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PATTERSON, District Judge. The libelant sued to recover $14,364.97 under a marine protection and indemnity insurance cover. The facts are stipulated. The libelant owned the steamship Mexico. The Mexico had a collision with the Hamilton in which both were damaged. The collision was caused by error in navigation on the part of each vessel. The Mexico had to turn back for safety, thus incurring expenses of a general average nature. As a result of the collision, the Mexico was damaged to the extent of $102,289.72, its cargo to the extent of $2,432.84, a total of $104,722.56. The Hamilton suffered damage in the sum of $16,173.-94. Suit having been, brought by the owner of each vessel against the other, a settlement was made by the owner of the Hamilton, paying to the libelant, as owner of the Mexico and as bailee of her cargo, the sum of $44,-274.31, which represented one-half the difference in the damages. The bills of lading under which the Mexico carried her cargo contained the usual Jason clause, permitting general average where the danger or disaster was due to errors in navigation. In accordance with this provision, expenses advanced by the Mexico were apportioned to cargo to the amount of $28,659.12. The libelant then treated the payment of $44,274.31 made by the Hamilton as including $28,729.94 for the Mexico’s cargo, this figure being made up of cargo’s contribution in general average in the sum of $28,659.12 and direct damage to cargo in the sum of $70.82. The theory of the adjustment was that the Mexico’s cargo had had a direct claim against the Hamilton (asserted by the libelant as bailee of cargo) for this $28,729.94, and that one-half of this amount, $14,364.97, had been allowed to the Hamilton against the Mexico as part of the former’s damage. The Mexico was insured under a hull policy containing the standard running down clause framed on the theory of cross-liabilities, being in the same form as the clause later referred to under the club insurance, except that the hull policy covered four-fourths of the collision liability instead of three-fourths. The hull underwriters refused to pay the sum of $14,364.97, apparently on the ground that this sum was a liability “in respect of the cargo,” and therefore excepted from the insurance on collision liability. The club insurance, upon which this suit to recover $14,364.97 is based, has two clauses that are pertinent. Under clause 2, the in*348surance is against loss arising from liability for damage on collision with another vessel, to the extent that such liability would not be covered by hull policies with the standard running down clause, and subject to a deduction of $50.1 Under clause 5, the insurance is against loss arising from liability for damage to or in connection with cargo. The libelant claims that the $14,364.97 was a loss under either of these clauses or under both. The respondent contends that the loss falls under neither; further, that in any event its liability is for no more than $1,216.42, which is one-half of the direct damage to the Mexico’s cargo from the collision. 1. Taking up clause 5 first, I am of opinion that the libelant cannot get any advantage from it. That clause gives indemnity against loss from liability in connection with cargo. In collisions where the vessels are equally at fault and both suffer injury, damages are divided, but there are no cross-liabilities between the vessels. There is only a single liability on the part of the ship whose loss is minor to pay one-half the difference to the ship whose loss is major. The North Star, 106 U. S. 17, 1 S. Ct. 41, 27 L. Ed. 91. The libelant, whose loss was greater, was therefore under no liability to the owner of the Hamilton and cannot recover under this clause. London Steamship Owners Insurance Co. v. Grampian Steamship Co., 24 Q. B. Div. 663. 2. The ease is otherwise as to clause 2. The libelant was there insured against loss from liability in collision, in so far as such liability would not be covered by a running down clause containing (a) a provision for settlement on the principle of cross-liabilities, and (b) a proviso excluding any liability in respect of cargo on the insured vessel. I think the fair construction is that this clause, like the running down clause incorporated into it, contemplates a settlement on the principle of cross-liabilities. I am also of opinion that the liability of the Mexico to the Hamilton to pay one-half the sum which- the latter was obligated for to the Mexico’s cargo was a liability “in respect of” cargo, and that it was consequently excluded from the hull insurance by the proviso in the running down clause. It follows that this loss was covered by clause 2 of the club insurance. 3. It remains to consider whether the respondent is liable for $14,364.97, or only for $1,216.42. In The Toluma (D. C.) 4 F. Supp. 344, I held that the owners of caigo in a case of this type have no direct claim against the nonearrying vessel to recover the contributions in general average which they paid by operation of the Jason clause. They may of course hold the noncarrier for actual damages suffered by cargo as a result of the collision. The application of these views to the present ease is that the Hamilton was liable to the Mexico’s cargo for $2,432.84, and that the libelant’s one-half thereof, as between the Mexico and the Hamilton, is the sum of $1,216.42. The libelant is entitled to recover $1,216.