking preemptive activities, or going to extreme measures to ensure security.” Because
evidence in the record supports the court’s finding, we cannot say it is clearly erroneous.
Accordingly, the 30-day order was not erroneously issued.
B. The 90-Day Commitment Order
1. The 30-day order did not taint the 90-day order.
Alaska Statute 47.30.740(c) allows “findings of fact relating to the
respondent’s behavior made at a 30-day commitment hearing under AS 47.30.735” to
be admitted as evidence, and those findings “may not be rebutted except that newly
19
In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (citing Wetherhorn v.
Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)).
20
Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 254 P.3d 1095, 1103 (Alaska 2011) (“Conflicting evidence is generally
insufficient to overturn the superior court, and we will not reweigh evidence when the
record provides clear support for the superior court’s ruling.”).
-10- 7133
discovered evidence may be used for the purpose of rebutting the findings.”21 Jacob
asserts that this statute allowed the State to present much of the same evidence at the 90
day hearing as was provided at the 30-day hearing, prejudicing him because he could not
raise issues concerning his partner’s and neighbor’s credibility or challenge the allegedly
erroneous findings from the 30-day hearing without newly discovered evidence.
Jacob’s first contention, that he was not able to raise issues concerning his
partner’s or neighbor’s credibility, is without merit. Jacob could have raised issues about
those witnesses’ credibility at the 90-day hearing regardless of any finding made at the
30-day hearing.22 But when Jacob cross-examined both witnesses at the 90-day hearing,
he made no attempt to suggest they were not credible.
Jacob’s second contention is also without merit. Jacob argues that because
he could not refute findings from the 30-day hearing without new evidence, legal and
factual errors occurring in that proceeding tainted any findings from the 90-day hearing.
But, as explained above, the 30-day order was not erroneously issued, and we find no
error in accepting the facts established at the 30-day hearing.
2. The jury instructions were correct.
Jury Instruction No. 17 reads:
On January 12, 2015, the court issued findings of fact
following hearings related to a petition for hospitalization.
These facts cannot be rebutted during this hearing, unless
[Jacob] brings forth new evidence. This means you must
accept those facts as true. The facts that were established
during each of those hearings were as follows:
21
AS 47.30.740(c).
22
See Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness
is subject to exploration at trial, and is ‘always relevant as discrediting the witness and
affecting the weight of his testimony.’ ” (quoting 3A J. WIGMORE, EVIDENCE § 940 at
775 (1970))).
-11- 7133
(1) [Jacob] was mentally ill, and as a result of that illness,
he posed a risk of harm to others.
(2) [Jacob] was advised of and refused voluntary
treatment.
Jacob contends that this instruction prejudiced him because it forced the jury to accept
the legal conclusions from the 30-day hearing, eliminating the State’s burden to prove
that Jacob was mentally ill and as a result posed a risk of danger to others at the time of
the 90-day hearing.23
Instruction No. 17 did not prejudice Jacob when read in concert with
Instruction No. 12.24 Instruction No. 17 informed the jurors that they must accept as true
that Jacob “was mentally ill, and as a result of that illness, he posed a risk of harm to
others” at the time of the 30-day hearing. (Emphasis added.) And Instruction No. 12
told the jury its task was to determine if Jacob “is mentally ill” and “as a result of his
mental illness he is likely to cause harm to himself or others.” (Emphases added.) This
clearly reflects AS 47.30.755’s requirement that a jury find Jacob mentally ill and posing
a risk of danger at the time of the 90-day hearing.25 There was no prejudicial error in the
jury instructions.
23
See Tracy C., 249 P.3d at 1092 (interpreting 30-day commitment statute to
require finding based on respondent’s mental health at time of the hearing and noting that
“[t]he superior court may not involuntarily commit a patient . . . if by the time of the
hearing the patient is no longer mentally ill . . . or likely to harm []self or others”).
24
“An error in jury instructions is grounds for reversal only if it caused
prejudice.” City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting
Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012)).
25
This statute allows the superior court to commit a respondent for 90 days
if the “jury finds by clear and convincing evidence that the respondent is mentally ill and
as a result is likely to cause harm to self or others.” AS 47.30.755(a).
-12- 7133
3. The 90-day order was supported by the evidence.
Jacob argues that the superior court should have disregarded the jury’s
finding that he was mentally ill and as a result was likely to cause harm to others because
no evidence was presented at the 90-day hearing that Jacob was likely to cause harm to
others. The parties disagree whether Jacob can challenge the court’s decision directly
or must challenge the jury’s verdict, because AS 47.30.755(a) states that “the court may
commit the respondent” if the jury finds that the respondent is mentally ill and is likely
to cause harm to others. Our task in reviewing the 90-day order would change
depending on whether we review the jury’s verdict or the court’s fact findings: We must
affirm a jury’s fact findings unless no evidence supports them,26 but we review the
court’s fact findings to determine if they are clearly erroneous.27 Because Jacob’s
argument is unavailing under either standard of review, we do not decide whether the
court could have appropriately disregarded the jury’s verdict in this case.
Jacob contends that the superior court “relied solely” on his refusal to take
medication when it entered the 90-day commitment order following the jury’s verdict.
He asserts that after the initial medication order expired he was voluntarily compliant
with his medication and that because of his compliance the court should have found he
“did not meet the standard for commitment regardless of the jury’s determination
otherwise.” But contrary to Jacob’s assertion the court found, and our review of the
record supports, that Jacob still posed a risk of harm to himself or others.
26
Nautilus Marine Enters., Inc. v. Valdez Fisheries Dev. Ass’n, 943 P.2d
1201, 1205 n.8 (Alaska 1997) (“A jury’s verdict will be overturned if there is no
evidence supporting the verdict.” (quoting Municipality of Anchorage v. Baugh Constr.
& Eng’g Co., 722 P.2d 919, 927 (Alaska 1986))).
27
Dale H. v. State, Dep’t of Health & Soc. Servs., 235 P.3d 203, 209 (Alaska
2010).
-13- 7133
There is strong evidence in the record that at the 90-day hearing Jacob still
suffered from delusional disorder at the same intensity as during his 30-day commitment
hearing. Mannen testified that he had reviewed the treatment team’s records the day
before the hearing began and that he evaluated Jacob after the hearing’s first day.
Mannen indicated that Jacob did not understand his diagnosis, had been on medication
for only ten days, had not yet benefitted from the medication, and his delusions remained
active. In response to the question “today, do you believe that [Jacob] poses a risk of
harm to himself or other people,” Mannen responded “I do, yes.” Mannen explained his
opinion was based on Jacob’s lack of progress in softening his delusions. This evidence
supports the jury’s verdict and the court’s issuance of the 90-day commitment order. It
was not error to issue the 90-day commitment order.
C. No Less Restrictive Alternative To Commitment
1. The superior court properly considered the question.
Courts must consider whether a less restrictive alternative would provide
adequate treatment when contemplating involuntary commitment.28 Alaska Statute
47.30.730(a)(2) requires a 30-day involuntary commitment petition to “allege that the
evaluation staff has considered but has not found that there are any less restrictive
alternatives available that would adequately protect the respondent or others.” This
28
AS 47.30.915(11); In re Joan K., 273 P.3d 594, 598, 601-02 (Alaska 2012)
(finding no less restrictive alternative where surveillance by family would not provide
sufficient support and patient’s behavior lacked stability in part because she denied she
was mentally ill). “Least restrictive alternative” means that the treatment facilities and
conditions “are no more harsh, hazardous, or intrusive than necessary to achieve the
treatment objectives of the patient” and “involve no restrictions on physical movement
nor supervised residence or inpatient care except as reasonably necessary for the
administration of treatment or the protection of the patient or others from physical
injury.” Joan K., 273 P.3d at 599 (quoting AS 47.30.915(11)).
-14- 7133
requirement carries over to a 90-day petition.29 And AS 47.30.735(d) states that “[i]f the
court finds that there is a viable less restrictive alternative available and that the
respondent has been advised of and refused voluntary treatment through the alternative,
the court may order the less restrictive alternative treatment.” This requirement also
carries over to a 90-day commitment.30
Alaska Statute 47.30.745(c) gives a respondent the right to a jury trial when
contesting a 90-day commitment petition. Jacob asserts that his right to a jury trial
should extend at minimum to the factual findings underpinning whether a less restrictive
alternative exists.
An examination of AS 47.30.755 leads us to conclude that the less
restrictive alternative decision, including any necessary fact findings underpinning that
decision, rests with the court and not the jury.31 Alaska Statute 47.30.755(a) specifically
permits either “the court or jury” to find that a respondent is mentally ill and as a result
29
AS 47.30.740(a).
30
AS 47.30.755(b).
31
AS 47.30.755 provides:
(a) After the hearing and within the time limit specified
in AS 47.30.745, the court may commit the respondent to a
treatment facility for no more than 90 days if the court or jury
finds by clear and convincing evidence that the respondent is
mentally ill and as a result is likely to cause harm to self or
others, or is gravely disabled.
(b) If the court finds that there is a less restrictive
alternative available and that the respondent has been advised
of and refused voluntary treatment through the alternative,
the court may order the less restrictive alternative treatment
after acceptance by the program of the respondent for a
period not to exceed 90 days.
-15- 7133
is likely to cause harm to others.32 In contrast AS 47.30.755(b) allows only “the court”
to find that there is a less restrictive alternative.33 The language difference between the
provision’s two parts shows that the statute clearly was intended to allow only the court
to make this decision. And this makes sense in balancing the roles of the jury and the
court — the less restrictive alternative determination requires balancing an individual’s
liberty interest, the State’s interest in treating the individual, and available treatment
options and facilities.34 This is a task uniquely suited to the court. It was not error for
the superior court to make the less restrictive alternative determination, including the
factual findings underpinning that decision.
2. The record supports the superior court’s less restrictive
alternative decision.
The superior court provided limited analysis in its written order concerning
the existence of a less restrictive alternative: “[Jacob] has active delusions. He does not
believe he has a mental illness and is unlikely to take necessary medication. There are
no less restrictive alternatives for him right now. . . . No less restrictive facility would
adequately protect [Jacob] and the public, and no less restrictive facility has accepted
[Jacob].”
However the court’s oral findings during the 90-day hearing were more in-
depth. The jury found that Jacob’s continuing mental illness meant he posed a risk of
danger to others, and the court noted that “[m]oving a couple blocks away [to his
brother’s house] probably is not going to protect [the neighbor] at this point” as Jacob’s
32
AS 47.30.755(a).
33
AS 47.30.755(b).
34
See Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 185 (Alaska 2009)
(explaining existence of less restrictive alternative is mixed question of law and fact).
-16- 7133
delusions about her had not yet softened. And the court explained that Jacob would
remain “a danger to the public until” there were sufficient assurances that he would take
his medication. The court had “no reason at [that] point to think that” Jacob would take
his medication as part of outpatient treatment.
Jacob again asks us to weigh conflicting evidence to determine that the
court’s decision was incorrect, but we “grant especially great deference” to the trial court
in these situations and “will reverse only if a review of the record leaves us with a
definite and firm conviction that a mistake has been made.”35 Jacob points to Mannen’s
testimony that Jacob could be safely discharged under certain conditions and Jacob’s
brother’s testimony that he would house and supervise Jacob as suggesting that a less
restrictive alternative to treatment at API existed. Jacob argues that the State did not
adequately explore the possibility of Jacob living with his brother because there “was no
testimony from API that anyone had spoken with Jacob’s brother about Jacob living with
him to see if he could allay any concerns about the proposed living arrangement.” But
Mannen explained that changing Jacob’s residence might “actually worsen his thinking”
and that he might “work harder” to act on his delusions. Mannen also stated that family
supervision was not an acceptable alternative to treatment at API until Jacob showed a
more robust response to his medication and his delusions softened. Even though Jacob
testified that he would be willing to take medication and participate in outpatient
treatment if released from API, the superior court found Jacob’s testimony was not
credible, a finding we will not question on appeal.36
35
In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (quoting Bigley, 208
P.3d at 178) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska
2007)).
36
See Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
(continued...)
-17- 7133
Because the record supports the superior court’s determination — by clear
and convincing evidence37 — that no less restrictive alternative to commitment at API
existed, that determination is not clearly erroneous.
D. The Medication Order
1. Jacob’s challenge to the medication order falls within the public
interest exception to the mootness doctrine.
The superior court’s order authorizing Jacob’s “involuntary commitment
does not authorize the [S]tate to treat [him] with psychotropic drugs.”38 “To treat an
unwilling and involuntarily committed mental patient with psychotropic medication, the
[S]tate must . . fil[e] a second petition, asking the court to approve the treatment it
proposes to give.”39 In that petition the State must prove — by clear and convincing
evidence — “that the committed patient is currently unable to give or withhold informed
consent regarding an appropriate course of treatment” and that the patient never refused
such treatment while previously competent.40 If the court determines that the patient is
not competent to make the decision, the court must next determine whether the
36
(...continued)
Servs., 289 P.3d 924, 930 (Alaska 2012) (“We defer to a superior court’s credibility
determinations, particularly when they are based on oral testimony.” (citing Pravat P.
v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 249 P.3d 264, 274
(Alaska 2011))).
37
In re Mark V., 375 P.3d 51, 58 (Alaska 2016) (“[A] petitioner must prove,
by clear and convincing evidence, the petition’s allegation that there are no less
restrictive alternatives.”).
38
Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 242 (Alaska 2006).
39
Id. at 242-43.
40
Id. at 243 (first citing AS 47.30.836(3); then citing AS 47.30.839(g)).
-18- 7133
medication is in the patient’s best interests.41 Jacob challenges both the superior court’s
determination that he was not competent and its finding that medication was in his best
interests.
We note that challenges to involuntary medication orders generally are
moot; due to the time required for appeal and the orders’ temporary duration, even a
favorable result on appeal will rarely stop involuntary medication.42 “[A] claim is moot
if it is no longer a present, live controversy, and the party bringing the action would not
be entitled to relief, even if it prevails.”43 “We will, however, consider the merits of a
claim that would otherwise be moot if the claim falls within the public interest exception
to the mootness doctrine.”44 One circumstance that can bring a medication order
challenge into this exception is when the challenge involves interpreting the underlying
statutory scheme.45 Jacob asserts that this case presents a question involving
interpretation of AS 47.30.837(d), regarding when a patient is competent to make mental
health treatment decisions, and we agree. We therefore consider Jacob’s arguments.
41
See id. at 250, 252, 254.
42
See, e.g., In re Gabriel C., 324 P.3d 835, 839 (Alaska 2014) (“Gabriel’s
appeal of the involuntary medication order is moot because the record indicates that the
order lapsed when his commitment ended.”).
43
Id. (quoting In re Tracy C., 249 P.3d 1085, 1090 (Alaska 2011)).
44
Tracy C., 249 P.3d at 1090 (citing Wetherhorn, 156 P.3d at 380).
45
See id. at 1090-91 (“[Q]uestions ‘regarding interpretation of the underlying
statutory scheme in commitment and medication proceedings’ . . . fall under the public
interest exception . . . .” (alterations in original omitted) (quoting Bigley v. Alaska
Psychiatric Inst., 208 P.3d 168, 179 (2009))).
-19- 7133
2. A single factor in AS 47.30.837(d)(1) can be dispositive when
determining a patient’s competency.
Alaska Statute 47.30.837 permits a treatment facility to administer
psychotropic drugs to a person involuntarily committed if, among other requirements,
“the facility has reason to believe that the patient is not competent to make . . . mental
health treatment decisions and the facility . . . follow[s] the procedures of
AS 47.30.839.”46 “Competent” in this context means the patient:
(A) has the capacity to assimilate relevant facts and to
appreciate and understand the patient’s situation with regard
to those facts . . . ;
(B) appreciates that the patient has a mental disorder
or impairment, if the evidence so indicates; denial of a
significantly disabling disorder or impairment, when faced
with substantial evidence of its existence, constitutes
evidence that the patient lacks the capability to make mental
health treatment decisions;
(C) has the capacity to participate in treatment
decisions by means of a rational thought process; and
(D) is able to articulate reasonable objections to using
the offered medication.[47]
Jacob argues that the superior court found him incompetent based only on
his inability to meet AS 47.30.837(d)(1)(B), an error because the statute requires a court
to weigh all the elements to determine competence. According to Jacob we previously
interpreted this statute to prevent a court from resting a competency decision on a single
46
AS 47.30.839 (setting out procedures for obtaining court order for forcibly
administering psychotropic medication in both emergency and non-emergency
situations).
47
AS 47.30.837(d)(1).
-20- 7133
element. In Myers v. Alaska Psychiatric Institute we briefly discussed AS 47.30.837,
stating that “[u]nder this provision, a patient’s inability to appreciate the presence of a
mental disorder is a relevant consideration [for competency] but is not dispositive.”48
But AS 47.30.837’s function and interpretation were not at issue in Myers.49 As the State
correctly asserts, this means that our brief mention of the statute in Myers is properly
considered dicta50 and does not control our interpretation of the statute here.
Alaska Statute 47.30.837(d)(1) does not require a weighing of multiple
factors — this statute defines when a patient is “competent” in four parts joined by the
word “and.” Because the four parts are joined in the conjunctive, a plain reading of the
statute suggests that the absence of any one element requires a finding that the patient is
not competent. Section (B)’s language further supports this reading of the statute:
“[D]enial of a significantly disabling disorder or impairment, when faced with substantial
evidence of its existence, constitutes evidence that the patient lacks the capability to
make mental health treatment decisions.”51 This language contemplates that a patient’s
denial of a significantly disabling mental illness, even when faced with substantial
48
138 P.3d 238, 243 (Alaska 2006) (citing AS 47.30.837(d)(1)(B)).
49
Id. at 254 (holding that the Alaska Constitution prohibits a court from
authorizing psychotropic drug treatment of an incompetent patient unless the court finds
“that the proposed treatment is in the patient’s best interests and that no less intrusive
alternative is available”).
50
See, e.g., Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122,
1135 (Alaska 2016) (“Suggesting that we somehow answered a question that was not
actually asked in [the prior case] is both incorrect and contrary to precedent. In every
case we decide what we decide, and nothing more.”); AAA Valley Gravel, Inc. v. Totaro,
219 P.3d 153, 167 (Alaska 2009) (agreeing with argument that a statement by trial court
was dicta, explaining it was not the litigation’s focus and “not binding”).
51
AS 47.30.837(d)(1)(B).
-21- 7133
evidence of that illness, will inform the court’s decision on the overarching question of
competence to make mental health treatment decisions. This suggests that a court could
find a patient lacks competence to make medical treatment decisions based on
AS 47.30.837(d)(1)(B) alone.
However “[w]e do not mechanically apply the plain meaning rule but use
a sliding scale approach to statutory interpretation, in which ‘[t]he plainer the statutory
language is, the more convincing the evidence of contrary legislative purpose or intent
must be.’ ”52 Jacob presents no legislative history supporting his reading of the statute,
and we found none. Because the statute’s application to this case is plain and evidence
contradicting a plain reading of the statute is lacking, we conclude that a superior court
may find a patient incompetent to make medical treatment decisions based on the lack
of a single element in AS 47.30.837(d)(1).
3. The superior court’s finding that Jacob was not competent to
participate in medical decisions is not clearly erroneous.
We now turn to the question whether the superior court complied with the
medication order statutes in determining — by clear and convincing evidence53 — that
Jacob lacked competence to participate in medical decisions.
Jacob argues that the superior court found he lacked competence purely
because he was not recognizing his mental illness, and that in doing so the court
improperly disregarded evidence that he was in fact competent. At the 30-day hearing
Dr. Mack testified to the effect of Jacob’s inability to recognize his mental illness on his
52
Huit v. Ashwater Burns, Inc., 372 P.3d 904, 912 (Alaska 2016) (second
alteration in original) (quoting Gov’t Emps. Ins. Co. v. Graham-Gonzalez, 107 P.3d 279,
284 (Alaska 2005)).
53
AS 47.30.839(g); Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
382 (Alaska 2007).
-22- 7133
ability to participate in medical treatment decisions. Jacob was not able to rationally
discuss treatment goals or establish a long-term maintenance plan because all discussion
attempts ended in him flatly denying his disorder. At the 90-day hearing the court-
appointed visitor similarly stated that Jacob’s inability to recognize his mental illness
prevented him from having a rational discussion about treatment. This testimony
supports the court’s determination that Jacob was not competent because he did not meet
AS 47.30.837(d)(1)(B)’s requirement that he be able to recognize his mental illness to
the extent required to make mental health treatment decisions. Accordingly, the superior
court’s finding is not clearly erroneous.
4. The superior court’s finding that medication was in Jacob’s best
interests is not clearly erroneous.
Jacob argues that the superior court’s finding that the 30-day medication
order was in his best interests was clearly erroneous.54 Jacob also argues that the court’s
findings about the Myers best interests factors were not sufficiently detailed in either the
30- or 90-day medication order. Those factors are:
(1) the extent and duration of changes in behavior patterns
and mental activity effected by the treatment; (2) the risks of
adverse side effects; (3) the experimental nature of the
treatment; (4) its acceptance by the medical community of the
state; and (5) the extent of intrusion into the patient’s body
and the pain associated with the treatment.[55]
54
Myers, 138 P.3d at 254 (“[A] court may not permit a treatment facility to
administer psychotropic drugs unless the court . . . expressly finds by clear and
convincing evidence that the proposed treatment is in the patient’s best interests and that
no less intrusive alternative is available.”).
55
Id. at 252 (citing Price v. Shepard, 239 N.W.2d 905, 913 (Minn. 1976))
(directing courts to “balance [a] patient’s need for treatment against the intrusivenes of
the prescribed treatment” (quoting Price, 239 N.W.2d at 913)).
-23- 7133
Dr. Mack’s testimony at the 30-day hearing about the proposed medication
supports a conclusion under the Myers factors that the treatment was in Jacob’s best
interests: Jacob previously showed great improvement while taking the medication over
a short time period; the risk of adverse side effects was low; and the medication was a
non-experimental, accepted treatment for delusional disorder. The court’s finding that
the medication was in Jacob’s best interests is not clearly erroneous.
We have previously noted the need for courts to make detailed findings
concerning the Myers best interests factors or to incorporate the magistrate judge’s
findings when deciding involuntary medication orders.56 The superior court considered
Jacob’s objections to the magistrate judge’s recommendation that the 30-day medication
order be granted. In response the superior court adopted the magistrate judge’s
reasoning that Dr. Mack’s testimony supported the best interests finding. As noted
above this testimony supports the finding that medication was in Jacob’s best interests
under the Myers factors.
The superior court’s best interests determination for the 90-day medication
order was similarly sparse, with the court pointing to Mannen’s testimony as support.
The medication requested in the 90-day medication petition was the same medication
given under the 30-day medication order. And, similarly to Dr. Mack’s testimony at the
30-day medication hearing, Mannen’s testimony supported a finding that the medication
was in Jacob’s best interests. Accordingly, the superior court’s best interests finding
underpinning the 90-day medication order is not clearly erroneous.
56
See In re Gabriel C., 324 P.3d 835, 840 (Alaska 2014).
-24- 7133
Although we affirm the superior court’s medication decisions, we again
emphasize the need for detailed findings when making best-interests decisions.57
V. CONCLUSION
We AFFIRM the superior court’s commitment and medication orders.
57
See id.
-25- 7133 | 01-03-2023 | 11-18-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4100016/ | [Cite as State v. Reece, 2016-Ohio-7805.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 27058
Plaintiff-Appellant :
: Trial Court Case No. 2015-CR-3991
v. :
: (Criminal Appeal from
DAMION K. REECE : Common Pleas Court)
:
Defendant-Appellee :
:
...........
OPINION
Rendered on the 18th day of November, 2016.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, Christopher B. Epley Co., L.P.A.,
100 East Third Street, Suite 400, Dayton, Ohio 45402
Attorney for Defendant-Appellee
.............
FAIN, J.
{¶ 1} The State appeals from an order of the trial court suppressing evidence. The
State contends that the trial court erred by concluding that the police officer did not have
-2-
a reasonable articulable suspicion to justify a pat-down search for officer safety.
Defendant-appellee Damion Reece contends that the trial court correctly concluded that
the facts did not support a conclusion that the officer had a reasonable, articulable belief
that Reece was armed and dangerous.
{¶ 2} We conclude that the trial court did not err in sustaining the motion to
suppress. The State’s sole assignment of error is overruled, and the suppression order is
Affirmed.
I. Reece Is Questioned in the Course of an Investigation
{¶ 3} In December 2015, a two-year-old child was shot, and the Dayton police
were following leads to locate the shooting suspect. The police were able to ping the
suspect’s cell phone to a location in the parking lot of the Westown Shopping Center.
When three detectives arrived at the shopping center, they observed Reece sitting in the
passenger side of an SUV in the parking lot. Reece had his hood up that partially covered
his head, and was looking down as if he was playing on his cell phone. The detectives
approached the vehicle with weapons drawn, and Reece complied with an order to place
his hands up. Detective Daugherty opened the passenger door, saw Reece’s face, and
concluded that Reece was not the person they had identified as the shooting suspect.
Reece cooperated with the detective’s request to identify himself and to produce
identification. When Reece reached toward his left rear pocket to reach for his wallet
with his left hand, his right arm moved toward his left side covering his waist area. The
detective described what he saw as follows:
Q: [W]hat happened after you asked him for his identification?
-3-
A: Well, as he - - he was sitting in the car. So he’s got his hands up.
I ask him for his identification. And, you know, he goes like to reach for his,
you know, his wallet in his back pocket. And, at the time, he takes his right
hand and he kind of covers his waistband area. And it just looked really
strange to me. So I was like you don’t have any weapons on you or anything.
And he said no. So I started reaching toward his waistband. I said well, I’m
going to have to check you to make sure you don’t have any weapons. And
as I reached for his waistband, he shoves my hand away with this hand.
Q: Okay.
A: So, at that time, I take my left hand and I just kind of push it up
against his chest to push him back and I tell him don’t move. And then I
grab for his waistband and I feel the gun in his waistband.
Q: Why did you find it was odd how he had positioned his right hand
when he was reaching for his wallet?
A: It just looked like he was hiding, you know, he was hiding
something because, I mean, if I’m going to reach my wallet, I’m going to
lean in and reach my wallet. I mean as he did it, he just like covers his, kind
of like away, turns kind of away from me, kind of covering up with his right
arm.
Transcript at pgs. 14-15.
{¶ 4} On cross examination, the detective testified:
Q: So if I’m following along correctly, you wanted to confirm that it
-4-
wasn’t an associate of Mr. Gray’s or a friend or a relative and you wanted
also to still try to locate the cell phone.
A: Correct.
Q: So you asked Mr. Reece for his ID.
A: His identification, yes.
Q: Okay. And it’s your testimony today that as he reached for his ID
he pulled, he protected himself, basically –
A: Yes.
Q: With his off hand.
A. That’s correct.
Q. All right.
THE COURT: I guess I didn’t follow that. You said, “he protected
himself”?
Mr. Rambo [representing Reece]: Well, maybe protect is not the
right word.
By Mr. Rambo: But I think your testimony was that he kind of
guarded.
A: Yeah.
Q: Did you use the word guarded?
A: To me, like I said, it looked very strange, I mean, he’s sitting here.
If I’m asking for ID I’m going to like maybe lean forward to get my wallet out.
He kind of, you know, like kind of turns a little bit to reach for his wallet and
as he brings his hand up like this to kind of conceal like his waistband.
-5-
Transcript at pgs. 27-28.
{¶ 5} Detective Daugherty stated that he has 18 years experience as a police
officer, including 11 years as a detective and that the location where Reece was found is
a high-crime area with a lot of violent crime, including weapon offenses. Transcript at pg.
19. Detective Daugherty testified that the shooting had occurred approximately four
hours before his interaction with Reece, at a location that was “a couple” miles away from
the shopping center. Transcript at pg. 22. Detective Daugherty also stated that before
he conducted the pat-down he confirmed that Reece was not the shooting suspect.
Transcript at pgs. 26-29.
II. The Course of Proceedings
{¶ 6} Reece was indicted on one count of Carrying a Concealed Weapon, a felony
of the fourth degree, in violation of R.C. 2923.12(A)(2), and one count of Weapons Under
Disability, a felony of the third degree, in violation of R.C. 2923.13(A)(2). At the
suppression hearing, the only witness who testified was Detective Brad Daugherty. Based
on the evidence presented at the hearing, the trial court issued a written decision
sustaining the motion to suppress. The trial court made specific findings of fact, including:
1. At the time the Detective requested the Defendant produce his
identification, the Detective knew the Defendant was not suspect Gray;
2. When the Defendant was requested to produce identification, he
went to his left back pocket with his left arm and retrieved his wallet; at the
same time, his right arm went towards the left of his body as he was moving
-6-
to get access to his wallet;
3. The Defendant did not “reach” for anything or make any furtive
movement.
Dkt. #19 at pg. 2-3.
{¶ 7} The trial court further noted that it had the opportunity to observe the right
arm motion demonstrated by Detective Daugherty on the witness stand, and based on
that observation, it concluded that the movement of Reece’s right arm, as he was reaching
for his wallet with the left arm, was a natural movement and not a furtive gesture. The
trial court concluded that the movement of Reece’s right arm as he retrieved his wallet
was not sufficient to support a reasonable belief that Reece was armed and dangerous
to justify a pat-down search for weapons. From the order suppressing evidence, the State
appeals.
III. Standard of Review
{¶ 8} “Appellate review of a trial court's decision regarding a motion to suppress
evidence involves mixed questions of law and fact. When ruling on a motion to suppress
evidence, a trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and to evaluate the credibility of witnesses.” State v. Burnside, 100
Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Consequently, an appellate court
must accept the trial court's findings of fact if they are supported by competent, credible
evidence. Id. Accepting the facts as true, the reviewing court then must independently
determine, without deference to the trial court, whether the trial court properly applied the
substantive law to the facts of the case. Id. Therefore, an appellate court reviews the
trial court’s application of the law to its factual findings based on a de novo standard of
-7-
review. State v. Belton, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-1581, ¶ 100.
IV. Based Upon the Trial Court’s Findings, which Are Supported by Evidence in
the Record, the Trial Court Did Not Err in Concluding that Detective Daugherty
Lacked Reasonable, Articulable Suspicion that Reece Was Armed
{¶ 9} The State alleges one assignment of error as follows:
THE TRIAL COURT ERRED IN FINDING THAT DETECTIVE
DAUGHERTY LACKED REASONABLE ARTICULABLE SUSPICION TO
BELIEVE THAT REECE WAS ARMED AND DANGEROUS BEFORE
PATTING HIM DOWN
{¶ 10} The State argues that when looking at the totality of the circumstances, the
detective on the scene had a reasonable basis to conduct a pat-down search for officer
safety. The only reason the detective had contact with Reece was because Reece was
in the vicinity of the cell phone of a shooting suspect, but before the pat-down occurred,
the detective knew that Reece was not that suspect. The basis for the pat-down search
was the movement Reece made with his right arm, as he reached for his wallet with his
left arm. Detective Daugherty described the movement as strange, leading him to believe
that Reece might be hiding or concealing something.
{¶ 11} “[A]n officer must have a reasonable individualized suspicion that the
suspect is armed and dangerous before he may conduct a patdown for weapons.” State
v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, ¶ 18, citing Terry v. Ohio,
392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man in the
-8-
circumstances would be warranted in the belief that his safety or that of others was in
danger.” (Citations and footnote omitted.) Terry at 27, 88 S. Ct. 1868. The existence of
reasonable suspicion is determined by evaluating the totality of the circumstances,
considering those circumstances “through the eyes of the reasonable and prudent police
officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist.
Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St. 3d
86, 87–88, 565 N.E.2d 1271 (1991).
{¶ 12} We have held that “[w]hile the nature of an area as a high-crime area is a
factor to be considered in determining whether a protective search is warranted, that
factor alone is insufficient to justify a protective search.” State v. Wilcox, 177 Ohio App. 3d
609, 2008-Ohio-3856, 895 N.E.2d 597, ¶19 (2d Dist.). We have also held that “although
furtive movements alone would not be sufficient to justify a search, they can be
considered in making a totality-of-the-circumstances determination.” State v. Abner, 194
Ohio App. 3d 523, 2011-Ohio-4007, 957 N.E.2d 72, ¶ 12 (2d Dist.). “A furtive gesture
may be defined as a situation where ‘police see a person in possession of a highly
suspicious object or some object which is not identifiable but which because of other
circumstances is reasonably suspected to be contraband and then observe that person
make an apparent attempt to conceal that object from police view.’ ” Id., quoting State v.
Allen, 2d Dist. Montgomery No. 23738, 2010-Ohio-3336, ¶ 31.
{¶ 13} In the case before us, we defer to the trial court’s finding that Reece did not
reach for anything or make any furtive movement. Besides the general requirement that
we give appropriate deference to a trial court’s findings of fact, in the case before us the
trial court observed Detective Daugherty’s demonstration of Reece’s right-arm
-9-
movement, as a result of which it is in a better position than we are to evaluate the extent
to which that movement could give rise to a reasonable suspicion that Reece was armed.
Without a furtive movement, the only relevant facts are that Reece was located in a high
crime area, approximately 2 miles from the scene of a shooting that had occurred four
hours earlier.
{¶ 14} Based on the totality of the circumstances, we conclude that the trial court
did not err in finding that Detective Daugherty did not have a reasonable, articulable
suspicion that Reece might be armed and dangerous. At the time Detective Daugherty
made a decision to pat down Reece, he knew that Reece was not the suspect in the
investigation, and Reece had fully cooperated with the officers’ demands and questions.
The State’s sole assignment of error is overruled.
IV. Conclusion
{¶ 15} The State’s sole assignment of error having been overruled, the order of the
trial court suppressing evidence is Affirmed.
.............
DONOVAN, P.J, concurs.
HALL, J., dissenting:
{¶ 16} I disagree. Detective Brad Daugherty testified he has been employed by the
Montgomery County Sheriff’s office for almost 18 years. He was investigating the shooting
of a two year old a few hours earlier by a suspect named Nickolai Gray. He obtained
Gray’s cell phone number and was tracking the pings emitted from that phone. The pings
were coming from within 14 meters, about 45 feet, of the second row of the Westown
-10-
shopping center parking lot. In the second row was a maroon SUV occupied by “a younger
black male in the passenger seat. He had his hood up.” No other vehicles or people were
in the described area. The detective and other officers approached with their guns drawn
because they were “potentially dealing with a suspect that had just shot a two-year-old
child.” When Daugherty opened the passenger door and got a look at the passenger he
didn’t look like Gray so Daugherty asked what he was doing and asked for identification.
The remaining salient parts of the encounter are quoted in the majority opinion; in
particular is testimony of the detective’s observation that Reece made an odd movement
covering up his waistband with his right arm. When Daugherty reached toward that area,
but apparently before any pat down occurred, Reece shoved Daugherty’s hand away. “I
figured he’s got a gun or something.”
{¶ 17} In my opinion, viewing the events “through the eyes of the reasonable and
prudent police officer on the scene who must react to events as they unfold,” State v.
Andrews, 57 Ohio St. 3d 86, 87-88, 565 N.E.2d 1271 (1991), leads to the conclusion that
Daugherty had a reasonable articulable suspicion that Reece was armed. What was
expressed as a finding of fact by the trial court, that Reece did not reach for anything or
make a furtive movement, is in my view a mixed question of law and fact and does not
benefit from the requirement of deference. Moreover, that determination does not view
the events through Daugherty’s eyes.
{¶ 18} Because I believe Daugherty had a reasonable and articulable suspicion to
pat down Reece, I would sustain the assignment of error and reverse the decision
granting the motion to suppress. Therefore I dissent.
.............
-11-
Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Christopher B. Epley
Hon. Richard Skelton | 01-03-2023 | 11-18-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4050460/ | RE@EB BVEDE EN
,ZOW.QFPWMALAPPEALS
70 #h¢~ m@'méers af ¢hz? Cou,rPEB 1729/§§
/“l?° A/Arma',‘s ?r~mde£,\_ Hon:rm¢ new ‘75
`I MAVE L\J('o?€" ‘/ou, SFV(-FML Tz' moge§cosm’ mem
/Za»GA/zci:~q mw £~¢ Lu»'-FE fnm.\cc.='s /CL>LLz?r
ANx> fhwa r~\oT Mr>.o A P.L~ sp¢~cw lamm ~HH¢’
fowr"l`. ¥J?.(~\~Cé‘$ /~\MA l-l¢r' £~L L~(vL$bANJ DA)J
Lu€f'€. '(z~lPLl¥AS'FU ~¢rorv\ Pn,\`.£ou ¢'\\.\ )\[pu, a.[’,_‘?_or@
'J`. wm mnfrh€b 419 Hr.( from Q¢>o¢ +¢> 3-:>'7~“§
A`\' 'anr =r\w\ur Smsr Divor Hc'r 514 Df\#l. I {'(¢a~¢¢\ slo~%l-\ir~l¢\ Yro¢`r\
Hac -};M€ vi lle/Le/~,sb wm\_ +h\»$/»~35 ap Do(§r-H'€)
$u.ppaa_?m§s Hcr ovcf 4~\-\€ `feev¢$ N»MS 1
Lo§'r L\Jar‘f-h\.'uq ‘I Hna d¢>‘.vg So‘
'I l» from
/~/L"f&. ]' Oo»rr \-hwa -,»\\c m¢>~»y of Cr‘¢d 4
40 PE’rS¢,L€ LL):§A\. nations AG;\.\$T ;J¢r‘
'I ALSo l»U¢rm-}ip~> over
-H\¢: `{ec~r§ -Hm+ .Sms ;5 GuLLTT of .S¢>mz
bw+ M¢>~r M_L Cunr@es Aems? H\§R.. §
j AY¥\'{\ Pd¢>(` m"‘\'~‘ Loo|¢\'l~lg -F`of` H€L,p.
£ve“~ +o -¢;\\5 f~\ C;v¢`L_ L.n.~...) 5¢,\,{_4¢_
Plc=nw ca M¢+ Zxo~£n-/F_ {/-/¢-' /fl.»'U.¢?r‘$.
+/Jz.=“f Avc au;L ?@op\r:,
J` WoL~LA L;\¢»z -\»@ 1»\¢é -H\c owl come a-{` ~H\r=* SCL¢LLQ'Y”
CG§u.
Lv`~H\ rhch R.G’.]§p€d”,
7301»~\\) | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435827/ | The plaintiff filed a petition in equity, alleging that the defendants, Henry J. Erbes and Hildred M. Erbes, had entered into an oral contract with him to purchase certain real estate located in the City of Waverly, Iowa; that the real estate was purchased in accordance with said oral contract and title taken in the name of the Erbes. Plaintiff further alleged that he was to place upon said premises, and did so place, a certain building, pumps, fixtures and other furnishings to be used by the defendants in the operation of an oil station; that said improvements were to be owned at all times by the plaintiff. Further, that he was to furnish to the defendants, gasoline, oil and grease to be used in the conducting of said business. That it was orally agreed between the parties in case the defendants were unable to pay for the premises out of the business operated by them and to pay for the gasoline, oil and grease furnished, then and in that event the real estate described in the petition was to be turned over, conveyed and transferred to plaintiff in payment and liquidation of any indebtedness or obligation owing him by the defendants. Plaintiff alleged that he paid $200 cash on the purchase of the real estate; that he furnished the oil and grease as agreed upon, and that defendants failed to live up to their part of the contract and are indebted to him in the sum of $4,574; that the defendants are attempting to dispose of the real estate and place it beyond the reach of plaintiff; that under the oral contract entered into he was entitled to have the real estate conveyed and transferred to him by the defendants, free and clear of all encumbrance and liens except the lien of the First National Bank of Waverly, Iowa, for $1,000. He prayed that it be ordered, adjudged and decreed by the court that the defendants transfer, convey and set over to the plaintiff the real estate in accordance with the oral contract entered into between plaintiff and defendants; and that the reasonable market value of said real estate, with the station located thereon, be set off and applied as part payment of the indebtedness owing by the defendants to plaintiff; that title to the real estate described in the petition be quieted in plaintiff, and that he have a temporary writ of injunction, *Page 1349
restraining and enjoining the defendants from conveying by deed, mortgage, assignment or other instrument, any purported right, claim or title in the real estate described in the petition. And then asked for general equitable relief.
To this petition there was filed by the defendants a motion, which appears to be in three divisions. In this appeal we are confronted with but two of the divisions. Division Two of the motion moved to strike from plaintiff's petition and amendments thereto, certain paragraphs specified, because there was a misjoinder of causes of action. Division Three of the motion moved that the court transfer to the law side of the calendar the question of the liability and indebtedness, if any, claimed due from the defendants to the plaintiff for oil and grease, as set out in paragraphs 17 and 18 of plaintiff's second amendment to petition; that the issues therein tendered are law issues and that the defendants are entitled to have same tried to a jury.
The motion was submitted to the court and an order was entered, overruling the motion, which order provided that the defendants were to have ten days in which to elect further to plead or to stand on their motion and the ruling thereon, and if ho further pleading was then filed said defendants would be held to stand on their motion and the ruling; that plaintiff would then proceed to prove up his case and have judgment such as the evidence showed him entitled to.
To all of this the defendants took due exception.
After the overruling of defendants' motion, both of the defendants filed answers. After the filing of the answers defendant Hildred M. Erbes perfected this appeal from the order and ruling of the district court of Bremer county, overruling divisions two and three of defendants' motion.
The question which confronts us is whether the appellant by filing answer after the overruling of her motion, has waived her right to appeal from the order overruling defendants' motion.
Section 10963 of the Code of Iowa, provides as follows:
"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."
Section 10964 provides: "All objections to the misjoinder *Page 1350
of causes of action shall be waived, unless made as provided in section 10963."
We find that, according to the above-cited statutes, it is provided that the court, before answer, upon the motion of defendants, "shall strike out of the petition any cause or causes of action improperly joined," and it is also provided that "unless motions are made as provided the objection to the misjoinder of causes of action shall be waived." In the case at bar the appellant did raise by proper motion, the question of an alleged misjoinder of causes of action. But, after the overruling of the motion, appellant filed answer. So we are confronted with the one proposition: whether the filing of the answer waived the right to appeal from the ruling on the motion.
In the case of Polk v. Fremont County, 197 Iowa 755,197 N.W. 893, this court said:
"It is said the court erred in the ruling on appellants' motion to strike parts of the amended and substituted petition. If there was error in the ruling, it was waived by appellants by pleading over. Wyland v. Griffith, 96 Iowa 24, 64 N.W. 673, and cases cited; Frum v. Keeney, 109 Iowa 393, 80 N.W. 507; Hurd v. Ladner,110 Iowa 263, 81 N.W. 470; Frick v. Kabaker, 116 Iowa 494,90 N.W. 498; Hunn v. Ashton, 121 Iowa 265, 96 N.W. 745; Davis
Shangle v. Boyer, 122 Iowa 132, 97 N.W. 1002; Long v. Furnas,130 Iowa 504, 107 N.W. 432; Puritan Manufacturing Company v. Emporium, 130 Iowa 526, 107 N.W. 428; Iowa-Minnesota Land Company v. Conner, 136 Iowa 674, 112 N.W. 820; Lanz v. Schumann, 175 Iowa 542,154 N.W. 911."
In the case of Lanz v. Schumann, 175 Iowa 542, at page 545,154 N.W. 911, 912, this court said:
"The court overruled the motion, thereby, in effect, holding that the second petition was not a mere repleading of the matter stated in the first. Defendants did not elect to stand upon the motion, but proceeded to demur. This was a waiver of the error, if any, in the court's ruling on the motion, and the demurrer served only to raise the question of the sufficiency of the substituted petition, without any reference to the original pleading or to the ruling upon the first demurrer." *Page 1351
In Gray Bros. v. Otto, 178 Iowa 854, at page 857, 160 N.W. 293,294, this court said:
"It appears from appellants' abstract that they raised the question of misjoinder, by motion filed in the district court. Without waiting, however, for the submission of such motion to the consideration of the court, they filed their answer to the merits. In December, 1914, the trial court entered a judgment for plaintiff on the merits, no ruling having been made, or apparently requested, on defendants' motion. The filing of the answer before submitting the motion to the consideration of the court was, prima facie at least, a waiver of such motion."
The appellant by proper motion raised the question of misjoinder of causes of action; also the question of the right of transfer of alleged law issues to the law side of the calendar. This motion was submitted to the court and an order entered, overruling said motion.
In the case of Price v. Aetna Ins. Co., 80 Iowa 408, at page 411, 45 N.W. 1053, 1054, this court said:
"Appellee contends that the statute does not allow an appeal from the rulings in question. But they affected the substantial rights of the parties, deciding, in effect, that one of the issues presented by the pleadings should be tried without a jury, and that the others might be tried with one. They denied to each party the right to have a part of the issues involved settled in a manner provided by statute for settling litigated questions. We think they were in the nature of orders from which appeals will lie. Code, section 3164; Brown v. Harper, 54 Iowa 546,6 N.W. 747; Richards v. Burden, 31 Iowa 305, 306."
If appellant believed the order was improperly entered she should have stood upon her pleading and appealed therefrom. Appellant, however, did not see fit to do this but, instead, filed answer. When she came in and answered, she waived the right to raise the question of whether the court erred in its ruling upon the motion.
Judgment and decree of the lower court must be, and it is hereby, affirmed. — Affirmed.
Chief Justice and all Justices concur. *Page 1352 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435830/ | This is a proceeding in certiorari. The writ issued from this court. The question presented is within narrow compass. It is primarily a fact question. The battle ground of this controversy centers around the validity of a purported garnishment on the Waterloo Canning Company, petitioner herein. It may be said that the manner of making the garnishment and the return thereof is not questioned, except on one ground: that the service of garnishment on the Waterloo Canning Company was not made on any trustee of said corporation, or on an officer *Page 1170
thereof, or on any agent employed in the general management of its business.
Chapter 489, Code, 1931, provides the manner of commencing actions against corporations, and as to domestic corporations, such as involved herein, Section 11077 states the manner of service and provides that "service may be made on any trustee or officer thereof, or on any agent employed in the general management of its business, * * *" In general, when the garnishee is a corporation the summons or notice in garnishment must be served upon one who at the time of service was such an officer or agent as by law authorized to receive service for and on behalf of the corporation. 28 C.J. p. 227, Sec. 310.
The specific question in the case at bar is whether the person on whom the garnishment was served, to wit, Mayme Sorenson, was acting at said time as the general agent in the management of the garnishee, Waterloo Canning Company.
The certified transcript of the record and proceedings, which constitutes the return of the Respondent Judge in the certiorari proceeding, discloses that on the 5th day of November, 1931, a default judgment was entered against the defendant William Snyder for want of answer on his part and in favor of the plaintiff, Robert Drug Company, plaintiff in the original action. On the 2d day of December, 1931, the Municipal Court of Waterloo (Ben G. Howrey, Judge) made the following entry:
"Judgment in favor of the plaintiff against the [garnishee] defendant, Waterloo Canning Company, for the sum of $115.29. General execution awarded."
On the same date the garnishee-defendant, Waterloo Canning Company, filed a motion to set aside the judgment against the garnishee, alleging that service of notice in the above entitled action was never had upon the garnishee, Waterloo Canning Company, and that "no notice has ever been served in this cause upon any trustee or officer thereof or upon any agent employed in the general management of its business." On the 31st day of December, 1931, the Respondent Judge made the following ruling:
"Garnishee-defendant's motion to set aside the judgment against the garnishee-defendant, Waterloo Canning Company, is hereby overruled." *Page 1171
The recitals in garnishee-defendant's motion present the real issue in this case. In brief, was Mayme Sorenson the general agent of the Canning Corporation at the time she accepted service on behalf of the Waterloo Canning Company, and at the time she answered the interrogatory on the 30th day of November, 1931? The certified return shows the following:
"Questions to be answered by the garnishee. 1st. Are you in any manner indebted to the defendant in this suit, or do you owe money or property which is not yet due? If so, state the particulars. Ans. Owe for sweet corn delivered to our factory, amount $195.04. (Signed) Waterloo Canning Company, Mayme Sorenson, cashier."
Attached to garnishee's motion to set aside the judgment entered against it were certain affidavits tending to establish the truth of the recitals of said motion, to which we will presently refer; and it may be added that the motion to set aside the judgment against garnishee came on for hearing on the 15th day of December, 1931, at which time oral testimony was heard on said motion.
Section 12456, Code, 1931, defines when a writ of certiorari lies. It is a well recognized legal principle in this jurisdiction that when an aggrieved party has a remedy by appeal, certiorari does not lie. Hoskins v. Carter, 212 Iowa 265. In the instant case we are not concerned with the jurisdiction of either party to the original action, but we are concerned with the jurisdiction of the Municipal Court at the time of the ruling on the motion to set aside the judgment against the garnishee, Waterloo Canning Company, a petitioner herein. See Dickson Fruit Co. v. District Court of Sac County, 203 Iowa 1028; Turner v. Woodruff, 192 Iowa 848, l.c. 851. In other words, as heretofore pointed out, was Mayme Sorenson, when she signed the answer in the garnishment proceedings, such a person as defined and included in Section 11077, Code, 1931?
We now turn our attention to the testimony offered on the hearing of garnishee's motion to set aside the judgment against the garnishee-defendant. It discloses that Mayme Sorenson used the title of cashier of the Waterloo Canning Corporation in signing papers in connection with the corporation's business, and that she signed many checks in that manner. It is fair to assume that *Page 1172
the managing officer of said corporation had knowledge of this fact, and is chargeable, under the circumstances, with knowledge. Miss Sorenson further testified that most of the time she was the only employee in the office of said corporation, with the exception of the manager, Paul Read, and that he was out of the office much of the time, and during his absence she looked after the office. Her testimony, over objection, further shows that she had been served with notices of garnishment and answered the same on behalf of the corporation in a number of cases. She further testified that she had been served with the notice of garnishment in the case of the Robert Drug Company v. Wm. Snyder, by George Kreiman, Deputy Bailiff of the Municipal Court of Waterloo, and that the Bailiff, G.M. Essex, of said Municipal Court called her and requested that she answer said garnishment proceeding, as her time for answering had expired, and that she then filed the answer, signing the same "Waterloo Canning Company, Mayme Sorenson, cashier." She also testified that she had talked with the plaintiff's attorney on several occasions concerning the plaintiff's claim against William Snyder prior to the garnishment proceeding.
It is conclusively shown that Miss Sorenson was not an officer or trustee of the Waterloo Canning Company, but she testified that she was employed as a bookkeeper and for general office work; that she received her instructions from the manager, Paul Read. She also testified on re-direct examination by attorney for the Respondent that she had never been instructed not to accept service of garnishment or not to look after garnishment cases.
Manager Paul Read testified that Miss Sorenson looked after the office in his absence and that she wrote checks on the corporation's account and signed her name as cashier; and, over objection, he testified that Miss Sorenson was in the habit of looking after garnishment cases in the past and that she had looked after a number of garnishments on behalf of the Company. On re-direct examination by counsel for the Respondent, he testified that he had never notified Mayme Sorenson that she should not accept service or answer garnishment proceedings against the Waterloo Canning Company. The Deputy Bailiff, George Kreiman, testified that he served a notice of garnishment on the Waterloo Canning Company by serving the same on Mayme *Page 1173
Sorenson, and that he had served Miss Sorenson on behalf of the Waterloo Canning Company on a number of occasions in the past.
On a careful review of the certified record, we reach the conclusion that the Respondent Court ruled the motion to dismiss the judgment against the garnishee-defendant correctly, and that Mayme Sorenson was, at least impliedly, an agent at the time in question employed in the general management of the business of the Waterloo Canning Company. It follows, therefore, from this view of the record that the Municipal Court was not without jurisdiction to enter a judgment against the garnishee-defendant in this case and that there was a legal notice of service upon the garnishee.
Judgment affirmed, and the writ of certiorari annulled.
WAGNER, C.J., and STEVENS, FAVILLE, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435836/ | In her petition Nora B. Luke, the appellee, alleges that she sustained personal injuries by reason of defective streets in the appellant city.
On the 8th day of April, 1925, she filed with the city clerk of the city of Keokuk her verified statement of claim, the material part of which, for the purpose of this appeal, is as follows:
"Notice is hereby given that the undersigned Nora B. Luke claims damages from the city of Keokuk in the sum of $5,000 on account of injuries sustained by her from a fall upon the walk and curb in said city of Keokuk, located on the northerly side of Main Street between Third and Fourth Streets in front of a building known as 321-23 Main Street, said fall having occurred on the evening of March 22d."
This is followed by a statement of the circumstances of the fall, and a detailed description of the injury resulting. The statement also sets out certain grounds of negligence.
To the petition, based on the verified statement, the appellant filed a demurrer, the grounds of which are as follows:
"(1) Because, under the statutes of the state of Iowa, it is the condition precedent to the maintenance of this action that a verified statement of the time of injury shall be presented to the council or filed with the city clerk within 1. MUNICIPAL 30 days after said alleged injury, and the CORPORA- petition shows on its face that no statement was TIONS: presented to the council or to the clerk. (2) actions: Because the petition shows on its face that this condition action is barred by the statute of limitations, precedent. because no written verified statement of the time the injury occurred has been presented to the council of the city of Keokuk or filed with the city clerk within 30 days after plaintiff's alleged injury."
The district court overruled the demurrer; hence this appeal.
It is conceded that the defendant corporation is a city under special charter. Section 6734, Code of 1924, reads in part as follows: *Page 1125
"In all cases of personal injury or damage to property resulting from defective streets or sidewalks, * * * no suit shall be brought against any such city after three months from the time of the injury or damage, and not then unless a written verified statement of the amount, nature, and cause of such injury or damage, and the time when and the place where such injury occurred, * * * shall be presented to the council or filed with the clerk within 30 days after said alleged injury or damage was sustained."
The general Statute of Limitations governing actions of this kind, to wit, Subdivision 1 of Section 11007, Code of 1924, has no application to the question under consideration, and the decisions made under that section are of little aid in the consideration of the question in hand. That statute is fully discussed and elaborated upon in the case of Howe v. SiouxCounty, 180 Iowa 580, in which case this court reached the conclusion that the aforesaid general statute was purely a statute of limitation, and not a condition precedent to bringing an action. A reading of the two statutes shows that the aforesaid Subdivision 1 of Section 11007 is purely a limitation statute, because under that section an action may be brought at any time within 60 days from the happening of the accident, without the serving of any notice whatever, and, if the notice were served, then the statute was tolled beyond the 3-months limitation; whereas, the statute governing the present case (the appellant being a city under special charter) provides that no suit can be brought against the city after 3 months, and cannot be brought within the 3-months period unless the written, verified statement provided for shall be filed within 30 days after the injury. Under this section of the statute, the filing of the verified statement is a condition precedent to the bringing of the action; or, to state it another way, no action can be maintained until such statement is first filed. The question here is, What shall be the contents of such verified statement, in order to bring the parties within the provisions of this section of the Code?
The verified statement above referred to contains only this statement relative to the time when the accident occurred: "Said fall having occurred in the evening of March 22d." *Page 1126
2. MUNICIPAL Section 6734, above quoted, requires that the CORPORA- verified statement set out "the time when and TIONS: the place where such injury occurred." The actions: aforesaid Subdivision 1 of Section 11007 ineffectual provides that the written notice shall specify notice. "the time, place, and circumstances of the injury." It is apparent, therefore, that the legislature, in both instances, made time one of the necessary elements to be set out in said statement. In the following cases we held that a notice that did not designate the place where the accident occurred was insufficient. Buchmeier v. City of Davenport, 138 Iowa 623;Frazee v. City of Cedar Rapids, 151 Iowa 251.
In Neeley v. Town of Mapleton, 139 Iowa 582, we said that the purpose of this notice was "to convey to the town council prompt information of the time, place, and circumstances of the injury, so that investigation may be had while the facts are fresh * * *."
In the Howe case, referring to the above, we said:
"The notice referred to has been liberally construed by the courts generally, but, so far as we have been able to find, no court has ever held a notice sufficient which omitted to state one or more of the three essential requirements of the notice."
By reason of these requirements of the statute, a municipality is afforded some protection against stale claims or the connivance of public officials, and is given an opportunity to investigate the source of the claim at a time when the evidence relating to it is fresh and can be easily gathered. We cannot understand why it is not just as important that the time be specific as that the place be specifically pointed out. One is just as important as the other. Authorities are not very numerous on this proposition, but in White v. Town of Stowe, 54 Vt. 510, an exact replica of the present situation existed. Their statute provided that no action could be maintained unless a written notice were given within 30 days of the occurrence of the injury, stating the time when and the place where the injury was received. In that action, the accident was alleged to have occurred on the 22d day of July, no year being stated. Identically the same situation exists in the instant case. The Vermont court said:
"The benefit that it was designed towns should derive from the giving of the notice required by the act of 1870 was that *Page 1127
they might be advised of the kind and character of claims that might be made against them and prepare their defense; and in order that the notice may be of value to them for that purpose, the time and place of injury must be made specific. It must be so certain in description of time and place as to impose a duty upon the selectmen to investigate the claim. If the notice does not state that the injury happened on a highway that the town was bound to keep in repair, the selectmen would be justified in disregarding it. So, if the notice does not state that the injury happened within thirty days next preceding its receipt, they might well say that the injured party had no claim against the town."
See, also, 17 Corpus Juris 1130.
The case further holds that parol evidence is not permissible to supply the legal requirements of the written notice, and that the sufficiency of this must be determined without reference to anything which occurred subsequently to its receipt. The case further proceeds:
"Testing the notice by what it contained, it was manifestly defective in omitting to state with the required certainty the time when the injury was received * * *."
In this case, the notice that was served on the city contained no statement of the year in which the accident happened. It may have been the present year, or any year in the past. The statement is defective in this respect, and this being a condition precedent to the bringing of the action, we are of the opinion that it does not comply with the requirements of the statute, and hence was no notice.
We are quite familiar with the rule that, in matters of this kind, a liberal construction is to be given to the statement filed, but we insist that the requirements of the statute be complied with. In Blackmore v. City of Council Bluffs, 189 Iowa 157, referring to this question, we said:
"While the statute should be liberally construed, no construction should be indulged in that emasculates it, or deprives the city of the notice which it is the intent of the statute that it should have, to wit, notice of the time, place, and circumstances of the injury. * * * The notice is, therefore, sufficient if it conforms to the statute as to time, place, and circumstances, and is in writing, and is served * * *." *Page 1128
The district court was in error in its holding, and the case is reversed. — Reversed.
De GRAFF, C.J., and STEVENS, FAVILLE, VERMILION, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435943/ | The defendants Waddell are husband and wife. The mortgaged property was their homestead. The chronology of the case may be stated briefly. A mortgage loan of $6,200 was obtained by the defendants from the plaintiff-mortgagee in May, 1931. Its first installment of interest became due in November, 1931. No *Page 1368
payment of any installment of interest or principal was ever made prior to the decree. The mortgage foreclosure was brought in December, 1931, and went to decree in May, 1932. Execution sale occurred on June 11, 1932. On June 5, 1933, the motion for extension of time was filed. This motion was heard in September, 1933. The statute under consideration provides as follows:
"Provided, the court having jurisdiction of such foreclosure action shall order and direct, that there shall be applied from the income of said real estate so much thereof as is just and equitable, toward the payment of taxes accruing thereon during the period of redemption extension as provided by this act, and any balance distributed as the court may direct, and shall make such provision for the preservation of said property as will be just and equitable during the redemption period, and to this end the court may, in his discretion, in order to carry out the foregoing powers, appoint a receiver of said real estate, and invest said receiver with such powers as the court may find will be just and equitable to all parties to the proceeding."
[1] The moving defendants tendered reasonable rent. The mortgagee claimed a rental of not less than $55 per month. The court fixed the rental at $35 a month to run from the date of expiration of the year of redemption. The validity of the statute is not assailed. The printed record is somewhat obscure as to the exact status of the parties. The briefs join to a large extent in a statement of the facts. The case was decided in the district court in chambers and upon informal statements by respective counsel. No witness was actually examined. Counsel for the mortgagee filed an affidavit in support of its resistance to the mortgagor's motion for extension. Concededly the mortgagor had never paid a dollar of principal or interest, or of fire and tornado insurance premiums. The decree fixed upon $35 per month as a reasonable rent and ordered that the same be paid to the mortgagee pending the extension. Three months of the time had already expired since the date of the decree, and it was ordered therein that $105 be paid forthwith and that $35 per month be paid thereafter. As we read the appellant's brief, the appellees did not make such payment and have never paid anything on principal, interest, or insurance premiums. It does appear that the mortgagors have continued in possession. The trial court did not in terms provide that the payment of *Page 1369
$105 should be a condition precedent to the granting of the extension, nor did it in terms provide that the payment of $35 for each successive month should be a continuing condition to the granting of the extension. On the other hand, the brief of the mortgagors asserts, or at least implies, that they did pay the $105 as ordered in the decree, and that they have continued to pay monthly the $35 a month, as ordered. We think it was due the mortgagee that the payment ordered should be conditional to the maintenance of the extension. If in the absence of such condition the mortgagors have nevertheless performed it, no prejudice has resulted to the mortgagee up to this point. However, without a condition expressed in the decree, the mortgagee has no guaranty for the payment of the monthly installments to accrue in the future. For its protection, as to such future installments, the mortgagee is entitled to have the condition expressed in the decree.
[2] As to whether the court should have fixed the monthly installment at $55 rather than at $35, only a question of fact is involved. In a strictly legal sense there was no evidence on the subject one way or the other. Treating the affidavit, however, as sufficient prima facia proof that the rental value of the property was $55, yet the trial court had need to weigh the evidence. It was purely an estimate on the part of the witness. There was no exact criterion to guide the court. Approximation was the best that could be done. This record therefore would not justify our interference with the approximation arrived at by the court below. It is ordered that the decree be modified to include, as a condition thereof, the requirement of payment of the sums fixed by the court, and that a failure to make the payments thus prescribed shall operate as a breach of the condition and shall terminate the right of extension. If the mortgagors were, or are, already in default in that respect, they may cure the same by complying with this condition within ten days from the date of filing this opinion. Otherwise the extension shall terminate forthwith.
With this modification, the decree below is affirmed. — Modified and affirmed.
MITCHELL, C.J., and STEVENS, KINDIG, and DONEGAN, JJ., concur. *Page 1370 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4318318/ | C-Track E-Filing
The Supreme Court
of Nevada
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search | 01-03-2023 | 10-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4050712/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-77,157-01 & WR-77,157-02
EX PARTE DANIEL LEE LOPEZ, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
AND MOTIONS TO STAY THE EXECUTION IN CAUSE NO. 09-CR-787-B IN
THE 117TH JUDICIAL DISTRICT COURT
NUECES COUNTY
A LCALA, J., filed a concurring statement in which J OHNSON, J., joins.
CONCURRING STATEMENT
I concur in the Court’s judgment declining to reconsider the waiver of initial state
habeas proceedings and dismissing as subsequent the application for a post-conviction writ
of habeas corpus filed on behalf of Daniel Lee Lopez, applicant. See T EX. C ODE C RIM.
P ROC. art. 11.071. Although counsel has presented what otherwise might be compelling
arguments in support of his position that an applicant should not be permitted to waive all
initial state habeas review if significant evidence exists supporting a colorable claim of
innocence, I conclude that, under the particular circumstances and facts of this case,
Lopez - 2
applicant’s waiver should be upheld as valid.
In 2010, applicant was convicted of capital murder for the intentional or knowing
killing of Stuart Alexander, a peace officer acting in the lawful discharge of an official duty.
It is undisputed that applicant caused Alexander’s death after running over him with his
vehicle while attempting to flee law enforcement. After his conviction, applicant
subsequently waived all state and federal habeas review, expressing a consistent desire to
expedite his death sentence even while maintaining that he never intended to kill the officer.1
Now, in the present proceeding, counsel acting on applicant’s behalf asserts that this Court
should find applicant actually innocent based on evidence indicating his lack of intent to kill
the complainant. This evidence consists of vision screening reports from the Polunsky Unit
indicating that applicant has severely impaired eyesight; applicant’s testimony in federal
court indicating that he wore non-prescription, “off the streets” contact lenses and had been
blinded with pepper spray at the time of the offense; and applicant’s testimony in federal
court asserting that he accidentally ran over the complainant and never intended to kill him.
Recognizing that our ability to consider post-conviction claims in capital-murder cases is
limited by the statutory dictates of Code of Criminal Procedure Article 11.071, counsel
1
In the federal proceeding in which the district court obtained a waiver of applicant’s federal
habeas proceedings, applicant maintained that, although the killing was “never intentionally”
committed and he did not see the complainant “until the last minute,” he was “positive” that he did
not want to pursue any further review of his conviction and his “decision this whole time has been
constant.” He stated that he did not “think [he had] the evidence to prove [that he has] a good case”
and that he has “accepted the fact [of] what [his] outcome is going to be.” He indicated that he
wanted to accept his punishment and “move on with [his] life” and “start over.”
Lopez - 3
suggests that this Court may consider this claim either by reconsidering, on our own motion,
applicant’s waiver of initial state habeas proceedings on the basis that any waiver was
invalid, or by determining that this claim is cognizable in a subsequent writ proceeding under
Article 11.071, Section 5. See T EX. C ODE C RIM. P ROC. art. 11.071, § 5.
Although counsel’s contention that a death-sentenced individual who has a colorable
claim of innocence may not validly waive all state habeas review of that claim is an argument
that I would ordinarily determine requires further review, I am persuaded that, even if this
Court were to reconsider the validity of applicant’s waiver and reopen his initial habeas
proceedings, his actual-innocence claim would, in any event, fail on its merits in light of the
fact that the jury already passed on the essence of the facts presented in this current
application. Counsel’s principal suggestion appears to be that permitting an innocent
individual to be executed would violate the Eighth Amendment prohibition on cruel and
unusual punishment and, as such, permitting a death-sentenced individual with a colorable
claim of innocence to waive all post-conviction review is similarly impermissible. I agree
with the underlying principle that, if significant evidence exists indicating a possibly
meritorious claim of innocence, a person convicted of capital murder and sentenced to death
should not be permitted to waive all post-conviction review, regardless of his apparent desire
to forgo all avenues for relief and expedite his death. As this Court has observed, “‘[t]he
quintessential miscarriage of justice is the execution of a person who is entirely innocent.’”
Ex parte Blue, 230 S.W.3d 151, 158 (Tex. Crim. App. 2007) (quoting Schlup v. Delo, 513
Lopez - 4
U.S. 298, 324-25 (1995)); see also Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App.
2004) (explaining that “execution of an innocent person would violate due process”). No
matter how adamant, articulate, or persistent a death-sentenced person may be in expressing
his desire to expedite his punishment, if he has a persuasive claim of innocence, then
permitting him to be executed without reviewing such a claim results in a possible
constitutional violation. The courts’ and the State’s complicity in accepting an applicant’s
waiver and permitting an execution to go forward under those circumstances would do little
to advance the retribution and deterrence justifications underlying the death penalty. See
Atkins v. Virginia, 536 U.S. 304, 318-19 (2002).
But, given the facts and circumstances of the present case, I conclude that counsel’s
factual assertions do not rise to the level of indicating that applicant would likely succeed on
the merits of an actual-innocence claim, even were this Court to consider it. The primary
evidence upon which counsel relies—medical records indicating applicant’s vision problems,
evidence that applicant had been pepper sprayed and was vision impaired at the time of the
offense, and applicant’s own testimony indicating a lack of intent—all appears to have been
reasonably available and known to applicant as of the time of trial. That evidence, therefore,
is not newly discovered, as is required by our actual-innocence standard. See Ex parte
Holloway, 413 S.W.3d 95, 97 (Tex. Crim. App. 2013) (per curiam) (“An applicant for habeas
relief based on a claim of actual innocence must demonstrate that the newly discovered
evidence, if true, creates a doubt as to the correctness of the verdict sufficient to undermine
Lopez - 5
confidence in the verdict and that it is probable that the verdict would be different on
retrial.”). Perhaps more importantly, as the State observes in its response to these filings, the
focus of applicant’s defense at trial was his lack of intent to kill the complainant based on his
impaired vision. This assessment of the evidence was echoed in the federal district court
opinion in which the court accepted applicant’s waiver of federal habeas proceedings, in
which the court stated,
As Lopez repeatedly threw punches, the officer tried to use pepper spray. A
factual dispute arose at trial over whether the pepper spray impaired Lopez’s
ability to see. . . . Lopez’s intent in killing Officer Alexander was the primary
concern for jurors. . . . The State argued that the jury could infer Lopez’s intent
from the circumstances surrounding the murder, including: Lopez’s repeated
efforts to avoid arrest, his violence against the officer who first pulled him
over, his attempts to run over other officers, and testimony from eyewitnesses
that he maneuvered his vehicle directly into the victim. . . . The defense
vigorously argued that Lopez lacked the intent necessary for a capital murder
conviction. According to the defense, Lopez was traveling at a high rate of
speed as he approached the stop sticks manned by Officer Alexander. Lopez
swerved to avoid the stop sticks, but because of poor lighting and pepper spray
in his eyes, he never saw the officer.
Lopez v. Stephens, No. 2:12–CV–160, 2014 WL 2981056 (S.D. Tex. July 1, 2014). Given
the similarities between the defensive evidence presented at trial and the evidence counsel
presents today, it appears that this defensive evidence was available at the time of trial and
largely has already been passed upon and rejected by the jury. That same evidence, without
more, cannot now serve as a proper basis for finding that applicant is actually innocent in the
sense that no rational juror, in light of that evidence, could have convicted him. See Ex parte
Elizondo, 947 S.W.2d 202, 210 (Tex. Crim. App. 1996).
Lopez - 6
Although I find persuasive counsel’s argument that it would be improper for this
Court to stand by and permit an individual with a colorable claim of innocence to waive all
post-conviction review and be executed, this case does not implicate such concerns. I cannot
agree that a convicted person may obtain relief on an actual-innocence claim that is premised
on a fact—here, that applicant was not able to see the complainant and thus could not have
formed the requisite intent—when that same fact was the basis for his defensive theory at
trial and reconciled against him by the jury in its finding of guilt. Whatever the cause of
applicant’s alleged inability to see at the time of the offense, the jury, in finding him guilty
of capital murder, determined that he was able to see the deceased well enough to form the
intent to kill him. The evidence presented by counsel that supposedly strengthens the claim
that applicant was unable to see—the ill-fitting contact lenses, for example—does not rise
to the level of changing the underlying character of the defensive theory that was before the
jury, that is, that applicant was unable to see the complainant. Because the jury reconciled
against applicant what is essentially the same defensive theory presented here,2 I join this
Court’s order upholding as valid applicant’s waiver of all post-conviction claims and
dismissing as subsequent this application for a post-conviction writ of habeas corpus.
Filed: August 4, 2015
Do Not Publish
2
See Ex parte De La Cruz, No. WR-76,781-01, 2015 WL 3764769 (Tex. Crim. App. June
17, 2015). | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247180/ | LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE
*815The concept of reasonableness plays a leading role in American law, from the "reasonable person" of tort law fame to the "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" enshrined in the Fourth Amendment. It is also central to the inquiry currently before the Court: after plaintiff Ana Christine Shelton sought as much as millions in compensatory damages, yet won only nominal damages and no other judicially sanctioned relief, what amount of attorney's fees and costs-if any-would it be reasonable for the Court to award her?
I.
This case arose from Nelson Arce's interactions with the Louisiana criminal justice system. After pleading guilty to a drug possession offense in Louisiana state court, Nelson-who was deaf-was placed on probation in Jefferson Parish.1 Plaintiff alleged that Jefferson Parish probation office staff knew that Nelson required a qualified American Sign Language ("ASL") interpreter to effectively communicate, but did not provide such an interpreter to facilitate communication at meetings between themselves and Nelson.2 Plaintiff contended that, as a result, Nelson inadvertently violated the terms and conditions of his probation, leading to his incarceration in the Jefferson Parish Correctional Center ("JPCC") for 90 days.3
Plaintiff further alleged that JPCC officials likewise understood Nelson's communication needs, but ignored them.4 For example, plaintiff argued that JPCC officials never interpreted JPCC rules and regulations into ASL for Nelson.5 Plaintiff alleged that Nelson thus did not understand the rules governing inmates in JPCC, but that, notwithstanding, JPCC twice penalized Nelson for violating these rules.6
On August 22, 2016, Nelson and his father, Lazaro Arce, filed a lawsuit in this Court against the State of Louisiana, through the Department of Public Safety and Corrections ("Louisiana"); Sheriff Newell Normand, in his official capacity as the Sheriff of Jefferson Parish ("Sheriff of Jefferson Parish");7 and Jefferson Parish.8 Their initial complaint asserted claims under Title II of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act of 1973 ("Rehab Act"), and prayed for compensatory damages, as well as declaratory and injunctive relief, against all defendants.9
*816Nearly two months after initiating their case, Nelson and Lazaro filed a motion for a preliminary injunction against Louisiana, asking the Court to order Louisiana to provide a qualified ASL interpreter for Nelson's probation meetings while the case was pending.10 Before the Court had an opportunity to hold an evidentiary hearing or otherwise act on the motion, the parties reached an agreement that addressed Nelson and Lazaro's concerns.11 After the parties informed the Court of this development, and with the parties' consent, the Court in a minute entry dismissed the motion for a preliminary injunction as moot.12
Several months later and in the midst of discovery, Nelson unfortunately passed away.13 All parties have consistently recognized that Nelson's death was unrelated to the litigation.
After learning of Nelson's untimely passing, the Court dismissed without prejudice all claims for injunctive relief without opposition.14 Shortly thereafter, plaintiff was substituted in Nelson's place and reurged the claims for injunctive relief.15 With plaintiff's consent, the Court granted Louisiana's motion to dismiss plaintiff's claims for injunctive relief, as plaintiff did not have standing to assert such claims.16
Prior to trial, the Court also dismissed all claims against Jefferson Parish,17 as well as all claims brought by Lazaro.18 Further, the parties held settlement discussions19 before the U.S. Magistrate *817Judge about two months before trial. Plaintiff's initial settlement demand was $2 million per defendant .20 According to plaintiff, she made this demand "understanding that any settlement would mean no admission of liability, a significant concession particularly in light of Nelson's death"21 -a position seemingly at odds with her recognition that any alleged transgression by defendants did not cause Nelson's death.
Plaintiff then reduced her demand to $1 million per defendant.22 Plaintiff contends *818that she "indicated a willingness to negotiate," but "[d]efendants did not give any offer whatsoever."23
On the eve of trial, however, defendants offered plaintiff a combined $95,000, inclusive of attorney's fees and costs, to settle the case.24 Plaintiff alleges that she countered their offer with "an admission of liability, $95,000 in damages, plus an application of attorney's fees and costs."25 Defendants argue that "this never occurred."26 In any event, no settlement was reached, and the case proceeded to trial.
After nearly a week of hearing the evidence, the jury found that Louisiana and the Sheriff of Jefferson Parish had both discriminated against Nelson in violation of Title II of the ADA and of § 504 of the Rehab Act, and that the discrimination had been intentional.27 However, the jury found that the discrimination had not caused any injury to Nelson-a point hotly contested by the parties-and it therefore did not award plaintiff any compensatory damages.28 Per the parties' stipulation,29 the Court then awarded plaintiff nominal damages of $1 as to each defendant.30
Plaintiff now requests attorney's fees in the amount of $495,853.50 and costs in the amount of $32,373.08.31 Louisiana and the Sheriff Jefferson Parish both oppose plaintiff's request.32
The Court will address each of plaintiff's requests in turn.
II.
"In the United States, parties are ordinarily required to bear their own attorney's fees-the prevailing party is not entitled to collect from the loser." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res. , 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). However, numerous federal statutes depart from this "American Rule," authorizing courts to award an attorney's fee to a "prevailing party." The ADA and the Rehab Act are among them.
In an action under Title II of the ADA, "the court..., in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. Similarly, in an action under § 504 of the Rehab Act, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 29 U.S.C. § 794a(b).
The Fifth Circuit generally interprets the ADA and the Rehab Act in pari mate ria *819. See Frame v. City of Arlington , 657 F.3d 215, 223 (5th Cir. 2011). As the parties have not identified any reason why the Court should interpret the ADA and the Rehab Act differently with respect to the question of attorney's fees, the Court will analyze the fee-shifting provisions of both statutes together. See id. at 224.
Further, "[j]urisprudence interpreting either [Title II of the ADA or § 504 of the Rehab Act] is applicable to both." Hainze v. Richards , 207 F.3d 795, 799 (5th Cir. 2000). For example, the Fifth Circuit has followed its sister circuits and applied case law addressing fee-shifting under 42 U.S.C. § 1988 and Title VII of the Civil Rights Act of 1964 to fee-shifting under Title II of the ADA. See No Barriers, Inc. v. Brinker Chili's Texas, Inc. , 262 F.3d 496, 498 (5th Cir. 2001). The same case law would likewise apply to § 504 of the Rehab Act.
A.
The threshold question is whether plaintiff qualifies as a "prevailing party" against defendants under the ADA and the Rehab Act. "The 'touchstone' of the prevailing party analysis is whether there has been 'a material alteration of the legal relationship' between the parties." Grisham v. City of Fort Worth, Tex. , 837 F.3d 564, 569 (5th Cir. 2016) (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) ).
To modify the parties' legal relationship, the modification must bear the "necessary judicial imprimatur ." Buckhannon , 532 U.S. at 605, 121 S.Ct. 1835 (emphasis in original). Worded differently, "prevailing party" status requires the receipt of some type of judicially sanctioned relief; an opposing party's voluntary change in conduct will not do. See id. at 603-06, 121 S.Ct. 1835.33 Thus, "[t]o qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement." Walker v. City of Mesquite, Tex. , 313 F.3d 246, 249 (5th Cir. 2002).
"[T]he Supreme Court has emphasized that 'the prevailing party inquiry does not turn on the magnitude of the relief obtained.' " Sanchez v. City of Austin , 774 F.3d 873, 879 (5th Cir. 2014) (quoting Farrar v. Hobby , 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). "A judgment for damages in any amount , whether compensatory or nominal , modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay." Farrar , 506 U.S. at 113, 113 S.Ct. 566 (emphasis added). Thus, even a plaintiff who wins only nominal damages *820after seeking millions of dollars in compensatory damages still qualifies as a "prevailing party." See id. at 113, 113 S.Ct. 566 (concluding, where "petitioners received nominal damages instead of the $17 million in compensatory damages that they sought" and no other relief, id. at 114, 113 S.Ct. 566, that the Fifth Circuit "erred in holding that petitioners' nominal damages award failed to render them prevailing parties").
In this case, plaintiff won nominal damages from both Louisiana and the Sheriff of Jefferson Parish. As such, longstanding Supreme Court precedent leaves no doubt that plaintiff qualifies as a "prevailing party" under the ADA and the Rehab Act as to each defendant.34 ibr.US_Case_Law.Schema.Case_Body:v1">See id. at 112, 113 S.Ct. 566 ("We therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988."); see also Hidden Oaks Ltd. v. City of Austin , 138 F.3d 1036, 1052 (5th Cir. 1998) ("Even a plaintiff who wins only nominal damages qualifies as such a 'prevailing party.' ").
B.
Although both fee-shifting provisions at issue in this case use discretionary language such as "may," courts have more or less transformed the "may" into a "must" in the context of prevailing plaintiffs. Cf. Sanchez , 774 F.3d at 880 (5th Cir. 2014) ("[T]he judicial gloss on § 1988, and its legislative history, have constrained that discretion, in most cases converting the statute's 'may' into a 'must.' "). Thus, "[p]revailing plaintiffs 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' " Cruz v. Hauck , 762 F.2d 1230, 1233 (5th Cir. 1985) (quoting Newman v. Piggie Park Enter., Inc. , 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) ).
This special circumstances exception "is a narrow carve-out of the general rule that prevailing civil-rights plaintiffs should be awarded fees." Sanchez , 774 F.3d at 880 ; see also Espino v. Besteiro , 708 F.2d 1002, 1005 (5th Cir. 1983) (describing the exception as "extremely limited"). Defendants carry the high burden of establishing the application of the exception. See Pruett v. Harris Cty. Bail Bond Bd. , 499 F.3d 403, 417 (5th Cir. 2007) ("[D]efendants must make an 'extremely strong showing' of special circumstances to avoid paying attorneys' fees....")
In Riddell v. National Democratic Party , 624 F.2d 539 (5th Cir. 1980), the Fifth Circuit reviewed the case law and identified two types of "unusual situations" in which courts had denied attorney's fees in full to a prevailing plaintiff: 1) "situations in which the plaintiff filed under section 1983 to recover what was essentially a tort claim for private monetary damages," which "did not require injunctive relief or confer significant civil rights to the public"; and 2) situations in which, "even though the plaintiffs received the benefits desired from their litigation, their efforts did not contribute to achieving those results." 624 F.2d at 544. In the decades since Riddell , the Fifth Circuit has "rejected a host of other asserted special circumstances." Grisham , 837 F.3d at 569. These include
a defendant's good faith in enacting overturned laws or policies; a defendant's decision not to appeal a permanent injunction; a plaintiff's ability to *821pay its own costs; and the district court's view that a prior award of fees was sufficient or that a supplemental request included some clerical work.
Id. (internal citations omitted).
Further, the Fifth Circuit has unequivocally held that "[a] prevailing plaintiff's degree of success is not a special circumstance that justifies a complete denial of [ ] fees." Sanchez , 774 F.3d at 881 (emphasis added). "Instead, the degree of success... is a factor-often an important one-to consider in assessing the reasonableness of the fee request." Grisham , 837 F.3d at 568 ; see also Sanchez , 774 F.3d at 881 (discussing the distinction between the availability of a fee award and the reasonableness of a fee request).
The Fifth Circuit has also heavily circumscribed the reach of Farrar v. Hobby , 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). In Farrar , the Supreme Court affirmed the complete denial of a fee award to prevailing plaintiffs, observing that, "[i]n a civil rights suit for damages, ...the awarding of nominal damages [ ] highlights the plaintiff's failure to prove actual, compensable injury." Farrar , 506 U.S. at 115, 113 S.Ct. 566. Thus, "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all." Id. (internal citation omitted). According to the Fifth Circuit, "the Farrar circumstance of nominal but no compensatory damages only justifies a complete denial of fees when monetary relief is the primary objective of a lawsuit."35 Grisham , 837 F.3d at 569 ; see also Riley v. City of Jackson, Miss. , 99 F.3d 757, 759-60 (5th Cir. 1996) (understanding Farrar as "illustrative of cases where the plaintiff sought only money damages and was essentially unsuccessful since he did not achieve in any way the ultimate goal of the litigation").
i.
Both defendants argue that the Court should not award plaintiff any attorney's fees.36 Pointing out that "the only claim [against it] that went to trial was for monetary relief" and arguing that "plaintiff never requested that [it] change its policies in any way as part of the settlement negotiations," Louisiana contends that "[p]laintiff's primary objective, indeed, her only objective, was to recover damages."37 Yet plaintiff only recovered nominal damages from Louisiana. In Louisiana's view, "[w]hile plaintiff may feel a personal sense of vindication by the jury's determination that [Louisiana] discriminated against Nelson Arce, this may not be a basis for attorneys' fees."38
Likewise, the Sheriff of Jefferson Parish argues that the Court should not require it to pay any of plaintiff's attorney's fees. Arguing that plaintiff did not have standing to pursue any form of relief against it other than monetary relief, the Sheriff of Jefferson Parish contends that "the only *822objective available [to plaintiff] vis-à-vis the claims against Sheriff Lopinto...was monetary relief."39 Indeed, the Sheriff of Jefferson Parish goes further than plaintiff herself, contending that even Nelson did not have standing to pursue prospective relief against it at any time during his participation in the case.40
For her part, plaintiff argues that her case does not present a special circumstance warranting an outright denial of fees, because her lawsuit "accomplished [a] public goal" and thus her award of nominal damages was "material."41 Plaintiff then points to various voluntary actions that she alleges defendants took in response to the lawsuit and that she alleges have improved or will improve the experience of deaf and hard-of-hearing individuals who interact with defendants.42
Plaintiff also points to this Court's minute entry dismissing Nelson and Lazaro's motion for a preliminary injunction against Louisiana as moot. She argues that the agreement referenced in the minute entry "itself confers prevailing party status on the plaintiff sufficient to warrant an award of attorney's fees," because its terms were allegedly "incorporated" into the minute entry.43 That is to say, plaintiff insists that Nelson "fully litigated the issue of injunctive relief" against Louisiana prior to his death and that he "obtained the equivalent of an enforceable consent decree as against" Louisiana.44
ii.
Before turning to the question of whether special circumstances justify the complete denial of attorney's fees to plaintiff, the Court must correct plaintiff's misrepresentation of the record.
Prior to Nelson's death, the Court never evaluated the merits of Nelson's claims for injunctive relief, and never issued "the equivalent of an enforceable consent decree," against either defendant.45 Lest one have any doubt, one need only look to the minute entry on which plaintiff' focuses. The minute entry speaks for itself:
A follow-up status conference was held on this date with counsel participating on behalf of all parties. The Court and counsel discussed the plaintiffs' pending motion for a preliminary injunction against the State of Louisiana and the Louisiana Department of Public Safety and Corrections (collectively, "Department of Corrections" or "Department"). Plaintiffs and the Department of Corrections informed the Court that they have reached an agreement whereby the Department will provide plaintiff Nelson Arce with access to an ASL certified interpreter, either in person or through video conferencing, during all future meetings with his probation officer.
*823Plaintiffs and the Department will confer further regarding the details of the arrangement.
Accordingly, as indicated at the conference and with the consent of the parties,
IT IS ORDERED that the motion for a preliminary injunction is DISMISSED AS MOOT and that the preliminary injunction hearing discussed at the previous status conference is CANCELLED .
IT IS FURTHER ORDERED that all other dates and deadlines in this case remain in effect, including the motion submission deadline, pretrial conference date, and trial date.46
In short, the minute entry recorded the information that the parties provided to the Court-i.e. , that the parties had reached an agreement that addressed the concern motivating Nelson and Lazaro's motion for a preliminary injunction. In light of this agreement and with the parties' consent, the Court then dismissed the motion as moot.