-42, with interest and costs. This clause of the club insurance reads as follows : “(2) Liability for loss or damage arising from collision with another vessel or craft to the extent only that such liability is not or would not be covered by hull policies under a clause in words or substance as follows: “ ‘And it is further agreed, that if the Ship hereby insured shall come into collision with any other Ship or Vessel, and the Assured shall in consequence thereof become liable to pay, and shall pay by way of damages to any other person or persons any sum or sums not exceeding in respect of any one such collision the value of the Ship hereby Insured, we, the Assurers, will pay the Assured such proportion of three-fourths of such sum or sums so paid as our subscriptions hereto bear to the value of the Ship hereby insured. And in cases where the liability of the Ship has been contested with the consent in writing of a majority of the Underwriters on the hull and/or machinery (in amount) we will also pay a like proportion of three-fourths of the costs thereby incurred or paid; but when both Vessels are to blame, then, unless the liability of the Owners of one or b'oth of such Vessels becomes limited by law, claims under the Collision Clause shall be settled on the principle of Cross-Liabilities as if the Owners of each Vessel had been compelled to pay to the Owners of the other of such Vessels such one-half or other proportion of the latter’s damages as may have been properly allowed in ascertaining the balance or sum payable by or to the Assured in consequence of such collision; and it is further agreed that the principles involved in this clause shall apply to the case where both Vessels are the property, in part or in whole, of the same Owners, all questions of responsibility and amount of liability as between the two ships being left to the decision of a single Arbitrator, if the parties can agree upon a single Arbitrator, or failing such agreement, to the decision of Arbitrators, one to be appointed by the Managing Owners of both vessels, and one to be appointed by the majority (in amount) of Underwriters interested in each Vessel; the two Arbitrators chosen to choose a third Arbitrator before entering upon- the reference, and the decision of such single, or of any two of such three Arbitrators, appointed as above to be final and binding. Provided always that this clause shall in no case extend to any sum which the Assured may become liable to pay, or shall pay for removal of obstructions under statutory powers, for injury to harbours, wharves, piers, stages, and similar structures, consequent on such collision, or in respect of the cargo or engagements of the Insured Vessel, or for loss of life, or personal injury.' “(a) Bach claim hereunder shall be subject to a deduction of $50."

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218917/

ATWELL, District Judge. On February 7,1933, there was filed with the clerk of this court a certificate from the referee in bankruptcy for the Dallas Division, evidencing a desire by W. J. Rutledge, receiver, to review an order made by that official. The cause was set down by this court for argument Saturday, February 18th. A study of the case discloses that on February 26, 1930, Buck W. Brown brought a suit in the state district court against the Investment Securities Company, and the trustee, First National Bank in Dallas, on a series A bond theretofore issued by the Securities Company, and dated July 13, 1925. Petitioner alleged that he held a bond in the sum of $100, and that there was due on such bond the sum of $3.50, interest. That the trustee held $25,000 in cash, and notes in the sum of $900,000 against the $996^500, in bonds of said issue. That the company was insolvent and unable to pay its creditors. That his rights and interest were identical with the other holders of such bonds. That,, “Your petitioner further avers that by reason of the many complex problems presented in the affairs of said corporation, and of the many conflicting interests between bondholders, other creditors, preferred stockholders,, and common stockholders of said company, and by reason of the fact that the said defendant company is wholly unable to continue to function as a corporation acting under the management of directors of its own choosing, a necessity is presented for the intervention of a court of equity and for the appointment of w receiver of said defendant company to the end that all of its properties. and the rights of all persons interested may properly be conserved and protected.” There were four divisions of a general prayer for the winding up of the affairs of the company, and a fifth division, which related to series A bonds. On April 15, 1930, entered as of April 11, the court denied the appointment of a general receiver, but granted the application for the appointment of a receiver for the funds, notes, and properties held by the trustee bank as security for series A bonds. In that judgment it was also held that the exclusive power and right of the bank trustee to enforce the security for the protection of *355the bonds was ineffective and void. Between the date of the filing of the suit and the entry of this judgment there were four interveners whose claims aggregated something less than $15,000. From this judgment the trustee bank appealed. The Court of Civil Appeals for the Fifth District of Texas [34 S.W.(2d) 412] affirmed the order, and the Supreme Court of Texas [53 S.W.