The minute entry is not, nor was it ever meant to be, a consent decree that resolved the merits of Nelson's claim for injunctive relief against Louisiana. Cf. United States v. City of New Orleans , 731 F.3d 434, 439 (5th Cir. 2013) ("Consent decrees cannot be approved without due consideration by the district court and, once approved, have the force of a legal judgment."); United States v. Chromalloy Am. Corp. , 158 F.3d 345, 349 (5th Cir. 1998) ("A consent decree is akin to a contract yet also functions as an enforceable judicial order."). Further, even if the Court had adopted the agreement mentioned in the minute entry as its own order-it did not- the agreement alone would not confer "prevailing party" status.47 Cf. Yousuf v. Motiva Enter. LLC , 246 Fed.Appx. 891 (5th Cir. 2007) (per curiam) (concluding that two agreements between the parties, one which the district court "adopted...as an order of the court" and the other which facilitated the district court's issuance of a preliminary injunction, id. at 892, did not entitle the plaintiff to attorney's fees and costs under the federal Petroleum Marketing Practices Act, in part because "the district court did not engage in any consideration of the merits of [the plaintiff's] claim, even to a minimal degree," id. at 895 ).
Plaintiff's "prevailing party" status is due solely to her receipt of nominal damages at the conclusion of trial. With plaintiff's misrepresentation set straight, the Court will now proceed to the subject of special circumstances.
iii.
After carefully considering the parties' arguments and the applicable law, the Court concludes that special circumstances justify the denial of attorney's fees to plaintiff.
*824As the Court previously explained, "the Farrar circumstance of nominal but no compensatory damages only justifies a complete denial of fees when monetary relief is the primary objective of a lawsuit"-an objective that nominal damages do not achieve. Grisham , 837 F.3d at 569. In an attempt to demonstrate that she is entitled to an award of attorney's fees, plaintiff points the Court to the initial complaint filed by Nelson and Lazaro on August 22, 2016, which sought declaratory and injunctive relief, and compensatory damages.48 Plaintiff places great significance on this fact, arguing that "there is no way to characterize [her] claims as seeking solely monetary relief."49 Further, plaintiff relies on Justice O'Connor's Farrar concurrence50 to argue that her success was "material" and thus fees are warranted.51
However, the relevant question is not whether a party who wins nominal damages alone only pursued monetary relief or whether the nominal damages represents a "material" success.52 Rather, the relevant question is whether monetary relief was "the primary objective of a lawsuit."
*825Grisham , 837 F.3d at 569 (emphasis added).
The Fifth Circuit has never held that the "primary objective" inquiry should turn on a party's initial pleading-and for good reason. As litigation proceeds, a party may voluntarily abandon her quest to obtain certain types of judicially sanctioned relief, while continuing to pursue others, thus clarifying through her actions the primary objective of her lawsuit. Indeed, in Farrar itself, Joseph Farrar originally sought both "monetary and injunctive relief" against numerous individuals when he initiated his lawsuit. See Farrar , 506 U.S. at 106, 113 S.Ct. 566. However, "[l]ater amendments to the complaint...dropped the claim for injunctive relief, and increased the request for damages to $17 million."53 Id. Thus, by the time the case was tried before a jury, the only form of relief still in play was monetary relief. It is no surprise, then, that the Supreme Court would view the primary-indeed, exclusive-objective of Farrar's lawsuit to be to receive a damages award. See id. at 114, 113 S.Ct. 566 ("In this case, petitioners received nominal damages instead of the $17 million in compensatory damages that they sought."); id. at 115, 113 S.Ct. 566 ("In a civil rights suit for damages ,...the awarding of nominal damages...highlights the plaintiff's failure to prove actual, compensable injury." (emphasis added) ).
More fundamentally, a party's pleadings-whether initial or amended-do not conclusively establish that the party has a legal right to pursue all forms of relief requested in the pleadings. Despite requesting prospective relief in her amended complaint,54 for example, plaintiff never alleged that she "has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged ...conduct" of either defendant. Armstrong v. Turner Indus., Inc. , 141 F.3d 554, 563 (5th Cir. 1998) (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ) (internal quotation marks omitted). Thus, plaintiff never had standing to pursue prospective relief against defendants-and she conceded as much well before trial.55 Similarly, while Nelson had standing to pursue prospective relief against Louisiana-he was still on probation at the time that he initiated this suit and until his unfortunate death-Nelson did not have standing at any time during his participation in this case to pursue prospective relief against the Sheriff of Jefferson Parish.56
*826Therefore, the Court will not determine the primary objective of the lawsuit by examining the pleadings, as plaintiff suggests. Instead, the Court will determine the primary objective of the lawsuit by considering what types of judicially sanctioned relief plaintiff pursued to a court-ordered resolution of her claims, such as a judgment on the merits or to a settlement agreement enforced through a consent decree.57 Cf. Buckhannon , 532 U.S. at 603-04, 121 S.Ct. 1835 (concluding, in the process of interpreting the term "prevailing party" as used in fee-shifting provisions of federal civil rights laws, that its prior decisions "establish that enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees").
This approach has much to commend it. First, and critically, it is consistent with relevant Fifth Circuit case law. Cf. Grisham , 837 F.3d at 569 ("Grisham, however, is not an unsuccessful seeker of compensatory damages. He obtained the relief he sought: nominal damages in recognition that his rights were violated and injunctive relief prohibiting the City from violating his rights again."); Sanchez , 774 F.3d at 883 ("Unlike Farrar , Appellants' primary goal in this litigation was to force the City to stop issuing [criminal-trespass notices, or] CTNs. Appellants achieved that goal by securing a permanent injunction against future enforcement of the CTN policy. A fee award was therefore appropriate."); Riley v. City of Jackson, Miss. , 99 F.3d 757, 760 (5th Cir. 1996) ("The Appellants here requested first and foremost injunctive relief and secondarily monetary damages and were, for the most *827part, successful in obtaining the relief they sought. The Appellants obtained, in addition to the nominal damages, injunctive relief by way of a change in the Appellees' conduct that redressed the Appellants' grievances...."); Pembroke v. Wood County, Texas , 981 F.2d 225, 227, 231 n.27 (5th Cir. 1993) (distinguishing Farrar on the ground that the plaintiff class "waived its damages claim and proceeded to trial seeking only declaratory and injunctive relief," id. at 227 ), abrogated on other grounds by Buckhannon , 532 U.S. at 610, 121 S.Ct. 1835.58
Further, this approach harmonizes the "primary objective" test with the "prevailing party" inquiry by keeping the Court's focus squarely on what permits plaintiff to request attorney's fees in the first place: the receipt of judicially sanctioned relief. Cf. Buckhannon , 532 U.S. at 606, 121 S.Ct. 1835 ("We cannot agree that the term 'prevailing party' authorizes federal courts to award attorney's fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the 'sought-after destination' without obtaining any judicial relief."). Simply put, having determined that plaintiff qualifies for "prevailing party" status due to her receipt of some form of judicially sanctioned relief, the Court will now consider what forms of judicially sanctioned relief plaintiff pursued to a court-ordered resolution of her claims.
It also does not hurt that this approach is consistent with old-fashioned common sense. After all, the reason that any party initiates and maintains a lawsuit is because the party wants to receive some form of judicially sanctioned relief-and to receive such relief, a court-ordered resolution of a party's claims is necessary.
Applying this approach to this case, the only type of judicially sanctioned relief that plaintiff pursued to a court-ordered resolution of her claims-indeed, the only type of relief that plaintiff herself had standing to pursue at all59 -was monetary *828relief. Thus, the Court concludes that "monetary relief [was] the primary objective of [the] lawsuit." Grisham , 837 F.3d at 569.
Plaintiff failed to achieve this objective. She aimed for compensatory damages numbering as high as the millions, and the jury awarded zero. Plaintiff is walking away from this case with an award of $1 in nominal damages as to each defendant and no other judicially sanctioned relief.
"In a civil rights suit for damages,...the awarding of nominal damages [alone] ...highlights the plaintiff's failure to prove actual, compensable injury." Farrar , 506 U.S. at 115, 113 S.Ct. 566. "When a plaintiff recovers only nominal damage because of [her] failure to prove an essential element of [her] claim for monetary relief, the only reasonable fee is usually no fee at all." Id. (internal citation omitted); see also Allstate Ins. Co. v. Plambeck , 802 F.3d 665, 678 (5th Cir. 2015) ("[I]f a plaintiff recovers only nominal damages, the proper fee usually is none at all, even though the plaintiff has won his case."). This is because, where "substantial fees are expended in pursuit of a remedy that is never achieved, an award of fees amounts to a windfall for the unsuccessful attorneys." Grisham , 837 F.3d at 569. For these reasons, the Court will not award attorney's fees to plaintiff.60
The Court will now turn to plaintiff's request for costs.
III.
"[A] district court may not award costs unless it first determines that the expenses are allowable cost items and that the costs are reasonable, both in amount and in necessity to the litigation." Katz v. State Farm Fire & Cas. Co. , No. 06-4155, 2009 WL 3712588, at *1 (E.D. La. Nov. 4, 2009) (Vance, J.) (internal quotation marks omitted). With respect to "allowable" costs, Federal Rule of Civil Procedure 54(d)(1) provides that a "prevailing party" in federal court "should be allowed" to recover their non-attorney-fee "costs." "There is a strong presumption under Rule 54(d)(1) that the prevailing party will be awarded costs." Cheatham v. Allstate Ins. Co. , 465 F.3d 578, 586 (5th Cir. 2006)
*829Title 28, United States Code, § 1920"enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)." Crawford Fitting Co. v. J. T. Gibbons, Inc. , 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). These categories include:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920 ; see also Mota v. Univ. of Texas Houston Health Sci. Ctr. , 261 F.3d 512, 529 (5th Cir. 2001) (summarizing § 1920 ).
"The Supreme Court has indicated that federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary." Mota , 261 F.3d at 529. In this case, the ADA provides the Court with an additional source of authority to award costs.
The relevant provision of the ADA-codified at 42 U.S.C. § 12205 -provides that "the court..., in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs." Under this section, "courts also allow an award of costs for Federal Express, electronic research, long-distance calls, printing, attorney-fee declarants, and computer-based research." Gilmore v. Elmwood S., L.L.C. , No. 13-37, 2015 WL 1245770, at *7 (E.D. La. Mar. 18, 2015) (Knowles, M.J.) (citing Praseuth v. Rubbermaid, Inc. , 406 F.3d 1245, 1259 (10th Cir. 2005) ; InvesSys, Inc. v. McGraw-Hill Cos., Ltd. , 369 F.3d 16, 22 (1st Cir. 2004) ).
Further, the U.S. Department of Justice ("DOJ") has promulgated a regulation implementing § 12205 with respect to nondiscrimination on the basis of disability in state and local government services. See 28 C.F.R. § 35.175. DOJ's regulation parrots the language of § 12205. Compare id. , with 42 U.S.C. § 12205.
According to DOJ guidance interpreting this regulation, "[l]itigation expenses include items such as expert witness fees, travel expenses, etc."61 28 C.F.R. § Pt. 35, App. B. Courts in this circuit have relied on DOJ guidance when determining what items fall under the rubric of "litigation expenses" under the ADA. See, e.g. , Jones v. White , No. 03-2286, 2007 WL 2427976, at *8 (S.D. Tex. Aug. 22, 2007) (Rosenthal, J.); see also Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 597-98, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) ("Because [DOJ] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.");
*830Magee v. Coca-Cola Refreshments USA, Inc. , 833 F.3d 530, 536 n.34 (5th Cir. 2016) ("The Supreme Court instructs that the DOJ's guidance in reference to the ADA is entitled to deference."); Frame , 657 F.3d at 224 ("[B]ecause Congress directed [DOJ] to elucidate Title II with implementing regulations, DOJ's views at least would 'warrant respect' and might be entitled to even more deference.").
A.
Plaintiff requests a total of $32,373.08 in costs, divided into nine categories of expenses:
Fees of the Clerk: $400.00 Fees for summons and subpoena: $1,567.24 Fees for printed or electronically recorded transcripts: $7,179.24 Fees for disbursements for printing: $59.37 Travel expenses for depositions, court conferences, and trial: $12,357.68 Computerized legal research: $1,124.38 Expert witness: $8,587.34 Postage/Courier: $273.05 Interpreter: $824.7862
[Editor's Note: The preceding image contains the reference for footnote62 ].
As a preliminary matter, the Court concludes that plaintiff supports her request with proper documentation.63 Further, having reviewed plaintiff's documentation and considered the necessity of these expenses to plaintiff's case, and noting the fact that defendants have not raised any challenges to plaintiff's request for costs,64 the Court concludes that these expenses are both reasonable in amount and were necessary to the litigation. See Katz , 2009 WL 3712588, at *1.
The next question is whether these expenses are "allowable cost items"-in other words, expenses that plaintiff has a legal right to recover. Id.
B.
After reviewing the applicable law, the Court will award plaintiff some-but not all-of these expenses as "costs." Under § 1920, plaintiff may recover five of her nine categories of expenses:65
*831Fees of the Clerk: $400.00 Fees for summons and subpoena:66 $1,567.24 Fees for printed or electronically recorded transcripts: $7,179.24 Fees for disbursements for printing: $59.37 Interpreter: $824.78
[Editor's Note: The preceding image contains the reference for footnote66 ].
Moreover, § 12205 permits plaintiff to recover two additional categories of expenses:
Computerized legal research: $1,124.38 Postage/Courier: $273.05
See Gilmore , 2015 WL 1245770, at *7. Because the Court concludes that these expenses-totaling $11,428.06-are sufficiently supported and reasonable, the Court will award them.
However the Court will not award plaintiff's requested travel expenses ($12,357.68) or expert witness expenses ($8,587.34). As the Court previously explained, both § 12205 and DOJ's regulation implementing § 12205 provide that "the court..., in its discretion, may allow the prevailing party...a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205 ; 28 C.F.R. § 35.175. Worded differently, a "prevailing party" may recover an "attorney's fee" and "costs" under § 12205 and its implementing regulation, with "litigation expenses" included as part of the "attorney's fees." See, e.g. , Jones , 2007 WL 2427976, at *7-*8 (incorporating "litigation expenses" into the "attorney's fee" awarded pursuant to § 12205 ). DOJ has interpreted the phrase "litigation expenses" in its regulation to include travel expenses and witness expert expenses. 28 C.F.R. § Pt. 35, App. B ; see, e.g. , Jones , 2007 WL 2427976, at *7-*8 (relying on DOJ guidance to categorize expert fees as "litigation expenses"). Plaintiff offers no reason why the Court should deviate from this interpretation.
*832The Court has already concluded that an award of attorney's fees would be inappropriate in this case. Because "litigation expenses" such as travel expenses and expert witness expenses are a component of the attorney's fee under § 12205, the Court will likewise not award these expenses to plaintiff.
C.
Notwithstanding the Court's resolution of plaintiff's request for expert witness expenses, the Court advises plaintiff that her expert witness qualifies for the standard witness fees and allowances available under § 1920(3) and defined by 28 U.S.C. § 1821. These fees and allowances-which "shall be paid" to a witness to cover "attendance at any court of the United States" or "attendance...before any person authorized to take his deposition pursuant to any rule or order of a court of the United States," 28 U.S.C. §§ 1821(a)(a) -include a per diem, travel expenses, and a subsistence allowance, see id. §§ 1821(a) - (d).
If plaintiff intends to recover § 1920(3) fees and allowances on behalf of her expert, then she may do so by filing a request with the Clerk through the procedures specified in Local Rule 54.3. Plaintiff must file such a request by the deadline set forth below.
VI.
The attorney's fees inquiry ultimately revolves around reasonableness: what is a reasonable fee? Plaintiff Ana Christine Shelton sought as much as millions in compensatory damages. She achieved only nominal damages and no other judicially sanctioned relief.
As the Supreme Court has pointed out, "[w]hen a plaintiff recovers only nominal damage because of [her] failure to prove an essential element of [her] claim for monetary relief, the only reasonable fee is usually no fee at all." Farrar , 506 U.S. at 115, 113 S.Ct. 566. In this case, where plaintiff's primary objective was to receive monetary relief and she did not succeed, reasonableness demands no less a result.
Accordingly,
IT IS ORDERED that plaintiff's motion is GRANTED IN PART and DENIED IN PART .
IT IS FURTHER ORDERED that plaintiff's request for attorney's fees is DENIED .
IT IS FURTHER ORDERED that plaintiff's request for costs is GRANTED and that plaintiff is awarded costs in the amount of $11,428.06 , as set forth herein. Each defendant shall be responsible for one-half of the costs, or $5,714.03 each .
IT IS FURTHER ORDERED that plaintiff may file a request with the Clerk through the procedures specified in Local Rule 54.3 to recover § 1920(3) witness fees and allowances. If plaintiff intends to recover such fees and allowances, then plaintiff shall file her request with the Clerk by March 15, 2018 .
See R. Doc. No. 69, ¶¶ 19, 27.
See id. ¶¶ 29-30, 33.
See id. ¶¶ 38-39.
See id. ¶¶ 58, 61.
See id. ¶ 44.
See id. ¶¶ 44-45.
Upon Sheriff Normand's retirement, his successor, Sheriff Joseph Lopinto, was substituted in his place.
R. Doc. No. 1.
See id.
R. Doc. No. 25.
See R. Doc. No. 43, at 1.
See id. at 2.
See R. Doc. No. 60; R. Doc. No. 64.
See R. Doc. No. 60, at 2. "Mootness is 'the doctrine of standing in a time frame.' " Moore v. Hosemann , 591 F.3d 741, 744 (5th Cir. 2009) (quoting United States Parole Comm'n v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ). "A case is moot where the cause of action is no longer live, or where the parties no longer hold a personal stake in the outcome." Henschen v. City of Houston, Tex. , 959 F.2d 584, 587 (5th Cir. 1992). Courts examine mootness on a claim-by-claim basis. See JSLG, Inc. v. City of Waco , 504 Fed.Appx. 312, 315-19 (5th Cir. 2012) (per curiam) (doing just that).
"In order to demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." Bauer v. Texas , 341 F.3d 352, 358 (5th Cir. 2003). Nelson's death removed all likelihood that Nelson would suffer any injury in the future as a result of defendants' conduct. Thus, to the extent that Nelson had standing to pursue prospective relief against defendants prior to his death, those claims became moot upon his death. See Tandy v. City of Wichita , 380 F.3d 1277, 1290 (10th Cir. 2004) ("Beltz's claims for prospective relief are mooted by his death because once dead, he is no longer under a real and immediate threat of repeated injury.").
See R. Doc. No. 68; R. Doc. No. 69.
See R. Doc. No. 80. The Sheriff of Jefferson Parish never moved to dismiss plaintiff's claims for prospective relief against it. However, as with such claims against Louisiana, plaintiff lacked standing to assert such claims against the Sheriff of Jefferson Parish.
See R. Doc. No. 42, at 13.
See R. Doc. No. 131, at 51; R. Doc. No. 137, at 6.
Plaintiff did not request a specific amount in compensatory damages either in her amended complaint, see R. Doc. No. 68, or at trial. (Upon inquiry by the Court out of the presence of the jury, plaintiff's counsel told the Court that she believed that she was precluded from asking the jury for a specific amount of damages. The Court informed her that she was incorrect.) In fact, plaintiff's settlement demands represent the only instances when plaintiff revealed to defendants and the Court the monetary value that she assigned to her claims.
Plaintiff argues that the "[t]he Court should not consider the private settlement negotiations between the parties in determining her success because these monetary demands took into consideration substantial concessions that would be made in settlement-no finding or admission of liability and no ability to seek costs or attorney's fees." R. Doc. No. 184, at 6. The Court rejects plaintiff's position.
It appears that the Fifth Circuit has not yet addressed the applicability of Federal Rule of Evidence 408 -which governs the admissibility at trial of settlement offers and discussions-to motions for attorney's fees. However, the Third Circuit has concluded that "Rule 408 does not bar a court's consideration of settlement negotiations in its analysis of what constitutes a reasonable fee award in a particular case," because "the use of such evidence as bearing on the issue of what relief was sought by a plaintiff does not offend the clear terms" of the rule. Lohman v. Duryea Borough , 574 F.3d 163, 167 (3d Cir. 2009). The Ninth Circuit has adopted the Third Circuit's reasoning. See Ingram v. Oroudjian , 647 F.3d 925, 927 (9th Cir. 2011).
The Court likewise finds the Third Circuit's reasoning persuasive. Cf. Migis v. Pearle Vision, Inc. , 135 F.3d 1041, 1062 (5th Cir. 1998) (Barksdale, J., concurring in part and dissenting in part) (stating his view that courts should be able to consider a plaintiff's settlement demands "as a factor in making the degree of success and other relevant evaluations for its discretionary, reasonable fee award" (emphasis in original) ). Further, this reasoning is consistent with the Fifth Circuit's own observations concerning the reach of Rule 408. See Lyondell Chem. Co. v. Occidental Chem. Corp. , 608 F.3d 284, 299 (5th Cir. 2010) ("We are mindful that Rule 408 should not exclude more than required to effectuate its goals, which, after all, run counter to the overarching policy favoring the admission of all relevant evidence.")
Further, "[t]he Supreme Court has [at least] twice made clear that the most critical factor in determining the reasonableness of a fee award in a civil rights suit is the degree of success obtained." Migis , 135 F.3d at 1047 (majority opinion) (internal quotation marks omitted). Thus, "in a private civil rights suit, a district court must consider any disparity between the amount of damages sought and the amount of damages awarded." Combs v. City of Huntington, Tex. , 829 F.3d 388, 395-96 (5th Cir. 2016). Plaintiff's position on her settlement demands would leave the Court with no evidence as to the amount of compensatory damages that she sought in this case-and without such evidence, the Court would be hampered in its duty, when calculating a reasonable fee, "to give adequate consideration to the result obtained relative to the fee award, and the result obtained relative to the result sought." Migis , 135 F.3d at 1048 (holding that a district court abused its discretion when it did not sufficiently consider these metrics when calculating an attorney's fee award).
The Court therefore points to plaintiff's settlement demands for the limited purpose of identifying the value that plaintiff assigned to her claims prior to trial.
See R. Doc. No. 182-1, at 1; see also R. Doc. No. 179-1, ¶¶ 13-14. The Court notes that, prior to its dismissal of Lazaro's claims, Lazaro was seeking $300,000 from Louisiana and $150,000 from the Sheriff of Jefferson Parish. See R. Doc. No. 182-1, at 1.
R. Doc. No. 184, at 5. In an affidavit, however, plaintiff's counsel appears to offer a different rationale behind this initial demand. According to counsel, "Mr. Arce before his death authorized his attorneys to make a 2-million-dollar demand as to each [d]efendant for the severe damages he incurred." R. Doc. No. 179-1, ¶ 13. Then, after Nelson's death, plaintiff apparently "decided to respect Nelson's wishes and continue with his demand at the settlement conference because she saw first-hand how dramatically [d]efendants' violation of Nelson's rights affected Nelson's mental health." Id. ¶ 14.
See id. ¶ 13.
R. Doc. No. 184, at 5.
Id. at 4; R. Doc. No. 187, at 1.
R. Doc. No. 184, at 5. Plaintiff contends that, on the eve of trial, plaintiff's attorney's fees totaled $394,263.75, see R. Doc. No. 179, and costs totaled $18,853.92, see R. Doc. No. 181.
R. Doc. No. 187, at 1.
See R. Doc. No. 172, at 1, 3; see also R. Doc. No. 163, at 1 (stipulation that, if the jury found that a defendant had violated Title II of the ADA, then the jury also found that the defendant had violated § 504 of the Rehab Act).
See R. Doc. No. 172, at 2, 4.
See R. Doc. No. 163, at 1.
See R. Doc. No. 175.
R. Doc. No. 176, at 1. Plaintiff's original memorandum in support of her motion categorized paralegal expenses as costs. See R. Doc. No. 176-1, at 22. In her supplemental memoranda, she added these expenses to her requested attorney's fees and subtracted them from her requested costs. See R. Doc. No. 179, at 1-3; R. Doc. No. 181, at 1-2.
See R. Doc. No. 182; R. Doc. No. 183.
The Buckhannon Court rejected the so-called "catalyst theory" of "prevailing party" status. See Buckhannon , 532 U.S. at 610, 121 S.Ct. 1835. Under the "catalyst theory," a plaintiff could qualify as a "prevailing party" where she "has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Id. at 600, 121 S.Ct. 1835. In other words, the "catalyst theory" allowed for an award of attorney's fees even "where there is no judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. Prior to Buckhannon , a sizable majority of circuit courts-including the Fifth Circuit-endorsed the theory. See Buckhannon , 532 U.S. at 626-27, 121 S.Ct. 1835 (Ginsburg, J., dissenting) (explaining the development of the "catalyst theory" in the lower courts); Bailey v. Mississippi , 407 F.3d 684, 687 (5th Cir. 2005) (explaining the formulation of the "catalyst theory" that the Fifth Circuit applied before Buckhannon ).
Surprisingly, defendants contend that plaintiff does not qualify as a "prevailing party," despite having received nominal damages from both of them. See R. Doc. No. 182, at 5; R. Doc. No. 183, at 10. Apparently, defense counsel did not carefully read Farrar . (The Court assumes that defense counsel did in fact read Farrar , given that they quote from and discuss the case in their memoranda in opposition to plaintiff's motion. See R. Doc. No. 182, at 4-5; R. Doc. No. 183, at 6-7.).
The Court recognizes that "[a] district court abuses [its] discretion if it applies an 'erroneous interpretation of [ ] special circumstances' to justify denial of fees to an otherwise prevailing party." Grisham , 837 F.3d at 567-68.
The Court notes that defendants improperly conflate the "prevailing party" inquiry and the "special circumstances" inquiry in their oppositions to plaintiff's motion. See R. Doc. No. 182, at 4-9; R. Doc. No. 183, at 6-10; see also Sanchez , 774 F.3d at 881 ("The two inquires-prevailing-party status and special circumstances-are distinct."). Despite defendants' confusion on the law, the Court will consider whether defendants' arguments establish that special circumstances justify a denial of all fees to plaintiff.
R. Doc. No. 182, at 5-7 (emphasis removed).
Id. at 5.
R. Doc. No. 183, at 6 (emphasis removed).
See id. at 4-5.
R. Doc. No. 176-1, at 5-6 (quoting Farrar , 506 U.S. at 121, 113 S.Ct. 566 (O'Connor, J., concurring) ) (internal quotation marks omitted).
See id. at 6, 9-10.
Id. at 7-8.
R. Doc. No 184, at 4. The Court notes that, in her filings in support of her motion for attorney's fees, plaintiff refers to herself as the party who "fully litigated the issue of injunctive relief." Id. ; see also R. Doc. No.176-1, at 7 (referring to plaintiff's "emergency motion seeking preliminary injunctive relief" and "[p]laintiff's motion for preliminary injunction"). In a footnote in her memorandum in support of her motion for attorney's fees, however, plaintiff recognizes that "the motion was filed by then living [p]laintiff Nelson Arce." Id. n.4.
Id. Nelson never requested a preliminary injunction against the Sheriff of Jefferson Parish. For the reasons explained below, the Court would have denied such a request. See infra note 56.
R. Doc. No. 43, at 1.
The Fifth Circuit has recognized that a preliminary injunction may qualify as judicially sanctioned relief for purposes of "prevailing party" status in at least one limited situation: where the preliminary injunction is "coupled with the [defendant's] subsequent mooting of the case." Dearmore v. City of Garland , 519 F.3d 517, 524 (5th Cir. 2008). To qualify as a "prevailing party" in this situation, "the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiff's claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits." Id.
Nelson did not "win a preliminary injunction," let alone one "based upon an unambiguous indication of probable success on the merits of [his] claims as opposed to a mere balancing of the equities in [his] favor." Id. Further, it is beyond dispute that the Court's minute entry did not cause Louisiana to do anything to moot the case or any claims in it. See id.
See R. Doc. No. 1, at 13-14.
R. Doc. No. 184, at 3 (emphasis removed).
Justice O'Connor wrote separately in Farrar "to explain more fully why, in [her] view, it [was] appropriate to deny fees in [the] case." Farrar , 506 U.S. at 116, 113 S.Ct. 566 (O'Connor, J., concurring). Justice O'Connor opined that Joseph Farrar's "success might be considered material if it also accomplished some public goal other than occupying the time and energy of counsel, court, and client." Id. at 121-22, 113 S.Ct. 566. She ultimately did not discern any public goal served by the Farrar plaintiff's nominal damages award. See id. at 122, 113 S.Ct. 566. Thus, Justice O'Connor concluded that "the relevant indicia of success," which included "the public purpose served" by a plaintiff's success, "all point[ed] to a single conclusion: Joseph Farrar achieved only a de minimis victory" that did not warrant an award of attorney's fees. Id.
R. Doc. No. 176-1, at 5-10.
None of Justice O'Connor's colleagues joined her concurrence. Further, the Supreme Court has never signaled that the lower courts should follow any opinion in Farrar other than the one that garnered a majority of the justices.
That being said, the Court acknowledges that Justice O'Connor's concurrence has played an outsized role in shaping circuit law post-Farrar . A number of circuits have more or less adopted it as circuit law. See Diaz-Rivera v. Rivera-Rodriguez , 377 F.3d 119, 125 (1st Cir. 2004) ; Jama v. Esmor Correctional Serv., Inc. , 577 F.3d 169, 176 (3d Cir. 2009) ; Mercer v. Duke University , 401 F.3d 199, 203-09 (4th Cir. 2005) ; Johnson v. Lafayette Fire Fighters Ass'n Local 472 , 51 F.3d 726, 731 (7th Cir. 1995) ; Jones v. Lockhart , 29 F.3d 422, 423-24 (8th Cir. 1994) ; Cummings v. Connell , 402 F.3d 936, 947 (9th Cir. 2005) ; Phelps v. Hamilton , 120 F.3d 1126, 1131-33 (10th Cir. 1997) ); see also Glowacki v. Howell Pub. Sch. Dist. , 566 Fed.Appx. 451, 453-55 & 453 n.1 (6th Cir. 2014) (applying Justice O'Connor's concurrence, but declining to adopt it as circuit law). On occasion, the Fifth Circuit has also incorporated insights offered by Justice O'Connor in her concurrence into its opinions. See Riley , 99 F.3d at 760 ; Hidden Oaks Ltd. v. City of Austin , 138 F.3d 1036, 1052 (5th Cir. 1998).
The Fifth Circuit has not, however, adopted the factors proposed by Justice O'Connor to determine whether a technically prevailing plaintiff should nonetheless receive no fee award under Farrar . Compare Grisham , 837 F.3d at 569 ("We have repeatedly held that the Farrar circumstance of nominal but no compensatory damages only justifies a complete denial of fees when monetary relief is the primary objective of a lawsuit), with Farrar , 506 U.S. at 122, 113 S.Ct. 566 (O'Connor, J., concurring) ("In this case, the relevant indicia of success-the extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served-all point to a single conclusion: Joseph Farrar achieved only a de minimis victory. As the Court correctly holds today, the appropriate fee in such a case is no fee at all."). The Court will not tread into jurisprudential territory that the Fifth Circuit appears to have chosen to avoid.
It appears that Joseph Farrar dropped his injunctive relief claim before his death. See Estate of Farrar v. Cain , 941 F.2d 1311, 1312 (5th Cir. 1991), aff'd sub nom. , Farrar v. Hobby , 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
See R. Doc. No. 69, at 13-14.
See R. Doc. No. 79.
Although no party questioned Nelson's standing to pursue prospective relief against the Sheriff of Jefferson Parish while Nelson was alive, the Court now concludes that Nelson did not have standing to do so. Nelson was released from the JPCC on March 7, 2016. See R. Doc. No. 1, ¶ 34. Yet he did not file suit until August 22, 2016-over five months later. Plaintiff has not identified even one case authorizing a former prisoner to pursue prospective relief against the institution at which he was incarcerated after his release from the institution. See R. Doc. No. 184, at 10-11. This is no surprise: "The general rule is that a prisoner's transfer or release from a jail moots [any] individual claim for declaratory and injunctive relief" involving conditions at the jail that the prisoner otherwise had standing to bring during his period of incarceration. McKinnon v. Talladega Cty., Ala. , 745 F.2d 1360, 1363 (11th Cir. 1984) (citing Holland v. Purdy , 457 F.2d 802 (5th Cir. 1972) ); cf. Herman v. Holiday , 238 F.3d 660, 665 (5th Cir. 2001) ("Herman's transfer from the ECDC to the Dixon Correctional Institute in Jackson, Louisiana, rendered his claims for declaratory and injunctive relief moot.").
However, "if a reasonable likelihood exists that the plaintiff will again be subjected to the allegedly unconstitutional actions," then "[j]urisdiction over a plaintiff's claims for future relief is appropriate" even after the plaintiff is no longer exposed to those unconstitutional actions. Wallace v. Texas Tech Univ. , 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (emphasis removed). To that end, plaintiff contends that "Nelson at the time of filing his complaint was on active probation and had charges pending in Plaquemines Parish so with those two factors combined, there was a 'sufficient likelihood of future harm' to confer standing upon Nelson" to pursue prospective relief against the Sheriff of Jefferson Parish. R. Doc. No. 184, at 11. The Court disagrees.
Plaintiff's suggestion that Nelson was reasonably likely to find himself incarcerated at JPCC again in the future amounts to nothing more than rank speculation driven by a series of assumptions, including assumptions about how Nelson's charges in Plaquemines Parish would be resolved and how various actors in the Louisiana criminal justice system would react to that resolution. Cf. Humphreys v. City of Ganado, Tex. , 467 Fed.Appx. 252, 257 (5th Cir. 2012) ("Here, Humphreys lacks standing to seek an injunction against future prosecution for the same conduct because he alleges no facts indicating that such prosecution is likely, or even threatened. Indeed, any threat of future prosecution is highly speculative."); Herman , 238 F.3d at 665 ("[A]ny suggestion of relief based on the possibility of transfer back to the ECDC is too speculative to warrant relief."). The "continuing controversy" required to seek injunctive or declaratory relief "may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury." Bauer v. Texas , 341 F.3d at 358. "[T]he mere possibility of future consequences is too speculative to give rise to a case or controversy." Bailey v. Southerland , 821 F.2d 277, 279 (5th Cir. 1987). Therefore, Nelson did not have standing to pursue prospective relief against the Sheriff of Jefferson Parish.
Where the basis for a plaintiff's "prevailing party" status is a preliminary injunction grounded in the plaintiff's likely success on the merits, see supra note 47, then the preliminary injunction functions as the equivalent of a court-ordered resolution of her claims.
In her memorandum in support of her motion, plaintiff cites Pembroke for the proposition that attorney's fees are warranted on the basis of voluntary changes that defendants allegedly implemented as a direct result of the lawsuit. See R. Doc. No. 176-1, at 10. In Pembroke , the Fifth Court determined that the plaintiffs "should receive reasonable attorney's fees and costs," because the plaintiffs were "entitled to prevailing party status." 981 F.2d at 231. They were entitled to this status, the Fifth Circuit explained, because "[t]he goal of their suit was accomplished as a result of their filing suit and the defendant has failed to show that the improvements were 'wholly gratuitous.' " Id.
In short, the Fifth Circuit concluded in Pembroke that the plaintiffs were entitled to "prevailing party" status under the "catalyst theory." As the Court previously explained, the Supreme Court has rejected this theory; voluntary actions by a defendant can no longer support "prevailing party" status under federal civil rights laws. See supra note 33.
Moreover, it is axiomatic that "the determination of fees 'should not result in a second major litigation.' " Fox v. Vice , 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011) (quoting Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). If the Court treated defendants' voluntary changes in conduct as relevant to any stage of the attorney's fees inquiry, then just such a result seems inevitable. The parties would certainly contest what changes were made and why, and the Court would be required to resolve these intensely factual disputes.
In any event, the Court need not conclusively determine whether voluntary conduct by a defendant may be relevant at some point in the attorney's fee analysis. It is enough to say that an examination of such conduct is not relevant to the question of whether "monetary relief is the primary objective of a lawsuit"-the question currently facing the Court. Grisham , 837 F.3d at 569.
With respect to the Sheriff of Jefferson Parish, the same can be said even of Nelson. See supra note 56. Thus, as far as the Sheriff of Jefferson Parish is concerned, this case from its inception has only been about monetary relief: it is the only form of relief that either Nelson or plaintiff had any legal right to pursue against the Sheriff of Jefferson Parish.
Having concluded that special circumstances justify the denial of all fees to plaintiff, the Court will not proceed to the two-step analysis in which courts generally must engage to determine an appropriate fee award: 1) "calculat[ing] a 'lodestar' fee by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers," and 2) "consider[ing] whether the lodestar figure should be adjusted upward or downward depending on the circumstances of the case." Migis , 135 F.3d at 1047 ; see also Johnson v. Ga. Highway Express, Inc. , 488 F.2d 714 (5th Cir. 1974) (articulating the twelve factors that a court should consider to adjust the lodestar).
Were the Court to proceed to this analysis, however, the Court doubts that it would award plaintiff anything near her requested $495,853.50 in attorney's fees. Cf. Migis , 135 F.3d at 1048 ("The attorney's fee award was over six and one-half times the amount of damages awarded. Migis sought over twenty-six times the damages actually awarded. Regardless of the effort or ability of her lawyers, we conclude that these ratios are simply too large to allow the fee award to stand."); Smith v. Acevedo , No. 09-620, 2010 WL 11512274, at *2 (W.D. Tex. Nov. 22, 2010) (Sparks, J.) ("Having considered all of the Johnson factors, the evidence provided by Smith's counsel, and the arguments and objections of the parties, the Court awards $2,500 in attorneys' fees and costs to Smith's counsel. This sum appropriately reflects Smith's very limited success, while still recognizing the useful time spent by counsel, the minor controversy involved in the case, and the importance of civil rights litigation."), aff'd , 478 Fed.Appx. 116 (5th Cir. 2012).
DOJ's guidance further notes that "[t]he [House] Judiciary Committee Report [on the ADA] specifies that such items"-namely, litigation expenses-"are included under the rubric of 'attorneys fees' and not 'costs' so that such expenses will be assessed against a plaintiff only under the standard set forth in Christiansburg Garment Co. v. Equal Employment Opportunity Commission , 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)." 28 C.F.R. § Pt. 35, App. B (citing H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 73 (1990) ).
R. Doc. No. 181, at 1.
See R. Doc. No. 188-1.
Defendants do not address plaintiff's request for costs in their oppositions to plaintiff's motion. See R. Doc. No. 182; R. Doc. No. 183. Therefore, defendants have waived any challenge concerning the request. Cf. United States v. Scroggins , 599 F.3d 433, 446-47 (5th Cir. 2010) (explaining that a party waives any issue that it fails to satisfactorily brief on appeal).
Plaintiff appears to suggest that her counsel's travel expenses are recoverable under § 1920. See R. Doc. No. 176-1, at 24 & n.18. If so, plaintiff is mistaken. See Coats v. Penrod Drilling Corp. , 5 F.3d 877, 891 (5th Cir. 1993) ("The district court denied Coats' request for travel expenses in the amounts of $711.69 and $642.35, $1,744.96 for 'blow-ups' used at trial, and $1,175.00 in video technician fees incurred for video depositions. These expenses are not included in § 1920 and therefore are not recoverable."), aff'd en banc , 61 F.3d 1113 (5th Cir. 1995).
As Judge Fallon has recognized:
Although 28 U.S.C. § 1920 does not expressly authorize the payment of private process servers, the Fifth Circuit acknowledged, in Gaddis v. United States , 381 F.3d 444, 456 (5th Cir. 2004), that section 1920(1)'s phrase "fees of the clerk and marshal" has been interpreted to include private process servers' fees as taxable costs "because the service of summonses and subpoenas is now done almost exclusively by private parties employed for that purpose, not the U.S. Marshal."
MCI Commc'ns Servs., Inc. v. Hagan , No. 07-0415, 2010 WL 11549409, at *2 (E.D. La. Feb. 12, 2010) (Fallon, J.); see also Cashman Equip. Corp. v. Smith Marine Towing Corp. , No. 12-945, 2013 WL 12229038, at *11 (E.D. La. June 27, 2013) (Wilkinson, M.J.) (observing that "district courts in the Fifth Circuit have in recent years begun to award costs for private process servers, though some have limited those costs to the amount charged for service by the U.S. Marshal" and citing cases), report and recommendation adopted , No. 12-945, 2013 WL 12228976 (E.D. La. July 12, 2013) (Vance, J.); Katz , 2009 WL 3712588, at *2 ("Parties routinely employ private process servers....And courts often allow for the taxation of such costs, especially when locating witnesses is cumbersome."). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7247181/ | IVAN L.R. LEMELLE, SENIOR UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Gulf Logistics Operating, Inc.'s 12(b)(6) "Motion to Dismiss." Rec. Doc. 7. Also before the Court is the EEOC's "Memorandum in Opposition to Defendant's 12(b)(6) Motion to Dismiss" (Rec. Doc. 14) and Defendant's "Reply Memorandum in Support of Rule 12(b)(6) Motion to Dismiss" (Rec. Doc. 19). For the reasons discussed below,
IT IS ORDERED that Defendant's "Motion to Dismiss" (Rec. Doc. 7) is DENIED .
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant Gulf Logistics Operating, Inc. operates a fleet of boats in the Gulf of Mexico supporting companies engaged in oil and gas exploration. Rec. Doc. 2 ¶ 4. In October 2012, Defendant hired Jason Gunderson to work as a deckhand on one of Defendant's boats. Id. ¶ 16. While employed by Defendant, Gunderson was never disciplined regarding his performance of the essential functions of his job. Id. ¶ 17. In January 2013, Gunderson began having marital problems and, as a result, began experiencing emotional distress. Id. ¶ 18. He separated from his wife a few months later. Id. ¶ 19. In April 2013, Gunderson asked his manager, Randy Whittaker, for a referral to the Employee Assistance Program (EAP) to obtain help coping with the stress of his separation. Id.
Whittaker, a Health, Safety and Environmental Manager for Defendant, provided Gunderson with a list of numbers to call *834for EAP assistance. Id. ¶ 20. He told Gunderson, who expected to miss five days of work, that he would not be allowed to return to work without first obtaining a release from the company doctor. Id. ¶¶ 22, 23. Specifically, Whittaker told Gunderson that he "would not be able to send him back to his assigned vessel due to safety reasons and concerns regarding [Gunderson's] need to seek EAP assistance for his emotional distress." Id.
Gunderson returned to work approximately three weeks later, on or about May 20, 2013, at which time he presented a medical release from the company's doctor stating that he could return to work without any restrictions. Id. ¶ 24. The doctor's note "determined that Gunderson had 'situational' depression." Id. ¶ 25. Upon his return, Gunderson worked without restrictions, and he was given no indication of concern about his performance. Id. ¶ 28. However, two weeks later, on June 5, 2013, Defendant discharged Gunderson. Id. ¶ 27.
Gunderson filed a charge with the Equal Employment Opportunity Commission, alleging disability discrimination by Defendant. Id. ¶ 8. The EEOC found reasonable cause to believe that there had been a violation and issued a Letter of Determination that Defendant had discriminated against Gunderson. Id. ¶ 9. Subsequently, the EEOC attempted to remedy the discriminatory practice and to secure a conciliation agreement with Defendant; however, such attempts were unsuccessful and the EEOC issued a Notice of Failure of Conciliation on September 11, 2017. Id. ¶ 10-13. The EEOC then filed a complaint in this court against Defendant on September 21, 2017, alleging violations of the Americans with Disabilities Act, as amended (ADAAA). See Rec. Doc. 2.
The complaint alleges that Defendant discriminated against Gunderson by discharging him "because the Defendant perceived him to be a threat to the safety of others due to perceived 'distraction' caused by his situational depression or adjustment disorder in violation of the ADA[AA]. 42 U.S.C. § 12102(3)(A)." Id. ¶ 27. The complaint also alleges that Defendant unlawfully discriminated against Gunderson by "forcing [him] to obtain a medical release before he could return to work after requesting a referral to the Employee Assistance Program" in violation of 42 U.S.C. § 12112(d)(4)(A), a provision that prohibits employer-ordered medical exams to determine the nature of an employee's disability except under special circumstances. Id. ¶ 32.
The EEOC seeks an injunction to enjoin Defendant from forcing individuals to seek a medical release to return to work after requesting an EAP referral, back-pay with prejudgment interest for Gunderson, and either reinstatement or front-pay to make Gunderson whole. Id. at 8-9. Additionally, the EEOC seeks compensation for past and future pecuniary and nonpecuniary losses, and punitive damages for Defendant's "malicious and reckless conduct." Id. at 9-10.
LAW AND ANALYSIS
"To survive a Rule 12(b)(6) motion to dismiss, ... [a plaintiff's complaint] need only include a 'short and plain statement of the claim showing that the pleader is entitled to relief.' " Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010) (quoting Fed. R. Civ. P. 8(a) ). "A complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl.Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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 *835for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
The EEOC's complaint alleges two violations of the ADAAA, which prohibits a "covered entity" from "discriminat[ing] against a qualified individual on the basis of disability...." 42 U.S.C. § 12112(a). The first claim alleges "regarded as" disability-discrimination in violation of 42 U.S.C. § 12102(3)(A), which provides that an individual is "regarded as having an impairment" when "the individual establishes that he or she has been subjected to an [adverse employment action] ... because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The complaint alleges that Gunderson was subjected to an adverse employment action when he was discharged on June 5, 2013. See Rec. Doc. 2 ¶ 33. The complaint alleges that Defendant knew of Gunderson's request for EAP assistance and, based on the note from the company doctor, that Gunderson was diagnosed with "situational depression." Therefore, the EEOC's position is that Gunderson was improperly discharged two weeks after Defendant learned of Gunderson's depression from the company doctor's note because Defendant regarded Gunderson as having depression.
The second claim alleges that Defendant discriminated against Gunderson in violation of 42 U.S.C. § 12112(d)(4)(A) by requiring Gunderson to obtain a doctor's note before returning to work. See Rec. Doc. 2 ¶ 32. Section 12112(d)(4)(A) provides:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
The complaint alleges that Defendant would not allow Gunderson to return to work after seeking EAP assistance until he obtained a release from the company doctor. See Id. ¶¶ 22-26. Therefore, the EEOC maintains that Defendant imposed a medical exam on Gunderson as an unlawful precondition of his returning to work.
However, Defendant fails to request dismissal of the two claims actually pleaded in the complaint. Rather, Defendant seeks dismissal of "all claims ... arising from a disability under 42 U.S.C. § 12102(1)(A) & (B)" and of "all claims ... for allegations of a failure to reasonably accommodate...." Rec. Doc. 7 ¶¶ 1, 2, 6. But the EEOC's complaint does not allege violations of 42 U.S.C. §§ 12102(1)(A) or (B), or a failure to accommodate. Therefore, Defendant is asking the court to dismiss claims not before it; consequently, Defendant's motion must be denied.1 See, e.g. , Holden v. Knight , No. 3-2347, 2004 WL 2347576, at *5 (E.D. La. Oct. 15, 2004) (declining to address Defendant's argument that claim was insufficiently pleaded because claim was nonexistent). The instant complaint provides sufficient factual and legal allegations to survive the instant motion. Discovery should reveal the underlying factual details that might support alleged claims and/or defenses to the same.
Because Plaintiff has not sought leave to amend its complaint, the Court will not presently entertain arguments about whether Plaintiff would be able to amend in the future. See Rec. Doc. 14 at 8. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3436096/ | A companion to the instant case was before this court once before. Stewart v. Wild, 196 Iowa 678. The petition set out in the opinion in said case recites the facts substantially as alleged in the petition in the instant case. Appellant seeks to recover for damages by reason of the negligence of *Page 358
appellee in permitting certain hogs, alleged to be the property of appellee, to be upon the public highway.
But one question is involved in this appeal, and that is whether or not appellant was entitled to go to the jury on the question of appellee's ownership of the hogs which it is claimed caused the injury. Undoubtedly the burden rested upon appellant to establish the ownership of the hogs in appellee. Appellant made no case to go to the jury without the offer of proof upon the question of the ownership of the hogs. To sustain his allegation in this regard, appellant offered proof tending to show that the hogs in question were upon appellee's premises immediately prior to the injury, and that they came from appellee's premises upon the public highway in such a manner as to cause the automobile in which appellant was riding to be overthrown. Appellant also offered proof tending to show that the said hogs had been upon appellee's premises for several days, approximately a week, before the accident. The transaction occurred on May 30th, and the evidence in behalf of appellant tended to show that, after the said injury, the hogs that caused the said injury remained upon appellee's premises and in his possession and under his control for several months, until sometime in the fall, the exact date of which is not stated; nor does it appear from the record what final disposition was made of the animals. It appears that appellee's nearest neighbor is a half mile away. Appellant offered testimony tending to show that, immediately after the injury, appellee appeared at the scene of the accident, and said to appellant, "I try to keep my hogs up, but they will get out." Appellant contends that the showing so made by him was sufficient to carry the case to the jury.
The motion to direct a verdict was submitted at the close of all the testimony. It is proper to note that appellee denied the alleged conversation, and offered testimony tending to show that he did not own the hogs in question, but that they were stray hogs which came upon his premises.
It was not for the trial court, nor is it for this court, to pass upon the credibility of witnesses on a disputed fact question, nor to determine where the weight of the testimony lies. If appellant offered testimony entitling him to go to the jury on the question of the ownership of the hogs, the court should not have directed a verdict against him because of the denial of *Page 359
ownership by appellee, nor should the court balance the evidence on the subject and decide where, in his judgment, the preponderance lies. That duty is solely one imposed upon the jury.
It is a well established and very familiar rule that the possession of personal property raises a presumption of ownership in the person having such possession. Strictly speaking, proof of possession of personal property does not create a presumption of law as to ownership, but from proof of such possession a permissible inference of fact of ownership may be found. Proof of possession of personal property is generally referred to as raising a presumption of ownership, or as being prima-facie evidence of ownership. Cumberledge v. Cole, 44 Iowa 181;Courtright v. Deeds, 37 Iowa 503; Wallace v. Wallace, 62 Iowa 651; Gregory v. Burlington M.R.R. Co., 10 Neb. 250
(4 N.W. 1025); Trevorrow v. Trevorrow, 65 Mich. 234 (31 N.W. 908); Bergenv. Riggs, 34 Ill. 170; Doane v. Glenn, 1 Colo. 495; PhiladelphiaTr., S.D. Ins. Co. v. Philadelphia E.R. Co., 177 Pa. St. 38 (35 A. 688).
Such presumption is, however, a rebuttable presumption, and one which may be met by proof denying ownership; but it is for the jury to determine, from the evidence in the case, whether the presumption has been overcome. Appellant is not to be denied his right to go to the jury upon the presumption that arises from proof of possession, merely because the ownership is denied. There are expressions in cases to the effect that proof of possession raises a presumption of ownership, and that such is sufficient "unless the contrary appears." But whether the contrary appears is to be determined by the jury, upon the evidence in the case.
Of course, it is possible that a plaintiff may, by his own testimony, overcome the presumption of ownership that might arise from possession, and thus place himself in a position where the court should direct a verdict against him; but no such situation is disclosed in the case at bar. There was sufficient evidence of possession and the exercise of dominion and control over the hogs in question, both prior and subsequent to the accident, to carry to the jury the question of ownership; and appellant was entitled to go to the jury on that question. Whether such presumption of ownership was overcome by proof *Page 360
in behalf of appellee was a question for the determination of the jury, under proper instructions of the court.
We are constrained to hold that the court erred in sustaining appellee's motion for a directed verdict, and that, upon the record as made by appellant, he was entitled to go to the jury on the question of fact presented.
It follows that the judgment appealed from must be, and it is, — Reversed.
De GRAFF, C.J., and STEVENS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436097/ | There is but one question presented in appellants' argument. It is: Did the cause which produced the death of James William Jones, the claimant's deceased husband, "arise out of his employment" with the Eppley Hotels Company, as contemplated by Section 1377 of the 1927 Code?
The Martin Hotel, in Sioux City, is owned and operated by the appellant Eppley Hotels Company, and the appellant London Guarantee Accident Company, Limited, is the compensation insurance carrier for the Eppley Company. Mr. Jones, for a considerable time before his death, had been working for the appellant Eppley Hotels Company, at the Martin Hotel, and, on the morning of July 24, 1928, he continued such duties until, in the course thereof, he became unconscious. In that condition he was found on the floor of the hotel kitchen, at about 6 A.M. From there he was taken to the hospital, where consciousness was regained. However, at about 5:30 o'clock in the afternoon of July 25th, Jones again became unconscious, and thus remained until he died, at 8 o'clock in the morning of the following day. Alice, a daughter, four years old, and Mary Jane Jones, the widow, both survived the decedent. Claim for compensation is here made by the widow. Is she entitled to it? If so, it is because her husband's death resulted from an injury arising *Page 1283
out of his employment. Section 1377, 1927 Code, supra; Sparks v.Consolidated Ind. Coal Co., 195 Iowa 334.
To prove this essential fact, the burden is upon the claimant, appellee. Sparks v. Consolidated Ind. Coal Co. (195 Iowa 334), supra; Flint v. City of Eldon, 191 Iowa 845; Griffith v. ColeBros., 183 Iowa 415; Pentony v. Dudley, 197 Iowa 744; Slack v.Percival Co., 198 Iowa 54. This obligation she must meet by a preponderance of the evidence, as distinguished from that proof which will satisfy beyond a reasonable doubt. Flint v. Eldon
(191 Iowa 845), supra. The duty of determining where the preponderance of evidence lies, under the records in cases of this kind, is the task imposed by statute upon the state industrial commissioner. If there is no fraud, and that official acts with power, and not in excess thereof, and his findings support the order and decree, it cannot be interfered with on appeal to the district court unless "there is not sufficient competent evidence in the record to warrant the making of the order or decision." Section 1453, 1927 Code; Flint v. City of Eldon (191 Iowa 845), supra; Hinrichsv. Davenport Locomotive Works, 203 Iowa 1395.
Putting the thought in another way, it is not the province of the district court, or this tribunal, to usurp the power of the commissioner and act in his place and stead as a trier of the facts. That thought is expressed in Flint v. City of Eldon
(191 Iowa 845), supra, as follows:
"It is not within the legislative scheme to make a court the reviewer of the facts, and it has been repeatedly held that the court is forbidden to trespass upon the defined jurisdiction of the commissioner, the latter being the sole judge and the final judge of the facts."
With whom the preponderance lies, is a question for the commissioner; that there is or is not competent evidence which may give rise to a preponderance, is a problem for the court. Mere speculation and conjecture do not amount to such substantial evidence. Sparks v. Consolidated Ind. Coal Co. (195 Iowa 334), supra; Slack v. Percival Co. (198 Iowa 54), supra.
Assuming, then, that the commissioner's finding is supported by mere speculation or conjecture only, it can be reviewed by the courts. Under the present record, because of the narrow *Page 1284
scope of appellants' argument, the question at bar will be solved by deciding whether the commissioner acted on a mere speculation or conjecture alone. Consideration of the facts will settle this controversy; for, on the one hand, appellee insists that her husband met his death by a cerebral hemorrhage caused by a fall, while, on the other, appellants contend that apoplexy, or something akin thereto, produced the hemorrhage.
Jones, the decedent, was approximately 57 years of age, and in good health, except for pains or neuritis in his legs. These ailments were not serious. Previous to the unconsciousness above named, decedent had not been in an accident, or in any other way injured. On the morning of July 24, 1928, Mr. Jones, in accordance with his duty, was working at the Martin Hotel as ice man: that is, "he cut the ice" into cubes, so that it could be "used in the dining room." After thus cutting the cubes, Mr. Jones placed them in a bushel basket, which he then carried from the basement into the kitchen, where he deposited the contents in a chest provided therefor. Commencing this duty at about 5:18 on the morning of July 24th, he continued for an indefinite period.
Wallace Lebeck, an employee of Roberts Dairy Company, stopped at the hotel to deliver milk about 6 o'clock A.M., and found Jones in an unconscious condition on the kitchen floor. More particularly, this witness discovered the unconscious man "right in front of the coffee urns * * * lying flat on the floor, with his feet to the south, and his head resting on a brace which supports the coffee urn stand." Continuing, this witness said:
"This brace was made of gas pipe, and it was parallel with the floor, and six or eight inches above the floor. The back of his [Jones's] head was resting on this pipe. His face was up * * *. There was a bushel basket lying there. As near as I [the witness] can remember, it was directly south of him. There was some cracked ice on the floor and some in the chest. There was no ice in the basket. I [the witness] don't know what kind of a floor that is, but it is a smooth hard finish."
Dr. C.J. Goebel, house physician for the hotel, was called to attend the stricken man. Upon viewing the patient, the physician immediately sent him to St. Joseph's Hospital. Two hours later, the attending physician called on Mr. Jones there. Soon *Page 1285
thereafter, Jones regained consciousness, and his reflexes were normal and all present. He could answer questions, but "did not seem to remember just what happened to him." A slight contusion was found at the base of the skull. Whether there was any other injury to the exterior of the head, the record does not disclose. Continuing, the attending physician said:
"His [Jones's] face, eyes, ears, nose, and mouth were negative. There was nothing wrong with his neck. The thorax was normal, spine apparently [all right], lungs normal, abdomen and kidneys negative. The anus, rectum, and genitalia and extremities were negative. Central nervous system and skin were negative. His temperature on the first day in the hospital was 99.4. Pulse 70, respiration 20."
An examination by stethoscope disclosed a normal heart. Likewise, two blood tests were made, and revealed a negative condition. So, too, a Wassermann test was taken, which was also negative. Following Jones's death, on July 26, 1928, a postmortem examination, as shown by this witness, was conducted by Dr. Starry. Thereby was disclosed "hemorrhage into the ventricles; the aqueduct filled with clotted blood; the meninges of the mesial surface of both hemispheres was filled with blood; there was no advanced arteriosclerosis of the basalar vessels." Further testifying, Dr. Goebel said, in answer to a hypothetical question, that the hemorrhage was due to trauma, and that trauma, rather than an apoplectic stroke, probably caused the death. Also, this witness said that the cerebral hemorrhage might have resulted from a fall against the pipe. Concluding, the witness stated:
"From my examination made, and the history that I have obtained of this case, hypothetical questions, I think it more probable the cause of his injury was trauma than from any other cause."
Support for the foregoing testimony was furnished by Dr. R.N. Larimer, who said:
"I believe the trauma had some direct bearing on the patient's condition. * * * I don't believe he had a stroke of apoplexy. * * * I believe that this injury to the patient must *Page 1286
have been traumatic, and that trauma was the primary cause of his death. * * * This impression is not mostly speculation."
A.C. Starry, another doctor, further substantiated the previous witnesses. Notation is here made that this physician performed the autopsy. In describing what he there found, the witness says:
"On examination of his [Jones's] brain, we found a hemorrhage into the ventricles, and also an area of hemorrhage into the meninges, the central portion, extending down to the corpus callosum, the medial surface of the two hemispheres. That was, of course, the cause of death. * * * This hemorrhage was in the center or top of the head, located in the ventricles of each hemisphere of the cerebrum. * * * There was another hemorrhage in the lining or covering of the brain, extending down in between the two hemispheres where they come together. An area of hemorrhage in the covering of the brain, — as we say, the meninges. * * * Spontaneous apoplexy usually is not found in a multiple area, usually found in one area. * * * Probably the multiple hemorrhage which I found indicates an accident or trauma of some kind, prior to his being found unconscious. * * * I couldn't find anything [in the post-mortem examination] that I could be satisfied indicated that this man suffered what is known as spontaneous apoplexy. * * * The two areas of the hemorrhage were in the upper and front part of the brain. * * * I can say he [Jones] may have had apoplexy, but I feel the weight of evidence is a little more the other way. * * * It is not likely that there would be a weakened or diseased condition of some small portion of some blood vessel in the brain, without being any evidence of a weakened condition or sclerosis of the other blood vessels in that same brain. * * * I couldn't find any aneurysms in this case. * * * When I gave it as my opinion, upon direct examination, that it was more probable that this condition which I found in this man's brain was due to traumatic reasons, rather than other reasons, I based that opinion on the evidence and findings of the case. * * * I have in good faith given an opinion as to the probabilities, and that it is more favorable to a traumatic origin than any other cause [and this] is not based on conjecture and speculation. * * * I feel that, if there had been aneurysm there, I would have detected it in the *Page 1287
meningeal section. The vessels are rather distinct in the meninges."
Important in this connection is the fact that there was a multiple hemorrhage. Apoplexy and causes of that kind, according to the doctors, as stated and restated in the record, produce but a single hemorrhage, while trauma results in the double. The meninges were affected. Hemorrhage was found there, as well as in the ventricles. Doctors consider the multiple hemorrhage, under the circumstances, quite important. Strong support is furnished for the commissioner's conclusion by the fact that there was a multiple hemorrhage, and that trauma, generally speaking, as distinguished from apoplexy, alone could cause it. No evidence of apoplexy or any cause except trauma was discovered by the physicians who testified, as above related.
Such, in a general way, is the record upon which the claimant relies for an affirmance. Embraced therein, she contends, is sufficient substantial evidence to support the commissioner's finding. Restating the thought in another way, the claimant, appellee, insists that there is such substantial testimony that the commissioner was authorized, in exercising his authority, to declare where the preponderance thereof lies. We are constrained to agree with her in this regard.
While no one saw Jones fall in the hotel kitchen, yet it is morally certain that he did so. Viewing the entire record, as we must, including the ice on the floor and all the other facts and circumstances, together with the medical testimony, it appears that there is a basis for the commissioner's conclusion. Hinrichsv. Davenport Locomotive Works (203 Iowa 1395), supra; StateCompensation Ins. Fund v. Industrial Acc. Com., 195 Cal. 174
(231 P. 996); Sparks Mill. Co. v. Industrial Com., 293 Ill. 350
(127 N.E. 737); Santa v. Industrial Acc. Com., 175 Cal. 235
(165 P. 689); Dean v. Benton Harbor-St. Joe R. L. Co., 231 Mich. 23
(203 N.W. 952); Sanderson's Case, 224 Mass. 558 (113 N.E. 355);Uzzio's Case, 228 Mass. 331 (117 N.E. 349).
Possibly the commissioner was wrong in his decision. Another result might or might not have been reached by us, had it been our duty to make a finding. That is not the question. There was substantial evidence in the record, and it was the province of the commissioner to say with whom it preponderated. Accordingly, *Page 1288
that official so did; and this court, under the circumstances, cannot interfere therewith.
Nevertheless, appellant earnestly argues that Doctors Goebel, Larimer, and Starry were not certain. This is true, but they did say that the probabilities were favorable to the trauma theory. Starry, the doctor who performed the autopsy, on cross-examination, in discussing the subject, said: "I had better keep within the word `possibly.'" Again, he said that he was conjecturing. Yet, considering his testimony as a whole, it is very evident that the witness intended to express the probabilities; for on redirect examination he said:
"I am not using the proper word — the probabilities — I am deducing the probabilities, you understand. I am not saying that it did [the injury caused the ruptured blood vessel], — I couldn't say that; but the fact that he [Jones] had no disease that I could explain this hemorrhage, and the fact as to there being two areas of hemorrhage there, I deduce from that, that the evidence is more than he probably did have an accident or injury there."
Further support is found in the testimony of Dr. F.A. Ely that the commissioner acted on mere conjecture, because it is surmised the hemorrhage might have been caused by aneurysm. Ely, as a witness, explained that "aneurysm is a `blowout' of a blood vessel, due to some weakening of the walls." Also, Dr. Ely complained because the doctor who performed the autopsy did not discover the exact vessel severed. However, Dr. Ely did not pretend to say that aneurysm was the cause of Jones's death in this case. Some doubt is expressed by this doctor concerning the correctness of the finding made by the other doctors previously named, regarding the multiple hemorrhage; but this is a mere doubt, for Dr. Ely makes it plain that he does not intend to contradict Dr. Starry, who made the post-mortem examination. Dr. Ely did not examine the deceased. Theorizing further, Dr. Ely suggests that a blow on the head will affect the brain, if at all, at the place of injury, or in the region directly opposite therefrom, but will not disturb other portions thereof. Conversely, Dr. Starry said he found no evidences of aneurysm, although he searched for it; and while the exact vessel severed was not discovered, yet the *Page 1289
areas thereof were found and recognized. Whether Jones received an injury to any part of his head except at the base of the skull, does not appear in the record. Conceding, without deciding, that a blow on the head will only injure the brain at the point of contact, or at the region immediately opposite the same, yet, for the purposes of this theory, the location of the place opposite from the impact will depend entirely upon the angle of the blow. However, it was said by Ely that the probabilities were in favor of apoplexy, rather than trauma. But, in modification of such opinion, Dr. Ely says that, if there was a multiple hemorrhage, that fact would point to trauma, instead of apoplexy.
While in some respects Dr. Ely contradicted the testimony of the other physicians, yet, on the whole, there can be considerable reconciliation. Conflicting evidence usually appears in litigated cases. Imposed upon the industrial commissioner was the duty of settling this dispute, and in so doing, it was his province to determine which testimony was to be believed. Generally speaking upon the subject of disputes in expert testimony, we said, in Hinrichs v. Davenport Locomotive Works
(203 Iowa 1395), supra:
"While there is disagreement in the testimony of the expert witnesses, it was peculiarly the province of the industrial commissioner to accept the testimony of such of these witnesses as seemed to him most consistent with all the testimony, and of the greater credibility."
A California court, in State Compensation Ins. Fund v.Industrial Acc. Com., 195 Cal. 174 (231 P. 996), supra, likewise suggests:
"Petitioner assails the acceptance of expert testimony on the ground that it is too insubstantial to sustain the award in this case. The rule as to the value of such evidence is well settled. Expert testimony is often the only testimony available. Especially is this true in cases where the truth is occult, and can be found only by resorting to the sciences. Such testimony is to be given the weight to which it appears in each case to be justly entitled. The law makes no distinction between that kind of testimony and evidence of other character." *Page 1290
Another California court declared, in Santa v. Industrial Acc.Com., 175 Cal. 235 (165 P. 689), supra:
"This [expert medical testimony] was substantial testimony, justifying the commission's inference and finding that the injury had been the proximate cause of Cordova's death. It is true that, on cross-examination, Dr. Ophuls said he could not state that, in fact, there had been an embolus, and that his explanation of the cause of death was `guesswork.' But a reading of his entire testimony shows that he did not, by this, mean to say that he was indulging in mere conjecture or speculation. He was giving what, on the facts before him, and in the light of medical science, appeared to be the most probable explanation of the event. The theory that an embolus arising from the injury had caused the death was `guesswork' only in the sense that there was no direct evidence of the existence of such embolus. But, in Dr. Ophuls' view, other conceivable causes were excluded by the conditions which were shown, and the one which he advanced remained as the most probable one. This was a sufficient basis for the action of the commission."
Manifestly, if mathematical exactness were required, or should the demand be that the claim be established beyond a reasonable doubt, there could be no room for the preponderance of evidence rule. Absolute certainty is not necessary. All requirements in the case at bar were met when the appellee furnished substantial proof upon which the commissioner found the preponderance of the evidence in her favor. Appellee's evidence aforesaid is not overcome by the mere suggestion of appellants that the theory of apoplexy, or some other cause, may be responsible for Jones's death. If, after a weighing of the probabilities, the balance is in favor of appellee, it is sufficient. Such is the criterion in negligence cases tried before a jury. We said, in George v. Iowa S.W.R. Co., 183 Iowa 994:
"The true test is well stated in Schoepper v. Hancock ChemicalCo., 113 Mich. 582 (71 N.W. 1081), wherein it is said that the rule where the case rests wholly in conjecture does not apply, if there is room for balancing the probabilities and for drawing reasonable inferences better supported on one side than the other, even though the evidence for the theory of plaintiff is rebutted, but without disclosing any other probable cause." *Page 1291
Likewise, we declared in Gordon v. Chicago, R.I. P.R. Co.,146 Iowa 588 (at page 594):
"The case so made is not to be disposed of by the suggestion that other reasonable theories may be advanced to explain plaintiff's injury. Even in a case depending on circumstantial evidence alone to establish negligence, the plaintiff is not bound to negative every other conceivable theory or hypothesis which ingenuity may invent to account for his injury. It is only where opposing theories are equally reasonable and equally consistent with the proved or admitted facts that plaintiff must fail as a matter of law."
The rule in compensation cases does not place a greater burden on the claimant than that required of the plaintiff in a negligence case tried before a jury. Probabilities may be balanced in the compensation proceeding, as well as in the negligence case. Uzzio's Case, 228 Mass. 331 (117 N.E. 349), supra; Dean v. Benton Harbor-St. Joe R. L. Co., 231 Mich. 23
(203 N.W. 952), supra; Santa v. Industrial Acc. Com., 175 Cal. 235
(165 P. 689), supra. An illustration of this thought is expressed in the Santa case, supra, in this way:
"But, * * * other conceivable causes were excluded by the conditions which were shown, and the one * * * advanced remained as the most probable one. This was sufficient basis for the action of the commission."
Of course, appellee's alleged probability must have substantial support in the evidence, and when thus sustained, it may be weighed against the theory advanced by the appellant. Thus the industrial commissioner considered the record when he found for the appellee. That result cannot be interfered with by us.
As a basis for their attack, appellants urge that the following authorities sustain the proposition that appellee's alleged probability is no more, in fact, than a surmise or a conjecture:Flint v. City of Eldon (191 Iowa 845), supra; Green v. LocomotiveE.M.L. A. Ins. Assn., 194 Iowa 1203; Sparks v. ConsolidatedInd. Coal Co. (195 Iowa 334), supra; Pentony v. Dudley (197 Iowa 744), supra; Slack v. Percival Co. (198 Iowa 54 *Page 1292
), supra; Sanderson's Case, 224 Mass. 558 (113 N.E. 355), supra.
Some of the cases thus relied upon have to do with suits where the court is permitted to weigh or review the evidence. A consideration of those decisions will reveal marked distinctions.Flint v. City of Eldon held that the claimant need not prove his case "beyond all reasonable doubt." Green v. Locomotive E.M.L. A. Ins. Assn. was an action in equity upon an accident insurance policy. Therein we reviewed the evidence, because the case was triable de novo. Sparks v. Consolidated Ind. Coal Co. contains the following statement:
"There is no evidence in behalf of claimant that such a result [death from a small wound] is even possible, — not to say probable. The only testimony whatever on the subject, aside from the description of the injury, is that of the physician, whoexpresses the opinion that the injury in question did not producedeath [the italics are ours]."
Pentony v. Dudley presents a case where it was claimed, in a damage suit for negligence, that the plaintiff's intestate developed Bright's disease because of a collision caused by a buggy's coming in contact with defendant's automobile. In disposing of the subject, we said, on page 748:
"It appears from the medical testimony on both sides that Bright's disease is not the result of traumatic causes. It may be caused by infections."
Slack v. Percival Co. was a workmen's compensation case, and the point involved was whether an injury produced or aggravated a cancer. Apparently the employee was suffering with this malady before the injury, and the question was "whether, under the disclosed facts, this cancer was * * * so accelerated" by the injury "that it hastened the death of the employee." On page 56 we asserted:
"If it should be conceded that there is opinion evidence in the case to the effect that a cancer of the character of the one in question might have resulted from a traumatic injury, still the evidence in this case fails to show that the employee received any such an injury in the location of the cancer as might have caused its development. * * * [Page 60]. All the *Page 1293
medical experts agree that this malady would have killed the workman in any event."
And we concluded by saying that there was no competent evidence upon which to base a finding that the workman would have lived longer, had there been no injury. Sanderson's Case presented no medical testimony comparable to that submitted in the present cause, and the only evidence before the commission in explanation of the employee's death was mere impermissible conjecture.
Being unable, therefore, to interfere with the finding of the industrial commissioner, who held that Jones came to his death by a cerebral hemorrhage caused from trauma, we must and do hereby affirm the judgment of the district court. — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436098/ | On March 20, 1933, plaintiff signed a note and mortgage for five thousand dollars payable to defendants, and a note for three hundred dollars payable to defendant Lillian Iebsen, and also canceled and surrendered to defendants a four thousand dollar note which defendants had signed and given plaintiff for money borrowed on December 31, 1928. In the instant suit in equity plaintiff prays that the five thousand dollar note and mortgage and the three hundred dollar note be canceled and annulled and that the cancellation of the four thousand dollar note be set aside and that plaintiff have judgment on the four thousand dollar note against defendants. The trial court dismissed plaintiff's petition, and he has appealed.
As one of the grounds for the relief sought plaintiff alleges that wrongful threats made by defendants brought about plaintiff's signing of the two notes and mortgage and plaintiff's cancelling of the four thousand dollar note, while plaintiff was so *Page 1117
fearful and shocked by reason of such threats that he was precluded from exercising his own free will and judgment. Upon this issue of duress the following evidence is in the record.
At the time of the trial, December, 1935, the ages of the parties were the following: Plaintiff 67 years, defendant Lillian Iebsen 35 years, defendant George Iebsen 53 years. When 13 years old plaintiff emigrated with his parents from Germany, coming to Cass county, Iowa. He has ever since lived in the vicinity of Atlantic in that county. He attended school six years in Germany, but during only two months in this country. He was without knowledge of the English language when he left Germany. His lifelong occupation has been farming. He married and has two adult sons. Plaintiff's wife, who was a sister of defendant George Iebsen, died in September 1928. At that time plaintiff's accumulations included two or three farms in Cass county. After losing his wife plaintiff ceased maintaining a household of his own and quit active farming March 1, 1929. A part of the time he lived in the family of one of his sons. In March, 1933, he was living and paying board in the home of one Turner, a tenant on one of his farms. For a couple of months in first part of 1930 plaintiff was at the home of defendants on the 120-acre farm belonging to defendant George Iebsen, seven miles north of Atlantic, doing chores and assisting Iebsen in his farm work. Again in 1931, at the request of defendants, plaintiff was at their home several weeks, doing the necessary work and chores, defendant George Iebsen being incapacitated by illness. On other occasions plaintiff was requested to come to defendants' home and usually complied. In 1932 plaintiff was at defendants' home from March until in the fall, doing farm work and chores in the manner of a farm hand, filling the gap occasioned by Iebsen being employed a part of the time in work on the public highways. During these periods defendants appear to have been more or less in financial straits with outstanding debts and it is the only fair inference from the record that it was defendants' apparent need and desire for assistance, and plaintiff's friendly willingness, that moved plaintiff at various times to be at defendants' farm filling in considerable measure the place of a hired man. Nothing has been found in the record to indicate whether or not plaintiff received any pay or wages. The 120-acre farm on which defendants resided was the old family place where George Iebsen had always lived. There, at *Page 1118
all times following their marriage in January, 1922, the defendants have maintained their common household. Two children born in 1922 and 1924 were members of the family.
On Sunday, March 19, 1933, between ten and eleven o'clock a.m., defendant George Iebsen appeared at the door of the residence on plaintiff's farm about four and one-half miles west of Atlantic, where plaintiff was boarding with the tenant Turner. The door was opened by Turner in response to defendant's knocking. Though invited to come in Iebsen did not enter the house but stated he wished to see plaintiff. Plaintiff, informed of the request, stepped outside onto the porch. Iebsen then exhibited to plaintiff a letter which defendant Lillian Iebsen had written. There was also a conversation, a part of which Turner testifies he heard through a broken window, near which Iebsen and plaintiff were standing. It is Turner's testimony that he heard Iebsen say that he, Iebsen, wanted $10,000 because plaintiff had been keeping company with Iebsen's wife, and that if it was not paid defendant Lillian Iebsen was going to put up little notes around and then commit suicide, and that the neighbors would then come down and hang plaintiff. Turner also testified he heard Iebsen say that he would send plaintiff to jail, unless the $10,000 was paid. Defendant George Iebsen testifying later in the trial, stated on cross-examination that Turner in his testimony had correctly given and described the statements that were made by Iebsen in the talk on the porch. On re-direct examination there was the following:
"Q. Yes, do you recall what Mr. Turner's testimony was as to what he heard? A. Well, I presented him a note, and demanded so much money.
"Q. That is the part you recall Mr. Turner said. A. Yes sir.
"Objected to for the reason it is leading and suggestive."
After this conversation had continued for about five minutes Iebsen and plaintiff went to Iebsen's car that was at a little distance and the two remained in the car for about an hour. Plaintiff then returned to the house and Iebsen drove eastward. At about 1:30 p.m. on the same day Iebsen returned in his car accompanied by defendant Lillian Iebsen. For the second time Iebsen came to the door of the Turner home. To Mrs. Turner, who opened the door, Iebsen said he wanted plaintiff to come outside. Plaintiff came out of the house, and was asked to come *Page 1119
to the car, inside which Lillian had been waiting. Plaintiff went to and entered the car and defendant George Iebsen drove up the road about sixty rods from the house. Plaintiff and the two defendants there remained in the car thirty or more minutes. Plaintiff then walked back to the house and defendants drove eastward toward Atlantic. The day was cold, snow was deep and falling, the storm being described by the witnesses as "blizzardly". In a little while after plaintiff had returned to the house Turner and his wife accompanied by plaintiff, in Turner's car, were driving eastward toward Atlantic. When within about a mile of that town they met the defendants in their car returning toward the Turner home. As the Turner car approached them defendants slowed down and stopped. It is disputed whether Iebsen made a signal that the Turner car also be stopped. But the Turner car did stop, close to the Iebsen car and plaintiff entered the Iebsen car which was then driven westerly. Turner and wife continued their trip easterly into town. Sometime later the Iebsen car stopped at a point about a quarter or one-half mile from the home of plaintiff's son. Thence plaintiff walked to the son's home. In about the middle of the following day plaintiff went to Atlantic. Defendants did likewise, and in defendants' car, standing at the curb of one of the streets of that city, plaintiff signed the two notes in question and canceled and surrendered the four thousand dollar note. During the transaction defendants sent plaintiff from the car to a bank to procure blank notes and it was defendant Lillian Iebsen who filled in the written portions of the notes excepting plaintiff's signature. She also wrote out on a separate piece of paper the form of cancellation of the four thousand dollar note which form plaintiff then copied in his own handwriting on the back of that note. After defendants had obtained the two notes they said to plaintiff that the five thousand dollar note was not good because not secured and that he should execute a mortgage. Thereupon Iebsen and plaintiff went to an attorney's office where Iebsen stated that their business was the drawing up of a mortgage. It was drawn, signed and acknowledged by plaintiff, and taken away by Iebsen. Concerning what was said inside defendants' car on the three occasions described there is of course great conflict. Plaintiff claims that threats continued as those related by Turner and in addition that defendants said they would have plaintiff arrested and sent to the penitentiary unless *Page 1120
their demands were met, in which latter event they would keep secret the entire affair. Defendants deny much of this. But it is uncontroverted that defendants were accusing plaintiff of being the father of the unborn child of defendant Lillian Iebsen. She gave birth to the child eight days later, on March 27th. It is also undisputed that plaintiff did not accede to defendants' demands until after defendants had returned the third time and were conveying plaintiff toward the west.
Much of the defendants' evidence seems to have been offered to establish that plaintiff was the father of the unborn child. Over objection defendant Lillian Iebsen testified that she had intercourse with plaintiff upon a single occasion in the latter part of June or early part of July, 1932, following expressions of sympathy and flattery on part of plaintiff. Likewise over objection she testified that she had not permitted her husband to have access to her person for a period of two or three years prior to July, 1932, although defendants maintained a household in common and apparently were living as husband and wife. She also testified that in September, 1932, she advised plaintiff that she was pregnant and that plaintiff paid little attention and said she should tell her husband about it. She also testified to promises made by plaintiff of financial assistance. There was also offered, over objection, the testimony of a physician that in his opinion defendant George could not have been the father of the child, the opinion being based on a test he had made of the blood of the child and of the two defendants. On the other hand, over objections of defendants, a witness, residing in defendants' vicinity, testified that in 1929 defendant George Iebsen had asked him whether he would like to have sexual relations with Iebsen's wife and, over objections, another witness from the neighborhood testified that he did have intercourse with defendant Lillian Iebsen. Counsel did not cross-examine the latter witness, and in argument relies on the proposition that the testimony is immaterial because the witness did not show that the alleged happening was at about the time of the conception of the child in question.
A contract obtained by so oppressing a person by threats regarding his personal safety or liberty as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be voided on the ground of duress. This is true whether the oppression, causing the *Page 1121
incompetence to contract, be produced by what was deemed duress formerly, and relievable at law as such, or be wrongful compulsion, remediable by an appeal to a court of equity. "The law no longer allows a person to enjoy, without disturbance, the fruits of his iniquity, because his victim was not a person of ordinary courage, and no longer gauges the acts that shall be held legally sufficient to produce duress by any arbitrary standard, but holds him who, by putting another in fear, shall have produced in him a state of mental incompetency to contract, and then takes advantage of such condition, no matter by what means such fear be caused, liable at the option of such other to make restitution to him of everything of value thereby taken from him." Bank v. Loos, 142 Iowa 1, 120 N.W. 317, 320; Kaus v. Gracey, 162 Iowa 671, 144 N.W. 625; Gray v. Shell Petroleum Corp., 212 Iowa 825, 237 N.W. 460. With respect to threats of arrest for commission of some offense, "It is not necessary in this state that the threat be of unlawful arrest; that is to say, it does not matter whether the person threatened be guilty or innocent. Smith v. Steely, 80 Iowa 738, 45 N.W. 912; Giddings v. Iowa Sav. Bank, 104 Iowa 676, 74 N.W. 21; Henry v. State Bank,131 Iowa 97, 100, 107 N.W. 1034, and cases cited; Joyce Co. v. Rohan, 134 Iowa 12, 14, 111 N.W. 319, 120 Am. St. Rep. 410." Kwentsky v. Sirovy, 142 Iowa 385, loc. cit. 399, 121 N.W. 27, 32. In view of the foregoing, the determining question is not whether plaintiff was guilty of the offense of which he was being accused by defendants. The salient questions are, first, were these wrongful threats made as claimed by plaintiff, and second, if the threats were made, did they induce plaintiff to do the things he did under influence of such fear as deprived him of the free exercise of his will and prevented the meeting of minds necessary to a valid contract?
As to whether the threats were made the evidence is in conflict, defendants denying utterance. But a reading of the record leads to but one reasonable conclusion, namely, that the threats were made. The defendant George Iebsen admits that he went to the Turner home to see whether he could draw ten thousand dollars out of plaintiff. He says that was his purpose. He testifies that the things said to plaintiff were the things he thought he had to say in order to bring him across. He heard the testimony of plaintiff's witness Turner which is above set out in this opinion. Later in the trial, when Iebsen as a witness *Page 1122
was being cross-examined, he testified that Turner in his testimony gave correctly the statements and just what was said between George Iebsen and plaintiff while they stood on the porch. The re-examination of Iebsen on this matter, as above set out, is not impressive to a searcher for the facts, because in the re-examination statements of importance in the cross-examination were touched on so uncertainly and casually, and because the question eliciting the answer was so leading and so suggestive to the witness. There is also the testimony of plaintiff. The record compels a finding of utterance of the threats.
We turn to the question whether the threats induced plaintiff to do the things he did under influence of such fear as to produce in him a state of mental incompetency to contract. In weighing the testimony there is to be taken into consideration the mentality, capacity, age, sex and other characteristics of the person threatened, the relation of the parties, and the material attendant circumstances shown in the record, Foote v. De Poy, 126 Iowa 366, 102 N.W. 112, 68 L.R.A. 302, 106 Am. St. Rep. 365. Reconstructing, with these aids, the actual occurrence, the inquiry is, what was the state of mind of plaintiff? What they observed as to plaintiff's seeming state of mind is described by several witnesses. It is their testimony that following the occurrence between plaintiff and defendants, plaintiff did not appear to be the same person. He became silent and "blue", was nervous and upset and was without appetite for food; that his mind was "away off"; that plaintiff was a changed man, whereas previously he was characteristically happy and cheerful and talkative. Turner and his wife testify this change dated from the Sunday occurrences above described. They and other witnesses testified the change in plaintiff was continuous thereafter. There is no direct contradiction concerning these things claimed to have been observed by these witnesses. There is the evidence of plaintiff himself that he was frightened and scared by the threats to an extent that he did not know what he was doing, and continued thereafter to be frightened, scared and nervous, and unable to sleep. Plaintiff testified that he had not fully recovered from the shock caused by the threats even at the time of the trial; that defendants had him so frightened he would have signed anything to settle and keep from going to the penitentiary; that he lost all control of himself on account of the frightened condition in which the threats placed him; that if *Page 1123
it hadn't been for the threats he would not have entered into the transaction. The manner of the making of the demands by defendants lends some weight to plaintiff's claim that it was fear from the threats that controlled his actions. The transaction at the time of the first appearance of Iebsen on this Sunday failed to move plaintiff. The second attempt failed. But evidently resolute to accomplish their purpose the defendants were returning again on this Sunday, when they met the Turner car. Then for the third time within a few hours plaintiff was subjected to defendants' apparent determination to have the money or execute the threats. Such was the pressure that brought about plaintiff's apparent consent. It is material that plaintiff's opportunities had not been those of a native born person who has acquired at least a public school education. His activities had been confined to the business of farming. In the testimony of defendant George Iebsen is indication that plaintiff was a man of good intentions, and kindly disposition, and helpful to Iebsen during a course of many years. The threats came from those for many years befriended. That fact would easily render defendants' attack by threats more shocking and confusing to plaintiff. There is also a showing shedding perhaps a little light on plaintiff's susceptibility, evidence that on at least one previous occasion he had yielded to salesmen offering stocks that turned out to have been of little or no value. The investment was $10,000. Whether defendant had knowledge thereof does not affirmatively appear. With reference to the threat that Lillian Iebsen would post up notes and then commit suicide with the result that the neighbors would come down and hang plaintiff, it may be said that this particular threat could well have impressed plaintiff as a thing more sinister than appears in its mere recital. For it was only two or three months previously that a sister of Lillian Iebsen had in fact taken her own life. Another element of the situation was the fact that, aside from any liabilities growing out of the claimed relations of plaintiff with Lillian Iebsen, there was admittedly no debt or money owing by plaintiff to defendants and also admittedly the defendants were without money to pay the $4,000 of borrowed money that they were owing plaintiff. The transaction itself has earmarks of the extraordinary. It does not have appeal as a thing in line with the manner in which men, not under undue influence, ordinarily alienate money in ten thousand dollar amounts. *Page 1124
Defendants point out that plaintiff sought neither aid nor advice when he with Iebsen was in an attorney's office, and that between the Sunday occurrences and the execution of the papers on the following day plaintiff had opportunity to consult with Turner, or with his son or with any other person. Defendants say these facts prove that plaintiff was not being wronged or coerced, because if such were the case he would have consulted with someone for his protection. The proposition is based on the usual human reaction to threats and dangers, that is the impulse to escape. Had the thing threatened been future physical violence from defendants, and nothing more, possibly it would have been natural for plaintiff to seek aid, for instance, by having defendants physically restrained, because such course might suggest itself as a means of escape from the threats. But in the instant case the things threatened were not such that hope of escape lay in restraining or antagonizing defendants. From the character of these things feared, escape would naturally appear to depend wholly on quiescence on part of defendants. Had the threats aroused a fighting spirit rather than fear then plaintiff might have sought aid in making a determined resistance. And of course there is the possibility that plaintiff was impelled by his own volition to turn $10,000 over to defendants. But we are convinced from the record that it was fear that dominated. With plaintiff in such frame of mind it would naturally appear to him that seeking aid by publishing these threats to others would not only not afford escape from the things he feared but on the contrary would precipitate them. It appears in accord with common observation of human conduct to conclude that to plaintiff's mind there appeared no escape through seeking aid or advice of others. This seems to be the explanation of his silence. Indeed the considerable period of time that elapsed between the Sunday transaction and the revealing by plaintiff of these matters to those on whom he would naturally rely, and the record before us, compels the finding not only that fear inspired by the threats precluded plaintiff from exercising his own free will, but that plaintiff was effectually controlled by such fears for long thereafter. Five months or thereabouts elapsed before plaintiff revealed these transactions to his sons. They advised him to take some action. But from the record we are lead to believe that plaintiff was still in such a state of fear that it was not for perhaps a year after the Sunday in question that he *Page 1125
first sought legal advice. Defendants seek to counter these facts by showing that within about a week after the Sunday transaction there were conversations between plaintiff and a sister of defendant George Iebsen and her husband. The manner of happening of these conversations is material. Defendant's sister and brother-in-law had approached plaintiff to have the conversations and were seeking to question him. They were admittedly hostile to plaintiff and were then involved in a controversy over a five thousand dollar note on which they were being sued by plaintiff. It also appears that on the Sunday in question defendant Iebsen on his first trip toward the Turner home had stopped at his sister's home and had discussed with this brother-in-law the project on which Iebsen was then embarking. The testimony of defendant's sister and brother-in-law does not exhibit desire or willingness on plaintiff's part to seek aid or advice or to reveal to anyone the threats that had been made, nor do we find therein any substantial inference that plaintiff had not been coerced.