(2d) 604] finally dismissed the writ of error application with the statement that it did not have jurisdiction. In the meantime, on April 16, 1930, the Investment Securities Company was adjudicated a voluntary bankrupt and L. L. Bristol appointed trustee. The trustee bank filed what it called an interpleader with the referee claiming that the state court receiver was pressing it for the property that it held as trustee, and threatening to cite its officers for contempt if it did not comply with the demand. That trustee Bristol, on the other hand, had also demanded of it the moneys and funds that it so held. It advised the court that by diligent operation of the trust it had increased the cash on hand to approximately $230,000, and that the notes and accounts had been so managed as to be conservatively worth enough to make the whole fund approximately a million dollars. It sought protection from the court in the form of a restraining order, alleging that it was willing and ready to turn over the fund to whomsoever it should legally go. The referee entered a prohibition against the state court receiver and ordered the bank to turn the funds over to the trustee in bankruptcy. This rough statement indicates the seriousness of the questions involved. After argument the court was of the opinion that it would do no harm, pending the continuing consideration of the record, to allow five days to the trustee in which time he might secure the authority of the referee, an application having been made in that direction, to see what settlements he could make with the litigants in the state court, and with the state court itself. An order was presented to the court a day or two after such announcement which the court was led to sign, and which was later set aside as not being the order that should have been signed. There never has been any doubt in the court’s mind as to the general principles of law that govern the situation. Brown, having entered the state court on a lien that was given more than four months before the bankruptcy, had a right to pursue that lien to foreclosure. Such suits brought upon liens younger than four months, or after the bankruptcy, are subordinate to the bankruptcy proceedings. The grave doubt that came into the court’s mind was whether, since claimants representing a million dollars of the bonds in issue had filed before the referee, and since some of such claimants were interveners in the state court suit, save approximately $1,500, and since the original suit was manifestly carried forward for the resultant fees, the national court should look through such proceedings and determine whether the action in the state court was in reality a bona fide attempt to foreclose. If the national court has the right to scrutinize a state court suit to discover whether it is an actual attempt to foroclose upon an elder lien, and to determine whether such suit is going forward, then such power of scrutiny might be so broadened and so critical as to discover that really, after all, a suit was not a foreclosure, but was for fees. It was at this point that this court found extreme difficulty. It is manifest, not only by the pleadings, but also by the extraordinary procedure in this particular case by the receiver, that fees are the main spring of the action. But even though this may be conceded, is it not true that just that thing may be done, and still the national court must not interfere? It would be highly inappropriate, it seems to me, to grade litigation by the number of dollars involved, provided jurisdictional amount is present. It would be extremely dangerous to classify litigation as a field of ethics, as deeply solicitous as may be both bench and bar for such high-minded practitioners as will conserve all of the channels of justice. It must be assumed that the state chancellor, the state judge, will be as quick for the conservation of a fund as is any other chancellor in any other jurisdiction. It must also be assumed that, though there has been no effort to try the state court suit, it merely awaits the fund. Likewise, we must grant that, though bondholders of the same series as the plaintiff have become claimants in bankruptcy, they may be required to come into the class suit. The matter must be ruled upon the broad basis that has been pleaded through the years for the saving of the courts of the two jurisdictions from unseemly conflict and clash. It is too late now to marshal eases that point this desirable end. Time and time *356again this court has written, perhaps unpardonably fully, of this necessity. A court which first gets jurisdiction, either by actual or potential possession of the res, even though it be merely for the foreclosure of a lien, will proceed, if it does so with appropriate speed, to the consummation. As pointed out by the Supreme Court in a very interesting ease, there may be some cases which, glimpsing the necessity for a constitutional bankruptcy efficacy, have overstepped, somewhat, this comity (Straton v. New, 283 U. S. 331, 51 S. Ct. 465, 75 L. Ed. 1060), still the rule is and must be firmly established and cannot be ignored. My opinion is that the referee entered his order to restrain and turn over improvidently, and that such action should be reversed, and an order will be drawn accordingly. On Application for Rehearing» O'n March 8, 1933, this court rendered a written memorandum deciding questions raised on a certificate to review certain rulings of the referee in the above cause. The expressions of opinion in that memorandum were subsequently concreted in an order reversing and disapproving the referee’s action. On March 20 attorneys appeared, together with the attorney for the trustee, representing hundreds of thousands of dollars in bond holdings of series A bonds, and asked permission to file a motion for a rehearing. Such permission was granted as a matter of course. The motion was thereupon filed, and notice was given to all parties who might be interested, and on March 23d, the application for a rehearing was argued at length. As I stated in the opinion of March 8, it is a case that is gravely important. When there is a case in a state court and a case in a national court directed at the same property, the utmost care should be taken to avoid an unseemly conflict. Comity, and that respect for those operating in different spheres, sober the actors into tender circumspection. Whisperings and threats of contempt proceedings are not the weapons of chivalry or carefulness. Judge Shelby, in speaking for the court in a delicate conflict, complimented attorneys who agreed among themselves that there should be no sort of proceedings taken by either until the courts had definitely and finally determined the questions. Hooks v. Aldridge (C. C. A.) 145 F. 865, 871. With this tenderness and solicitude in mind, which is commended to counsel in this cause, the court has scrutinized anew the paragraphs in its opinion of March 8 which are attacked, at least, inferentially, by those who are now pressing for a rehearing, and for an affirmance of the action of the referee. In that opinion I was convinced that plaintiff Brown in the state court suit must be given the benefit of his right to be considered as endeavoring to foreclose a lien which had its birth more than four months prior to bankruptcy. As stated in that opinion, this court has the legal right to scrutinize the state court proceedings to determine that very thing. My attention has now been called to the fact that the indenture under which Brown claims his right did not give him any lien whatever upon the property which he asked the state court to take into the possession of a receiver. The holders of series A bonds were given no immediate or direct lien. Such holder was given the right to sue and secure a personal judgment. From the pleadings in Brown’s suit the state court adjudicated an equitable lien. Not a lien that had theretofore existed but a lien that grew into fullness in the conscience of the chancellor after having heard the facts. It was and is an inchoate lien. In order to preserve and ripen and harvest this equitable lien which the state court found to exist upon the funds and property that were being held by the First National Bank as trustee under that indenture, the state court granted the receivership. In the pleadings out of which grew this equitable assertion there were many allegations of the insolvency of the Investment Securities Company, and the state court in his findings discovered and declared that that company was insolvent. Thereupon the state court under the authority of the provisions of article 2293, R. S. Tex. page 471, volume 7, Vernon’s Annotated Civil Statutes, appointed Mr. Rutledge as receiver. Within five days thereafter bankruptcy proceedings were filed in the national court. The trustee in the latter proceedings and the receiver in the first proceedings have demanded, as stated in my previous opinion, the million dollars in property and cash which is held by the First National Bank in Dallas, for the benefit of the holders of series A bonds. This inspection of the indenture under which Brown claims his right to foreclose in the state court, and the more critical examination of the allegations of his petition, and the order of the state court shows, unmistakably, that there is no lien upon which Brown may ask a foreclosure. A court may not create that which the parties themselves had re*357fused. There is no proceeding in the state court save a general equitable taking of a fund belonging to an insolvent debtor for distribution among the creditors of such insolvent. This is the business of the bankruptcy court, the creature of the national Constitution and paramount in that field. Straton v. New, 283 U. S. 331, 51 S. Ct. 465, 75 L. Ed. 1060. It is not a conflict of concurrent jurisdiction. Harkin v. Brundage, 276 U. S. 43, 48 S. Ct. 268, 72 L. Ed. 457. An effort of this sort ceases to be a proceeding for the foreclosure of a lien created outside of the time when the bankruptcy court must interfere. The disposition of the assets of an insolvent, even though charged with equities, must be and is confined to the court which is charged under the national law with just that function. This was made clear in the early case of Hooks v. Aldridge, 145 F. 865, C. C. A., Fifth circuit. This does away with the becoming hesitancy that arises when one undertakes to point the right road as between two courts exercising concurrent jurisdiction. The administration of insolvent estates is committed to the national court. What is being attempted in the state court is the duty of the national court. The parties also suggest another line of thought that is not quite so clear, but that doubtless has its virtue. It is that while a potential possession of the res as between courts of concurrent jurisdiction will be as effective as actual possession, that such care disappears with the disappearance of the concurrent feature. When two courts are moving in a field in which each has jurisdiction of the particular case that is before it, but when such cases differ in their complexions and prayers, even though the result of each might be to take the same property, that court which first gets the actual possession of the property involved will hold it, and the potential rule is inapplicable. A case of this sort will be found at page 641 of 232 F., Empire Trust Company v. Brooks, Fifth circuit. In that case the federal court directed its receiver in a foreclosure suit against a corporation to turn over the mortgaged property to the receiver of a state court. But the proceeding in the state court was for the dissolution of a corporation and the distribution of its assets under the same state statute that is here involved, but the court there had made no order appointing a receiver and had taken neither actual nor constructive possession, while in the federal court suit which was instituted later, the receiver had in fact taken possession of the property. The Circuit Court of Appeals reversed the court ordering the turnover. The distinction is nice and may explain the confusion that has arisen over the careless use of the words “constructive and potential.” Those two words are applicable when both courts are operating upon the same property, with the same desire, and to the same end, when neither'court is superior to the other. But when the distribution of insolvent estates is committed to a given tribunal in our acknowledged system of government, that court supersedes all others if and when it is set in operation within the times fixed by the statute. I would not like to add as a controlling