Defendants urge that plaintiff cannot prevail because his payment to defendants of $25 in April and $50 in June, 1933, amounted to a ratification. Defendants also claim plaintiff is guilty of laches because the instant case was not begun until May 26, 1934. But the so-called ratification and the delay in bringing the suit appear to us to have been brought about by the thoroughness of the fear that defendants had inspired in plaintiff's mind, and its consequent long continuance. That the state of fear may continue long after the threats that cause it and is even presumed to have lasted for some appreciable length of time is recognized in our decisions. Kwentsky v. Sirovy,142 Iowa 385, 121 N.W. 27; Henry v. State Bank, 131 Iowa 97, 107 N.W. 1034; Smith v. Bank, 182 Iowa 1190, 164 N.W. 762.
Defendants' plea of the statute of limitations cannot be sustained. Additional grounds of plaintiff's petition need not be discussed. The record establishes duress. Plaintiff should have been accorded the relief sought in his petition. The case is reversed, decree to be entered in the district court in accordance with this opinion. — Reversed.
HAMILTON, DONEGAN, ANDERSON, PARSONS, KINTZINGER, and STIGER, JJ., concur. *Page 1126 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4050714/ | Affirmed and Memorandum Opinion filed August 27, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00314-CR
NO. 14-15-00315-CR
NO. 14-15-00316-CR
RONNIE THIBODEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Court Cause Nos. 12-13923, 12-14944, 15-21315
MEMORANDUM OPINION
Appellant appeals three convictions for driving while intoxicated.
Appellant’s appointed counsel filed a brief in each appeal which he concludes the
appeal is wholly frivolous and without merit. Each brief meets the requirements of
Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation
of the record and demonstrating why there are no arguable grounds to be advanced.
See High v. State, 573 S.W.2d 807, 811–13 (Tex. Crim. App. 1978).
Copies of counsel’s briefs and the appellate records were delivered to
appellant. Appellant was advised of the right to file a pro se response. See Stafford
v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). As of this date, more than
60 days have passed and no pro se response has been filed.
We have reviewed the records and counsel’s briefs carefully and agree each
appeal is wholly frivolous and without merit. Further, we find no reversible error in
any of the records. We are not to address the merits of each claim raised in an
Anders brief or a pro se response when we have determined there are no arguable
grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.
App. 2005).
Accordingly, the judgments of the trial court are affirmed.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Brown
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436032/ | It is the State's claim that defendant committed manslaughter in causing the death of one Strom by operating an automobile while intoxicated. About 1:30 a.m. on September 26, 1941, defendant was driving an automobile west on Fourth Street in Sioux City. The car struck Strom, a man about sixty years old, a pedestrian in the street, fracturing both legs and rupturing one lung. He died as a result of his injuries eleven hours later. The accident occurred apparently in the business district where there were street lights, near the north side of Fourth Street, slightly west of the intersection of the north-and-south alley between Court and Iowa Streets.
The witness Zink was seated in a car facing north in the alley at the south side of Fourth Street, about to turn into the street. He testified, "a car hit a man and he sprawled all over the street there." The witness did not see what happened before the collision. Defendant's car did not stop. Zink and his companion followed the car driven by defendant, soon overtook it, and told defendant he had better go back to Fourth, that "you hit a man and probably killed him." Fifteen or twenty minutes later defendant returned to the scene of the accident with someone pushing his car which he claimed was out of gas. Defendant and another man riding with him were then arrested.
There is substantial evidence that defendant and his companion were badly intoxicated. The doctor who treated Strom's injuries went up later that morning and tried to talk to defendant and his companion, but "they were still drunk, they didn't know what it was all about yet." They said they did not know anything about what happened. Their minds were blank concerning the accident. Another witness testified that a few days later defendant admitted he had been drinking at various taverns *Page 1276
on the night of the accident, as the evening wore on he became intoxicated and had no recollection of what happened from then until he was told of the accident in the police station. Decedent was also intoxicated at the time he was struck.
At the close of the State's evidence, defendant moved for a directed verdict, apparently relying principally upon the failure of the evidence to show that defendant drove his car in a wanton or reckless manner. The trial court sustained the motion, assigning as its reason that the evidence did not show the car was driven recklessly and with wanton abandon, that "when you come to criminal negligence, something besides intoxication, something that is wanton, is required." From the judgment entered upon the directed verdict the State has appealed.
[1] I. Upon appeals by the State in criminal cases where the trial court has held the evidence insufficient to warrant submission to a jury, this court will not ordinarily review the testimony to determine whether the court erred. Where, however, the appeal presents questions of law, the determination of which will be beneficial or a guide to trial courts in the future, we will entertain the appeal. We think it proper here to review the trial court's ruling. State v. Traas, 230 Iowa 826, 828,298 N.W. 862, 864, and cases cited; State v. Schreck, 231 Iowa 542, 544,1 N.W.2d 690, 691. Of course, the judgment below is a finality with respect to the discharge of defendant. Section 14012, Code, 1939; State v. Traas, supra, and cases cited.
[2] II. This court is committed to the rule that death resulting from the violation by another of a mere speed statute or other so-called rule of the road is not manslaughter unless there also appears a wanton and reckless disregard and indifference for the safety of others who might reasonably be expected to be injured thereby. State v. Graff, 228 Iowa 159,172, 290 N.W. 97, and cases cited. We think the court erred, however, in holding that death of another caused by drunken driving, in violation of section 5022.02, Code, 1939, is not manslaughter unless wanton and reckless indifference to the safety of others also appears. To cause the death of another by the drunken driving of an automobile in violation of a criminal statute is itself manslaughter. (In this opinion we use the term "drunken driving" as the equivalent of "operating a motor vehicle while intoxicated.") *Page 1277
This question has never before been passed upon by us. In the Graff case, supra, the evidence of intoxication was insufficient. This is also true of State v. Weltha, 228 Iowa 519, 292 N.W. 148, and State v. Handy, 231 Iowa 1037, 2 N.W.2d 763. Those cases involve what is sometimes called criminal negligence rather than unintentional killing while engaged in a criminal act such as drunken driving. There is a clear distinction between the two kinds of cases. People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; State v. Kline, 168 Minn. 263, 209 N.W. 881, 883; State v. Boag, 154 Or. 354, 59 P.2d 396; People v. Freeman,16 Cal. App. 2d 101, 60 P.2d 333. Involuntary manslaughter may be committed where death results from drunken driving or from wanton and reckless operation of an automobile. (Many courts use the term "gross and culpable negligence.") People v. Layman,299 Mich. 141, 299 N.W. 840; Crawford v. State, 116 Neb. 125,216 N.W. 294, 296; State v. Dills, 204 N.C. 33, 167 S.E. 459; McGoldrick v. State, 159 Tenn. 667, 21 S.W.2d 390; People v. Lloyd, 97 Cal. App. 664, 275 P. 1010.
As we have frequently pointed out, our statute, now section 12919, Code, 1939, does not change the common-law definition of manslaughter, which might be committed in many ways. The unintentional killing of a human being by another in the doing of an unlawful act not amounting to a felony or in the doing of a lawful act in an unlawful manner was involuntary manslaughter at common law. 26 Am. Jur. 166, section 18; 29 C.J. 1148, section 134 [40 C.J.S. 918, section 55]; 8 Blashfield Cyclopedia of Automobile Law and Practice, Permanent Ed., 93, 94, section 5379; State v. Walker, 133 Iowa 489, 496, 110 N.W. 925. Substantially the same definition now prevails in most of the states. 26 Am.Jur. 166, section 18. This court has not regarded a mere violation of a so-called rule of the road as an unlawful or criminal act, within the law of manslaughter. As having some bearing, see State v. Brighi, 232 Iowa 1087, 7 N.W.2d 9. As stated, we have required a showing of wanton and reckless indifference to the safety of others, in addition to such a violation, in manslaughter cases.
While there may be some uncertainty as to just what is an *Page 1278
unlawful act within the definition of manslaughter, we know of no case holding that death resulting from the commission by another of some act which is a misdemeanor and not a mere civil wrong and malum in se and not merely malum prohibitum is not manslaughter. See 29 C.J. 1149, 1150, section 136 [40 C.J.S. 923, section 60]; State v. Warner, 157 Iowa 111, 121, 122, 137 N.W. 466. Drunken driving of an automobile on a public highway in violation of a criminal statute is not merely malum prohibitum, it is malum in se, wrong in itself, and is clearly an unlawful act within the definition of manslaughter. State v. Budge, 126 Me. 233,137 A. 244, 53 A.L.R. 241; People v. Townsend, supra, 214 Mich. 267,183 N.W. 177, 16 A.L.R. 902; Keller v. State, 155 Tenn. 633,299 S.W. 803, 59 A.L.R. 685; State v. Long, 186 S.C. 439, 195 S.E. 624; State v. Boag, supra, 154 Or. 354, 59 P.2d 396.
Courts which have passed on the question have uniformly held that to cause death by drunken driving in violation of a criminal statute is manslaughter. Among authorities to that effect, in addition to those heretofore cited, are Rombokas v. State,27 Ala. App. 227, 170 So. 780, id. 782; People v. Kelly, 70 Cal. App. 519,234 P. 110; Clark v. State, 35 Ga. App. 241,132 S.E. 650; Benton v. State, 124 Neb. 485, 247, N.W. 21, 25; State v. Blaime, 5 N.J. Misc. 633, 137 A. 829, affirmed 104 N.J. Law 325,140 A. 566; State v. Stansell, 203 N.C. 69, 164 S.E. 580; 8 Blashfield Cyclopedia of Automobile Law and Practice, Permanent Ed., 102, section 5385, and cases cited. See, also, extended annotation 99 A.L.R. 756.
Several of the cases heretofore cited hold that evidence of reckless or wanton driving is not necessary to prove manslaughter where death results from drunken driving. See, for example, Rombokas v. State, supra, 27 Ala. App. 227, 170 So. 780, id. 782; People v. Freeman, supra, 16 Cal. App. 2d 101, 60 P.2d 333; People v. Lloyd, supra, 97 Cal. App. 664, 275 P. 1010; State v. Boag, supra, 154 Or. 354, 59 P.2d 396; State v. Dills, supra,204 N.C. 33, 167 S.E. 459. Several cases declare that for a drunken man to attempt to operate a car on a public highway, in violation of a statute intended to protect others, is itself the equivalent of gross and culpable or criminal negligence. People v. Townsend, supra, 214 Mich. 267, 183 N.W. 177, *Page 1279
16 A.L.R. 902; State v. Long, supra, 186 S.C. 439, 195 S.E. 624; 5 Berry on Automobiles, 7th Ed. 549, section 5.370, and cases cited.
[3] III. It may be that decedent contributed to his death by his own drunkenness or other conduct. However, contributory negligence of deceased is no defense to the crime charged. State v. Graff, supra, 228 Iowa 159, 175, 290 N.W. 97, and cases cited; 5 Am. Jur. 930, section 796; annotation 99 A.L.R. 756, 833; 8 Blashfield Cyclopedia of Automobile Law and Practice, Permanent Ed., 99, section 5382.
[4] IV. Defendant does not seek to sustain the trial court's ruling by the contention that drunken driving was not the proximate cause of Strom's death. This does not appear to have been urged in support of the motion to direct, nor was the ruling placed on that ground. We may say, however, that the jury could have found that death was caused by drunken driving.
Defendant's car struck decedent, breaking both legs, rupturing one lung, and sending him "sprawling" in the street. It was 1:30 a.m., in the business district of Sioux City, with street lights burning. No diverting circumstance or intervening cause appears from the evidence. No issue that death was due to an unavoidable accident was raised by the evidence. Defendant did not stop or attempt to render assistance. This was a circumstance indicative of guilt. State v. Biewen, 169 Iowa 256, 260, 151 N.W. 102, 104. Defendant's only explanation to the officers is that he was so intoxicated he did not remember anything that happened. We are not justified in holding as a matter of law that there was no direct causal connection between defendant's drunken driving and Strom's death. As having some bearing, see State v. Biewen, supra, and State v. Kline, supra, 168 Minn. 263, 209 N.W. 881.
[5] V. While defendant's principal argument in support of the court's ruling is that the evidence does not show reckless and wanton conduct, defendant also contends that the testimony does not identify him as the driver of the car that struck Strom. It is true that neither Zink nor any other witness positively identified defendant. We think, however, the identity of defendant was a question for the jury.
The witness Zink saw the accident. He and his companion *Page 1280
immediately took down the number of the car that struck Strom and turned the number over to the police at the scene of the accident. Zink and his companion then pursued and overtook the car and told the occupants to return to the scene because of what had happened. The driver was tall; his companion short. In a few minutes, men of that description returned to the scene of the accident in the car bearing the number of the car involved in the accident. Both men were drunk. Defendant was then identified as the driver of the car and placed under arrest.
The judgment is reversed but the cause is not remanded. — Reversed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436033/ | This is an action in equity to construe the will of Christian V. Rock, who died October 26, 1936, a resident of Pottawattamie County, Iowa. He was survived by his widow, Caroline Rock, and four children — three daughters and one son, Alfred Rock. The will was executed June 16, 1936. It was probated and his widow, Caroline Rock, qualified as executrix and elected to take under its terms. She died June 1, 1947. The son, Alfred, a widower, died intestate on November 2, 1946, leaving one child, Elese Caroline Rock, a minor. She and her guardian are defendants herein.
The suit was brought by Rosie Dittmer and Bertha Sick, daughters of Christian V. Rock and Caroline Rock. The other *Page 586
daughter is not plaintiff in this litigation but is named as a defendant.
I. The will (in paragraph 1) devised and bequeathed to testator's wife for life all his property, same to be in lieu of her "statutory rights." In paragraph 2 testator devised a remainder (subject to the life estate) in certain land to his son, Alfred, "but upon the express condition that he shall within six months thereafter pay the sum of three thousand dollars in cash to each of my three daughters." There was a residuary clause running "in equal shares to my four children; and in the event any child shall predecease me, such share and devise shall go to its issue per stirpes."
Plaintiffs claim that by reason of the death of Alfred Rock before the life tenant, Caroline, and by reason of his failure to make the $3000 payments as provided in paragraph 2 of the will, the one-hundred-sixty-acre farm described in paragraph 2 of the will became a part of the residuary estate under paragraph 3 of the will and was to be disposed of as provided in said residuary clause.
Alfred's daughter, Elese Rock, and her guardian, Richard M. Coe, claim that under paragraph 2 of the will Alfred Rock took a vested remainder subject to the life estate of his mother and that by paying or offering to pay to the three daughters of Christian and Caroline the sum of $3000 apiece, the farm devised became the property of the minor as the sole heir of Alfred.
The trial court held that under the will Alfred acquired a vested remainder and that the guardian may pay or offer to pay to each of the three daughters, Bertha Sick, Rosie Dittmer and Ida Holtz, the sum of $3000, and in the event said parties refused to receive the said payments, then to pay the same to the clerk of court and take his receipt therefor and that upon the filing of such receipt, the land devised be released from the lien and charge placed thereon by the terms of the will of Christian V. Rock.
The record shows that before six months had elapsed after the death of the life tenant, Caroline Rock, Richard M. Coe, as administrator of the Alfred Rock estate and guardian of Elese Caroline Rock, had offered said $3000 payments and that all of *Page 587
them had been refused. In answer, payment is likewise tendered to each of testator's daughters.
II. The decisive question in the case is as to the nature of the interest of Alfred Rock in the farm devised. How is this issue to be determined?
[1] It is hardly necessary to cite authority on the proposition that the intent of the testator is to be gathered from the will. Where the intent appears therein and no ambiguity exists extrinsic evidence of the testator's intent is not admissible. Boehm v. Rohlfs, 224 Iowa 226, 276 N.W. 105. A recent pronouncement of this court is set forth in the case of In re Estate of Schmitz, 231 Iowa 1178, 3 N.W.2d 512. See cases cited therein. Anderson v. Anderson, 227 Iowa 25, 286 N.W. 446; Culver v. Hess, 234 Iowa 877, 14 N.W.2d 692; Shoberg v. Rock, 230 Iowa 807,298 N.W. 838. In the case of Anderson v. Anderson, supra, Justice Hale stated clearly and distinctly the rules which have been laid down and followed by this court in the construction of wills. Therein, it is held the principal concern should be to ascertain and determine the intention of the testator and that all rules of construction pertaining to the vesting of estates or interests will yield to the intention of the testator.
We find no ambiguity in the language of the will itself and no extraneous evidence suggesting any latent ambiguity. It gives a life estate to the widow (which she accepted and enjoyed until her death) in lieu of her statutory rights. The devise to Alfred is clear. There is no suggestion that its vesting was dependent upon payment of the amounts to his sisters or upon his outliving his mother. Whether nonpayment would have resulted in a lien enforceable by foreclosure or in a devesting of the title we need not determine, since tender of payment was timely made and is renewed here.
The time for the owner of the remainder to enter into possession was specifically stated — "upon the death of my wife," or at testator's death "in the event she does not survive me." The time for payment of the $9000 to the sisters — "within six months thereafter" — was clearly six months after the right of possession accrued. There was no ambiguity in that. In short, *Page 588
we hold that no extraneous evidence was necessary or admissible in the construction of the will.
[2] It is an established rule of law in this state that a provision that the remainder shall pass to the remainderman "on the death of" or "at the death of" the life tenant refers to the time of the enjoyment and possession of the property by the remainderman and does not prevent the vesting of the remainder in fee on the death of the grantor, unless there is language requiring a different construction. The use of such words is not sufficient to indicate an intention to postpone the vesting of the estate. Blair v. Kenaston, 223 Iowa 620, 273 N.W. 184, citing Schrader v. Schrader, 158 Iowa 85, 139 N.W. 160; In re Estate of Phearman, 211 Iowa 1137, 232 N.W. 826, 82 A.L.R. 674.
[3] III. Was the devise in paragraph 2 of the will of testator to his son, Alfred Rock, a vested or contingent remainder? We have held a vested remainder is one which passes by the conveyance but the possession and enjoyment of which are postponed until the particular estate described therein terminates, which is invariably fixed in a certain determinate person or persons. Fulton v. Fulton, 179 Iowa 948, 162 N.W. 253, L.R.A. 1918E 1080; Jonas v. Weires, 134 Iowa 47, 111 N.W. 453; Collins v. Collins, 116 Iowa 703, 88 N.W. 1097; In re Estate of Phearman, supra; Glenn v. Gross, 229 Iowa 146, 294 N.W. 297. We need not discuss the difference between the common law and the New York statutory definitions discussed in some of the cited cases. That distinction is not important here.
In the present instance the particular estate was the life estate to Caroline Rock; the remainder so far as enjoyment and possession was concerned was postponed until the expiration of the particular estate at her death.
Alfred Rock was alive when the life estate came into being. There was no uncertainty as to the holder of the particular estate. Her successor to the fee was living, definite and certain. The devise to Alfred is not hedged or limited in any manner. It gave him a vested remainder estate, deferred as to enjoyment and possession until the death of his mother, the life tenant.
[4] As to the effect of the requirement that the remainderman pay certain amounts to other beneficiaries, we believe our *Page 589
holding in Schrader v. Schrader, supra (158 Iowa 85, 86, 139 N.W. 160, 161) is controlling. That case deals with the question of vested remainders. The paragraph of the will discussed in Division II therein bears a striking similarity to the provision involved here. We think the language here even less open to doubt. The opinion of the majority therein was written by Justice Weaver. There was a dissenting opinion by Justice Ladd, in which Justice Deemer joined. Both majority and minority opinions elaborately discuss the question as to whether a certain devise conveyed certain real estate wherein the devisee (remainderman) was to pay a brother $500. The testator, after giving his wife a life estate, then provided that certain real estate should go to a son, George, using the following language: "`It is the express condition that before George Schrader shall become the sole absolute and unqualified owner of said real premises that he shall pay to my well beloved son, Henry Schrader, the sum of $500.'"
George predeceased the life tenant, his mother, and never paid to Henry the $500. This court held that notwithstanding such failure he had a vested estate in the land devised and that the $500 was a charge or lien thereon and that such estate went to his widow and heirs charged with the payment to be made to Henry. In so holding this court cited Schouler on Wills, section 598, 2 Jarman on Wills, Sixth Ed., 2000, and authorities from other states: Cunningham v. Parker, 146 N.Y. 29, 40 N.E. 635, 48 Am. St. Rep. 765; Hoss v. Hoss, 140 Ind. 551, 39 N.E. 255; Winn v. Tabernacle Infirmary, 135 Ga. 380, 69 S.E. 557, 32 L.R.A., N.S., 512; Taft v. Morse, 45 Mass. (4 Metc.) 523; Woods v. Woods,44 N.C. 290; Casey v. Casey, 55 Vt. 518; Duncan v. Prentice, 61 Ky. (4 Metc.) 216; Leighton v. Leighton, 58 Me. 63; Finlay v. King's Lessee, 3 Pet. (U.S.) 346, 7 L. Ed. 701; Hart v. Homiller's Exr., 23 Pa. 39; Pearcy v. Greenwell, 80 Ky. 616; Maddox v. Maddox's Admr., 52 Va. (11 Grat.) 804.
After citing the foregoing cases the majority opinion states (158 Iowa, at page 92, 139 N.W., page 163):
"After a somewhat extended search of the authorities, we have failed to find a decision holding that a devise made upon *Page 590
condition that the devisee pay a stated sum of money to another person, and providing no limitation over upon failure to make such payment, has been held a condition precedent. On the contrary, the cases hold with great unanimity that such a provision is in the nature of a legacy to the third person so designated, and is to be treated as a charge upon the land so devised. This is the holding in many of the cases already cited."
There is here no such limitation over.
Schrader v. Schrader, supra, is cited in the annotation in 163 A.L.R., page 1154. In the annotation there is an extended discussion of cases wherein there had been a devise with a condition which it was claimed prevented a vesting of the estate. In that connection the annotator states: "The rule is quite general that such a condition is ineffective to prevent the vesting of an estate, where the instrument creating the condition or obligation provides no limitation over in the event of its nonperformance."
We do not find any case which overrules or criticizes the holding of the court in Schrader v. Schrader. Appellant herein frankly concedes that the claim which he makes is bottomed upon the holding in the dissenting opinion. However, in the dissent, at page 94 of 158 Iowa, the writer thereof asserts that the inclusion of the expression "`that before (not after) George Schrader shall become the sole, absolute and unqualified owner * * * he shall pay to * * * Henry Schrader the sum of $500,'" made the devise depend upon a condition precedent and said payment not having been complied with rendered the estate contingent and not vested. The majority opinion disregarded such claim. We think that the rule as set forth in the majority opinion has become the law of this state.
In the instant case the language is clear and unmistakable. Alfred was given six months after the death of his mother (life tenant) in which to pay the $9000. Certainly there appears nothing from which it could be inferred that the testator, Christian Rock, intended vesting to depend upon such payment.
As following the holding of the Schrader case see: In re Estate of Nugen, 223 Iowa 428, 272 N.W. 638; Blair v. Kenaston, supra; Carlson v. Hamilton, 221 Iowa 529, 265 N.W. 906; *Page 591
Diagonal State Bank v. Nichols, 219 Iowa 342, 258 N.W. 700; Dickerson v. Morse, 200 Iowa 115, 202 N.W. 601. See also In re Estate of Phearman, supra. In the last-cited case (211 Iowa, at page 1140) the holding of the court in Schrader v. Schrader, supra is cited as setting forth a proper rule of law as to a devise wherein a charge is fixed thereon.
[5] IV. There can be no question that the devise to Alfred was a heritable right and at his death passed to his heirs, which in this case was a minor daughter.
Appellants argue in effect that defendants could not pay or tender the $3000 payments because the will did not so provide in the event Alfred predeceased the life tenant. The ready answer is that since the devise conveyed a vested remainder there was no occasion for provision against such a contingency. The duty to pay passed with the title to Alfred's heir.
There is some suggestion that the devise is in the nature of an option, and language is quoted from the opinion in Mohn v. Mohn,148 Iowa 288, 301, 126 N.W. 1127, 1132, to the effect that "a pure option * * * does not pass to the optionee's representatives or successors." The cited case however clearly indicates that the language does not apply to the "option" of a devisee to renounce a devise, saying that in a sense "all devises may be said to be optional."
More pertinent is the discussion in Mason v. Mason, 194 Iowa 504, 508, 188 N.W. 685, 687, where there was a devise to a son in which he had the choice of taking $2000 in cash or title to real estate. There this court, by Justice Weaver, said:
"If such a testamentary provision be valid — a proposition upon which there can be no doubt — the right so created, as we have already said, is more than a mere personal privilege. It is a valuable property right, capable of being transmuted by its beneficiary into terms of money or title to land * * *. It is a heritable interest which, upon the death of the owner, passes in the line of succession prescribed for it by the law of the jurisdiction."
Much of the discussion herein, oral and written, dealt with the nature of remainders — vested and contingent. A reading of the Iowa cases on that subject reveals that in determining such *Page 592
matters the questions presented were troublesome and sometimes difficult of solution. Inasmuch as we have determined that the remainder devised by Christian Rock to his son, Alfred, was vested and that it descended to Alfred's heirs subject to the charge or lien provided in such will, we think it unnecessary to extend the discussion further into that field.
We think the trial court was right in its holding and as a result the case must be and is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436034/ | Plaintiff is engaged in the business of guarding and protecting, for compensation, certain houses and properties located in Sioux City, Iowa, from burglary, trespass, and molestation in the nighttime. The business having increased to the extent that it was unable to adequately police its territory, the plaintiff, on January 15, 1935, employed defendant to patrol and protect a certain area in the city which was to be under his exclusive care except as occasion demanded that he be given assistance. Defendant was to receive $50 per month and one-half of the proceeds of new business which might be secured either by the plaintiff or the defendant. The contract of employment *Page 749
provided that either party could cancel the contract on 30 days notice. The contract contained the following provision:
"It is hereby further understood and agreed that in the event the services of party of second part are terminated, with party of first part, in any manner whatsoever, that party of the second part shall not engage in the business of Night Patroling or guarding of the exterior of business properties in Sioux City, Iowa, for a period of two years after the termination of this contract, it being further understood, however, that such prohibition shall not extend to, nor include, work of a night watchman, wherein all, or the chief part of the work is inside."
The contract was cancelled by plaintiff. Plaintiff brought this action alleging "that in defiance of said agreement, the said A.L. Mathwig has during the past few days solicited a number of business houses in Sioux City, Iowa, asking said business houses to hire him as a night guard for their properties and that the said A.L. Mathwig has among others solicited customers of the said Sioux City Night Patrol and business places which the said Sioux City Night Patrol has been regularly employed to protect. That the said A.L. Mathwig is asserting and threatening to engage in the business of guarding property in the nighttime of Sioux City business, companies and individuals in direct competition with the said Sioux City Night Patrol, and contrary to his agreement in the contract of employment as above stated."
Plaintiff prayed that a temporary writ of injunction issue enjoining defendant from breaching the terms of his contract and that upon final hearing the temporary injunction be made permanent. On May 21, 1936, a temporary injunction was issued by Judge Rice. On July 2, 1936, the defendant filed his answer denying the allegations of the petition and especially averring that the contract was against public policy and that plaintiff had violated the terms of the contract by refusing to pay him for his services. Further answering, the defendant denied that he had solicited any of the places with whom the plaintiff had a contract with the exception of one or two places that the defendant had watched and for which he did not receive any compensation and stated that the temporary injunction was void for the reason that the same was obtained by the plaintiff *Page 750
without any notice on the defendant. After the answer was filed, defendant on the same day, July 2, 1936, filed the following motion to dissolve the temporary injunction:
"Comes now the defendant and moves the Court to dissolve the Temporary Injunction heretofore granted in the above entitled cause:
"First. For the reason that said injunction was prematurely granted, without any notice to the defendant and without any opportunity of him being heard.
"Second. For the reason that the petition of the plaintiff shows upon its face that the plaintiff is not entitled to a writ of injunction or any equitable relief.
"Third. For the reason that the petition of the plaintiff is defective in that it fails to show that the plaintiff has no speedy and adequate remedy at law.
"Fourth. For the reason that the defendant has filed his answer to plaintiff's petition on the same date that this motion is filed and the defendant asked that said injunction be set aside for all the reasons set out in defendant's answer filed herewith and the defendant makes said answer a part of this motion by reference thereto as fully as though the same were herein set out.
"Fifth. For the reason that said injunction was granted for a violation of a purported contract attached to plaintiff's petition and marked Exhibit A, said contract showing upon its face that it is against public policy and therefore void:
"Wherefore the defendant prays that the Court fix a time and place for hearing on this motion and the length of service of notice to be given the plaintiff and upon final hearing the injunction heretofore granted be dissolved and held for naught."
The motion to dissolve was sustained generally by Judge Newby. The cause was then assigned for trial on the merits.
Prior to the trial, defendant filed a motion to dismiss plaintiff's petition on the ground that the ruling sustaining the motion of the defendant to dissolve the temporary injunction was in full force and effect, that no appeal was taken from said ruling, and, plaintiff having asked for injunctive relief only, the cause was fully adjudicated by said ruling and plaintiff's petition should be dismissed.
[1] The motion to dismiss plaintiff's petition came on for hearing before Judge Wakefield who was called on to pass upon *Page 751
the nature of the motion to dissolve and the legal effect of the order dissolving the temporary injunction made by his associate, Judge Newby. Judge Wakefield sustained the motion to dismiss plaintiff's petition. The order sustaining the motion contains the following statement:
"Thereupon it appearing to the Court, that heretofore a motion to dissolve Temporary Injunction was sustained generally by the Court, the Hon. Miles W. Newby, Judge, presiding, and that said motion to dissolve said Temporary Injunction raised issues of law only, and under the holding of the Supreme Court of Iowa in B.C.R. N.W. Ry. Co. v. Dey, 82 Iowa 312, 48 N.W. 98, 12 L.R.A. 436, 31 Am. St. Rep. 477; Id., 89 Iowa 13, 56 N.W. 267, amounted to a demurrer to the petition, and said Motion having been sustained, as aforesaid, that there is nothing left for this court to determine, no amendment having been filed herein."
Plaintiff appealed from the order sustaining the motion to dismiss and dismissing the petition.
In the case of B.C.R. N.W. Ry. Co. v. Dey, 82 Iowa 312,48 N.W. 98, 12 L.R.A. 436, 31 Am. St. Rep. 477, relied on by appellee and the trial court, the plaintiff sought an injunction against the railway commissioners restraining them from establishing joint rates for transportation of freight and cars over the plaintiff's railway and connecting lines on the ground that the act authorizing the promulgating of joint rates was unconstitutional. A temporary injunction was allowed. The defendants filed a motion to dissolve the temporary injunction. The motion denied the statute assailed was unconstitutional and alleged the district court was without jurisdiction to entertain the action. No answer was filed by the defendants and the motion to dissolve presented to the court only questions of law which arose on the face of the petition for determination. No issue of fact was raised by the motion. The court held that in view of the facts the motion operated as a demurrer to the petition. The holding in the Dey case is not controlling here because the motion to dissolve the temporary injunction in the instant case can not be construed as a demurrer to the petition. As above stated, the defendant first filed an answer which denied the allegations of the petition and alleged certain special defenses to plaintiff's cause of action. Defendant did not attack *Page 752
the petition by demurrer or motion to dismiss. The defendant then filed a motion to dissolve the temporary injunction which made the answer a part of the motion. It did not ask that the petition be dismissed but only asked that the temporary injunction be dissolved. It is plain that the motion to dissolve, answer having been filed, was not intended to and did not operate as a demurrer or motion to dismiss. In effect, it stated that the plaintiff was not entitled to a continuance of the temporary injunction because the defendant had filed his answer denying the material allegations of the petition.
The general rule is that where the material allegations of the petition for an injunction are fully denied in the answer, the preliminary injunction will be dissolved. Swan v. City of Indianola, 142 Iowa 731, 121 N.W. 547. The answer filed prior to the motion to dissolve the injunction tendered issues of fact, and contained substantially all the allegations found in the subsequent motion to dissolve. The motion was sustained generally and we think it apparent the trial court did not treat the motion as a demurrer to the petition or attempt in summary fashion to dispose of the issues raised by the answer, but followed the general rule and dissolved the injunction because an answer had been filed under which answer and petition the issues could be determined on the merits, and by sustaining the motion, determined only that the plaintiff was not entitled to a preliminary injunction.
[2] Furthermore, the trial court having the above sound, adequate reason for dissolving the injunction, we can not assume that he sustained the motion to dissolve on the very questionable ground that the petition showed on its face that the plaintiff was not entitled to a writ of injunction or any equitable relief. The petition alleges that the defendant had asserted and threatened to breach his express negative covenant and also had solicited customers of the plaintiff for their business. The contract provided that the defendant would be paid one-half of the proceeds from new business acquired by the plaintiff whether such business would be acquired by the defendant or by the plaintiff. The defendant admitted that he had solicited some of the customers of the plaintiff. The list of customers was valuable property of the plaintiff and constituted the main assets of its business. The plaintiff sought to protect this valuable asset and good will by requiring an express covenant from the defendant *Page 753
that he would not engage in the business of night patroling for a period of two years after the termination of the contract. The nature of defendant's employment gave him an opportunity to obtain valuable, confidential information about his employer's business and the property of its customers which the parties contemplated, through the express covenant, would be used for the benefit of the employer during the employment and not for the benefit of the defendant for a period of two years from the termination of the contract. The allegations of the petition, if proven, made a case for injunction.
We conclude that the motion to dissolve the injunction did not operate as a demurrer to the petition, that the order dissolving the temporary injunction did not adjudicate that the plaintiff's petition did not state a cause of action against the defendant or that the contract was against public policy and void and that the motion to dismiss the plaintiff's petition should have been overruled and the case tried on its merits. As tending to sustain the conclusion reached, see Walters v. Fredericks, 11 Iowa 181; Russell v. Wilson Co., 37 Iowa 377; Fisher v. Beard, 40 Iowa 625; Swan v. City of Indianola, 142 Iowa 731, 121 N.W. 547. — Reversed and remanded for trial.
KINTZINGER, HAMILTON, DONEGAN, MITCHELL, RICHARDS, SAGER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436035/ | This action is for the foreclosure of a mortgage. The note and mortgage securing the same were executed by John W. Wagner and his wife, Emma Wagner, and Frank A. Wagner and his wife, Cora Wagner. The note bears date February 14, 1920, and according to its terms, became due March 1, 1925. The mortgage contains an acceleration clause, providing therein that the entire indebtedness shall become payable for default in payment of interest at the times when due. After the execution of the note and mortgage, the Wagners sold the mortgaged real estate to the defendant U.G. Turner, conveying the same by warranty deed. In like manner, the defendant Turner and his wife subsequently sold and conveyed the mortgaged real estate to the defendants John Spencer and G.B. Spencer. On December 16, 1921, John Spencer, named as one of the grantees in the deed from Turner, sold and conveyed by warranty deed his undivided one-half interest in the mortgaged real estate unto the defendant G.B. Spencer. The spouse of John Spencer joined him in the execution of said deed. The grantees in the respective deeds assumed and agreed to pay the mortgage indebtedness of $20,000. On March 31, 1925, there was remaining unpaid on the note the sum of $15,000, at which time an extension agreement was entered into between the plaintiff *Page 96
and G.B. Spencer and his wife, purporting to extend the time of payment of the principal debt until March 1, 1930.
The interest which became due on March 1, 1928, was not paid, and on the 13th day of the following July, this action was begun. The suit is founded upon the note and mortgage executed by the Wagners and the assumption agreements in the aforesaid deeds. Personal judgment is asked against the Wagners on the note and against the defendants U.G. Turner, John Spencer, and G.B. Spencer by reason of their assumption agreements in the respective deeds. The defendants G.B. Spencer and his wife made default.
The affirmative allegations of the answers of the defendants Wagner, Turner, and John Spencer were stricken by the court, upon motion by the plaintiff to strike, which was the equivalent of a motion to dismiss, formerly known as an equitable demurrer. Said affirmative allegations, which are contended on this appeal to have been improperly stricken, are, in substance, as follows: That the extension agreement operated as a novation; that the liability for the payment of the mortgage debt of each grantor in the aforesaid deeds was that of surety only, and therefore secondary to the liability of the grantees therein; and that, with full knowledge of this situation by the plaintiff, and without the knowledge, consent, or concurrence of the answering defendants, the extension agreement was entered into with G.B. Spencer and his wife; and that, by reason of said extension of time of payment, the answering defendants are released and discharged from any liability upon the debt; that the extension agreement operated as a material alteration of the note and mortgage sued upon, and therefore invalidated them.
The defendants Wagner filed a cross-petition against the defendants U.G. Turner, John Spencer, and G.B. Spencer, in which they asked that, in the event that the plaintiff Insurance Company be found entitled to judgment against them (the Wagners), then they (the Wagners) have personal judgment against said defendants U.G. Turner, John Spencer, and G.B. Spencer, by reason of their assumption agreements to pay the mortgage indebtedness, as evidenced by their warranty deeds.
The defendant Turner filed cross-petition against the defendants John Spencer and G.B. Spencer, praying to the same *Page 97
effect. The cross-petitions of the Wagners and Turner were attacked by the defendant John Spencer by motion to dismiss, which was overruled.
The court, on plaintiff's cause of action, rendered personal judgment on the note against the Wagners and against the defendants U.G. Turner, John Spencer, and G.B. Spencer, by reason of their assumption agreements contained in their respective deeds, and decreed foreclosure of the mortgage. On the cross-petitions of the Wagners, he rendered judgment in their favor against the defendants U.G. Turner, John Spencer, and G.B. Spencer, for the amount of plaintiff's judgment. On the cross-petition of U.G. Turner, he rendered judgment against the defendants John Spencer and G.B. Spencer for the amount of plaintiff's judgment. The decree provides for the sale of the mortgaged real estate on special execution, and that the proceeds of the sale be applied to the liquidation and payment of the judgment rendered in favor of the plaintiff Insurance Company, and that, if such proceeds are not sufficient to completely and fully pay the said judgment, then the amount of such proceeds be credited upon the judgments against each and all of the defendants against whom such judgments are rendered, and that the plaintiff should have general execution against such judgment defendants against whom such deficiency judgments shall remain unpaid. The decree further provides that the proceeds from the sale of the real estate on special execution so credited upon the judgment rendered in favor of the plaintiff Insurance Company shall likewise be credited on the judgment rendered in favor of the Wagners against the defendants U.G. Turner, John Spencer, and G.B. Spencer, and shall likewise be credited upon the judgment rendered in favor of the cross-petitioner U.G. Turner against the defendants John Spencer and G.B. Spencer, and awards a general execution against the property of the defendants U.G. Turner, John Spencer, and G.B. Spencer for any amount of the judgment which the Wagners shall be required to pay after the application of the proceeds of said real estate upon the judgment rendered in favor of the plaintiff Insurance Company and against them, and likewise awards a general execution against the property of the defendants John Spencer and G.B. Spencer for any amount which U.G. Turner may be required to pay upon the judgments rendered against *Page 98
him after the application of the proceeds from the sale of the real estate have been applied upon said judgments. The defendants Wagner, Turner, and John Spencer appeal from the judgment against them in favor of the plaintiff Insurance Company, and the defendant John Spencer appeals from the judgments of the Wagners and U.G. Turner against him.
It is contended by the appellant John Spencer that in no event could judgment be rendered against him for more than one half of the amount of the indebtedness. This contention of said 1. MORTGAGES: appellant's is devoid of merit. By the terms of transfer of the deed from the Turners to John Spencer and property G.B. Spencer, the grantees assumed and agreed to mortgaged: pay the mortgage indebtedness, and by their joint assumption agreement each became liable for the assumption whole amount of the indebtedness. of mortgage: construction.
The appellant John Spencer urges nothing in his brief and argument against the judgments against him in favor of the Wagners and Turner other than what is urged against the judgment in favor of the plaintiff. Therefore, the only 2. NOVATION: questions for our consideration and non- determination are: (1) Did the extension discharge agreement operate as a novation? (2) Did the of existing extension of the time of payment release the obligations: answering defendants from liability for the extension of payment of the debt? (3) Did the extension mortgage. agreement operate as a material alteration of the note and mortgage?
"The essentials of a novation are: (1) a previous valid obligation; (2) the agreement of all the parties to the new contract; (3) the extinguishment of the old contract; (4) the validity of the new one." Hannan v. Murphy, 198 Iowa 827.
A portion of the elements are lacking in the instant case. There was no substitution of the extension agreement entered into between the plaintiff Insurance Company and G.B. Spencer and his wife for the agreement of the Wagners to pay the note or for the liability of the respective grantees in the deeds to pay in accordance with their assumption agreements. By the extension agreement there was no extinguishment of the old or previous contract nor of the debt. The answering defendants are not parties to the extension agreement, nor did they agree or *Page 99
consent to the new contract, the extension agreement. Their averment in their answer is, in substance, that the extension agreement — the claimed novation — was entered into without their knowledge, concurrence, or consent. Therefore it is quite clear that the extension agreement claimed by the answering defendants to be a novation is lacking in a portion of the elements essential to constitute a novation. That there was no novation, see Blank v. Michael, 208 Iowa 402; Benton v.Morningside College, 202 Iowa 15; Kirchman v. Standard Coal Co.,112 Iowa 668; Richardson v. Short, 201 Iowa 561.
That the extension agreement did not operate 3. ALTERATION as a material alteration of the note and OF mortgage sued upon, see Blank v. Michael, supra; INSTRUMENTS: Cresco Union Sav. Bank v. Terry Terry,
mortgage and 202 Iowa 778. note: extension agreement with assumptor.
The contention that the extension agreement operated as a 4. MORTGAGES: release of the liability of the answering transfer of defendants for the payment of the note is also property without avail, and is fully answered by our mortgaged: recent cases, Iowa Title Loan Co. v. Clark
extension Bros., 209 Iowa 169; Herbold v. Sheley, 209 Iowa of time of 384; Blank v. Michael, supra. Further discussion payment: of the propositions urged is unnecessary. effect.
All propositions relied upon by the respective appellants for a reversal having been herein considered, and no merit having been found therein, the judgments of the trial court are hereby affirmed. — Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436042/ | Newbern is a small town in Marion County, Iowa. This action is brought by the appellant, to recover possession 1. RELIGIOUS of two lots in said town which are used as a SOCIETIES: parsonage property. The appellee Gardner is in property: possession of said property as a tenant. The right of other appellees claim to hold the title to said possession. premises as trustees. On or about May 29, 1908, the owners of said described real estate, by deed, conveyed said property to five trustees, who are described in said deed as "trustees of the parsonage *Page 908
of the U.B. Church of the Chariton Circuit, Marion County." The conveyance was made to said parties as "trustees of the U.B. Church, and their successors as trustees." It appears that, at the time said deed was made, there were three churches or classes of the United Brethren Church faith located in the Chariton district, and that each of said classes contributed a proportionate share to the purchase of said property and the building of the parsonage house located thereon. Subsequently, the two outlying churches or classes abandoned their interest in said property, and quitclaim deeds were obtained in May, 1915, from the outlying classes or churches, conveying their interest to the trustees of the Newbern church. The appellees herein, outside of Gardner, are the original trustees to whom said property was conveyed, or their successors. The appellant claims to be the owner of said premises and entitled to immediate possession thereof.
The Church of the United Brethren in Christ is a duly established and recognized denomination, and the laws governing said denomination appear in a book known as the Book of Discipline of said church. In said Book of Discipline it is provided:
"The right, title, interest and claim of all property, both real and personal, of whatever name or description, obtained by purchase or otherwise, by any person or persons, for the use, benefit and behoof of the Church of the United Brethren in Christ, are hereby fully recognized, and held to vest in the church aforesaid."
The appellee-trustees do not deny the authority of said provision of the Book of Discipline of the church, and concede that they took the title to said premises as trustees under the provisions of said Book of Discipline.
It appears that, in the year 1919, there were three church organizations in the town of Newbern: the appellant, the Presbyterian church, and the Methodist church. It was contemplated to form a federated church, by a union of these three churches. It appears that there is a state meeting or conference of the appellant church within the state of Iowa, which has the general supervision of churches of that faith located within the state. In the year 1919, the following resolution was adopted at said conference: *Page 909
"Whereas there is an agreement looking toward the federation of the M.E. Church, the United Brethren Church and the Presbyterian Church, located in the town of Newbern, Iowa, therefore, be it resolved that consent and authority is hereby given by the annual conference of the United Brethren Church, now in session, so that the trustees may permit the M.E. church building in Newbern, to be moved on the ground now owned by the United Brethren Church, attaching the same to the present United Brethren Church to be used by the aforesaid churches in the federated movement. And we further agree that they shall be protected in their property rights in proportion to valuation and vice versa if the order is reversed. This consent is given with the definite understanding that church memberships, support of benevolences, and the patronage of church periodicals is not affected."
It appears that the federated church was duly organized, and that proper consent was obtained for the use of the property of the Methodist church and the Presbyterian church, that were associated in the new federated church. Since said time, the new organization has continued to function. On the 1st day of October, 1920, the Board of Church Erection of the appellant church adopted the following resolution:
"We the state Board of Church Erection of the Church of the United Brethren in Christ do hereby authorize the trustees of the parsonage of said church now located at Newbern, Iowa, to sell and convey said parsonage property and appurtenances thereto belonging, to the federated church now under process of corporation, to be held and used by said federated church for the use of pastor's residence, and to be so used for this purpose throughout the tenure of said corporation, with the provision that, in case of the dissolution of said federation or their inactivity as such federation by ceasing to hold regular religious services, it shall revert in title to the Church of the United Brethren in Christ of Iowa Conference.
"Dated at Des Moines, Iowa, this 1st day of October, A.D. 1920."
No question is raised with regard to the authority of this board to adopt said resolution and to bind the appellant thereby. The Book of Discipline of the appellant church contained the following provision: *Page 910
"Section 15 of Chapter XII also provides as follows: Should any parsonage be permanently abandoned as such, the superintendent of the district in which such parsonage is located shall report the same to the annual conference, which body shall authorize the board of conference trustees to rent, lease or sell such parsonage and report the proceeds to the next annual conference, which body shall have power to use the money to pay debts on other parsonages or in building new ones within its borders, or turn the money into the conference church extension society, or conference church erection society."
It is the main contention of the appellant that the parsonage has been permanently abandoned as such, and that the local trustees have no further power over it, and that, therefore, appellant is entitled to the immediate possession. It appears that, since the organization of the federated church, part of the time it was served by a pastor who was unmarried, and hence did not have use for the parsonage, and that, at the time this action was brought, the federated church was being served by a pastor who lived in another town where there was a church, and who served both churches. The trustees of the parsonage have rented the same, and applied the rents wholly in connection with said property, and have not diverted the same to any outside purpose. It is true that they have not sold and disposed of the property, as authorized by the resolution of October 1, 1920; but the record shows that the financial condition in that locality has been such that an advantageous sale could not be had. The appellant herein has suffered no loss by reason of the manner in which the property has been handled by the trustees. It is contended by the appellant that the former members of the local church have failed to contribute to the church and to support the, benevolences and to patronize the church periodicals, as provided in the resolution of the Conference of 1919. There is nothing, however, in the record to show that the federated church or the trustees are in any way whatever responsible for any delinquencies there may have been on the part of the individual members of the former United Brethren church. The legal title to the premises still stands in the appellees. The title has not been transferred to the federated church, and the appellant is in no position to complain of the failure to act in this regard.
Appellant contends that it is entitled to maintain this action *Page 911
for possession of the property because of the provisions of Section 8587, Code of 1924, which is as follows:
"When a local religious society shall have ceased to support a 2. RELIGIOUS minister or leader or regular services and work SOCIETIES: for two years or more, or as defined by the property: rules of any incorporated state, diocesan or abandoned district society with which it has been property connected, it shall be deemed extinct, and its right of property may be taken charge of and controlled mother by such state or similar society of that church. denomination with which it had been connected."
This statute was enacted by the thirty-fourth general assembly, Chapter 77, and went into effect on July 4, 1911. The same chapter contains the following provision, which is now Section 8599, Code of 1924:
"Existing contract and property rights arising under the organization, rules, laws or canons heretofore adopted by any corporation or organization of a religious character, shall not be affected by the provisions of Sections 8584, 8587, and 8595 to 8598, inclusive, except by consent of the interested parties."
The property rights involved in this action arose prior to the adoption of said statutes. If it be true that Section 8587 has any application to such a situation as is presented in this case, it could not affect the prior existing property rights under Section 8599.
Upon the entire record, we are convinced that the appellant is not entitled to the immediate possession of the real estate in question, and the decree of the trial court dismissing appellant's petition is — Affirmed.
EVANS, C.J., and STEVENS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4261108/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANDRES RODRIGUEZ-AGUILAR, )
)
Appellant, )
)
v. ) Case No. 2D17-4200
)
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 Hillsborough County; Mark Kiser,
Judge.
Andres Rodriguez-Aguilar, pro se.
PER CURIAM.
Affirmed.
MORRIS, SLEET, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3436099/ | The indictment in this case is in two counts. In the first count, appellant is charged with the crime of breaking and entering a building in the nighttime and in count 2 with the larceny of certain goods and property stored therein. Both counts of the indictment were submitted to the jury and a conviction had thereon. The judgment of the court provided that the sentences should run concurrently. The building entered was a warehouse situated in Larrabee, Iowa, and the goods and property taken therefrom consisted of twenty sacks of Black Hawk hog feed or tankage and sixteen sacks of oil meal alleged to be of the aggregate value of $64.
Appellant was aided and abetted in the commission of the crimes charged by Roy McManus and Melvin J. Waddell. The *Page 716
two participants in the commission of the crime with the defendant were called and testified upon the trial as witnesses for the state. The record of their testimony shows in detail the facts of the breaking and entering and the larceny of the property above indicated. The warehouse was in an inclosure which was entered by McManus and Waddell by breaking a padlock on a gate of the inclosure. Entrance into the warehouse was through a sliding door in the building which was not locked. Appellant was not present at the time the inclosure and the warehouse were first entered. He arrived on the scene a few minutes later and participated in the larceny and the concealment of the property in a grove some distance from the warehouse. Ample evidence was introduced from which the jury could find that the breaking and entering and the larceny was in pursuance of a prior agreement and arrangement between appellant and the other parties named. The offenses were committed on the night of May 8, 1931, or the early morning of the succeeding day. Appellant and McManus were arrested in Oklahoma a few days later on a warrant charging them with the commission of the offenses set up in the indictment and returned to Cherokee. Numerous propositions are presented by appellant for reversal. Many of them are without sufficient merit to justify particular reference or discussion in this opinion.
[1] I. Neither Roy McManus nor Melvin J. Waddell was called as witnesses before the grand jury, and, of course, their names were not indorsed on the indictment. Notice of the introduction of their testimony was served upon the defendant. Introduction of the notice in evidence and the testimony of the aforesaid witnesses was objected to by appellant upon the ground, among others, that the notice was insufficient in that it failed to state with sufficient detail the matters which the state would seek to prove by the said witnesses to enable the appellant to prepare for trial. In connection with the objection to the introduction of the testimony of the two alleged accomplices, appellant filed a motion for a bill of particulars and to require the state to set out the testimony to which it claimed the witnesses would testify in detail, specifying certain particulars in the motion. The objections to the testimony and the motion for a bill of particulars were both overruled. The ruling of the court was obviously correct. No doubt, the notice might have been somewhat more specific in the statement of the proposed testimony. It, however, complied substantially with the *Page 717
requirements of section 13851 of the Code, and this was sufficient. State v. Butler, 157 Iowa 163, 138 N.W. 383; State v. Harding, 204 Iowa 1135, 216 N.W. 642; State v. Mullenix, 212 Iowa 1043, 237 N.W. 483.
We deem it unnecessary to set out the contents of the notice. The name, place of residence, and occupation of the witnesses was stated and the particular transaction and incidents as to which the witnesses would be examined were stated with sufficient clearness to inform appellant of the nature and scope of the proposed testimony, and to enable him to prepare for trial. As the witnesses were accomplices in the commission of the crime, appellant was already apprised of what they, in fact, knew. The allegations of the indictment were full and complete.
[2] II. As previously stated, appellant and McManus were apprehended and arrested in Oklahoma eight or nine days after the commission of the crime. The court gave an instruction on the subject of flight. The instruction was in form and substance sufficient and involved the usual elements. All of the evidence relating to the apprehension and arrest of appellant was objected to by counsel upon the grounds that the answers to some of the interrogatories were mere conclusions and that no proper foundation had been laid for the introduction of testimony tending to establish flight. No direct or specific testimony showing that the defendant actually knew that he was suspected of the commission of the crimes charged or that he was about to be arrested was introduced. There is evidence, however, indicating such knowledge on the part of the appellant as to matters relating to the crime as would materially tend to at least arouse apprehension in his mind as to the probability of arrest. The disappearance was immediately after the commission of the crime. The explanation offered thereof in appellant's behalf was partial only and quite unsatisfactory. He in no way sought to account for his presence in Oklahoma. Direct proof of the fact of knowledge of his possible arrest is not necessary. We said in State v. O'Meara, 190 Iowa 613, 177 N.W. 563, that proof of such knowledge is not essential where the commission of the offense is recent. The record contains evidence from which the jury might have properly inferred that appellant knew that the hiding place of the stolen property had been discovered and that it was known that he was in the immediate vicinity of the place of concealment early on the morning of May 9th. The proof was *Page 718
abundant to justify the submission of the issue of flight to the jury. State v. Bige, 195 Iowa 1342, 193 N.W. 17; State v. Harding, 204 Iowa 1135, 216 N.W. 642.
In so far as the testimony of the witnesses relating to the apprehension of appellant in Oklahoma and to conversations with him were mere conclusions, little need be said. Some of the answers of the witnesses were in the nature of conclusions but the answers were followed up with proof of the details. Appellant could have suffered no prejudice on account of the answers of the witnesses to some of the questions being in the nature of conclusions.
[3] III. Objection was also interposed to the details of the crime by the witnesses McManus and Waddell upon the ground that there was a total lack of the corroboration essential to the state's case and that the appellant may not be convicted upon uncorroborated testimony of an accomplice. The contention as to absence of corroboration is without merit. Corroboration, such as is required in cases of the character before us may be wholly circumstantial. Appellant, with the two companions named, was seen in the immediate vicinity of the grove in which the stolen property was concealed early the morning of May 9th. By the testimony of other witnesses, his car was sufficiently identified as one of the cars in which the stolen goods were transported to the place of concealment. The evidence of corroboration was ample. State v. Farris, 189 Iowa 505, 178 N.W. 361; State v. Patten, 191 Iowa 639, 182 N.W. 788; State v. Hetland, 141 Iowa 524, 119 N.W. 961, 18 Ann. Cas. 899; State v. Bittner, 209 Iowa 109, 227 N.W. 601; State v. Johnson, 211 Iowa 874, 234 N.W. 263.
[4] IV. At the conclusion of the state's evidence, the defendant filed a motion to require the state to elect upon which count of the indictment it desired to ask a conviction. The motion was overruled. The indictment was not open to the criticism pointed out in State v. Leasman, 208 Iowa 851, 226 N.W. 61. The indictment in all respects complied with the requirements of section 13737-b1, Code 1931.
It is true that burglary or breaking and entering is not a compound offense with larceny, but it is also true that, when the two offenses are committed in connection with each other, they may be charged in separate counts of the same indictment. Count 1 of the indictment charges the commission of the crime of breaking and entering on May 8, 1931. The building entered is described as a *Page 719
warehouse situated in the town of Larrabee, Cherokee county, in which goods, merchandise, and valuable things were deposited and kept for sale. The indictment also charges that the entry was with the intent to commit the crime of larceny.
Count 2 charges the crime of larceny as committed at the same place, at the same time, from the same building, and on the same date. Thus the indictment sufficiently complied with the statute. State v. Frey, 206 Iowa 981, 221 N.W. 445; State v. Leasman, supra. Nor was the indictment bad for duplicity, and, if it were, it could only be taken advantage of by demurrer. State v. Frey, supra. The evidence was abundant to establish both of the crimes charged, and the motion to require the state to elect upon which count it would proceed was properly overruled.
[5] V. The court in one or more of its instructions stated the punishment provided by law for each of the offenses. The jury had nothing to do with the punishment which might be inflicted upon conviction of the crimes charged. The statement to the jury of the possible punishment to be inflicted in an instruction has been repeatedly condemned. It should not be necessary to again repeat the caution. This court has, however, repeatedly said that a reversal will not be based upon this ground alone. State v. O'Meara, 190 Iowa 613, 177 N.W. 563; State v. Purcell, 195 Iowa 272, 191 N.W. 849; State v. Reid, 200 Iowa 892, 205 N.W. 517.
VI. Numerous exceptions were taken to the instructions, but few of such exceptions are relied upon for reversal. The exceptions covered by appellant's brief and argument, with the exception of the one already noted, are so wholly without merit as not to require separate consideration. We have examined each paragraph and the charge as a whole with the care the importance of this case demands. We are satisfied that appellant had a fair trial. Construed and considered together, the instructions as a whole are unobjectionable and amply protected every right of the appellant. Few charges to juries are perfect, and necessarily there is more or less variance in the phraseology employed. Some of the instructions given might well have more fully elaborated the subject, but, considered as a whole, we are clear that no reversible error was committed therein. The evidence of guilt in this case is clear and conclusive. It does not by any means rest alone upon the evidence of accomplices. It is not claimed that the evidence, if competent, is insufficient to sustain the verdict. Each and every exception and contention of counsel *Page 720
for appellant has been given due consideration and weight. We have discussed all of the propositions that, in the judgment of the court, present any merit. The conclusion is inescapable that the verdict of the jury and the judgment of the court thereon is just and proper and should be and is affirmed. — Affirmed.
CLAUSSEN, C.J., and MITCHELL, ANDERSON, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436100/ | I. Appellant was tried and convicted in the court below of the crime of seduction, and appeals. The crime is alleged to have been committed on or about October 10, 1923. The parents of Virginia Neligh, prosecutrix, resided at Grand 1. SEDUCTION: Island, Nebraska; but a sister, Mrs. Iva elements: Swanson, resided in Council Bluffs. It was at evidence. her home that she and appellant became acquainted. Appellant was 20 years of age at the time of the trial, and the prosecutrix 19. Prosecutrix testified that the first act of intercourse took place at the home of her sister, shortly after the middle of July, 1923, and that it was repeated on several occasions thereafter, and that she became pregnant on or about October 10, 1923. The indictment was returned January 4, 1924.
One of the grounds urged for reversal is that the evidence was insufficient to make out the crime charged. Appellant and prosecutrix kept company with each other; and after the latter returned to her home in Grand Island, in July, 1923, and until her return to Council Bluffs, on or about September 20th, many letters passed between them. Prosecutrix testified that appellant professed love and affection for her, talked about marriage, *Page 1230
and hugged and kissed her; and that she reciprocated his affection. The correspondence corroborates the testimony of the prosecutrix on this point, and tends to show that they had formed a strong attachment for each other. The letters are chaste, and make no reference to the alleged illicit relations between them. Appellant denied that he ever had sexual intercourse with the prosecutrix.
The question as to what constitutes seductive arts is largely one of fact, and in this case a careful reading of the record satisfies us that the finding of the jury is sustained by the evidence. There is evidence in the record that appellant promised to marry the prosecutrix, if she got into trouble; but this promise was coupled with protestations of love and affection, and conduct indicating that he was infatuated with her. The question was for the jury; and its finding will not be disturbed upon the ground that the false promises or seductive arts employed might not, in all cases, have been sufficient to overcome the virtue of a previously chaste female. State v. Rolling, 190 Iowa 1139;State v. Epps, 198 Iowa 580; State v. Bogue, 197 Iowa 1321.
Appellant relies in part upon State v. Valvoda, 170 Iowa 102, and State v. Carson, 185 Iowa 568. These cases are clearly distinguished by the facts from the cases cited supra. It may be proper to say in this connection that the evidence tends to show that appellant is a graduate of a Council Bluffs high school; that he is an industrious, hard-working young man, who by his efforts supports his mother; and that he was never previously in trouble.
II. Counsel for appellant sought to show by the prosecutrix, on cross-examination, that she knew it was wrong for her to have sexual intercourse with him, and that he had never written to her or confessed his love for her after she advised 2. SEDUCTION: him of her condition. Objections to the elements: questions propounded were sustained by the knowledge of court. It was, of course, proper for appellant wrongfulness to show, on cross-examination, if he could, that of act. prosecutrix was not of previously chaste character. Want of chastity may be shown by the acts and conduct of the prosecutrix tending to show that fact, and the jury was so instructed. The record does not disclose that the cross-examination was unduly restricted by the court, or *Page 1231
that appellant was not permitted to elicit testimony tending to show that prosecutrix was previously unchaste. It was, of course, no defense that she knew that it was wrong for her to have sexual intercourse with appellant. Testimony to this effect, even though it may tend to throw light upon her mental attitude at the time of the seduction, could be of little probative value. The record disclosed very little testimony tending in any way to show that prosecutrix was not previously chaste. Therefore, in any event, the ruling was without any substantial prejudice to appellant. The court might well have permitted the witness to answer the other question, as to whether appellant had professed love for her after she informed him of her condition. Prosecutrix testified that the subject of marriage was discussed between them after appellant knew of her condition, and that he told her they would get married. She does not, however, in her testimony in chief, claim that he professed love for her after she told him that she was pregnant; and the subject of marriage was discussed only with reference to her unfortunate condition. The ruling was, in any event, without prejudice.
III. Complaint is made by appellant of the third, fifth, seventh, eighth, and eleventh paragraphs of the court's charge to the jury. The criticism aimed at these instructions is that the court repeatedly so referred therein to the 3. SEDUCTION: "first act of sexual intercourse" as to imply elements: that several acts were committed, and that the falsity of assumption embodied in the language of the promise: instructions was calculated to mislead the jury, instruc- to the prejudice of appellant; and that the tions. court frequently used the word "promise" or "promises," without preceding the same with the word "false." The instructions are to some extent open to the criticism urged against them; but we are satisfied that, when the charge is read as a whole, the jury could not have been misled by either the alleged assumption or the omission of the court. The jury was plainly told, in both the seventh and the eleventh paragraph of the charge, that it was incumbent upon the State to prove the sexual intercourse beyond a reasonable doubt, and in other paragraphs the jury was instructed that the burden rested upon the State to prove beyond a reasonable doubt that prosecutrix was induced *Page 1232
to submit to the first act of sexual intercourse with appellant by the use of flattery, deceptive arts, false promises of love and affection, or false promises of marriage, which he then and there made, for the purpose of overcoming her virtue. No doubt it would have been better if the words "false promises" had always been used in the instruction.
IV. The court appears to have somewhat sharply admonished a witness who answered a question as to the general reputation of appellant for chastity in a manner indicating a friendly feeling for him. It is urged that the manner of the court, to which exception was taken, was calculated to prejudice the jury against the witness, who was a former teacher of appellant's. We see nothing, however, in the ruling that could have been prejudicial to appellant. The answer was stricken, and the witness then answered the question in the affirmative.
V. Witnesses for the defendant contradict the testimony of prosecutrix as to statements alleged to have been made by her, and appellant now contends that the court erred in not instructing the jury on the subject of 4. TRIAL: impeachment. No instruction covering the subject instruc- was asked; and the omission, if such it was on tions: the part of the court, presents no ground for necessity reversal. Complaint is also made of the refusal for request. of the court to give certain requested instructions. We shall not set them out. The charge of the court was quite full and complete, and embodied the thought of the requested instructions, so far as they correctly stated the law.
A careful examination of the record satisfies us that appellant had a fair trial, and no ground for reversal is disclosed. —Affirmed.
ARTHUR, C.J., and EVANS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436101/ | This is a suit in equity brought by the Iowa-Nebraska Light and Power Company, together with two individual *Page 3
citizens and taxpayers, to enjoin the defendants, Incorporated Town of Woodbine, the town council, and Fairbanks-Morse
Company, the successful bidder, from constructing an electric light and power distribution system on the theory that the proceedings of the town, pursuant to which the contract for such construction was awarded, are invalid. Numerous grounds are asserted in the petition, as amended. The answer was a general denial. Testimony was introduced and the matter being fully submitted, the court entered a decree finding generally in favor of the defendants and dismissing the petition, as amended. Plaintiffs appeal to this court and assert nine propositions as grounds for reversal.
[1] I. Appellants' first three propositions are based upon the contention that the ballot used to submit the proposition to the voters of the town was insufficient to advise the voters of the type of contract contemplated by the town, and eventually awarded to the appellee Fairbanks-Morse Company. The question contained in the ballot is as follows:
"Shall the Town of Woodbine, Harrison County, Iowa, establish, erect, maintain, and operate, within or without its corporate limits, an electric light and power plant with all the necessary poles, wires, machinery, apparatus and other requisites of said plant; the maximum amount which may be expended for the establishment, construction, or acquisition of such plant shall be $115,000.00; said plant shall be paid for solely out of the future earnings of said plant, and as provided by Sections 6134-d1 to 6134-d7, inclusive, of the 1935 Code of Iowa?"
As the election resulted in an affirmative vote on the above proposition, notice to bidders was given in which the bidders were advised as follows:
"Said improvement being constructed under the authority granted the Municipality by Chapter 312 of the Code of Iowa for 1935, and more particularly by Sections 6134-d1 to 6134-d7, inclusive, and including Sections 6134-f1, 6134-f2, and 6134-f3." *Page 4
The contract actually awarded to appellee Fairbanks-Morse
Company provided for the issuance of revenue bonds pursuant to sections 6134-f1 to 6134-f3, inclusive, of the Code. It is the contention of appellants that the ballot was only sufficient to advise the voters that the town intended to proceed pursuant to the "d" sections, and was insufficient to advise the voters that the town intended to proceed pursuant to sections 6134-f1 to 6134-f3, inclusive. We find no merit in this contention.
The statute, which is now known as sections 6134-f1 to 6134-f3, inclusive, was enacted as chapter 74 of the Acts of the Forty-fifth Extra General Assembly, "AN ACT amending Section sixty-one hundred thirty-four-d one (6134-d1), Code, 1931." From a legal standpoint, the sections of this chapter of the session laws which have now been identified as the "f" sections following section 6134-d1 of the Code of 1935, are an amendment to section 6134-d1 of the Code of 1931, and, therefore, are a part of sections 6134-d1 to 6134-d7 of the Code of 1935. Such holding seems to be apparent when we consider the holding of this court in the case of Abbott v. Iowa City, 224 Iowa 698, 277 N.W. 437. The ballot which was submitted to the voters of Iowa City is set out in the opinion, 224 Iowa, at page 708, 277 N.W., at page 442, as follows:
"`Shall the City of Iowa City, Iowa, establish, erect, extend, maintain and operate within or without its corporate limits, an electric light and power plant, with all the necessary poles, wire, machinery, apparatus and other requisites of said plant; the maximum amount which may be expended for the establishment, construction, or acquisition of such plant shall be $917,000 to be paid for out of the future earnings of said plant, and as provided by sections 6134-d1 to 6134-d7, inclusive, of the Code of Iowa, 1931, as amended by * * * Chap. 74 — 45 G.A. * * * 45th General Assembly, Special Session?'"
While the exact proposition now contended for by appellants was not urged upon this court in that case, a reading of our opinion demonstrates that this court accepted that ballot as sufficient to advise the voters of the statutes under which *Page 5
the city was undertaking to proceed. We can see no valid distinction between the reference in the Abbott case to "sections 6134-d1 to 6134-d7, inclusive, of the Code of Iowa, 1931, as amended by * * * Chap. 74 — 45 G.A." and the ballot here presented which refers to "Sections 6134-d1 to 6134-d7, inclusive, of the 1935 Code of Iowa." It seems to us that, as a matter of law, both references are to the same statutes.
Appellants argue, however, that a voter would be misled by the ballot in that he would naturally assume that the ballot referred only to the "d" sections and the fact that the town secretly intended to invoke the "f" sections was a fraud upon the voters.
Even a casual examination of the Code of 1935 demonstrates that, if one undertakes to read from section 6134-d1 to section 6134-d7, inclusive, after reading section 6134-d1, he is confronted with the "f" sections which are inserted between section 6134-d1 and section 6134-d2. This insertion was made by the code editor in view of the fact that the "f" sections were enacted as an amendment to section 6134-d1. Also, the subhead in the Code, appearing after section 6134 proper, is "Payment from earnings". The "f" sections, as well as the "d" sections, obviously pertain to this subject. Under section 6134-d1, payment may be made from future earnings and the town is authorized to pledge the property and the earnings of the plant as security for the payment of the purchase price. Under section 6134-f1, the cost may be defrayed by the issuance of negotiable interest-bearing bonds, payable from and secured by the net earnings of the plant and may also be secured by the pledge of the property purchased. The "f" sections refer to the same subject matter as the "d" sections, namely, payment from earnings. If a voter examined the 1935 Code and the ballot, which stated, "Said plant shall be paid for solely out of the future earnings of said plant," he would naturally conclude that the language "and as provided by Sections 6134-d1 to 6134-d7, inclusive, of the 1935 Code of Iowa" included all of the statutes there appearing in the 1935 Code, *Page 6
under the heading, "Payment from earnings", and that it included the "f" sections as well as the "d" sections.
Numerous authorities have been cited to us by the parties to this appeal. We have carefully examined them. They present many interesting propositions. However, it would unduly prolong this opinion to specifically refer to such cases. The only case cited, which appears to be directly in point, is the Abbott case above referred to. We are satisfied from examining all of the cases relied upon that the position taken by us in the Abbott case clearly warrants, if not compels, us to now hold that appellants' objection to the ballot is without merit.
[2] II. Appellants' fourth proposition is based upon the contention that section 6134-f1 of the Code of 1935 is unconstitutional and void because it contravenes the provisions of section 29 of Article III of the Constitution of the State of Iowa, which provides:
"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."
The title of chapter 74 of the Acts of the Forty-fifth Extra General Assembly reads as follows:
"AN ACT amending section sixty-one hundred thirty-four-d one (6134-d1), Code, 1931, and providing for the issuance by municipalities of negotiable revenue bonds payable only out of the net earnings of municipally owned public utilities, providing the security for the payment of such bonds and the rate of interest and form of such bonds; providing for the delivery or sale of such bonds and that the same may be used as security for money borrowed to pay the cost of such improvement."
Appellants' contention is that section 6134-f1 constitutes an attempt to amend sections 1172, 1175 and 1179 of the Code without giving expression to such intention in the title. Said statutes provide as follows: *Page 7
"1172. Notice of sale. When public bonds are offered for sale, the official or officials in charge of such bond issue shall, by advertisement published for two or more successive weeks in at least one official newspaper of the county, give notice of the time and place of sale of said bonds, the amount to be offered for sale, and any further information which may be deemed pertinent.
"1175. Selling price. No public bond shall be sold for less than par, plus accrued interest.
"1179. Exchange of bonds. Nothing in this chapter shall be deemed to prevent the exchange of bonds for legal indebtedness evidenced by bonds, warrants, or judgments as otherwise provided by law."
Section 6134-f1 of the 1935 Code provides as follows:
"For the purpose of defraying the cost of any such plant, improvement or extension thereof, any such city or town is hereby authorized to issue negotiable, interest bearing revenue bonds payable from and secured by the net earnings of the plant, and may also be secured by the pledge of the property purchased, which bonds shall not constitute a general obligation of such city or town or be enforceable in any manner by taxation. Such revenue bonds may be delivered to the contractor or contractors in payment for such improvement or they may be sold by the municipality and the proceeds used to pay for such improvement; and/or such bonds may be used as collateral security for money borrowed to pay the cost of such improvement, such loan to be repaid only out of the net earnings of the plant."
Appellants contend that, by the language of this statute, "Such revenue bonds may be delivered to the contractor or contractors in payment for such improvement", the legislature, under the guise of amending section 6134-d1, attempted to confer upon municipalities the right to barter, trade or exchange revenue bonds for work, material and labor, which could not be done under section 1175 of the Code of 1931, which provides, "No bond shall be sold for less than par, plus accrued *Page 8
interest" and that the title to said chapter 74 should have stated more than merely that it was an act "amending section 6134-d1 Code, 1931 * * * providing for the delivery or sale of such bonds." Appellants contend that the title to the act should have stated that it was amending sections 1172, 1175 and 1179, and that the use of the word "delivery" does not embrace the terms barter, trade or exchange revenue bonds for work, material and labor.
Appellants rely upon our holding in the case of Iowa Service Co. v. City of Villisca, 203 Iowa 610, 213 N.W. 401. In that case, an injunction was sought to restrain the defendant from constructing an electric light and power plant. Two propositions were presented (1) the legality of the election at which the bonds to pay for the plant were voted, and (2) the legality of the contract. We held that the election was valid and that the bonds were legally issued. The record showed, however, that, when the city offered the bonds for sale, no bids were received, and it thereupon entered into a contract, which provided that the contractor would receive the bonds at par, in payment of the contract price. The city relied upon the provisions of section 6258 of the Code, which permit a city to exchange its bonds for legal indebtedness of the city outstanding when the bonds are authorized. In holding that this statute was not applicable and that the contract was invalid, we state, 203 Iowa, at page 614, 213 N.W., at page 403, as follows:
"The contract under consideration, which purported to dispose of the bonds to the contractors, was not an indebtedness outstanding when the bonds were issued. This being so, the city council had no alternative other than that stated in the concluding clause of that section. The reason for such limitation upon official power is quite manifest. The bonds had failed to sell for par. Whether the contractors expanded their bids in their estimates or discounted the bonds cannot be known. What is certain is that they did not buy the bonds at par. That opportunity had been offered to all the world, without a bidder. The statute limits the power of exchange to indebtedness already liquidated. Such indebtedness is itself a par. The exchange *Page 9
of the bonds, therefore, is an exchange of par for par. This cannot be said of a contract entered into which contemplates the acceptance of the bonds in payment for material and labor proposed to be furnished."
Appellants rely upon the last sentence in the above quotation and construe this sentence as the holding of this court to the effect that any contract, which contemplates the acceptance of bonds in payment for material and labor to be furnished, makes it impossible for the bonds to be sold at par; that the contractors will invariably expand their bids or discount the bonds. The language is perhaps subject to such interpretation, but it must be construed in light of the facts presented by the record which we were then discussing. Under that record, the bonds had failed to sell for par. This fact was the basis for this court's assumption that the contractors either expanded their bids or discounted the bonds. When the decision is considered in light of the facts presented by the record, we do not think that this court intended to or did announce an invariable rule that a contract to exchange bonds for labor and material to be furnished rendered it impossible for the city to secure the par value of the bonds through such an exchange. The legislature, in enacting section 6134-f1, assumed otherwise. We are not prepared to arbitrarily state that the legislature assumed that to be true which is in fact impossible. We are disposed rather to cast the benefit of the doubt in favor of the legislature.
We are also faced with the holding of this court in the case of Iowa-Nebraska Light Power Co. v. City of Villisca, 220 Iowa 238, 261 N.W. 423, wherein the same appellant that now appears before us raised substantially the same constitutional objection to the original Simmer law. It was there contended that the title to the act was defective in that it did not enumerate all of the statutes which in effect were amended by the act. In holding this contention was without merit, we state, 220 Iowa, at page 244, 261 N.W., at page 427, as follows:
"It is also claimed that the Simmer Law is invalid because it is more properly an amendment to other provisions of the *Page 10
Code. The test cannot, however, be measured by the fact that the subjects in the act may also be related or germane to some other prior existing act."
In that case, we found that all the matters contained in the act were definitely referred to, connected with or incidental to the subject named in the title and not incongruous thereto. Accordingly, we held that the statute was not subject to the constitutional objection interposed against it, stating, 220 Iowa, at page 244, 261 N.W., at page 427, as follows:
"The Constitution is obeyed if all the provisions relate to one subject indicated in the title, or parts of it, incident to it, reasonably connected with it, or in some sense auxiliary to the object in view. Ritchie v. People, 155 Ill. 98, 40 N.E. 454, 29 L.R.A. 79, 46 Am. St. Rep. 315. We are constrained to hold that the title to the act in question fully and fairly meets the constitutional requirements, and we find no error in the lower court's ruling thereon."
After carefully considering the contentions of appellants, we are disposed to reach the same result under the record herein and, therefore, hold that the title of the act did not constitute a violation of section 29 of Article III of the Constitution of this state.
[3] III. Appellants' eighth proposition is that the contract fails to require retention of 10 percent of the contract price to cover possible claims for labor and material, as required by section 10310 of the Code and is, therefore, void. Counsel rely upon our holding in the case of Keokuk Waterworks Co. v. Keokuk,224 Iowa 718, 277 N.W. 291. As the contract in that case was held to be valid, we are unable to agree that the decision is authority for appellants' contention that this contract is invalid. Also, under the provisions of section 10311, the statute is read into the contract, made a part thereof, and the public corporation is not permitted to plead noncompliance with section 10310. Under these two sections of the Code, the persons furnishing labor and material are protected without *Page 11
regard to the express provisions of the contract. Accordingly, the failure to provide for the necessary retained percentage does not render the contract void. Instead, the public corporation is held to obey the requirements of the law and cannot plead its failure so to do as a defense. There is no merit in this contention of appellants.
[4] IV. The remaining contentions of appellants concern primarily the question whether or not the contract, which the appellee Town undertook to enter into with appellee Fairbanks-Morse Company, is invalid because of the failure to properly provide for competitive bidding in the making of the contract. We have recently passed upon the rule requiring competitive bidding in contracts of this kind. Iowa Electric Co. v. Town of Cascade, 227 Iowa 480, 288 N.W. 663. We there point out that, in the case of Electric Light Power Co. v. Town of Grand Junction, 216 Iowa 1301, 1303, 250 N.W. 136, this court recognized that an improvement such as contemplated herein must be contracted for on a basis of competitive bidding. We also point out that the purpose of competitive bidding is that those who are to be required to pay the expense thereof, shall be given the best work at the lowest practical price. In other words, competitive bidding is required to obtain contracts at the most reasonable, economical and practical cost in having the work economically done. In the Cascade case, we held that, since the reason for the rule was not present, the rule had no application. After a careful consideration of appellants' contentions, we are disposed to hold, under the record here presented to us, that a different result should be reached.
The features of the contract here subject to attack, which are asserted as being disposed to prevent competitive bidding of the character required herein, include among others the following: The contract provided for the delivery of all of the bonds to the contractor; the contractor was required to bid on the basis of doing all of the work and furnishing all of the material required for the project; the contractor was required to advance $8,000 in cash to the town to cover engineering, legal, capital, supplies and incidental expenses. It is appellants' contention *Page 12
that the letting of the contract was had in such a discriminatory manner as to favor monopoly, deny equal opportunity of bidding, and restrict competitive bidding to such an extent that the proceedings should be declared to be invalid.
Bearing in mind that the requirement for competitive bidding is based upon the proposition that the citizens of the town, as users of electricity, should be afforded the best work at the lowest practical price, to avoid undue and excessive costs, guard against improvidence, extravagance and unnecessary burdens and obtain terms at the most reasonable, economical and practical costs in having the work economically done, any feature of the contract which intends to put a heavier burden on the citizens who are to pay for the improvement might tend to defeat the purposes sought to be reached through competitive bidding. However, the rule is not one which can be stated arbitrarily and in rigid terms. The public officials have discretion in the matter.
For example, a specification that a building be fireproof tends to restrict bidding in that other types are eliminated, increases the cost of the improvement and adds a burden to the citizens who are to pay for the improvement, but such a specification does not mean that competitive bidding is unduly interfered with. The same may be said of a specification calling for stone in place of brick, steel in place of reinforced concrete, or numerous other specifications which refer to some specific type of construction or machinery to be furnished in connection with a public improvement. Public officials are not to be harassed by every conceivable objection to the specifications, where a showing might be made that some different type of specification would permit substantially as good an improvement at reduced cost. The public officials have discretion in deciding such engineering questions. All that the rule requires is that, after the type of improvement has been determined in the exercise of honest judgment, the specifications be prepared to permit free competition to bidders thereon. Hoffman v. City of Muscatine,212 Iowa 867, 232 N.W. 430, 77 A.L.R. 680; Brutsche v. Coon Rapids,223 Iowa 487, 272 N.W. 624. *Page 13
But when the type of improvement has been so determined, the specifications must not contain restrictions which stifle competition. 44 C.J. 104. In the case now before us, it would be difficult to pick out any one item of the objections asserted and hold that this item alone is sufficient to demonstrate that unreasonable restrictions on competitive bidding were imposed. It is not necessary for us to decide the case on any such theory because, considering the three objections above specified in their cumulative effect, we are satisfied that the proceedings are improper and the contract invalid.
By compelling bids on a combination basis, that is, that the contractor furnish all labor and material called for by the improvement, available bidders were necessarily restricted. The added requirement that the contractor accept the bonds, all of them, as the payment for the contract price, added further restrictions. Under such a setup, it was then necessary to require the contractor to advance to the city $8,000 to cover engineering, legal, capital, supplies, incidental and other expenses. On such a basis, there was further discrimination in favor of a limited class of bidders. The bidder would have to be financially able to build the project and also advance the city $8,000. The bonds were to be accepted at par with accrued interest in strict compliance with the statute, so that the bidder had to be financially able to carry the bonds for a reasonable time at least, should the market be unfavorable. We think that the situation, as a whole, tended too much to favor monopoly, deny equal opportunity of bidding, restrict competitive bidding, and add unnecessary burdens upon those who, in the last analysis, will be required to pay for this public improvement.
In the case of Miller v. City of Des Moines, 143 Iowa 409, 420, 122 N.W. 226, 230, 23 L.R.A., N.S., 815, 21 Ann. Cas. 207, we state:
"Experience has shown that the interests of the taxpayers are best conserved by offering contracts for public work to the competition of all persons able and willing to perform it. When the opportunity to compete is fairly and openly offered, and *Page 14
contracts are fairly awarded, there is ordinarily no room for official or private graft at public expense; but just in proportion as competition is restricted, and the award is hedged about with express or implied conditions by which a favored person or a favored class is insured a preference over others of equal ability and capacity, public rights are imperiled and public interests are sacrificed. Such discrimination tends to monopoly, and involves a denial of the equality of right and of opportunity which lies at the foundation of republican institutions."
The purpose for which competitive bidding is required was not accomplished by the procedure here followed. We are, therefore, of the opinion and hold that the objections made by appellants in this regard have merit. On this proposition and this alone, the trial court erred. Accordingly, the decree must be and it is reversed and the cause is remanded with instructions that the injunction prayed for by appellants issue. In the event either of the parties so desire, upon proper application being made to this court, decree will be entered here. — Reversed.
HAMILTON, C.J., and STIGER, BLISS, HALE, and OLIVER, JJ., concur.
RICHARDS, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436103/ | The plaintiff-appellant, Claud M. Smith, an attorney at law, was employed by Cherokee county to assist the county attorney in the prosecution of certain criminal cases then pending in that county. Accordingly, the appellant rendered legal services in assisting the county attorney in the prosecution of those cases. *Page 476
Thereafter, on or about September 21, 1933, the appellant filed with the county auditor of Cherokee county his itemized claim for the legal services rendered. This claim totaled $675.
After a full and complete consideration and study, the supervisors of Cherokee county, Iowa, allowed the claim in part and rejected it in part by passing the following resolution: "Moved and carried that the claim of Claud M. Smith (the appellant) of $675.00, assisting the county attorney, be allowed at $50.00 to be paid out of the county fund." Whereupon, the appellant received a county warrant for the $50 and cashed the same, or duly assigned it to another who did cash it.
Soon thereafter the appellant commenced the present suit against the county for the rejected balance of the claim. In defense of the suit, the county pleaded an accord and satisfaction. A trial was had upon that theory, and, at the close of all the testimony, the district court sustained the county's motion for a directed verdict, based upon such theory. From the judgment then entered, the appellant appeals.
There is, in fact, but one question to be determined upon this appeal, namely, whether the appellant's claim here asserted is barred by an accord and satisfaction. Although a complaint is made by the appellant because one, rather than another, of two answers was filed, yet that is a matter about which the appellant under the circumstances cannot legally complain. The appellee county had a right to determine under what answer it should defend. So, as before indicated, the only remaining question has to do with the accord and satisfaction.