feature, as persuasive as it may be to the thoughtful chancellor, that one’s ears should be wide open to hear the appeals of those who are deeply and directly interested, such as the bondholders are in this particular case. It is their property that is at stake, and they demand and desire that the funds shall be administered in the national court. At argument it was asserted that the state court receiver had gotten an order requiring all series A bondholders to intervene in that court on or before May 1, 1933, or to be forever barred from participating in the fund that it was hoped would be assembled there. It was stated that since that order interveners representing two or three hundred thousand dollars in bonds had filed interventions using blank forms so sent out by the receiver. The parties who are in that court must be seen as they were at the time of the institution of the bankruptcy proceeding. Pending a decision by the higher court upon this matter, I take the liberty of counselling the serious thought by all sides in the effort to allow that orderly procedure to be followed which is, and always shall be, a compliment to the bar and the crowning glory of our court system. An order may be prepared setting aside the order that was granted heretofore by this court overruling and reversing the action of the referee, affirming his order and restraining the receiver from interfering with the possession of the property involved, which is in the hands of the First National Bank in Dallas, which asserts no adverse claim. That institution will also be directed to turn over the property involved, to the trustee, if and when the trustee thinks it to be to the best interest of the bankruptcy estate to take the same. Such exceptions may be preserved in the order as the parties wish.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218918/

NORDBYE, District Judge. The plaintiff brings this action to recover judgment in the sum of $8,868, which sum represents a balance of freight charges claimed to be due under its tariffs for the transportation of numerous shipments of a product sold under the trade-name of “RyKrisp.” Defendant paid plaintiff the charges fixed by the tariff for the transportation of “cooked cereal food preparations,” and the amount claimed here is the difference between the tariff rate for the transportation of “bakery goods” and the tariff rate for the transportation of “cooked cereal food preparations.” Defendant filed a counterclaim to recover from plaintiff the sum of $24,636.27, alleged overcharges on shipments of RyKrisp made by it during the period from May 15, 1928, to October 14, 1930. The amount of the counterclaim represents the difference between the bakery goods rates collected by the plaintiff, and the cooked cereal food preparations rates which defendant contends were applicable. The tariff in effect during the period covered by the counterclaim reads the same as the tariff in effect during the period covered by plaintiff’s claim. There is no dispute between the parties as to the amounts" that are due the plaintiff and defendant depending upon which tariff classification is applicable. That is, if Ry-Krisp should be classified under the tariff as bakery goods, plaintiff should be given judgment for the amount sued for and the counterclaim should be dismissed. If Ry-Krisp should be classified as a cooked cereal food preparation under the tariff, then plaintiff’s complaint should be dismissed and defendant should have judgment on its counterclaim, unless the determination of the question herein by the Interstate Commerce Commission, hereinafter referred to, is determinative of the issues herein. The Ry-Krisp Company, a Minnesota corporation, was dissolved in 1928, and the Ralston Purina Company is a Missouri corporation, the successor to the property of the RyKrisp Company. Some of the shipments involved herein were made by the Ry-Krisp Company, and the balance by the Ralston Purina Company. By stipulation between the parties, it was agreed that the Ralston Purina Company may be substituted for the Ry-Krisp Company herein, and that the Ralston Purina Company should be liable for and agreed to pay any amount duo from the RyKrisp Company to this plaintiff, together with interest and taxable costs to the same extent as the Ry-Krisp Company would be liable for if it had remained as a party of record. On July 22, 1931, the court entered an order, based on the stipulation, substituting the Ralston Purina Company for the RyKrisp Company in this action. Therefore, in the determination of the issues, it becomes unnecessary to distinguish between the shipments made by the Ry-Krisp Company and *359those made by the Ralston Purina Company: Transactions of either company will be referred to herein as transactions of the defendant. During the entire period with which we are concerned, the classification description provided by said tariffs of commodities taking the bakery goods rate is as follows: “Bakery Goods: Biseuits, Bread, Cakes, Crackers, Matzos, Pretzels or Toast, N.O.I. B.N.” And the classification description provided by said tariffs of commodities taking the cooked cereal food preparations rates is as follows: “Food Preparations: Cereal, Cooked (prepared cereals ready for human consumption without further cooking); * * * Flaked or shredded, N.O.I.B.N. Compressed in flat forms or compressed and then crumbled.” There are, therefore, only two questions before the court: (1) Is the decision of the Interstate Commerce Commission of May 8, 1930, determinative of the tariff classification of Ry-Krisp, and binding upon this court? (2) If this court has jurisdiction to determine the tariff classification, regardless of the decision of the Interstate Commerce Commission, should Ry-Krisp be classified as bakery goods or as cooked cereal food preparations, as these terms are used and defined in the tariff ? Ry-Krisp is made by taking the whole rye berry and compressing it into a flat form. Salt and water are added, and that mixture is again compressed into a flat form, from which rectangular pieces are cut approximately 3" by 2" and placed in an oven until the forms will remain intact. Then the product is subjected to a second baking or cooking process, principally for the purpose of sterilization. Defendant contends that its product is cooked as distinguished from baked, and seeks, therefore, to distinguish this product from bread, crackers, etc., which are unquestionably made by a baking process. It appears that RyKrisp is placed in ovens and dry heat applied, and that the only practical difference between the preparation of this product and baked goods is the temperature of the oven and the fact that Ry-Krisp, when placed in the oven, has a large content of water. The moisture emanating therefrom and the steam resulting may have some cooking effect on the product in the oven as distinguished from baking. The finished product is packed in packages similar to those used in the breakfast food trade, and the container in which the product is packed and sold by the defendant has printed thereon the following descriptive statements: “Delikatess Brod (Scandinavian Health Bread) “Ralston Ry-Krisp — The Whole Rye "Wafer.” “THE ALL PURPOSE WHOLE RYE WAFER “For Breakfast * * * Serve as toast. For Lunch as crackers with soups and salads. * * * For Dinner * * * with every course. * * * Delightful and Nutritious between Meals and at Bedtime.” Defendant contends that the inherent characteristics of its product unmistakably mark it as a flaked cereal compressed in flat form, and it therefore cannot be classified as bakery goods. It cites a definition of “bread” once promulgated by the Secretary of Agriculture for the guidance of officials of that Department in enforcing the Food and Drugs Act of 1906. This definition is substantially as follows: “Bread is made by baking a dough consisting of a leavened or unleavened and kneaded mixture of flour, water, edible fat, sugar, and other fermentable carbohydrate substances, salt and yeast.” “Biscuit,” according to the defendant, is a small loaf or cake of bread raised and shortened or made light with soda or baking powder. “Cake” is a sweetened composition of flour, eggs, butter, sugar, and other ingredients, leavened or unleavened, baked in a loaf or mass of any size or shape, usually sold in bakery shops fresh to avoid perishability. “Cracker” is a thin, brittle biscuit, such as an oyster cracker. “Matzos” is an unleavened bread eaten by the Jewish people during the Passover season, and is generally made from flour and water. “Pretzels” are made from flour and contain fat and leaveners. “Toast” is a sliced bread, dried and browned before or over a fire. Defendant cites these various definitions of the articles particularly referred to under the bakery goods classification in order to emphasize the difference between Ry-Krisp and the products enumerated therein. That is, defendant contends that bakery goods are made from flour and are baked, and contain a leavening agent and fats, while Ry-Krisp is made by the blending of the whole flaked rye berry with salt and water and subjected to oven heat, which, due to the water in the product, results in a moist heat, and that therefore Ry-Krisp is subjected to a moist heat as distinguished from a dry heat. The *360flaking of the rye berry is produced by rolling the grain, as distinguished from grinding the grain, and after flaking, the front portion of the berry is embodied in the center part of the grain, and either way it is turned, one can still make out the form of the rye berry. Now, then, it appears that on May 21, 1928, the Ralston Purina Company and the Ry-Krisp Company filed a complaint with the Interstate Commerce Commission against numerous carriers, including this plaintiff, alleging that the rates provided by the tariffs on Ry-Krisp were: (1) Unjust and unreasonable in violation of section 1 of the Interstate Commerce Act (49 USCA § 1); (2) unduly prejudicial and unjustly discriminatory in violation of section 3 of the Interstate Commerce Act (49 USCA § 3); and (3) that on shipments of Ry-Krisp made by complainants, the defendants assessed transportation charges provided by the tariffs for bakery goods, and “that the collection of said rates and charges upon Ry-Krisp in excess of the rates and charges applicable on cereal food preparations above described, has resulted in payment by complainants of unlawful charges in excess of the published tariff, and in violation of section 6 of the Interstate 'Commerce Act [49 USCA § 6].” In the prayer of the complaint, the complainaiLts requested an order from the commission requiring the defendants to pay, by way of reparation, such sum as the commission should determine that complainants are entitled to as an award of damages on all shipments moving after May 1, 1925, and throughout the pendency of the proceedings before the commission. Section 6 (7) of the Interstate Commerce Act, referred to above (49 USCA § 6 (7), provides among other things that no carrier shall “charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time. * * * ” The tariff classifications considered by the commission at the hearing on defendant’s complaint were the same as before this court, and the commission was asked among other things to decide the identical question that is now being submitted to the court. Testimony was given before the commission by the shipper and the carriers, and expert testimony was submitted by both sides with reference to the tariff classification applicable to a product such as Ry-Krisp. The matter was submitted on December 13, 192-9, and on May 8, 1930, the matter was determined by the commission. On page 434 of the commission’s report is found the following: “Although the reasonableness of the rates and ratings are