Section 5124 of the 1931 Code provides:
"All unliquidated claims against counties * * * shall, before being audited or paid, be so itemized as to clearly show the basis of any such claim and whether for * * * services rendered [the county], or upon some other account, and shall be duly verified by the affidavit of the claimant, filed with the county auditor for presentation to the board of supervisors; and no action shall be brought against any county upon any such claim until the same has been so filed and payment thereof refused or neglected." (Italics supplied.)
It is important to note at the beginning of this discussion that the claim of Mr. Smith filed against the county was not *Page 477
liquidated. Moreover, it is likewise important to understand that no specific item of the claim was allowed. In other words, the board of supervisors did not allow certain items of the claim on the theory that those items were liquidated or just, and disallow other items thereof considered by them to be unliquidated or unjust. No specific part of the claim was allowed. On the other hand, the board considered the claim as an entirely unliquidated demand, and allowed generally thereon the sum of $50. Necessarily, under the circumstances, the remaining portion of the claim was disallowed. If the claim when filed were liquidated, the allowance of part thereof by the board and the acceptance of such partial allowance by the appellant would not amount to an accord and satisfaction. Sanford v. Lee County,49 Iowa 148; Resner v. Carroll County, 126 Iowa 423, 102 N.W. 148; Broyles v. Mahaska County, 213 Iowa 345, local citation, 351, 239 N.W. 1. See, also, Barr v. Clinton Bridge Works, 179 Iowa 702, local citation 709, 161 N.W. 695; Clark v. Clark, 197 Iowa 257, local citation, 262, 196 N.W. 1011; Walston v. F.D. Calkins Co.,119 Iowa 150, 93 N.W. 49.
Likewise, "if the claim should include some items about which there was no dispute between the parties, and others that were denied, and the former should be allowed and the latter rejected," there would be no reason "for holding that * * * acceptance of the amount which was not at all disputed should bar (the claimant's) right of action for the items which were denied and disallowed." Wilson v. Palo Alto County, 65 Iowa 18, local citation, 24, 21 N.W. 175; Fulton v. Monona County, 47 Iowa 622. Under the last hypothesis, the claimant would not know, while accepting payment of the undisputed claim, that by rejecting the disputed portion thereof the board intended to offer such undisputed portion as a satisfaction of the entire claim. See cases last above cited.
But when the claim is entirely unliquidated and no part thereof admitted as just, the board of supervisors, when allowing a certain per cent of the whole amount claimed, is presumed by such allowance to offer the claimant a liquidated sum in full accord and satisfaction of the original claim. By thus accepting the liquidated sum allowed by the board, the claimant satifies the original unliquidated obligation in full. Board of Com'rs of Wapello County v. Sinnaman, 1 G. Green 413; Brick v. Plymouth County, 63 Iowa 462, *Page 478
19 N.W. 304. See, also, Wilson v. Palo Alto County (65 Iowa 18, local citation, 23, 24, 21 N.W. 175), supra.
For the purpose of elucidation at this point, we set forth here a quotation from the Wilson case, reading on page 24 of 65 Iowa, 21 N.W. 175, 177:
"If the board of supervisors, in passing upon a claim against the county, should allow a certain per cent of the whole amount claimed, and refuse to allow the remainder thereof, they would thereby say to the claimant, in effect, that his claim as made by him was regarded as unjust or invalid, but that they were willing to pay the amount allowed in settlement or compromise of it; and if, with full knowledge of the action which had been taken on his claim, the claimant should, without objection, accept the amount allowed, this should be regarded as an acceptance by him of the terms of compromise offered, and he ought to be precluded from maintaining an action for the portion disallowed."
Again we said in Brick v. Plymouth County (63 Iowa 462), supra, reading on page 463, 19 N.W. 304:
"It is claimed by counsel for appellant that the acceptance of the allowance made by the board of supervisors is a bar to an action for the balance of the bill which was rejected by the board. The evidence shows that the board of supervisors investigated the claim, allowed a part of it, and rejected the balance upon what appears to us to be good and sufficient grounds. There is no pretense that the plaintiff, when he received the amount allowed him, did not know that the balance had been rejected. * * * We think that under the circumstances the plaintiff was not entitled to recover. Wapello County v. Sinnaman, 1 G. Green 413. That was a case where a claim was presented against the county, and part of it was allowed and the balance rejected. The court said: `If the plaintiff in this case presented his claim for allowance, and it was in part allowed by the board, and he accepted the amount thus allowed, he should not be permitted to afterwards sue for the balance. The acceptance of the part allowed should be considered satisfaction for the whole.'"
There is no doubt in the case at bar that the appellant fully understood that his claim, except for the $50 allowed by the board in full satisfaction thereof, was rejected. Consequently, when the *Page 479
appellant accepted the $50, he did so with full understanding of the facts and circumstances. At the time of thus accepting the $50, the appellant under the circumstances knew that the county was offering the sum allowed in full satisfaction of the entire unliquidated claim. Perhaps the appellant complained to the auditor about the action of the board of supervisors, but he did not enter into an express or implied agreement with the board that he could accept the $50 on account and sue for the unliquidated balance. The appellant, therefore, is bound by his action in accepting the amount allowed by the county supervisors under the circumstances. His conduct in thus accepting the $50 amounted to a satisfaction of the entire claim. If, under the circumstances, the appellant desired to sue the county for any part of the claim, he should have rejected the $50 allowed. See cases above cited.
Wherefore, the judgment of the district court must be, and hereby is, affirmed. — Affirmed.
MITCHELL, C.J., and EVANS, STEVENS, ANDERSON, KINTZINGER, ALBERT, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436105/ | * [Opinion, at time of filing, was ordered by the Court not to be published in the official reports. It is here published with the permission of the court.]
This action involves a claim against the estate of Mary A. Atwood for a balance of $2,187.20 for services rendered decedent during her lifetime. The petition alleges both an oral and a written contract. Under and by virtue thereof plaintiff states that she furnished board, room, and personal services to Mrs. Atwood from the first day of September, 1921, to the eleventh day of September, 1924, for which services, under the terms of the pleaded oral contract, and as evidenced by a later written agreement, she was to receive the sum of $30 per week. The defendant administrator and certain heirs of Mrs. Atwood answered by a general denial and specifically deny that the services furnished were reasonably worth the sum charged by the claimant, and as an affirmative defense state that said claim has been paid in full.
It appears from the evidence that one J.W. Beggs was appointed the guardian of the property of Mary A. Atwood on September 1, 1921, and that he continued to act for her as such guardian until her death. Thereupon and prior to the commencement of this action the final report of J.W. Beggs, as guardian, was filed and duly approved by the probate court of Monona county, Iowa, and the guardian was discharged.
Briefly stated, the question for decision is, May a person of normal mind, although under legal guardianship, either by herself or acting jointly with her guardian, make an enforceable contract for necessaries so as to bind her and her estate; said contract, though fully executed, never having been approved by the probate court having jurisdiction over the guardianship? Stating the question from the viewpoint of the appellant herein, Is the plaintiff (claimant against the estate of the deceased ward), under such circumstances, compelled to ignore the terms of the *Page 1390
unapproved contract and recover, if at all, on the theory of quantum meruit?
The evidence shows, by a fair preponderance, that, at the time of the appointment of the guardian, Mrs. Atwood was suffering from physical disabilities, but that her mental condition was normal. The petition for appointment was signed and sworn to by Mrs. Atwood. The order of appointment is not set forth in the record, but the petition for appointment is. Mrs. Atwood alleged in her sworn petition that she was "sound in mind, but unable to get around and transact her business without great hardship to her; that she had rent to collect, taxes to pay, interest to collect, and expenses to pay, and she deems a legally appointed guardian of her property to be the proper and best thing for her," and requested the appointment of J.W. Beggs, cashier of the First National Bank of Whiting, Iowa, as such guardian "to act in her stead and to look after her property and to do everything that she could legally do herself." It may be further stated that the said order of appointment has never been questioned or sought to be impeached by any one.
Although the order of appointment, under the provisions of section 3219, Code 1897 (under which the order was entered), may be viewed as improvident and inadvertently entered, it must be considered at this time as a verity. It may be noted that chapter 5, of which section 3219, Code 1897, was a part, has since been amended. See section 12617, Code 1924. Under the then statutory provisions, the court did not have the authority to appoint a person, who, in legal effect, is a trustee or an agent with power of attorney to act for a person of normal mind, in the absence of any prayer or showing that the petition came within the purview of the definition of a person for whom a guardian could be appointed. The legal and logical effect of the appointment in the instant case made the guardian a trustee or agent of the ward to act for her with respect to her property and her property rights.
It is shown, without contradiction, that upon the entry of the order of appointment the ward, with the approval of the guardian, entered into an oral agreement with Bertha Dean, the claimant, for the care and lodging of Mrs. Atwood, and that on the 15th day of April, 1922, a memorandum, which is claimed to embody the terms of the oral agreement, was executed and *Page 1391
signed by Bertha Dean, party of the first part, and J.W. Beggs, legal guardian of Mary A. Atwood, party of the second part.
It may be observed at this point that neither the oral contract nor the later memorandum was authorized or presented to and approved by the probate court, although partial payments under the alleged contract were thereafter made to Bertha Dean by the guardian, which payments were approved by the probate court in reports filed by the instant guardian. In fact, payments in full would have been made by the guardian at the proper time had he possessed ready money belonging to the guardianship estate, and had he not felt that he was protecting his ward on the contract by retaining a portion in case it became necessary "to force Mrs. Dean to carry out her part of the agreement." He also testified upon this trial that the claim of Bertha Dean filed against the estate of Mary A. Atwood, deceased, would have been paid by him (as administrator of her estate), had it not been for the protest and resistance filed by the defendant heirs of Mary A. Atwood.
It therefore appears that the vitality of plaintiff's cause of action, as pleaded by her, is an express contract, and it cannot be questioned that, under the terms thereof, the claimant did respond to the actual necessaries of the ward for a period of three years.
Unquestionably, Mrs. Bertha Dean, appellee herein, had the right to sue for the reasonable value of all services performed by her on behalf of Mary A. Atwood. Did she have the right, under the circumstances, to base her claim in probate on the express contract, and, upon its denial by the administrator by reason of the protest of certain heirs, sue for recovery under the terms of said contract?
As pointed out, the appointment of the guardian was made purely because of her consent and by reason of her physical disability, not because of her mental incompetency. The contract in suit was for necessaries. The guardian testified:
"I made arrangements with Mrs. Dean for the care and lodging of Mrs. Atwood, as her guardian. It was the only arrangement Mrs. Atwood would listen to. I had several talks with them about the terms of this board and care. The terms agreed upon were satisfactory to both of them. We talked of the rates. I thought the rates a little high at the time, that the *Page 1392
estate might be exhausted before her death. Later, Mrs. Dean proposed to take care of her for $30 per week while her money lasted, and if she outlived the estate, to take care of her for her pension money of $30 per month."
The evidence is clear that the care of Mrs. Atwood was no small matter. She was about 80 years of age. She was suffering from physical ailments that required daily attention and personal care on the part of Mrs. Dean. It is not surprising that her own relatives, including her son Joseph, one of the resisting defendants in this case, did not enter upon the scene of action until after the death of Mary A. Atwood.
The trial court submitted this case to the jury on the theory of an express contract, and necessarily viewed the pleaded contract, if one was found to exist, as the basis of recovery, providing that the preponderance of the evidence disclosed that Bertha Dean fully performed on her part "all of the terms of said oral contract." The court also instructed, with respect to the memorandum of agreement signed by the claimant and the guardian, that it was admitted in evidence for the consideration of the jury in determining whether or not the writing embodied the terms and conditions of the oral agreement, but that the writing was not a valid, legal, and subsisting contract which would be binding upon the heirs at law of Mary A. Atwood, since it was not authorized or ratified by the probate court. This instruction was apparently given to meet the contention of the defendants that, although the plaintiff has a remedy, she could not invoke the
remedy suggested by her petition and on the theory adopted by the trial court. On this proposition we deem it unnecessary to express an opinion.
We now turn to the legal issues. It is the general rule that a person, who has been adjudicated incompetent, cannot, while under guardianship, execute a valid and binding contract. A person under guardianship is under the protection of the court.
In re Will of Fenton case, 97 Iowa 192, 66 N.W. 99, it is said:
"`We are of opinion that, as to most subjects, the decree of the probate court, so long as guardianship continues, is conclusive evidence of the disability of the ward, but that it is not conclusive as to all. For example, the ward, if, in fact, of *Page 1393
sufficient capacity, may make a will; for this is an act which the guardian cannot do for him.'"
See, also, In re Estate of Hanrahan, 182 Iowa 1242,166 N.W. 529.
The Iowa rule is that the contract of an incompetent is voidable, not void, and that the facts and circumstances of each particular case have a controlling influence thereon. See Behrens v. McKenzie, 23 Iowa 333, 92 Am. Dec. 428; Allen v. Berryhill,27 Iowa 534, 1 Am. Rep. 309; Abbott v. Creal et al., 56 Iowa 175,9 N.W. 115.
The foregoing cases, however, did not involve the question of guardianship. The case at bar does, but under facts and circumstances which fairly disclose that the ward was not mentally incompetent.
Elliott states the rule thus:
"It does not follow because one has been adjudged insane and is under guardianship that he cannot make a valid contract for necessaries. He can, at least, be held liable for the value of necessary services rendered or of material furnished, when they were, in fact, necessary." Elliott on Contracts, Vol. I, section 374.
In Stannard v. Burns' Adm'r, 63 Vt. 244, 22 A. 460, the rule is stated as follows:
"It does not necessarily follow, when there has been an adjudication by the probate court that a person is insane, that the insanity is of that character which disqualifies him from making a valid contract for necessaries."
In Reeves v. Hunter, 185 Iowa 958, 171 N.W. 567, we said:
"It is settled also that such a contract [not for necessaries] may be enforced, if fair and reasonable, and if both parties cannot be put in statu quo. * * * Such rule, however, has never been applied in this state to a case where the incompetent was under actual guardianship. Neither is any case cited to us from any other jurisdiction where the rule has been applied to an incompetent under guardianship, except, possibly, where a question of necessaries is involved."
The instant appeal does not involve the question of restoring *Page 1394
the status quo of the parties. The contract in controversy was fully executed. That is to say, the agreed services were fully performed on the part of the claimant, as pleaded by her, but not fully paid for by the recipient of the services, although full payment would have been made except for the objections of certain heirs at law of the decedent ward.
The salient fact, however, is that the ward, although under an unchallenged and unimpeached guardianship, was mentally competent. It is true that a guardian serves in the discharge of his duties as the agency of the court, and the mere fact that the claim of appellee was not settled by the guardian or confirmed by the probate court before the guardianship was terminated by the death of the ward cannot serve to deprive the plaintiff from enforcing same, if legitimate, against the estate of the deceased in the hands of her administrator. Masters, Executor, v. Jones et al., 158 Ind. 647, 64 N.E. 213.
The trial court was correct in holding that a guardian cannot make a valid contract for his ward without the approval of the probate court, and that the direction or authorization of the court must precede the act of the guardian (Slusher v. Hammond,94 Iowa 512, 63 N.W. 185) or be subsequently ratified by the court.
It was a recognition that the probate court had jurisdiction of the estate of the ward. The pleaded memorandum of agreement was, at least, probative. It was admissible on the question of the good faith of the plaintiff in rendering the services which must be viewed as necessaries, and also as evidence that her acting guardian thought the same to be necessary, as well as tending to prove that a contract was made for said services between the ward and the claimant herein.
The record discloses that this is a meritorious case, and that the claim is just. It may also be observed that the claim is in probate and was heard before the probate court, and that no pleadings were necessary. The court was not precluded from submitting the cause on any theory which found substantial support on the record facts. We conclude that, under the pleadings and the facts, the theory adopted by the court was correct.
The judgment entered on the verdict is affirmed.
EVANS, C.J., and ALBERT and MORLING, JJ., concur.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436106/ | The Washington Loan Trust Company, organized and incorporated under the laws of this state for the purpose of engaging in the business of issuing and selling mortgage bonds, debentures and other forms of obligations secured by real estate first mortgages and other securities, on or about October 5th, 1931, became insolvent, and the superintendent of banking was appointed receiver by the district court of Washington county to take charge of its assets and affairs. *Page 886
The controversy now before us is twofold in character and, on the one hand, is between the appellant trustees and the appellee receiver, and, on the other, between said trustees and George W. Griffith, executor, intervener and cross-appellant, and the receiver. The issues and propositions presented for review and decision will be more readily understood if the statement thereof is preceded by a somewhat extended recital of the material facts which are stipulated by the parties or established without dispute in the evidence.
For the purpose of conforming the plan and method of doing business to the by-laws of the company which provide "Mortgage bonds or debentures, to be secured by an actual transfer of real estate securities for the benefit and protection of purchasers, such securities to be at least equal in amount to the par value of such bonds or debentures and to be first liens upon real estate, worth at least twice the amount loaned thereon, may be issued by the Company and under its seal. The said mortgage bonds or debentures shall be certified by trustees to whom such mortgage securities are transferred," — and to the articles of incorporation and the laws of this state, a trust agreement was on August 1st, 1912, entered into between the company and three parties designated as trustees. The material portions of this agreement are as follows:
"That the company does hereby constitute and appoint said D.A. Boyer, W.A. Cook and J.M. Bratten as Trustees, for the benefit and protection of all purchasers and holders of the mortgage bonds or debentures issued or to be issued by said Company, to receive, hold and administer all real estate mortgages, liens and other securities which will hereafter be transferred to said Trustees by said Company for such purposes, and as herein provided. * * *
"That the said mortgage bonds or debentures shall contain or have indorsed thereon a certificate to be made and signed by said Trustees or their successors, reciting in substance that at date of certificate they hold for the benefit and protection of the owners and holders of said bonds and all other bonds issued by said Company and bearing their certificate, real estate securities which are first liens upon real estate valued at not less than twice the par value of such securities, and that the securities so *Page 887
held are at least equal in amount to the entire sum of bonds by them certified and then outstanding; and such securities shall be transferred to said Trustees and their certificate indorsed upon said bonds before any of the same are issued or sold hereunder.
"That whenever the Company shall produce and surrender to said Trustees for cancellation of their certificate, any certified mortgage bond or debenture, said Trustees upon request of said Company shall return to it a proportionate share of the securities by them held in trust, whereupon the bond or debenture and certificate so surrendered shall be cancelled.
"That said Company shall be entitled to receive all interest or income upon securities transferred to said Trustees during such time as the interest on its bonds and debentures so certified shall be by said Company promptly and fully paid, but upon default made by said Company in the payment of its interest, continuing for thirty days, or if it make default in the payment of principal of said bonds or any of them, when due, then upon notice being given to them by the persons entitled to said payments in default, said Trustees shall collect all interest and income upon the securities held by them and shall at once proceed to collect or sell the securities transferred to them, or so much thereof as may be necessary, and apply the proceeds of such collections or sales in payment of said defaulted interest or principal of said bond or bonds. Therein said Trustees are hereby authorized in their own names, as Trustees, to do any and all things necessary in the collection or transfer of any of said securities including the bringing of suit or action thereon or any proceedings in court connected therewith, and the employment of agents and attorneys therein, and the making of any necessary indorsements, transfers, or instruments of conveyance connected therewith or required thereby. * * *
"That said Company may at any time withdraw any of the securities pledged or transferred upon substituting for them and transferring in trust, other securities of equal or greater value. The said Trustees shall safely keep and preserve all securities transferred to them in safe deposit boxes or value in Washington, Iowa."
Two forms of mortgage bonds or debentures were issued *Page 888
and sold by the company. These bonds were designated as "Series A" and "Series C." As it becomes material to our discussion, the character, and the distinction between, the respective series will be definitely pointed out.
[1] I. We will first dispose of the controversy between the trustees and the receiver. Following the appointment of the state superintendent of banking as receiver, the trustees voluntarily appeared in the district court with an application, in which, among other specific relief, they prayed that the court direct them in the administration of the securities in their possession, and that the receiver be required to appear and answer the application. Issues were thus joined upon the application and a hearing had. The issue tried and decided by the court was limited to the question as to who should liquidate the securities in the custody of the trustees. The receiver asked that they be immediately surrendered by the trustees to him to be administered in the receivership. The trustees prayed the court that they be permitted to retain and collect the same for the benefit of the bondholders. The court found in favor of the receiver and directed the trustees to deliver all of the securities and assets of the corporation in their possession to the receiver. `From this order the trustees have appealed. On this issue, the intervener joined with the receiver.
Series A bonds, with which we are at present concerned, recited that the payment thereof is secured by the actual transfer of real estate securities which are first liens upon real estate worth at least the par value of the securities, and that the same are held by the trustees whose certificate was attached to each bond for the benefit of the holder thereof.
There were at the time the company became insolvent outstanding mortgage bonds of Series A in the principal sum of $431,780, and on the same date, first real estate mortgages in the principal sum of $431,482.06 were held by and in the custody of the trustees as security therefor. It is, of course, conceded by all parties that the bonds are liabilities and the securities assets of the trust company. It was stipulated upon the trial that the value of the securities held by the trustees is less than the aggregate amount of Series A bonds outstanding. It is also conceded by the receiver that all sums realized on the securities in controversy must be applied to the payment of bonds until *Page 889
they have all been paid in full. It is manifest, therefore, that nothing will ever be available from this source for the payment of depositors or general unsecured creditors of the company. A careful reading of the portion of the by-laws of the company quoted above, the trust agreement and the provisions of the bonds will clearly show that the parties contemplated the transfer of the title to all of the securities to the trustees for the benefit of the holders of bonds. None of the securities were endorsed by the company, or, in terms, assigned to the trustees. They were kept by the trustees in the vault of the trust company but were accessible only to the trustee.
The principal point urged by the receiver is that the title to the securities did not pass to the trustees and that they held the same as agents only and that, upon the principal's becoming insolvent, the agency terminated. The contention as to the fact of an agency, it seems to us, is unsound. The trust agreement is binding upon both the trust company and the trustees. It would seem to be obvious that the trust company could at no time, while a going concern, have compelled the trustees to surrender to it securities in their possession upon any other terms than those provided for in the trust agreement. Securities could be withdrawn only by the substitution of others of equal value. The intent on the part of the company to in good faith and for the purpose of complying with its articles of incorporation, its by-laws and the laws of this state transfer such title to the trustees as was essential to the carrying out of the terms of the trust agreement would seem to be clear. Surely, the trustees and purchasers and holders of the bonds so understood the matter. Authorities on the point are not numerous, but the law appears to be well settled that a court of equity may not terminate or violate a trust agreement under which trustees have come into possession of securities of a trust company to be held by them for the benefit of bondholders, but is bound to observe and give full force and effect to the terms of such agreement. Brackett v. Middlesex Banking Co., 95 Atl. (Conn.) 12; Greenebaum v. General Forbes Hotel Co., 38 Fed. (2d Ser.) 96.
The receiver does not dispute the foregoing legal proposition, but, as stated above, takes the position that the failure of the company to vest an absolute title to the securities in the trustee is fatal to their contention. It is true that the securities *Page 890
were not transferred by endorsement or assignment. They were, however, delivered to the trustees. No one contends that the right of the receiver to the possession of the securities is any higher or greater than that of the corporation prior to its insolvency. The doctrine of agency relied upon by the receiver, if applied to the facts of this case, would at best serve only to transfer the liquidation of the securities from the trustees to the receiver. It is urged that if this were done, the closing up of the affairs of the company would be more economically accomplished than if the securities are left in the custody of the trustees. This is probably true, but we are confronted with the trust agreement and the whole course of conduct and dealing by the trust company, which the court is without power to terminate or ignore. The bondholders are not parties to this proceeding and their wishes are unknown. They have a right to have their obligations paid, so far as they are available for that purpose, out of the securities held by the trustees for the benefit thereof. The trust agreement in express terms authorizes the trustees to collect the interest and income upon the securities held by them and to prosecute actions in their own name for the collection thereof. Matters of expediency and economy must yield to the solemn binding agreement and undertaking of the parties. Whether the title of the trustees to the securities is absolute or qualified, it is for the purpose of carrying out the agreement and obligations of the company and is obviously sufficient therefor. On this branch of the case, we conclude that the order of the court directing the trustees to surrender the securities in their possession to the receiver cannot be sustained.
[2] II. Some time after the trust company began doing business, a department known as the Home-Builders Loan Department was created, and Series C bonds, which were promises to pay a fixed sum with interest to the holder thereof, were issued and sold.
At the time of the appointment of the receiver, there were bonds of this series outstanding in the principal sum of $55,461.70. In addition thereto, the Home-Builders Loan Department had received deposits in the sum of $235,013.47, which were obligations of the company. There were at the same time, in the hands of the trustees, securities for Series C bonds and deposits first farm mortgages aggregating $384,310.64. *Page 891
In the application filed by the trustees, it is alleged that on or about December 31, 1930, J.P. Wood and wife borrowed $1500.00 of the Home-Builders Loan Department, giving their note therefor and securing the payment thereof by a mortgage upon real estate. Monthly payments were made to the company on this loan and in addition thereto one payment of $800.00 was made. The makers of the note claimed that the balance due thereon was $591.33, which sum was tendered to the trustees and later by answer in this proceeding. The trustees prayed the direction and authority of the court in the matter.
At this juncture, George W. Griffith, executor of the estate of Ella M. Griffith, appeared and filed a cross-petition alleging that his decedent was the owner and holder of a Series A bond which was wholly unpaid, and denied the right of the makers of the $1500 note to have any sum credited on their note or offset against such obligation. The note was in the ordinary form of a promissory note and provided for interest at the rate of 7.8%. Attached thereto was a monthly payment agreement signed by such makers in which they agreed to pay into an account of the Home-Builders Loan Department $18.75 on the first day of each month until 120 such payments were made. The agreement further recited that "the said account, together with the dividends apportioned thereto by the trust company shall be applied to the payment of principal and interest of the foregoing note and shall constitute full payment thereof. Such application shall be made at maturity of the note or at such time prior to maturity as the trust company, its successors or assigns may determine." The monthly payments which were made by the makers of the note were credited in a small book, in the front part of which there is a printed contract, followed, in the rear, by a copy of the rules of the Home-Builders Loan Department. The printed contract recited that in consideration of the benefit to an investor in such department, he agreed to pay on the first day of each month a stipulated sum into a debenture account in accordance with the rules of the trust company covering such accounts. This is the account referred to in the monthly payment agreement.
At the conclusion of the trial, upon the issues joined in the petition of intervention, the court found that the amount tendered by the makers of the note was the balance due, and *Page 892
therefore, directed the receiver to accept the tender and to release the mortgage. The intervener has appealed from this finding and order of the court.
We are not now concerned with the intricacies of the debenture account, nor are we required to determine the controversy between the trustees and intervener, if any, as to proper credit to be made on the note. The sole question here presented is whether credit for any sum shall be allowed upon the note.
It is the theory of cross-appellant that the borrower must await the liquidation of the assets in the hands of the trustees, or the receiver if turned over to him, and to receive such portion as may be found to be due him from the debenture account. The contention, it seems to us, cannot be sustained. The makers of the note clearly never intended to become investors for any other purpose than the payment of their obligation. The monthly payment agreement provided in specific terms that the payments made would be applied to the discharge of the note. The rules of the department provided that "all loans with monthly payment agreements may be paid before maturity on January 1st or July 1st in any year on thirty days' written notice. In the case of such pre-payment, the borrower shall be charged with interest to date of payment and shall receive credit for the withdrawal value of his account" as provided in another paragraph of the rules. Woods, therefore, are entitled to have their contract and agreement carried out according to their terms and the intention of the parties. As stated above, the court does not undertake to compute the sum which, under the evidence, shall be credited upon the note. That question is not before us. Our holding, therefore, is limited to one proposition, namely, shall any sum be credited on such note? On this proposition, we agree with the district court. Any other conclusion would do violence to the contracts and intention of the parties. On this proposition, see Butson v. Savings Trust Co., 129 Iowa 370.
It follows that the order of the court directing the trustees to surrender the securities in their possession to the receiver is reversed and the order directing that certain designated sums *Page 893
be credited on the $1500 note and the tender of the balance due be accepted is affirmed. — Affirmed in part; reversed in part.
All justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436108/ | This is a suit in equity wherein the plaintiffs, appellants, asked the trial court to clear their title to certain real estate of a cloud which it is asserted was cast thereon by reason of what is alleged to be a void tax sale, based on an alleged void assessment of such real estate, and injunctive relief is specifically asked against the issuance of a tax deed and the court is also asked to cancel the tax certificate of purchase, and declare the assessment and tax sale void. The trial court refused the relief prayed for and dismissed plaintiffs' petition and rendered judgment against plaintiffs for costs, and plaintiffs have appealed.
Two propositions are set forth as sustaining appellants' contention: (1) That the assessment was made in tracts greater *Page 1377
than forty acres, in contravention of section 6962 of the 1931 Code of Iowa; (2) that the sale was void because the treasurer did not offer for sale "separately, each tract or parcel of real estate advertised," as provided by section 7252 of said Code. There is the further contention that as to a small portion thereof the description was too vague and indefinite to support a valid assessment or sale.
It is the contention of the appellees that the assessment was not invalid, but was at most only irregular; that section 6962 requiring real estate to be assessed in parcels of forty acres or less does not apply to land assessed to known owners; that plaintiffs' remedy was to go before the local board of review or the state board of assessment and review to correct any irregularities or errors in the assessment, and having failed to resort to such remedy provided by law, they have waived such irregularities and have no standing in a court of equity to correct such irregularities; and, furthermore, that the tax being valid, the alleged cloud upon the plaintiffs' title could be removed by the simple process of redeeming their property from tax sale by the payment of the taxes, penalties, and costs assessed against the same.
[1] If, as plaintiffs contend, the assessment is absolutely void, then there is no valid tax due, and plaintiffs are right in their contention, and in their demand for equitable relief. Hence, the first question to determine is the validity or invalidity of the assessment.
[2] In the first place, the real estate was subject to taxation. The method of assessment of property is found in section 7109, Code 1931, which provides that all property subject to taxation shall be valued at its actual value, which shall be entered opposite each item, and except as otherwise provided shall be assessed at 25 per cent of such actual value. Such assessed value shall be taken and considered as the taxable value of such property upon which the levy shall be made. Upon this assessed value the board of supervisors annually at its September meeting makes the levy. Section 7171, Code 1931. The assessment rolls were introduced in evidence and show that the property was assessed to appellants as owners. The land was situated in Secs. 1 and 2, Twp. 73 N., R. 44 W., in Mills county, Iowa. The land in each section was listed separately and so advertised and sold, and separate certificates of purchase issued. *Page 1378
The sales represented by the two certificates of purchase show sale for taxes for 1931 and 1932. The property was sold at scavenger sale under section 7255 of the Code, which provides that "each treasurer shall, on the day of the regular tax sale each year or any adjournment thereof, offer and sell at public sale, to the highest bidder, all real estate which remains liable to sale for delinquent taxes, and shall have previously been advertised and offered for two years or more and remained unsold for want of bidders, general notice of such sale being given at the same time and in the same manner as that given of the regular sale." This sale was held on January 10, 1935, at which time the land, described in the following manner, to wit:
W. 1/2 N.E. 1/4 Section 1 Township 73 Range 44 E. 1/2 N.W. 1/4 1 73 44 N.E. 1/4 S.W. 1/4 1 73 44 W. 1/2 N.W. 1/4 S.E. 1/4 1 73 44 E. pt. W. 1/2 N.W. 1/4 1 73 44 W. pt. E. 1/2 N.E. 1/4 1 73 44
was sold for the taxes for 1931, amounting to $542.50 and for 1932 amounting to $568.76, to Mills county for $175. The sale was en masse and a certificate of purchase issued to the county. Another tract in section 2 was similarly described and sold at the same time for the aggregate amount of taxes, interest, and costs, to the county for the sum of $25, and a separate certificate issued for this sale in like manner.
The assessment roll for 1931 shows each of the subdivisions of the land above described was listed at its net actual value and net taxable value, and these values were set opposite the description of each subdivision, the net taxable value being one-fourth of the net actual value. For example: W. 1/2 N.E. 1/4, Sec. 1, Twp. 73 N., R. 44 W.,
Actual value Taxable value 7505 1876
and so on with each subdivision. All these separate valuations were totaled. The millage rate of taxation was then applied to the total to find the amount of the tax. In other words, the millage rate of tax levy was not applied to each separate valuation of each subdivision and the amount of the tax carried out as to each said subdivision; but the valuation was there, and it can readily be seen that an owner desiring to redeem any one of these subdivision tracts could have the treasurer figure its pro *Page 1379
rata share of the total tax. Each subdivision had a fixed assessed valuation, and the rate of tax would be the same on each separate subdivision.
Appellants' contention is that each of these descriptions containing more than forty acres is wrongfully or illegally assessed and the assessment void; for example, the west half of the northeast quarter, which contains two forties, and which was assessed at a fixed valuation, is illegal and void for the reason that the tract contains more than forty acres, and is in violation of section 6962 of the Code. They make the same contention with reference to the entire assessment, and also contend that because the sale was not made of each separate forty-acre tract, the sale is also invalid. Of course, if appellants are correct in their contention that section 6962 applies to known owners, then it must be admitted that the assessment is invalid. However, as early as 1868 in the case of Corbin v. De Wolf, 25 Iowa 124, this court held that the provisions of the law now contained in section 6962 of the Code, requiring real estate to be listed in forty-acre tracts or less, did not apply to land assessed to known owners. See, also, Stewart v. Corbin, 25 Iowa 144; Eldridge v. Kuehl, 27 Iowa 160,170; Johnson v. Chase, 30 Iowa 308; Ware v. Thompson, 29 Iowa 65; Bulkley v. Callanan, 32 Iowa 461; Martin v. Cole, 38 Iowa 141; Smith v. Easton, 37 Iowa 584. While the law as it now appears in a separate section (6962) might be so understood, upon investigation it will be found that sections 6960, 6961, and 6962 were originally all in one section bearing the title "Unknown or Deceased Owners", (see section 1353, Code 1897) and this meaning is traceable in all the corresponding sections back to section 461, Code 1851. The law was separated into three distinct sections by the editors of the Code of 1924, but there is nothing to indicate that the legislature intended to change the meaning which this court had for many years applied to this provision of the statute.
[3] In the case of Dennis v. School District, 166 Iowa 744, at page 750, 148 N.W. 1007, 1009, this court said:
"It is a rule of construction 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." *Page 1380
See, also, In re Will of Evans, 193 Iowa 1240, 1244,188 N.W. 774; Eastwood v. Crane, 125 Iowa 707, 101 N.W. 481. The law in this state with reference to the construction of statutes that have been changed or divided into different sections by the code commissioners is in accordance with the general rule as stated in section 494, 59 C.J., page 897, as follows:
"Change in arrangement. In codifying or revising statutes, a mere rearrangement of the sections or parts of a statute or the placing of portions of what was originally a single section in separate sections does not change the purpose, operation, and effect thereof unless an intention to do so already appears."
See, also, State v. Gardiner, 205 Iowa 30, 215 N.W. 758. There is a statement cited by appellants from an opinion of Justice Evans in the case of Davison v. Board of Review, 209 Iowa 1332, at page 1339, 230 N.W. 304, which is apparently inconsistent with our view expressed herein, but evidently the eminent jurist had not made a careful analysis of the historical background as to the matter, and this precise question was not under consideration in that case.
[4] We are therefore satisfied the assessment is a valid and legal assessment, and as to any irregularities appearing therein the appellants' remedy would be before the local board of review (section 7132), or they still have a right to go before the state board of assessment and review and have the same corrected before paying their taxes. This would apply to the indefinite description and overlapping of assessments complained of. See section 6943-c27, subdivision 9a.
[5] Having therefore determined that the assessment of the tax is valid, what standing have the plaintiffs in a court of equity, seeking to enjoin the issuance of a deed upon a tax sale for delinquent taxes validly assessed upon their property, when they have not offered or tendered the taxes due, and have in no way attempted to make redemption of all or any portion of the lands sold? At the time this suit was commenced, and for aught that appears in this record, this remedy provided by statute by way of redemption was still open, and is still open at this time. At least on two previous occasions the land was offered for sale, presumably in a lawful manner, and under a valid assessment and proper notice of sale, before it was put up at scavenger sale and sold to the highest bidder. Plaintiffs therefore, undoubtedly, *Page 1381
had received actual ample notice, in addition to the notice which the statutory provisions themselves convey (see section 7251, Code 1931; Wrenn v. Berry, 214 Iowa 1191, 243 N.W. 375), that their taxes were due and delinquent. They now come into a court of equity to cancel a tax sale certificate, without making any showing whatever of doing equity, without making any showing whatever that they cannot remove the cloud, of which they complain, from their title by the simple method of redeeming their property from the tax sale. As to a small acreage of this property, the description is vague and indefinite, but the court would not be warranted in cancelling this entire assessment and granting injunctive relief because of this small item. It could readily have been corrected at any time by the plaintiffs, and can still be corrected by going before the state board of assessment and review.
In a very early case, Burlington M.R.R. Co. v. Spearman and City of Mt. Pleasant, 12 Iowa 112, this court, in discussing a similar proposition, used this language:
"It is further claimed that the property offered for sale by the said defendant, is too indefinitely described; that a sale under such notice might cloud, but could confer no title upon a purchaser at such sale.
"It is true that the description of the land in the advertisement by the said marshal is vague, and perhaps so much so that a sale thereunder could confer no title. We are unable to hold, however, that this is a sufficient reason for restraining the sale. If the taxes are justly due, the sale by the marshal, or a cloud upon the title made by such sale, could be easily avoided by a payment of the tax as levied thereon."
And in the case of Shaw v. Orr, 30 Iowa 355, the court said:
"The property assessed was described in the tax list as `Steam Mill in South Lansing.' The appellant claims that this description is insufficient. For aught that we know it was the proper description of the real estate as shown by the plat of the town. At all events, it is not denied that it was subject to taxation and was lawfully assessed with the tax charged against it. Under this state of facts plaintiff cannot be relieved from liability for want of a sufficient description of the property to enable a stranger to identify it." *Page 1382
See, also, as bearing generally on this question, the recent case of Witmer v. Polk County, 222 Iowa 1075, 270 N.W. 323.
[6] The law requires the assessor at the time of making the assessment to inform the person assessed in writing of the valuation, etc. See section 7111, Code 1931. He is presumed to have done his duty in this respect. If there is a cloud cast upon the plaintiffs' title by this assessment and tax sale, they need not resort to litigation in order to remove the cloud. A plain, speedy, and adequate remedy is provided by law by making a statutory redemption. Hanby v. Snyder, 212 Iowa 845,237 N.W. 339. They knew their taxes would become due in the regular course as provided by the statute, and no demand was necessary. Code section 7210. They should not be permitted to stand by with a duplicate of the assessment roll in their possession, conveying notice of this assessment and the manner and method by which the property is therein described and assessed, without having made any effort in any manner to change or correct the same by the various methods provided by the statutes of this state, and now come into a court of equity and complain of irregularities and vagueness in description and ask the court to declare the assessment entirely void. If, as they contend, the sale is void, and they desire to redeem from only a portion of the land sold, since the property is properly assessed and each tract valued separately, they could, without the consent of the tax sale certificate holder, ask the county auditor or treasurer to figure the tax on any separate tract and tender the amount of such tax with interest and penalty, and the county would be compelled to accept it. This would not be true if the sale were valid, for in such event the holder of the tax sale certificate would have to be consulted and give his consent to partial redemption.
We are satisfied that the trial court was right in refusing the plaintiffs equitable relief, and the decree of the trial court is accordingly affirmed. — Affirmed.
STIGER, C.J., and KINTZINGER, DONEGAN, and RICHARDS, JJ., concur.
MITCHELL, ANDERSON, SAGER, and MILLER, JJ., specially concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436111/ | This is a suit in equity involving exemption from taxation of certain shares of the capital stock of Central Fibre Products Co., Inc., a foreign corporation, held by individual stockholders, residents of Iowa. The corporation owned and operated a total of five strawboard mills in Kansas, Illinois, Indiana, and at Tama, Iowa, and manufactured strawboard, egg case fillers and flats. In addition thereto, its branches, at Tama and Waterloo, Iowa, engaged in the business of buying and reselling merchandise not of its own manufacture, consisting of wood egg cases, poultry shipping boxes, and other supplies for egg and poultry dealers. Taxes were paid by the corporation upon property at Tama, assessed as real estate at $111,402, personal property at Waterloo, assessed at $1,884, and personal property at Tama, assessed at $19,200. A substantial portion of this personalty was merchandise purchased from others for resale. Annual sales of its Iowa branches totaled about 1 1/2 million dollars of which 63 percent was goods of its own manufacture, and 37 percent was merchandise purchased from others for resale. Total outstanding capital stock of the company was valued at about 3 million dollars and the stock here in question belonging to residents of Iowa at about $310,000.
This stock was assessed for taxation in 1939. The stockholders filed complaints with the Board of Review of Waterloo, asserting it was exempt. The Board of Review overruled the complaints and confirmed the assessment and the stockholders appealed to the District Court, the appeals being consolidated by agreement. The decree of the district court cancelled and annulled said assessment and the Board of Review has appealed to this court. *Page 758
Appellees concede the capital stock of corporations owned by residents of the state is taxable except as specifically exempted. They rely upon section 6944, Code of Iowa, 1939, which provides in part:
"The following classes of property shall not be taxed: * * *
"(20) The shares of capital stock of * * *, corporations engaged in merchandising as defined in section 6971, domestic corporations engaged in manufacture as defined in section 6975, * * *."
According to the stipulated facts the business conducted by this foreign corporation in Iowa was both manufacturing and merchandising, under the definitions in said Code sections. It will be noted that if the corporation be regarded as engaged in manufacture, its stock was not exempted from taxation because the statute specifically limits exemption in such cases to stock of domestic corporations. One of the principal questions for determination is the proper classification of this corporation under the afore-mentioned exemption provisions. Appellant would classify it as a corporation engaged in manufacturing, appellees as one engaged in merchandising.
As concerns the question of exemption of shares of its stock from taxation, the foreign corporation cannot be both a manufacturer and a merchant. It is either one or the other for said purpose. See Appeal of the Iowa Pipe and Tile Co., 101 Iowa 170,70 N.W. 115. The statute does not provide for partial exemption. And those claiming the statutory exemption must show clearly that the property is exempt within the terms of the statute, all doubts being resolved against the exemption and in favor of taxation. Board of Directors v. Board of Supervisors,228 Iowa 544, 293 N.W. 38; Readlyn Hospital v. Hoth, 223 Iowa 341,272 N.W. 90.
No Iowa case directly in point has been called to our attention. But we think it proper and reasonable that shareholders of a corporation who contend the character of its operations are such as to exempt their stock from taxation must, in order to sustain such claim, show that the classification relied upon constitutes the main business of the corporation. A contrary *Page 759
rule would not accord with our holdings that such statutes should be strictly construed and would tend to broaden them unduly.
Here the factual situation is not complicated. The principal business of the corporation was the manufacturing conducted in its five plants. In connection with the disposition of its manufactured products the corporation, no doubt, found it advantageous to sell, at its Iowa branches, related products manufactured by others. Although the volume of such goods sold was substantial, this merchandising appears to have been subsidiary to its manufacturing business and in part incidental thereto. Resale of goods purchased from others amounted to only 37 percent of its Iowa Sales. This percentage would be much lower if all sales of goods manufactured in the various plants be taken into account. Incidentally, the assessed value of its personal property in Iowa was relatively small compared to its total assets. The assessed value of the personalty was also much less than that of the Iowa real estate which presumably included the plant and machinery at Tama. It is quite apparent the main business of the corporation was not merchandising.
Under the record we conclude the corporation should be classified, for the purposes of the capital stock tax exemption statute, as engaged in manufacture rather than in merchandising and, since it was a foreign corporation, that the shares of its stock owned by appellees were not exempted from taxation. This conclusion results in a reversal of the decree of the trial court and renders unnecessary the determination of appellant's additional contention that statute exempting from taxation shares of stock of corporations engaged in merchandising applies only to domestic corporations. — Reversed.
HALE, C.J., and GARFIELD, SAGER, BLISS, MILLER, and WENNERSTRUM, JJ., concur. *Page 760 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436114/ | This is an action in equity, to enjoin the enforcement of a judgment entered in the municipal court of the city of Marshalltown, against appellant, as garnishee, at the suit of the Iowa Adjustment Company v. Fred Mace, and transcripted to the district court of Marshall County.
The petition alleged that the judgment entered against appellant, as garnishee, by the municipal court is wholly void, because entered without jurisdiction of either the person or the subject-matter; that no notice was ever served 1. JUDGMENT: upon appellant; that it is a resident of equitable Washington County, Iowa; that the finding of the relief: court that appellant was indebted to the erroneous plaintiff in the attachment proceeding was finding erroneous; and that appellant was not, in fact, against in any respect indebted to it; and that the garnishee. finding and judgment of the court, based upon the alleged violation by appellant of the Bulk Sales Law, was without jurisdiction or authority. It prayed that appellee be restrained from proceeding in any way to enforce the payment of the judgment. Appellee filed a general equitable demurrer to the petition, and also demurred thereto upon the ground that the municipal court is a court of concurrent jurisdiction with the district court, and that the latter is without jurisdiction to review the *Page 80
proceedings of the municipal court or to declare the judgment void. The demurrer was sustained.
A copy of the judgment entry in the municipal court was attached to, and made a part of, appellant's petition. It is recited therein that appellant, as garnishee in Iowa Adjustment Company against Fred Mace, filed its answer as such garnishee; that the answers were controverted by the plaintiff in that action; and that the secretary and treasurer of appellant corporation appeared in person, and testified upon the trial of the issue tendered by the pleading controverting such answers; that the court found that appellant was indebted to the defendant in the sum of $500, and entered judgment against it as garnishee for $270.75, the amount of plaintiff's claim, together with costs and attorneys' fees. The judgment further, and in a separately numbered paragraph of its findings, recited that appellant became indebted to appellee because of the purchase of a stock of merchandise of Fred Mace in violation of the Bulk Sales Law, and found that it held such stock as receiver, under the provisions of Chapter 64, Acts of the Thirty-seventh General Assembly.
It is alleged that the finding and order of the court as to the stock of goods was without jurisdiction because no proper notice was served upon appellant. It is conceded in the argument of counsel for appellant that it appeared by its secretary and treasurer upon the trial of the issues tendered by the pleading controverting its answers as garnishee, and that he testified as a witness upon the trial.
It is, of course, elementary that one court cannot sit in review upon the judgment and proceedings of another court of concurrent jurisdiction; but it is also well established that the enforcement of a void judgment may be enjoined in a proper action for that purpose. Jamison v. Weaver, 84 Iowa 611; Worrall v.Chase Co., 144 Iowa 665; Blain v. Dean, 160 Iowa 708.
It is not entirely clear whether the judgment against the garnishee was entered upon the theory that an indebtedness arose out of the purchase and possession of the stock of merchandise, *Page 81
or whether it existed in some other form and 2. GARNISHMENT: arose on a different consideration; but it seems notice: to us that this is quite immaterial. There was a insufficien- finding that the garnishee was indebted to the cy cured by defendant in the garnishment proceeding. This appearance. finding may have been ever so erroneous, without in any way affecting the jurisdiction of the court to enter judgment. The appearance of appellant as garnishee, in resistance to the issues tendered by the pleading controverting its answers, gave the court jurisdiction of the person; and it was proper, upon a finding that appellant was indebted to the defendant, to enter judgment against it as garnishee. Section 3946, Code of 1897. Surely, the district court could not review the findings of the municipal court on a question of fact, and either reverse or cancel a judgment entered therein, unless such judgment was void upon the ground that the court was without jurisdiction of either the person or the subject-matter, to enter it. Here, the court clearly had jurisdiction of the garnishee and of the subject-matter: that is, the court had jurisdiction in that proceeding to determine, upon the issues joined on the answers of the garnishee, that it was indebted to the defendant. The court did not undertake to assume jurisdiction over the merchandise alleged to have been purchased by appellant in violation of the provisions of the Bulk Sales Law, but found as a fact that, under the statute, it held the same as a receiver or trustee for the benefit of creditors. The court did not assume to appoint a receiver to take charge of the stock, nor to require appellant to, in any way, account therefor. The finding of the court upon which judgment was entered was that appellant was indebted to the defendant in a sum greater than the amount for which judgment was asked.
It is true, as contended by appellant, that the demurrer admits the truth of all matters well pleaded; but the judgment entry, copy of which appellant attached to its petition, recites facts showing jurisdiction; and these facts are not sufficiently negatived by the allegations of the petition. We assume that the concessions made by counsel in argument were for the purpose of calling attention of the court to the true condition of the record.
We are of the opinion that the municipal court had jurisdiction *Page 82
of appellant, as garnishee, and that the judgment rendered against it, as such, is not a nullity; and, therefore, its enforcement cannot be enjoined. — Affirmed.
FAVILLE, C.J., and De GRAFF and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436115/ | On December 10, 1918, C.O. White executed a deed conveying his real estate to his brother, George E. White. The deed was drawn and acknowledged by E.M. Hertert at the office of Hertert
Hertert in Harlan, Iowa, and delivered to Mr. Hertert under the circumstances hereinafter set out.
On December 11, 1918, C.O. White made a will leaving all of his personal property to George E. White. George E. White outlived C.O. White and at the time of the trial the grantor and grantee in the deed and both members of the firm of Hertert and Hertert were deceased.
Plaintiffs, who are collateral heirs of C.O. White, allege they are the owners of the real estate described in the deed because it was never delivered to the grantee.
Defendants, beneficiaries under the will of George E. White, claim the deed operated as an escrow being deposited by the grantor with E.M. Hertert and to be delivered by him to the grantee on the death of the grantor.
[1] The grantor died on November 11, 1936. On November 12, 1936, the grantee secured possession of and recorded the duly acknowledged deed. Under the circumstances the burden of proving nondelivery was on plaintiffs. Heavner v. Kading, 209 Iowa 1271, 1275, 228 N.W. 311, 313.
[2] The only witness produced at the trial who had knowledge *Page 870
of the transaction between the grantor and Mr. Hertert was defendants' witness, Peter Heintz, an employee of Hertert
Hertert from 1908 to 1925. Mr. Heintz was the bookkeeper, wrote insurance policies, made real estate sales, took loan applications, and, in general, participated in the business of the firm with the exception of the law business. We will first set out the material portions of his testimony.
About noon on December 10, 1918, the grantor, C.O. White, came to the office of Hertert and Hertert and talked with E.M. Hertert about the execution of a deed to his real estate. Hertert told him to return to the office after lunch and he would have the deed prepared. When the grantor returned to the office he brought with him a small box labeled "C.O. White" identified in the record as Exhibit 2. After further conversation between White and Hertert, Mr. White signed the deed. The grantor then said, "I am going to put the deed in this box and leave it with you." Hertert told him that it would not be legal, that the deed would not be good, and that it would be necessary to deliver the deed to some third party. White replied, "Will you keep it here?" Hertert stated, "We will keep them for you if you want us to." Hertert then placed the deed in an envelope in the presence of White and the witness and wrote the following statement on the envelope: "C.O. White. Papers in this envelope to be delivered to George E. White after my death." Hertert then gave the sealed envelope to Heintz who placed it in the "will box" in the vault which was the box in which were placed papers that were to be delivered to third parties. The sealed envelope was in the will box when the witness left the firm of Hertert and Hertert in 1925. The will was placed in another envelope.
On cross-examination Mr. Heintz testified:
"Q. The purpose of putting the real estate in the deed was to save the additional probate expense? A. Yes, to save it from someone else, that is what Charlie told me specially.
"Q. He told you then that he was fixing so that after he was gone George would be sure and get the property? A. *Page 871
Yes, if he should die first for his protection so if Charlie died first, George would be sure and get the property. There was nothing said there about what would happen if George died first that I know of. I never heard Mr. Hertert say that he could come and get his deed back if George died first."
Defendants introduced in evidence the sealed envelope, Exhibit 10, and identified the writing on the envelope as the handwriting of Mr. Hertert. The testimony of Heintz effectively supported the contention of defendants that White delivered the deed to Hertert without any reservation of a right to recall it and with instructions to deliver it to the grantee on the death of the grantor.
Plaintiffs failed to sustain their burden of proving non-delivery which they attempted to establish through Attorney Russell F. Swift who testified substantially as follows: The witness was attorney for the administrator of the estate of John Hertert who died in August 1936. After his death his daughter remained in the office and looked after the insurance business and the witness looked after the law business. E.M. Hertert predeceased John Hertert. After the death of Charles White in November 1936, the grantee in the deed, George E. White, asked the witness to go with him to Hertert's office stating he wanted to get Charlie White's box. The key to the box was in the vault. The witness unlocked the private box of Charles White, Exhibit 2, and stated that he found the deed, will, and other papers in that box. He gave the deed to George E. White. With the consent of George White the witness took possession of the will for the purpose of commencing probate proceedings. There was a box in the vault containing wills but there were no deeds in it. The envelope, Exhibit 10, was not in Exhibit 2 or in the will box. The witness published a notice in a newspaper for owners to get their boxes and papers at the office of Hertert Hertert.
However, evidence introduced by defendants tended to show that Mr. Swift was mistaken in stating that he found *Page 872
the deed in Exhibit 2 in the vault of the office the day after the grantor died.
Hans Hansen, a resident of Harlan for 30 years, testified that he was acquainted with Charles and George White and Hertert
Hertert. After John Hertert's death he helped Catherine Hertert, the daughter of Mr. Hertert, in the office. Catherine and her mother gave the witness the box, Exhibit 2, and told him to take it to Charlie White who was ill at the Iowa Hotel. The witness delivered the box to George E. White at the hotel asking him to deliver the box to his brother Charles. George replied that he would do so and the witness saw him go upstairs with the box.
Mrs. Nelson, a nurse who cared for Mr. White three weeks prior to his death, identified Exhibit 2 and stated it was in Mr. White's room when she came to the hotel as his nurse and remained in the room on the dresser until after his death.
The delivery of Exhibit 2 to C.O. White was in accord with the published request of Mr. Swift to owners of boxes to remove them from the office.
Mr. Heintz testified he placed the deed in the will box in the vault in Hertert's office pursuant to the direction of Mr. Hertert the day the deed was executed and that it was in the box when he left in 1925. There is no evidence that the deed was removed from the will box. The presumption is that the situation remained unchanged and that Messrs. Hertert Hertert maintained the deed in the will box for the purpose of performing their duties under the escrow agreement. Mr. Swift testified that the envelope, Exhibit 10, was not in the will box or Exhibit 2 after the death of the grantor and that he never saw Exhibit 10 until the trial. However, defendants produced the envelope at the trial and it is a reasonable assumption that it was in one of the boxes and with the deed.
We are of the opinion that Exhibit 2 was not in the vault of the office of Hertert Hertert the day after the death of Charles White and that Mr. Swift obtained the deed from the will box and delivered it to the grantee. *Page 873
It is obvious that Mr. White intended to give all of his property, real and personal, to his brother. We conclude that when the grantor delivered the deed to Mr. Hertert with instructions to deliver it to grantee on the death of grantor, he parted with all control over the deed with the intention that title pass immediately to the grantee subject to his reserved life estate. It follows that there was a sufficient delivery. In Bohle v. Brooks, 225 Iowa 980, 985, 282 N.W. 351, 354, the court said:
"The effect of thus placing the instrument in the hands of a third person with instructions to deliver after the death of the grantor is to reserve a life estate in the grantor, with the title immediately passing to the grantee, but with his right to possession and enjoyment postponed until the grantor's death." See Goodman v. Andrews, 203 Iowa 979, 213 N.W. 605.
Plaintiffs introduced evidence showing that subsequent to the execution and delivery of the deed the grantor sold and mortgaged some of the property conveyed by the deed. Title having vested in White by delivery of the deed, subsequent conveyances by the grantor had no effect on the title of grantee.
Appellants contend the statement of Mr. Heintz that the grantor told him he was fixing it so if he died first "George would be sure to get the property" establishes an intention of the grantor to make a testamentary disposition rather than a conveyance of a present interest in the real estate. We do not so construe this testimony. The witness testified to statements the grantor made to him at the office of Hertert Hertert. This witness had stated on cross-examination that he was not present in the room where the grantor talked with Mr. Hertert about his purpose in executing the deed. The purport of the transaction between the grantor and Hertert is revealed by the notation on the envelope and the deposit of the deed in the will box. The most plaintiff can claim from the statement "If Charlie died first, George would be sure and get the property" is that the deed was to be delivered to the grantee on *Page 874
the contingency that he survive the grantor. The question here is not whether the grantee obtained a vested or contingent remainder, the question is whether or not there was an absolute delivery of the deed. The quoted testimony of the witness affects only the nature of the estate granted and does not bear on the question of the delivery of the deed.
Appellants further contend the evidence shows that the grantor reserved the right of recall and therefore, though the right was not exercised, there was no valid delivery, citing the recent case of Orris v. Whipple, 224 Iowa 1157, 280 N.W. 617, which holds that the deposit of a deed in the grantor's safety box where it remained under the control of the grantor until his death was not a sufficient delivery. The decision rests on the proposition that a retention of possession and control of the deed by the grantor is inconsistent with the delivery and an intention to convey a present interest in the property to the grantee. The case of Davis v. Brown College, 208 Iowa 480, 222 N.W. 858, recognized the rule that a delivery of a deed to a third person, with no reservation of the right to recall the deed to be delivered to the grantee upon the death of the grantor, constituted a good delivery, but further held that an unexercised right to recall would not defeat delivery. This decision had the support of some of our prior cases.
While the case of Orris v. Whipple, supra, pointed out that there was an escrow delivery in the Brown College case and overruled the latter case only in so far as it was in conflict with the opinion, the discussion and pronouncements of the court on the question of delivery in the Orris case are irreconcilable with the decision in the Brown College case. As there is no difference in principle between actual possession and control (safety box cases) and the right of possession and control under a reservation of the right to recall the deed in an escrow delivery, the decision in the Orris case is in conflict with the decision in the Brown College case and the ruling in the Brown College case that an unexercised right of recall of a deed operating as an escrow does not defeat delivery was, in effect, repudiated *Page 875
by the case of Orris v. Whipple, supra. However, appellants' contention cannot prevail because in the instant case we find the grantor parted with all dominion and control over the deed.
We concur in the trial court's view of the law and evidence and the case is affirmed. — Affirmed.
RICHARDS, C.J., and MITCHELL, HALE, SAGER, MILLER, OLIVER, and BLISS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436117/ | The plaintiff, a girl then eight years of age, while crossing southwardly along the east side of a street intersection, was struck by defendant's automobile, coming from the west along the south side of the intersection. Plaintiff's contention is that defendant failed to keep proper lookout, and did not have her car under control. Defendant's is that plaintiff suddenly emerged from behind an automobile which was traveling westwardly, and ran into her car. Plaintiff's claim is that she was struck by defendant's right fender, just as she was ready to step on the south curb. Defendant's is that the left fender struck the plaintiff when plaintiff was about six feet from the curb. Defendant's car swerved into the curb. She contends that she swerved it, to avoid striking the plaintiff.
When plaintiff arrived at the northeast corner of the intersection, a team and wagon and an automobile were passing west. Plaintiff testifies that she "looked in the street to see if there was anything else. Then I went across the street. I walked at an ordinary gait. I was just ready to step on the curb. I did not see the automobile that struck me. I was at the hospital when I next remember anything."
Her companion testifies:
"There was a car passing, going west. Then, immediately after that car passed, she started to go across. I stood there and watched her. The car passed near the middle of the street where the wagon was. Then it was that Rosley got hit. It happened in a very few seconds."
She further testifies that plaintiff walked "straight from one sidewalk to the other. While she was walking across the street, she was just ready to step onto the curb when" defendant's car hit her. This witness says that plaintiff walked slowly, at an ordinary gait. At that time, to the rear of the wagon previously mentioned, Drake was driving a team west. He says:
"I was probably 100 feet east of the line she took in crossing the street when she started to cross. I stopped my horses when the car hit her. I was probably 50 feet from the line she took to cross when I stopped my horses."
He says: *Page 1164
"The little girl walked across, and she was just ready to step on the curb when the car hit her. The car came in at a sort of an angle, and hit her just as she went to step on the curb, and where the sidewalk is. She came directly across from the other sidewalk to the one on the south side of the paving. * * * She walked along at an ordinary gait. * * * A car was coming from the west, and the car, as it came across the intersection, kind of wiggled around, — they call it shimmying, I guess. It headed right into the curb where the little girl was, just ready to step onto the sidewalk at the south and east corner."
He says, "I didn't take my eyes off of her from the time she stepped onto the street until she got across the street." Also, that the car, after it struck her, ran 100 to 105 feet; that the right fender and wheel struck the child. He says that one of the wheels of the automobile scraped the curb when they first hit her; that the body was rolled right along the curb between the wheels on the right side of the car and the curbing; that he examined the tracks at that time, and noticed them afterwards; that they were right along the curb. He thought there was a white tire mark on the curb where the tire hit it. Drake's companion, Fox, says:
"The first thing I saw, I looked under the car that she was driving, and saw the little girl tumbling in the mud, and I judge it drug her about 15 feet. As near as I could tell, it was right at the crosswalk when she was struck. I didn't see her until after I saw her whirling under the car."
He says that, when he saw the little girl's body whirling, it was "right along against the curb, as near as she could be." Defendant and her companion (a niece) testified, in substance, that, as they approached the intersection, they looked in each direction; that there was another car approaching from the east, and the first they saw of the plaintiff was when she came from behind the other car on the other side of the street. The niece says:
"This little girl came from behind the other car. She was traveling fast. She was running. She ran directly in front of my aunt's car. She was about two feet in front of the car when I first saw her."
Defendant did not see her until her companion spoke. Defendant *Page 1165
says that plaintiff "was just about two feet from me then. She was going south. I immediately swerved the car as quickly as possible to the curb, and tried to protect the child. * * * I shut off the power immediately after I saw the little girl run in front of my car. I steered the car up against the curb, and then ran along the curb. I couldn't say whether the car had struck the little girl before it struck the curb or not. The left-hand fender struck the little girl. * * * There was nothing that I could have done to prevent hitting the child, the way she came in front of me. * * * I did not hit the curb until I had shut off the `juice.' I was about three feet from the curb when I shut it off. * * * She must have been about six feet from the curb when she was struck." Defendant says that, when she swerved the car to the right, a child sitting with her fell on the two brakes, so that defendant could not get her foot on them, but tried to stop immediately. She does not testify that she had lost control of the car.
I. Defendant's first contention is that the plaintiff suddenly darted from behind the automobile passing to the west, and ran into that of the defendant, so that the defendant could not have avoided hitting her. She claims that there is no evidence of failure on her part to keep a proper lookout or to have her car under control. The question was for the jury.
II. The court charged that the law presumes a child of plaintiff's age incapable of contributory negligence, and that, before the jury would be warranted in finding 1. NEGLIGENCE: that plaintiff was negligent, defendant must contributory show that plaintiff failed to exercise the negligence: degree of care which children of a similar age minors: ordinarily use. Defendant urges that the burden presumption of proof was upon the plaintiff, and was not and burden changed by the presumption. Defendant says that of proof. the age of the child "might go to the question of the sufficiency of the evidence, to some extent, but it would not wholly change the burden of proof upon the defendant." The defendant's contention is that the burden of proof on the entire case rested throughout upon the plaintiff, and that the effect of the presumption arising from plaintiff's immature years was not to shift the burden of proof, but to call upon the defendant to proceed with her evidence. The court in previous paragraphs had instructed, in substance, that, in order to entitle plaintiff to *Page 1166
recover, it must be shown (among other things) that plaintiff did not contribute to the happening of the accident by any want of care upon her part, and that the burden of proof was upon plaintiff to establish such fact. The instructions as a whole were correct, and not open to the objection made to them. Brekkev. Rothermal, 196 Iowa 1288; Raskin v. City of Sioux City,198 Iowa 865; Hazlerigg v. Dobbins, 145 Iowa 495.
III. The accident happened at about 5:30 P.M. Plaintiff's mother was permitted to testify, over defendant's objection, that, about 10:30 P.M., she saw the wheel marks in the mud, and marks on the curb, which she described. Another 2. EVIDENCE: witness testified, over objection, that, the weight and next day, about 5:30, the cement was scraped off sufficiency: the curb; that the tracks approached the curb at remote an angle of about 40 degrees. It is undisputed examination. that there was mud lying along the curb, and that defendant ran through it and into the curb. The objection made is that the later examinations were too far removed from the accident in point of time to be of any value. The evidence was admissible. Its value was for the jury. Furthermore, it was without prejudice.
IV. The verdict was for $1,500. The value of the physician's services was $200 or $300. The hospital bill was $96.70. Plaintiff sustained fractures of two bones of 3. NEW TRIAL: her leg and ankle. She was in the hospital three non- weeks. She was unable to get about for eight excessive weeks. She was kept out of school for five verdict: months. At the time of the trial, she was $1,500 for wearing an extra piece of sole leather on her personal shoe, prescribed by the doctor "to make her walk injury. straight" and to prevent further curvature of the leg. She was still suffering pain intermittently. She was entitled to compensation for her pain. The verdict cannot be held to be excessive. — Affirmed.
EVANS, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur. *Page 1167 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436118/ | Mary H. Peters was the owner of a tract of land lying between Forty-first and Forty-second Streets and Forest Avenue and University Avenue in the city of Des Moines. In 1912, she platted this tract of land into 48 lots. In the same year, or shortly thereafter, she made a contract with the plaintiffs herein to sell to them Lot 2 in said plat, and later said lot was deeded to the plaintiffs. This contract and deed had *Page 261
identical provisions as to certain building restrictions, to which reference will hereafter be made. Later, and shortly before the commencement of this action, Mary H. Peters deeded to defendant J. Paul Neal, two or three lots in said addition. While the deed to Neal is not set out, it seems to be conceded by all parties concerned that the building restrictions referred to were not contained in this deed. The evidence satisfactorily shows that Neal is about to construct a store building or flat on the property so purchased by him. It is to be noted, in passing, that neither of the defendants introduced any testimony in this case.
The building restrictions in the aforesaid deed of plaintiffs and the contract with Mary H. Peters are quite extensive; but, so far as we are concerned with them, summarized, they provide that the grantee is bound to use the property conveyed for residence purposes exclusively until the first day of January, 1932, and for no other purpose whatsoever. It marks out the distance from streets within which building of all kinds is prohibited, and the minimum cost for the residences to be built, and states that no store, apartment house, or flat is to be erected, and gives to the vendor and to every purchaser of any other lot or portion of a lot of said plat the right to enforce these restrictions against the vendee in the deed, but does not, in terms, give the vendee the right to enforce these same restrictions against the purchaser of other lots in the plat, or against the vendor Mary H. Peters.
Of these 48 lots in this plat, 36 had been sold by Mary H. Peters prior to the time of conveyance to Neal. These 36 deeds were introduced in evidence, and, so far as material to this case, are identical, as far as the building restrictions are concerned.
While Neal, in substance, files a general denial herein, the evidence satisfactorily shows that he knew of and was advised that building restrictions existed on all this property before he bought it. This being so, whatever restrictions there were, will be binding on him, although omitted from his deed. (See authorities hereinafter cited.)
The evidence in the case shows that Mary H. Peters had stated and represented to the various witnesses that all lots in this plat were under building restrictions. A large number *Page 262
of advertisements in the newspapers of the city of Des Moines were offered in evidence, and objection was made thereto on the ground that there was no showing that Mary H. Peters inserted or authorized the insertion of said advertisements in the newspapers.
Several of the purchasers of lots in this plat testified that Mrs. Peters represented to them, before they bought their property, that the whole territory was to be restricted; and some of them testified to assertions made by her after they purchased their lots.
The questions here to be considered are narrowed down to three.
First, the objection to the testimony of the witnesses other 1. EVIDENCE: than the plaintiffs herein, as to parol as representations made by Mrs. Peters to them affecting before they bought their lots, on the ground writings: that, they having bought by written contract, non- parol evidence was not admissible to change or applicabi- vary the terms of the writing. lity of general rule.
It is to be remembered that none of these witnesses are parties to the contract and deed made by Mrs. Peters and the plaintiffs, and are strangers thereto. These witnesses are not in this court seeking to enforce their written contracts, whatever they were, with Mrs. Peters, and the parol-evidence rule does not apply to them. Their testimony was not introduced for the purpose of changing or varying their contracts, but to show at all times Mrs. Peters represented and stated that each and all of these lots were under building restrictions. For this purpose it is admissible, if for no other.
As to the objection to the plaintiffs' testifying to the representations made by Mrs. Peters at and 2. EVIDENCE: before the time they purchased said property, relevancy, and not incorporated into their contract and materiality, deed, the statements that she made being, in and com- substance, that all of the said lots in the said petency: territory were to be restricted, or a restricted surrounding district. This testimony was at least admissible circum- to show the surrounding conditions and stances. circumstances attending the making of the contract.
A purchaser of real property subject to building restrictions of which he had knowledge when he obtained title, is bound *Page 263
by such restrictions, even though they be not recited in his deed. Duester v. Alvin, 74 Or. 544 (145 P. 660).
The general appearance and character of the tract and the nature of the improvements thereon, ought to indicate to one interested, the presence of some character of building restrictions. Miles v. Clark, 44 Cal.App. 539 (187 P. 167);Tall-madge v. East River Bank, 26 N.Y. 105, 111.
Uniformity in the restrictions imposed upon the several lots in a residential district is one of the strongest proofs of the existence of a building scheme. Hooper v. Lottman (Texas Civ. App.), 171 S.W. 270.
Second, it is further urged that the advertisements in the 3. EVIDENCE: newspapers were not admissible because there is relevancy, no showing that Mrs. Peters inserted the same, competency, or that they were inserted in the newspapers and with her knowledge, consent, and authority. materiality: advertise- We are of the notion that these newspaper ment tending advertisements were not binding on Mrs. Peters, to prove but feel that they were admissible for what they general may be worth, in showing that it was publicly public known and understood that this plat was a knowledge. restricted district.
The third proposition is that, by reason of the statute of frauds of this state, and the failure of the 4. COVENANTS: plaintiffs' contract and deed to confer upon building them their right to enforce the building restric- restrictions against any other lot owner in this tions: platted territory, parol testimony is not omission admissible to show that Mrs. Peters stated and from deed: represented to them, at the time of their effect. purchase of this property, that all of the lots in the plat were to be similarly restricted. This seems to be the crux of this lawsuit.
It is quite apparent from this record that defendants gave to the vendor and to every other lot owner in this plat the right to enforce the building restrictions against the plaintiffs herein. It is equally true that such a deed made to each of the other purchasers of lots in this territory, gave the plaintiffs the right to demand that the purchaser should abide by the identical building restrictions that are contained in the plaintiffs' deed.
Leaving out of consideration the testimony of the plaintiffs herein, and also the advertisements in the newspapers, the court *Page 264
is abundantly satisfied that it was the intention of Mrs. Peters to lay out this subdivision under a general scheme or plan adopted and made public by her for the development of the property; that she contemplated a restriction as to the use to which the building lots were to be put, and to make of it wholly a residential district, under the restrictions set out in the plaintiffs' deed; and that she carried out this intention by placing the restrictions in the deeds of the 36 lots she had already disposed of. The evidence shows that she was of this notion and fully carried out the same during all the years since 1912 down to a very short time before she conveyed to Neal. The purchasers of lots in said territory seem all to have abided by these restrictions, and the territory had been built up into a very fine residential district. The fact that she may have later thought that she had discovered that she was not bound by these building restrictions, or that she made deed to Neal without including therein the restrictions, does not detract from the fact that she had and carried out such original plan or scheme to make this territory a restricted district.
In Johnson v. Robertson, 156 Iowa 64, 80, it is said:
"All that is necessary is a clear manifestation of the intention of a person who is the source of title, to subject one parcel of land to a restriction in its use for the benefit of another, whether that other belong at the time to himself or to third persons, and sufficient language to make that restriction perpetual."
After citing numerous texts, we further say:
"From these decisions it will be observed that these building restrictions or agreements, particularly where negative in character, create equitable easements, amenities, or servitudes, and that they may be enforced by anyone interested in the property, without regard to privity either of contract or estate, and no matter whether the covenant may be said to run with the land or not."
The leading case in the United States on this question of a general plan or building scheme is DeGray v. Monmouth Beach HouseClub Co., 50 N.J. Eq. 329, 340 (24 A. 388), the central thought of which is epitomized as follows:
"Where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and *Page 265
improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme and the covenant has been part of the subject-matter of his purchase."
"The deeds contained no similar covenant on the part of the grantors as to the use of the remaining lands, nor a covenant to insert the same covenant in deeds of other portions of the tract; but all deeds from the trustees do, in fact, contain the covenant." DeGray v. Monmouth Beach House Club Co., 50 N.J. Eq. 329, 334.
The rules applicable to the enforcement of the restrictive covenants under such a situation are stated in Hooper v. Lottman
(Texas Civ. App.), 171 S.W. 270.
Under the above citations, Neal, having bought with knowledge of building restrictions, is bound thereby, although they were not contained in his deed.
In Allen v. City of Detroit, 167 Mich. 464 (133 N.W. 317), it is said:
"The law is well settled that building restrictions of the character shown are in the nature of reciprocal, negative easements, and may be created upon a division and conveyance in severalty to different grantees, of an entire tract. That a portion of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them * * * if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, * * * by all in interest, it is binding and enforcible on all inter se. It goes with the land, and is equally binding on all purchasers with notice."
Just prior to the sale of these lots to the defendant Neal by *Page 266
Mrs. Peters, what was the status of this property already conveyed under the 36 deeds, and what were the rights of the respective parties therein? Having bought under the same restrictions, each party owning a lot, by reason of the reciprocal clauses in the respective deeds, could enforce these restrictions against any other lot owner in the district. It is equally true that Mrs. Peters, having reserved the same right to herself, could insist on compliance with these restrictions; and the common grantor, having brought about this condition by these restrictions in all these deeds, has conclusively established, by her own acts, that it was her intention, plan, and scheme to make of this territory a restricted district, not only for her own benefit, but for the benefit of lot owners in said district. This being so, she cannot, after ten or more years, gainsay the same; and the defendant Neal, having bought with the knowledge of restrictions on this property, even though he did not know the details thereof, is bound by such restrictions.
It will be noted from a perusal of cases herein cited, that, where there is a plan or scheme for a restricted residential district, the fundamental principle underlying such a plan is that the restrictions are for the mutual benefit of all property owners in the district, and, impliedly at least, each and all of the property owners in the district are entitled to the benefits of such a plan or scheme, regardless of whether the same is marked out in the deeds or not.
In the light of the rules of law herein laid down, we conclude that the statute of frauds does not apply, and that the ruling of the district court was correct; and the same is approved.
The district court judgment, among other provisions, contains the following:
"Mary H. Peters and J. Paul Neal, and each of them, be and they are hereby enjoined * * * from erecting any building upon the above tract nearer than 40 feet from the street running north and south, and nearer than 50 feet from University Avenue, or constructing any residence thereon costing less than $3,000, and enjoining and restraining the defendants and each of them from making any conveyance without incorporating therein the building restrictions above stated." *Page 267
To avoid any misunderstanding, these two clauses in the decree will be limited by adding thereto the words, "until the first day of January, 1932." With this modification, the ruling of the district court is affirmed. — Modified and affirmed.
FAVILLE, C.J., and EVANS, STEVENS, ARTHUR, and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436123/ | This is an action brought by the plaintiffs as assignees to recover on five promissory notes of $500 each and the foreclosure of a mortgage securing the same. Defendants Moore and J.A. Youngstrom were also brought in by cross-petition; and Moore asks judgment on three notes held by him as assignee aggregating $1,100 and the foreclosure of the mortgage which also secured them. Youngstrom denies the allegations of fraud in his answer but asks no judgment.
The notes and mortgage were originally executed to one J.A. Youngstrom who assigned and transferred them to plaintiffs for a *Page 479
valuable consideration, before their maturity. The instruments in question were part of a series of notes executed by the defendants Ganzhorns for the purchase of $14,200 worth of stock in the American Business College of Omaha, Nebraska. The capital stock of the college was $18,300 of which Mr. Youngstrom owned $13,600 and his wife $600, Mrs. Ganzhorn $3,000, and the balance by a Mrs. Bradford and various other small stockholders. The defendant Mrs. Ganzhorn and Mrs. Bradford purchased the $14,200 worth of stock owned by the Youngstroms for $8,000, giving their notes and $100 in cash in payment therefor. $4,000 of said notes were secured by the mortgage in question; the balance was unsecured.
The defendants contend that the notes and mortgage were procured by false and fraudulent representations as to the character and value of the business of the college.
The representations relied upon as constituting fraud are substantially as follows:
1. That the capital stock was all paid up in cash.
2. That the college had been earning 8 per cent interest, of which 6 per cent was paid in dividends and 2 per cent placed in the surplus.
3. That the principal assets of the college were $38,900 worth of student notes.
4. That the notes were good and would pay at least 75 per cent on the dollar, and were signed by financially responsible people, none of whom were minors.
5. That the notes were reasonably worth from $27,000 to $30,000.
The business college in question was taken over by the defendant and a Mrs. Bradford who purchased all of Mr. Youngstrom's stock in April, 1930.
Mrs. Ganzhorn testified that Mr. Youngstrom at the time she purchased the stock told her that the capital stock of $18,300 was paid up in cash; that the college had been earning 8 per cent interest from which they paid 6 per cent dividend and placed 2 per cent in the surplus; that the principal assets of the college were over $38,000 worth of student notes; that the notes were good and would pay at least 75 per cent on the dollar and were signed by financially responsible people none of whom were minors.
At the time Mrs. Ganzhorn and Mrs. Bradford purchased the stock they were already both stockholders and instructors in the *Page 480
college and taught bookkeeping therein. Mrs. Ganzhorn was connected with the college as a stockholder for three years during all of which time she owned $3,000 of its capital stock. Her stock was not all paid for and she still owed $1,500 thereon. Mrs. Bradford, her associate, had been a stockholder and teacher for five years prior to the time of taking over the college, and was connected with the college during all that time. Both were present in the college during all that time, attended all the stockholders' meetings, were experts in bookkeeping, had access to the books at all times and knew the enrollment, saw the students, and had equal means of information about the affairs of the college with Mr. Youngstrom.
It is the well-settled law in this state that where a person entering into a contract knows of the facts later complained of as fraud, or where they have equal opportunity of learning the matters so complained of, they cannot later be heard to say that they were ignorant thereof.
One of the necessary elements of "fraud" for which an action will lie, is that the false representations made were as to facts upon which defendant had a right to rely.
"A person to whom false representations are made is not entitled to relief because of them if he might readily have ascertained the truth by ordinary care and attention, and his failure to do so was the result of his own negligence. Hence, as a rule, in order that false representations may be ground for an action for deceit or for rescission of a contract entered into in reliance thereon, they must be such as are calculated to impose upon or deceive a person of ordinary prudence, and of such a character that a reasonably prudent person would have relied on them. In other words, where the means of knowledge are at hand and are equally available to both parties, and the subject matter is alike open to their inspection, if one of them does not avail himself of those means and opportunities, he will not be heard to say that he was deceived by the other's misrepresentations." 12 R.C.L. 371, section 123.
Bell v. Byerson, 11 Iowa 233, 77 Am. Dec. 142; Boddy v. Henry,113 Iowa 462, 85 N.W. 771, 53 L.R.A. 769; Miles F. Bixler Co. v. Argyros, 206 Iowa 1081, 221 N.W. 828; McCormack v. Molburg,43 Iowa 561; Dalhoff Const. Co. v. Block (C.C.A.) 157 F. 227, 17 L.R.A. (N.S.) 419; Crocker v. Manley, 164 Ill. 282, 45 N.E. 577, 56 Am. St. Rep. 196; Ripy v. Cronan, 131 Ky. 631, *Page 481 115 S.W. 791, 21 L.R.A. (N.S.) 305; Pigott v. Graham, 48 Wn. 348,93 P. 435, 14 L.R.A. (N.S.) 1176; Mabardy v. McHugh,202 Mass. 148, 88 N.E. 894, 23 L.R.A. (N.S.) 487, 132 Am. St. Rep. 484, 16 Ann. Cas. 500; Rothermel v. Phillips, 292 Pa. 371, 141 A. 241,61 A.L.R. 490; McCoun v. Nickell, 208 Ky. 20, 270 S.W. 457; Packard Machinery Co. v. Schweiger, 147 Wis. 67, 132 N.W. 606.
In Bell v. Byerson, 11 Iowa 233, on page 237, 77 Am. Dec. 142, we said:
"The fraud charged is, that the plaintiff made false statements to defendants as to the price of flour at Iowa City, by representing that he had come from certain flouring mills in that place, and that the price named in the contract was the market value in said city. It appears by the pleadings that the defendants were millers, engaged in manufacturing and selling flour; that they were doing business not far from said city, and where with reasonable diligence they could have ascertained the value of the commodity sold. The representations made, as thus alleged, were not of such a character as the defendants should have relied upon. Their means of knowledge were equal to those of the plaintiff, and where this is the case, the law will not interfere to protect the negligent."
In the case of Miles F. Bixler Co. v. Argyros, 206 Iowa 1081,221 N.W. 828, 829, we said:
"It is a settled rule in this state that, if the means of knowledge of the alleged fraud were equally open to both parties, the law will not interfere to protect one who is negligent."
In the case of Packard Mach. Co. v. Schweiger, 147 Wis. 67,132 N.W. 606, 607, the court said:
"Knowledge of the actual size of the exhibited bolt was readily open to the defendant by applying any simple and ordinary means of measuring it. Nor does the evidence tend to show that the defendant was hindered or prevented through artifice or otherwise from acquiring accurate knowledge of this fact. The conclusion is inevitable that the defendant failed to act with that care and prudence the situation demanded to inform himself on the subject of his purchase, and hence he cannot complain of having ordered a kind of bolt different from those he had theretofore used."
In the case of Rothermel v. Phillips, 292 Pa. 371, 141 A. 241,243, 61 A.L.R. 490, the court of Pennsylvania said: *Page 482
"The burden was upon plaintiff to show the making of a fraudulent representation of a condition, relied on to his injury. Here, the statement complained of was that the goods sold for $7,000 were worth $8,000. There was no evidence to show that defendants did not honestly believe this to be true, and, in the absence of such proof, the action of deceit falls. * * * If knowledge of the fact, claimed to have been misrepresented, is equally obtainable by either party on inquiry, and the buyer has been given full opportunity to determine the truth for himself, he cannot subsequently complain."
Pigott v. Graham, 48 Wn. 348, 93 P. 435, 438, 14 L.R.A. (N.S.) 1176, was a case in which a purchaser of corporate stock brought an action against the seller for fraudulent misrepresentations inducing him to enter into a certain contract. In this case the court says:
"Here it will be observed the parties were in the same kind of business, competitors in the printing business in the city of Seattle, both stockholders in the business, and stockholders and managers of their respective businesses. It was their knowledge of the business in all its details that prompted them to enter into this consolidation, so that money might be made thereby and expenses saved. The property was on hand, it was all in the city of Seattle, and it would have been but an act of the most common kind of prudence on the part of the appellant to have investigated the business and books of the concern, which he was practically buying. * * * Certainly there is no showing that he was prevented by any manipulation, fraudulent or otherwise, on the part of the Graham Company, from making such an examination."
In summing up that case the court says:
"If contracting parties were allowed, after making contracts and agreements with reference to business and property, and after discovering that their trade had not been a profitable one, to annul such contracts either by rescission or by actions for damages, it would render the business conditions of the country perilous and uncertain, make contracts unstable and unreliable, and keep the courts of the state busy in determining matters which ought to have been determined by the parties to the contract before they entered into the same."
Mrs. Ganzhorn and her partner, Mrs. Bradford, had been *Page 483
connected with the college for several years. They were stockholders and during that time they attended all of the stockholders meetings. They had access to all the books of the corporation, they were connected with the college, were expert bookkeepers and teaching bookkeeping in the college. As stockholders they must have known what dividends were authorized and what dividends paid during that time. They were familiar with the business, and with ordinary diligence could have examined the books of the college, and could have easily obtained full information of the matters complained of.
Mrs. Ganzhorn says that Mr. Youngstrom told her the stock had all been paid. In addition to the means of information available to her, she knew this was not a fact because she herself still owed $1,500 on her own stocks. She says he told her the principal assets consisted of student notes. She knew this was not a fact. She knew the furniture and fixtures, books, typewriters, and other equipment of a business college were there. The inventory showed books valued at $468; accounts receivable at $135; furniture and fixtures at $7,320; typewriters $2,200; athletic equipment at $1,200; advertising material at $423; prepaid insurance $46; deposits on lights $25. She knew all this property was there.
Defendants operated the college from April, 1930. Between April and October they took in a large amount of money. During that time Mrs. Ganzhorn and Mrs. Bradford collected about $8,000 or $9,000 on student notes and tuition. In November they sold $1,000 worth of newly issued stock at par receiving $1,000 in cash therefor. During that time they sold off practically all of the old equipment and typewriters; they installed new fixtures and typewriters at a great expense; raised Mrs. Ganzhorn's salary from $80 to $200 per month and Mrs. Bradford's to $300 per month; they moved into new and more expensive quarters, and so conducted the business that the college later went into bankruptcy. When they took over the business in April, the monthly expenses were about $900; by September the expenses under the new management increased to $7,000 in that month. To say that they could wreck the business and then ask to have the notes and mortgage given as consideration therefor canceled would be an utter disregard of the equitable maxim required of the defendant "that he who seeks equity must do equity."
The books of the college showed that in April there were something over $38,000 worth of notes receivable, of which about $11,000 were written off; notes amounting to about $28,000 were turned over *Page 484
to the defendant and her partner when they took over the business. This information must have been known or readily available to defendants.
The alleged representations that the notes were good and would pay at least 75 per cent on the dollar, and that they were reasonably worth from $27,000 to $30,000 were in the nature of an opinion upon which a claim of fraud cannot be based.
The statement that none of the notes were signed by minors was the statement of a fact known to or readily ascertainable by the defendants by the exercise of ordinary prudence. These matters were easily and readily ascertainable by defendants and readily obtainable by her. She knew this was a students college, and that a large number of the notes were student notes. She must have seen the notes when she bought them. If, as she says, they constituted the principal assets of the college, she must be held guilty of gross negligence in taking them over without looking at them. She was instructor and connected with the business for three years and knew that many of the students were minors.
The lower court found that the defendants failed to establish their defense of fraud. Upon the entire record we are disposed to acquiesce in the conclusion of the trial court that there was not sufficient evidence to establish the defense of fraud, and that the means of knowledge of the alleged fraudulent statement's were equally available to both parties herein. The defendants were therefore not warranted in relying upon the statements alleged to have been made. It is therefore our finding that the defense of fraud has not been established.
After a careful review of the entire record in this case, we are confident that the ruling of the lower court was correct and its judgment and decree are therefore hereby affirmed.
KINDIG, C.J., and STEVENS, ANDERSON, and MITCHELL, JJ, concur. *Page 485 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3181108/ | IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket 42772
IN THE MATTER OF THE )
DISTRIBUTION OF WATER TO WATER )
RIGHT NOS. 36-02551 & 36-07694 )
(RANGEN, INC.) IDWR DOCKET CM-DC- )
2011-004. )
)
RANGEN, INC., )
)
Petitioner-Appellant, )
v. )
)
THE IDAHO DEPARTMENT OF WATER )
RESOURCES, GARY SPACKMAN, in )
his capacity as Director of the Idaho )
Department of Water Resources, ) Boise, December 2015 Term
FREMONT- MADISON IRRIGATION )
DISTRICT, and THE CITY OF ) 2016 Opinion No. 21
POCATELLO, )
) Filed: February 29, 2016
Respondents-Respondents, )
) Stephen W. Kenyon, Clerk
and )
)
IDAHO GROUND WATER )
APPROPRIATORS, INC., A&B )
IRRIGATION DISTRICT, BURLEY )
IRRIGATION DISTRICT, MILNER )
IRRIGATION DISTRICT, NORTH SIDE )
CANAL COMPANY, TWIN FALLS CANAL )
COMPANY, AMERICAN FALLS )
RESERVOIR DISTRICT #2, and )
MINIDOKA IRRIGATION DISTRICT, )
)
Intervenors-Respondents. )
______________________________________
Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
Twin Falls County. Hon. Eric J. Wildman, District Judge.
The decision of the district court is affirmed.
Brody Law Office, PLLC, Rupert, Haemmerle Law Office, PLLC, Hailey, and
1
May, Browning and May, PLLC, Boise, for appellant Rangen, Inc. Robyn M.
Brody argued.
Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents
Idaho Department of Water Resources and Gary Spackman. Garrick L. Baxter
argued.
Racine Olson Nye Budge & Bailey, Chartered, Pocatello, for respondent Idaho
Ground Water Appropriators, Inc. Thomas J. Budge argued.
White & Jankowski LLP, Denver, and A. Dean Tranmer, Pocatello, for
respondent City of Pocatello. Mitra M. Pemberton argued.
Rigby, Andrus & Rigby Law, PLLC, Rexburg, for intervenor Fremont-Madison
Irrigation District.
Barker, Rosholt & Simpson, LLP, Twin Falls, for intervenors A&B Irrigation
District, Burley Irrigation District, Milner Irrigation District, North Side Canal
Company and Twin Falls Canal Company.
Fletcher Law Office, Burley, for intervenors American Falls Reservoir District #2
and Minidoka Irrigation District.
_____________________
J. JONES, Chief Justice
Appellant Rangen, Inc., initiated a contested case by filing a petition for a delivery call
before the Director of the Idaho Department of Water Resources (“IDWR”), alleging that junior
ground water pumping in the Eastern Snake Plains Aquifer (“ESPA”) was materially injuring its
water rights. Several parties intervened in the delivery call and, after extensive discovery and
communications, IDWR Director Gary Spackman (“Director”) presided over an evidentiary
hearing. The Director subsequently issued a final order and an order on reconsideration. In these
orders the Director granted Rangen a curtailment of certain junior priority ground water pumping
affecting Rangen’s water rights. The Director also interpreted the source and point of diversion
elements of Rangen’s water rights to have a scope smaller than Rangen’s actual historical use.
Rangen and intervenor Idaho Ground Water Appropriators, Inc. (“IGWA”) each filed
petitions for judicial review. The issues raised by IGWA in its petition for judicial review are not
at issue in the present proceeding. Rangen raised various issues related to the interpretation of its
water rights and the sufficiency of the evidence before the agency. Specifically, Rangen appealed
2
the Director’s determinations that Rangen may divert water only from the mouth of the Martin-
Curren Tunnel and only within the ten-acre tract listed on its water right partial decrees. Rangen
also appealed the Director’s adoption of an adverse expert’s analysis and the Director’s
conclusion that junior priority ground water users are using water efficiently and without waste.
The district court affirmed the Director’s orders with respect to each of the issues that are
on appeal before the Court in the present proceeding. Rangen appealed to this Court on
substantially the same issues with substantially the same arguments.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rangen’s Facilities and the Eastern Snake Plains Aquifer
Rangen owns and operates a fish research and propagation facility at the head of
Billingsley Creek in the Thousand Springs area near Hagerman, Idaho. The facility includes
concrete channels for fish rearing (“raceways”), a hatch house, ponds for fish rearing and
holding, and a greenhouse. East of the Rangen facility, water emanates from several springs on
talus slopes just below a canyon rim. Water also emanates from the Martin-Curren Tunnel,
commonly referred to as the Curren Tunnel. The Curren Tunnel is a large, excavated conduit
constructed high on the canyon rim that extends 300 feet into the canyon wall.
A concrete collection box referred to as the “Farmers’ Box,” located near the mouth of
the Curren Tunnel, collects water for delivery via pipelines to Rangen and holders of senior
priority irrigation water rights. Currently, only Rangen diverts from the Farmers’ Box, but senior
priority irrigation water right holders may call for delivery of water from the Curren Tunnel in
the future. Farther down the slope is a second concrete collection box referred to as the “Rangen
Box.” Rangen diverts water from the Farmers’ Box to the Rangen Box through two plastic tubes.
Water is then diverted from the Rangen Box through a steel pipe to raceways. Water can also be
spilled out the side of the Rangen Box and returned to the talus slope. Water from the talus slope
forms the headwaters of Billingsley Creek. The main diversion for the large raceways is
downstream from the talus slope and is commonly referred to as the “Bridge Diversion.” This
diversion collects and diverts spring flows from the talus slopes, including water spilled from the
Rangen Box.
Rangen holds five water rights for the Rangen facility which were decreed through the
Snake River Basin Adjudication (“SRBA”). Rangen’s petition for delivery call alleged injury
3
only to water rights nos. 36-02551 and 36-07694. Water right no. 36-02551 authorizes a
diversion of 48.54 cfs for fish propagation and has a priority date of July 13, 1962. Water right
no. 36-07694 authorizes a diversion of 26.0 cfs for fish propagation and has a priority date of
April 12, 1977. The source element for water rights nos. 36-02551 and 36-07694 is the Martin-
Curren Tunnel. The point of diversion element for these water rights is the ten-acre tract
identified as SESWNW T07S R14E S32.
The ESPA is the aquifer underlying the Eastern Snake Plain. The ESPA is about 170
miles long and 60 miles wide, and is defined as an area having a common ground water supply.
IDAPA 37.03.11.050. The ground water in the ESPA is hydraulically connected to the Snake
River and tributary springs, including the Thousand Springs area where the Curren Tunnel is
located. The ESPA is highly productive and is composed predominantly of fractured quaternary
basalt, which is generally characterized by high hydraulic conductivity. The amount of water that
discharges from the aquifer to hydraulically connected surface water sources is largely dependent
on ground water elevations and hydraulic conductance. From October 1980 through September
2008, average annual discharge from the ESPA exceeded average annual recharge by 270,000
acre-feet, which resulted in declining aquifer water levels and declining discharge to the Snake
River and tributary springs. Rangen claims that it is not receiving all of the water to which it is
entitled under its water rights because of junior ground water pumping in the ESPA.
B. Rangen’s Delivery Call
On December 13, 2011, Rangen, Inc. filed a petition for delivery call alleging that junior
priority ground water pumping in the ESPA was materially injuring its water rights and
requested that the Director distribute water in the ESPA and curtail junior priority pumping.
IGWA and a number of other parties intervened in the proceeding,1 while Pocatello and
Fremont-Madison Irrigation District were brought in as respondents.
Prior to the hearing on the delivery call, Rangen moved for partial summary judgment,
asking the Director to rule that the source of its water rights was not limited to the mouth of the
Martin-Curren Tunnel but instead extended to the greater spring complex supplying the facility.
Rangen also sought a ruling that it is entitled to divert water via the Bridge Diversion, despite the
fact that the structure is not within the decreed ten-acre tract. The Director ruled that Rangen is
1
A&B Irrigation District, American Falls Reservoir District #2, Burley Irrigation District, Milner Irrigation District,
Minidoka Irrigation District, North Side Canal Company and Twin Falls Canal Company (collectively the “Surface
Water Coalition”) also intervened in the proceeding.
4
not authorized to divert water outside the decreed ten-acre tract, but that material issues of fact
precluded summary judgment on whether Rangen’s water rights extended to the entire spring
complex.
The Director presided over an evidentiary hearing on Rangen’s delivery call, held from
May 1 through May 16, 2013. The Director issued an order on January 29, 2014, mandating
curtailment of ground water rights bearing priority dates after July 13, 1962, with points of
diversion located both within the area of common ground water supply and west of the Great
Rift.
C. The Curtailment Order
Rangen has measured the water flows through its facility since 1966. Since 1995, Rangen
has been required by IDWR to report flow measurements annually to the watermaster of its
water district. At the hearing before the Director, parties contesting the delivery call argued that
Rangen had historically under-measured its flows and that the United States Geological Survey
(“USGS”) flow measurements were more representative of actual water flows through the
Rangen facility. In his findings of fact, the Director compared Rangen’s measurements with the
USGS measurements and concluded that Rangen’s measurements were inaccurate and resulted
in a systematic underreporting of water flows. The Director relied on testimony by Greg
Sullivan, an expert witness retained by Pocatello, who estimated that the error in Rangen’s
measurements was 15.9%, based on a comparison with USGS measurements taken between
1980 and 2012.
However, the Director found that even when applying the 15.9% margin of error, the
spring flows in the area of the Curren Tunnel declined significantly from 1966 to 2012, with the
annual flow decreasing from 32.1 cfs in 1966 to 4.4 cfs in 2011. The Director concluded that
several factors contributed to the decline in water flow to the Rangen facility, including ground
water pumping in the ESPA. The Director found this to be true even though he also found that
testimony presented at the hearing showed that the junior-priority holders were using their
appropriated water efficiently and without waste.
The technical model the Director relied on in this matter, ESPAM 2.1, simulates the
effects of ground water pumping on spring flows throughout the region, including to springs
located within a specific model cell. The Rangen model cell includes both water discharging
from the Curren Tunnel and water discharging from the other springs within the same cell.
5
Rangen argued that although its partial decrees for water rights nos. 36-02551 and 36-07694 both
state that the source for the right is the Martin-Curren Tunnel, the source actually includes the
entire spring complex. The Director concluded that the source in the decree was limited to the
flow from the mouth of the Curren Tunnel. Additionally, the Director reiterated his conclusion
on summary judgment that, under the terms of the partial decrees, Rangen was not entitled to
divert water from the Bridge Diversion because it was not within the decreed point of diversion.
ESPAM 2.1 is not precise enough to differentiate between water flowing from the Curren
Tunnel and water flowing from the rest of the spring complex. Because the Director concluded
that Rangen’s water rights are limited to water diverted from the tunnel mouth, the Director
considered the historical relationship between the Curren Tunnel and the total spring complex
discharge to predict the portion of curtailed water that will accrue to the Curren Tunnel versus
the Rangen model cell as a whole. Pocatello’s expert witness Sullivan plotted data for measured
Curren Tunnel flows and total spring flows and developed a linear regression analysis. Sullivan
initially found that 75% of the curtailment benefits accruing to the model cell would accrue to
the Curren Tunnel. However, this analysis was based on Rangen’s measurements, which the
Director found were underreported by 15.9%. After accounting for this error, Sullivan’s revised
analysis showed that 63% of the curtailment benefits accruing to the model cell accrued to the
Curren Tunnel. The Director adopted Sullivan’s 63/37 regression analysis and concluded that
63% of the water that would accrue to the Rangen cell would accrue to the Curren Tunnel.
D. Proceedings on Judicial Review
IGWA, Rangen, and Pocatello sought reconsideration of the Director’s order. The
Director issued an Order on Reconsideration denying IGWA’s and the City of Pocatello’s
motions and granting in part and denying in part Rangen’s motion.
Rangen and IGWA filed petitions for judicial review of the Director’s order in Idaho’s
Fifth Judicial District. The district court granted motions to intervene filed by Pocatello, the
Fremont-Madison Irrigation District, and the Surface Water Coalition and the petitions were
consolidated. The district court affirmed the Director’s order with respect to the issues raised in
this appeal. Rangen timely appealed. The district court’s dispositions of other issues in this case
were appealed separately and are not further discussed in this opinion.
II.
ISSUES PRESENTED ON APPEAL
6
1. Whether the Director erred in concluding that Rangen is entitled to divert water only
from the mouth of the “Martin-Curren Tunnel” and only within the ten-acre tract
described in its partial decrees.
2. Whether there is substantial evidence to support the Director’s adoption of Sullivan’s
63/37 regression analysis.
3. Whether there is substantial evidence to support the Director’s conclusion that junior
priority ground water users are using water efficiently and without waste.
4. Whether any party is entitled to attorney fees on appeal.
III.
STANDARD OF REVIEW
In an appeal from a district court where the court was acting in its appellate capacity
under the Idaho Administrative Procedure Act (“IDAPA”), “we review the decision of the
district court to determine whether it correctly decided the issues presented to it.” Clear Springs
Foods v. Spackman, 150 Idaho 790, 797, 252 P.3d 71, 78 (2011). However, we review the
agency record independently of the district court’s decision. Spencer v. Kootenai Cnty., 145
Idaho 448, 452, 180 P.3d 487, 491 (2008). A reviewing court “defers to the agency’s findings of
fact unless they are clearly erroneous,” and “the agency’s factual determinations are binding on
the reviewing court, even when there is conflicting evidence before the agency, so long as the
determinations are supported by substantial competent evidence in the record.” A & B Irrigation
Dist. v. Idaho Dep’t of Water Res., 153 Idaho 500, 505–06, 284 P.3d 225, 230–31 (2012).
Substantial evidence is “relevant evidence that a reasonable mind might accept to support a
conclusion.” In re Idaho Dep’t of Water Res. Amended Final Order Creating Water Dist. No.
170, 148 Idaho 200, 212, 220 P.3d 318, 330 (2009) (quoting Pearl v. Bd. of Prof’l Discipline of
Idaho State Bd. of Med., 137 Idaho 107, 112, 44 P.3d 1162, 1167 (2002)). The Court is bound by
an agency’s factual determinations “even where there is conflicting evidence before the agency,
so long as the determinations are supported by substantial competent evidence in the record.”
Eddins v. City of Lewiston, 150 Idaho 30, 33, 244 P.3d 174, 177 (2010). “This Court freely
reviews questions of law.” Vickers v. Lowe, 150 Idaho 439, 442, 247 P.3d 666, 669 (2011).
The district court must affirm the agency action unless it
finds that the agency’s findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
7
(d) not supported by substantial evidence on the record as a whole; or
(e) arbitrary, capricious, or an abuse of discretion.
I.C. § 67-5279(3); Clear Springs Foods, 150 Idaho at 796, 252 P.3d at 77. Even if one of these
conditions is met, “[a]n agency action shall be affirmed unless substantial rights of the appellant
have been prejudiced.” I.C. § 67-5279(4). “If the agency action is not affirmed, it shall be set
aside, in whole or in part, and remanded for further proceedings as necessary.” I.C. § 67-5279(3).
IV.
ANALYSIS
A. The Director did not err in concluding that Rangen is entitled to divert only
the water discharging from the mouth of the Martin-Curren Tunnel and only
within the ten-acre tract described in its partial decrees.
Rangen’s two water rights at issue in this case were adjudicated in the SRBA. The
Director concluded that, under Idaho Code section 42-1420, a decree entered in a general
adjudication such as the SRBA is conclusive as to the nature and extent of the water right.
Rangen’s partially decreed water rights nos. 36-02551 and 36-07694 specify the source of its
water under those licenses as “MARTIN-CURREN TUNNEL[;] TRIBUTARY: BILLINGSLEY
CREEK.” Each partial decree describes the same ten-acre tract as the only authorized point of
diversion. It is undisputed that the Bridge Diversion lies outside the decreed tract. On summary
judgment, the Director concluded that Rangen’s partially decreed water rights were unambiguous
with respect to the point of diversion element and that Rangen is not authorized to divert water
outside the decreed ten-acre tract. After the evidentiary hearing, the Director concluded again
that the point of diversion element of the partial decrees was unambiguous, while also
concluding that the source element was unambiguous. Accordingly, the Director concluded that
the partial decrees limit Rangen to diverting water only from the Martin-Curren Tunnel and only
within the decreed tract. Thus, notwithstanding its historical use, Rangen is not entitled to divert
water from the entirety of the spring complex and is not entitled to divert water at the Bridge
Diversion.
Rangen contends that the Director erred in interpreting its partial decrees. It argues that
the source element in its partial decrees is ambiguous and that in the relevant context “Martin-
Curren Tunnel” refers to the entire spring complex comprised of Curren Tunnel plus the other
springs scattered across the canyon wall. Additionally, Rangen argues that it should be entitled to
divert water via the Bridge Diversion because the dam is “part of a diversion structure that lies
8
partially within the [decreed] ten acre tract.”2 Rangen further contends that the doctrine of quasi-
estoppel precludes the Director from interpreting its partial decrees in a manner inconsistent with
Rangen’s historical use of water.
The Director rejected each of Rangen’s arguments. He found that the name Martin-
Curren Tunnel is not ambiguous and does not create a latent ambiguity in the partial decree. He
further found that because the SRBA decrees list the point of diversion as SESWNW Sec. 32,
T7S, R14E, Rangen is restricted to diverting water that emits from the Curren Tunnel in that ten-
acre tract. The Director additionally found that equitable estoppel is inapplicable as it may not
ordinarily be invoked against a government or public agency functioning in a sovereign or
governmental capacity.
The district court affirmed the Director’s conclusions on each of these issues, applying
substantially the same legal reasoning as the Director. The district court further found that
Rangen’s attempt to reinterpret its water rights constitutes an impermissible collateral attack on
the decrees. The district court asserted that any challenges to the facially plain language of
Rangen’s partial decrees needed to be raised in the SRBA forum. According to the district court,
allowing Rangen to contest its partial decrees outside the SRBA would undermine any certainty
or finality of those decrees. The district court also found that quasi-estoppel did not apply here
because no exigency warranted the application of the doctrine against the Director in the exercise
of his governmental functions and because Rangen had not established that the required elements
were satisfied.
1. This proceeding is not an appropriate forum to reinterpret the scope of
Rangen’s partial decrees entered in the SRBA.
By statute, “decree[s] entered in a general adjudication shall be conclusive as to the
nature and extent of all water rights in the adjudicated water system.” I.C. § 42-1420(1). In 1997,
Rangen’s water rights numbers 36-02551 and 36-07694 were adjudicated and partial decrees
were entered in the SRBA. When Rangen applied to have its water rights entered in the SRBA, it
requested identifying the source of each right as “Curran Tunnel” and describing the point of
diversion of each right as a particular forty-acre tract. Rather than recommending that Rangen’s
water rights be decreed precisely as Rangen had requested, the IDWR Director at the time
instead recommended identifying the source as “Martin-Curren Tunnel” and describing the point
2
IDWR claims that Rangen applied in February of 2014 for approval to divert water from the Bridge Diversion and
that IDWR approved the request and issued Permit 36-17002 to that effect. That permit has a priority date in 2014.
9
of diversion as the ten-acre tract in which the tunnel sits. Rangen did not file an objection to the
Director’s recommendations. The presiding judge of the SRBA entered partial decrees consistent
with the Director’s recommendations. Rangen neither appealed nor moved to set aside either
partial decree in the SRBA.3
In the agency action on review here, the Director determined that
Rangen’s SRBA decrees do not identify Billingsley Creek as a source of
water and do not include a point of diversion in the SWSWNW Sec. 32,
T7S, R14E. . . . Administration must comport with the unambiguous terms
of the SRBA decrees. Because the SRBA decrees identify the source of
the water as the Curren Tunnel, Rangen is limited to only that water
discharging from the Curren Tunnel. Because the SRBA decrees list the
point of diversion as SESWNW Sec. 32, T7S, R14E, Rangen is restricted
to diverting water that emits from the Curren Tunnel in that 10-acre tract.
On review, the district court concluded that if Rangen disagreed with how its water rights were
recommended and ultimately decreed, it had an opportunity and responsibility to voice its
concerns in the appropriate forum—the SRBA. The district court reasoned that this was
necessary because the SRBA is a forum where all parties to the adjudication would have been
afforded appropriate notice of Rangen’s arguments and been given the opportunity to respond.
One purpose of the SRBA is “to establish . . . a uniform description for surface water
rights, ground water rights and water rights which include storage.” I.C. § 42-1427. “Conjunctive
management of ground water and surface water rights is one of the main reasons for the
commencement of the Snake River Basin Adjudication.” A & B Irrigation Dist. v. Idaho
Conservation League, 131 Idaho 411, 422, 958 P.2d 568, 579 (1997) (quoting 1994 INTERIM
LEG. COMM. REP. ON THE SNAKE RIVER BASIN ADJUDICATION 36–37 (1994)). The quoted
Committee Report continued: “The SRBA should determine the ultimate source of the ground
and surface water rights being adjudicated. This legal determination must be made in the SRBA
. . . If the SRBA proceeds and these issues are not addressed, a major objective for the
adjudication will not have been served.” Id. Further, as the district court in the present case held,
allowing a party to contest a partial decree outside of the SRBA would undermine any certainty
or finality of the partial decree.
3
Rangen did move to file a late claim in the SRBA on April 19, 2013—more than fifteen years after its partial
decrees were entered. Rangen’s motion was denied as untimely, given that the deadline to file late claims in the
SRBA lapsed January 13, 2013.
10
Rangen argues that it is disputing the Director’s interpretation of the partial decrees rather
than the partial decrees themselves. But this is a distinction without a difference. Any
interpretation of Rangen’s partial decrees that is inconsistent with their plain language would
necessarily impact the certainty and finality of SRBA judgments and, therefore, requests for such
interpretations needed to be made in the SRBA itself.
The district court found that Rangen’s argument was based on the idea that the decrees do
not accurately reflect its historical beneficial use. The court held that this argument was an
impermissible collateral attack on the decrees. This Court agrees and affirms the district court’s
holding that Rangen’s partial decrees entitle it to divert only that water emanating from the
Martin-Curren Tunnel and only within the decreed ten-acre tract. If Rangen wanted its water
rights to be interpreted differently, it should have timely asserted that in the SRBA.
2. Rangen is not entitled to divert water via the Bridge Diversion.
Rangen asserts that it should be permitted to use the Bridge Diversion because it is part of
a diversion structure that lies mostly within the ten-acre tract described in the partial decrees.
More specifically, Rangen argues that the Farmers’ Box, Rangen Box and the Bridge Diversion
are all integral parts of the same diversion structure. Rangen also seems to argue that it was
required to identify the single ten-acre tract nearest to the point of diversion. The district court
found that the Bridge Diversion is a separate and distinct diversion structure that is not
physically connected to the Farmers’ Box or the Rangen Box. Rangen’s arguments on appeal
here mirror its arguments before the district court.
Rangen offers no authority supporting the proposition that physically separate and
distinct diversion structures may be regarded as components of a larger diversion structure.
Absent citation to any such authority, this Court rejects the concept of diversion structure that
Rangen urges. Logically, if separate and distinct individual diversion structures in different tracts
were treated as a single diversion structure, any water right holder could claim an entitlement to
divert water in any tract, as long as at least one component of one diversion structure were sited
in a decreed tract. This approach would render the point of diversion element of a water right
meaningless.
Rangen’s argument that when it applied for its water rights in the SRBA it was required
to list the single nearest ten-acre tract is also unavailing. The IDWR rule in effect at the time
required an applicant to describe the location of the point of diversion to the nearest forty-acre
11
tract, while encouraging description to the nearest ten-acre tract “if that description is reasonably
available.” IDAPA 37.03.01.060.05.d.i. (7-1-93). The rule also provided that a water right holder
could file multiple claims if it wanted to register multiple points of diversion. IDAPA
37.03.01.060.05.d.iii. (7-1-93). Thus, there was no requirement that Rangen’s partial decrees be
entered listing a single ten-acre tract as the point of diversion. Because the Bridge Diversion lies
outside the specified point of diversion in its partial decrees, the water rights at issue here do not
entitle Rangen to divert water via the Bridge Diversion.
3. Rangen has not established an ambiguity in its partial decrees.
Even if this were an appropriate forum to litigate the interpretation of Rangen’s partial
decrees, Rangen has not established a latent ambiguity sufficient to warrant reversal of the
Director’s conclusion regarding the source elements of its partial decrees.
Idaho courts interpret water decrees using the same interpretation rules that apply to
contracts. A & B Irrigation Dist., 153 Idaho at 523, 284 P.3d at 248. “Whether an ambiguity
exists in a legal instrument is a question of law, over which this Court exercises free review.”
Knipe Land Co. v. Robertson, 151 Idaho 449, 455, 259 P.3d 595, 601 (2011). Ambiguity may be
either patent or latent. Id. “A latent ambiguity exists where an instrument is clear on its face, but
loses that clarity when applied to the facts as they exist.” Id. Idaho law permits “[f]irst, the
introduction of extrinsic evidence to show that the latent ambiguity actually existed; and, second,
the introduction of extrinsic evidence to explain what was intended by the ambiguous statement.”
Snoderly v. Bower, 30 Idaho 484, 487, 166 P. 265, 265 (1917). Interpreting an ambiguous term is
an issue of fact. Knipe Land Co., 151 Idaho at 455, 259 P.3d at 601 (citing Potlatch Educ. Ass’n
v. Potlatch School Dist. No. 285, 148 Idaho 630, 633, 226 P.3d 1277, 1280 (2010)).
Rangen argues that the terms “Martin-Curren Tunnel,” “Curran Tunnel,” and “Curran
Spring(s)” are used interchangeably to describe the actual tunnel structure as well as the springs
that emanate from the pipe and the talus slope below it. Rangen cites the testimony of its former
long-term employee Lynn Babbington in support of this proposition.4 Rangen also cites the
testimony of another Rangen employee, Lonny Tate, who asked counsel to “classify ‘the Curren
Tunnel’” when asked about it on cross-examination. Rangen suggests this indicates that
4
In response to the question “[w]hat did you understand was the Curren Tunnel?” Babbington responded:
the Curren Tunnel was the – up on the hillside, a tunnel there. But it was known to me to be all of
the – all of the water up there. Whether it be called Curren Tunnel or head of Billingsley Creek or
Curren Springs, they were all – all meant the same thing. It was the -- all the springs that was a
source to the hatchery.
12
clarification was necessary because of a latent ambiguity. Finally, Rangen refers to the back file
for its 1977 water right license number 36-07694. The first page of the license specifies the
source of the right as “springs tributary to Billingsley Creek” and the second page includes an
annotation indicating “[s]ource known locally as Curran Tunnel.” In the “source” field, Rangen’s
contemporaneous application for the 1977 water right had “underground springs” typewritten
and “Curran Tunnel” handwritten above it. Rangen concludes that this evidence establishes a
latent ambiguity, and it asserts in subsequent argument that the evidence in the record requires
resolving the ambiguity in its favor. Intervenor IGWA suggests that “underground springs” can
reasonably describe the tunnel because it is a human-made conduit bringing water to the surface
from underground springs but that it cannot reasonably describe the other springs on the canyon
wall because those are above-ground springs and not “underground springs.”
In rejecting Rangen’s ambiguity arguments, the Director relied on hearing testimony
from Frank Erwin, who has served for sixteen years as the watermaster in the water district in
which Rangen sits. Erwin, who was in a position to know whether the term “Martin-Curren
Tunnel” had more than one meaning, distinguished “Curren Tunnel” from “Curren Spring” and
displayed no confusion or uncertainty regarding what each term referenced. The Director also
noted that if Rangen truly believed that Martin-Curren Tunnel was the common name for the
entire spring complex, Rangen should have sought and had its water right decreed with
additional points of diversion because the entire spring complex stretches over at least two ten-
acre tracts. Ultimately, the Director concluded that the name Martin-Curren Tunnel is not
ambiguous and does not create a latent ambiguity in Rangen’s partial decrees.
The district court agreed with the Director, finding that the term “Martin-Curren Tunnel”
refers to a specific, identifiable and known diversion structure located within the ten-acre
authorized point of diversion of Rangen’s two senior water rights. The court observed that the
record establishes there is only one tunnel to which the term “Martin-Curren Tunnel” can
possibly apply. The court further stated that “tunnel” could not conceivably refer to the entire
spring complex because such an interpretation would offend the common meaning and
understanding of the term “tunnel.”
The reasoning of the Director and the district court is well-taken. The term “Martin-
Curren Tunnel” does not lose clarity when applied to the facts in the record before the Court.
Indeed, as the district court noted, adopting Rangen’s perspective would render its partial decrees
13
less, rather than more, clear. Therefore, Rangen has not presented sufficient evidence to establish
the existence of a latent ambiguity in the partial decrees.
We affirm the district court’s determination that Rangen is limited to divert water only
from the mouth of the Martin-Curren Tunnel itself and only within its decreed tract.
4. The doctrine of quasi-estoppel does not preclude the Director from
interpreting Rangen’s partial decrees to allow diversion of only the water
emanating from the mouth of the Martin-Curren Tunnel.
Rangen argues that quasi-estoppel precludes the Director from determining that the
source elements of its partial decrees limit its rights to only the water flowing from the mouth of
the Martin-Curren Tunnel. The Director and the district court each found that quasi-estoppel
does not apply in this case. As this Court has previously stated,
[Q]uasi-estoppel prevents a party from asserting a right, to the detriment
of another party, which is inconsistent with a position previously taken.
This doctrine applies when: (1) the offending party took a different
position than his or her original position, and (2) either (a) the offending
party gained an advantage or caused a disadvantage to the other party; (b)
the other party was induced to change positions; or (c) it would be
unconscionable to permit the offending party to maintain an inconsistent
position from one he or she has already derived a benefit or acquiesced in.
Estoppel theories generally present mixed questions of law and fact.
Because mixed questions of law and fact are primarily questions of law,
this Court exercises free review.
Allen v. Reynolds, 145 Idaho 807, 812, 186 P.3d 663, 668 (2008) (citations and internal quotation
marks omitted). Quasi-estoppel does not apply in the present case, both because there are no
exigent circumstances justifying applying the doctrine against a state agency exercising a
governmental function and because Rangen has not established that the elements of quasi-
estoppel are satisfied.
Rangen cites no cases where this Court has applied quasi-estoppel against a government
entity carrying out its sovereign functions. Indeed, the Court has held that quasi-estoppel may not
“be applied against the state in matters affecting its governmental or sovereign functions.” Floyd
v. Bd. of Comm’rs of Bonneville Cnty., 137 Idaho 718, 727, 52 P.3d 863, 872 (2002). However,
the Court has previously left open the possibility that quasi-estoppel could apply against a
government entity in exigent circumstances. See, e.g., Terrazas v. Blaine Cnty. ex rel. Bd. Of
Comm’rs, 147 Idaho 193, 200–201, 207 P.3d 169, 176–177 (2009); Sprenger, Grubb & Assocs.,
Inc. v. City of Hailey, 127 Idaho 576, 583, 903 P.2d 741, 748 (1995); Boise City v. Wilkinson, 16
14
Idaho 150, 177, 102 P. 148, 157 (1909). These cases do not express whether quasi-estoppel
might apply even where the government action at issue relates to a sovereign or governmental
function. Nor do the cases disclose what constitutes an exigent circumstance warranting the
application of the doctrine against the government. The Court expresses no opinion on these
questions at this time.
Idaho Code section 42-602 requires the Director to “distribute water in water districts in
accordance with the prior appropriation doctrine.” In the present case, that statutory obligation
required the Director to interpret Rangen’s partial decrees, which he dutifully did. Rangen has
failed to articulate any exigent circumstances justifying the application of quasi-estoppel against
IDWR or the Director. Accordingly, we decline in this case to extend the doctrine of quasi-
estoppel to apply to governmental entities or agents acting in a sovereign or governmental
capacity.
Furthermore, Rangen has failed to establish that the required elements of quasi-estoppel
are met. Rangen argues at length that IDWR has recognized for decades that the source of
Rangen’s water is the entire spring complex, citing two previous IDWR actions. First, Rangen
cites to a 1979 order in which former IDWR Operations Bureau Chief L. Glen Saxton authorized
Rangen to measure water flows at the outlets rather than the inlets. Second, Rangen cites to a
2005 order in Rangen’s prior delivery call in which former Director Karl Dreher made findings
about flow measurements at Rangen’s facility. Former Director Dreher found that
[t]he flow measurements that are considered to be representative of the
total supply of water available to the Rangen hatchery facilities under
water rights nos. 36-15501, 36-02551, and 36-07694, consist of the sum of
the discharge from raceways designated by Rangen as the “CTR”
raceways and the flow over the check “Dam.” The dam is sited upstream
from the discharge points from the CTR raceways and downstream from
the discharge points from raceways designated by Rangen as the “Large”
raceways. The sum of the discharge from the CTR raceways and the flow
over the check dam is considered to be representative of the total supply of
water available even though at times some of the flow over the check dam
may include water flowing from small springs downstream from the
diversion to the Large raceways, water discharged from the Large
raceways that was not diverted through the CTR raceways, and irrigation
return flows.
Second Amended Order at ¶54, In the Matter of Distribution of Water to Water Rights Nos. 36-
15501, 36-02551, and 36-07694 (Idaho Dep’t Water Res. May 19, 2005) available at
15
http://www.idwr.idaho.gov/browse/WaterMngmt/Orders-Archive/2005/05-19-2005%20Rangen
%20Inc%20Second%20Amended%20Order.pdf.
The district court found that the Director has not taken a different position with respect to
the interpretation of the source and point of diversion elements in Rangen’s partial decrees, given
that none of the cited agency actions addressed the questions of where Rangen is legally entitled
to divert water and from which sources. The district court noted that the 1979 order predates
Rangen’s partial decrees so it could not have addressed the interpretation of those partial decrees.
In context, the 2005 order did not interpret the partial decrees. Rather, it merely described
Rangen’s flow measurements—including acknowledging that the measurements might include
water to which Rangen was presumably not entitled. We agree with the district court and hold
that the Director has not changed positions, given that prior to this proceeding the Director had
not taken any position on the interpretation of the source or point of diversion elements of
Rangen’s partial decrees. Thus, Rangen has failed to prove the first element of quasi-estoppel,
that “the offending party took a different position than his or her original position.” Allen, 145
Idaho at 812, 186 P.3d at 668.
For the foregoing reasons, we affirm the district court’s holding that the doctrine of
quasi-estoppel does not preclude the Director from interpreting Rangen’s partial decrees to allow
Rangen to divert water only from the mouth of the Martin-Curren Tunnel.
B. The Director’s adoption of Sullivan’s 63/37 regression analysis is supported by
substantial and competent evidence.
Applying the analysis above, Rangen is entitled to the water from the tunnel but not the
water from the other springs. Accordingly, the Director needed to determine how the total water
in the Rangen cell would be distributed between the tunnel and the other springs.
Three opinions of the proportion of water accruing to the tunnel versus the other springs
were presented in this case. Pocatello’s expert witness Sullivan initially opined that 75% of the
water in the Rangen model cell would accrue to the tunnel and 25% would accrue to the springs.
However, Sullivan’s initial 75/25 regression analysis was developed using Rangen’s flow
measurements, which all parties agreed were understated.5 After learning of the errors in
Rangen’s flow measurements, Sullivan corrected the underlying data and created a new
5
The Director found that Rangen used a nonstandard measurement method to measure water flows through its
facility and used incorrect rating tables for determining flow rates, concluding that Rangen’s reported historic flows
were lower than actual flows.
16
regression analysis, ultimately opining that 63% of the water in the Rangen cell would accrue to
the Curren Tunnel and 37% to the springs. IDWR staff independently developed a third analysis,
determining that 70% of the water would accrue to the tunnel and 30% to the springs. The
Director adopted Sullivan’s 63/37 regression analysis.
Rangen challenges the sufficiency of the evidence supporting the Director’s adoption of
the Sullivan 63/37 analysis. The Sullivan 63/37 analysis was upheld by the Director on
reconsideration and by the district court on judicial review. On appeal, Rangen presents
substantially the same arguments rejected by the district court: the IDWR 70/30 analysis is more
accurate than the Sullivan 63/37 analysis, Sullivan’s revision of his analysis reduces his
credibility, and Sullivan’s corrected data are inaccurate. None of these arguments have merit.
Rangen argues extensively in its briefing for the adoption of IDWR’s 70/30 analysis. But
conflicting evidence is irrelevant because it has no bearing on the sufficiency of the evidence
supporting the Director’s adoption of Sullivan’s 63/37 analysis. Nor is it significant that Sullivan
changed his opinion when he learned of the error in the data on which he originally relied. If
anything, the fact that Sullivan revised his analysis in light of new information makes it more,
rather than less, credible.
Rangen also attacks Sullivan’s 63/37 analysis by focusing on the data Sullivan relied on
in forming his opinion. Rangen insists Sullivan’s analysis is invalid because it is based on
unreliable USGS measurements and because it may include water from other sources. In a staff
memorandum responding to expert reports in this case, IDWR staff noted that the USGS
subjectively rated its own measurements of Billingsley Creek as ‘fair’ or ‘poor’, indicating that
the measurements are not ideal and contribute to measurement error. Nonetheless, the Director
found that USGS flow measurements are widely accepted as accurate and objective
measurements. Even if there is some evidence in the record supporting the conclusion that the
USGS data is unreliable, Rangen has not established that it is so unreliable as to preclude a
reasonable mind from accepting it to support a conclusion. This is particularly so where there is
no dispute that Rangen’s own measurements are flawed and Rangen points to no other evidence
in the record suggesting alternative measurements that might be more reliable.
Rangen alleges that the USGS measurements were taken downstream from the Rangen
measurements and likely include water that is not measured or used by Rangen. But Sullivan
testified that the USGS measurements are intended to include only the spring flows and not any
17
irrigation returns. Sullivan also testified that USGS measurements made outside the irrigation
season would not include water in any significant quantity from these irrigation returns.
Rangen’s conclusory assertion that the USGS measurements “likely include” additional sources
of water is not evidence. Additionally, the conflicting evidence to which Rangen does cite fails
to undermine the substantiality or competency of the evidence supporting the Director’s finding
that the USGS measurements are adequate. As the district court observed, Sullivan’s 63/37
analysis is supported by substantial record evidence, including various reports and comparisons
Sullivan authored, as well as Sullivan’s hearing testimony.
Finally, Rangen argues that the weir coefficient Sullivan ‘extrapolated’ from the USGS
measurements is different than the ‘hybrid’ weir coefficient Sullivan created and advocated for
in his expert reports. However, Rangen neither cites to record evidence in support of this
allegation nor articulates its legal significance. Therefore, the allegation does nothing to call into
question the sufficiency of the evidence supporting the Director’s adoption of Sullivan’s 63/37
analysis.
For the foregoing reasons, we affirm the district court’s holding that substantial evidence
supported the Director’s adoption of Sullivan’s 63/37 regression analysis.
C. The Director’s conclusion that junior priority ground water users are using
water efficiently and without waste is supported by substantial and competent
evidence.
Conjunctive Management Rule 40.03 provides that in responding to a delivery call “[t]he
Director will also consider whether the respondent junior-priority water right holder is using
water efficiently and without waste.” IDAPA 37.03.11.040.03. The Director concluded in this
case that the junior-priority water right holders are using water efficiently and without waste.
The Director upheld this conclusion on reconsideration and the district court affirmed it on
judicial review.
Rangen asserts that the Director’s conclusion was not supported by substantial evidence.
It alleges that an evaluation of whether water is used efficiently and without waste requires the
introduction of evidence such as: water usage compared to crops in the field or other permitted
uses; sprinkler package maintenance and replacement practices; and cultivation practices,
including information such as crop selection, seed choice, crop rotations and use of cover crops
and mulch. Rangen cites no authority for the proposition that the Rule 40.03 analysis requires
18
this evidence or that it requires any other specific evidence. Nor has this Court identified any
such requirement.
Contrary to Rangen’s suggestion, the record does disclose substantial evidence
supporting the Director’s conclusion that junior priority ground water users are using water
efficiently and without waste. Lynn Carlquist, chairman of the North Snake Groundwater
District, testified that most farmers in the District have converted from surface water irrigation to
sprinkler irrigation to use water more efficiently and that farmers limit ground water pumping to
minimize costs. Carlquist also testified that the District engages in projects to recharge ground
water and monitors ground water levels in a way that would identify whether its members are
using more water than they are entitled to. Tim Deeg, president of IGWA, testified that IGWA
participates in recharge efforts, that cost considerations cause farmers to pump only as much
water as they need, and that monitoring ensures that ground water pumpers operate within the
parameters of their decrees. Justin Armstrong, Pocatello’s Water Superintendent, testified as to
the City’s use of water. Rangen offered no evidence to controvert any of the testimony by these
witnesses. Accordingly, the Director’s conclusion that in this case junior priority ground water
users are using water efficiently and without waste is supported by substantial and competent
evidence.
For the foregoing reasons, we affirm the district court’s determination that substantial
evidence supported the conclusion that junior priority ground water users are using water
efficiently and without waste.
D. Rangen is not entitled to attorney fees on appeal. The Director is entitled to
attorney fees on appeal.
Both Rangen and the Director seek attorney fees on appeal pursuant to Idaho Code
section 12-117(1). Idaho Code section 12-117(1) provides in relevant part:
Unless otherwise provided by statute, in any proceeding involving as
adverse parties a state agency . . . and a person, . . . the court hearing the
proceeding, including on appeal, shall award the prevailing party
reasonable attorney’s fees . . . if it finds that the nonprevailing party acted
without a reasonable basis in fact or law.
Rangen is not the prevailing party and, therefore, is not entitled to attorney fees. The
Director is the prevailing party. The Director argues that Rangen’s pursuit of this appeal was
unreasonable.
19
In an appeal where the prevailing party sought attorney fees under section 12-117, the
Court granted fees where the nonprevailing party
continued to rely on the same arguments used in front of the district court,
without providing any additional persuasive law or bringing into doubt the
existing law on which the district court based its decision. Although the
[nonprevailing parties] may have had a good faith basis to bring the
original suit based on their interpretation of Idaho law, [they] were very
clearly aware of the statutory procedures, failed to appeal separate
appraisals when they had a right to appeal, and were clearly advised on the
applicable law in an articulate and well reasoned written decision from the
district court. Nevertheless, [they] chose to further appeal that decision to
this Court, even though they failed to add any new analysis or authority to
the issues raised below. Accordingly, it was frivolous and unreasonable to
make a continued argument, and [the prevailing party] is awarded its
reasonable attorney fees.6
Castrigno v. McQuade, 141 Idaho 93, 98, 106 P.3d 419, 424 (2005).
Here, Rangen asserted substantially the same arguments on appeal as it did before the
district court on judicial review and failed to add significant new analysis or authority to support
its arguments. Accordingly, applying Castrigno, the Court finds that Rangen acted without a
reasonable basis in fact or law in bringing this appeal. Therefore, we grant the Director’s request
for attorney fees under Idaho Code section 12-117(1).
V.
CONCLUSION
We affirm the decision of the district court. The Director is awarded costs and attorney
fees on appeal.
Justices EISMANN, BURDICK and HORTON, and Justice Pro Tem WALTERS
CONCUR.
6
The prevailing party in Castrigno also sought fees under section 12-121. Castrigno, 141 Idaho at 98, 106 P.3d at
424. Because the Court held that the nonprevailing party was “unreasonable,” it may be inferred that this holding
reflected a conclusion that “the nonprevailing party had acted without a reasonable basis” as required to support a
fee award under section 12-117.
20 | 01-03-2023 | 02-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436049/ | Furst Thomas, a partnership, of Freeport, Illinois, was a wholesaler dealing in certain proprietary remedies, drugs, sundries, poultry and stock preparations, household supplies, etc. Sam E. Oler, of State Center, Iowa, proposed to handle said goods as a retail dealer and entered into a written contract with Furst Thomas to ship him, on credit, such goods as he might from time to time require. Oler secured the signature of appellant to a written guaranty, which is attached to said contract, and which provides in part that the sureties are bound by the contract and guarantee to Furst Thomas and its assigns payment for said goods, and that the written acknowledgment of the account by Oler shall bind the sureties. Apparently the contract and guaranty were made upon a printed form of the wholesaler.
This action was brought against appellant upon the guaranty by Furst-McNess Company, a corporation of Freeport, Illinois, as assignee of said contract and guaranty. The petition contains an itemized statement showing debits for goods furnished Oler by the partnership from July to December 1939, and by the corporation in January 1940, together with credits thereon, resulting in a final debit balance of $203.51.
The answer contains a general denial, a denial of appellant's signature, a plea that appellee had no permit to do business in Iowa and no right to maintain the action, and a plea that the guaranty was executed by appellant upon condition that it was not to be delivered or effective unless the signatures of other sureties were secured.
[1] I. Section 8427, Code of Iowa, 1939, denies to foreign corporations without permits to do business in Iowa the right to maintain actions upon contracts made in this state. Appellant *Page 79
contends the foreign corporation, Furst-McNess Company, was the real party to the contract and that the use of the partnership name, Furst Thomas, in the contract was merely a device to evade said statutory provisions. This contention need not be considered because the record does not show that the contract was made in this state. The contract did not become effective until accepted by Furst Thomas, in Illinois.
Nor is the case shown to be within the purview of the statute by the evidence that Oler's contract with appellant's guaranty attached was delivered by Oler to one Failor, in Iowa, that Failor mailed the same to Illinois for acceptance, and that Failor was paid by appellee for his services in the matter. It does not appear that Failor had any connection with this matter other than procuring Oler to enter into the contract. Failor's acts would not in themselves constitute making the contract in Iowa. Burch Mfg. Co. v. McKee, 231 Iowa 730, 2 N.W.2d 98; Service System v. Johns, 206 Iowa 1164, 221 N.W. 777
[2] II. At the trial Oler identified his signature to an acknowledgment, made shortly prior thereto, that his debt to appellee was $203.51, and the acknowledgement was then admitted in evidence over appellant's objections. To sustain the ruling appellee relies upon the clause in the guaranty that the written acknowledgment of his account by the dealer shall bind the sureties. There is some disagreement whether contractual provisions of this nature are against public policy as ousting the courts of their jurisdiction. However, most authorities hold such provisions, which relate to rules of evidence, are valid where they do not attempt to make the evidence conclusive so that it may not be overcome by proof of fraud or mistake. Standard Acc. Ins. Co. v. Fell, La. App., 2 So. 2d 519; W.T. Rawleigh Co. v. Deavours, 209 Ala. 127, 95 So. 459; W.T. Rawleigh Co. v. Graham, 4 Wash. 2d 407, 103 P.2d 1076, 129 A.L.R. 596; Fidelity Casualty Co. v. Eickhoff, 63 Minn. 170, 65 N.W. 351, 30 L.R.A. 586, 56 Am. St. Rep. 464; Lunt v. Grand Lodge A.O.U.W., 209 Iowa 1138,229 N.W. 323.
The provision here in question may be considered an appointment of Oler to make for appellant an acknowledgment of Oler's indebtedness. Such appointment would not bar appellant from *Page 80
showing vitiating fraud or mistake in such acknowledgment. Therefore, we conclude the provision is valid and the ruling correct.
[3] III. There was no showing of fraud or mistake in Oler's acknowledgment of his debt. Oler, as a witness, testified he received the goods listed in his orders. These were in evidence. Employees and representatives of Furst Thomas and Furst-McNess Company testified to the receipt of the orders from Oler, the shipping of the goods to him, and that the invoicing and pricing were correct. Pages from the book of original entries showing the items of the account and the debit balance of $203.51 were properly identified and placed in evidence. The evidence of the debt was not contradicted or even questioned. The record conclusively establishes the amount due from Oler to appellee.
[4] IV. At the trial appellant admitted he signed the guaranty. As a separate defense he offered to testify that he signed it at Oler's request upon the agreement and condition that Oler would obtain the signatures of one Terrill and another upon it and would not deliver it until the other sureties had signed. The trial court sustained objections to the offer as hearsay and not binding upon appellee unless it was shown some representative of appellee was present at the time of the asserted agreement.
In an action by a creditor upon a written guaranty made by a guarantor for his principal, the guarantor may plead that he was not bound because the guaranty was delivered to the creditor in violation of an oral agreement, made when it was signed, that the principal should not deliver it or it should not be of any validity until certain others should sign as guarantors. When such plea is supported by substantial evidence the question of conditional delivery is usually one of fact. If such conditional delivery be found, the burden is cast upon the creditor to establish by a preponderance of the evidence the good faith of his ownership. If the creditor proves he received the guaranty without notice of the condition, and without knowledge or information to put him on inquiry, then the violation of such condition will not avail the guarantor as a defense to the creditor's suit. Benton County Sav. Bk. v. Boddicker, 105 Iowa 548,75 N.W. 632, 45 L.R.A. 321, 67 Am. St. Rep. 310; id.117 Iowa 407, 90 N.W. 822; Novak v. Pitlick, 120 Iowa 286,94 N.W. 916, *Page 81
98 Am. St. Rep. 360; McNight v. Parsons, 136 Iowa 390, 113 N.W. 858, 22 L.R.A., N.S., 718, 125 Am. St. Rep. 265, 15 Ann. Cas. 665; W.T. Rawleigh Medical Co. v. Bane, 181 Iowa 734, 165 N.W. 42; First National Bank v. McCartan, 206 Iowa 1036, 220 N.W. 364; Boyd v. Miller, 210 Iowa 829, 230 N.W. 851.
In this case it cannot be said the evidence conclusively shows Furst Thomas was without notice or information sufficient to put it upon inquiry concerning the alleged condition upon which appellant signed the warranty. There was little or no direct evidence upon this proposition from either party. Appellant proffered substantial evidence tending to prove his plea of conditional delivery. Its exclusion constituted error.
[5] V. Appellee contends appellant was estopped to assert the defense of conditional delivery. If such estoppel was conclusively established, the rejection of evidence of conditional delivery would not constitute reversible error.
It was shown that on July 27, 1939, a registered letter from Furst Thomas to appellant was received at appellant's place of business in State Center. One of appellant's employees signed appellant's name upon the return-receipt card, together with his own name, and placed the letter upon appellant's desk. Furst
Thomas received the return receipt in due course of mail. Appellee introduced a carbon copy of a letter which an employee of Furst Thomas testified was the one in question, and which states in part:
"We are pleased to inform you that we have received and accepted the sales agreement of Mr. Sam E. Oler, dated July 25, 1939, which you, alone, have signed as surety."
Appellant made no reply to the letter and denies receiving the same. Appellee pleaded that in reliance upon the guaranty, and the failure of appellant to notify it of the alleged conditional delivery, it delivered the goods to Oler and that appellant was estopped by his silence to assert such defense.
It is the general rule that when a party ought to speak, he may not, intentionally or through culpable negligence, keep silent and allow other parties to be misled to their prejudice. In some cases in which the signature of the guarantor was allegedly *Page 82
a forgery, said party has been held under a duty to reply to statements in letters similar to the foregoing. Furst Thomas v. Smith, 280 Ky. 601, 133 S.W.2d 941; Strauss Bros. v. Denton,140 Miss. 745, 106 So. 257, 45 A.L.R. 341; C.C. Heberling Co. v. Dalton, 18 La. App. 233, 138 So. 176; J.R. Watkins Co. v. Rivers,37 Ga. App. 559, 140 S.E. 770. Contra, Furst v. Carrico,167 Md. 465, 175 A. 442, 96 A.L.R. 375.
In Andrew v. Hanson, 206 Iowa 1258, 222 N.W. 10, we held the surety was not bound to respond to a letter advising him that sureties other than those specified by him had been substituted as signers with him. That letter merely advised the surety that the creditor had changed the surety's agreement and had made a new agreement for him. The creditor could not legally do this and unless the surety assented the creditor had no right to assume such agreement was effective.
The situation here differs somewhat from the cited forgery cases. In those the guarantor presumably had not signed the guaranty in question and the letter advised him of a guaranty to which he was legally a stranger. We need not now go as far as those holdings. The question of estoppel must turn upon the particular facts of any case. Here appellant had knowingly signed the guaranty to Furst Thomas. A letter from Furst Thomas informing him of its wrongful delivery would relate to a business transaction between the parties. Good conscience would more urgently suggest a reply under such circumstances than where the letter related to a forged guaranty not signed by the party and held by a contractual stranger. See J.R. Watkins Co. v. Daniel,228 Ala. 399, 153 So. 771; H.G. Whitmer Co. v. Petty,54 Ga. App. 377, 187 S.E. 908.
Assuming the exhibit in evidence to be a carbon copy of the letter in question, we conclude appellant was under a duty to reply thereto. However, the evidence that Furst Thomas delivered the goods to Oler in reliance upon appellant's silence is, at least, inconclusive. The record shows that half of the goods were shipped to Oler prior to the time the letter reached appellant's place of business. An estoppel for failure to reply to a letter of this nature would not lie as to transactions had by the creditor before the letter reached the party in question and he had time to reply thereto. Nor would the failure to reply to *Page 83
such letter create an estoppel unless the creditor is shown to be without notice of the conditional delivery of the guaranty.
In view of a retrial in which there may be additional evidence bearing upon the propositions considered in this division, further discussion appears inadvisable. It is sufficient to say the estoppel was not established as a matter of law so as to obviate the error in rejecting the proffered defense of conditional delivery.
Certain other contentions of appellant are without merit. The guaranty was an unconditional guaranty of payment, and appellee was not required to bring suit against Oler before proceeding against appellant. The fact that appellant may have signed the guaranty before Oler signed the contract would not invalidate the guaranty. The record shows the contract contained Oler's signature when it was turned over to Failor by Oler and that it was accepted by Furst Thomas. The guaranty contains an express waiver of notice of acceptance. Hence, notice to appellant of its acceptance by Furst Thomas was unnecessary. Other questions may not arise upon retrial.
Appellant's abstract was so inadequate and omitted so much of the record that appellee found it necessary to file a denial and amended abstract covering most of the evidence. The cost of printing appellee's denial and amended abstract is taxed to appellant. — Reversed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436054/ | The case was submitted to the trial court on demurrer to plaintiff's petition, which so far as *Page 481
material alleges, in substance, that defendant is a Maryland corporation authorized to do business in Iowa by Subdivisions 2, 5, 7 and 8, Section 8940, and Subdivision 5, Section 8941, Code, 1924; that defendant issued to the World Amusement Service Association a policy of insurance (the material provisions of which are later set out); that plaintiff was injured by the negligence of the World Amusement Service Association of South Dakota by the operation of its automobile racing exhibition; that plaintiff brought suit for such injuries against the World Amusement Service Association, and that at all times after the suit was brought, and in all proceedings, The Amusement Association was represented by the attorneys and representatives of the defendant United States Fidelity Guaranty Company; that plaintiff obtained judgment against the World Amusement Service Association on which execution was issued and returned partly unsatisfied; that such association is a South Dakota corporation, has no property within the State and is insolvent. The policy of insurance contains the following provisions:
"Statement 5: The company's liability for loss from an accident resulting in bodily injuries to or in the death of one person is limited to Five Thousand Dollars * * * Statement 13: The minimum premium for this policy is Four Thousand Dollars * * * United States Fidelity Guaranty Company Baltimore, Maryland, * * * does hereby agree (1) To indemnify the assured against loss arising or resulting from claims made upon the assured for damages on account of bodily injuries, including death, at any time resulting therefrom, suffered or alleged to have been suffered as the result of an accident occurring while this policy is in force. * * * (2) To serve the assured by the investigation of accidents, adjustments of claims and in the name and on behalf of the assured the defense of suits which may be brought against him as the result of such accidents or alleged accidents whether groundless or not. Also by providing inspections and accident prevention service, all at the expense of the company in addition to the limits of liability stated in Statement 5 of the Schedule of Statements.
"Bankruptcy.
"Condition 1. If the business of the assured is placed in *Page 482
the hands of a receiver, assignee or trustee, whether by the voluntary act of the assured or otherwise, this policy shall immediately terminate; but such termination shall not affect the liability of the company as to any accidents heretofore (theretofore?) occurring. * * * When Company May be Sued. Condition J. No action shall lie against the company under the Indemnity Clause herein, unless brought by and in the name of the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue. No action shall lie against the company under any other agreement herein, unless brought by and in the name of the assured for money actually paid by him. In no event shall any action lie against the company, unless brought within two years after the right of action accrues. The company does not prejudice by this condition any defense to any such action in which it may be entitled.
"Special Statutes.
"Condition K. If any limitation set forth in the preceding conditions is prohibited by the statutes of the State in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statutes. * * *
"Limits of Liability. Condition Q. The company's liability for loss under this policy shall be as set forth under Statement 5 of the Schedule of Statements. The expense incurred by the company in defending any suit including all interest accruing after entry of judgment upon such part thereof as shall not be in excess of the company's liability as therein expressed, and any costs taxed against the assured, will be paid by the company irrespective of the policy limits therein stated. * * *
"Report of Accident. Condition A. Upon the occurrence of an accident the assured shall give written notice as soon as he has knowledge thereof, with the fullest information obtainable at the time, to the company at its home office or to an agent of the company. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. If thereafter any suit is brought against the assured to enforce such a claim, the assured shall immediately forward to the company every summons or other process as soon as the same shall have been served on him. The company reserves the right to *Page 483
settle any claim or suit. Whenever requested by the company, the assured shall aid in securing information, evidence, and the attendance of witnesses; in effecting settlements; and in prosecuting appeals. The assured shall at all times render to the company, except in a pecuniary way, all co-operation and assistance within his power.
"Assumption of Liability. Condition D. The assured shall not voluntarily assume any liability; nor interfere in any negotiations or legal proceedings conducted by the company on account of any claim; nor, except at his own cost, settle any claim; nor, without the written consent of the company previously given, incur any expense except that he may provide at the time of the accident, and at the cost of the company, such immediate surgical relief as is imperative."
While defendant makes the point (not further argued) "(3) This was a policy of general indemnity insurance and not a policy of automobile insurance. Iowa Code, Section 3940 (8940) Sub. 5e," we understand from the cases cited that defendant's meaning is that the insurance merely provided indemnity against loss to the Amusement Service Association and gave no cause of action to the person injured. Defendant points to no statute authorizing the policy unless it be Section 8940, Sub. 5e. The defendant turns his whole argument on the proposition that the insurance is against loss only, not against liability for loss, and for that reason is not within Section 8940, Sub. 5e, which declared:
"Any company * * * authorized to do business in this state may: 5. * * * e. Insure against liability for loss or expense arising or resulting from accidents occurring by reason of the ownership, maintenance, or use of automobiles * * * or damage to property belonging to others, or both, and for damages to assured's own automobile when sustained through collision with another object; provided, that should an execution on a judgment against the insured be returned unsatisfied in an action by a person who is injured * * * when such owner or operator has insured his liability for such personal injury or damage, the judgment creditor shall have a right of action against the insurer to the same extent that such owner or operator *Page 484
could have enforced his claim against such insurer had such owner or operator paid such judgment."
One of the grounds of demurrer is that the petition shows that the contract was entered into in Illinois between a Maryland corporation and a South Dakota corporation and that the statutes of Iowa have no bearing upon it. The place of delivery of the completed policy is the place of the contract. Born v. Home Ins. Co., 120 Iowa 299. The petition does not show, and it cannot be assumed, that the contract is not one made and to be performed within the jurisdiction of this state. But assuming that the place of the contract is inferentially shown by the policy and riders to be in Illinois, nevertheless this Court does not take judicial notice of the laws of that state. If defendant claims the benefit of those laws as differing from the laws of the forum, it is for defendant to plead and prove such laws as a fact. The presumption is that the statutes of Illinois are the same as those of this state. Sieverts v. National Benevolent Association, 95 Iowa 710; Northern Finance Corporation v. Meinhardt, 209 Iowa 895; In re Warner's Estate, 209 Iowa 948; Tansil v. McCumber, 201 Iowa 20.
The point chiefly relied upon for reversal is that the court erred, "In that the contract declared on was a contract of indemnity insurance and not of liability insurance, and no right of recovery was established in the plaintiff, and the plaintiff was not entitled to be subrogated to any rights of the assured and the assured had no right to recover under this policy of indemnity insurance."
It is well understood that contracts to indemnify may be to indemnify against liability or to indemnify against loss.
The business of insurance is affected with a public interest. O'Gorman Young v. Hartford Fire Ins. Co., 75 L. Ed. 324,282 U.S. 251.
Defendant is a foreign insurance corporation. The state may altogether exclude it from doing business within the state or it may admit it to do business on such terms and subject to such conditions, not involving the surrender of federal constitutional rights, (United States v. Chicago, M. St. P.R. Co., 75 L. Ed. 359), as the state may see fit to prescribe. Dixon v. Northwestern National Life Ins. Co., 189 Iowa 1268; 32 C.J. *Page 485
989. The purpose of Section 8940, Sub-division 5e, is to authorize liability insurance. American Fidelity Co. v. Bleakley,157 Iowa 442.
Defendant, therefore, issued the policy in suit and took the premium therefor, or its right to it, solely under the authority of that statute. The proviso of the statute (Sub-division 5e, Section 8940) is one which, in the interest of the public, the state has the power to enact as a condition to permitting foreign corporations to transact within the state the business therein authorized. Merchants Mut. A.L. Ins. Co. v. Smart, 267 U.S. 126, 69 L. Ed. 538; Railway Express Agency v. Virginia, 75 L. Ed. 450,282 U.S. 440; Biller v. Meyer, 33 F.2d 440.
The statute in the interest of the public should be reasonably and liberally construed. Stone v. Interstate Exchange, 229 N.W. (Wis.) 26; A. Rose Son v. Zurich General Acc. L. Co., 145 Atl. (Pa.) 813.
If the policy sued upon is one within the class which defendant denominates liability insurance, and if because thereof it is not within Subdivision 5e, defendant was wholly without authority to issue it. The defendant's position, therefore, comes to this: that it is not bound by the condition prescribed by the state to its admission to doing business in the state; that it is not bound by the terms of the very statute under which it issued the policy and collected the premium therefor. This position manifestly cannot be recognized. American Fidelity Co. v. Bleakley, 157 Iowa 442.
The terms required to be embodied in the contract by the statute authorizing the contract must be read into the contract and are as much a part of it as if specifically incorporated therein. Crozier v. Hawkeye Stages, 209 Iowa 313; Stone v. Interstate Exchange, 229 N.W. (Wis.) 26; Ducommun v. Strong (Wis.), 212 N.W. 289; 214 N.W. 616; Archer v. Equitable Life Assurance Soc., 218 N.Y. 18, 112 N.E. 433; Verducci v. Casualty Co. (Ohio), 117 N.E. 235; Green v. Martin (Ala.), 132 So. 882; Elliott v. Indemnity Ins. Co., 230 N.W. (Wis.) 87; 32 C.J., 1162.
The contract is one of liability insurance. 36 C.J. 1057; 32 C.J. 975. The purpose of Subdivision 5-e is to permit insurance against loss or expense resulting from liability not merely from accident. American Fidelity Co. v. Bleakley, 157 Iowa 442 *Page 486
. The whole theory of liability insurance rests upon the existence of "liability." Various terms are loosely used in differentiating contracts of indemnity against liability from contracts of indemnity against loss. Whether the insurance or the indemnity is from liability or from loss it is one of indemnity, and the contract of liability insurance is in either case an indemnity contract. 36 C.J. 1057; 32 C.J. 975. By the statute defendant is authorized to "insure against liability for loss or expense arising or resulting from accidents occurring by reason of the ownership, maintenance, or use of automobiles or other conveyances, resulting in personal injuries or death * * *." The liability against which insurance is authorized includes personal injuries to the insured and damage to his own automobile. Thus the phrase "against liability for loss or expense" is not limited to liability to third parties. As respects the claims of third parties, there can be no loss and the insurer can be under no liability under the policy unless there is liability on the part of the insured because of which the loss is suffered. The word "liable" means not only "bound or obliged in law or equity; responsible; answerable," but "exposed to a certain contingency or casualty, more or less probable and, in modern use, of an undesired or harmful character;" (Webster's New International Dict.) "Having an aptitude or tendency; subject; exposed, as to the doing or occurring of something evil, injurious, or erroneous; as, we are constantly liable to accidents." Century Diet. "Liability" is "the state of being liable through obligation or duty; fixed or contingent responsibility; exposure to that which is or may be required * * * The state of being liable incidentally or by chance; exposure to that which is possible or probable; tendency, susceptibility. * * *" Century Dict.
The statute authorizes insurance against the insured's direct loss resulting from injury to his person or property and to loss resulting from injury to others. The authority to defendant to "insure against liability for loss" manifestly includes, and on its own contention has been so accepted by defendant as, authority to insure not only against liability to loss but against loss. The statute does not undertake to prescribe all the limitations and conditions of contracts which may be issued pursuant to its authority. It does, however, prescribe the one that, should execution on judgment against the insured be returned unsatisfied *Page 487
in an action by the injured party when the owner has "insured his liability, * * * the judgment creditor shall have a right of action against the insurer."
"The liability" is the liability insurance against which is authorized, and includes, as has been said, insurance against loss. This is manifest from the language which gives the "right of action against the insurer to the same extent that such owner or operator could have enforced his claim against such insurer had such owner or operator paid such judgment." This expression would be meaningless if insurance against loss from actual payment of liability alone were in the legislative mind. It recognizes the possibility of the issuance of contracts such as defendant claims the one before us to be, — contracts of indemnity against loss; but when such a contract is issued, even though the loss has not been actually paid by the insured, the statute gives to the person suffering the loss the same right which the insured would have if he had actually paid the judgment. The plaintiff stands here, therefore, in the same position that the insured would have been in, had the insured paid the plaintiff's judgment. The purpose of the legislature undoubtedly was in the conservation and protection of the interest and rights of the public, to confer upon the holder of a judgment against the operator or owner of an automobile for damages for injuries resulting from the fault of the insured, substantial benefit from the insurance. It cannot be presumed that the legislature intended to offer to insurance companies an inducement to put such limitations in their policies as would make the policies and the legislation of no value to such creditor. See Edwards v. Fidelity Co. (La.), 123 So. 162. To adopt defendant's construction would be to offer to insurers that very inducement — an inducement which they would naturally accept, and thereby make the statute a dead letter. Subdivision 5b uses substantially the same language as Subdivision 5e, and is open to similar consequences from accepting defendant's contention. Section 8940 as a whole shows the legislative intention to authorize insurance against loss, whether resulting from ill health, from liability of practitioners of medicine, etc., from accidental discharge of water from automatic sprinkler, from accidents to employees, from operation of automobiles. The legislative thought was to *Page 488
insure against loss and to specify the occasions of the losses for which indemnity was authorized.
The insured and the insurer may not by any terms that they agree to defeat, impair or modify the requirements of the statute enacted in the public interest. Malmgren v. Southwestern Ins. Co. (Cal.), 255 P. 512. The "no action clause" of the policy is in conflict with the statute, and so far as in conflict is void. Verducci v. Casualty Co. (Ohio), 117 N.E. 235. Even though the contract were for indemnity against loss only, the assured would have the right in equity to have the liability of the parties determined before payment. Sanders v. Frankfort Marine Ace. Ins. Co., 57 A. 655, 72 N.H. 485, 101 Am. St. Reports 688; Seeberger v. Wyman, 108 Iowa 527. The effect of the statute is to extend this right.
Moreover the liability of the defendant under the terms of the contract itself and the facts pleaded is one to indemnify.
The policy sued upon is a contract prepared by the defendant itself and sold by it to the insured. The insured must be presumed to have relied upon it as one intended to give to it the protection which its language and apparent purpose would ordinarily be accepted as giving. It is not to be presumed that the insured was knowingly purchasing a contract which contained such "jokers," self-contradictory or self-nullifying provisions as would make it of no effect. The language is to be construed most favorably to the insured and doubts and uncertainties resolved against the insurer. Githens v. Great American Ins. Co.,201 Iowa 266, 272; Kascoutas v. Federal Life Ins. Co., 193 Iowa 343; Tracy v. Palmetto Fire Ins. Co., 207 Iowa 1042, 1045.
By its contract the defendant undertook the defense of suits brought against the insured as the result of accidents whether groundless or not. Defendant reserved to itself and excluded from the insured the right to settle. The insured was relegated to a secondary position — that of assisting or co-operating. Insured had no right to interfere in negotiations or legal proceedings or to incur any expense except such as it provided at the time of the accident. The insured would naturally understand from the policy that the insurer undertook to relieve it from all liability or responsibility or exposure to loss. If the insured gave to the insurer the required notices, forwarded the *Page 489
summons, and if requested by the insurer furnished the stipulated co-operation, defendant did undertake the forensic defense.
The unjustified refusal of insurer to conduct the defense of the action against the insured would have subjected the insurer to liability to damages as for a present breach of the contract. Jones v. Southern Surety Co., 210 Iowa 61; Kinnan v. Charles B. Hurst Co., 317 Ill. 251, 148 N.E. 12; In re Empire State Surety Co., 108 N.E. 825, 214 N.Y. 553; General Acc. F. L. Assur. Corporation v. Butler's Ice Cream Factory (Tex.) 291 S.W. 674; 5 S.W.2d 976; American Fidelity Cas. Co. v. Williams (Tex.), 34 S.W.2d 396; Hilker v. Western Automobile Ins. Co. (Wis.), 235 N.W. 413. Defendant did accordingly represent the insured in the action brought against it. Defendant's obligation to defend as the result of this contract did not end with an unsuccessful defense in court. Defendant was bound by the judgment suffered after the forensic defense which it had made. The insured by the recovery of final judgment sustained loss, for its liabilities were increased and the value of its estate diminished to the amount of the recovery. Malley v. American Indemnity Corporation,297 Pa. 216, 146 A. 571. Moreover, defendant agreed to pay the expense of the defense, including interest upon its part of the judgment and costs, irrespective of the policy limitations. In these circumstances defendant's obligation to defend did not end until the judgment to the amount insured against was paid. Sanders v. Frankfort, Marine Acc. Ins. Co., 57 A. 655, 72 N.H. 485, 101 Am. St. Reports 688; Schambs v. Fidelity Cas. Co., 259 Fed. 55.
By the terms of the policy also the termination of policy in case of a receivership, etc., was not to "affect the liability of the company as to any accident heretofore (theretofore?) occurring." Defendant's contention here in effect amounts simply to this: that though it is bound to pay the judgment to the amount of the policy limitation and though the insured is entitled, in paying over that amount to the plaintiff with one hand, to receive from defendant the amount in the other hand, defendant is not bound to pay unless this empty process, with no conceivable purpose, (unless it be to take advantage of an insolvent's inability to momentarily raise the required fund) is observed. A reasonable construction of the policy requires the court to disregard a construction which would lead to such absurd *Page 490
results and to enforce the policy under the circumstances set forth in this petition according to its ostensible purpose as one protecting the insured from liability from the loss which the recovery of the judgment itself by the fact of its recovery occasions, as well as from loss from its actual payment. This is in accord with the decided trend of recent authority. Verducci v. Casualty Co. (Ohio), 117 N.E. 235; Schambs v. Fidelity Cas. Co., 259 Fed. 55; Ducommun v. Strong (Wis.), 212 N.W. 289, 214 N.W. 616; Brucker v. Georgia Cas. Co., 32 S.W.2d 1088 (Mo.); American Indemnity Co. v. Fellbaum, 263 S.W. 908 (Texas); West v. MacMillan, 301 Pa. 344, 152 A. 104; Graff v. Continental Auto Ins. Co. (Mo.), 35 S.W.2d 926; Patterson v. Adan, 138 N.W. 281, 48 L.R.A. (N.S.) 184 (Minn.); Griffin v. General Cas. Co.,204 N.W. 727, 231 Mich. 642; Sanders v. Frankfort, Marine Acc. Ins. Co., 72 N.H. 485, 57 A. 655, 101 Am. St. Reports 688; Jedlicka v. Missouri Cas. Co. (Mo.), 14 S.W.2d 535; Goerss v. Indemnity Co. (Mo.), 3 S.W.2d 272; Malley v. American Indemnity Corporation, 297 Pa. 216, 146 A. 571; General Acc. F. L. Assur. Corp. v. Butler's Ice Cream Factory (Tex,), 291 S.W. 674; 5 S.W.2d 976; State ex rel. Indemnity Co. v. Daues, 13 S.W.2d 1059 (Mo.); Kurre v. American Indemnity Co. (Mo.), 17 S.W.2d 685; American Fidelity Cas. Co. v. Williams (Tex.), 34 S.W.2d 396; Davies v. Maryland Cas. Co., 154 P. 1116, 155 P. 1035, 89 Wash. 571; L.R.A. 1916D 395, 398; A. Rose Son v. Zurich General Acc. Liability Co., 145 A. 813, 296 Pa. 206.
For collection of cases on the subject see 36 C.J. 1057; 14 R.C.L. 1321; 5 Perm. Supp. 3813.
The judgment appealed from is in harmony with the foregoing views and should be, I think, affirmed.
FAVILLE, C.J., and EVANS, J., concur in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068639/ | ACCEPTED
01-15-00266-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/15/2015 10:06:33 AM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
9/15/2015 10:06:33 AM
CHRISTOPHER A. PRINE
Clerk
CERTIFICATE OF CONFERENCE
I hereby certify that on September 3, 2015, I conferred with Mark A. Giugliano,
counsel for Appellant, regarding the relief requested in this Motion, and that Mr.
Giugliano stated that Appellant is unopposed to the relief sought herein.
/s/ Michael V. Powell
Michael V. Powell
Resident Attorney for Appellees
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of September, 2015, a true and correct copy of
the foregoing document was served via eFile Texas on Appellant through its counsel of
record, listed below:
Mark A. Giugliano
Gibbs & Bruns LLP
1100 Louisiana, Suite 5300
Houston, Texas 77002-5215
Counsel for Appellant
/s/ Michael V. Powell
Michael V. Powell
Resident Attorney for Appellees
LARA E. ROMANSIC’S MOTION TO APPEAR PRO HAC VICE PAGE 5
Board of Law Examiners
Appointed by the Supreme Court of Texas
P.O. Box 13486 * Austin, Texas 78711-3486
Acknowledgment Letter
Non-Resident Attorney Fee
July 23, 2015
To: Lara E. Romansic
Via: Lromansic@steptoe.com
According to Texas Government Code §82.0361, “a nonresident attorney
requesting permission to participate in proceedings in a court in this state shall
pay a fee of $250 for each case in which the attorney is requesting to
participate.”
This Acknowledgement Letter serves as proof that the Board of Law
Examiners has received $250 in connection with the following matter:
Non-resident attorney: Lara Elizabeth Romansic
Case: 01-15-00266-CV
Texas court or body: Court of Appeals for the First Court of Appeals District
of Texas
After satisfying the fee requirement, a non-resident attorney shall file a
motion in the Texas court or body in which the non-resident attorney is
requesting permission to appear. The motion shall contain the information and
statements required by Rule XIX(a) of the Rules Governing Admission to the Bar
of Texas. The motion must be accompanied by this Acknowledgment Letter and
by a motion from a resident practicing Texas attorney that contains the
statements required by Rule XIX(b).
The decision to grant or deny a non-resident attorney’s motion for permission
to participate in the proceedings in a particular cause is made by the Texas court
or body in which it is filed.
For more information, please see Rule XIX of the Rules Governing Admission
to the Bar of Texas and §82.0361 of the Texas Government Code, which can be
found on the Board’s website.
Sincerely,
Susan Henricks
Executive Director | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436209/ | The plaintiff's petition predicated a contract of sale of personal property upon certain telegrams and 1. SALES: letters passing between the parties, and as requisites supplemented by certain oral conversations. The and validity allegation is that the contract was partly oral of contract: and partly in writing. On March 6, 1919, the offer and defendant sent to the plaintiff the following acceptance. letter, known in the record as Exhibit A: *Page 287
"We offer five cars of April eggs storage packed, in new cases, Jensen Pack, contract and all papers to be signed between the ultimate purchaser and the Jensen Creamery Company; five cars at thirty-seven and one-half cents, net, delivered Chicago, any time in April. Tried to get Mr. Brown late this afternoon on the telephone at the Montrose but was informed he was not registered there, so left a call for him. Mr. Brown called late this afternoon and when he arrives in Chicago, he can tell you more about the deal."
The answer to the foregoing was a telephone conversation, containing a counter offer from the plaintiff to the defendant to buy at 37 1/4 cents per dozen, the purchase to be, not from Jensen, but from the defendant. The oral answer to this counter offer was that the defendant would see Jensen, and would write to plaintiff later. This was on March 7th. On the same day, the defendant wired plaintiff the following, known as Exhibit B.
"Jensen will accept thirty-seven cents on five cars sell at thirty-seven and one half work quick."
On the same day, the defendant wrote to plaintiff the following letter, known in the record as Exhibit D.
"We confirm wire to you today, which read as follows: `Jensen will accept thirty-seven cents on five cars sell at thirty-seven and one-half work quick.' We are asking you to sell at thirty-seven and one-half cents, with the idea that we will split the one-half, if this is not satisfactory let us know at once, as we cannot afford to get this business for nothing."
In answer to Exhibit B, the plaintiff sent the following, known in the record as Exhibit C.
"Answering accept five cars storage packed Aprils from you at thirty-seven quarter confirm."
On the same date, plaintiff wrote to the defendant the following letter, known in the record as Exhibit E.
"We received your wire stating that `Jensen will accept 37 cents on 5 cars sell at thirty-seven and one-half. Work quick.' We immediately wired you `Accept the 5 cars' at 37 1/4c net to us, delivered Chicago; these cars to grade Storage-packed First, delivered any time in April. So be sure and get your confirmation from Jensen and send us your confirmation so *Page 288
that we will have no mix-up. We have these sold as to be Iowa Storage Packed Aprils. The writer will be in Milwaukee tomorrow attending the convention there and will let you know if anything can be learned from there."
If there was a contract entered into between these parties, it must be found from the foregoing communications.
It will be noted therefrom that the defendant made two successive offers. No response was made by plaintiff to the first offer, except a phone conversation, whereby plaintiff offered 37 1/4 cents for the eggs, but declined to buy them from Jensen.
The defendant's second offer (Exhibit B) purported on its face to be made on behalf of Jensen. This was confirmed by letter, with further explanation. The only interest which the defendant purported to have in the subject-matter of the sale was as agent, and it claimed a "split" in the margin. By this second offer, the defendant did not recede from the conditions stated in the first offer: that the contract should be with the Jensen Creamery Company. Plaintiff's answer (Exhibit C) was not an unequivocal acceptance. It attached the condition "from you." This was simply a counter offer that the plaintiff would buy the eggs from the defendant, and not from Jensen. The last word in this telegram was, "confirm." The effect of this direction was that it suspended the offered obligation of the plaintiff until confirmation should be had. Plaintiff itself was not bound by it until such confirmation.
The plaintiff followed this telegram with the letter Exhibit E. By this letter the plaintiff required the defendant to become purchaser from Jensen, and seller to plaintiff. With the receipt of Exhibits C and E, the defendant dropped the transaction, and proceeded no further. It made no response or confirmation to either one. We deem it clear that no contract was consummated. To constitute a contract by an offer and an acceptance, the acceptance must conform strictly to the offer, in all its conditions, without any deviation or condition whatever. If there be any qualification attached which calls for a further understanding or correspondence, in order to determine the final meeting point of the minds of the parties, the acceptance fails to close the contract. Foshier v. Fetzer, 154 Iowa 147; Knox v.McMurray, 159 Iowa 171; Batie v. Allison, *Page 289 77 Iowa 313; Jameson v. Joint Drainage District, 191 Iowa 920;Rogers v. French, 122 Iowa 18.
The argument of appellant is directed largely to the proposition that, because the alleged contract was partly oral and partly in writing, a jury question was necessarily presented by the oral evidence, even though only a question of law was presented by the written evidence.
Of course, if the oral evidence presented a disputed fact, such dispute, if material, would present a jury question. But it would still remain a question of law, for the court, whether the oral evidence, in its most favorable aspect, 2. APPEAL AND disclosed the consummation of a contract. There ERROR: is no dispute in the evidence in this record. reversal: The motion of the defendant was made at the new trial: close of plaintiff's evidence. The oral evidence jury introduced lends explanation to the terms of the question written communications, and discloses the under circumstances under which they were made. There incompetent is nothing in such evidence upon which a evidence. consummation of a contract could be predicated.
If there had been, plaintiff would still have to rely upon the written communications, as the only form of contract which could escape the inhibition of the statute of frauds. The learned counsel for the plaintiff recognize this limitation, but they urge upon our attention that the question of the statute of frauds was in no manner raised in the court below. Upon this record, there was no real occasion for raising it. If there had been, the failure of opposing counsel could afford no affirmative aid to the appellant here, to obtain a reversal and remand for a new trial. If the plaintiff had won a judgment below through the failure of opposing counsel to make objections, he could, asappellee, avail himself of such failure in support of the judgment here. Such right is not available to him as appellant,
seeking a new trial. Improper evidence which could be excluded upon proper objection in a new trial will not be considered by us as ground for granting a new trial. If it could be said, therefore, in this case, that the jury could have found the consummation of the contract from the oral evidence, such oral evidence would be inadmissible, for that very reason, under the statute of frauds, and could be excluded, upon proper objection, on that ground, in the event of a new trial. We have *Page 290
no occasion, therefore, to consider whether the oral conversations, all of which antedated the writings, carry any implications either of an existing or a proposed consummated contract.
The order of the district court directing the verdict is approved, and the judgment is affirmed. — Affirmed.
FAVILLE, C.J., and STEVENS, De GRAFF, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436215/ | [1] Only fact questions are involved. No rulings of the court are involved; no question of law was contested in the trial below; there is no bill of exceptions. The judgment *Page 971
was duly excepted to, and the one question presented is whether it has support in the evidence.
The oral contract involved was entered into in May, 1928. The defendant, Hurburgh, was a resident of Galesburg, Illinois, and was the owner of the Stratford Hotel in the city of Des Moines. He had previously listed it for sale with Knepper, a real estate agent in Des Moines. He was operating the hotel through a hired manager and such operation was unsatisfactory. The condition of the hotel and of its management was such that Knepper found it difficult to interest prospective purchasers therein. In conference between Knepper and Hurburgh it was decided to give a better appearance to the hotel and to change the management thereof for that purpose. Pursuant to this conference Knepper negotiated with Miller, who was at that time the hired manager of the Drake Hotel in the same city. The negotiations with Miller were largely conducted by Knepper. Hurburgh personally conferred thereon with Miller pending the negotiations and confirmed the final arrangement by telephone conversation. The oral arrangement entered into as testified to by Miller was in substance that Miller should take possession of the hotel; that he should renovate it and put it in attractive condition; that a five-year lease should be executed to him at $400 per month, — this lease to become the subject of sale to a prospective purchaser; that the rent for the first three months should be devoted to the expense of the renovation; that the furniture of the hotel, then contained therein, should be appraised to the plaintiff at $1500, payment of which was to be deferred until a sale should be accomplished; that when such sale was accomplished the consideration obtained for the furniture and good will should inure to the benefit of the plaintiff and that he should take the difference between such sale price and the $1500 appraisal. This margin was to represent plaintiff's interest or profit in the transaction. The plaintiff appears to have performed upon his part. In March, 1929, Knepper accomplished a sale. That is to say he procured a tenant, who accepted from Hurburgh a five-year lease and paid for the furniture and good will the sum of $5300. The contemplated five-year lease to Miller was never in fact executed. Miller therefore treats the later transaction as a sale of his constructive lease. The defendant treats it as the acquisition of a tenant for *Page 972
the property and a purchaser for the good will and for the furniture. The contention of the defendant is that he did not sell the furniture to Miller; that the only arrangement between him and Miller was that Miller should enter into possession and fix up the property with an allowance of $1200 on the rent for the necessary expenditures of putting the property in attractive shape; that no other inducement was held out to Miller for his part in the transaction except the alleged cheapness in the rent. The point of view of the defendant is indicated by the following from his cross examination:
"What I wanted was to have somebody put it in shape whereby it could be sold and I could get a good responsible tenant in there. That is what I was talking to Mr. Miller about. I wanted somebody there that would help show it. Q. You figured then that your contract was this, that you were renting the building to Mr. Miller for $400 a month, that he was to make all the repairs and fix it up, the furniture and everything else, and for that you would allow him three months rent free. Is that what you understood the contract was? A. $1200.00 either in cash or rent. I talked to him both ways. That was the last conversation, except over the telephone, before he called me up and closed the deal."
The defendant filed a counterclaim for the unpaid rent still due him.
The court below found the contract to be as alleged by the plaintiff. It allowed the defendant's counterclaim and rendered judgment for the plaintiff for the balance of $1329.72.
The record presents a clear case of conflicting evidence. The judgment entered is clearly supported by the plaintiff's evidence. The credibility of the parties, as witnesses, was for the consideration of the lower court. The circumstances surrounding the parties when the contract was entered into, are more corroborative of the plaintiff than of the defendant. We find nothing in the record that would justify our interference with the judgment.
[2] II. The defendant complains of the refusal of the lower court to grant him time to procure the attendance of a witness. The witness in question was Stratner, the new tenant. At the close of the evidence in the forenoon, counsel for defendant *Page 973
made oral request of the court for time to procure the attendance of the witness, who was supposed to be at his hotel a block or two distant from the court house. The witness had not been in attendance at any time, though he had been notified by counsel that he might be needed and had promised to respond when called. Counsel sent a bailiff to call him, but the bailiff was unable to find him. The court ordered a recess for two hours. At the termination of that time counsel had not been able to find his witness. The court thereupon declared the evidence closed. The defendant excepted and objected to this order as an abuse of discretion on the part of the court. With the entry of such exception the record ended. No showing on the question of diligence or negligence was offered by defendant. Nor was there any showing as to how much delay would have been necessary in order for the defendant to get the witness. No subpoena had been issued. If counsel had promptly brought the witness later, within a brief time, and had then asked that the case be re-opened for his testimony, a somewhat different question would be presented. In other words, the prompt production of the witness, even after the evidence was closed, would be a more appropriate ground of motion for a new trial in the court below than of a ground of reversal in this court. We see no reason for saying that what was actually done by the court was an abuse of discretion.