assailed, complainants’ evidence is directed principally to the issue under Section 6. “The first question for determination is whether the rates and ratings on cooked cereal-food preparations flaked or shredded, or the rates and ratings on bakery goods, are applicable on complainants’ product. Ry-Krisp is made of flaked whole rye, mixed with water and salt only. The mixture is rolled or compressed into thin sheets from which disks 11 inches in diameter with a hole in the center, or rectangular forms about 3 by 4 inches are cut. To prevent the sheets from sticking to the cutting machine, the mixture is dusted with the so-called rye flour obtained when the rye is flaked. The forms are placed in what complainants term a preliminary dryer, but which defendants contend is an oven, and subjected to high temperature until the moisture added in the mixing operation is eliminated. While within the dryer or oven, usually about 15 minutes, the forms revolve, passing repeatedly through temperatures of 100 degrees to 500 degrees Fahrenheit. Following this process the forms are placed in a final drying chamber or kiln for a period ranging from 1 hour 10 minutes to 1 hour 40 minutes until their moisture content is reduced below that of the grain from which they are made. The temperature in the final dryer is not stated. The product, varying in thickness from an eighth to a quarter of an inch, is then ready for packing. Ry-Krisp in granular form, obtained by crumbling or grinding the product in the forms described, is recognized as a cereal food preparation, and the ratings thereon are not in issue. RyKrisp is packed for distribution in cartons, which are placed in boxes for shipment. Claims thereon for loss or damage are negligible. “Complainants contend, and introduced evidence designed to prove, that Ry-Krisp is not a bread, biscuit, cracker, or pretzel; that it bears no resemblance to matzos; and that it is not included in any of the classification descriptions of bakery goods. The food and drugs act of 1906 states that ‘Bread is made by baking a dough consisting of a leavened or unleavened and kneaded mixture of flour, water, edible fat, sugar and other fermentable carbohydrate substances, salt and yeast.’ *361Complainants point out that Ry-Krisp is not made from a kneaded dough; that it contains no flour, fat, sugar, other fermentable carbohydrate substances, or leavening agent, such as yeast or baking powder, and that fermentation or ‘proofing’ has no place in the manufacturing process. Since it is not leavened with yeast, it can not be imported as bread free of duty under the Tariff Act of 1922. Complainants state that it would be in violation of the food and drugs act to represent and sell Ry-Krisp as bread, and this would perhaps follow from the evidence just reviewed, but complainants’ further statement that it would likewise be unlawful under that statute to sell Ry-Krisp as a biscuit or cracker is unsupported by the record. “Ry-Krisp is described on its container as ‘the entire rye wafer.’ It is sold to the ultimate consumer by grocery stores and delicatessen stores, but not, as complainants point out, by bakeries. Bakery goods are of course sold at grocery and delicatessen stores, and the fact that local bakeries do not handle RyKrisp is hardly significant, since it is made only by complainants at Minneapolis. In the printed matter on the container it is suggested that Ry-Krisp be eaten buttered and warmed for breakfast, that it be tasted with jam or cheese, or broken into a bowl of milk, and that it be used for lunches and camping. These suggested uses indicate that Ry-Krisp is not essentially a cereal breakfast food. Defendants introduced in evidence advertising matter representing Ry-Krisp as health bread and describing it as a ‘whole-grain bread.’ The printed matter on the package describes it as ‘crisply cooked whole rye wafers.’ RyKrisp is listed on the menu cards of a large hotel, a chain of restaurants, and the dining-car service of one of the defendants under the heading of rolls, toast, and breads, and not under the heading provided for breakfast foods. In support of their contention that Ry-Krisp is baked, defendants stress the fact ‘that it is subjected to temperatures as high, and for as long a period, as are required for baking cookies and other thin bakery products. “Prior to 1926, when the Ralston Purina Company purchased the Ry-Krisp Company, the latter in its advertising described RyKrisp as an unleavened bread made of selected rye, cleaned, ground, aerated, and baked in a modern sanitary factory. The application made in 1905 for registration of the trade-mark described the product upon which the term was applied as crackers or biscuits. Defendants introduced in evidence samplesof various imported and domestic hard breads, and crackers which take the bakery-goods ratings and are comparable with Ry-Krisp from the standpoints of their principal ingredients, manufacturing processes, and general transportation characteristics. That the principal competition encountered by Ry-Krisp is with' articles of this nature, which are recognized commercially as bakery goods, rather than with cereal food preparations represented and used primarily as breakfast foods, is a reasonable conclusion from the evidence. “Ry-Krisp is represented and sold to the public as a rye wafer, or cracker. The uses and purposes which it has been advertised for more than a quarter of a century to serve, and which it does serve, indicate that it is properly to be considered bread or a substitute for bread. While Ry-Krisp is no longer referred to in the advertising as bread, the mere change of designation in the advertising did not change the inherent nature or character of the commodity itself. “When the Ralston Purina Company acquired control of the Ry-Krisp Company in June, 1926, the practice of billing Ry-Krisp' as bakery goods was discontinued, and