The judgment below is affirmed.
FAVILLE, C.J., and MORLING, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436526/ | This controversy arose over an attempt by appellant, as plaintiff, to collect two promissory notes from appellee, as defendant. Both are payable to "myself," and indorsed by said John F. Martens, November 6, 1919. One was for $3,000, due nine months after said date, and the other for $4,000, maturing in one year thereafter.
A chronological statement of the facts is essential for an understanding of the legal questions involved. Appellee subscribed for stock in the Selway Steel Post Fence Company in the amount of $25,000. At that time, and as a part of the transaction, *Page 1380
the indebtedness was evidenced by five notes, for the following amounts. Two payable to the Selway Company, one for $7,000 and the other $8,000, and three payable to "myself," for $3,000, $4,000, and $3,000, respectively. The agent inducing the sale and procuring said evidences of indebtedness was Henry Martens, appellee's brother. Said last note for $3,000 has been paid, and the $7,000 and $8,000 instruments are not involved here. Upon receipt thereof, the agent sold the three "myself" notes, aggregating $10,000, to Harry W. Hill, of the Citizens State Bank of Earlham. November 12, 1919, Hill transferred the negotiable paper in question to his client, A.R. Hemphill, six days after the execution date. That transaction resulted in the case ofHemphill v. Citizens State Bank, wherein an opinion was handed down by this court February 17, 1925, 199 Iowa 489. As a result of said litigation, Hemphill was declared to be the holder of said written promises to pay, as against Hill and the said bank. Title thereto by appellant was obtained by virtue of a judgment of the district court of Madison County in May, 1925, growing out of an attachment proceeding wherein the Citizens State Bank of Earlham was plaintiff and said A.R. Hemphill defendant. Limited rights, however, in the property were fixed by the court in this: appellant was given the authority to collect from the maker and retain sufficient of the proceeds to pay its judgment against said Hemphill, and the remainder, if any, was to be refunded to the attachment debtor. Accordingly, September 25, 1925, the present lawsuit was instituted, through a petition containing two counts, covering the individual obligations in question. Answer was interposed, including a general denial, and in addition thereto, special defenses that: First, there was no consideration; second, procurement was through fraud in the inception, due to misrepresentations made by Henry Martens, representative of said Selway Company; and third, material alteration, in that the words "Citizens State Bank, Earlham, Iowa," were filled in a blank following the phrase "payable at." By way of reply, appellant alleged: First, estoppel, growing out of the facts that (a) appellee filed, in the matter of the Selway Steel Post Fence Company receivership proceedings pending in Polk County, his petition and claim, asking for judgment against said institution on the two documents named in the petition in *Page 1381
this cause, and the other one for $3,000 previously paid, and obtained judgment for $10,000, and (b) during the trial of saidHemphill v. Citizens State Bank case, supra, appellee testified as a witness, in substance, that he had never given Hemphill or Hill any notice that would invalidate the notes, did not know Hemphill at all, and never communicated with him, but told Hill about the fraud in August, 1921; and second, wording of the instruments was completed in the present form before delivery.
Material assignments of error will now be considered.
I. Earnest argument is made that there was mistake on the part of the district court in not directing a verdict in appellant's favor upon the theory of said estoppel. We are constrained to hold that the objection is without merit on 1. BILLS AND this phase of the controversy. Such bar is NOTES: founded upon the legal basis that, because of holdership the position assumed in the first litigation, in due the party taking the attitude cannot change it course: afterward, to the injury or prejudice of inconsistent another. Patton v. Loughridge, 49 Iowa 218; attitude: Wolfinger v. Betz, 66 Iowa 594; Riegel v.
estoppel. Ormsby, 111 Iowa 10; Baird v. Connell, 121 Iowa 278. Established criterion, however, is the disadvantage or harm caused the litigant asserting the principle of law. City Bank ofBoone v. Radtke, 87 Iowa 363; Durlam v. Steele Jenks, 88 Iowa 498; Vogt v. City of Grinnell, 123 Iowa 332; Archer v. Barnes,149 Iowa 658; Helwig v. Fogelsong, 166 Iowa 715; Ludden v.Butters, 181 Iowa 94; City Bank of Mitchellville v. Alcorn,188 Iowa 592. Consistently the burden of proof, in such event, is upon him who makes the allegation and relies upon the defense.Kocher v. Palmetier, 112 Iowa 84; Howell v. Goss, 128 Iowa 569;Baldwin v. Lowe, 22 Iowa 367; Mandelko v. Hinds, 186 Iowa 1355;City Bank of Mitchellville v. Alcorn, supra.
Entirely wanting is the proof in this regard. No showing is made that Hill, Hemphill, or appellant changed position in any way because of appellee's action or testimony in the cases of Selway and Hemphill versus Hill and the bank. Code of 1924, Section 9519. In fact, so far as the record is concerned, no reliance at any time or in any event was made thereon. All this is said, assuming the version given by appellant concerning the same is correct. Analysis will not support the liberal interpretation *Page 1382
indulged in by the Citizens Bank. There is no indication in the abstract that appellee declared, in the Selway action, by word or writing, that appellant or its predecessors were holders in due course for a consideration, without notice. Only a judgment is set out in connection with the Selway transaction. So far as material, its recitation is that appellee has recovered for the sums of money which he paid upon his subscriptions to the capital stock, and that the amount may be increased by future application for sums assessed against him in favor of the receiver. Reasons for making the entry do not appear. Preliminary applications, pleadings, admissions, and finally the declaration of witnesses, if any, are entirely absent.
Manifestly, it cannot be said that said element of estoppel is present. Inconsistency is nowhere to be found.
II. Doctrine of former adjudication is not in this case. Appellant was not a party to the previous legal quarrel. Distinction pointed out in Macedonia State Bank v. Graham, 198 Iowa 12, does not exist here, and this is said 2. JUDGMENT: without determining the materiality of the conclusive- satisfaction of or failure to collect on the ness: Selway judgment (in truth it was not paid), for non-party to the very good reason that it is not revealed in action. the case at bar that the advantage there gained was because of any incongruity intimated.
III. Equally must appellant fail in its plea relating to the assertions of appellee as a witness in the Hemphill v. CitizensState Bank case, supra. Rather than being affirmative, the testifier was negative. Conclusion based upon the result of that transaction cannot be that Hill and Hemphill were holders in due course. Ground covered by the examination was not broad or conclusive enough in its scope to have that effect. Even though the affiant did not learn, or serve notice of, the fraud and defects, this does not foreclose the fact that Hill or Hemphill may have otherwise acquired the knowledge. Consequently, it was for the jury to decide, under all the circumstances, the fact question to be ultimately settled.
IV. Conflict appears throughout the record on the interpretation placed by the parties upon Sections 9474, 9585, and 9586 of the Code of 1924. According to the order named, said provisions are:
"9474. Where the instrument is wanting in any material *Page 1383
particular, the person, in possession thereof has a prima-facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the 3. BILLS AND person making the signature in order that the NOTES: paper may be converted into a negotiable alteration: instrument operates as a prima-facie authority filling in to fill it up as such for any amount. In order, place of however, that any such instrument when completed payment. may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time."
"9585. Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor."
"9586. Any alteration which changes: * * * The time or place of payment; * * * Or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration."
Appellee contends that, because he delivered the notes with the place of payment blank, and afterward someone else supplied the words in dispute, — to wit, "Citizens State Bank, Earlham, Iowa," — as said place, voidness follows; his theory being that said Section 9474 is not applicable, or if so, is entirely overcome by the two remaining sections, 9585 and 9586. Johnstonv. Hoover, 139 Iowa 143, has ruled adversely. See, also, MarionSav. Bank v. Leahy, 200 Iowa 220. When harmony, uniformity, and enforcement of all portions of the act are possible, it is our duty so to proceed, in order that no part will be discarded and the entirety made effective. Truly, a material alteration will work an avoidance. Also, "change of place of payment" may amount to such "material alteration." But not so if the *Page 1384
transaction involves the "filling in" of a blank intended therefor, within the purview of said Section 9474. Language inJohnston v. Hoover, supra, is to the following effect:
"What has already been said is sufficient to make it plain that to the case in hand Subsections a124 [9585] and a125 [9586] have no application. We are aware, of course, that our conclusion on the case is not in harmony with some of our former cases; but the interposition of the statute is sufficient to account for that."
Therefore, Section 9474 prevails where the facts and circumstances are such as are therein contemplated, and in that contingency, Sections 9585 and 9586 have no bearing on the situation.
V. Again, appellant complains because appellee was permitted to testify, over objection, to the effect:
"I left the place of payment blank in both notes, and did not authorize anyone to fill in the place of payment in the blanks."
Error is said to appear here because the witness does not claim to have forbidden the insertion of "a place of payment," and, according to said Section 9474, the presumption is that the authority had been given, and necessarily a 4. BILLS AND verdict should have been directed for appellant. NOTES: Really what was meant by, and the net result of, alteration: the declaration quoted is that there was no evidence: express right conferred upon anyone to supply materiality. the absent clause in the vacant space. This is not sufficient to overcome the statutory presumption. For assertion is not made that the act was prohibited, or in violation of an express agreement. 8 Corpus Juris 185, Section 315. Yet the evidence was material to show that the writings, as they now appear, were incomplete when delivered by appellee, and "the absence of any agreement * * * as to what was to be placed in the blanks." Marion Sav. Bank v. Leahy, supra.
VI. Finally, insistence is made that there must be a reversal 5. ALTERATION because the trial court submitted the issue of OF material alteration to the jury. Defense of INSTRUMENTS: appellee is not that the blank following the evidence: words "payable at" was filled contrary to law(?) or instructions, but rather, that the same was done jury(?) without authority. Impliedly, there was granted question. the right to make the insertion, *Page 1385
when possession was permitted with the peculiar blank in question. That in itself amounted to an invitation, coupled with the statutory presumption of authority, to complete the instrument. Johnston v. Hoover and Marion Sav. Bank v. Leahy,
supra. No dispute existed. On this issue, we said, in Marion Sav.Bank v. Leahy, supra:
"* * * it was his [the possessor's] privilege, under this section of the statute [9474], to fill in said blanks in any way he saw fit, in the absence of any agreement between them as to what was to be placed in the blanks."
Necessarily, under the showing made, the jury had before it nothing upon which to base a finding of fact. Said legal prerogative was paramount; and, without claim and testimony that some other understanding supplanted it, the question was one for the court, rather than the fact-finding body. Prejudice appears because of this. We conclude that the district court erred in the manner indicated.
The judgment must be, and hereby is, reversed, and a new trial granted. — Reversed.
EVANS, C.J., and STEVENS, FAVILLE, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436530/ | The plaintiff is a copartnership, engaged in the "cleaning business," and the defendant is a corporation operating a laundry, both at Sioux City. In February, 1928, the plaintiff, by oral contract, purchased from the defendant two water softeners, at the agreed price of $400, to be installed in plaintiff's place of business by the defendant. The defendant furnished the plaintiff considerable business in the way of cleaning, and it was agreed that the defendant was to have credit at the rate of $50 per month on the purchase price of the water softeners on its account for services to be rendered by the plaintiff for cleaning. What was done in rescinding the contract occurred in September of the same year, at which time *Page 924
the plaintiff attempted to deliver the softeners at defendant's place of business, which the defendant refused to accept, and at the same time, the plaintiff demanded the previous credits or payments, in the amount of $300.
It is plaintiff's claim that, as a part of the negotiations for the sale of the water softeners, the defendant orally represented and warranted that they were in good condition, and would produce sufficient water, properly softened, with which 1. SALES: to conduct the plaintiff's business. There is warranties: ample evidence in support of this claim of the fact plaintiff's. The court submitted said claim in assertion its entirety to the jury. It is the appellant's (?) or contention that that portion of the opinion (?) representation as follows, "would produce sufficient water, properly softened, with which to conduct the plaintiff's business," should not have been submitted to the jury, and that any evidence relative to the same should have been excluded. To this contention of the appellant's we do not agree. See Section 9941 of the Code, 1927; Conkling v. Standard Oil Co.,138 Iowa 596; Briggs Lucas v. Rumely Co., 96 Iowa 202. As shown by the record, the general manager of the defendant company, who made the sale, was well aware of the purpose for which the plaintiff desired the water softeners. Any affirmation of fact or any promise or assurance by the seller relating to the goods is an express warranty, if the natural tendency of such promise is to induce the buyer, relying thereon, to purchase the goods. The court, in the instructions, properly left it for the jury to find and determine whether or not the representation was made as an affirmation of fact, or as merely the opinion of the representative of the seller.
Another contention of the appellant's is that the rescission was not made within a reasonable time, and that for said reason the court should have sustained its motion for a directed verdict. It is the requirement of the law that 2. SALES: rescission for breach of warranty must be made modification within a reasonable time. See Section 9998 of or rescis- the Code, 1927. While, under certain sion of circumstances, the question of reasonable time contract: for the rescission is for the court, yet, delay in ordinarily, it is a question of fact, for the rescission: determination of the jury. See National Bank of
excuse. Decorah v. Robison, 199 Iowa 1044; CharitonPlumbing Heating Co. v. *Page 925 Lester, 202 Iowa 475. Inducements by the seller for the buyer to retain the machine, with the assurance that he will make it comply with his representation or promise, are quite important in the determination of this question. See Fulton Bank v. Mathers,161 Iowa 634. In this case we declared:
"There was some evidence that their complaints concerning the car were quite promptly made to the appellant, but that they were led to hold the car longer than they otherwise would by the attempts of the appellant to repair it and put it in condition to operate properly. The time thus taken by the request or by the inducement of the appellant to afford reasonable opportunity for the repair or regulation of the car would not be waiver, as a matter of law, of the right to rescind, and upon failure to remedy the defects, if any, against which the car had been warranted, appellees were entitled then to rescind. The alleged failure of the appellees to rescind was not so clearly shown as to call for a directed verdict against them."
Under the record, the jury could find that, when complaints were made by the plaintiff at various times, the defendant attempted to meet the complaints, and assured the plaintiff that it would make the water softeners work properly and comply with the warranty, and that said assurances were continued until the time of the rescission by the plaintiff; that it was these attempts and assurances which were the inducements, and constituted the reason for plaintiff's failure to act sooner; that, shortly before the rescission, Duffy, the general manager of the defendant corporation, who had made the sale in the first instance, informed the plaintiff that he would accept the return of the water softeners.
It is quite clear that, under the record, the question of reasonable time is one of fact, for the determination of the jury.
The appellant complains that the court did not submit the issues of waiver and estoppel claimed by him to have been made by his pleadings. The pleadings are not sufficient to constitute an estoppel, nor is there any evidence upon which 3. SALES: to base an estoppel. In such cases, the question remedies of is not one of waiver, but of election. See buyer: Mattauch v. Riddell Auto. Co., 138 Iowa 22, 25. failure to If, within a reasonable time, the buyer fails to rescind: take steps damages. *Page 926
toward rescission, he will be deemed to have elected to retain the article and rely upon damages. The question of reasonable time was properly submitted to the jury. The appellant asked no amplification of the instructions. There is no error at this point.
The appellant complains of a claimed omission of the element of reasonable time in one of the instructions. Said instruction is followed by other instructions clearly covering this proposition. Instructions are to be read and considered as a connected whole. It is apparent that the jury could not have misunderstood the same or been misled thereby. There is no prejudicial error at this point.
The appellant complains that the court should have more fully instructed upon the question of "reasonable time." The instructions as given were correct. No amplification of the same was asked by the appellant. Therefore, the 4. APPEAL AND appellant is in no position to complain. ERROR: We have considered all the complaints made by review: the appellant. It is apparent from the reading scope and of the record that there is a striking conflict extent: in the testimony in support of the claims of the failure to respective parties, but the question of the request credibility of the witnesses and the amplified determination of the propositions of fact were instruction. for the jury. — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436210/ | [1] The parties hereto are husband and wife, both residing in Sioux City, Iowa. The defendant was 73 years of *Page 128
age and the plaintiff 66 at the time of the trial. They lived together as husband and wife for a great number of years.
Defendant's father was a pioneer resident of Sioux City and died in 1902 survived by his widow, who died a few years later, and five children: Leslie T. Richardson, the defendant herein, Alice O. Richardson, Gratia R. Caton, Mrs. Manley, and Mrs. Gertrude Patterson. His father's estate had never been divided and at the time of the trial was worth over a half a million dollars. This was owned jointly by the five children until some time prior to 1930. Before 1930, the appellee and his two sisters, Mrs. Caton and Alice O. Richardson purchased the interests of the other two sisters, thus becoming the owners of an undivided one-third of the estate. Such ownership continued until June, 1930. Mrs. Caton was about 77 years of age and in failing health. For this reason they started negotiations in 1929 to partition and divide the property. In order to accomplish this purpose it became necessary to have plaintiff join in the execution of deeds conveying certain real estate to defendant's sisters, Mrs. Caton and Alice Richardson.
Mrs. Caton's son, Louis Caton, resided in Oklahoma and came to Sioux City for the purpose of effecting a partition and settlement of the estate. The appellant refused to sign the necessary papers and deeds to accomplish this settlement until the second or third of June, 1930. After many heated and violent discussions between the appellant and appellee, she was finally induced to sign the necessary deeds. This was not done, however, until after appellee paid her the sum of $50,000 therefor. After she had received the $50,000 she asked him to give her another check for good measure, and he thereupon gave her another $1,000.
These parties were before us in another action entitled Isabel Richardson v. Alice O. Richardson, 216 Iowa 1205, 250 N.W. 481, in which the appellant sought to set aside some of the deeds referred to, on the ground of fraud and undue influence. The facts leading up to the execution of those instruments are substantially identical with those relied on in this action in relation thereto and are all fully set out in that action. We will therefore not attempt to restate them here. In that action we decided that the appellant failed to establish the grounds relied upon by sufficient evidence, and refused to set aside any of such instruments.
One of the principal grounds alleged in this action for the appointment of a guardian is also that appellee was so dominated *Page 129
by his sisters and Louis Caton, his nephew, that he was fraudulently induced to sign the instruments in question. This evidence, together with other evidence, was offered in this case for the purpose of showing appellee's incompetency to manage his property. In the other action we held that appellant failed to establish fraud and undue influence, and we adhere to that finding here. We will, therefore, give such allegations of fraud and undue influence no further consideration here.
The other allegations of the petition for the appointment of a guardian are that for more than two years the defendant's mind has become so affected because of age and ill health that he does not have sufficient mental capacity to conserve, protect, and handle his business and property in his previously competent and normal manner.
At the conclusion of appellant's evidence the court sustained defendant's motion for a directed verdict for the defendant. Appellant contends that the court erred in failing to submit this case to the jury on the question of the sufficiency of the evidence to establish appellee's mental incompetency to handle his own business. Appellant contends there was sufficient evidence to take this question of appellee's mental incapacity to the jury.
It is the well settled law of this state that where substantial evidence has been tendered on the part of the plaintiff to establish the defendant's unsoundness of mind and his inability to manage and control his business and property, the question then becomes one for the jury. Ferguson v. Ferguson, 183 Iowa 519, 167 N.W. 471; Smith v. Hickenbottom, 57 Iowa 733, 11 N.W. 664; McGibbons v. McGibbons, 119 Iowa 140, 93 N.W. 55; Brown v. Lambe, 119 Iowa 404, 93 N.W. 486.
It is equally well settled that where the evidence fails to show such an unsound mental condition as to render the defendant incapable of managing his own business and property, then it becomes the duty of the court to direct a verdict for defendant. Wood v. Wood, 129 Iowa 255, loc. cit. 258, 105 N.W. 517; Huffman v. Beamer, 198 Iowa 1113, loc. cit. 1116, 197 N.W. 476; Miller v. Paulson, 185 Iowa 218, 169 N.W. 203; McGuire v. Moorhead,151 Iowa 25, 130 N.W. 140; McDermott v. Rahely, 146 Iowa 458, 125 N.W. 219; Arment v. Arment, 134 Iowa 199, 111 N.W. 812; Schick v. Stuhr, 120 Iowa 396, 94 N.W. 915; Lang v. Lang, 157 Iowa 300, 135 N.W. 604. *Page 130
A guardianship proceeding is not necessarily adversary, but is presumed to be prosecuted and defended solely in the interest of the defendant. Timonds v. Hunter, 169 Iowa 598, 151 N.W. 961; McGuire v. Moorhead, 151 Iowa 25, 130 N.W. 140; Huffman v. Beamer, 198 Iowa 1113, 197 N.W. 476.
In Timonds v. Hunter, 169 Iowa 598, loc. cit. 608, 151 N.W. 961, 964, we said:
"No one other than the defendant has a legal interest in the result. And yet the correctness of the result is of the highest importance to the defendant. A judgment making the guardianship permanent puts him under disability as a non compos mentis. It not only deprives him of the present control of his property, but it renders him presumptively incapable, and perhaps conclusively so, of entering into any contract or making any testamentary disposal of his property."
The theory of this class of cases is that it is necessary to show by sufficient evidence that the defendant does not have sufficient mental capacity to carry on his own business affairs. Emerick v. Emerick, 83 Iowa 411, 49 N.W. 1017, 13 L.R.A. 757; McDermott v. Rahely, 146 Iowa 458, 125 N.W. 219; McGuire v. Moorhead, 151 Iowa 25, 130 N.W. 140; Lang v. Lang, 157 Iowa 300, 135 N.W. 604; Graham v. Clapp, 191 Iowa 1224, 184 N.W. 329; Coomes v. Mayer, 201 Iowa 405, 205 N.W. 645.
In Coomes v. Mayer, 201 Iowa 405, loc. cit. 408, 205 N.W. 645, 647, we said:
"The guardianship of a spendthrift or of one who is subject to evil habits may well be held over the ward for a time of testing his recovery of self-control. Nothing of that kind is involved here. In the very nature of the case the plaintiff's capacity to control her property cannot improve. The only fact appearing in the record as a reason for continuing this guardianship is the natural apprehension that her new husband has acquired sufficient influence over her to enable him to despoil her and to defraud her of her property. Such apprehensions are not to be indulged in. The moral character of the husband is unchallenged."
In Graham v. Clapp, 191 Iowa 1224, loc. cit. 1225, 184 N.W. 329, we said: *Page 131
"Since the statute is silent as to the indicia of mental unsoundness, we must resort to judicial opinion and definition. * * * Each case of this character is necessarily bottomed upon its own facts and upon final decision constitutes a weak precedent. * * * It is well settled that the unsoundness of mind which will justify guardianship must be more than mere debility or impairment of memory. It must be such as to deprive the person of ability to manage his estate. * * * The real test of mental unsoundness involves the competency of a person to manage his property and business affairs in a rational way. * * * The law of this case is well settled in Emerick v. Emerick, 83 Iowa 411, 49 N.W. 1017, 13 L.R.A. 757."
"Not every impairment of mind disqualifies one from the management of his property; unfitness to manage his estate judiciously is not sufficient. There must be such mental impairment as to render the subject incapable of understanding and acting with discretion in the ordinary affairs of life." 32 C.J. 630.
See, also, In re Wiechers v. Pool, 172 Iowa 422, 153 N.W. 65; In re Chappell's Est., 189 Mich. 526, 155 N.W. 569; In re Coburn,11 Cal.App. 604, 105 P. 924.
In Wiechers v. Pool, 172 Iowa, 422, loc. cit. 428, 153 N.W. 65, 68, we said:
"Guardians should not be appointed either of the person or of the property of one simply because he is aged or infirm, or because his mind is, to some extent, impaired by age, or diseased. * * * The object of the statute under which this proceeding was brought is the protection of property." (Italics ours.)
If the evidence fails to show that any mental incompetency of a defendant deprives him of the ability to care for his property and to understand the nature and effect of what he does, the court may direct the jury to return a verdict for the defendant. Wood v. Wood, 129 Iowa 255, 105 N.W. 517; Ferguson v. Ferguson,181 Iowa 1076, 165 N.W. 349; Miller v. Paulson, 185 Iowa 218, loc. cit. 221, 169 N.W. 203; Huffman v. Beamer, 198 Iowa 1113, loc. cit. 1116, 197 N.W. 476; McGuire v. Moorhead, 151 Iowa 25, loc. cit. 26, 130 N.W. 140.
In McGuire v. Moorhead, 151 Iowa 25, loc. cit. 28, 130 N.W. 140, 141, we said: *Page 132
"It is the common lot of men to grow old. It is inevitable that if life is prolonged to old age the advance of the years will be marked by a greater or less decrease of bodily powers and mental efficiency. But, generally speaking, if that decrease be normal, that is, if it be such only as attends age unaffected by abnormal brain conditions, there is no `unsoundness of mind' within themeaning of the law, and nothing to justify a court in deprivinga man of the control of the property which he himself has earnedand saved. The purpose of a guardianship of this nature has solereference to the preservation of the ward's property and estate.
[Italics ours.] The mere fact that he manifests the weakness, forgetfulness, and childishness of age is wholly immaterial, unless his debility has reached a stage where he cannot manage or intelligently direct the management of his own affairs, and his estate is liable to suffer material loss or waste for want of a responsible party in charge."
For these reasons the courts have invariably held that the evidence to establish mental incompetency will be closely scrutinized so that a person will not be unjustly deprived of the control of his property. Huffman v. Beamer, 198 Iowa 1113, loc. cit. 1117, 197 N.W. 476, 478. In that case we said:
"The proceeding bears some analogy to a will contest. In this class of cases we scrutinize the verdict more critically and interfere more readily than in any other class of litigation. The reasons for such scrutiny are even stronger in a guardianship proceeding than in a will contest. The courts cannot fail to observe the natural tendency of selfish interest to abuse this proceeding and to resort to it for wholly selfish purposes. The premature quarrels of expectant heirs are thrust upon the natural repose due to old age, and often result in despoiling the common benefactor and in destroying his status, and in depriving him of the liberty to do as he will with his own and in compelling him to eat his own substance out of a stranger's hand. These are some of the considerations which impel the courts to scrutinize an adverse verdict in a case where a plaintiff is necessarily dominated by a consideration of his own supposed interest, rather than by a tender regard for the best interest of the defendant."
In order to determine whether or not sufficient evidence was introduced in this case to show that defendant was mentally incompetent to manage his own property and affairs, it may be well to *Page 133
review the substantial evidence offered thereon. It will be impossible to incorporate all of the evidence offered, but we will review the substance of it.
Appellant testifies that about ten or twelve times during the last two or three years appellee would wake up at 2 or 3 o'clock in the morning and cry out for help, exclaiming that the devil was chasing him; that on one of such occasions he crawled under the bed, exclaiming that "they are after me"; that he had a loss of memory and would talk to himself; that he frequently flew into a rage for no apparent reason; that he had four pairs of glasses and on one occasion, on being unable to find even one pair, he flew into a rage and threw furniture around the house, striking the appellant; that on a number of occasions when he found screen doors hooked he would cut the screen or jerk the door off the hinges; he eats rapidly and leans on the table with his elbows, although she asked him not to do so; that he frequently threatened her life; that on several occasions he turned on eight or ten lights and went upstairs leaving them burning; that at frequent times he had a change in moods, being sometimes jovial and sometimes very depressed; that he was much bothered about his business affairs; that on several occasions he closed the windows and turned on the gas. The balance of her testimony related to the dominating influence of his sisters and nephew upon appellee, and fraud in procuring him to sign deeds referred to.
Mrs. Carley, a nurse, while at the Richardson home to nurse the appellant in August, 1931, testified that she noticed Mr. Richardson during one of his spells get out of bed in the night; that he was under an hallucination; that during these times he was pale, seemed dazed, and wouldn't go back to bed; that she saw him walking about the house in an abnormal manner, going in and out of the house slamming the doors for apparently no purpose; that he talked to himself in an irrational manner; and saw him tear off screens.
Mrs. Lindsay, a neighbor, testified to one occasion when Mr. Richardson had become violent and had injured the plaintiff. That when Mrs. Richardson asked for one medicine tablet he said, "If one is good, two is better"; that the defendant seemed excited and didn't know what he was doing, and was pacing back and forth; that she was called over by Mrs. Richardson when her nose was bleeding after she had been struck by the defendant; that several *Page 134
times she saw defendant walking the street waving his arms, talking, and laughing to himself.
Mrs. Richardson, Mrs. Carley, and Mrs. Lindsay all testified that in their opinion based upon the foregoing facts they believed the defendant was of unsound mind. The witness Mrs. Humphrey said she had a conversation with the defendant in regard to placing a loan for her; that he told her that he was turning all his business over to his nephew and could not handle things any more; and that he seemed very nervous and tired out.
Dr. Carney, an expert witness, in answer to a hypothetical question based upon the facts testified to by the foregoing witnesses, stated that in his opinion the defendant was of unsound mind, and that he was suffering from a form of senile dementia. On cross-examination, however, he testified that if the assumed person could give accurate details in regard to real estate and business transactions involving a large amount of property it would not fit into the picture of senile dementia. He also admitted on cross-examination that a person who could give the details of a loan made by him within a week of the trial, that one testifying as a witness for more than one and a half hours, and give in detail each piece of real estate, the number of acres and the valuation, and the details of the division of nearly a million dollars worth of property, giving the securities and the terms of settlement, does not fit in with the picture of senile dementia.
Mrs. Richardson also testified that much of the trouble started when Louis Caton, her husband's nephew, came to Sioux City; that it was apparent to her that he was completely dominating the defendant, and dictated what he should do about his property; that Louis Caton and his mother had the defendant completely bewildered and under their control.
The evidence fairly discloses that most of the friction between the parties hereto apparently grew out of the efforts being made by the defendant and his sisters for a division of their joint estate. It is also apparent that the storm broke when appellee requested his wife to sign the necessary deeds and papers to carry into effect the agreement entered into between appellee and his sisters for a division of their property. It is also fair to say that her refusal to sign these papers was the cause of his violence towards his wife, and that he may have treated her in a cruel and inhuman manner. The bone of contention was property which belonged to the appellee *Page 135
and his sisters equally as heirs of their father's estate. He had already received a large amount of money from one of his sisters for his agreement to transfer his interest in certain real estate. In order to complete this transfer it was necessary to have his wife's signature on the deeds. His request that she sign these deeds was perfectly natural and normal under the circumstances, but was met with a storm of protest. One of his sisters was 77 years of age, he was 73, and another sister was also well advanced in years. They all desired to have their property partitioned so that each could control his own. Some time before he asked appellant to sign these deeds, he had already given her a deed to the home. His wife knew that all of the property was owned jointly by appellee and his sisters, she also knew that they contemplated a division thereof, and in order to make such division that it was necessary for her to sign deeds. Notwithstanding all this she refused absolutely to sign the necessary papers until after she had received $50,000 from her husband as an inducement therefor. Plaintiff had a good home and was never in want for anything; he had given her from two to three hundred dollars a month during a long period of years.
There is no testimony in this record tending to show that appellee was a spendthrift or was in any manner dissipating his estate. So far as the record shows he is able to manage and control his property in a usual and normal manner for a person of his age and experience.
The testimony shows that Mr. Richardson was a man of much business ability; that he had cared for and looked after over one-half million dollars worth of property for himself and his sisters for many years. There is no testimony in the record from any of his business associates, or persons with whom he had business dealings, that he was not able to carry on his own affairs or look after his own property in an ordinary manner. Appellee was called as a witness for plaintiff. While on the stand he gave the details of his family relations; told of the execution of a trust deed in which he had no direct interest whatsoever; told how the property passed from his father to the five children; gave in detail the location of the different properties; told how he and Mrs. Caton, the widowed mother of Louis Caton, and his sister Alice O. Richardson became the owners of the property; told of the interest of the other heirs; told how he had charge of the property, first as administrator, and afterwards as agent and manager of the estate; told of his desire to *Page 136
give up the responsibility of managing the property, and his efforts, with the aid of Louis Caton, to make a partition and division of the joint properties; that some of the property was taken in his name and that of Louis Caton as trustees with a provision that if there should be any loss it would be borne equitably; told about the different farms and what each cost and the value thereof. He told about his loans, the amounts and the parties to whom made, the character of the security; told about how he had sustained a loss on cattle several years before; told about $10,000 worth of stock he had purchased in the Warrior Hotel Company, not as an investment strictly, but to enhance the value of the other property. He testified at length both on direct and cross examination about the scene in his office at the time the deeds were signed by the plaintiff, and about the payment to her of $50,000 for her signature, and of his giving her $1,000 additional.
The only expert witness called by the plaintiff was Dr. Carney, who in answer to the hypothetical question put to him on direct examination by plaintiff's counsel said that in his opinion such a person would be of unsound mind. On cross-examination, however, Dr. Carney admitted that a person conducting himself on the witness stand as did the appellee herein would not come within the picture of a senile dement. The doctor also admitted that a senile dement could carry on a small business and such people should be left to handle their business as long as possible; that it is a poor plan to take a senile dement away from his business, unless you can supply him with something else to do for his own good.
The evidence clearly discloses that the violent temper exhibited by appellee towards his wife was brought on by her refusal to sign the deeds and papers referred to. A quarrel between a man and his wife is not necessarily evidence of an unsound mind. The fact that a man becomes angry and violent when he is unable to find one of his four pairs of glasses is not necessarily evidence of unsound mind. The fact that he does not have the table manners suitable to his wife's taste would not necessarily show that he was of unsound mind. It is well settled that a mere impairment of memory is not sufficient to justify a guardianship. The fact that a person did any or all of the other things testified to by plaintiff's witnesses would not be sufficient to show that he does not have sufficient mental capacity to carry on his business and manage and protect his own property. In the last analysis the main question in this case is whether or not the defendant *Page 137
has been shown to be of sufficient mental unsoundness as not to be able to carry on his own business and manage his own property. No such testimony has been shown in this record.
After a division of the estate property between himself and his sisters, and after a transfer of their shares to them, the appellee would have left only one-third of the property he had before, and only one-fifth of the amount of property he managed when the entire estate was in his hands. A division of this property so that he would only have control of his own share would necessarily result in relieving him from the burdens of its entire care. In our opinion the evidence fails to show that he was not able to properly manage and control his individual share of this property.
A careful analysis of all the evidence offered on the part of the appellant in this case fails to satisfy this court that there was sufficient evidence to warrant a jury in finding that the appellee did not have sufficient mental capacity to carry on his own business or manage his own property. We believe the judgment of the lower court in directing a verdict was not erroneous.
[2] II. It is also contended that the court erred in permitting defendant on cross-examination of Dr. Carney to ask the hypothetical question put to him by appellee's counsel. Although this was assigned as one of the errors, it is not referred to in counsel's argument. Notwithstanding this fact and without reviewing the evidence in detail, it is sufficient to say that from an examination of the evidence introduced on both direct and cross examination, appellee's counsel was justified in asking the question, and we find no error in the court's ruling thereon.
The foregoing disposes of all the questions raised.
We believe the judgment of the lower court was right, and the same is hereby affirmed.
ALBERT, C.J., and STEVENS, KINDIG, ANDERSON, and MITCHELL, JJ., concur. *Page 138 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436211/ | On June 23, 1869, Nathan Andrews and wife conveyed to the district township of Jefferson three-fourths of an acre of land described by metes and bounds. The deed was with full covenants of warranty and without reservation of any reversionary right. A schoolhouse was built upon this site about 1871. The farm out of which the tract was carved came into the ownership of Maggie Andrews. On June 30, 1906, the school township and Maggie Andrews agreed upon an exchange of a strip of the schoolhouse site for a strip from Mrs. Andrews' land and the consequent adjustment of boundaries, about which there seems to have been some uncertainty. In pursuance of this agreement the school township executed to Maggie Andrews a deed for the schoolhouse site according to the description in the deed of 1869, and Maggie Andrews and husband, S.O. Andrews, executed to the school township a deed of three-fourths of an acre, described according to the changed boundaries. In the main, however, the schoolhouse site remained the same. Each conveyance recited a consideration of $25.00, and each offset the other. The conveyance to the school township, however, provided that the land conveyed was to be used for school purposes only, and to revert to the "grantors or heirs for the purchase price without interest when vacated or not used for school for a period of two years." S.O. Andrews, the husband, was president of the board of directors, and in behalf of his wife made the arrangement for exchange, and in the meeting of the board of directors made the motion to trade the strips of land involved, which was carried, so far as appears, without dissent. S.O. Andrews, as president of the board, and the secretary executed the deed of the district township to Maggie Andrews. About 1917 a consolidated district was formed, resulting in the abandonment of this schoolhouse site for school purposes. An "arbitrator" (appraiser) to fix the market value of each schoolhouse and each site not then required for the uses of the school district was appointed. The school board consulted an attorney, who advised them that the site would revert to Mrs. Andrews on payment of $25.00. Relying on this advice the *Page 1284
consolidated district conveyed the site to Mrs. Andrews on August 16, 1921, for $25.00. The schoolhouse was appraised and sold at the appraised valuation. The district and Mrs. Andrews occupied their respective tracts under these deeds without objection from anyone from the time of the conveyance on June 30, 1906, to the time of the reconveyance in 1921, since which time the schoolhouse site and the building have been used for church and community purposes under arrangement with Mrs. Andrews. Mrs. Andrews' right to the strip which was conveyed to her by the deed of June 30, 1906, and her right to the schoolhouse site after its conveyance to her in 1921, or the validity of the deeds of 1906 and 1921 and the validity of the action of the boards on those occasions were never questioned until the bringing of this suit, the petition in which was filed August 7, 1929. The plaintiff became the owner of real estate in the district about September, 1929.
Plaintiff claims that an absolute title to the schoolhouse site without limitation or reservation vested in the school district by the deed of 1869; that the district acquired title to the entire tract according to description, and that there was no reason or occasion for settlement or readjustment of boundaries; that the deed of 1906 to Maggie Andrews was void because of the interest of her husband, who was the president of the board; that the deed of 1906 from Maggie Andrews and her husband to the district conferred no reversion rights; that the deed from the school district to Maggie Andrews August 16, 1921, was void because the school district had no power to convey for less than the value of the site, shown to have been from $75 to $250; that the site could only be conveyed for its market or appraised value unless sold at public auction. (Code, 1931, Chapter 226.) It is the claim of the plaintiff that grantors of schoolhouse sites were given no right of reversion until the passage of Chapter 124, Thirteenth G.A. It is not necessary to pass upon these claims.
Plaintiff sues as a taxpayer. The cause of action, however, if any, belongs to the school district. The suit must be in the right of the school district. The powers of government of the school district (except so far as a vote of the electorate is required) is in the board of directors, not in the courts. It is not for the court to pass upon the wisdom of the acts of the board of *Page 1285
directors. The courts may interfere only when fraud or illegality is charged and proved, and when it is pleaded and proved that the board of directors has refused to perform its duties, or that it has unjustifiably neglected or failed to act and it is necessary for the plaintiff to sue for the protection of his rights as taxpayer. Reed v. Cunningham, 126 Iowa 302. In this case there is no such pleading or proof. The plaintiff has for this reason not made out a case for the interposition of the court.
In 1906 the school district and the owner of the tract of land out of which the schoolhouse site was taken agreed upon the exchange of strips of land and adjustment of boundaries. To say the least, it was not clear that the site held under the deed of 1869, on which no schoolhouse was built until 1871, was not subject to reversionary rights in the grantor. Chapter 124, 13th G.A.; Waddell v. Board of Directors, 190 Iowa 400; Independent School District v. Smith, 190 Iowa 929.
In pursuance and as a part of the agreement of 1906 and of the conveyance by which the school district obtained the strip of land from Mrs. Andrews, the deed by Mrs. Andrews of this strip reserved to her a reversionary right in the readjusted site. It is to be presumed that the board of directors acted in good faith and in the interest of the school district. No fraud is claimed, other than constructive fraud, resulting from S.O. Andrews' acting on both sides of the transaction. The district had power to ratify the adjustment of boundaries and the two conveyances which evidenced the adjustment. Municipal corporations may abandon proprietary rights, and as to such rights are subject to the statute of limitations. City of Pella v. Scholte, 24 Iowa 283; Davies v. Huebner, 45 Iowa 574; Simplot v. Dubuque, 49 Iowa 630.
The deed containing the reversionary clause, executed not only by Andrews but by the secretary of the board, and evidently known to the other members of the board, was recorded in 1906. The deed from Mrs. Andrews was recorded at the same time. For fifteen years the agreement and the deeds were unchallenged and the district had the use of the strip obtained thereby. The deed of 1921 to Mrs. Andrews was executed on the advice of counsel. It stood unchallenged until this suit was brought, eight years after its execution. During this time the district has retained the $25.00 paid for the deed, without complaint *Page 1286
or attempt to rescind. The complaint now made comes from one who, so far as appears, obtained his status as a taxpayer eight years after the last transaction. The court is now asked to investigate questions of boundary and occupation of schoolhouse site which were settled in apparently good faith more than twenty years before this action was commenced, and to set aside a sale and conveyance made more than eight years before the beginning of the action. It is a fair presumption that in these years persons having knowledge of the facts have died or removed, and that the recollection of others has become dimmed.
The transaction in controversy related to the proprietary or business, and not to the governmental, powers of the school district. It was lawful for the district to make an agreement such as that of 1906 and to make the deeds of 1906 and 1921. James v. Gettinger, 123 Iowa 199; Munn v. Independent Sch. Dist.,188 Iowa 757. The defects, if any, were at most in the authority of the board or manner of execution of the district's powers. Beers v. Lasher, 209 Iowa 1158. The district, however, might ratify defects in the execution by its officers of the district's power. Id. On this record it must be held that the district has affirmed the deed of 1906. Des Moines v. Horrabin, 204 Iowa 683; Love v. Des Moines, 210 Iowa 90; Beers v. Lasher, 209 Iowa 1158; Johnson v. Sch. Corporation, 117 Iowa 319; Stevenson v. Dist. Township, 35 Iowa 462. That deed sustains the deed of 1921. — Affirmed.
WAGNER, C.J., and EVANS, STEVENS, GRIMM, KINDIG, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436212/ | This case presents little difficulty either on the merits or the legal propositions involved. Title to real property appears to have been in Louise Gibson who, with her husband, executed a mortgage thereon to the Danville State Bank to secure a loan of $15,000. Thereafter the husband died. Louise then became involved in some way with Ray Walz, a son of appellee J.J. Walz, who was also married. His wife, Edith, successfully maintained an action against Louise for damages in the sum of $5,000 for the alleged alienation of her husband's affections. Louise thereupon executed a mortgage for $5,000 to Edith to secure the payment of the judgment previously rendered. Subsequently Edith instituted foreclosure proceedings upon the $5,000 obligation. Appellee J.J. Walz came to her rescue, loaned her $5,000, taking a second mortgage to himself upon the land to secure the payment thereof. Thus Louise became indebted $20,000, all of which was secured by mortgage on her farm. Subsequently the Danville State Bank brought an action to foreclose its $15,000 mortgage. Appellee Walz at or about the same time commenced an action to foreclose the $5,000 mortgage held by him. Thereafter a loan of $11,500 was negotiated by Louise Gibson and Ray Walz, who apparently lived with her, from the appellee First Iowa State Trust Savings Bank, to secure the payment of which they executed a mortgage upon the farm. To make up the deficit, the appellee J.J. Walz loaned Louise $5,500, taking a mortgage of $10,500, the full amount then due him, upon the land. Later, action to foreclose the $11,500 mortgage, executed to appellee bank, was begun. Appellee Walz also instituted an action to foreclose the $10,500 mortgage held by him. It thus appears that the $15,000 mortgage, with accumulations held by the *Page 267
Danville State Bank, was paid as follows: $11,500, the proceeds of the loan obtained by Louise Gibson and Ray Walz from appellee bank and $5,500 advanced by appellee J.J. Walz. Judgment and decree in the foreclosure action commenced by appellee bank on the $11,500 mortgage was entered for the amount due and special execution awarded. Special execution duly issued, and the land was sold at execution sale to the mortgagee, appellee bank, and sheriff's certificate of purchase issued to it. Subsequently appellee J.J. Walz and wife borrowed $11,500 from the appellee First Iowa State Trust Savings Bank, securing the payment thereof by mortgage upon the land and the assignment of the certificate of purchase. At the expiration of the period of redemption, J.J. Walz received a sheriff's deed, thereby becoming vested with such title as had been obtained by virtue of the execution sale.
Prior to the execution of the mortgage for $11,500 by Louise Gibson and Ray Walz to appellee bank and the $10,500 mortgage to appellee Walz, Louise Gibson executed a deed conveying the property to her sister, the appellant herein. This deed was withheld from record until after the date of the execution sale referred to. It was, however, recorded before the sheriff's deed was, in fact, executed and delivered to Walz. Much of the testimony introduced upon the trial in behalf of appellant is of doubtful veracity.
It is the contention of appellant that appellee J.J. Walz had actual notice of the deed from Louise to appellant prior to the execution of the two mortgages now in controversy and that both appellees had constructive notice of appellant's ownership of the farm. Appellant, Louise, and Ray Walz, each testified that appellee J.J. Walz was fully advised of the execution of the deed prior to the date of the mortgages in question. This appellee denies. We are inclined to credit his testimony. It is scarcely conceivable that he would have made an additional loan of $5,500 to Louise and have taken a mortgage for $10,500 to secure the payment of that sum if he had known that she was not the owner of the property. It will be remembered that the original loan of $5,000, made by him to Louise, was prior to the date of the deed and a valid lien on the land. It is likewise improbable that Louise would have negotiated a loan for $11,500 of the appellee bank with the conscious knowledge that she was not the owner of the land or that she had no right to do so. Surely she would not have perpetrated a fraud upon the bank in this way.
The testimony in behalf of appellant at this point is so contrary *Page 268
to human nature and experience as to seriously tax the credulity of the court.
[1] Upon the question of constructive notice, we think appellant has again failed to make the necessary proof. The law is well settled that a purchaser of real property is bound to take notice of the rights of one in possession. Louise continued to occupy and manage the farm, so far as the public was concerned, the same as she had prior to the execution of the deed. Ray Walz continued to reside at her home and to cultivate the land. She received the proceeds, transacted the business in her own name, and paid creditors the same as before. The land was taxed in her name, and she admits that she was to pay the interest on the loans. The claim now asserted that what she did was in obedience to the directions of appellant is not persuasive. There appears to have been a small house, in addition to the one occupied by Louise, upon the premises. Appellant claims to have moved her household goods into this house and to have lived there part of the time. We find no testimony in the record tending to show that she ever at any time, or to any person, made claim to the ownership of the premises. There was no such change in the occupancy or possession of the premises after the deed was executed as to impart constructive notice of the claim of appellant to the public. Ferguson v. White, 213 Iowa 1053,240 N.W. 700; Elliot v. Lane, 82 Iowa 484, 48 N.W. 720, 31 Am. St. Rep. 504; Iowa Loan Trust Co. v. King, 58 Iowa 598,12 N.W. 595; Lindley v. Martindale, 78 Iowa 379, 43 N.W. 233; Rogers v. Hussey, 36 Iowa 664; May v. Sturdivant, 75 Iowa 116,39 N.W. 221, 9 Am. St. Rep. 463.
There is nothing in the record tending directly to prove that appellees were charged with constructive notice of the claim now asserted by appellant, and the nature of the transactions had tended strongly to corroborate the testimony of J.J. Walz that he was without actual notice thereof.
[2] Whatever may be the truth as to appellant's claim of actual notice to appellee Walz, the decree of the district court must, for at least one other reason, be affirmed.
It is conceded by all parties that the proceeds of the loan from the appellee bank of $11,500 were applied directly to the payment of the $15,000 indebtedness to the Danville State Bank. The deed from Louise to appellant specifically excepts this incumbrance. It makes no reference to the $5,000 mortgage held by appellee Walz, *Page 269
but it was of record prior to the date of the conveyance.
It is likewise conceded that $5,500 was advanced by appellee to complete the payment of the amount due the Danville Bank. The separate mortgages executed by Louise and Ray Walz to appellees was for the purpose of securing the payment to them of the sums advanced in payment of the Danville mortgage. The present mortgage executed by appellee J.J. Walz and wife to the appellee bank was for the purpose of effecting redemption from the execution sale of the property. In such circumstances, appellees became subrogated to all the claim and rights of the original mortgagee. There can be no doubt at this point. Kent v. Bailey,181 Iowa 489, 164 N.W. 852; Carnall v. Kramer, 194 Iowa 359,189 N.W. 755; Gilbert v. Gilbert, 39 Iowa 657; State v. Beaton (Iowa)206 N.W. 103; Heuser v. Sharman, 89 Iowa 355, 56 N.W. 525, 48 Am. St. Rep. 390; Andrew v. Bevington Sav. Bank, 206 Iowa 869,221 N.W. 668; Young v. Shaner, 73 Iowa 555, 35 N.W. 629, 5 Am. St. Rep. 701; Wormer Son v. Waterloo Agricultural Works, 62 Iowa 699,14 N.W. 331; National Life Ins. Co. v. Ayres, 111 Iowa 200,82 N.W. 607; Bennett v. Nat. Bank, 128 Iowa 1, 102 N.W. 129, 5 Ann. Cas. 899. By becoming subrogated to the rights of the original mortgagee, they succeeded to all of the rights thereof in relation to the indebtedness as well as to the remedies. Millowners Mutual Life Ins. Co. v. Goff, 210 Iowa 1188,232 N.W. 504; Kent v Bailey, supra.
The court, by its decree, allowed appellant until March 1, 1932, to redeem by paying the clerk of the district court for the benefit of defendants $14,196.13, with interest, the full amount due. The time expired without redemption. It follows from what has already been said that the equities are with the cross-petitioner and that the decree should be and it is affirmed. — Affirmed.
KINDIG, C.J., and ANDERSON, MITCHELL, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436213/ | The facts in this case, as shown by the evidence and as set out in the petition, are that the plaintiff, who was a married woman and a resident of Nebraska, was visiting her relatives in Sioux City and staying at the time at the Jackson Hotel. In the early morning of March 30, 1937, she was visiting her brother, who was a porter at a beer parlor. While there she met the defendant, Albert Pape, with whom she had not theretofore been acquainted, and, at his invitation, entered his car with the intention on her part of being driven to her hotel, located at Fifth and Jackson streets. Instead of conducting her to her hotel the driver turned north on Douglas street, and at the intersection of Douglas street and Fourteenth street came into collision with a Yellow Cab, in which collision the plaintiff was injured.
Both Douglas street and Fourteenth street are paved streets and have a considerable amount of traffic on them. On the night in question it had been raining, but the center of the street had apparently dried off to some extent. On Douglas street, which is 38 feet wide, a number of cars were parked on both the east and west sides of the street at the time.
It is conceded that the car which defendant was driving, and which was the property of his father, now deceased, was driven with the consent of the owner. There is also no question that the plaintiff was a guest at the time of the accident.
Going north on Douglas street there is a considerable upgrade, but the street is downgrade from Thirteenth to Fourteenth street. As is usual, there is a considerable difference of opinion as to the speed at which the car was proceeding when the accident occurred. The plaintiff alleges it was traveling 60 to 65 miles an hour, while the defendant driver claims that the speed was about 25 miles per hour. The evidence of the plaintiff as to speed is supported to some extent by the testimony of the driver of the Yellow Cab, who states that the speed of the Pape car at the time of the impact was between 50 and 60 miles per hour.
The claim of recklessness on the part of the defendant Albert Pape consists in the high rate of speed, weaving back and forth from one side of the street to the other, failure to keep a lookout, and failure to attempt to apply brakes or slow down at *Page 173
the intersection, and failure to accede to the request of the plaintiff to slow down. All these matters were alleged by plaintiff in her petition and to this petition the defendant filed answer, admitting the accident and that the plaintiff was a guest in the Pape car, together with a general denial of all matters not admitted.
Under the issues thus made trial was had and verdict rendered in favor of the plaintiff. Exceptions to instructions were duly filed, and motion for a new trial, which were overruled. From such order of the court, and the court's failure to direct a verdict at the close of plaintiff's testimony and at the conclusion of the evidence, the defendant appeals.
Defendant urges a number of errors, all of which will be noticed as far as is necessary.
I. Defendant urges that the court erred in failing and refusing to submit to the jury the issue that the sole proximate cause of the collision was the acts and conduct of the driver of the Yellow Cab; and also in failing and refusing to instruct that the defendant, in the operation of his car, had the right to assume that the driver of the Yellow Cab would obey the law in respect to keeping a proper lookout until, in the exercise of ordinary care, he should have known otherwise. Also the defendant urges the failure and refusal of the court to give instruction No. 17 requested by the defendant, in substance that the driver of the Yellow Cab was under a duty to reduce his speed to a reasonable and proper rate, and to have his cab under control when approaching or traversing the intersection in question; and that Albert Pape had the right to assume that the driver of the cab would obey the law.
[1] As to all three of these alleged errors instructions were duly asked and refused. So far as each instruction is concerned, it was correct as an abstract statement of the law; but in order for the court to be warranted in giving them it would be necessary that they have support in the evidence. Unquestionably the driver of the Pape car had the right to assume that the car coming into the intersection from the right would obey the law in all respects. The only direct evidence as to speed indicates that the driver of the Yellow Cab was proceeding at a rate not to exceed 8 or 10 miles per hour, that he was on the proper side of the street, and, in the event of both cars coming into the intersection at the same time, he would have the right of way. Of *Page 174
course, it was his duty to keep a lookout and proceed at a reasonable rate of speed; but nowhere in the evidence is there any indication that he did otherwise. Under such a state of the evidence it was not necessary that the court should call attention to the matters asked for in the three instructions requested by the defendant. Fry v. Smith, 217 Iowa 1295,253 N.W. 147; Hoover v. Haggard, 219 Iowa 1232, 260 N.W. 540.
[2] II. The defendant urges that the court in giving instruction No. 1 should not have submitted the specification of recklessness which is as follows:
"In making no attempt to apply his brakes and slow down at any of said intersections, including that of Fourteenth and Douglas Streets; * * *."
We are compelled to disagree with counsel as to the effect of the evidence on this particular specification. The plaintiff in her testimony states that she does not think he slowed down, but that "it seemed that he went faster." There is, of course, the evidence of the defendant Albert Pape, who states that he did "slam on the brakes" just as he saw the cab. Under all the circumstances of the accident and the testimony of the only witnesses who had any personal knowledge of it, we think there was presented a jury question on this specification of recklessness.
[3] III. Defendant assails instruction No. 12 given by the court, as follows:
"You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff, Mildred Reed, was injured by reason of the recklessness of the defendant, Albert Pape, in the operation of said automobile in which the plaintiff was riding at the time and place in question, the defendants are liable in this case, even though the negligence or wrongful act of some third person may have contributed to, concurred with or combined with such recklessness on the part of the defendant, Albert Pape, in causing the injury and damage complained of."
It is urged that no specific ground of recklessness is referred to in this instruction. Standing alone this instruction would be erroneous. But the instructions given by the court, one of which was instruction No. 13 given by the court at the request of the defendant and in which the court said, "Recovery, if any, in this case can only be based upon some act of recklessness as *Page 175
claimed by the plaintiff and set forth in these instructions directly causing the injuries," and a number of the instructions, told the jury that they should consider only the evidence and the issues submitted in the case, — particularly in instruction No. 14 and in instruction No. 3, where the issues are referred to and the jury instructed that "such are the issues you are required to try and determine from the evidence submitted to you, under the instructions * * *."
Under the general rule that instructions are to be considered as a whole, we fail to see that the jury could have been misled in any respect by instruction No. 12, which is directed properly to the question of liability of the defendant even though there was concurrent liability on the part of someone else. We think all the instructions, if read together, fairly state the issues, and that, so far as this particular objection is concerned, there was no prejudice.
[4] IV. Objection is also made to the statement of the issues in the case and authorities are cited to the effect that the pleadings should not be copied verbatim in the court's instructions. It is true that this court has condemned this custom at various times, and especially where the copied pleadings contained allegations foreign to the issues. It is elementary that no allegations should be submitted that are unsupported by the evidence. The copying of the pleadings, however, though not approved, is not necessarily error, and it has often been held by this court that where the pleadings concisely and clearly state the issues the court may adopt them and use them. See Graham v. Ochsner, 193 Iowa 1196, 188 N.W. 838. From an examination of the instruction we feel that it does so fairly and properly present the issues and the claims of the plaintiff. Such being the case we hold that there was no error in this respect.
[5] The defendant, however, does argue that instruction No. 1 contains matters not pertinent to the issues and prejudicial allegations foreign to the issues in the case. The part of instruction No. 1 to which defendant takes particular exception is as follows:
"That the plaintiff, at the invitation and request of the defendant, Albert Pape, as aforesaid, entered said automobile near the intersection of Fifth Street and Pearl Street in the City of Sioux City, Woodbury County, Iowa, to be driven to the *Page 176
Jackson Hotel located at Fifth Street and Jackson Street in the City of Sioux City, Woodbury County, Iowa, at a point four blocks east of said intersection of Fifth and Pearl Streets in said City; that the plaintiff was a guest in said automobile and not a passenger for hire; that when the plaintiff entered said car at the invitation and request of the defendant, Albert Pape, said defendant drove the car east on Fifth Street toward the Jackson Hotel for a distance of one block to the intersection of Fifth Street and Douglas Street in said City, at which point the said defendant turned the car to the left and proceeded north on Douglas Street at a speed of from 60 to 65 miles per hour and to and across the intersection of Fourteenth Street and Douglas Street; * * *."
Defendant contends that the instruction was prejudicial for the reason that it permitted the jury to draw an inference that the plaintiff was not willingly in defendant's car at the time of the accident, but we are not able to place any such construction upon the quoted part of the instruction. It is true that the plaintiff testified that they were not proceeding to the original point of destination, but the portion of the instruction set out nowhere indicates that she was unwillingly in the car at the time of the accident. We think there was no error in the giving of the instruction or the inclusion therein of the portion objected to.
[6] V. The defendant as grounds Nos. 1 and 2 of his objections urges the failure of the court to sustain the motions for a directed verdict and for a new trial. The two grounds may be considered together, and both of them depend upon the question of recklessness. It is claimed by the defendant, and very strongly urged, that this case, under the issues and the evidence, is merely a case of negligence and is not a case of reckless operation of the car. As heretofore stated, the plaintiff was concededly a guest, so that if recovery is to be had in this action it can be only on the ground that the actions of Albert Pape were of reckless character.
This question has been many times gone over by this court. The statute is a familiar one and was enacted for a good and useful purpose. It is true that the grounds for recovery under the guest statute [Code 1935, section 5026-bl] are exceptional and not general. A guest cannot recover against the driver or owner *Page 177
except for intoxication or reckless operation. And recklessness has been too many times defined by this court to render it necessary to do more than refer to it here. Recklessness was defined in the case of Neessen v. Armstrong, 213 Iowa 378, 383,239 N.W. 56, and also in Siesseger v. Puth, 213 Iowa 164, 182,239 N.W. 46; and it has been approved in many subsequent cases, including Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159, and Levinson v. Hagerman, 214 Iowa 1296, 244 N.W. 307, and cases following, one of the last of which is the case of Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645, decided in 1937.
It is undoubtedly true, and a number of recent cases so hold, that speed alone will not be considered as recklessness. Wilson v. Oxborrow, 220 Iowa 1131, 264 N.W. 5; Mayer v. Sheetz, 223 Iowa 582,273 N.W. 138, and cases therein cited. In many cases no one factor could be definitely assigned as recklessness, but a combination of various factors would be required. In the recent case of Mescher v. Brogan, supra, this matter is referred to and this court, in an opinion by Hamilton, J., says:
"It was not speed alone. It was speed, plus limited visibility, plus the turn in the highway. Was this conduct recklessness, or was it merely failure to exercise ordinary care? We think it was a matter properly submitted to the jury. The record is not one upon which the minds of all reasonable men could come to but one conclusion." [223 Iowa 580, 272 N.W. 650.]
In the instant case there are various factors aside from speed which would necessarily have to be taken into consideration. There was evidence to support the claim that the car was swerving from side to side; that the street was to some extent wet; that up to Thirteenth street there was an incline and a downgrade from that point on; that the time was two o'clock in the morning; that there was a cross street, one of the frequently used arteries of travel, Fourteenth street, and that the defendant driver made no effort to stop and did not diminish his speed in approaching this street, the view of which was to some extent obstructed. We believe that all these factors, combined with the element of speed, were sufficient to take the case to the jury and that it was properly submitted.
Finding no error, we feel that the case should be affirmed. — Affirmed.
HAMILTON, STIGER, SAGER, BLISS, and OLIVER, JJ., concur. *Page 178 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436214/ | There is very little conflict in the record. One Boldt, living at Lynch, Nebraska, gave a mortgage to the plaintiff to secure a promissory note in the sum of $210. The description of the property appears in the mortgage as follows:
"Eighteen (18) Head of Cattle better described as follows:
"Six (6) Head of Milch Cows mostly reds, roans, and white faces in color, average weight about 1,100 pounds.
"Six (6) Head of two year old Heifers, reds, roans and red white faces in color, average weight about 900 pounds.
"Six (6) Head of Yearling Steers, average weight about 600 pounds, mostly reds, roans and red white faces in colors.
"All the above described stock are located on the farm rented by me about four miles North of Lynch, Boyd County, Nebraska, where they will remain during the life of this loan.
"There are no specific brands or marks on the above described cattle but this mortgage covers all the cattle that I now own or may hereafter own during the life of this loan."
On July 30, 1937, about a month after the giving of the mortgage, nine head of cattle were received by the defendant, Commission Company, and by them sold. The proceeds were remitted to Boldt and not to plaintiff, hence this lawsuit. The *Page 396
cattle sold were described as consisting of two cows, weighing 1,780 pounds, six heifers weighing 735 pounds apiece, and one calf. At the time the chattel mortgage was given, the 18 cattle sought to be described were a part of a larger herd of 25 or 26 head, all in the same field or pasture. Boldt testified that some of these cattle, belonging to his wife and son, answered the description as well as the cattle owned by the mortgagor. Contrary to the designation of the place at which the cattle were located in the description in the mortgage, they were in fact removed by the trucker who transported them to Sioux City from a farm known as the Leo Baker place, four miles south of Lynch, Nebraska; in other words, a farm eight miles distant from the one referred to in the mortgage.
We have then before us the question whether as a matter of law the description was sufficient to give notice to the defendant as appellant claims; or whether there was sufficient uncertainty as to make it a jury question as the court held. We think that the trial court took the proper view. We have before us a vague and uncertain description of the animals themselves taken from a larger group, some not owned by the mortgagor which answered the description of those covered. The mortgagor was permitted to testify that he himself could not pick out the cattle from the description. This affords the basis of some argument on the part of appellant but we do not stop to discuss it.
We have the further fact rendering the description uncertain — the location of the cattle on a farm nowhere mentioned in the mortgage and at a distance eight miles from where the cattle were supposed to be. Without entering into an analysis of our many cases on this subject, we call attention to these, which, among others, have held that a jury question is presented under the circumstances here disclosed: Peterson v. Foli, 67 Iowa 402, 25 N.W. 677; Packers Nat. Bank v. Railroad Co., 114 Iowa 621, 87 N.W. 653; Livingston v. Stevens, 122 Iowa 62, 94 N.W. 925; Church v. Brown, 195 Iowa 1112, 193 N.W. 414.
The error in the description in the mortgage before us might well bring it within the principles discussed by Evans, J., and concurred in by Faville, J., in the dissenting opinion *Page 397
in Wertheimer Degen v. Schultice, 202 Iowa 1140, 211 N.W. 568. Appellant lays much stress on Wertheimer Degen v. Parsons,209 Iowa 1241, 229 N.W. 829, arguing therefrom that it holds as applied to this case that there was no jury question presented and that the court should have sustained its motion to direct. In that decision (we quote from the syllabus which accurately states the case) "the description revealed the particular kind of cattle, their age, average weight, the particular brand thereon, the particular farm where kept, and the particular possessor."
We have recently laid down the general principles governing the sufficiency of a description in a chattel mortgage to impart constructive notice and there is no occasion of extending this opinion. See Producers L.M. Assn. v. Morrell Co., 220 Iowa 948, 263 N.W. 242, and Strand v. Jones County, 228 Iowa 875, 293 N.W. 477. See also Pierre v. Pierre, 210 Iowa 1304, 232 N.W. 633. While the mortgage under discussion was duly recorded in Boyd county, Nebraska, it is not claimed that the defendant had any actual knowledge of it. Appellant has argued its contentions under different headings in its briefs but they are comprehended in one question, and that is the sufficiency of the description to impart notice under the circumstances disclosed.
Appellee has filed a motion to dismiss and to affirm for the reason that the abstract and the appellant's argument do not comply with our rules. While this is in a sense true, the record is short and the question at issue plain, and we have chosen to decide the question on its merits. The motion is therefore overruled.
On the whole, we are satisfied that when the trial court submitted the case to the jury, it gave to the plaintiff at least all to which it was entitled under the facts before us. The judgment on the verdict is therefore affirmed. — Affirmed.
RICHARDS, C.J., and MILLER, HALE, BLISS, MITCHELL, and HAMILTON, JJ., concur.
STIGER, J., concurs in result. *Page 398 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436216/ | This case was tried on stipulated facts.
In 1882 Alex R. Patterson, and five other grantors having the same last name, conveyed to the Chicago, Burlington Pacific Railroad Company, by warranty deed, a strip of land 100 feet wide through the following tract of land, to wit:
"Northwest Quarter of the Northwest Quarter of Section 21, in Township 74, North of Range 11 West of the 5th P.M. Iowa (and other land). The said strip of land being 50 feet on each side of the center line of said railroad as now located by said Company, to have and to hold said strip of land for all purposes incident and necessary to the construction and operation of a railroad and telegraph line or lines thereon."
The railroad was constructed by the grantee, or by those claiming under it, and for many years the Minneapolis and St. Louis Railway Company maintained and used a standard gauge railway on the strip conveyed. About two years before the commencement of this action, said Railway Company abandoned this right of way and strip of ground for railway purposes, and removed the track and all of its equipment thereon, and on May 3, 1937, executed to the defendant, Guy Reinier, a quitclaim deed to said strip. He is the husband of his co-defendant.
Guy Reinier, by mesne conveyances, is the owner of all right, title, and interest conveyed or granted by the Patterson deed, unless it has reverted to the plaintiff, and the plaintiff is the owner, by mesne conveyances of all the land, abutting this strip on each side, in the governmental 40 acres from which it was taken.
Section 7861 of the Iowa Code of 1935 is as follows:
"Relocation of railway. Such part of a railway right of *Page 501
way as is wholly abandoned for railway purposes by the relocation of the line of railway, shall revert to the persons who, at the time of the abandonment, are owners of the tract from which such abandoned right of way was taken."
The plaintiff bases its right to the decree, prayed for and entered, solely as the owner, by reversion, under said section, of the strip of land in controversy.
The defendants base their ownership of the strip, and their right to a reversal of the decree, upon the ground that the Patterson deed to the railroad company, conveyed to the latter, not a mere right of way across the 40 acres, but an absolute title in fee simple, which was not subject to reversion under the statutory provision. They rely chiefly upon the decisions of this court in Watkins v. The Iowa Central Railway Company, 123 Iowa 390,98 N.W. 910; Des Moines City Railway Co. v. Des Moines,183 Iowa 1261, 159 N.W. 450, and Montgomery County v. Case, 212 Iowa 73,232 N.W. 150. These decisions are not controlling in the case before us. In the case first cited [123 Iowa 390, 397,98 N.W. 912], the deed of bargain and sale to the railroad company conveyed:
"`So much of the southwest quarter * * * as lies within fifty feet of the center line of the main track of the Iowa Central Railroad, as the same is surveyed, staked out and marked upon the ground, being fifty feet in width on each side of said center line.'"
The conveyance was in no way limited. As the court therein said:
"There is no showing in the deed that this was for a right of way, or that it was to be used for railway purposes. The deed, on its face, conveys an absolute estate in fee simple."
The court held that, under such a deed, the title of the railway company was not lost by nonuser. Justice Weaver, with Justice McClain concurring, disputed the last proposition in a very able dissent.
In the second cited case, it appears that originally the corporate limits of Des Moines extended west only to a point between 37th and 38th streets. The town of Greenwood Park, immediately west, had granted to the plaintiff's grantor the *Page 502
right to construct its railway upon a 65-foot street running through the town. From the corporate limits eastward on what is now Ingersoll Avenue, to 28th street, the plaintiff obtained deeds to a 20-foot strip, from the abutting property owners, who also dedicated to the city a 40-foot strip on each side, for street purposes. When the latter strips were paved by the city, an assessment for the cost of the paving was levied against the 20-foot strip, as abutting property. That was the issue in the case. There had been no abandonment of the street railway, and there had been no reversion. The question was whether, under the circumstances, the 20 feet should be assessed to help pay the cost of the paving. The court held that it should be, saying [183 Iowa 1261, 159 N.W. 452, L.R.A. 1918D, 839]:
"The conveyances under which it occupies and exercises dominion over the 20-foot strip do not limit their legal effect to a right of way only. No mention of a right of way, either in terms or by words of necessarily equivalent meaning, is to be found in any of the deeds. In each, the owners of the tract convey, sell and quitclaim to the grantee all their right, title, and interest in the land, and not merely in the right of way. It is not denied that the grantors owned and had the right to convey the land; and their deeds, in form and in substance, were sufficient to vest a fee in the grantee. This is none the less true because each deed embodied a statement that the land is to be used for the construction and operation of a street railway, and provides that if, in the future, it shall be abandoned for that purpose, it shall revert to the grantor or to the public. A condition in a deed by which the property is to revert to the grantor, upon an event which may or may never occur, gives rise to what the books call the "possibility of reverter," and serves, in some degree, to qualify the fee created by the conveyance. But it remains true that an estate so conveyed is, nevertheless, a fee; and the grantee thereof is the owner, so long as the estate continues, and until the reverter takes place."
In the Montgomery County case, supra [212 Iowa 73, 75,232 N.W. 150], the plaintiff county sought to condemn land for a highway, through the defendant's land, and also upon an abandoned railroad right of way, which the county claimed *Page 503
to own, adjacent to the defendant's land. The defendant's father had conveyed this strip, by warranty deed, to the railroad company, describing it as follows: "`A strip of land 100 feet, fifty feet on either side of the center line of grantee's railway track, through, over and across the Southeast Quarter of Section * * *'" There were no words of limitation. Afterwards the father conveyed the quarter section, excepting the right of way, to the defendant, and later he conveyed to him the 100-foot strip. Previous to this last conveyance the right of way had been abandoned and conveyed by mesne conveyances to the plaintiff county. The defendant claimed the strip and sought to make the county pay him damages therefor in the condemnation proceedings. The court held that it was ruled by the decision in Watkins v. Railway, supra, and refused to award the defendant damages. Without stating their grounds therefor, Justices Evans, Wagner, DeGraff and Albert dissented.
[1] The deed, in the case before us, is not a straight fee simple conveyance, but the strip of land was conveyed to the railroad company, "to have and to hold for all purposes incident and necessary to the construction and operation of a railroad and telegraph line or lines thereon." The grant was limited to a specific purpose, and that purpose having been abandoned, all right, title, and interest of the railroad in and to the land was thereby divested. It is our holding that the deed conveyed nothing greater than a right of way across the 40 acres for the purpose specified in the deed, and that after the abandonment, the deed of the Minneapolis and St. Louis Railroad Company conveyed nothing to the appellant, Guy Reinier, since the fee title to the land had previously reverted to the plaintiff, under the said Code section 7861.
[2] Our decision is based upon the provisions of this particular deed, but in interpreting it, and deeds of a like kind, given by the landowner when he has no choice in the matter, since the land can be taken by condemnation, if he refuses to convey it, we feel that such liberal construction should be given as will effectuate the intention of the parties, and fully protect the rights of the grantor and his assigns. The reason for such interpretation was well expressed by Justice Weaver, in his dissenting opinion in the Watkins case, supra [123 Iowa 390,410], in the following language: *Page 504
"It follows, therefore, as an inevitable conclusion, that when the public use is permanently abandoned, and the public benefit which was the consideration for the transfer of title ceases to be served or promoted, the right and title of the corporation ceases therewith. Moreover, lands obtained for right of way are to be distinguished from other lands obtained by the company, in this: the latter, as a rule, are obtained in such shape and form that they may ordinarily be bought, used, and sold for general purposes without imposing any special hardship upon other proprietors or upon the public, while the right of way consists of a narrow strip extending over and across lands devoted to agricultural, residence, and business uses. Much of this strip, when abandoned, is wholly valueless to the company, except as a menace by which the owner of the land thus burdened may be induced or compelled to make terms for the removal of the incumbrance. To say that when the right of way is abandoned for railway uses, the company may retain it or dispose of it to others for uses of a merely private character, is to affirm a proposition at variance with every well-settled rule of law governing ownership of lands by quasi public corporations, and open the door to the most grave abuses."
The decree of the district court is affirmed. — Affirmed.
OLIVER, C.J., and HALE, SAGER, MILLER, STIGER, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436218/ | The real estate involved is an 80-acre farm located approximately 5 miles northwest of Knoxville. Dispute arises between the parties as to who is the owner of the realty. On the one hand, plaintiff-appellant claims said real 1. ADVERSE property; while, on the other, the POSSESSION: defendant-appellee J.A. Wickliff asserts that title: it belongs to him. So the appellant seeks to essential oust the appellees from the possession thereof, elements. and in response thereto, the latter ask that their title therein be quieted against the former.
Appellant became the owner of the premises about May 24, 1894. A deed thereto was given him by his stepmother, Amelia Burch. No transfer of the 80-acre tract, through deed or other written document, was ever made by appellant to the appellee J.A. Wickliff, or any other person. J.A. Wickliff, the appellee, asserts that he acquired title through adverse possession for a period exceeding 10 years, under "claim of right" based upon an oral contract of purchase. This oral agreement, according to the appellees' testimony, arose in March, 1903. Some preliminary facts leading up to the event will perhaps aid the understanding. Appellee J.A. Wickliff was employed by the appellant sometime before the year 1900. On February 28, 1900, the *Page 584
appellees, who are husband and wife, moved on the farm as the tenants of the appellant. That tenancy was for a term of three years. At the end thereof, as before suggested, the appellees maintain that the appellant orally agreed to and did sell the disputed realty to the appellee J.A. Wickliff, for an agreed consideration of $50 an acre, which, in the aggregate, is $4,000. Opposed to that contention is the assertion of appellant that, at the end of said 3-year term, new tenancy was contracted for another term. He declares there was no sale.
I. After carefully considering the entire record, however, we are constrained to hold that, on or about the time alleged, the appellant did enter into said oral agreement with the appellee J.A. Wickliff for the sale of the farm. In support of this conclusion may be found both direct and circumstantial evidence.
Mr. Wickliff, the appellee, says unequivocally that he made the purchase in the manner and way above set forth. Contradictory to Mr. Wickliff's statements in this regard is the testimony of the appellant in denial thereof, although, in so doing, the appellant does admit that he and the appellee J.A. Wickliff did have some talk in 1903 concerning the purchase of the property by the latter from the former. It is said by the appellant that terms were not agreed upon, and that he executed a deed in blank, and left it with one Freel, at Pleasantville (a town near Knoxville), for delivery to whosoever might buy, and pay the required purchase price. Corroboration for appellee Wickliff, nevertheless, appears in the testimony of his wife, the other appellee. She says:
"I did not hear any conversation or know of any conversation about the purchase of this land from Mr. Burch [appellant] at the time it was done; I knew it that day when he [appellee J.A. Wickliff] came home. Mr. Wickliff [appellee] told me. * * * I saw Mr. Wickliff [appellee] hand Mr. Burch [appellant] a check. I think the amount was something over $300. * * * The first time I heard any talk about buying this land or selling this farm was the spring we [appellees] bought it. * * * I knew they [appellant and appellee J.A. Wickliff] were talking about selling the place, instead of leasing it, because Mr. Burch [appellant] and Mr. Wickliff [appellee] told me he [appellee J.A. Wickliff] had bought it. They [appellant and appellee J.A. *Page 585
Wickliff] told me that, not long after we [appellees] bought it, in 1903. Mr. Burch [appellant] said to me: `Al [appellee] bought it,' and he [appellant] thought it was a pretty good idea."
Furthermore, corroboration of appellees' claim is found in the testimony of State Senator W.A. Clarke, appellant's brother-in-law. Senator Clarke said:
"* * * I had heard that Mr. Wickliff [appellee] had bought the 80 acres in controversy. That was talked probably in 1903 or 1904. In fact, Mr. Wickliff [appellee] had told me that he had bought it, so I said to Mr. Burch [appellant] one day * * *: `I understand that Wickliff [appellee] bought your farm,' or words to that effect, and he answered me in this way: `Yes,' he said, `we [appellant and appellee J.A. Wickliff] have had a kind of a contract.'"
Circumstantial evidence also lends strong support for the proposition that the property was sold to appellee. From the date of the alleged transaction until the commencement of this suit, appellant at no time demanded rent from appellee. About 1905, appellant left the community and went to Colorado. During that period, appellees were in possession of the real estate. Then, in two or three years, appellant returned from Colorado, and again lived at or near Pleasantville, the vicinity of the farm in dispute. But appellant, although in the locality of the farm, did not in any way disturb appellee in his possession thereof, or demand any rent from him. Thereafter, in March, 1910, appellee again left Iowa, and did not return again until February, 1928. Apparently throughout such absence appellant paid no attention whatever to appellee's land, and, so far as the former was concerned, the latter was at liberty to possess, manage, and use the premises as he saw fit. Important in this consideration is the fact that appellant owned another farm of 120 acres in the neighborhood, and some other property within a near-by town. Throughout all his absences, appellant left his brother-in-law, Senator Clarke, aforesaid, or some other reliable person, in charge of the 120 acres and the town property. Yet no one looked after or managed appellee's 80 acres for appellant. If appellees are mistaken about their purchase of this farm, why did appellant *Page 586
desert it, demand no rent for its use, and leave the appellees in possession, to do with it as they chose? Significant, too, is the fact that appellees, at all times after the alleged purchase, treated the 80 acres as their own. For instance, they "paid the insurance on buildings; moved, shingled, plastered, and refloored the house; built fences; cleaned out about three fourths of a mile of old hedge; constructed a cattle shed, 22x26; erected a henhouse, 32x32; made a cave; dug the well deeper, and cemented it up; set out an orchard of small fruit trees; put in every fence post on the place; expended about $500 for woven-wire fences."
The appellees, it is true, never received a deed from appellant. Explanation thereof is offered by the appellees. They say that, when the final payment was made, some talk was had with appellant in reference to a deed, and he gave them to believe that he would make and deliver the same. Nevertheless, before this was done, he left the community, and remained out of Iowa for many years. Two attempts were made, it appears, to procure a deed from appellant after he left Iowa; because, on two different occasions, the appellee J.A. Wickliff had a deed prepared, and mailed it to the appellant, with the request that he sign, acknowledge, and return it. Such, however, was never done. Several years after the appellant left Iowa, he, through a letter, demanded of Freel the return of the blank deed above described, which was said to have been left with the latter in 1903. Hence, Freel returned it. Demand for that deed was not made by appellees because, they explained, its presence in Freel's office was not known to them. Inquiry concerning appellant's deed, however, was made of Freel by appellees about two or three years before the trial.
Someone commenced an attachment suit against appellant in the year 1921, and levy thereunder was made on appellees' 80 acres of land. Intervention was made in that suit by appellees, and in their pleadings they set up the fact that they, and not appellant, owned the property. Notice of the foregoing proceeding, however, was not given to appellant. Appellees rented the farm as their own to a tenant during the years 1921 and 1922, when they went to the state of Missouri. Rent therefor was collected by appellees. Early in the year 1923, appellees again moved back to this farm, and have lived there ever since. *Page 587
Our attempt has not been to set out all the facts and circumstances, but rather, to detail the general outline thereof.
Considerable confusion arises concerning the payment of taxes. Undoubtedly, appellant paid them for many years after the sale, but later, they were taken care of by appellee. Part of the time, at least, appellant had money in a local bank, which institution was authorized to pay for him the taxes on his land in Marion County. There being no deed to appellees for the property in question, of course it was taxed in the name of appellant. When the bank called for appellant's taxes, the county treasurer included in the list the 80 acres in dispute. Payment, then, by appellant to some extent can be explained. Doubtless appellant did himself pay some of the subsequent taxes. The assessor each year conferred with appellee J.A. Wickliff, and upon these occasions he claimed ownership of the real estate, but explained to the official that the deed had never been delivered. Manifestly, without a deed to appellees, the title would stand in the name of appellant, and the assessment thereof would be made accordingly. Attention is called by appellant to appellees' delinquency in not paying the taxes during some of the later years, after the former had ceased doing so. As a result of such nonpayment, a tax sale was had, and a certificate issued thereunder. Responding to that argument, appellee J.A. Wickliff maintains that he purposely permitted the land to sell for taxes, in order that he might thereby obtain a tax deed, and, through that means, procure legal title. Appellant finally explains why he concluded to oust appellees from their home. Regarding this, appellant testified:
"I learned that Mr. Wickliff [appellee] was claiming to be the owner of this 80-acre tract here when I came to Indianola last fall [1927]. Mr. Bulman [a lawyer], of Chariton, came up there, and told me [appellant] about it, and to get a job, besides [to be employed by appellant to defeat appellees' claim]; and he [Bulman] said Wickliff said it [the farm] was his; he [appellee] had paid for it."
Having considered all the facts and circumstances, it appears obvious to us, as it did to the trial court, that the oral contract of purchase was made as and when alleged by appellees. Resultantly there was a basis for appellees' claim of right under *Page 588
which this property was held adversely to appellant for a period of approximately 25 years, because such claim may be based upon an oral agreement. Hamilton v. Wright, 30 Iowa 480; MontgomeryCounty v. Severson, 64 Iowa 326; Quinn v. Quinn, 76 Iowa 565;Libbey v. Young, 103 Iowa 258; Goulding v. Shonquist, 159 Iowa 647; Ratigan v. Ratigan, 181 Iowa 860.
II. Even though the above and foregoing be true, appellant urges that the consideration was never paid, and therefore the appellees had no interest which could ripen into a claim of right for adverse possession. Evidence of payment does appear in the record, together with appellant's denial thereof. Both appellees tell about the payments made. Each remembers the final one. Mrs. Wickliff says practically everything they earned from or raised on the farm went to satisfy this purchase price, and Mr. Wickliff tells how he rented other land, in addition to his own, in order that he might procure funds with which to meet the obligation. From time to time, live stock was sold, and sufficient funds obtained thereby. It is claimed that the final check or receipt was burned, by mistake. But whether there was payment or not, it is enough for the purpose of adverse possession that the appellees had a claim of right, and held possession openly and in good faith. Lemker v. Unknown Claimants, 201 Iowa 902; Bryan v.Christianson, 188 Iowa 669. Upon this subject, we said, in theChristianson case:
"Plaintiff does not claim that he has, or that he ever had, any color of title, so that we need not consider that question. He does claim that he had a claim of right, and that he occupied the property adversely under such claim. We pointed out in Gouldingv. Shonquist, 159 Iowa 647, that there must be some claim of right or title or interest in the property by which the possessor, in good faith, supposes he has a right to the property as a basis for adverse possession. It is not necessary that the claim of right be a valid and legal one."
In the case at bar, appellees had a valid claim of right, and held possession under the best of faith. Their possession was adverse, continuous, and open. Consequently, whether they have paid the full consideration, as a matter of fact, is not material now, for the purposes of this suit.
III. Using the fact that appellees were the former tenants *Page 589
of appellant as a major premise, it is concluded by the latter that title through adverse possession could not, therefore, be acquired against him. Of course, "so long as the 2. ADVERSE relation of landlord and tenant exists, the POSSESSION: tenant cannot acquire an adverse title as landlord and against his landlord." 1 Ruling Case Law 747, tenant: Section 68; Bowdish v. City of Dubuque, 38 Iowa change of 341; Stout v. Merrill, 35 Iowa 47. Implication relation: appears in each citation that, after the effect. expiration of the lease, there is nothing to prevent a former tenant, under some new relationship, from holding adversely to the previous landlord.
"If possession is originally acquired in subordination to the title of the true owner, there must be a disclaimer of the title from him, and actual hostile possession, of which he has notice, or which is so open and notorious as to raise a presumption of notice. These rules are well settled * * *." McClenahan v.Stevenson, 118 Iowa 106.
Underlying appellees' basis for the relief prayed is the thought that the previously existing tenancy entirely ceased, and at the end of the term thereof, there was created a new relationship by the oral agreement aforesaid: to wit, that of vendor and vendee. By entering into that oral contract, the appellant did renounce his superior title to the farm, and agreed that it was to be J.A. Wickliff's property, for the consideration of said $4,000. Adverse title was acquired by appellees through the very sale contract itself. Thereby appellees and appellant renounced the idea of tenancy, and entered into a new relationship; and it is under this latter status that appellees' right accrued through adverse possession. That they were formerly landlord and tenant does not preclude this. 1 Ruling Case Law 747, Section 68. Such pre-existing tenancy, under the circumstances, is quite immaterial, for appellant knew that it had ceased at the time the sale was consummated.
IV. Complaint is made by appellant that there was no foundation upon which the trial court could predicate notice of appellees' adverse holding. About this appellant is mistaken. *Page 590
To begin with, appellant had entered into a 3. ADVERSE contract with appellees, whereby the ownership POSSESSION: of the land was transferred to the latter. Thus, essential notice of an adverse holding automatically arose elements: from that transaction. Appellees immediately self-imposed went into possession, and appellant knew that. knowledge They improved the premises extensively, and the of vendor. world could see that. Forsooth, appellees acted as owners in possession. All those facts and circumstances constituted sufficient notice to appellant. Lemker v. UnknownClaimants (201 Iowa 902), supra; Consolidated Sch. Dist. v.Thompson, 194 Iowa 662. Concerning this subject, we said, inConsolidated Sch. Dist. v. Thompson, supra:
"That the occupancy by the district was under a claim of right need not be shown by any specific declaration of the occupant's, but may be inferred from the fact of its exclusive possession, making improvements on the property, and by openly and notoriously appropriate acts of ownership over it for ten years or more. Hanson v. Gallagher, 154 Iowa 192, 196."
See, also, Wickham v. Henthorn, 91 Iowa 242.
Wherefore, the judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436116/ | [1] On September 21, 1938, petitioner Dawson was indicted by the grand jury of Woodbury county for maintaining a liquor nuisance. The indictment was thereafter transferred to the municipal court of Sioux City for trial. On December 29, 1938, Dawson appeared before Hon. Bernard A. Brown, a judge of said municipal court, entered a plea of guilty and the following judgment was entered by Judge Brown, to wit:
"AND NOW, to-wit: this 29th day of December, 1938, defendant appears by attorney, Robert Munger; State appears by ass't. county attorney John Mulhall. Defendant pleads guilty. On recommendation of county attorney, the Court orders and decrees that defendant be fined $300.00 and costs and in default of said fine, defendant to be confined in county jail for a period of 90 days. On payment of $100.00 and costs, not later than December 31st, 1938, balance of sentence suspended during good behavior or until further order of Court. Bernard A. Brown, Judge."
The minimum sum of $100 above specified and costs amounting *Page 1293
to $7.70 were paid and on April 14, 1939, Dawson's bond was released, his sureties were exonerated, and a transcript of the proceedings was certified to the district court of Woodbury county. On October 23, 1941, without notice to anyone, the respondent Sisk, a judge of said municipal court, entered the following order:
"AND NOW, to-wit: this 23rd day of October, 1941, it is hereby ordered by the Court that the suspended portion of the sentence heretofore entered against defendant herein be and the same is hereby reinstated and a mittimus ordered issued for the enforcement of same."
On the same day Judge Sisk issued a mittimus to the sheriff of Woodbury county commanding him to take Dawson into custody.
On November 4, 1941, a petition for writ of certiorari was filed with this court, asserting that the order entered by Judge Sisk on October 23, 1941, and the mittimus issued by him pursuant thereto were illegal, in excess of his authority, and without any force and effect in law. A writ was issued and served, in response to which a return was made disclosing the facts herein set forth.
Section 3800 of the Code, 1939, provides as follows:
"The trial court before which a person has been convicted of any crime except treason, murder, rape, robbery, arson, second or subsequent violation of any provision of title VI, or of the laws amendatory thereof, may, by record entry, suspend the sentence and parole said person during good behavior:
1. If said person has not previously been convicted of a felony.
2. If said person is shown to be free from venereal disease.
3. If said person, if an adult and able to labor, has obtained apparently permanent employment for a reasonable time."
Section 3801 of the Code, 1939, provides as follows:
"When a parole is granted under section 3800, the court shall order said person committed to the custody, care, and supervision: *Page 1294
1. Of any suitable resident of this state; or
2. Of the board of parole."
The parties agree that the foregoing provisions of the statute were not followed. The question is the effect to be given to such failure.
In the case of State v. Voss, 80 Iowa 467, 45 N.W. 898, 8 L.R.A. 767, defendants were found guilty of contempt of injunctions against saloon nuisances and were sentenced to pay fines or be imprisoned in default of such payment, but the judgments contained the following condition:
"The execution of this judgment is to be suspended during the pleasure of the court; but, whenever the court, or one of the judges thereof, so directs, execution and warrant of commitment are to issue."
The validity of such condition was challenged in certiorari and this court held that that part of the judgment which suspended execution was without authority of law and null and void.
In the case of Miller v. Evans, 115 Iowa 101, 102, 88 N.W. 198,199, 56 L.R.A. 101, 91 Am. St. Rep. 143, we state:
"The right to suspend sentence after being pronounced is denied the courts of this state. State v. Voss, 80 Iowa, 467. And this seems now to be the prevailing rule. Neal v. State, 104 Ga. 509
(30 S.E. Rep. 858, 42 L.R.A. 130, 69 Am. St. Rep. 175); In re Webb, 89 Wis. 354 (62 N.W. Rep. 177, 27 L.R.A. 356, 46 Am. St. Rep. 846); State v. Murphy, 23 Nev. 390 (48 Pac. Rep. 628); In re Markuson, 5 N.D. 147 (64 N.W. Rep. 939). Contra: Weber v. State,58 Ohio St. 616 (51 N.E. Rep. 116, 41 L.R.A. 472); Fults v. State, 2 Sneed, 232; State v. Crook, 115 N.C. [760] 763 (20 S.E. Rep. [513] 514, 29 L.R.A. 260). See, also, People v. Court of Sessions of Monroe Co., 141 N.Y. 288 (36 N.E. Rep. 386, 23 L.R.A. 856)."
In the case of State ex rel. Preston v. Hamilton, 206 Iowa 414,415, 416, 220 N.W. 313, 314, one Wilson pleaded guilty to the charge of illegal possession of intoxicating liquor and was fined $300. The judgment contained the additional provision, "`The foregoing judgment is suspended during good behavior, on condition that defendant pay the costs of this suit.'" The *Page 1295
validity of such provision was challenged on certiorari. This court pointed out that section 16 of Article IV, Constitution of Iowa, confers the power to grant reprieves, commutations and pardons, after conviction, upon the governor. Pursuant thereto, we state:
"No one but the governor, under our system of government, has the power, right, or authority to thus remit, reprieve, commute, or pardon. State v. Voss, 80 Iowa 467; Miller v. Evans, 115 Iowa 101. See, also, McKay v. Woodruff, 77 Iowa 413; Gunn v. Mahaska County, 155 Iowa 527; State ex rel. Hammond v. Hume, 193 Iowa 1395; Hall v. Wheeler, 196 Iowa 100; Ex parte United States,242 U.S. 27."
After quoting at length from State v. Voss, supra, and Miller v. Evans, supra, we state at page 417 of 206 Iowa, page 314 of 220 N.W.:
"There was, in the case at bar, a final judgment of conviction, even though the suspension provision was added thereto. State v. Olson, 200 Iowa 660. Consequently, the trial court's action directly violated the constitutional provision, and usurped the prerogatives of the executive department of our government. Therefore, jurisdiction in the respondents was lacking, and hence the attempted `suspension' must be, and is, a nullity. If it were otherwise, every conviction for a criminal offense could be rendered nugatory by judicial action, and resultantly the statutes against crime would become ineffective. Said obligation upon the tribunal `to try' the derelict is no more sacred than the duty to impose `sentence' upon conviction; and when once entered, such judgment cannot be set aside except by the governor."
The provisions of sections 3800 and 3801 of the Code, 1927, which are identical with the sections in the Code, 1939, above quoted, are set forth and we state at page 418 of206 Iowa, page 315 of 220 N.W.:
"Manifestly, that was not the course pursued by the respondents here. Without deciding that the `parole' statutes apply to the offense of which Wilson was convicted, we merely hold that the court below did not follow the method therein prescribed to avoid the immediate execution of the judgment." *Page 1296
[2] By reason of the foregoing, it readily appears that the portion of the judgment which undertook to suspend the balance of the fine was without authority, illegal, and void. The question then arises, What authority did the court have in reference to the enforcement of that portion of the judgment that was valid? Also, how much of the judgment was enforceable?
Had the sentence been suspended in compliance with sections 3800 and 3801 of the Code, supra, the court would have had authority, under section 3805 of the Code, 1939, to revoke such suspension for cause without notice and to commit the defendant in obedience to the judgment. Pagano v. Bechly, 211 Iowa 1294,232 N.W. 798; Bennett v. Bradley, 216 Iowa 1267, 249 N.W. 651; State v. Bufford, 231 Iowa 1000, 2 N.W.2d 634. Under the record herein, however, both sides agree that sections 3800 and 3801 were not complied with and that the attempted suspension of the sentence was void. The power of the court, in such a situation, presents a different question and one which apparently has not been expressly determined by this court. The decisions from courts of other jurisdictions are not in harmony. It therefore becomes our duty to decide which line of authority is more persuasive, and select the same as the law of this state.
In Morgan v. Adams, 8 Cir., Kan., 226 F. 719, 720, 721, Judge Sanborn, speaking for the court, states:
"When a court, upon conviction of an accused person, sentences him to fine and imprisonment, and in the entry of the judgment, or thereafter, causes the entry of an unauthorized order suspending the sentence, or a part thereof, during the good behavior of the accused, or during any other indefinite time, is the sentence void, so that after the expiration of the term the court is without jurisdiction to issue a mittimus or other process to enforce it? The court below answered this question in the affirmative, and its decision is sustained by the opinions in United States v. Wilson (C.C.) 46 Fed. 748, Ex parte Clendenning,22 Okla. 108, 97 P. 650, 653, 19 L.R.A. (N.S.) 1041, 132 Am. St. Rep. 628, Ex parte Peterson, 19 Idaho, 433, 113 P. 729, 730, 35 L.R.A. (N.S.) 1067, and In re Strickler, 51 Kan. 700, 702,33 P. 620. The following authorities tend to sustain a negative answer to the same question: State v. Abbott, 87 S.C. 466,70 S.E. 6, 8, 33 L.R.A. (N.S.) 112, Ann. Cas. 1912B, 1189; *Page 1297
State ex rel. Buckley v. Drew, 75 N.H. 402, 74 A. 875; Sylvester v. State, 65 N.H. 193, 20 A. 954; State v. Hatley,110 N.C. 522, 14 S.E. 751, 752; State v. Whitt, 117 N.C. 804,23 S.E. 452, 453; Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718; Fuller v. State, 100 Miss. 811, 57 So. 806,808, 39 L.R.A. (N.S.) 242, Ann. Cas. 1914A, 98.
"The arguments in support of the affirmative answer are forcibly and exhaustively stated in the opinion of Judge Dunn in Ex parte Clendenning, 22 Okla. 108, 97 P. 650, 653, 19 L.R.A. (N.S.) 1041, 132 Am. St. Rep. 628, and those in support of the negative answer no less so in the opinion of Judge Woods in State v. Abbott, 87 S.C. 466, 70 S.E. 6, 8, 33 L.R.A. (N.S.) 112, Ann. Cas. 1912B, 1189. It is useless to repeat these arguments here. Those who are curious to examine them may find them in the opinions referred to. They have been deliberately considered, and it is sufficient to say that the conclusion forced upon our minds is that, if the order suspending such a sentence is illegal, it is so not because it is irregular or technically defective, but because it is beyond the power of the court, and it is therefore void, and the sentence stands, and is enforceable by the court at any time after its rendition, either before or after the term of the court, until the convict has suffered the penalties it imposes. Even if the order of suspension is embodied in the judgment which imposes the sentence, nevertheless the sentence is authorized and valid, while the order of suspension is unauthorized and void, and, as the latter is separable from the former, the latter falls, while the sentence stands. `Concede,' says Judge Young in State ex rel. Buckley v. Drew, 75 N.H. 402,74 A. 875, `that the court had no authority to suspend the (defendants') sentences, and the fact still remains that it had power to impose them; and, as the two parts of the order are separate and distinct, the illegality of the last part would in no way affect the validity of the first part.'"
As pointed out by Judge Sanborn in the above quotation, the opposite doctrine is elaborately discussed by Judge Dunn in Ex parte Clendenning, 22 Okla. 108, 97 P. 650, 19 L.R.A., N.S., 1041, 132 Am. St. Rep. 628. The gist of the doctrine is stated, at page 125 of 22 Okla., page 657 of 97 P., as follows: *Page 1298
"The execution should have issued for the imprisonment of this defendant on the day of his conviction. His incarceration should have taken place under it. That it did not is to be regretted; but the court has no power or jurisdiction after the expiration of the time of the sentence and of the term of court when rendered to call it back and issue a commitment thereunder."
Similarly, in the case of Tuttle v. Lang, 100 Me. 123, 127,60 A. 892, 894, the court states:
"If, after conviction and sentence, any court, whether of general or limited jurisdiction, permits the convict to go at large without a day, it can never thereafter issue a mittimus for his commitment. In such case, having completed its judicial functions, it has voluntarily surrendered all further control over the case and person. Ex parte Gordon, 1 Black, 503; In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L.R.A. 356, 46 Am. St. Rep. 846; People v. Brown, 54 Mich. 15, 19 N.W. 571; State v. Voss,80 Iowa, 467, 45 N.W. 898, 8 L.R.A. 767; People v. Barrett, 202 Ill. 287,67 N.E. 23, 63 L.R.A. 82, 95 Am. St. Rep. 230. * * *
"The sentence takes effect and is in force the day it is pronounced, and, if the magistrate voluntarily discharges the convict from that custody without day, as was done in this case, he cannot afterwards be taken in execution — certainly not after the time named for his imprisonment has elapsed. Cases previously cited; U.S. v. Wilson (C.C.) 46 Fed. 748; In re Bloom, 53 Mich. 597,19 N.W. 200; In re Breton, 93 Me. 39, 44 A. 125, 74 Am. St. Rep. 335; Spencer v. Perry, 17 Me. 413."
In the case of Gordon v. Johnson, 126 Ga. 584, 55 S.E. 489, the mayor of the city of Cordele, acting as recorder, found the accused guilty of violating a municipal ordinance, sentenced him to be confined in the chain gang for six months, or, if there be no chain gang available, to be confined at the guardhouse for 60 days, with direction, however, that he could be released upon the payment of $500. The sentence further ordered that, upon the payment of $100, the other $400 should be suspended during good behavior. The $100 was paid and the prisoner released. Subsequently, the recorder directed his rearrest and that he be put to work upon the chain gang unless he paid the additional *Page 1299
$400. A writ of habeas corpus was sought. The writ was denied. On appeal, the judgment was reversed, the court stating:
"The effect of the sentence, taken as a whole, was that the accused should be released from imprisonment, upon the payment of $100. He paid that amount and was rightfully released. The city recorder had no authority of law to add $400 to the fine, and provide that it should be indefinitely suspended during good behavior, but that the collection of it might be enforced by imprisonment, at the mere direction of such recorder. The charter of Cordele is quite liberal, but it confers no such authority as this. Indeed, it has been held that a judge of the superior court has no authority to suspend the execution of a sentence imposed in a criminal case, except as incident to a review of the judgment. Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am. St. Rep. 175. The facts of this case illustrate clearly why such a proceeding cannot be upheld. The defendant had paid the amount which entitled him, under the sentence, to be set free. An additional amount of $400 as a fine was imposed, not to be collected certainly, but to be suspended `during good behavior.' * * * The defendant may or may not have been exercising `good behavior.' But there is no law authorizing such a proceeding, or the enforcement of the collection of the additional $400 by imprisonment."
Many other decisions, which contain language upon which the petitioner relies herein, actually decide questions not analogous to that presented by the record herein. For example, in many of the cases, after a conviction, the trial court undertook to suspend the imposition of sentence during good behavior or for some other indefinite period and it was held that, after the expiration of the term, the court had no authority to thereafter impose sentence. Such cases include the following: United States v. Wilson, Idaho, 46 F. 748; State v. Sapp, 87 Kan. 740,125 P. 78, 42 L.R.A., N.S., 249; State v. Hilton, 151 N.C. 687,65 S.E. 1011; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L.R.A. 82, 95 Am. St. Rep. 230; People v. Allen, 155 Ill. 61, 39 N.E. 568, 41 L.R.A. 473; People v. Blackburn, 6 Utah 347, 23 P. 759; In re Flint, 25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853; State v. Hockett, 129 Mo. App. 639, 108 S.W. 599; Weaver v. People, *Page 1300
33 Mich. 296; Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; Commonwealth v. Maloney, 145 Mass. 205, 13 N.E. 482. The question presented in these cases is not analogous to that herein because, under the record herein, sentence was imposed immediately after the plea of guilty. No effort was made to suspend the power of the court to impose sentence.
Other cases analogous to those last cited present the situation where, upon conviction, the court imposed a partial sentence and attempted to suspend the right to impose an additional sentence and it was determined that the court had no such power. Such cases include the following: People v. Felker, 61 Mich. 110,27 N.W. 869; In re Beck, 63 Kan. 57, 64 P. 971; Commonwealth v. Foster, 122 Mass. 317, 23 Am. Rep. 326; Commonwealth v. Keeper of Workhouse, 6 Pa. Sup. 420; State v. Addy, 43 N.J.L. 113, 39 Am.Rep. 547.
Other cases could be cited. We do not find it necessary. The foregoing decisions are illustrative of the two lines of authority. We are disposed to adopt the rules announced by Judge Sanborn in Morgan v. Adams, supra. The contrary rule is opposed to fundamental concepts which are recognized and applied in this state. As above pointed out, sections 3800 and 3801 permit the suspension of sentences in certain cases. Section 13959 of the Code, 1939, provides for successive sentences. In State v. Van Klaveren, 208 Iowa 867, 872, 226 N.W. 81, we held that the sentence in one case might be imposed so as to begin at the expiration of imprisonment imposed by the sentence in another case. Such procedure is wholly inconsistent with the doctrine that a sentence must be executed on the date it is imposed and that the lapse of time equivalent to the extent of the sentence shall, of itself, deprive the court of power to force the defendant to serve such sentence.
The doctrine of the cases, relied upon by petitioner herein, is extensively discussed by us in Miller v. Evans, supra, and we state, 115 Iowa 101, 104, 88 N.W. 198, 199, as follows:
"We are unable to discover any reason for allowing the convict to thus profit by a delay to which he has assented, or in which he has acquiesced without objection. The time at which the sentence is to be carried out is ordinarily directory only, and forms no part of the judgment of the court. State v. Cockerham, *Page 1301
24 N.C. 204; 19 Enc. Pl. Prac. p. 480; Ex parte Bell, 56 Miss. 282; Dolan's Case, 101 Mass. 219; Hollon v. Hopkins,21 Kan. 638."
We are in accord with the pronouncement in Friske v. Circuit Court, 51 S.D. 415, 423, 214 N.W. 812, 816, to wit:
"The original judgments being valid and never having been served, relator is now lawfully imprisoned thereunder. The stays of execution being void, the court could at any time have entered an order, if, indeed, an order was necessary, directing that certified copies of said judgments be given to the proper officer and relator taken into custody thereon. This, in substance, the court has now done. The relator, being therefore imprisoned by force of valid judgments and not by force of the orders of which he complains, is not in a position to question said orders, which at best merely cleared the record, and they will therefore be affirmed."
Pursuant to the foregoing, the judgment herein, which is quoted in the first paragraph of this opinion, is valid, except for the last sentence thereof, which was beyond the power of the court and is void. It is separable from the rest of the judgment. The judgment will be interpreted as though that last sentence had not been added. With the judgment so interpreted, the sentence of $300 fine, or 90 days' confinement, has been only partially performed. The court had the power to issue a mittimus to require performance of the balance of the sentence. In legal effect, that is all that the orders of Judge Sisk herein complained of undertook to accomplish. Such action on his part was legal.
The writ is annulled. — Writ annulled.
All JUSTICES concur. *Page 1302 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436119/ | I. Appellee commenced this action in the court below to recover the sum of $20,000, with legal interest, which he alleged he was induced by the fraud of appellant to pay for shares of stock in the National Investment Finance Company, now 1. SALES: Burns Brothers Company. The fraud charged is the remedies of alleged false representations of appellant "that purchaser: the said company was fully organized and in optional operation and was solvent, and that the said remedies. stock which he would receive was worth and was of the full value of $20,000." Written subscriptions for the stock were signed by appellee.
The answer to the petition denies the allegations thereof, and alleges that appellee, with knowledge of the facts, by his action and conduct ratified, confirmed, and approved all of the matters of which he complains, and is thereby estopped from maintaining the action.
The briefs and argument of counsel cover a wide field, but their final concessions reduce the controversy to little more than the question of appellee's right to rescind the contract by notifying appellant of his election to do so, and offering to place it in statu quo, before the commencement of an action at law to recover the sum paid.
It is the claim of appellant, and the argument of counsel proceeds upon the theory, that a party to a contract voidable on the ground of fraud in its inception has two remedies: one, to commence an action in equity for its cancellation and rescission; and the other, to prosecute an action at law for damages, the election of one necessarily precluding the other. It is the further contention of appellant that the measure of damages in an action at law is the difference in value between what was received under the contract and the price paid, except where *Page 529
nothing of value is received, in which case the sum paid is the measure of damages.
As opposed to the theory of appellant, appellee contends that a party to a contract voidable because of fraud practiced upon him in its procurement, may maintain an action at law to recover the sum paid or property parted with on account thereof, by giving notice to the other party of his election to rescind the contract and offering to restore the status quo.
It is elementary, except in those jurisdictions in which the reform procedure has been adopted, that jurisdiction of actions for the cancellation or rescission of contracts upon the grounds of fraud, mistake, or other recognized grounds for such relief, is exclusively in equity. The reasons for this rule are fundamental and obvious. It is likewise a familiar and well established rule, as stated by Pomeroy, that:
"The exclusive jurisdiction to grant purely equitable remedies, such as cancellation, will not be exercised, and the concurrent jurisdiction to grant pecuniary recoveries does not exist, in any case where the legal remedy, either affirmative or defensive,
which the defrauded party might obtain, would be adequate, certain, and complete." Pomeroy on Equity Jurisprudence (4th Ed.), Section 914.
See, also, Watson v. Bartholomew, 106 Iowa 576; County of Adav. Bullen Bridge Co., 5 Idaho 79 (47 P. 818); Buck v. Ward,97 Va. 209 (33 S.E. 513); Big Huff Coal Co. v. Thomas, 76 W. Va. 161
(85 S.E. 171); Krueger v. Armitage, 58 N.J. Eq. 357
(44 A. 167); Haydon v. St. Louis S.F.R. Co., 222 Mo. 126 (121 S.W. 15); Seymour Water Co. v. City of Seymour, 163 Ind. 120
(70 N.E. 514); Miller v. Kettenbach, 18 Idaho 253 (109 P. 505); Cable v.United States Life Ins. Co., 191 U.S. 288 (48 L. Ed. 188).
Precedent to the commencement of this action, appellee offered to return the shares of stock purchased, and demanded the return of the purchase price. The case was tried by appellee and submitted by the court to the jury in the court below upon the theory that a disaffirmance of the contract was thereby effected, and appellee was permitted to recover the full sum paid. The evidence tended to show that the stock was not only not worthless, but that it had value. Manifestly, this is not an *Page 530
action for the rescission of the contract, and the discussion by counsel of the subject of election of remedies need be given no consideration. Unless appellee is entitled to recover upon his theory of the law, a reversal must necessarily follow. It seems to us that the question is not an open one in this state, as well as in other jurisdictions.
Pomeroy divides equitable remedies into three classes, and on the question before us he says:
"Those which the legal procedure recognizes, but does notdirectly confer, and the beneficial results of which it obtains in an indirect manner. A familiar example is the relief of rescission or cancellation. A court of equity entertains a suit for the express purpose of procuring a contract or conveyance to be canceled, and renders a decree conferring in terms that exact relief. A court of law entertains an action for the recovery of the possession of chattels, or, under some circumstances, for the recovery of land, or for the recovery of damages; and although nothing is said concerning it, either in the pleadings or in the judgment, a contract or a conveyance, as the case may be, is virtually rescinded; the recovery is based upon the fact of such rescission, and could not have been granted unless the rescission had taken place. Here, the remedy of cancellation is not expressly asked for, nor granted by the court of law; but all its effects are indirectly obtained in the legal action."
Proceeding further, in a note to the portion of the section quoted, he says:
"It would perhaps be more correct to say that the legal judgment proceeded upon the assumption that one of the parties had himself rescinded the contract or conveyance prior to the suit, and that he was justified in so doing; but this explanation does not alter the result or modify the statement of the text. In either theory, the legal procedure recognizes the rescission asa fact, and its benefits are secured indirectly by the judgment; as in actions by defrauded vendors to recover the goods or their value." Pomeroy on Equity Jurisprudence (4th Ed.), Section 110.
The rule thus stated was specifically recognized by this court in Olson v. Brison, 129 Iowa 604, as follows:
"Ordinarily, before commencing an action at law to recover *Page 531
the price paid, the vendee must give notice to the vendor of his election to rescind, and offer to return the thing purchased. This is for the reason that the suit is for the consequences of rescinding, and is based on the ground that it has been effected. Technically, plaintiff's right to recover must be perfect when the suit is begun. But for the necessity of a tender, the commencement of the action for the consideration paid would be a sufficiently definite disaffirmance of the contract, and an election to rescind."
In Watson v. Bartholomew, supra, we said:
"If plaintiff had given some specific property for the lot, and, on a rescission, desired to have it reconveyed to him, equity would have been the proper forum; but that is not this case. If plaintiff desires to rescind, and has grounds for so doing, he needs only to tender back a deed for the lot, and he then has a right of action at law. And where, as in this case, he asks only a money judgment against defendants, his action can be at law only."
To the same effect are Rose v. Eggers, 148 Iowa 306; Cox v.Cline, 139 Iowa 128; Clapp v. Greenlee, 100 Iowa 586; Kuehl v.Parmenter, 195 Iowa 497. The same rule prevails in other jurisdictions: Union Nat. Bank v. Mailloux, 27 S.D. 543
(132 N.W. 168); Hacker v. Monroe, 176 Ill. 384 (52 N.E. 12); Siltz v.Springer, 236 Ill. 276 (85 N.E. 748); Merritt v. Ehrman, 116 Ala. 278
(22 So. 514); Royal v. Goss, 154 Ala. 117 (45 So. 231); Hallv. Bell, 143 Wis. 296 (127 N.W. 967); Bruner v. Miller, 59 W. Va. 36
(52 S.E. 995).
The cases cited by appellant from this jurisdiction (Brainardv. Holsaple, 4 G. Greene 485; Relf v. Eberly, 23 Iowa 467;Twogood v. Allee, 125 Iowa 59; Fagan v. Hook, 134 Iowa 381;Weseman v. Graham, 157 Iowa 430; Pardoe v. Jones, 161 Iowa 426;Shuttlefield v. Neil, 163 Iowa 470; Miller v. Conn, 193 Iowa 458) go no further than to affirm the general doctrine that equity has exclusive jurisdiction of all actions for the cancellation or rescission of contracts, and that, where one party has been induced to enter into a contract by the fraud of the other, and has parted with money or property, he has the election of two remedies: (1) to rescind the contract within a reasonable time, by offering to place the other party in statu quo, and to *Page 532
commence an action in equity for a decree of cancellation; or (2) to affirm the contract, and prosecute an action at law for damages. In none of them was the right of the defrauded party to rescind the contract by restoring or offering to restore thestatus quo, and to bring an action at law for the recovery of the sum paid, involved.
Courts of equity are not jealous of their jurisdiction to cancel and annul contracts upon the ground of fraud, where their jurisdiction is concurrent, and an adequate remedy exists at law. Where the latter remedy is available, as already pointed out, courts of equity ordinarily decline to take jurisdiction. This rule is not, however, without some exceptions, which are not now material. The reason for exclusive jurisdiction in equity for the cancellation or rescission of contracts is that courts of law cannot grant such relief. A court of law has no power to order a reconveyance of property, or to compel the defendant to restore the status quo. A money judgment would, in many cases, be inadequate, and the cancellation of the contract and the restoration of the status quo will alone effect justice between the parties. It is, of course, true that a contract, unless for some cause it is voidable at the election of one of the parties, can be rescinded without the aid of a court of equity, by the mutual consent of the parties, in the manner provided therein, or by acquiescence of one in the offer of the other to rescind. A court of equity would have granted relief to appellee in the form of a money judgment, if the fraud alleged were proved, but would have further provided in its decree for the cancellation of the contract, and thereby formally relieved him of all of the consequences thereof. But this was accomplished in the present action. The jury to whom the issues of fact were submitted, found that the execution of the subscriptions for the stock was induced by fraud. This resulted in relieving appellee from all of the consequences thereof, as effectually as would have a decree in equity. The submission of a different measure would have involved the same issues of fraud, and no appeal to the extraordinary jurisdiction of a court of equity was necessary.
What we have already said sufficiently disposes of all questions raised touching the instructions, as well as of most of the grounds of the motion filed at the close of plaintiff's case, and *Page 533
renewed at the close of all the testimony, for a directed verdict. One of the grounds of the motion was that the verdict is not sustained by the evidence. Nothing would be gained by a review of the evidence on the issue of fraud. A careful examination of the record leads us to the conclusion that the evidence was sufficient to justify the submission of this issue to the jury. It may be that the case made by appellee is not a strong one, but the finding of the jury on disputed evidence is conclusive upon us.
II. Complaint is made of the admission by the court of testimony over the objections of appellant. The rulings complained of go to the question of other transactions claimed to be fraudulent; to the price received for stock 2. EVIDENCE: subsequent to the date of plaintiff's other subscription; to the relation of J.R. Burns to offenses the appellant company; to the fact that or appellant accepted second mortgages in transac- settlement for stock; to permitting the witness tions: Neal to testify that appellant, in his opinion, fraud. never had a loan or farm department, and that it was his understanding that J.R. Burns would eventually become president of appellant company; to permitting said Neal to testify to the value of the stock in 1922; to permitting testimony as to the state of appellee's health, and that no dividends were received; and to directing a witness to testify, on cross-examination, as to the price at which certain stock was sold.
Evidence of other transactions of a fraudulent character, at or near the time of the transaction in question, is admissible, as bearing upon the question of motive and intent. Elbert v.Mitchell, 131 Iowa 598; First Nat. Bank v. Wise, 172 Iowa 24;Farmers Nat. Bank v. Pratt, 193 Iowa 406. It may well be doubted whether some of the other testimony referred to should have been admitted; but we are of the opinion that its admission was not so far prejudicial as to require a reversal. The issue of fraud was clear-cut, and constituted the principal question for the jury's decision. It is not at all probable that jurors were influenced in arriving at their conclusion by the matters referred to.
We have not discussed all of the matters argued by counsel; but such as we have not discussed are so closely related to *Page 534
the questions sufficiently covered that we deem further consideration thereof unnecessary.
It is our conclusion that the judgment of the court below must be affirmed. — Affirmed.
FAVILLE, C.J., and De GRAFF and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436121/ | Elizabeth Fitzgerald died testate, at her residence in Perry, Iowa, on April 7th, 1938. Her husband died in the year 1914, and all of the property which she possessed, she had inherited from her husband. She had four daughters, Margaret Brulport, Kathryn McCarthy, Marie Tiernan, and Elizabeth Tiernan. On October 31, 1936, Mrs. Fitzgerald deeded to her daughter, Margaret Brulport, the real estate described as Lot 12, Block 28, city of Perry, which was occupied by her as her home. This action was commenced in equity, by the other three daughters of Elizabeth Fitzgerald against their sister, Margaret Brulport, to set aside the above referred to deed. There was a trial, at which a great deal of evidence was offered, the lower court denied the relief prayed for.
This action was brought on the theory that Margaret Brulport occupied a confidential and fiduciary relationship with her mother, and that she took advantage of this confidential and fiduciary relationship. That the deed was secured by undue influence, constructive fraud and without consideration.
Unfortunately family fights over property are quite numerous, and this court has been called upon to decide many cases involving the same legal questions as in the case at bar.
We quote briefly from a few of our cases. Curtis v. Armagast,158 Iowa 507, 522, 138 N.W. 873, 879, opinion by Justice Weaver:
"While the relation of parent and child is nearly always given as an illustration of confidential relations, it does not *Page 1154
follow that all transactions between persons occupying that relation are presumptively invalid. Indeed, it may be said that as a general rule the conferring of benefits by a parent upon a child is presumptively valid. The unfavorable presumption arises only where the child, by reason of its youth and inexperience or other special circumstances, is to some degree under the dominion, control or paramount influence of the parent, or where the child is the dominant personage in that relationship and the parent has become the dependent one, trusting herself and her interests to his advice and guidance. Mulock v. Mulock, 31 N.J. Eq. 594; Parker v. Parker (N.J.) 5 A. 586; White v. Daly (N.J. Ch.) 58 A. 929; Fitch v. Reiser, 79 Iowa 34 [44 N.W. 214]; Nobles v. Hutton, 7 Cal.App. 14 (93 P. 289); Gibson v. Hammang, 63 Neb. 349 (88 N.W. 500); Doyle v. Welch, 100 Wis. 24
(75 N.W. 400); Cole v. Getzinger, 96 Wis. 559 (71 N.W. 75); Mott v. Mott, 49 N.J. Eq. 192, (22 A. 997)."
In appellee's brief they refer to the fact that Judge Evans dissented in the case of Curtis v. Armagast, and they say that Judge Evans "was one of the greatest judges that ever sat on the Iowa Supreme Court". The writer of this opinion agrees with the distinguished counsel in his tribute to the great service rendered to the bar and the bench by the late Judge Evans.
In the case of Johnson v. Johnson, 196 Iowa 343, 348,191 N.W. 353, 355, opinion by Judge Evans, this court said:
"It is a rare case where the dominant individual in a fiduciary relation can sustain a gift to himself by the one who is dependent upon him. Whereas the defendant had assisted her husband in his few matters of business before his illness, she had now, by his illness, become his sole dependence. If someone else had sought to obtain a conveyance of his property, she would have been his independent adviser, and would have protected him against ill advised action. Inasmuch as she became the beneficiary of this transaction, he was necessarily deprived of her help and advice. In such a case, equity inquires, Who was his helper? Did he have any? Did he have independent advice, legal or otherwise? If his wish had been to refuse the gift, was there anyone to stand for him and to put forward the refusal? It is incumbent upon the defendant to make some answer to these questions. The burden is not met *Page 1155
by showing simply that, at the time of the execution, he said that it was all right, or that he was glad of it. The same influence which induced the execution would likewise induce just such remarks."
In the recent case of Ennor v. Hinsch, 219 Iowa 1076,260 N.W. 26, we have discussed many of the cases and therefore do not find it necessary to again review the authorities.
The legal principles involved are not in real dispute, as the law is well settled. It is the application of these legal principles to the facts involved that is difficult.
We turn to the record to ascertain the facts.
Elizabeth Fitzgerald had four daughters and one son. Her husband died in 1914, and left all of his property with the exception of $2,000 to his widow. The property consisted of a home in Perry, a half section of land and personal property, all of which was unincumbered. The son died about 2 years after his father. There is evidence that the mother had her sister write to Mrs. Margaret Brulport, who at that time lived in Des Moines, that she desired that Margaret come back home and live with her. Mrs. Brulport at that time was divorced from her husband and had one young son named Harry. She was working in Des Moines and supporting the boy. In 1918 Mrs. Brulport returned to Perry and lived with her mother until the time of the mother's death in 1938.
The evidence is in dispute on many questions, but all agree that the mother had a very kindly and affectionate feeling toward all of her daughters, and they were all very considerate of their mother and did everything to make life pleasant for her. There apparently was no feeling between the sisters up until a few months before the mother's death.
Margaret Brulport lived with her mother for almost 20 years. She ran the farm, signed the leases, did the banking business for her mother, and as the years went along she handled all the business that the mother had. Mrs. Brulport had no income, and her bills and her son's were paid out of the mother's money. There is a long record covering the many transactions during the 20 years. At Margaret's request the mother borrowed $2,700, and gave a mortgage on the house, but Margaret in writing agreed to pay the $2,700. Needless to say it was not paid at the time of the mother's death. *Page 1156
Margaret went to see attorneys in regard to matters pertaining to her mother's business and directed them what to do.
In October 1936 Mrs. Fitzgerald had reached the age of 83 years. Margaret went to the office of an attorney and had the deed to the home prepared. She then took it home and had her mother sign it, no one else was present. Margaret then took the deed down to a lawyer who was also a notary public and asked him to place his acknowledgment on the deed. He informed her that as he had not seen Mrs. Fitzgerald sign the deed, he could not acknowledge it. Margaret then asked him to come to the home. A few days later he went to Mrs. Fitzgerald's home, Margaret was present. The notary asked Mrs. Fitzgerald if it was her signature and if she knew that it was a deed to the home. She said she did. The deed was then given to Margaret Brulport and by her returned to the notary, who retained it until after Mrs. Fitzgerald's death, when it was turned over to Mrs. Brulport and by her recorded. It can hardly be said that this old lady of 83 years, who was ill at the time, had an independent adviser. The deed was prepared by the daughter, the only witness to the signature was the grantee in the deed, this same daughter, and the acknowledgment was made in her presence. She lived alone with her mother during the entire time this transaction was pending. There was no consideration for the deed, true it was the claim of the grantee that it was in payment for service rendered her mother during the 20 years she lived with her. The answer to this, however, is that Margaret Brulport filed a claim against the estate for $11,965 plus 6 per cent interest for services rendered her mother during the time she lived with her. There is the evidence of numerous witnesses that the mother had time and again said that after her death, she wanted the property including the home evenly divided among her daughters.
The evidence shows that early in 1937 Margaret Brulport purchased on credit from a store in Perry better than $200 worth of merchandise and in order to do this she signed her mother's name to the credit application. There were also various notes that Elizabeth Fitzgerald's name was signed to which were reduced to judgment. The money secured by these notes was for Margaret Brulport. *Page 1157
Thus we find that Margaret Brulport during this long period of time handled her mother's business, that she signed her mother's name to various instruments, that she directed attorneys in preparation of various legal instruments, what they should contain including a codicil to her mother's will. That she had the deed to the home, which is now sought to be set aside, prepared. That she was the only person present at the time that it was signed. That she was present when the notary public took the acknowledgment. That there was no consideration for the deed. In view of such a record we find that there was a confidential fiduciary relationship between the mother and the daughter. The burden of proof cast upon the appellee has not been met, and that therefore the deed cannot be sustained.
It necessarily follows that the decree entered below must be and it is accordingly reversed. — Reversed and remanded.
HAMILTON, C.J., and RICHARDS, HALE, SAGER, BLISS, MILLER, and OLIVER, JJ., concur.
STIGER, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436124/ | Appellee agrees that the statement of the case and the statement of the facts as set out by appellant are correct and we therefore set them out herein as a statement of the controversy before us.
Merchants Supply Company appealed to the district court from a decision of the Iowa Employment Security Commission fixing its 1943 contribution rate under the Iowa Employment Security Act (chapter 77.2, Code of 1939, as amended) at 2.7 per cent, claiming said rate should be .9 per cent. In computing the said contribution rate under the formula presented in section 1551.13 (C), Code of 1939, the Commission included the "gross" pay roll of Merchants Supply Company, whereas it is the contention of said company that the same should be limited to the "taxable" pay roll. The district court, sitting as a court of equity, affirmed the decision of the Commission. The questions presented by this appeal are whether in computing the employers' contribution (or rate of tax) under the formula prescribed in section 1551.13 (C), Code of 1939, the term "average annual pay roll" means the total or gross pay roll of the employer or that part of the pay roll which is taxable under the Iowa Employment Security Act. And if it means gross pay roll, is it constitutional?
The pay roll facts of Merchants Supply Company are undisputed and are correctly set forth in the following table:
"MERCHANTS SUPPLY COMPANY Wholesalers Sixth and Iowa Streets Dubuque, Iowa ESTABLISHMENT OF CONTRIBUTION RATE for Calendar Year 1943
A B C
Average Annual Over Payroll 3 years Gross Taxable $3,000
1940 ............................. 14,885.65 13,675.92 1,210.03 1941 ............................. 23,025.15 17,815.08 5,210.07 *Page 374
1942 ............................. 51,506.57 25,348.53 26,158.04 --------- --------- --------- 89,417.37 56,839.53 32,578.14
Average Annual Payroll ........... 29,805.79 18,946.51
Total Contributions Paid as of December 31, 1942 .............. 2,315.47 2,315.47
Total Benefits paid charged to your account December 31, 1942 ........................... 351.24 351.24
Excess of Contributions over Benefit Payments ............... 1,964.23 1,964.23
Ratio of excess of Contributions over Benefit Payments to Average Annual Payroll ......... 6.5% 10.3%
Contribution Rate for year 1943 2.7% .9%"
Column A in above table shows the rate and method of computation as fixed by the Commission and affirmed by the trial court. Column B shows the rate and method of computation which appellant contends is correct under the Iowa law. The foregoing computation is based on section 1551.13 (C)3 and (C)4, Code of 1939. The size of the fund and the amount of benefits paid therefrom are of such amounts that section 1551.13 (C)5, Code of 1939, has no application to the determination of a proper rate for Merchants Supply Company for 1943.
Merchants Supply Company's tax rate is to be computed on a three-year-average pay roll and not a five-year-average pay roll. (Section 1551.25 (A)2, Code of 1939.)
The propositions relied upon by appellant for reversal are:
1. The controlling rule of construction is that a tax measure must be construed against the taxing body.
2. Chapter 100, Acts of the Forty-ninth General Assembly of Iowa, amended sections 1551.13 (C), 1551.25 (A), and 1551.25 (M) so that "wages" and "pay roll" as used therein exclude amounts paid to any one employee in excess of $3,000 in any one year. *Page 375
3. Construction of act which determines experience rate on basis of gross pay roll makes section 1551.13 (C)3 and (C)4 unconstitutional as a violation of the due-process, equal-protection-of-law, and uniformity requirements of the Iowa and United States Constitutions.
The issue in this case is whether, in computing the contribution rate of the employer, the term "average annual pay roll" means the gross or total pay roll of the employer or only that part of the pay roll which is taxable. If the contribution is based on the average gross annual pay roll, then the rate of2.7 per cent established by the Commission is correct. If the average annual pay roll means only that part of the pay roll which is taxable, then the rate of contribution for 1943 should be established at .9 per cent. The solution of this question requires a construction of the unemployment statute.
What is known as the Iowa Employment Security Law was enacted by the Forty-sixth Extra General Assembly and has since been amended several times. The object of and guide to the interpretation of the statute are found in section 1551.08, Code of 1939. In general, the intention was to provide protection against unemployment by encouraging employers to provide more stable employment and by accumulating funds during periods of employment to provide benefits for periods of unemployment, and the intention is declared to be for the public good and general welfare of the citizens of the state. In its present form the statute consists of twenty subdivisions. Sections 1551.09 to 1551.12, inclusive, provide for the administration and manner of operation of the law, as do most of the other sections.
In considering the present case, however, we are most concerned with section 1551.13 relating to the payment of contributions by the employer to the unemployment fund. Subsection A of that section originally provided:
"On and after July 1, 1936, contributions shall accrue and become payable by each employer with respect to wages payable for employment as defined in section 1551.25 subsection `G' occurring during such calendar year except that for the six months period beginning July 1, 1936, such contributions shall accrue and become payable solely from employers with respect to wages *Page 376
payable for employment occurring on and after July 1, 1936. Such contributions shall become due and be paid to the commission for the fund at such time and in such manner as the commission may prescribe."
This provision of the Code was amended by chapter 99, Acts of the Forty-ninth General Assembly, which provided that the law as it appears in subsection A of section 1551.13 should be amended to make the contribution of each employer only on that part of the wages up to and including the sum of $3,000. This amending statute was repealed, and chapter 100, Acts of the Forty-ninth General Assembly, was enacted, going into effect April 17, 1941. This latter amending statute repealed paragraph 1, subsection A of section 1551.13, and chapter 99 above referred to, and enacted in their stead the statute as it now is, and since that time has remained, with a few slight changes made by chapter 101, Acts of the Forty-ninth General Assembly.
The section now provides, in conformity with the Federal Unemployment Tax Act [26 U.S.C. § 1607 (b)(1)], that the wages on which contributions are payable are limited to $3,000 to any one employee in any one calendar year. The new law, chapter 100, Acts of the Forty-ninth General Assembly, contains the provision which is the subject of controversy here as follows:
"For the purposes of this section the term `wages' shall not include that part of the remuneration which, after remuneration equal to three thousand dollars ($3,000) has become payable to an individual by an employer with respect to employment during the calendar year * * *."
Therefore, as stated by appellant, the question raised by this appeal is the construction and effect to be given to the language used in said chapter 100, which limits wages to the first $3,000 paid to any one employee in any one year. Appellant contends that chapter 100 limits average pay roll to average annual taxable pay roll as distinguished from average annual gross pay roll. The amount of contribution to the unemployment fund by each employer is found in subsection C of said section 1551.13 and the weekly benefit amount for total unemployment is prescribed *Page 377
in section 1551.09. Subsection C referred to provides that there should be a separate account for each employer and his contribution credited therein but benefits paid are charged against the account of the most recent employer. The rate is further prescribed by subsection C in paragraphs 3, 4 and 5 thereof. The rate of contribution of each employer depends upon his benefit experience, this depending upon the ratio of the excess of contributions of benefit payments to average annual payroll, as shown by the schedule heretofore set out. That is, the rate is determined on the basis of his record up to the beginning of each calendar year. Paragraph 4, subsection C, section 1551.13 prescribes the formula for determining the benefit experience or merit rating of an employer, under which formula the rate depends upon the ratio the excess of contributions of the employer over benefits charged to his account bears to his average annual payroll.
Section 1551.25, subsection A, paragraphs 1 and 2, defines pay roll and average annual pay roll as follows:
"1. `Annual pay roll' means the total amount of wages payable by an employer * * * during a calendar year.
"2. `Average annual pay roll' means the average of the annual pay rolls of any employer for the last three or five years, whichever average is higher."
Section 1551.25 (M) defines wages as "all remuneration payable for personal services, including commissions and bonuses and the cash value of all remuneration payable in any medium other than cash."
The point of contention between appellant and appellee is that since the amendatory act, chapter 100, Acts of the Forty-ninth General Assembly, states that wages shall not include any wages in excess of $3,000, then wages, as defined in section 1551.25 (M), must mean the taxable wages, that is, wages of $3,000 or less, and that annual pay roll would mean the total amount of taxable wages paid by an employer during the calendar year. Appellee, however, contends that the modification of section 1551.13 by the amending act did not affect the remainder of the section or the definitions of wages or annual pay roll. This is the point of the controversy, which is, the effect of the *Page 378
amendatory act, chapter 100, Acts of the Forty-ninth General Assembly. Was that effect limited only to subsection A of section 1551.13?
[1] I. Appellant devotes its first and second divisions of argument to the effect of chapter 100, Acts of the Forty-ninth General Assembly, asserting that a tax measure must be construed against the taxing body; and that said chapter not only amended subsection A of section 1551.13, but also affected and amended sections 1551.13 (C), 1551.25 (A), and 1551.25 (M).
We have recently decided that tax measures are construed against tax levying bodies. Moorman v. Iowa Unemployment Comp. Comm., 230 Iowa 123, 296 N.W. 791. Also, Palmer v. State Board,226 Iowa 92, 283 N.W. 415, and cases cited.
Appellant also argues that words used in an amendment which are used in the original act are presumed to be used in the same sense in the amendment as in the original act. This, of course, is true. See 59 C.J. 1095, 1096.
It is urged that the Iowa Employment Security Act is to be construed as a whole and its various provisions are to be viewed in the light of their relation to the whole. Iowa Pub. Serv. Co. v. Rhode, 230 Iowa 751, 298 N.W. 794. There is not much doubt regarding this proposition as to the construction of statutes.
[2] Based on the foregoing propositions appellant would have said chapter 100 modify the term "wages," as used in sections 1551.13 (C), 1551.25 (A), and 1551.25 (M), since chapter 100 was the later enactment, and asserts that wherever the word "wages" is used therein it has the same meaning as though it read "taxable wages." And, therefore, for the purpose of interpretation and definition, appellant would have section 1551.25 (A) read:
"A. 1. `Annual payroll' means the total amount of taxable wages payable by an employer (regardless of the time of payment) for employment during a calendar year; provided that on and after January 1, 1941, the term `annual payroll' shall mean the total amount of taxable wages paid by an employer during a calendar year for insured work, and provided further that any taxable wages paid after December 31, 1940, for insured work performed on and prior to December 31, 1940, shall *Page 379
be credited to the annual payroll of the year in which such work was performed.
"2. `Average annual payroll' means the average of the annual payrolls of any employer for the last three or five years, whichever average is higher."
It is argued that the word "section" in chapter 100 refers not only to subsection A but the entire section 1551.13. Since section 1 of the amendatory act repealed paragraph 1 of subsection A, "section" could mean, then, either section 1551.13 or section 1 of chapter 100; that in repealing the subsection the legislature knew the difference between the words "section" and "subsection" and that when it used "section" in the substitute provision it could not have intended the subsection or paragraph 1 thereof; and that had it meant otherwise the words used would have been "for the purpose of paragraph 1 of subsection A of section 1551.13."
On the other hand, appellee argues that no different definition of wages was intended by the legislature. The title states that chapter 100 is an act to repeal paragraph 1 of subsection A of section 1551.13, Code of 1939, and Senate File 89 of the Forty-ninth General Assembly. Appellee asserts that no other provision of section 1551.13 was repealed, or intended to be repealed, except that part of the repealed statute relating to and providing for payment of contributions by employers on wages and defining the term "wages" as used in said section, and that the word "wages" in the title refers to the term as used in paragraph 1 only, and that this was so defined solely for the purpose of reducing the employers' tax base to the first $3 000 of wages paid, but does not purport to nor does it change the formula established for the employers' rate for the benefit features of the act found in section 1551.13 (C) thereof, and that the tax-rate formula was not amended or affected by said amendatory chapter. Section 1551.25 contains the definition of terms used in the Employment Security Act and defines "wages" as all remuneration, and further states that such will be its meaning as used in the chapter unless the context clearly requires otherwise. Does the context of the amended subsection A *Page 380
clearly require that the definition of "wages" contained in such subsection A be applied to other sections or subsections?
The word "section" has been variously defined. It has been construed to mean a provision, a separate and separable clause, sentence, or provision, not necessarily a separately numbered clause; a subdivision, or subsection, although an entire act sometimes may be referred to by the use of the term. 56 C.J. 1273, 1274. See, also, 38 Words Phrases, Perm. Ed., 450. The word has been held to apply to a subdivision, a distinct part or portion, the division of a law or other writing or instrument, a part separate from the rest, the subdivision of a chapter, a paragraph. As used the word could therefore be applied to the whole section or to a subdivision. The meaning is not fixed or certain but must be used in the sense it was intended by the legislature. State ex rel. Ekern v. Zimmerman, 187 Wis. 180,204 N.W. 803; Spring v. Collector of City of Olney, 78 Ill. 101. See State v. Scales, 172 N.C. 915, 920, 90 S.E. 439, 441, where the court states:
"Again, in the third classification in the act of 1915, the word `section' is used in such connection as to indicate clearly that it is confined to that subdivision, thus furnishing additional evidence that the General Assembly was referring to the subdivisions in the use of the word."
In State ex rel. Burnham v. Babcock, 23 Neb. 128, 134,36 N.W. 348, 350, it is said:
"In the case at bar section 25 is subdivided into seven different parts, each of which treats of distinct powers of the county board. In fact they are seven sections, as much so as the other sections in the chapter, although classified as subdivisions of section 25."
In Ex parte Pea River Power Co., 207 Ala. 6, 7, 91 So. 920, is found the following:
"We think that the word `section' as used in section 34 of the act of 1911 does not mean an entire numeral section, but a separate and separable clause, sentence, or provision." *Page 381
In the case at bar the legislature explicitly referred to the one section. This appears also from the fact that chapter 100 was enacted by the legislature as a substitute for chapter 99 and the former subsection A. The wording shows it was not intended to cover additional subjects. We are satisfied that the use of the word for the purpose of this section was not intended to apply to any subsection of section 1551.13 except subsection A. If the legislature intended to change the merit rating under subsection C, or the definitions of pay roll and wages in section 1551.25, it could have plainly so said, and to carry to these subsections the definition for another section, and for the purposes of that section only, would be going beyond the intent of the legislature. To hold that the other definitions of wages and pay roll are changed by the enactment of chapter 100 would be to repeal these definitions by implication since they are not in any way expressly referred to by the legislature in enacting said chapter 100. Repeals by implication are not favored, and especially so when a construction by this court would amount, as it would here, to legislation, upon a subject regarding which the legislature has remained silent and has expressed no intention of making any change.
The Forty-ninth General Assembly, by enactment of chapters 101 to 106, inclusive, made additions to and changes in the employment-security law. Chapter 101 amended the definition of "annual pay roll" but continued the use of the words "total amount of wages," and also continued the definition of "wages" as in the original subsection except that it struck the word "payable," leaving the definition to read: "`Wages' means all remuneration for personal services," etc. It made no attempt to include the word "taxable" or any similar term, as appellant urges these subsections should be construed. Later the Fiftieth General Assembly enacted various amendments to the statute, including chapters 69 to 78, inclusive, but in none of these amending chapters was there any suggestion of a change in the definitions of total pay roll or wages. Thus, while for two sessions following the issuance of the Code of 1939 the legislature was actively engaged in amending various parts of the said law and the chapter was under its consideration, the definitions and the method of computing the tax were not changed. *Page 382
[3] We are satisfied that when the legislature said "for the purpose of this section" it referred to the substituted chapter 100, and that only by the use of the word "section" as meaning something to which the plain purpose of the amendment did not apply would we be able to construe chapter 100 as applying to the definitions of "annual pay roll" and "wages" found in sections 1551.25 (A)(1) and (2) and 1551.25 (M). It is our conclusion therefore that these definitions were unchanged by said amendment.
[4] II. Appellant contends that the construction of the act which determines the experience rate on the basis of the gross pay roll makes section 1551.13 a violation of the due-process, equal-protection-of-the-law, and uniformity requirements of the Iowa and United States Constitutions. It is contended that the gross pay roll construction of the statute makes a rate which is discriminatory, unreasonable, arbitrary, and unjust; that this results in a lack of uniformity; and that the difference in rate, which is supposed to rest on benefit experience, in fact rests on the fact that some employees are paid wages in excess of the amount that is taxed. Cited are: 16 C.J.S. 1338, 1343, 1344, section 648, as to due process; 16 C.J.S. 1042, 1052, section 520, as to equal protection; and 16 C.J.S. 913, 920, section 464, 16 C.J.S. 971, section 497, and 16 C.J.S. 940, section 478, as to uniformity requirements.
We are not convinced that the construction we hold to be proper violates any constitutional requirements. The legislature has wide discretion in classifying and distributing the tax burden. One of our recent decisions is Sandberg Co. v. State Board,225 Iowa 103, 278 N.W. 643, 281 N.W. 197. This was a supplemental opinion on petition for rehearing and was a tax case against the Board of Assessment and Review on taxation of material used in repairing shoes. The question of constitutionality was raised and this court said that laws relating to taxation, as well as all other laws of a general nature, must have a uniform operation to meet the requirements of constitutional provisions, but that the courts have long since recognized that in the matter of taxation perfect uniformity is impossible of perfect application. It was held that the legislation was not arbitrary, but *Page 383
uniform. To the same effect, see Madden v. Kentucky, 309 U.S. 83,88, 60 S. Ct. 406, 84 L. Ed. 590, 125 A.L.R. 1383. Also, McGuire v. Chicago, B. Q.R. Co., 131 Iowa 340, 350, 108 N.W. 902, 33 L.R.A., N.S., 706, where it is held that the mere fact that legislation is special and made to apply to certain persons, and not to others, does not affect its validity if it be so made that all persons affected by its terms are treated alike, under like circumstances and conditions. Citing cases. And in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 71, 78, 79, 31 S. Ct. 337,55 L. Ed. 369, Ann. Cas. 1912C, 160, it is held that the equal-protection clause of the Fourteenth Amendment does not take from the state the power to classify in regard to police laws, but admits of the exercise of a wide scope of discretion in that regard and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary; and that a classification having some reasonable basis does not offend against that clause merely because it results in some inequality.
In State Board of Tax Commrs. v. Jackson, 283 U.S. 527,51 S. Ct. 540, 75 L. Ed. 1248, 1255, 1256, 73 A.L.R. 1464, it is stated that the restriction that the power of taxation shall not be so exercised as to deny to any the equal protection of the law does not compel the adoption of an iron rule of equal taxation nor prevent variety of differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, callings, or occupations. It is not the function of the court to consider the propriety or justness of an occupation tax, or seek for the motives or criticize the public policy which prompted its imposition. In Vilas v. Iowa State Board, 223 Iowa 604, 273 N.W. 338, an income-tax law was held not unconstitutional because it exempted domestic corporations, and not individual partnerships and fiduciaries, from paying a tax on that part of their income derived from activities carried on outside the state, or because the graduate rate of tax is not uniform between corporations, individuals, and partnerships. To the same effect, see Great A. P. Tea Co. v. Grosjean,301 U.S. 412, 424, 57 S. Ct. 772, 81 L. Ed. 1193, 112 A.L.R. 293; and Chamberlin, Inc. v. Andrews, 271 N.Y. 1, 2 N.E.2d 22, 106 A.L.R. 1519; id., 299 U.S. 515, 57 S. Ct. 122, 81 L. Ed. 380, a case involving an unemployment-insurance law. *Page 384
Cook v. Hannah, 230 Iowa 249, 297 N.W. 262, was a mandamus proceeding to compel the refund of certain taxes. It was held that the legalizing act pleaded by defendants (chapter 250, Acts of the Forty-eighth General Assembly) did not violate the equal-protection or uniform-operation clauses of the constitution. It is stated in State v. Erickson, 225 Iowa 1261,282 N.W. 728, that the test with regard to requirements of due process is simply whether the law operates equally upon all who come within the class to be affected, embracing all persons who are or may be in like conditions or circumstances. The case of Carmichael v. Southern Coal Coke Co., 301 U.S. 495,57 S. Ct. 868, 81 L. Ed. 1245, 109 A.L.R. 1327, was an appeal under the Alabama Unemployment Compensation Act. Among other matters, it was held that neither the due-process nor equal-protection clauses impose upon a state any rigid rule of equality of taxation, and inequalities which result from the singling out of a single class for taxation or exemption infringe no constitutional limitation, and a statute imposing a tax on employers for the benefit of an unemployment-compensation fund is not arbitrary and invalid because it fails to distinguish between the employer with a low unemployment experience and the employer with a high unemployment experience. Pickelsimer v. Pratt,198 S.C. 225, 17 S.E.2d 524, is also a case under an employment-compensation act which upholds the general rule that the presumption must be indulged in favor of the constitutionality of the statute. Among other matters, the court upheld the requirement of the provision of the law in regard to experience rating and held that the act is not violative of the equal-protection and due-process clauses of the State and Federal Constitutions.
Under the rules discussed in the foregoing cases, cited and argued by appellee, it seems clear that the section, construed as we now hold it to be, is not in violation of any constitutional provisions of either the Iowa or United States Constitutions.
It is not our province to determine the merits of the law as enacted by the legislature, or whether in every respect absolute equality has obtained in contributions made by the employers. We think the provision is not so arbitrary as to offend the constitutional provisions. *Page 385
We are constrained to hold, therefore, that the decree of the district court was correct, and the cause must be affirmed. — Affirmed.
MANTZ, C.J., and OLIVER, BLISS, MILLER, GARFIELD, WENNERSTRUM, and MULRONEY, JJ., concur.
SMITH, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247182/ | AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE
Pending before the Court are Defendant Texhoma Fiber, LLC's Motion for Summary Judgment (Dkt. # 36) and Plaintiff PEG Bandwidth TX, LLC's Motion for Partial Summary Judgment (Dkt. # 37). Having considered the relevant pleadings and evidence, the Court finds that Plaintiff's motion should be granted. The Court further finds that Defendant's motion should be granted in part and denied in part.
BACKGROUND
Plaintiff PEG Bandwidth TX, LLC ("PEG") provides network solutions for cellular telephone carriers. In 2010 and 2011, PEG began discussions with the Hilliary family about providing PEG access to fiber optic cables for the purpose of supplying "backhaul" service to cellular carriers in the Wichita Falls area.1 Defendant Texhoma Fiber, LLC ("Texhoma Fiber") is owned by the Hilliarys. The fiber in Wichita Falls was owned by Community Telephone, a subsidiary of Comcell, Inc. ("Comcell"), which was owned by the Humpert family. The Hilliarys were in discussions to purchase Comcell, but had not finalized the acquisition.
The parties negotiated an agreement whereby Texhoma Fiber would lease to PEG pre-existing fiber in the Wichita Falls area and PEG would pay Texhoma Fiber to build out and extend the Wichita Falls fiber network to make it suitable for PEG to supply backhaul service to its customers.
*839In May 2011, the parties finalized the contract into an agreement called the Dark Fiber Lease Agreement (the "Lease Agreement"). Texhoma Fiber was named as the lessor in the Lease Agreement. The dark fiber leased in the Lease Agreement would eventually connect numerous sites in the Wichita Falls area. Under the Lease Agreement, PEG could connect its equipment to the fiber at each site and thereby use the fiber to transmit data between the sites for the benefit of its customers.2 Specifically, PEG used the fiber leased pursuant to the Lease Agreement in order to service three CMRS [Commercial Mobile Radio Service] carriers-Verizon Wireless, US Cellular, and AT & T. The term of the Lease Agreement was thirty (30) years.
The Lease Agreement stated that "TEXHOMA FIBER owns and operates a continuous fiber optic network between the points identified in Exhibit A." The Lease Agreement defined the location of the fiber in Exhibit A as the "Texhoma Fiber Route." The Lease Agreement provided for PEG to pay Texhoma Fiber $1.6 million in order to design, engineer, and construct a continuous fiber optic network in the Wichita Falls area that PEG could lease for the purpose of serving its cellular telephone customers.
Initially, the network would consist of 48-count fiber optic cable that connected the cell sites described on Exhibit "A" to the Lease Agreement. As amended, the Lease Agreement gave PEG the exclusive right to use only six of those fibers throughout the network.3 Therefore, there were 42 fibers in the bundle to which PEG did not have exclusive access, even though it had largely paid for the construction of the network for those additional fibers. In total, PEG paid Texhoma Fiber $2,240,000 for the Texhoma Fiber Route.
In order to protect PEG's interests, the parties agreed that Texhoma Fiber could lease the other 42 fibers to other lessees subject to a non-circumvention provision:
18.1 NON-CIRCUMVENTION. TEXHOMA FIBER shall not, directly or indirectly through other customers, offer or provide services to licensed CMRS carriers at the sites contained in Exhibit A, without the prior written consent of PEG. Nothing herein shall restrict TEXHOMA FIBER'S right to provide any services to wireless carriers at sites not contained in Exhibit A.
Lease Agreement, at § 18.1.
This 30-year non-compete obligation restricts Texhoma Fiber from directly or indirectly offering or providing any service to any licensed CMRS carriers at any of the sites located on Texhoma Fiber Route (or any other sites that became subject to the Lease Agreement), without first receiving written consent from PEG. The non-circumvention provision allowed Texhoma Fiber to use the other 42 fibers to service customers other than licensed CMRS carriers, such as local businesses seeking to connect multiple sites. It also permitted Texhoma Fiber to use the other *84042 fibers to provide backhaul service to CMRS carriers at locations not subject to the Lease Agreement.
On July 15, 2011, PEG entered into a Master Services Agreement (the "US Cellular Agreement") to provide cellular communication services to United States Cellular Corporation ("US Cellular"). On August 10, 2011, pursuant to the US Cellular Agreement, US Cellular issued a Market Service Order that authorized PEG to provide cell site backhaul services to US Cellular for five years at fourteen new cell sites in the Texhoma Fiber Route.
Texhoma Fiber ultimately never finalized its purchase of Comcell. Because Texhoma Fiber was using fiber owned by Comcell's subsidiary, Community Telephone, apparently without compensating Comcell, Comcell and Community Telephone eventually threatened to disconnect their fiber from the Texhoma Fiber Route. Then, Comcell and Community Telephone filed suit against both Texhoma Fiber and PEG.
Texhoma Fiber settled with Comcell and Community Telephone in 2014. In the settlement, Texhoma Fiber agreed to pay Comcell and Community Telephone $250,000, to assign to Comcell the Lease Agreement, and to convey to Comcell half the fiber in the route served by the Lease Agreement. PEG was not a party to this settlement. On January 1, 2014, Texhoma Fiber, pursuant to § 18.10 of the Lease Agreement, assigned the Lease Agreement to Comcell ("Comcell Assignment"). The relevant assignment provision reads:
Texhoma does hereby assign and transfer unto Comcell, effective as of [January 1, 2014], all of Texhoma's benefits, obligations and liabilities under the PEG Bandwidth Contract, to have and hold the same. Subject to the provisions of Section 1(b) below, Comcell hereby accepts such assignment and transfer and therefore agrees to assume all of Texhoma's benefits, obligations and liabilities under the PEG Bandwidth Contract pursuant to the terms of this Assignment.
(Dkt. # 36, Exhibit 6).
By letter dated March 12, 2014, Texhoma Fiber, pursuant to § 18.10 of the Lease Agreement, notified PEG about the Comcell Assignment, and directed PEG to send all further payments due under the Lease Agreement to Comcell. The notice letter stated, "Texhoma Fiber, LLC assigned to Comcell Inc., all rights, title and interest in the Dark Fiber Lease Agreement .... By this Notice, you are directed to make all future payments due under said Lease and amendments to Comcell, Inc." (Dkt. # 37, Exhibit 21). On July 2, 2014, PEG and Comcell agreed to amend the Lease Agreement for a third time to include Comcell as successor in interest to Texhoma Fiber. After the assignment, the fiber optic sheath in the Texhoma Fiber Route contained 24 fibers owned by Texhoma Fiber and 24 fibers owned by Comcell, with Comcell's fibers servicing PEG (Dkt. # 37, Exhibit 15).
After the assignment, Texhoma leased certain fiber to Dobson Technologies ("Dobson"), which Dobson has used to provide cellular communication services to US Cellular at some of the US Cellular Sites (Dkt. # 39 at p. 7). In 2016, US Cellular did not renew its contract with PEG. US Cellular instead contracted for Dobson Technologies to provide service at the same sites subject to the Lease Agreement in the Wichita Falls area.
On December 1, 2016, PEG filed its amended complaint asserting that Texhoma Fiber breached the Lease Agreement's thirty-year non-compete obligation by leasing fiber to Dobson at some of the US Cellular Sites where PEG formerly provided cell site backhaul services to US Cellular *841(Dkt. # 4). On December 8, 2017, the Texhoma Fiber filed its Motion for Summary Judgment (Dkt. # 36). On the same day, PEG filed its Motion for Partial Summary Judgment (Dkt. # 37). On December 29, 2017, both parties filed their respective responses (Dkt. # 38; Dkt. # 39). On January 5, 2018, Texhoma Fiber filed its reply (Dkt. # 41). On January 8, 2018, PEG filed its reply (Dkt. # 43). On January 8, 2018, PEG filed its sur-reply (Dkt. # 44). On January 11, 2018, Texhoma Fiber filed its sur-reply (Dkt. # 45).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure"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." Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Substantive law identifies which facts are material. Id. The trial court "must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment." Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co. , 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" that demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1)(A) ; Celotex , 477 U.S. at 323, 106 S.Ct. 2548. If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes "beyond peradventure all of the essential elements of the claim or defense." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge the burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ; Byers v. Dall. Morning News, Inc. , 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must "respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial." Byers , 209 F.3d at 424 (citing Anderson , 477 U.S. at 248-49, 106 S.Ct. 2505 ). A nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson , 477 U.S. at 257, 106 S.Ct. 2505. Mere denials of material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather, the Court requires "significant probative evidence" from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig. , 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat'l Broad. Co. , 584 F.2d 111, 114 (5th Cir. 1978) ). The Court must consider all of the evidence but "refrain from making any credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
I. Breach of Contact
Both parties have moved for summary judgment on the contract issues *842(Dkt. # 36; Dkt. # 37). The Court, sitting in diversity, applies Texas law in the interpretation of contracts. H.E. Butt Grocery Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. , 150 F.3d 526, 529 (5th Cir. 1998). Under Texas law, "[t]he elements of a breach of contract claim are: (1) the existence of a valid contract between plaintiff and defendant; (2) the plaintiff's performance or tender of performance;4 (3) the defendant's breach of the contract; and (4) the plaintiff's damage as a result of the breach." In re Staley, 320 S.W.3d 490, 499 (Tex. App.-Dallas 2010, no pet.). PEG claims that it can establish each element. Texhoma Fiber argues that the non-circumvention provision is invalid because it is overly broad, and that even if the covenant is valid, it did not breach the terms. The Court will address each argument in turn.
Section 18.1 of the Lease Agreement disallows Texhoma Fiber from, directly or indirectly through other customers, offering or providing services to licensed CMRS carriers at the sites contained in Exhibit A, without the prior written consent of PEG. It is undisputed that Texhoma Fiber, indirectly through its customer Dobson, has since 2016 provided service to US Cellular at sites listed in Exhibit A to the Lease Agreement, as amended (Dkt. # 39 at ¶ 18). Thus, Texhoma Fiber would seem to be in breach of the Lease Agreement.
However, Texhoma Fiber argues that it assigned to Comcell all of its "benefits, obligations and liabilities" under the Lease Agreement. It further argues that the Lease Agreement does not limit the rights or obligations it can assign under the Lease Agreement, but simply requires it to provide notice to PEG of the assignment pursuant to § 18.10. Thus, the assignment did not exclude any of Texhoma Fiber's obligations under the Lease Agreement, and therefore, included the thirty-year non-circumvention obligation. Texhoma Fiber further claims that it conveyed to Comcell all of the fibers in the Wichita Falls Network that PEG had an exclusive right to use.
PEG claims that Texhoma Fiber's notice was incomplete. PEG asserts that Texhoma Fiber notified PEG only that it had "assigned to Comcell, Inc., all rights, title, and interest " in the Lease Agreement. Further, PEG asserts that the notice specifically addresses only payments due from PEG, which are to be directed to Comcell, instead of Texhoma Fiber, going forward. Thus, PEG claims that Texhoma Fiber did not notify PEG Bandwidth about assignment of any "obligations," such as the non-circumvention obligation.
PEG further claims that Texhoma Fiber's notice was false because Texhoma Fiber had not assigned all rights, title, and interest to Comcell. Rather, Texhoma Fiber had retained its rights, title, and interest in half of the fiber which is the subject matter of the Lease Agreement. The Settlement Agreement with Comcell required Texhoma Fiber to execute a Bill of Sale, in *843which Texhoma Fiber conveyed only half of its interest in the Texhoma Fiber Route. As a result, at most locations in the Texhoma Fiber Route, the fiber optic sheath contained twenty-four fibers owned by Texhoma Fiber and twenty-four fibers owned by Comcell, with Comcell's fibers servicing PEG Bandwidth.
PEG further argues that § 18.10 does not permit an assignment of all obligations, including the non-circumvention provision, but only part of the rights. According to PEG, in order to avoid the non-circumvention obligation with respect to its retained fibers, Texhoma Fiber has to prove a novation with respect to that obligation and asserts Texhoma Fiber has not presented any evidence showing PEG agreed to extinguish the non-circumvention obligation with respect to half of the fibers. PEG further argues Texhoma Fiber cannot point to any authority allowing it to destroy a contractual obligation by purporting to assign the obligation while keeping the contractual rights or property to which that obligation pertains.
The Court need not address whether Texhoma Fiber's notice of the assignment was sufficient because it finds that the Lease Agreement does not extinguish Texhoma Fiber's non-circumvention obligation through an assignment.
In Seagull Energy E & P, Inc. v. Eland Energy, Inc. , the Texas Supreme Court held that an assignment relieves a party of its obligations only if it effects a novation. 207 S.W.3d 342, 346 (Tex. 2006). The Texas Supreme Court looked to the Restatement (Second) of Contracts , which states:
An obligor is discharged by the substitution of a new obligor only if the contract so provides or if the obligee makes a binding manifestation of assent, forming a novation .... Otherwise, the obligee retains his original right against the obligor, even though the obligor manifests an intention to substitute another obligor in his place and the other purports to assume the duty.
RESTATEMENT (SECOND) OF CONTRACTS § 318, cmt. d. (emphasis added).
A duty cannot be "assigned" in the sense in which "assignment" is used in this Chapter . The parties to an assignment, however, may not distinguish between assignment of rights and delegation of duties. A purported "assignment" of duties may simply manifest an intention that the assignee shall be substituted for the assignor. Such an intention is not completely effective unless the obligor of the assigned right joins in a novation , but the rules of this Section give as full effect as can be given without the obligor's assent.
RESTATEMENT (SECOND) OF CONTRACTS § 328, cmt. a. (emphasis added). See Seagull Energy , 207 S.W.3d at 346-47.
"A party raising the defense of novation must prove (1) the validity of a previous obligation; (2) an agreement among all parties to accept a new contract; (3) the extinguishment of the previous obligation; and (4) the validity of the new agreement.... It must clearly appear that the parties intended a novation, and novation is never presumed." Fulcrum Central v. AutoTester, Inc. , 102 S.W.3d 274, 277-78 (Tex. App.-Dallas 2013, no pet.).
Texhoma Fiber has failed to come forth with any evidence of novation and concedes that a party to a contract generally cannot escape its contractual obligations merely by assigning the contract to a third party (Dkt. # 36 at p. 8). However, Texhoma Fiber contends that the operative language of the Lease Agreement, specifically Section 18.10, expressly and unambiguously permits Texhoma Fiber to assign all its contractual obligations, including the non-circumvention obligation (Dkt. # 36 at p. 9).
*844"An unambiguous contract must be interpreted by the court as a matter of law." Id. (citing SAS Institute, Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) ). If a contract "is worded so that a court can give it a certain or definite legal meaning or interpretation, it is not ambiguous." Id. When a contract is unambiguous, extrinsic evidence "will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.' " Skyland Developers, Inc. v. Sky Harbor Assocs., 586 S.W.2d 564, 568 (Tex. App-Corpus Christi 1979, no writ) (quoting Universal C.I.T. Credit Corp. v. Daniel , 150 Tex. 513, 243 S.W.2d 154, 157 (1951) ). The court must enforce the unambiguous language in a contract as written, and the applicable standard is the "objective intent" evidenced by the language used, rather than the subjective intent of the parties. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981).
Contract terms "are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense." Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 662 (Tex. 2005). The Court's primary concern is to enforce the parties' intent as expressed in the contract. Sundaram v. Nemeth , 2008 WL 80017 at *9 (E.D.Tex. Jan. 7, 2008). When construing a contract, the intention of the parties is to be gathered from the instrument as a whole. See Seagull Energy , 207 S.W.3d at 345 ; SAS Institute , 167 S.W.3d at 841. The "court is bound to read all parts of a contract together to ascertain the agreement of the parties." Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). "No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument." SAS Institute, Inc., 167 S.W.3d at 841.
The assignment provision reads:
PEG shall not assign this Agreement in whole or in part, nor sublet the Leased Fibers, without the prior written consent of TEXHOMA FIBER, which TEXHOMA FIBER may withhold in its sole discretion. Provided, PEG may assign this Agreement in whole or in part to an affiliate, subsidiary or parent company of PEG or pursuant to a merger, stock sale or sale or exchange of substantially all of the assets of PEG or any of its affiliates, subsidiaries or parent companies with prior notice to TEXHOMA FIBER. TEXHOMA FIBER may, without PEG's consent, but with notice to PEG, assign its rights and obligations hereunder to any entity, or to any affiliate of TEXHOMA FIBER or pursuant to a merger, stock sale or sale or exchange of substantially all the assets of TEXHOMA FIBER. This Agreement binds and inures to the benefit of any permitted assignees or successors to the parties.
Lease Agreement, at § 18.10.
Neither party disputes that the Lease Agreement is unambiguous. Furthermore, a plain reading of the Lease Agreement leads the Court to the conclusion that the contract is unambiguous and the Court, therefore, will interpret its meaning as a question of law. The Court finds that an assignment pursuant to § 18.10 of the Lease Agreement is not a valid release of Texhoma Fiber's liabilities and responsibilities.
"Generally speaking, a party cannot escape its obligations under a contract merely by assigning the contract to a third party." Seagull Energy , 207 S.W.3d at 346-47 (citations omitted). "Thus, as a general rule, a party who assigns its contractual rights and duties to a third party *845remains liable unless expressly or impliedly released by the other party to the contract." Id. at 347 (citations omitted). In Seagull Energy , the operator sought the reimbursement of costs incurred after the assignor assigned its interests to the assignee. The operating agreement in Seagull Energy included a provision entitled "Assignment of Interest." It states:
Each Participating Party desiring to abandon a well pursuant to Section 14.2 shall assign effective as of the last applicable election date, to the non-abandoning Parties, in proportion to their Participating Interests, its interests in such well and the equipment therein and its ownership in the production from such well. Any party so assigning shall be relieved from any further liability with respect to said well.
Id. (emphasis in original). The Texas Supreme Court found that "[t]he operating agreement simply does not explain the consequences of an assignment of a working interest to a third party." Id. at 346. "[T]he operating agreement did not expressly provide that Eland's obligations under the operating agreement should terminate upon assignment and Seagull did not expressly release Eland following the assignment of its working interest." Id. at 347.
Accordingly, the Court reaches the same conclusion in this case. Section 18.10 of the Lease Agreement did not expressly provide that Texhoma Fiber's obligations under the agreement should terminate upon assignment; thus, Texhoma Fiber was not expressly released from its non-circumvention obligation following the assignment to Comcell.
When a court finds that there is no express release in an assignment, "the contract's subject or other circumstances may indicate that obligations were not intended to survive assignment." Id. The Court does not find that the Lease Agreement's subject or any other circumstances imply that Texhoma Fiber should be released from its non-circumvention obligation after it assigned its interests to Comcell. Section 18.8 of the Lease Agreement provides that "[n]o subsequent agreement concerning the Route shall be effective unless made in writing and executed by authorized representatives of the parties." There is no written, executed agreement releasing half of the fibers in the Texhoma Fiber Route from the non-circumvention obligation. Furthermore, the purpose of the non-circumvention provisions was to prevent Texhoma Fiber from providing cell site backhaul service to PEG's competitors at the sites subject to the Lease Agreement using the network paid for by PEG. To allow Texhoma Fiber to assign its non-circumvention obligation, retain half of the fibers subject to the Lease Agreement, and then subsequently lease those fibers to one of PEG's competitors would directly contradict that purpose. Therefore, the Court finds that Texhoma Fiber has a continuing obligation to not, directly or indirectly through other customers, offer or provide services to licensed CMRS carriers at the sites contained in Exhibit A to the Lease Agreement. Thus, the Court finds granting summary judgment in Texhoma Fiber's favor is unwarranted.
II. Texas Free Enterprise and Antitrust Act, and Texas Covenants Not to Compete Act
Texhoma Fiber asserts that § 18.1 of the Lease Agreement, the non-circumvention provision, is an unlawful, unreasonable, and unenforceable restraint of trade in violation of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Com. Code §§ 15.01, et seq. , and the Texas Covenants Not to Compete Act, Tex. Bus. & Com. Code §§ 15.50, et seq. The thirty-year non-compete obligation reads:
*846TEXHOMA FIBER shall not, directly or indirectly through other customers, offer or provide services to licensed CMRS carriers at the sites contained in Exhibit A, without the prior written consent of PEG. Nothing herein shall restrict TEXHOMA FIBER'S right to provide any services to wireless carriers at sites not contained in Exhibit A.
Lease Agreement, at § 18.1.
Texhoma Fiber asserts that the Texas Covenants Not to Compete Act "supplements and clarifies" the Texas Free Enterprise and Antitrust Act's "broad proscription against trade restraints by establishing specific standards for covenants not to compete." (Dkt. # 39 at p. 22). Texhoma Fiber further asserts that
the general rule of reason [under the Texas Free Enterprise and Antitrust Act] does not apply to the noncompete obligation at issue in this case. Texhoma does not dispute that the Texas Free Enterprise and Antitrust Act is patterned off federal antitrust statutes or that the rule of reason standard that governs most restraints of trade under federal antitrust law also generally applies to contracts in restraint of trade under Texas law.
(Dkt. # 39 at p. 23). Thus, the Court finds Texhoma Fiber has abandoned its affirmative defense under Texas Free Enterprise and Antitrust Act and exclusively relies on the Texas Covenants Not to Compete Act to invalidate the non-circumvention provision.
PEG asserts that the Covenants Not to Compete Act does not apply to the Lease Agreement because it applies exclusively to employment contracts, not commercial contracts (Dkt. # 37 at pp. 20-22). The Court disagrees with PEG's argument but finds the Texas Covenants Not to Compete Act is still inapplicable to the Lease Agreement because the non-circumvention provision is a restrictive covenant running with the land, i.e. the Texhoma Fiber Route, and should be analyzed as such.
Although not legally binding, the Court finds the analysis in Rolling Lands Investments, L.C. v. Northwest Airport Management, L.P. persuasive. 111 S.W.3d 187 (Tex. App.-Texarkana 2003, pet. denied). In that case, the court rejected a challenge under the Texas Covenants Not to Compete Act to a deed restriction associated with a sale of real property which prevented competition with a neighboring airport. Id. at 200. The court held that "[t]he fueling rights restriction [was] a restraint on the use of a single parcel of real property and thus should not be reviewed as a noncompetition contract." Id. Similar to the fueling rights restriction in Rolling Lands, the non-circumvention agreement is a restraint on the use of fiber optic cables at the specific locations in the Texhoma Fiber Route. Texhoma Fiber asserts that
Section 18.1 of the [Lease Agreement] does not provide that Texhoma is prohibited from using the fibers in the Texhoma Fiber Route to compete with PEG for certain business at certain locations; it broadly provides that Texhoma is prohibited from offering or providing services to Cell Phone Companies at the sites covered by the [Lease Agreement] by any means whatsoever.
(Dkt. # 39 at p. 11). The distinction is unavailing. The non-circumvention provision prevents Texhoma "from using the fibers in the Texhoma Fiber Route ... [to offer or provide] services to Cell Phone Companies at the sites covered by the Lease Agreement by any means whatsoever." (Dkt. # 39 at p. 11).
The noncompete agreements in the cases cited by Texhoma Fiber are also distinguishable because they specifically prohibit certain competitive conduct, not necessarily limit the use of the specific *847land (or in this case, fibers). See CBIF Ltd. P'ship v. TGI Friday's Inc. , No. 05-15-00157-CV, 2017 WL 1455407, at *7 (Tex. App.-Dallas Apr. 21, 2017) (analyzing a restrictive covenant providing the venture partners would not participate in other restaurant operations at the Airport, and a restrictive covenant concerning the ownership or operations of restaurants in direct competition with TGI Friday's); Butts Retail, Inc. v. Diversifoods, Inc. , 840 S.W.2d 770, 772 (Tex. App.-Beaumont 1992), writ denied (Apr. 21, 1993) (analyzing two restrictive covenants: (1) that if prior to the expiration of the franchise agreement, Appellee terminated the franchise agreement, Appellant was prohibited from operating a business selling fruit and nuts in Parkdale Mall for a period of two years from the date which Appellant ceased to conduct business pursuant to this agreement, and (2) that during the five-year term of the franchise agreement, Appellant would not operate another business selling fruit and nuts within the metropolitan area of the Parkdale Mall store in Beaumont, Texas). Those restrictive covenants prohibit competitive conduct within a specified geographical area, not necessarily prohibit the use of specific land. See Ehler v. B.T. Suppenas Ltd., 74 S.W.3d 515, 520-21 (Tex. App.-Amarillo 2002, no pet.).
The Court now analyzes whether the non-circumvention provision is a valid restrictive covenant running with the land.5 "A real covenant 'runs with land' if:(1) it touches and concerns the land; (2) it relates to a thing in existence or specifically binds the parties and their assigns; (3) it is intended by the original parties to run with the land; and (4) when the successor to the burden has notice." Cummings v. Williams Prod.-Gulf Coast Co., L.P. , No. 4:06CV11, 2007 WL 172536, at *4 (E.D. Tex. Jan. 18, 2007) (citing Inwood North Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987). The Lease Agreement specifically provides that it is binding on the successors and assigns of Texhoma Fiber. Lease Agreement, at § 18.10 (the Lease Agreement "binds and inures to the benefit of any permitted assignees or successors to the parties."). The land is specifically identified. The agreement is to build a fiber optic cable network to service licensed CMRS carriers at the sites located in the Texhoma Fiber Route. There is also privity between the parties. The Court finds that the non-circumvention provision is a valid restrictive covenant that "runs with the fibers" and is binding on Texhoma Fiber. As such, summary judgment is PEG's favor is warranted.
III. Declaratory Relief
Both parties also move for summary judgment on PEG's claim for declaratory relief. PEG specifically seeks a declaration that "Texhoma Fiber has a continuing duty, extending for thirty years from the date of acceptance, for each site listed in the [Lease Agreement] or its amendments, not to directly or through other customers, offer or provide services to licensed CMRS carriers, without prior written consent of *848PEG Bandwidth." (Dkt. # 37 at p. 37) (quotations omitted).
The federal Declaratory Judgment Act states, "[i]n a case of actual controversy within its jurisdiction,...any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201. Federal courts have broad discretion to grant or refuse declaratory judgment. Torch, Inc. v. LeBlanc , 947 F.2d 193, 194 (5th Cir. 1991). "Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants." Wilton v. Seven Falls Co. , 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). The Declaratory Judgment Act is "an authorization, not a command." Public Affairs Assocs., Inc. v. Rickover , 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). It gives federal courts the competence to declare rights, but does not impose a duty to do so. Id.
The Court finds that PEG's motion for summary judgment on its claim for declaratory relief should be granted and Texhoma Fiber is bound by the non-circumvention obligation until the expiration of the thirty-year Lease Agreement.
IV. Attorneys' Fees
Texhoma Fiber also moves for summary judgment on PEG's request for attorneys' fees, asserting that the Lease Agreement does not permit PEG to recover attorneys' fees and Section 38.001 of the Texas Civil Practice and Remedies Code restricts the proper target of reasonable attorneys' fees to an "individual" or a "corporation," but not other legal entities, such as limited liability companies. TEX. CIV. PRAC. & REM. CODE § 38.001(8). PEG concedes that "[a]s of now, the Texas Legislature still has not fixed the hole created by case law construing Texas statutory law so as not to allow recovery of attorney fees from a limited liability company in a breach of contract action." (Dkt. # 38 at p. 5) (citing See Vast Construction, LLC v. CTC Contractors, LLC , 526 S.W.3d 709, 728 n.16 (Tex. App.-Houston [14th Dist.] 2017, no pet. h.) ). Both PEG and Texhoma Fiber are limited liability companies and such a request for attorneys' fees is misplaced and PEG's claim for attorneys' fees should be dismissed. Summary judgment should be granted on this claim.
CONCLUSION
It is therefore ORDERED that Plaintiff's Motion for Partial Summary Judgment (Dkt. # 37) is hereby GRANTED and the Court declares that Defendant is bound by the non-circumvention obligation until the expiration of the thirty-year Lease Agreement. Therefore, no material questions of fact exist with regard to whether Defendant is liable to Plaintiff for breach of the Lease Agreement. The only remaining issue to be decided by the trier of fact is the amount of damages.
It is further ORDERED that Defendant's Motion for Summary Judgment (Dkt. # 36) is GRANTED in part and DENIED in part. Defendant's motion is granted only as to Plaintiff's claim for attorneys' fees and Plaintiff's claim for attorneys' fees is hereby dismissed.
IT IS SO ORDERED .
"Backhaul" service connects a cell phone tower or site to a switch location designated by the cellular telephone carrier in order to enable the cellular carrier to service a market.
This is a typical arrangement in the telecommunications industry whereby the lessor installs, maintains, and retains title to the fibers but attaches no electronics to the fibers. Instead, at each end of the fibers and at other locations between the end points, the lessee attaches the transmitting and receiving electronic equipment that processes and passes the communications signals over the optical fibers. Typically, as is the case here, the lessor builds a network consisting of a large number of fibers and then leases or otherwise conveys, pursuant to a substantial upfront fee paid prior to and/or contemporaneously with the delivery of the fibers, the exclusive right to use a subset of those fibers to the lessee for the entire anticipated useful life of the fibers.
After negotiations, the parties agreed that Texhoma Fiber would lease two fibers to PEG in the "backbone" of the fiber route, and four fibers in the "lateral" routes.
In its Response to PEG's Motion for Partial Summary Judgment, Texhoma fiber asserts that "PEG committed a prior breach of the [Lease Agreement] which excused Texhoma from continuing to perform." (Dkt. # 39 at p. 20). "[T]he contention that a party to a contract is excused from performance because of a prior material breach by the other contracting party is an affirmative defense that must be affirmatively pleaded." Pivotal Payments, Inc. v. Taking You Forward LLC , No. 4:16CV-00598, 2017 WL 834980, at *3 (E.D. Tex. Mar. 1, 2017) (quoting Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 852 (Tex. App.-Dallas 2005, pet. denied) ) (citing RE/MAX of Tex., Inc. v. Katar Corp. , 961 S.W.2d 324, 327 (Tex. App.-Houston [1st Dist.] 1997, pet. denied) (citing Tex. R. Civ. P. 94 ) ). See Mullins v. TestAmerica, Inc. , 564 F.3d 386, 411 (5th Cir. 2009). Here, Texhoma Fiber failed to affirmatively plead such defense. Thus, this affirmative defense is waived.
In its sur-reply, Texhoma Fiber asserts that "the fibers leased by PEG under the [Lease Agreement], and the remaining fibers in the Texhoma Fiber Route, are all personal property, not real property" and, thus, "the non-compete obligation cannot 'run with the fiber.' " (Dkt. # 45 at p. 4). The Court disagrees. See In re Energytec, Inc. , 739 F.3d 215, 221 (5th Cir. 2013) (finding "[t]he real property at issue ... is a gas pipeline system and the rights-of-way required for its placement" constituted covenants running with the land including the right to transportation fees-because the traveling of natural gas along the length of the pipeline was for the use of the real property-and the right to consent to the assignment of the pipeline-because the rights impact the owner's interest in the pipeline). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3211714/ | Filed 6/9/16 Steele v. Trammell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT STEELE, D068161
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00056367-
CU-FR-NC)
LLOYD TRAMMELL et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Earl H. Maas, III, Judge. Affirmed.
Amezcua-Moll & Associates, Rosemary Amezcua-Moll and Sarah J. Nowels for
Plaintiff and Appellant.
Adli Law Group, Dariush G. Adli and Bernard Jasper for Defendants and
Respondents.
In this action for damages for breach of an employment agreement and related tort
claims, plaintiff Robert Steele appeals from a defense judgment after court trial, issued in
favor of a group of defendants and respondents headed by defendant and respondent
Lloyd Trammell, who was a controlling member of Steele's former employers. Steele
further challenges an underlying order denying his new trial motion.1
At trial, Steele pursued recovery on theories of breach of employment contract and
its associated covenant of good faith and fair dealing, breach of fiduciary duty, fraud or
fraudulent transfer, conversion, and declaratory relief on the interpretation of the contract.
Steele sought to prove that Trammell, together with his associated companies, Acoustic
Control Science, LLC (ACS) and its manager Audio X, LLC (Audio X) (together, the
"employer entities") misappropriated and transferred certain acoustic technology in which
he had an ownership interest, without compensating him for it as required by the written
employment agreement.
On appeal, Steele contends the trial court's statement of decision prejudicially
omitted to resolve and make essential findings on all the causes of action and material
issues raised by the pleadings. In particular, he claims essential findings were not made
on the existence of contract or tort liability of Trammell as an individual, or on an alter
ego basis, since Trammell had signed the employment agreement as a representative of
the employer entities. (See fn. 3, post.) Steele contends the trial court erroneously failed
to render a decision on his declaratory relief request regarding an ongoing ownership
1 In motion proceedings, we have augmented the record to include the trial court's
final statement of decision, and the second amended complaint (SAC), as shall later be
explained. The additional defendants and respondents who have appeared on appeal
include Robert Wolff, Audio Genesis Group, LLC (Audio Genesis), and Max Sound
Corporation (Max Sound, which was formerly known as So Act Network, Inc.);
sometimes together, "Respondents." Their roles will be described in the factual and
procedural portion of this opinion.
2
interest in the employer entities or their successors, or on his breach of fiduciary duty
cause of action.
In addition to claiming the statement of decision was insufficient, Steele seems to
argue that the trial court's decision was "against law," such that his new trial motion
should have been granted, in view of the weight of the evidence he brought forward.
(See Code Civ. Proc.,2 § 657, subd. (6) [new trial granted for insufficiency of the
evidence, or where decision is against law].)
We conclude the final statement of decision adequately resolved each of Steele's
contract and tort claims. To the extent he makes similar arguments concerning the denial
of the new trial motion, no error has been demonstrated. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Identity and Relationship of Parties
In April 2007, Steele, an electrical engineer, agreed to serve as the chief executive
officer (CEO) of the employer entities. ACS was the owner of audio technology and
Audio X licensed it.3 Steele became acquainted with Trammell and another controlling
member of the employer entities, Brad Hirou (not a party to this action), when Wolff
2 All further statutory references are to the Code of Civil Procedure unless noted.
3 Neither of the employer entities was served in this action and neither has appeared
at trial or in this appeal.
3
introduced them.4 Wolff is a trained religious leader (pastor), and was a mutual friend of
Steele and Trammell. Hirou and Steele had previously worked together for another
company.
The employer entities were engaged in the business of developing audio
technology. Trammell signed the employment agreement (the agreement; lodged as an
exhibit here) as the manager of both employer entities. Wolff was also involved in the
affairs of the employer entities, making introductions for them during the startup phases.
In Steele's agreement, his compensation was set at $144,000 as an annual salary,
with paid vacation. Under its paragraph 4.5, he was to receive a 4.3 percent membership
interest in the employer entity ACS, unless "convicted of a felony charge related to his
conduct as an employee" during the next three years of employment. Under its paragraph
5.3, the agreement was not to be terminated if the employer entities were merged or
consolidated into another company, and any such transferee would continue to be bound
by the agreement, including its membership interest provisions. Paragraph 14 of the
agreement stated in relevant part, "the Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, representatives, successors and
assignees."
As CEO, Steele's duties included, among other things, securing funding for the
startup company. He worked on promoting the audio technology known as Audio
4 During closing argument, Steele's counsel referred to Hirou as having disappeared
and thus being the "empty chair" at trial, who was being blamed by Respondents for any
of their alleged errors.
4
Genesis 3D, "AG3D," an audio enhancer. Trammell initially developed the product, a
customer service that could create three dimensional (3-D) or surround sound. Trammell
was pursuing a patent application for the product. Steele prepared and presented
marketing materials to customers, including PowerPoint slides to demonstrate the
technology. He worked on improving the service technology into its next generation, by
obtaining client feedback and capital to build the business.
Steele had possession of a company laptop computer with the AG3D service
program and other valuable proprietary information on it, including video and audio
demonstrations of the technology. Soon, he and Trammell discovered that there was a
commercially available, competing device that did the same thing as their product, at a
lower cost. Trammell dropped the patent application.
Trammell and Steele disagreed about many things, and Steele's employment was
terminated August 8, 2008. A few months later, Trammell sent Steele an e-mail
requesting that he return all the proprietary information he had, and claiming the
employer entities had a value of $17 million. Other evidence showed that the employer
entities did not have any remaining assets and they stopped functioning. It was not
disputed at trial that Trammell was out of money for a year or two after Steele's
employment was terminated, and Trammell moved to Houston for a while. While there,
Trammell worked on developing software to be licensed to create high definition audio.
By September 2010, Trammell had returned to California.
Meanwhile, Wolff understood that Steele was considering litigation against the
employer entities and Trammell. Over several weeks of discussions with Steele, some of
5
them allegedly conducted in his role as a spiritual advisor, Wolff persuaded Steele
forgiveness was appropriate and it was the right thing to return the company laptop,
which he did sometime between February and April 2010. Wolff never turned it on.
Eventually, he offered to return it to Trammell, who said he did not have any use for it.
Trammell and Wolff discussed creating a new company to hold the software
Trammell was working on. Between April and June 2010, Trammell applied for a patent
on the audio sound technology, now calling it Max D.
Steele learned at some point that Trammell and Wolff were forming a new
company to conduct audio sound technology business. Wolff and Trammell formed a
successor company, Audio Genesis. Trammell was an officer and shareholder of Max
Sound. In May 2010, Audio Genesis sold its audio technology software to So Act
Network, which became Max Sound, and Audio Genesis received valuable shares in Max
Sound.
B. Pleadings; Record on Appeal
On August 14, 2012, Steele filed a complaint in 11 causes of action against
Trammell and Wolff as individuals, and against the employer entities (ACS and Audio
Genesis), as well as Max Sound. In the first amended complaint, Steele expanded his
wrongful termination causes of action to add another Labor Code claim, as well as
declaratory relief and fraudulent transfer allegations.
Steele's operative second amended complaint (SAC) alleged two contract causes
of action, five tort theories, and seven claims of Labor Code violations for nonpayment of
wages, etc. (Lab. Code, § 201 et seq.) Most of the causes of action were brought against
6
all defendants, and theories of alter ego and successor liability were asserted. However,
breach of fiduciary duty was alleged only against Trammell and the employer entities.
Also, fraudulent transfer was alleged only against Max Sound.
Respondents answered the SAC and filed a cross-complaint. Although the cross-
complaint is not discussed in the appellate briefing, the attorney fees motion papers in the
record disclose that the cross-complaint was directed against the two employer entities,
and their defaults were taken. However, Steele's case progressed only against the
individual and company Respondents.
Steele has not designated a complete appellate record. After filing his notice of
appeal, he brought a motion and separate supplemental motion to augment the record or,
alternatively, to take judicial notice of pleadings and documents. (Cal. Rules of Court,
rule 8.155(a)(1)(A); all further rule references are to these rules unless noted; see fn. 1,
ante.) Respondents opposed the motions, and they were deferred to this panel for
decision. We issued an order on April 29, 2016, granting them in part, to augment the
record with the trial court's final statement of decision and the SAC.
We denied Steele's (opposed) supplemental motion for augmentation or judicial
notice of the moving, opposing, and reply papers that were submitted to the trial court on
Plaintiff's unsuccessful new trial motion (denied April 23, 2015). No party had
designated the reporter's transcript for that hearing date, April 23, 2015, as part of this
record, and we have declined to augment the record to include it, as it is unnecessary for
addressing the issues on appeal. (Rule 8.155(a)(1)(B).)
7
On another procedural point, Respondents' brief requests that this appeal be
dismissed for alleged deficiencies in the record. However, no formal motion for such
relief was brought and that request is now moot. (Rule 8.276.) Likewise, Respondents'
brief claims that sanctions for a frivolous appeal should be awarded, but no such motion
has been made, nor is it adequately supported through declaration or otherwise. (Ibid.)5
The record is now sufficient to enable us to reach the merits of the issues presented.
C. Court Trial
Trial began on Steele's two contract-based claims, based on Respondents' failure
to compensate him with salary, vacation benefits, 4.3 percent stock ownership interest
and stock options, as well as on the alleged breaches of covenant of good faith and fair
dealing. He argued alter ego principles applied, such that Trammell was the same as the
now defunct employer entities. Steele further sought declaratory relief in the form of a
judicial determination that there exists a written binding contract for such compensation.
(§§ 1060, 1061.)
In his fraud theories, Steele claimed damages for Respondents' alleged breaches of
fiduciary duty, fraud, fraudulent transfer and conversion. It is not disputed that the Labor
5 To explain why dismissal would not properly be considered, we are concerned that
even though Respondents strenuously opposed augmentation, they also admitted in their
opposition that provisions of the SAC were argued throughout the trial. They had
acknowledged in their attorney fees motion papers that the SAC was filed by stipulation
to correct typographical errors, and that demurrers to it were overruled. Respondents
have not been forthcoming about their earlier stipulation to the filing of the SAC, nor
have they acknowledged that the record already contains the text of the final statement of
decision in a minute order as well as in the formalized document.
8
Code claims were determined at trial to be barred by the statute of limitations. Nor is it
disputed that the employer entities were not present at trial.
At trial, Steele testified and submitted documentary evidence in support of his
claim that during his employment, he had prepared demonstration and distribution
materials, including a PowerPoint presentation about the audio sound technology service.
He argued that since similar marketing materials were used by Trammell when he started
making presentations for the successor company, Audio Genesis, this showed the
technology was wholly derivative. Steele took the position that the Max Sound
technology was an outgrowth of the AG3D technology.
Steele accordingly claimed contract damages based on the lack of compensation
he received for his surviving contractual ownership interest in the employer entities, or as
accrued or deferred salary. He sought to hold Trammell as an individual responsible for
such damages, both as an alter ego and because he had signed the employment agreement
as a representative of the employer entities. Steele claimed that Trammell had breached
fiduciary duties owed to him, and he and Wolff committed fraud and conversion of the
audio technology by forming the successor companies.
Respondents presented testimony from Trammell and Wolff, and cross-examined
Steele. They took the position that the employer entities' sound technology AG3D, as a
service to be provided, was outdated and economically worthless. The newer software
technology was not proven to be derivative of that service technology. In any event, the
company laptop that Steele had did not contain the source code for the service technology
or other valuable material. By June 25, 2010, Trammell was pursuing his patent
9
application for the replacement software sound technology, without any access to or need
for the material on the laptop.
Numerous documentary exhibits were admitted into evidence. Some of them have
been designated as part of the appellate record, although only one has been transmitted to
this court (the employment agreement).
D. Statement of Decision and Judgment
At the conclusion of trial on November 20, 2014, the court took the matter under
submission, then issued its initial statement of decision on December 10, 2014. Within
the 15 days allowed by the court, objections and requests for clarification were filed and
considered.
On January 7, 2015, the court issued a minute order setting forth its final statement
of decision, and requested that Respondents prepare the judgment. The same text as in
the minute order also appears in a formalized final statement of decision filed the same
date. In summarizing the evidence, the court noted, "[T]his case raised more questions
for the Court, than answers. Additionally, in this unique case, the cross (or [Evid. Code,]
§ 776) examination of the adverse parties did more to enhance their credibility, than did
direct for any party. Essentially, the longer the parties were on the stand, on cross, the
more persuasive they became. The Court does not understand why the original
[employment] relationship fell apart. None of the parties' explanations were persuasive.
There apparently was useful technology and Plaintiff seems to have gathered funding,
which was then not pursued by Trammell . . . . The timing of the return of
personal/business property by Plaintiff was curious, but with over a year to copy the
10
computer's hard drive, and while consulting counsel, no persuasive evidence regarding
the contents of the computer were presented."
The court observed that as to the employer entities, Steele was probably owed
some money and was probably wrongfully terminated without cause. However, the court
found it significant that neither of the employer entities was served with Steele's
complaint, nor did he default them, nor did they appear at trial. Without his actual
employers present, the court determined that many of the issues regarding termination of
his employment could not be reached in the statement of decision. The evidence did not
show that Trammell was the alter ego of the employer entities, nor did it show that Audio
Genesis was the alter ego or successor of them. The court was not persuaded, by a
preponderance of the evidence, that the remaining defendants were responsible for
damages to Steele.
Having set forth this analytical framework, the court made findings that as to the
remaining defendants, the evidence showed that the new company was formed by
Trammell and Wolff in April 2010 (Audio Genesis), and they sold their company two
weeks later, including the disputed technology, to Max Sound. Although Steele claimed
the technology was the same, or was an improvement upon the technology owned by the
employer entities, he as the Plaintiff did not present persuasive evidence tying the two
products together. In particular, the court noted:
"[N]either side provided expert testimony, or compared patents,
plans, etc. While some marketing material for each was similar (or
identical), it was not helpful in showing the Court how the two
products were the same from a technology perspective. Plaintiff had
the burden to establish that the products were related by a
11
preponderance of the evidence. Plaintiff did not meet this burden.
Therefore, the Court finds in favor of the defense."
Because of the lack of proof that Trammell or Audio Genesis was an alter ego or
successor to the employer entities, the court determined that no further rulings need be
made, such as those requested by the parties in their postfiling briefs. Respondents were
requested to prepare the judgment consistent with those findings.
On March 13, 2015, Steele timely filed his notice of intent to move for a new trial.
Moving, opposing, and reply papers duly followed. On April 23, 2015, the minute order
in the record notes that the motion for new trial was denied, as fully reported "in the
reporter's transcript." However, neither party designated that transcript as part of our
record, and no augmentation order has been made or is required.
The defense judgment stated that Respondents, the prevailing parties, could pursue
motion proceedings on an award of attorney fees and costs, and they did so. On appeal,
Steele has not challenged the ruling on the motion awarding attorney fees. He appeals
the judgment and its incorporated order denying the new trial motion.
DISCUSSION
I
APPLICABLE STANDARDS
Steele chiefly argues he is entitled to a new trial based on certain defects he
identifies in the statement of decision. First, he contends it omitted findings on some
material issues raised at trial, which he believes makes the statement of decision and
judgment "against law." (§ 657, subd. (6); City of Los Angeles v. Decker (1977) 18
12
Cal. 3d 860, 871-872 [court considers entire record when new trial order challenged on
appeal].) Next, he contends the record establishes by a preponderance of the evidence
that Trammell was the alter ego of the employer entities, and/or that the corporate
Respondents are liable to him as successors of the employer entities. Steele asks for
either "a de novo review of the record to determine where the preponderance of the
evidence lies," or for an abuse of discretion review that would result in reversal of the
order denying a new trial.
Respondents argue that on the one hand, an abuse of discretion standard applies to
the new trial order, but that on the other hand, to the extent the statement of decision is
arguably defective, a substantial evidence rule should control. (Kemp Bros.
Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal. App. 4th 1474, 1477 (Kemp
Bros.) [even where trial court states incorrect reason for decision, it may be upheld on
alternative methods of review, including substantial evidence].)
As augmented, the record includes not only the final statement of decision but also
the trial court's January 7, 2015 minute order that contains the same language. The
dominant nature of the judgment on appeal is one issued by the court after a bench trial,
based on a tentative decision, to which objections and requests for clarifications were
allowed. The court then provided an analysis of the evidence and the legal issues as
presented at trial. In this context, the denial of the new trial motion was secondary in
nature to the statement of decision procedure. We primarily examine the sufficiency of
the statement of decision under well accepted rules of review. The general rule on appeal
13
is that judgments and orders of the lower courts are presumed correct. (In re Marriage of
Arceneaux (1990) 51 Cal. 3d 1130, 1133 (Arceneaux).)
Where a judgment is issued following a statement of decision by the trial court,
special rules apply. A trial court "is required only to state ultimate rather than evidentiary
facts" in its statement of decision. (People v. Casa Blanca Convalescent Homes, Inc.
(1984) 159 Cal. App. 3d 509, 524.) A statement of decision is adequate if it fairly and
completely sets forth the factual and legal basis for the court's decision, by listing all the
ultimate facts necessary to decide the issues placed in controversy by the pleadings.
(Ibid.) Its underlying purpose is to explain the full factual and legal basis for the trial
court's decision, and it is deemed sufficient when it addresses those determinations with
which the appellant takes issue and which are relevant to the judgment. (Onofrio v. Rice
(1997) 55 Cal. App. 4th 413, 424-425; Miramar Hotel Corp. v. Frank B. Hall & Co.
(1985) 163 Cal. App. 3d 1126, 1130.)
It is not required that a statement of decision address all the legal and factual
issues raised by the parties, and rather, it should state simply the grounds upon which the
judgment rests, without necessarily specifying the particular evidence considered by the
trial court in reaching its decision. (Muzquiz v. City of Emeryville (2000) 79 Cal. App. 4th
1106, 1124-1125 (Muzquiz).) It need only state "ultimate rather than evidentiary facts
because findings of ultimate facts necessarily include findings on all intermediate
evidentiary facts necessary to sustain them." (In re Cheryl E. (1984) 161 Cal. App. 3d
587, 599; accord, Akins v. State of California (1998) 61 Cal. App. 4th 1, 35, fn. 29.) "In
14
other words, a trial court rendering a statement of decision is required only to set out
ultimate findings rather than evidentiary ones." (Muzquiz, supra, at p. 1125.)
Where a statement of decision fails to make findings on a material issue, and does
not fairly disclose the court's determinations on the evidence and argument at trial, error
may be found. "Even then, if the judgment is otherwise supported, the omission to make
such findings is harmless error unless the evidence is sufficient to sustain a finding in the
complaining party's favor which would have the effect of countervailing or destroying
other findings. [Citation.] A failure to find on an immaterial issue is not error. "
(Hellman v. La Cumbre Gulf & Country Club (1992) 6 Cal. App. 4th 1224, 1230
(Hellman).)
On appeal, we presume the judgment is supported and will read the statement of
decision as containing implied findings that are favorable to the judgment. (Arceneaux,
supra, 51 Cal.3d at pp. 1134-1135.) The appellant has the task of demonstrating
reversible error, through providing an adequate record and citations to it. (Duarte v.
Chino Community Hospital (1999) 72 Cal. App. 4th 849, 856 (Duarte); Ballard v. Uribe
(1986) 41 Cal. 3d 564, 574.) If an appellant does not provide an adequate record to
support a contention of insufficiency of the evidence to support a finding, that contention
may be deemed waived. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121,
132; Goldring v. Goldring (1949) 94 Cal. App. 2d 643, 645; Brockey v. Moore (2003) 107
Cal. App. 4th 86, 96.)
In the current case, standards for review on denial of a new trial motion dovetail
neatly with the statement of decision rules. If the decision was appropriately issued as a
15
matter of fact and law, the new trial motion would have to show reason to overturn it.
"[A]s a general matter, orders granting [or denying] a new trial are examined for abuse of
discretion. [Citations.] [¶] But it is also true that any determination underlying any
order is scrutinized under the test appropriate to such determination." (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 859-860 (Aguilar), italics added; City of
Los Angeles v. Decker, supra, 18 Cal.3d at pp. 871-872.) At trial, Steele as the plaintiff
had the burden of proof by a preponderance of the evidence as to his contract and tort
claims. "As a general rule, the 'party desiring relief' bears the burden of proof by a
preponderance of the evidence." (Aguilar, supra, at p. 861.)
With these rules in mind, we next outline Steele's theories on how the trial court
omitted to make findings on essential material issues presented by the pleadings. In view
of the absence from trial of the employer entities, we address the legal issues presented
about any alternative forms of employer contractual liability. We then look to the claims
about tort liability of the individual defendants.
II
CONTRACT-BASED CLAIMS; TRANSFER OF TECHNOLOGY
A. Introduction
To address Steele's claims that the trial court failed to resolve all material issues in
the statement of decision, we first examine the nature of the parties' relationships to his
theories of liability. All of the alleged breaches of contract and duty that he sought to
prove were premised on the same alleged core of facts, that the technology he worked on
16
while employed by the employer entities was essentially the same valuable property as
that which was later transferred to the successor companies.
Since Steele did not bring the employer entities before the court for trial, he
principally sought to hold Trammell responsible on the employment agreement, both for
damages and for declaratory relief on a claim for compensation (a 4.3 percent ownership
interest in the successor company). Steele sought to prove that Trammell was
individually liable for breach of contract, as a representative of the company, or on an
alter ego basis. Alternatively, Steele sought damages for breach of fiduciary duty from
Trammell, based on the transfer of the original company technology to the successor
companies.
Further, the SAC pled that Audio Genesis was the successor company to the
employer entities, and was therefore liable to Steele for the employer entities' obligations.
The trial court expressly rejected all these theories in the statement of decision, by
finding that neither Trammell or Audio Genesis was the alter ego or successor to the
employer entities, and thus "the Court need not rule further." The statement of decision
contains express findings that reject the basic premise of Steele's action, the near identical
nature of the technology that was transferred, in terms of his failure of proof at trial of the
breaches alleged. The court impliedly found no basis to issue declaratory relief that any
compensation was due to Steele, whether in the form of salary or an ownership interest in
the employer entities or their successors.
Our task is to examine whether the statement of decision was adequate in terms of
not only its express but also its implied findings. (Muzquiz, supra, 79 Cal. App. 4th 1106,
17
1124-1125; Hellman, supra, 6 Cal. App. 4th 1224, 1230.) On each theory of recovery, we
discuss the support in the record for the trial court's factual findings, and then analyze
whether additional findings should properly be inferred from the express findings, if
necessary to resolve all material issues presented.
B. Burden of Proof Regarding Company Property
As the plaintiff who was seeking relief in damages, Steele had the burden of proof
by a preponderance of the evidence as to the elements of his claims. (Aguilar, supra, 25
Cal. 4th 826, 861.) Both when the statement of decision was issued and when the new
trial motion was denied, the court found Steele failed to meet his burden of proof. (Id. at
pp. 859-860 [any determination underlying any order is scrutinized under the test
appropriate to such determination].)
On appeal, Steele must demonstrate there was reversible error, with citations to the
record developed below. (Duarte, supra, 72 Cal. App. 4th 849, 856.) If he did not support
his claims of insufficiency of the evidence, his contentions may be deemed waived.
(Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal. 4th 121, 132.) Here, Steele cites
to several portions of the reporter's transcript as supporting his references to exhibits that
were admitted into evidence, concerning the marketing presentation materials used for
both sets of technology, including the PowerPoint slides used for the AG3D technology
owned by the employer entities. However, he did not transmit the exhibits themselves to
this court, although he designated the exhibits as part of the appellate record (particularly
exhibits 34, 48, 52, 209). (Rule 8.224.) The only example of these materials
incorporated into the clerk's transcript is Exhibit 52, the Max D presentation which Steele
18
claims was the same as the AG3D presentation. It is difficult to second guess the trial
court's evaluation of these admitted exhibits without a more complete record. However,
since it is not disputed what these materials represented when the parties argued them, we
will assume for the sake of argument that they are the same as represented in the opening
brief and the reply brief.
With respect to the arguments on the contract claims, Steele had to prove that the
employer entities breached his contract, or alternatively, that Trammell or the successor
company Respondents were liable on it. On the substantive claim of breach, Steele
asserted he worked on the valuable AG3D technology and was entitled to an ownership
interest in it, as part of his contract entitlement. That claim fails if he did not prove that it
was the same technology of the employer entities that was transferred to the successor
companies, through the activities of the individual Respondents.
To prove the same technologies were involved, Steele asserts they were clearly
related, as shown by their similar names and by business plan and marketing materials he
provided at trial. Assuming for the sake of discussion that his brief accurately quotes the
exhibits, the software version of the technology described the newer product with the
same five-point description as used before, as follows:
"1. High resolution audio reproduction with an Omni directional
sound [field] using only two speakers. [¶] 2. Real, three
dimensional sound field versus artificial sound field created by
competing technologies. [¶] 3. A more realistic life performance
quality [in] all recordings with optimal dynamic rings, base response
and overall clarity. [¶] 4. Greatly reduces listener fatigue. [¶] 5.
Less hearing damage at high volumes."
19
Likewise, a PowerPoint presentation previously created for the employer entities
showed the two products had the following attributes or components:
"1. Real-Time processing. [¶] 2. Sub Base Enhancer. [¶] 3. A
Cross Blend. [¶] 4. Four Filters.
The website used by Max Sound posted a demonstration of the earlier version of
the technology, to explain its acquisition from Audio Genesis.
When analyzing the evidence, the trial court's statement of decision observed that
neither side had provided expert testimony or meaningful comparisons of patents and
plans for the two technologies. Plaintiff did not provide persuasive evidence to tie the
two products together, and it was not helpful to rely on marketing material that was
similar or identical. In this specialized field of endeavor, Steele did not meet his burden
to establish that the products, one of which was software and the other for a service, were
closely related and derivative. He thus did not show that Trammell or Wolff utilized the
employer entities' assets in creating the successor companies, Audio Genesis or Max
Sound.
Based on the evidence, the trial court had no basis to find that Steele had been
damaged by way of his loss of an ownership interest conferred by the employer entities in
an outdated product, whether by contract or otherwise. Respondents had no remaining
duty to refrain from competing with the employer entities, since the technology products
were separate. The record demonstrates that the court heard the testimony, weighed the
evidence, and reached a reasoned disposition of the issues about the value of the
technology. On review of this record, we have been given no reason to dispense with the
20
application of the substantial evidence rule. (Kemp Bros., supra, 146 Cal.App.4th at
pp. 1477-1478.)
We are nevertheless required to decide whether the court prejudicially failed to
deal with any material issues about an alternative basis for liability of the remaining
Respondents, individual and successors, for any contractual or other wrong committed by
themselves, or in place of the employer entities.
C. Relationship of Parties; Legal Principles on Employer Liability or
Alternative Formulations (Alter Ego/Successor Liability)
A major flaw in Steele's case, as identified by the trial court, was the absence from
trial of the employer entities. They were limited liability companies, which have legal
existences separate from their members. (9 Witkin, Summary of Cal. Law (10th ed.
2005) Corporations, § 36, p. 813; Corp. Code, § 17701.01 et seq. [California Revised
Uniform Limited Liability Company Act].) The members (e.g. Trammell) have limited
liability to the same extent as do corporate shareholders, but they may actively participate
in the companies' management and control. (9 Witkin, Summary of Cal. Law, supra,
Corporations, § 36, p. 813; Corp. Code, § 17703.01, subd. (a) [members are agents of the
LLC for the purpose of its business or affairs, and their acts may bind the company].)
The employer entities engaged in business activity, such as hiring Steele. (Corp. Code,
§ 207, subd. (g).)
In applying alter ego rules, the courts consider whether in a particular case,
"justice and equity can best be accomplished and fraud and unfairness defeated by a
disregard of the distinct entity of the corporate form." (Kohn v. Kohn (1950) 95
21
Cal. App. 2d 708, 718; Mesler v. Bragg Management Co. (1985) 39 Cal. 3d 290, 301;
9 Witkin, Summary of Cal. Law, supra, Corporations, § 9, p. 785.) Steele simply
contends: "The validity of the contract has never been disputed." However, no evidence
was presented that Trammell improperly utilized the employer entities to perpetrate a
fraud or accomplish some wrongful purpose regarding the service technology. Instead,
he persuaded the court that the software technology was original in nature. Steele did not
show the same valuable technology was transferred away from the employer entities, to
his damage.
To the extent Steele is pursuing Audio Genesis and Max Sound as successors to
the employer entities, we find similar fault with his theory. "If a corporation organizes
another corporation with practically the same shareholders and directors, transfers all the
assets but does not pay all the first corporation's debts, and continues to carry on the
same business, the separate entities may be disregarded and the new corporation held
liable for the obligations of the old." (9 Witkin, Summary of Cal. Law, supra,
Corporations, § 16, pp. 794-795; italics added.) However, if there was a legitimate
separation of the two companies, and where there was no fraud, the successor corporation
is not held liable for the former entity's debts. (Id. at § 17, p. 796; see Pierce v. Riverside
Mortg. Sec. Co. (1938) 25 Cal. App. 2d 248, 254; CenterPoint Energy, Inc. v. Superior
Court (2007) 157 Cal. App. 4th 1101, 1120.)
Steele failed to prove that the successor companies were actually carrying on the
same business as the employer entities, since the new software technology was not
proven to be derivative enough of the service technology. There was no expert testimony
22
to assist the court, and it could reasonably determine that the marketing material was not
technical enough to prove the point. Steele did not prove that Trammell utilized the
successor companies to evade any responsibility owed to him, or to unfairly compete
with the employer entities' activities.
Accordingly, Steele did not show he was entitled to enforce the contract against
the successor companies, for salary or an ownership interest, even in light of the clauses
he relied on in the agreement (e.g., paragraph 5.3, "This Agreement shall not be
terminated by any merger or consolidation where the Company is not the consolidated or
surviving corporation or by any transfer of all of substantially all of the assets of the
Company"; paragraph 14, "This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, representatives, successors and
assignees . . . ."). The statement of decision fairly disclosed the court's determinations on
the evidence and argument at trial, concerning the contract claims and liability for them.
On appeal, the lack of more explicit findings on alter ego or successor liability is not a
reversible defect, because Steele did not bring forward sufficient evidence to sustain a
finding in his favor, "which would have the effect of countervailing or destroying other
findings. [Citation.] A failure to find on an immaterial issue is not error." (Hellman,
supra, 6 Cal. App. 4th 1224, 1230.) There was no contract liability proven against any
party.
Moreover, Steele has failed to provide any meaningful legal analysis supporting
his alter ego or successor claims. "Appellate briefs must provide argument and legal
authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but
23
fails to support it with reasoned argument and citations to authority, we treat the point as
waived. [Citations.]' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal. App. 4th
857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The
absence of cogent legal argument or citation to authority allows this court to treat the
contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814,
830 (Falcone & Fyke); see also People v. Stanley (1995) 10 Cal. 4th 764, 793.)
D. Trammell as Representative or Manager of Employer Entities;
Fiduciary Duty Regarding Transfer of Technology
Steele next contends that the statement of decision erroneously omitted any
finding as to whether Trammell was individually liable as a "representative" of the
employer entities under the contract, and he claims "[t]he record demonstrates by a
preponderance of evidence, that Trammell was individually liable for breach of contract."
Steele relies on paragraph 14 in the agreement, providing that it is binding "upon the
parties hereto and their respective heirs, representatives, successors and assignees."
It is well accepted that "a corporation can act only through its agents, and in its
ordinary course of business," its authorized representatives have the authority to bind the
corporation. (Moore v. Phillips (1959) 176 Cal. App. 2d 702, 709; Grummet v. Fresno
Glazed Cement Pipe Co. (1919) 181 Cal. 509; Jeppi v. Brockman Holding Co. (1949) 34
Cal. 2d 11, 16; 9 Witkin, Summary of Cal. Law, supra, Corporations, § 108, p. 885.) In
light of these principles, Steele did not show why the corporate identity should be
disregarded, merely because Trammell was a manager of the employer entities and
signed on their behalf, and because Trammell admitted at trial that Steele entered into
24
such an employment contract. Steele reads the agreement too broadly and without
supporting authority.
Steele alternatively argues the court failed to address the breach of fiduciary duty
cause of action, and "erroneously predicated its judgment on a finding that there was lack
of persuasive evidence tying the AG3D technology to the technology sold by Audio
Genesis." Steele contends that the evidence at trial conclusively established that
Trammell and Wolff, as majority members and managers of a limited liability company,
breached their fiduciary duties owed to him, as he was entitled to the status of a minority
member.6
To plead a cause of action for breach of fiduciary duty, there must be shown the
existence of a fiduciary relationship, its breach, and damage proximately caused by that
breach. (Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1101.) During the existence of the
employer entities, Trammell was a managing member of them and owed duties to the
other members that were fiduciary in nature. (Former Corp. Code, § 17153; provisions
now found in Corp. Code, § 17704.09.)7
6 Although the SAC seemed to plead fiduciary duty breaches only against Trammell
and the employer entities, Steele argues on appeal that Wolff likewise owed him such
duties. This discrepancy need not be addressed in light of the resolution of other issues.
7 Corporations Code section 17704.09, currently provides in part that "(a) The
fiduciary duties that a member owes to a member-managed limited liability company and
the other members of the limited liability company are the duties of loyalty and care
under subdivisions (b) and (c). [¶] (b) A member's duty of loyalty to the limited liability
company and the other members is limited to the following: (1) To account to the limited
liability company and hold as trustee for it any property, profit, or benefit derived by the
member in the conduct and winding up of the activities of a limited liability company or
25
Here, the court expressly found Trammell and Wolff were not to be held
responsible for the employer entities' financial obligations. When the software
technology was created by Trammell, no traceable source of any business opportunity for
Steele was proven to exist within it. The creation of the successor companies to market
the software was not directly traceable to the employer entities. Steele did not show why
he should recover against any Respondent on the basis there was some kind of ongoing
fiduciary duty toward him to protect any remaining entitlement he had to any valuable
employer assets. As far as the evidence showed, those assets had been exhausted, as had
any enforceable fiduciary duty.
E. Declaratory Relief
Steele also complains that the statement of decision is defective because the trial
court did not make an express "judicial determination" of the things he requested in his
equitable cause of action for declaratory relief. In his view, Steele adequately established
at trial that he was granted a 4.3 percent ownership interest in the employer entities'
assets, but was wrongfully deprived of it. However, he did not show that there were any
such assets left to be transferred, or by whom.
derived from a use by the member of a limited liability company property, including the
appropriation of a limited liability company opportunity. (2) To refrain from dealing
with the limited liability company in the conduct or winding up of the activities of the
limited liability company as or on behalf of a person having an interest adverse to the
limited liability company. (3) To refrain from competing with the limited liability
company in the conduct or winding up of the activities of the limited liability company.
[¶] (c) A member's duty of care to a limited liability company and the other members in
the conduct and winding up of the activities of the limited liability company is limited to
refraining from engaging in grossly negligent or reckless conduct, intentional
misconduct, or a knowing violation of law."
26
Although under section 1060, Steele was free to bring an action seeking a
declaration of rights or duties, including a determination of any question of construction
or validity arising under the agreement, the court was not obligated to make the desired
declaration. Section 1061 provides that "[t]he court may refuse to exercise the power
granted by this chapter in any case where its declaration or determination is not necessary
or proper at the time under all the circumstances."
In light of the failure of proof at trial that very similar or identical technology was
transferred, depriving Steele of an interest in it, it was not reversible error for the trial
court to decline to issue declaratory relief. In any event, the implied findings outlined
above adequately resolved all the material issues raised at trial. This statement of
decision complies with the underlying purpose of such a statement, by addressing those
factual and legal determinations that are relevant to the judgment and disputed by the
appellant. (Onofrio v. Rice, supra, 55 Cal. App. 4th 413, 424-425; In re Cheryl E., supra,
161 Cal. App. 3d 587, 599.)
III
ARGUMENTS ON THE INDIVIDUAL DEFENDANTS' TORT LIABILITY
A. Fraud
Steele asserts that his tort causes of action for fraud and conversion damages are
not dependent on an alter ego theory of law, and therefore the trial court should have
more fully addressed those topics in its statement of decision. Once the trial court
decided that Respondents Trammell and Audio Genesis were not alter egos or successors
to the employer entities, the court said it "need not rule further."
27
As the plaintiff, Steele had the burden of proof by a preponderance of the evidence
that he was damaged by fraudulent acts. (Aguilar, supra, 25 Cal. 4th 826, 861.)
Trammell allegedly fraudulently represented to Steele that the software he developed was
a different product from the service technology owned by the employer entities, in which
Steele was asserting an ownership interest. According to the trial court's analysis of the
evidence, the two products were not the same.
As to Wolff, the alleged fraud was the role that he played in persuading Steele to
return the company laptop to Trammell, on the basis of forgiveness. At the time, Wolff
and Trammell were forming a new company to market the software technology. Steele
suggested that he relied on Wolff's representations that he was a disinterested religious
advisor and third party, but Wolff had unfairly benefited from the return of the laptop.
However, since Steele could not prove that the laptop contained valuable marketable
technology that was then utilized by the successor companies, he failed to show
actionable fraud.
When the entire record is considered, including the applicable burden of proof,
Steele failed to prove entitlement to recovery or to a new trial on his fraud claims. (City
of Los Angeles v. Decker, supra, 18 Cal. 3d 860, 871-872 [entire record considered in
determining if alleged error was prejudicial].)
B. Fraudulent Transfer or Conversion
Steele argues that when the trial court's statement of decision failed to mention the
causes of action for fraudulent transfer and conversion, the decision was "against law" for
purposes of new trial entitlement. Steele contends that the record "conclusively
28
established that Trammell was liable for conversion for fraudulently transferring [the
employer entities'] assets and technology." He likewise argues that Max Sound was the
recipient of such a fraudulent transfer, without proper consideration.
These claims presuppose that Steele would be able to prove that Trammell and
Wolff transferred or transformed the employer entities into their own companies.
However, he could not do so, because their assets were different, in the form of the two
technologies. The evidence did not establish that valuable technology was wrongfully
taken from the employer entities.
As to all the challenged causes of action, the statement of decision complied with
the underlying purpose of such a statement, by fully explaining the factual and legal
bases for the trial court's decision. Steele did not show that he is entitled to reversal or to
a new trial on any relevant remaining disputes.
DISPOSITION
The judgment and order are affirmed. Each party shall bear its own costs of
appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
29 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436465/ | This cause, on the facts and the law, is controlled and determined by the decision in Welfare Loan Soc. v. *Page 1392 City of Des Moines, 205 Iowa 1400. The only debatable question is whether or not loans made under the Iowa chattel loan statute, Chapter 419 (Sections 9410 to 9438, inclusive), Code of 1924, are investments coming into competition with the business of national banks: that is to say, whether loans made under the uniform small loans statute are "other moneyed capital," coming into competition with the business of national banks, as defined by Section 5219, Revised Statutes of the United States, as amended, 42 Statutes at Large 1499 (12 U.S.C.A., Section 548).
It is the contention of the plaintiff-appellee that loans made under the chattel loan statute, supra, are moneys and credits, within the Iowa taxation laws, Sections 6984-6986, Code of 1924. Under the instant record, this proposition must be sustained.
The facts disclose that the plaintiff is a Delaware corporation, doing business in the state of Iowa, and licensed under the Iowa chattel loan statute. It is engaged in business at 516 East Locust Street, Des Moines. During the year 1925, and up to the time of the trial below, the plaintiff was engaged in the chattel loan business. On December 1, 1925, it had, outstanding, 548 loans, of an average amount of $86.10 per loan, or a total of $47,183.67. With the exception of less than $100, all of this money was loaned with chattel security, principally household furniture. Practically none of the money was loaned upon the credit of the borrower.
The plaintiff exercised and engaged in none of the normal functions of a state or national bank. It accepted no deposits. Its loans were made entirely from its own capital, which was augmented by occasional borrowings, either from individuals or from banks. It never made any loan over $300. It never loaned money except at the rate above the legal maximum rate in Iowa. It did not discount or negotiate commercial paper. It did not grant letters of credit. It did not issue, buy, or sell drafts or bills of exchange, nor collect commercial paper for others. It did not buy or sell coin or bullion. In brief, it did not perform the usual and ordinary functions of a bank.
Prior to the year 1925, the plaintiff's loans were always assessed in Polk County as moneys and credits, under Chapter 332 of the Code of 1924. In 1926, the city assessor of Des Moines undertook to change the assessment roll theretofore used, and *Page 1393
announced that he would assess the cash and the entire amount of small loans held on December 31st, in the total sum of $34,052, as "bank stock and other moneyed capital." This amount was determined on the theory that such loans could probably be sold for approximately 65 per cent of their face value. The plaintiff, through its president, signed this assessment roll under protest, and from the assessment the plaintiff promptly appealed to the appellant board of review, which overruled the objections; whereupon the plaintiff appealed to the district court, and upon the trial, the ruling of the board of review was reversed. This appeal presents the question heretofore stated.
The test of "other moneyed capital," under Section 5219 of the Revised Statutes of the United States, is whether it comes into actual, unfriendly, substantial rivalry with the normal business of national banks. First Nat. Bank v. City of Hartford,273 U.S. 548 (71 L. Ed. 767); Georgetown Nat. Bank v. McFarland,273 U.S. 568 (71 L. Ed. 779); First Nat. Bank v. Anderson, 269 U.S. 341
(70 L. Ed. 295); People ex rel. Pratt v. Goldfogle, 242 N.Y. 277
(151 N.E. 452). This court follows whatever definition the Supreme Court of the United States gives to the words "other moneyed capital." Steele v. Madison County, 198 Iowa 902. Competition means rivalry.
The normal business of national banks in Polk County does not include making small loans, with interest at 42 per cent per year. In fact, national banks in Iowa are expressly precluded from such business. Section 9438, Code of 1924. The rate of interest in Iowa, under the general law, is 8 per cent per annum. Section 9404, Code of 1924. The Federal law limits national banks to "interest at the rate allowed by the laws of the state" where the bank is located. Section 5197, Revised Statutes of the United States (12 U.S.C.A., Section 85).
Chattel loans within the purview of the Iowa law (Chapter 419, Code of 1924) fall outside of the granted powers of national banks. Revised Statutes of the United States, Section 5136 (12 U.S.C.A., Section 24).
The undisputed testimony in the instant case discloses that the banks in Polk County do not engage in this class of business. It may also be said that the restrictive feature contained in Section 5219, Revised Statutes of the United States, must be construed in the light of its historical purpose. *Page 1394
The forbidden act is "to create and foster an unequal and unfriendly competition with national banks by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking." First Nat. Bank v. Anderson,269 U.S. 341 (46 Sup. Ct. Rep. 135, 70 L. Ed. 295).
The problem of defining "other moneyed capital," as outlined in Federal decisions, is ultimately that of selecting those competing uses of capital which are sufficiently similar so that the relative tax burden constitutes an important feature in a choice between them. See 7 Minnesota Law Review 357.
The term "competition" is not used judicially, in an academic sense that every dollar added to the vast fund of moneys and credits competes with every other dollar, but is used in its commercial sense, which means a struggle between business rivals for the same business. First Nat. Bank v. City of Hartford,187 Wis. 290 (203 N.W. 721).
This appeal presents an interesting question, which involves not only its novelty in this state, but also its historical phase. We will, however, not enter these doors, which have been opened by counsel in their elaborate and splendidly prepared briefs. The facts are not in dispute. The statutes under which the instant question arises are plain. We deem it unnecessary to lengthen this opinion, in view of the current decision of this court in Welfare Loan Soc. v. City of Des Moines, supra.
The decree entered by the trial court is — Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436296/ | Dora B. Truax, of Des Moines, Iowa, wife of appellant, died testate, June 25, 1943, leaving no children, but survived by her husband and a number of her collateral heirs, who are beneficiaries under her will. She owned an eighty-acre farm in Guthrie County, Iowa, and most of the household goods in their home in Des Moines. This home was apparently owned by her husband and she devised to him "all right, title and interest" therein, including "my dower right" and "all my interest in said property." She devised an undivided one-third interest in the farm, the curtains and carpets in the home, and her "dower right in our Colorado land" to her husband. To her sister, the appellee, she devised an undivided one-third interest in the Guthrie county farm, and the remaining undivided one-third interest therein to two other sisters. Her household goods and personal effects were bequeathed with considerable particularity to her sisters, nieces, and nephews.
The will made no provision for the payment of any obligations or claims other than a direction to first pay all her funeral expenses, and for a "very small headstone placed at my grave." She named her husband and the appellee as executors and they qualified. On February 9, 1944, the executors filed a report stating that by agreement of all the beneficiaries the Guthrie county farm, the only real estate owned by the deceased, had been sold for $12,000, which proceeds were held by them; that no distribution had been made under the will, and that claims had been filed against the estate in the sum of $4,218.90, none of which had been "proven, allowed or paid."
On January 12, 1944, the appellant filed accounts "for medical, hospital and nurse service for Dora B. Truax, deceased, during her last illness from March, 1942, to June, 1943." These accounts are for services of the Iowa Methodist Hospital, Des Moines ($1,184.80), University Hospital, Iowa City ($372.46), Worrall Hospital, Rochester, Minnesota ($121.40), Mayo Clinic, Rochester, Minnesota ($200), ambulance services at Des Moines and West Branch, Iowa ($67.50), services of eight doctors ($544), and services of seven nurses ($782). The total amount paid by the appellant for these services was $3,272.16. Appellant withdrew temporarily as executor insofar as his duties pertained to his claim. *Page 1219
On February 21, 1944, the appellee filed a motion to strike and to disallow the claim of the appellant, for the following reasons, in substance: (1) Claimant is the husband of deceased and one of the executors of her estate, and all said items paid by him were reasonable and necessary expenses of the family, for which he was legally and morally liable, and no claim or cause of action arose in his favor against his wife by their payment (2) said claim is void and without legal implication or value, and is contrary to and violates public policy, and it violates the marital relationship and the responsibilities of the husband therein (3) claimant was made liable for each and all of said claims by statute and payment thereof was a legal duty and in no respect created a right in his favor to have same repaid, or any liability on the part of the wife (4) under the statutes of the state and the decisions of this court, claimant is forbidden to maintain the claim or to recover anything thereon, since all of the claims were paid by him pursuant to his statutory duty.
Insofar as this appeal is concerned there is no dispute as to the facts. The motion of the appellee served the purpose of a demurrer and it will be considered as such. It will be treated as admitting that all items of the claim were expenses of the last sickness of the appellant's wife. All of the items were paid by appellant out of his own funds before the death of his wife. It is conceded that there are ample funds in the estate to pay the claim of appellant and all other claims filed and all obligations of the deceased and her estate and all expenses of administration. The only question to be answered on this appeal is whether, under the statutes of Iowa and the decisions of this court, the appellant is entitled to reimbursement from the estate for the money paid by him for the expenses of the last sickness of his wife. The matter of funeral expenses is not involved herein and will not be discussed except as it may, by analogy or connection, bear upon the liability of a husband for the expenses of his wife's last sickness. It is our conclusion that under these statutes and decisions, and under the record before us, the court erred in sustaining the motion to strike and dismissing appellant's claim.
I. At common law there arose out of the marital relation the duty and obligation of the husband to provide for his wife, *Page 1220
during health and sickness, those things reasonably suitable and necessary for her comfort and well-being, which were in keeping with his station in life, fortune, and earning power. He was entitled to such personal property as she brought him, and to her service. As a general rule, neither the wife nor such estate as she might leave was legally liable for such necessaries.
Most, and perhaps all of the states, have enacted married-women's acts and other so-called emancipatory legislation, greatly enlarging the common-law rights of the wife with respect to separate business and occupation, the right to contract, the acquisition, ownership, control, and alienation of property, the right to sue and be sued, and other matters. With this enlargement of rights has also come enlargement of duties and obligations. Iowa early enacted such legislation.
In several of the states the courts have held that this legislation has not abrogated the common-law responsibility of the husband above noted, nor relieved him of the liability of supporting his wife and providing her with reasonable necessaries, which, of course, include the services required in the last sickness. It is, and has been, the uniform holding of these courts that since the husband is primarily liable for the expenses of the last illness of the wife, and her estate is, at most, but secondarily liable, the husband, who has paid for these services, is not entitled to reimbursement therefor from the estate of the wife, even though the assets thereof are sufficient to do so. Without attempting to note all of the courts or all of the decisions, we call attention to the following: Moulton v. Smith, 16 R.I. 126, 12 A. 891, 27 Am. St. Rep. 728; Stonesifer v. Shriver, 100 Md. 24, 54 A. 139; Bliss v. Bliss, 133 Md. 61, 74,104 A. 467, 472; Barnes v. Starr, 144 Md. 218, 124 A. 922, 34 A.L.R. 809; Anderson v. Carter, 175 Md. 540, 2 A.2d 677; In re Wilson's Estate, 160 Okla. 23, 15 P.2d 825; Brogden v. Baugh,176 Okla. 339, 55 P.2d 994-997 (held services were not for last sickness); In re Wagner's Estate, 178 Okla. 384, 62 P.2d 1186, 1191; Earnest v. Earnest, 187 Okla. 258, 102 P.2d 602, 603; Estate of Phalen, 197 Wis. 336, 222 N.W. 218; In re Huebner's Will, 138 Misc. 101, 244 N.Y. Supp. 764 (where no agreement that the wife's estate was to be liable); Phillips v. Tribbey,82 Ind. App. 68, 141 N.E. 262, 144 N.E. 145; Manor *Page 1221
v. Manor, Ind. App., 51 N.E.2d 898, 899; In re Koretzky's Estate, 180 Misc. 108, 40 N.Y.S.2d 928; Greenhouse's Estate, Pa. Orph., 57 Montg. Co. L. Rep. 360; Sanderson v. Niemann, 17 Cal. 2d 563,110 P.2d 1025; Pfeiffer v. Sheffield, 64 Ohio App. 1,27 N.E.2d 494; McClellan v. Filson, 44 Ohio St. 184, 5 N.E. 861, 58 Am. Rep. 814 (the wife's estate was held liable for the expenses of the wife's last sickness, but upon the ground that she had contracted the debts); Trotter v. Minnis, 199 Ark. 924,136 S.W.2d 463; Beverly v. Nance, 145 Ark. 589, 224 S.W. 956; Geer's Estate, Pa. Orph., 20 Erie Co. L.J. 397; In re Lage's Will, 167 Misc. 636, 4 N.Y.S.2d 474; In re Burt's Will, 254 A.D. 584, 3 N.Y.S.2d 70 (so far as commensurate with husband's means); Batts v. Batts, 198 N.C. 395, 151 S.E. 868; Bowen v. Daugherty,168 N.C. 242, 84 S.E. 265, Ann. Cas. 1917B, 1161; Hayes v. Gill,226 Mass. 388, 115 N.E. 492 (wife's estate held liable to husband for funeral expenses, and for expenses of her last sickness which he paid after her death, but not liable for expenses of last sickness which he had paid before her death); Jenks v. Lang,302 Mass. 409, 19 N.E.2d 705-707 (held that expenses of wife's last sickness paid by husband prior to her death were not recoverable from her estate); In re Weringer's Estate, 100 Cal. 345, 34 P. 825; Galloway v. Estate of McPherson, 67 Mich. 546, 35 N.W. 114, 11 Am. St. Rep. 596; Carpenter v. Hazelrigg, 103 Ky. 538, 45 S.W. 666, 667; Towery v. McGaw, 22 Ky. L. Rep. 155, 56 S.W. 727, 728; Palmer v. Turner, 241 Ky. 322, 43 S.W.2d 1017; Schlotterback v. Ort, 103 Ind. App. 124, 5 N.E.2d 678 (in this the wife had made her estate liable for expenses of burial and last sickness by testamentary direction). See, also, 27 Am. Jur., Husband and Wife, section 462.
It would serve no purpose to analyze these cases nor the pertinent statutory legislation. We have read the cases and the decisions are based upon public policy, the common law, or upon statutes which the courts have construed not to absolve the husband from his common-law liability. Typical of some of these statutes and the construction thereof is section 1255, Oklahoma statute, 1931 [58 Okla. Stat. 1941, section 591], which provides the debts of the estate must be paid in the following *Page 1222
order: 1. funeral expenses; 2. expenses of last sickness, etc. Of it the court said:
"The purpose of section 1255, O.S. 1931, is to establish priority of legal enforceable debts against the estate of a deceased person, and does not create liability." (Italics ours.) Brogden v. Baugh, supra, 176 Okla. 339, 342, 55 P.2d 994, 997.
The word "debt" in such a statute refers, of course, to obligations of the wife or estate, and cannot, therefore, include the expenses of her last sickness, which those courts hold as a "debt" of the surviving husband or of his estate.
In speaking of these decisions, the Missouri Court of Appeals, in Reynolds v. Rice, 224 Mo. App. 972, 976, 27 S.W.2d 1059, 1061, said:
"We are confronted by a contrariety of opinion and conflict of decisions from other jurisdictions, the value and weight of which depend on the reasons assigned, as well as the character of the various statutes and the declared policy of the several states. It would be a useless encumbrance to review in detail the various cases relied upon, and to examine the statutes to which reference is made, note differences, compare them, and the reasoning in the opinions, for the purpose of determining the sounder rule of decision. We shall give attention to our statutes of administration said to be applicable, and the effect, if any, of the married women's acts."
This is the proper approach to the question before us.
Under legislation passed many years ago in Iowa, the husband has been relieved of his sole liability for family expenses. Section 10459, Code of 1939, is as follows:
"Family expenses. The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately."
It has come down, in substance, through the various Codes since the Code of 1851. While the section provides that the husband and wife may be sued jointly or separately, they are *Page 1223
not joint debtors. In a per curiam opinion, Vest v. Kramer, Iowa, 114 N.W. 886, 14 L.R.A., N.S., 1032, we said:
"In our opinion the liability of the defendant is not that of a mere surety for her husband. The statute makes the property of both equally liable for the payment of such family expenses. Code, § 3165 [1897]. As between them and the creditor both are liable as principals, and the discharge of one does not necessarily work the discharge of the other. While both are liable for the same debt, and payment by one operates as a discharge pro tanto of the other, they are not joint debtors. There is no joint promise or joint contract. The liability of one is contractual, while the liability of the other is purely statutory."
Both are equally bound for such debts. See, also, Skillman v. Wilson, 146 Iowa 601, 603, 604, 125 N.W. 343, 140 Am. St. Rep. 295; McCartney Sons Co. v. Carter, 129 Iowa 20, 23, 105 N.W. 339, 3 L.R.A., N.S., 145; and Sager, Sweet Edwards v. Risk,190 Iowa 207, 212, 180 N.W. 299, 13 A.L.R. 1393. In each of the two latter cases the liability of the wife for family expense is stated to be solely because of the aforesaid statutory section. Of course, under the statutes of Iowa, the wife may contract with a third person as freely as her husband may, and she may, therefore, also bind herself by contract for family necessaries.
In speaking of the effect of said section upon the common-law liability of the husband for family expenses, the court, in Johnson v. Barnes, 69 Iowa 641, 644, 29 N.W. 759, 760, said:
"As we understand, the rule that the father is primarily liable for the support of his infant children is based on the ground that the personal property of the wife and mother, in the absence of a statute, upon the marriage became absolutely his. The reason upon which this rule is based has ceased to exist in this state, and a married woman may acquire and hold property, both real and personal, in the same manner as her husband can, and the same may be held by her exempt from the debts of her husband. [Citing statutes.] This being so, it may be doubtful whether this rule should have force and effect in this state. Especially is this so when the following statute is taken into *Page 1224
consideration. [Quoting section 10459, Code of 1939, as it appeared in section 2214 of the Code of 1873.]"
Because of the relation above noted of the husband and wife to obligations for family expenses, this court has held that if either spouse uses, or permits the use of, his or her individual property for the purchase of family necessaries, without an agreement for repayment, the one whose property is so used cannot recover it in an action against the other spouse or against his or her estate. Appellee relies strongly upon this rule and cites in support thereof the following decisions: Courtright v. Courtright, 53 Iowa 57, 4 N.W. 824; Vandercook v. Gere, 69 Iowa 467, 29 N.W. 448; Hanson Myer v. Manley, 72 Iowa 48, 33 N.W. 357; Hayward v. Jackman, 96 Iowa 77, 64 N.W. 667; Patterson v. Hill, 61 Iowa 534, 16 N.W. 599; Porter v. Goble Co., 88 Iowa 565, 55 N.W. 530; McElhaney v. McElhaney, 125 Iowa 279, 101 N.W. 90; In re Estate of Rule, 178 Iowa 184, 159 N.W. 699; Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30; Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, 75 Am. St. Rep. 273; Aultman Engine Thresher Co. v. Greenlee, 134 Iowa 368, 111 N.W. 1007.
Not one of these decisions aids the appellee in any way nor has any application to the appellant's claim. Several of them have no application for specific reasons pertinent to those particular cases, but none of them is applicable for the reason that in none of them was the money or property sought to be recovered expended in payment of services rendered, or medicine or materials furnished in the last sickness of either spouse. If the appellant were in court seeking reimbursement for groceries, meat, clothing, or general household necessaries brought into the home, he would not have a case and the order of the trial court would have been right. He is in court seeking reimbursement for family expense, but it is a particular kind of family expense — expense for the last sickness of his deceased wife. This distinction is noted in Skillman v. Wilson, supra, 146 Iowa 601, 604, 125 N.W. 343, 140 Am. St. Rep. 295. The opinion reannounces the rule contended for by the appellee herein, but declined to apply it because the expenses for which reimbursement was asked werecharges of the last sickness. The controlling *Page 1225
statutory section is not section 10459, upon which appellee relies, but section 11969, of the Code of 1939, which is as follows:
"Expenses of funeral — allowance to widow. As soon as the executor or administrator is possessed of sufficient means over and above the expenses of administration, he shall pay off the charges of the last sickness and funeral of the deceased * * *."
The executrix is possessed of ample funds to pay the expenses of administration and the charges of the last sickness. She has refused to pay them because, as she says, those who furnished the services and things for which the charges were made have already been paid and the statutory obligation of the estate has thereby been satisfied. It was necessary, no doubt, that the services be paid promptly upon being rendered. Hospitals and nurses usually insist upon that. It is apparent from the report of the executors that Mrs. Truax did not have the cash available to pay these expenses. In any event, it was proper that the husband then pay them. At that time both he and his wife were equally liable for their payment. But this does not mean that in the event of her death from the ailment afflicting her, her estate should not bear the ultimate burden of these expenditures. That is the plain mandate of the statute. It does not mean that the husband or any other person who may have properly paid them shall not be reimbursed by the estate. If such other person had paid them, no one would doubt the duty of the estate to reimburse him. To say that the same duty is not owing to the husband who has paid them is to read something into the statute which clearly is not there. Of a similar situation, in which the appellate court reversed the trial court for not allowing reimbursement to the husband from the wife's estate for her funeral expenses which he had paid, Justice Holmes, in Constantinides v. Walsh, 146 Mass. 281, 282, 15 N.E. 631, 633, 4 Am. St. Rep. 311, said:
"There is no technical difficulty in a husband's imposing a liability upon his wife's executor after her death. If it was not the plaintiff's legal duty to do what he did, nevertheless we are of opinion that he stood on no worse ground than a stranger would have done. A stranger could have recovered against the *Page 1226
estate of a man, if he was justified in intermeddling. * * * And formerly, in the case of a married woman, he could have recovered against her husband. [Citing cases.] Undoubtedly he could now recover against her estate. If so, the husband can."
The appellee argues:
"Whatever claim appellant has against his wife's estate arises out of the voluntary payment thereof before it became known that they were for her last sickness. She was still living when the payment was made. The relationship of husband and wife still existed. * * * No one at the time of the payment of the claims listed by appellant knew that his wife was going to die."
This is not any answer to appellant's claim. It oftentimes happens that it is not known, and it is not anticipated, that the one being cared for is sick for the last time, but that fact does not nullify the mandate of section 11969. Whether the husband paid the expense of the last sickness of his wife before or after she died is of no materiality. The duty of paying these expenses is the primary and ultimate obligation of his wife's estate. Appellant relies upon the holding of this court in Skillman v. Wilson, supra, 146 Iowa 601, 603, 125 N.W. 343, 344, 140 Am. St. Rep. 295. Appellee says that "case is somewhat involved and lacking in clarity." It appears to us to be clearly decisive of this appeal. In that case the wife died testate and childless, leaving an insane husband, and collateral heirs, among whom she divided her property. Over a year after her death the guardian of her surviving husband filed a claim against her estate alleging that claims had been filed against the estate for expenses incurred in her last sickness, which the executors had failed to act upon, and that demand for their payment had been made upon him as guardian. He alleged that the estate was amply sufficient to pay the claims, and he prayed that these claims be allowed him as contingent claims, under section 3343 of the Code of 1897, "and that there be returned to him such amounts as shall be paid by him in the settlement and satisfaction of the claims filed against the estate of the deceased." In other words, the guardian of the husband asked the court to determine whether the husband or the wife's estate was primarily liable *Page 1227
for the expenses of her last sickness and of her burial. Later the husband died and his administrator was substituted. In a well-considered opinion, written by Justice Ladd and concurred in by Justices Weaver, Sherwin, and Evans, the court construed section 3347, Code of 1897 (section 11969, Code of 1939), and held that the liability of the wife's estate to pay these expenses was primary, and that the claims should have been established as contingent claims against the estate. The court said:
"Both husband and wife are dead, the latter first having departed this life, and the sole question presented on this appeal is whether, assuming the estate left by each to be ample to satisfy all claims for the expenses of last sickness and funeral of the wife, the husband in his lifetime, or the administrator of his estate, may have established in his favor the amount of such expenses as a contingent claim against the estate of the wife. * * * But for section 3347 of the Code, then, the obligations of the husband were such that upon payment of the expenses of the last sickness and funeral of his wife unless as administrator of her estate, claim therefor might not be established against her estate. * * * Thereby preference is given over all ordinary debts, taxes, and the like, and, regardless ofthe relative obligations of the living or that of the husband atthe common law, the duty of meeting these expenses is especially imposed upon the executor of every deceased person. * * * The statute quoted makes it obligatory on executors and administrators of estates having sufficient means to meet both the charges of the last sickness and of the funeral of a deceased person. Neither necessarily depends on the contract of deceased or others but may rest on this statute. While the expenses of last sickness differ from those of funeral in that they are rendered during the life of the person on whose estate they are made a charge, the necessity for their rendition is similar to the latter * * *. Cunningham v. Lakin, 97 Pac. (Wash.) 448. The legislative design in enacting the statute quoted was to assure to every person care in his last sickness and appropriate burial by declaring the charges therefor, preferred claims and exacting their payment as soon as funds enough to satisfy them, come into the possession of his personal *Page 1228
representative. It is mandatory in form. It contains no discrimination as between creditors to whom such charges may be owing and the duty to pay is declared independently of any obligation which may exist on the part of others. Its language obviates the inference otherwise to be drawn that it was intended merely to declare a preference as between claims against the estate. As seen, it may be deemed the basis for the allowance of such expenses, and we are of the opinion that the legislative intent was to impose on the estate of every deceased person a primary liability for the charges of the last sickness and funeral. If so, the obligation of either husband or wife therefor is secondary thereto in character, and, in event of payment by either, such charges may be established as claims against the estate of the deceased. This construction is not only reasonable, but is well calculated, in a case like this, where both husband and wife are dead, and each has left an ample estate, to protect the property of the one against the unseemly efforts of the heirs or devisees of the other to evade the satisfaction of the reasonable charges of the last sickness and funeral from the estate of the decedent under whom they take. The claims should have been established as contingent claims against the estate."
In a dissenting opinion by Justice McClain, joined in by Justice Deemer, fears were expressed that the majority opinion would introduce a new rule in actions by the husband for injuries causing the death of the wife. The basis for any such fears was removed by chapter 163 of the Laws of the Thirty-fourth General Assembly (section 3477-a, 1913 Code Supplement) re-enacted and appearing in section 3477-a, 1915 Supplement to the 1913 Code Supplement, since re-enacted and appearing as section 10991.1 (amended by chapter 297, Acts of the Forty-ninth General Assembly) of the Code of 1939.
Under these sections any woman, single or married, and regardless of whether the latter had an occupation separate and independent of that of housewife for her husband, injured by the negligence or wrongful act of another, could and can recover for loss of time, medical attendance, and other expenses incurred as a result thereof, in addition to any elements of damages recoverable by common law. If she dies from the injury, *Page 1229
her administrator may sue for like recovery. Her husband may not recover for these elements of damage.
In Ege v. Born, 212 Iowa 1138, 1148, 236 N.W. 75, we expressly reaffirmed the holding in the Skillman case that the estate of a married woman was primarily liable for her funeral expenses. And in Harter v. Harter, 181 Iowa 1181, 1184, 165 N.W. 315, the administrator of the wife's estate had not credited the husband with money which he had paid for the expenses of his wife's last sickness and burial. We held that he was entitled to such credit.
In Smith v. Eichner, 124 Wash. 575, 577, 215 P. 27, 28, the husband brought action against the executor of his wife's estate to recover money expended by him for "medical treatment, hospital services and nurse hire during her last sickness." Judgment dismissing his claim was reversed. The court said:
"While it was the appellant's duty to furnish the services to his wife during her lifetime, yet inasmuch as we have held the estate to be primarily liable, he is entitled to reimbursement. If appellant had not paid these expenses, the estate would have been liable for them. By paying them and taking an assignment of them as claims against the estate, the appellant did not make them his primary debt, nor relieve the estate of its obligations to pay them." Citing Cunningham v. Lakin, 50 Wash. 394, 97 P. 447, and Butterworth v. Bredemeyer, 74 Wash. 524, 133 P. 1061.
There is a like holding in Parsons v. Tracy, 127 Wash. 218, 220 P. 813, 814 (expenses of last sickness), and in Smith v. Saul,128 Wash. 51, 221 P. 977 (funeral expenses). See, also, Glenn v. Gerald, 64 S.C. 236, 42 S.E. 155, and In re Johnson's Estate,198 S.C. 526, 18 S.E.2d 450.
The appellant cites Schneider v. Breier's Estate, 129 Wis. 446, 109 N.W. 99, 6 L.R.A., N.S., 917 (funeral expenses); McClellan v. Filson, 44 Ohio St. 184, 5 N.E. 861, 58 Am. Rep. 814; and Petition of Johnson for an Opinion of the Court, 15 R.I. 438,8 A. 248 (funeral expenses); but these do not aid him, as the later decisions of those courts, to wit, Estate of Phalen,197 Wis. 336, 222 N.W. 218-220; Pfeiffer v. Sheffield, 64 Ohio App. 1,27 N.E.2d 494; and Moulton v. Smith, 16 R.I. 126, 12 A. 891, *Page 1230
27 Am. St. Rep. 728, all cited herein, hold that the husband cannot be reimbursed out of the wife's estate for expenses of her last sickness paid by him.
We have no inclination to depart from the decision of the court in Skillman v. Wilson, supra, and the later decisions reaffirming it. It was announced over thirty-four years ago and the many legislatures that have met in the intervening years have not seen fit by legislation to disagree with the court's construction of section 3347, Code of 1897 (section 11969, Code of 1939).
The contention of the appellee that an allowance of appellant's claim would be against public policy is without merit. We look to the constitution, statutes, and ordinances for our written public policies, and our unwritten public policies rest largely in judicial judgment and public opinion. It has been stated that public policy:
"In substance * * * may be generally said to be the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like." Kintz v. Harriger,99 Ohio St. 240, 246, 124 N.E. 168, 169, 12 A.L.R. 1240.
If the appellant establishes his claim, its allowance will be in keeping with public policy, and certainly there can be no inequity in using the funds of the estate to reimburse a husband who used $3,272.16 of his money to attempt to restore his wife to health, instead of giving that amount to collateral heirs.
The trial court's order of dismissal is therefore reversed and the cause is remanded to the district court for further proceedings in conformity with our decision herein. — Reversed and remanded.
All JUSTICES concur. *Page 1231 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436297/ | This is an action to recover damages alleged by appellee to have resulted to his left foot from coming in contact with some hot cinders and ashes on the premises of appellant located southwest of Valley Junction near the city of Des Moines and occupied as a cement plant, to which appellee had gone on the early morning of July 25, 1929, for the purpose of looking after and preparing some junk which he had previously purchased of appellant for removal and shipment in freight cars. The last is the third trial of this case in the district court. In the first trial, the jury failed to agree, but in each of the subsequent trials a verdict was returned in appellee's favor. A *Page 1003
motion for a new trial and a motion for judgment notwithstanding the verdict, based upon the alleged insufficiency of the allegations of the petition to state a cause of action, were sustained by the court. Upon appeal, the ruling on the motion for a new trial was sustained, but the ruling on the motion for judgment notwithstanding the verdict was reversed. See same title, 237 N.W., 443.
The principal proposition relied upon for reversal on this appeal is the alleged insufficiency of the evidence to sustain the verdict. A somewhat extended description of the premises and narrative of the facts is essential to a clear understanding of the situation and to a proper decision of the questions urged. The evidence as to the following matters, among others not so important, is without dispute.
The main building of the cement plant extends east and west for probably 300 or 400 feet, and is reached from the north over a public highway. There are extensive railway tracks on both the east and west sides of the plant. The place where the injuries complained of are alleged to have occurred is reached by way of a road constructed and maintained by appellant out of cinders and dry slurry, a semi-burned cement product. The road thus constructed and maintained extends along the east and west ends of the main building. The premises in the rear of this building are reached by means of this road, thus constructed and maintained. Appellee entered the premises over the road cast of the building. At the southeast corner of the main building this road turns slightly to the southwest and then to the south to a point 300 or 400 feet from the building, where a portion of the junk was piled. Installed in one of the buildings is a rotary kiln 240 feet in length by 11 feet in width. The coal used for firing the kiln is known as powder coal and is ground very fine. Before grinding the coal, it is thoroughly dried. This is done in a drier which is located south of the road where it turns to the southwest after passing the southeast corner of the main building. The work of drying the coal is carried on by two shifts of twelve hours each, commencing at 6 A.M. and 6 P.M. respectively. The ashes and cinders that accumulate in the drier room from this process are removed by the use of wheelbarrows and placed in a pile forty or fifty feet from the building and south of the roadway above described. Several *Page 1004
wheelbarrow loads are removed by the party in charge during each twelve hours. At intervals, the yard foreman removes the pile of ashes and cinders from the place where they have been dumped from the wheelbarrows to some other part of the premises. The pile of ashes and cinders on the day in question was somewhat larger than is customarily permitted to accumulate. Some of the junk purchased by appellant was still in place and was too large to permit removal without being cut. The cutting of these large pieces of iron was being done by the use of an acetylene torch. An employee of appellant's was secured by appellee to do this work while off duty. This was done early in the morning and late in the evening.
Appellee arrived on the premises on the morning in question between 5 and 6 o'clock. Shortly before 7 o'clock, Gruber, who was cutting the iron for appellee, inquired as to the time. It was his duty to punch a time card at 7 o'clock. Appellee started up the road above described from a point 300 or 400 feet south of the main building to the office to find out what time it was. It is at this point that a sharp conflict appears in the testimony as to every material fact directly connected with and pertaining to the place at which the alleged injuries were received. Appellee testified that while he was in the act of walking up the road toward the main building at a point 125 or 150 feet south thereof, he stepped with his left foot into some hot ashes on the left side of the roadway and was severely burned; that he took off his shoe, called for help, and was assisted by two men employees of appellant's to the office. All of the witnesses called in behalf of appellant who testified on this point stated that appellee did not step into hot ashes in the road at all, but that when he reached the point where the ashes were piled, he attempted to walk across the pile, and that, while in this attempt, he stepped into some hot ashes or cinders, and his foot was burned. Two employees of appellant's who were in a position to observe his approach along the roadway testified that they saw him go upon the pile of ashes and quickly remove himself therefrom; that he took off his shoe and walked unaided and by himself to the office. The testimony that he walked without assistance is corroborated to some extent by another employee who was in the office, and who testified that appellee was alone when he entered. Appellee clung tenaciously to his version of *Page 1005
the facts, and at all times insisted that the ashes and cinders into which he stepped were in the roadway and that he was without previous notice or knowledge thereof. The foreman of each of the shifts testified that they removed ashes from the room in wheelbarrows and dumped them in the pile already referred to. They denied that they placed any ashes in the roadway at any time during the preceding twenty-four hours, or prior thereto. The yard foreman whose duty it was to remove the ashes from the premises testified that he had placed no ashes in the roadway for at least two weeks. Other witnesses testified that they saw no hot ashes in the roadway and knew of none that had been placed there. The premises are unfenced, but whether in charge of night watchmen does not appear.
There is also conflict in the testimony as to the extent of appellee's injuries. This question was clearly for the jury, and need not be given consideration herein.
Inadequacy of the testimony to make out a case in favor of appellee is urged upon the grounds that appellee failed to prove that appellant or any of its employees placed hot ashes in the roadway where appellee claims to have received the injuries, or that appellant or any of its employees knew or had notice of the existence of hot ashes in the roadway, or that such hot ashes had been in the roadway for such length of time as to charge appellant with notice thereof; that the uncontradicted evidence was that no ashes had been put upon the roadway within two weeks prior to the day of the accident. Appellee was an invitee upon the premises of appellant, whose duty it was to maintain its premises in a reasonably safe condition for his use in carrying out the purposes for which he went upon the premises. He had purchased a large quantity of iron and scraps of steel, amounting to 225 or 250 tons, of appellant, and by the terms of the purchase was required to remove the junk from the premises. He was there on the occasion in question for that purpose. All of the agents and servants of appellant who testified in this case knew that appellee would have to use the roadway which circled around the junk pile in going to and from the junk pile. Perhaps it should be stated that he arrived upon the premises and at the junk pile in a truck. It is true that no testimony was introduced by appellee tending directly to prove that appellant caused hot ashes to be placed in the roadway. *Page 1006
As stated, the evidence shows without dispute that large quantities of hot ashes and cinders were removed from the drier both day and night and dumped in a pile adjacent to the roadway, but some distance from the point where appellee claims he was injured. In fact, the road passed entirely around the pile of ashes. There were no other hot ashes in the immediate vicinity. If the jury believed the testimony of appellee that he was injured in the roadway substantially at the place as claimed by him, the inference would logically follow that they came from the premises of appellant.
Direct proof, in the light of the surrounding facts and circumstances, was not necessary. The decisive fact question in this case is: Where did appellee step his left foot into hot ashes with the result described? The evidence was in direct conflict on this point. It cannot well be said that appellee is mistaken in his testimony as to where the injuries were received. His claim that he was aided by two employees of appellant to reach the main building is contradicted. He could not have been merely mistaken as to how, whether by himself or by the assistance of others, he reached the office. The jury had a right in this condition of the record to believe the testimony of appellee. The determination of the credibility of the witnesses is peculiarly within the province of the jury. At least one witness testified that smoke was proceeding from the pile of ashes near the building. The testimony at this point is subject to the possible infirmity that one in broad daylight would hardly consciously and deliberately walk into a pile of smoking ashes and cinders. At least the jury had a right to weigh the testimony with this thought in mind.
Unless this court can say upon the record before us that the matters testified to by appellee are so completely negatived by the testimony introduced on behalf of appellant as to totally destroy its credibility, a question of law did not arise. The infirmity in appellee's testimony arises because of the strong contradictory showing made by appellant. If appellee was injured at the point in the roadway claimed by him, some servant or agent of appellant's must have placed the hot ashes therein. At least such inference was justified from all of the facts and circumstances detailed in the evidence. This court cannot, therefore, say that the verdict of the jury is without support in the *Page 1007
evidence. The absence of direct testimony as to the essentials of appellee's case is sufficiently supplied by the almost necessary inference from the testimony. No doubt important and material matters shown in the testimony have been omitted from the foregoing narrative. Nothing would, however, be gained by setting them out in greater detail. There is considerable discussion in appellant's argument of the res ipsa loquitur doctrine. In view of the conclusion reached, we need not discuss this subject.
It is the conclusion of the court that the judgment must be and it is affirmed. — Affirmed.
WAGNER, C.J., and FAVILLE, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436299/ | Smith Brothers Manufacturing Company is a corporation organized under the laws of the state of Missouri, having its principal place of business at St. Joseph, engaged, among other things, in the sale of merchandise.
There was being operated at Harlan, Iowa, a clothing store, under the trade-name of P.J. Carmichael Co. This store was operated by Paul J. Carmichael and his wife, Lucille. It appears that some difficulty arose between these two parties, the exact nature of which is not set out in the record, and Lucille Carmichael secured a divorce from her husband and by arrangement turned over to him the store. On or about October 1, 1931, Paul Carmichael sold for a consideration of $5,000 the stock and fixtures to his aunt, Anna Carmichael, who was at that time a school teacher. The conveyance was made by bill of sale, but there was no assumption clause contained therein. Anna Carmichael placed a manager in charge of the store, and continued to work at her chosen profession.
This suit was commenced to recover for goods and merchandise, as set out in a statement of account, sold to Paul J. Carmichael while he was owner and operator of the store known as P.J. Carmichael Co.; Smith Bros. alleging in their petition *Page 303
that Anna Carmichael had agreed with them in writing to pay the account in consideration of the extension of time of payment, and the sale and delivery of additional merchandise to her. The answer which the defendant filed was simply a general denial. A jury was waived, and the case was submitted to the court, who returned a verdict in favor of the plaintiff in the amount of $342.18, plus costs.
Anna Carmichael, being dissatisfied with the judgment and decree of the lower court, has appealed to this court.
It was stipulated and agreed between the parties that the goods referred to in the itemized statement were sold by Smith Bros. and delivered to the store at Harlan, Iowa, operated under the name of P.J. Carmichael Co., on the dates set out in said statement. There is, therefore, no dispute in regard to the amount of the claim or the merchandise furnished. It is conceded that Paul Carmichael (sometimes referred to as P.J. Carmichael) was the nephew of Anna Carmichael; that he and his former wife owned and operated the store for some time; that in October of 1931 Paul Carmichael sold the store to his aunt, Anna Carmichael, for the sum of $5,000; that a bill of sale was executed and delivered by the nephew to the aunt, but that said bill of sale did not contain an assumption clause. It is conceded that after Anna Carmichael had purchased the store she placed in charge thereof as her manager a man by the name of Frank Monaghen.
The sole question which is in dispute here is whether or not Anna Carmichael agreed in writing, for a consideration, to pay this debt of approximately $300 which had been contracted prior to the time that she purchased the store. To ascertain this we must turn to the record.
On January 1, 1932, the appellee company wrote to the appellant a letter in which they said that their representative, Mr. Amos Young, had forwarded to them an order given by Mr. Monaghen, dated December 31st, covering items of merchandise for the store at Harlan. There was also inclosed with the order a check in the amount of $75 to apply upon the old indebtedness contracted by Paul Carmichael while he owned and operated the store, and the letter contained the following statement:
"Mr. Young writes that according to your present plans it would be possible to forward $35 to $50 weekly until the balance of your overdue account is taken care of. *Page 304
"We have no reason for doubting Mr. Monaghen's statement but as we are now somewhat involved in the account, before going further, would like to have a letter, confirming these intentions, from you.
"We regret very much that anything of this kind should occur, and wish to assure you that it is our desire to work with you in every possible way to handle the matter. To do so, however, it would be necessary to make some arrangements regarding the overdue balance still on our books. But if we may have your assurance that the account will be taken care of along the lines suggested in Mr. Young's letter, we would be glad to give it prompt consideration.
"The order forwarded by Mr. Young is being held until we hear from you."
On January 2, 1932, Anna Carmichael, in her own handwriting, answered the letter of Smith Bros. dated January 1st, in which she acknowledged receipt of their letter, complained a little about business, told them that she had instructed Mr. Monaghen to buy very little, but that it was necessary that he have the merchandise which had been ordered from them on account of the necessity to have certain sizes, and then said, "I thank you for your consideration, and I wish to say that I have always paid my debts, and altho I haven't contracted these, I am standing responsible for them. I shall be much concerned until they are out of the way."
After receiving this letter, Smith Bros. forwarded to the appellant, at Harlan, the merchandise which had been ordered and referred to in their letter of January 1st.
Thus we find that the appellee in this case, after receiving the order for additional merchandise, wrote a letter to the appellant, telling her that they would have to hold the merchandise until they had received from her confirmation of the arrangement that her manager had made with the representative of the appellee company in regard to the balance due on the P.J. Carmichael account. In response to that inquiry, Anna Carmichael wrote a letter, in which she said, "I am standing responsible for them." In other words, she promised in writing that she would pay this debt. But the appellant says there was no consideration for making the promise. There was the consideration of the extension of the time of payment, by Smith Brothers, *Page 305
and the additional consideration of furnishing merchandise to her store. They did extend the time of payment, and they did furnish additional merchandise.
Thereafter, in accordance with the agreement which was entered into, there were checks forwarded by the manager of appellant's store to the appellee company, at various times. Some of these checks were returned because of insufficient funds, but some amount of money was paid. However, the agreement of paying the weekly amount of $35 to $50 was not kept, and on February 9, 1932, Smith Brothers wrote Anna Carmichael another letter, in which they said that under date of January 2d she had agreed to pay $35 to $50 per week, and that these payments had not been made as per the agreement; that they desired some more definite understanding, and, unless they received a remittance to apply on the account by February 18th, it would be necessary for them to place the account in the hands of their adjuster for collection. On February 12, 1932, Anna Carmichael answered and acknowledged receipt of this letter, complained that business was not good, said that they were going to put on a sale, and inclosed a check for $35, ending her letter by saying, "I do appreciate the fact that you have been most considerate and I assure you that you will lose nothing." Five days after receiving this letter Smith Brothers received a letter from a lawyer at Harlan, in which he said that Anna Carmichael had made an assignment and transfer of the stock of merchandise to a trustee for the purpose of disposing of the stock to pay her creditors, including the appellee company, asking that they consent to the assignment. Smith Brothers immediately wrote Anna Carmichael, refusing to consent, and called her attention to the various letters which she had written to them and in which she had agreed to see that the account was paid, asking that same be taken care of, or they would be forced to commence suit against her to collect same. Anna Carmichael replied to this letter on February 18th stating that the trustee would realize from the sale of the stock more than sufficient to pay the wholesale bills, including theirs.
This case was brought as a law action. A jury was waived and the case submitted to the court.
The finding of the trial court, has the same force and effect as the finding of a jury. In the case of City of Cherokee v. Ætna *Page 306
Life Insurance Co., 215 Iowa 1000, on page 1003, 247 N.W. 495,497, this court, said:
"The jury having been waived in this case, the court was in the same position that a jury would have been in. * * *
"This court has repeatedly held that, where the cause is tried to the court without a jury, the findings of the trial court on questions of fact are as conclusive and binding upon the Supreme Court as the verdict of a jury, and such findings will not be reviewed or disturbed by the Supreme Court where there is any evidence to substantiate them."
So in the case at bar we find that Anna Carmichael received the letter of Smith Brothers of January 1st in which they said that the manager of her store had given an order for some merchandise, but that before they could ship the merchandise they must have some understanding with her in regard to the past-due account; that their salesman informed them that the account would be paid at the rate of $35 to $50 per week, and they desired to have this confirmed. The very day she received the letter, the day after they had written to her, Anna Carmichael wrote the appellee company telling them that she was responsible for the account; that the arrangement to pay the weekly amounts would be carried out; and that, while she did not want any great amount of merchandise purchased, it was necessary to fill in with odd sizes so that they would not lose business. Clearly, this was an agreement to pay this debt. There was consideration because there was an agreement to extend time, and, in addition to that, there was an agreement to furnish additional merchandise. Smith Brothers did furnish the additional merchandise. They did extend the time for payment.
Thus we find that there was evidence to substantiate the judgment of the lower court, who sat in the place of a jury, and therefore the judgment and decree of the lower court must be, and it is hereby, affirmed.
Chief Justice and all Justices concur. *Page 307 | 01-03-2023 | 07-05-2016 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.