it was thereafter billed for shipment as a cereal food preparation. As cereal food preparations compressed in flat forms are rated lower than bakery goods this change in billing resulted in lower charges being collected on the shipments. Th® propriety of this billing is disputed by defendants, and pending court action to collect alleged undercharges has been deferred awaiting our findings in this ease. “Complainants do not question the lawfulness of the bakery goods rates and ratings as such, but complain of them only as they are applied on Ry-Krisp. * * * “We find that the ratings and rates .on bakery goods were and.are applicable on RyKrisp from and to the points considered, and that the applicable ratings and rates, .on Ry-Krisp were and are not unreasonable or unduly prejudicial. The complaint will ,be dismissed.” On October 7, 1930, the entire commission entered an order denying the petition of complainants therein for reconsideration apd re-argument. The question as to whether the commission’s determination is binding upon this court is’ dependent uppn the nature oj; this controversy. If the construction of the classification description provided by the tariff is a mere matter of law, then it is for the court and not for any administrative body to determine. .Construction, .of language *362used in a general and ordinary manner in a tariff provision is as amenable to the court’s interpretation as the terms of any contract or writing. No different rule prevails, and if the allocation of Ry-Krisp to the bakery goods or cereal food preparations classification is merely the construction of the words and phrases used in the general, ordinary, and usual manner, then the determination of the commission is not determinative or binding upon this court, though it may be persuasive. But if the tariff provisions contain words used in a peculiar and special meaning, and extrinsic evidence to determine this meaning is necessary, or if the manner in which the terms are used is itself a question of fact, a preliminary determination by the commission will be necessary before the court may assume jurisdiction. Apparently, the whole purpose is to obtain uniformity and to leave to the commission the questions of fact so that that body, composed of specialists, will be able to determine such questions, and provide thereby a ruling regarding tariff construction that will be consistent and uniform throughout the land. The case of Texas & Pacific Railway Co. v. American Tie & Timber Co., 234 U. S. 138, 34 S. Ct. 885, 58 L. Ed. 1255, involved an action by plaintiff against the railway company to recover damages which it contended it sustained on account of the railway company’s refusal to furnish cars for the loading of certain oak railway cross-ties. When the plaintiff proffered the ties for shipment, the railway company refused the shipment because it contended that it had no tariff on file naming rates for transportation of oak railway cross-ties, and that it therefore would be unlawful to accept the ties for shipment. Plaintiff contended that oak railway cross-ties were included in a tariff filed by the railway company naming rates on “lumber, all kinds (except walnut and cherry), lath and shingles and articles taking same rates,” and therefore the railway company should have furnished the cars. The question, therefore, was whether or not oak railway cross-ties were included in the tariff description of oak lumber. On page 146 of 234 U. S., 34 S. Ct. 885, 888, 58 L. Ed. 1255, the court stated: “It is not disputable that the pivotal question in' the ease was whether oak railway cross-ties were included in the filed tariff fixing a through lumber rate of 24 cents per hundredweight, and so far. as the solution of that inquiry depended upon the views of men engaged in the lumber and railroad business, as developed in the testimony, it is equally indisputable that there was-.an irreconcilable conflict. And this conflict at once leads to a consideration of the principle which dominates the controversy, and upon which its decision, therefore, depends. “There is no room for controversy that the law required a tariff, and therefore, if there was no tariff on cross-ties, the making and filing of such tariff conformably to the statute was essential. And it is equally clear that the controversy as to whether the lumber tariff included cross-ties was one primarily to be determined by the Commission in the exercise of its power concerning tariffs and the authority to regulate conferred upon it by the statute. Indeed, we think it is indisputable that that subject is directly controlled by the authorities which establish that, for the preservation of the uniformity which it was the purpose of the act to regulate commerce to secure, the courts may not, as an original question, exert authority over subjects which primarily come with the jurisdiction of the Commission.” The Supreme Court held that the lower court should have dismissed that action because the question involved must first be determined by the Interstate Commerce Commission, and therefore that the lower court had no jurisdiction. In G. N. Railway Co. v. Merchants’ Elevator Co., 259 U. S. 285, 42 S. Ct. 477, 478, 66 L. Ed. 943, decided in 1922, the elevator company brought an action against the railway company to recover an overcharge. Apparently, the only question involved was whether the railway company was authorized by the language of the tariff to collect a re-consignment charge on grain shipped by the elevator company. The court stated: “Whether the charge was payable depended solely upon a question of construction; that is, whether the body of the rule or the exception to it applied,” and that “there was no dispute concerning the facts.” While the court in the Merchants’ Elevator Company Case determined that the words of that tariff - were used in the ordinary sense, and all that was necessary was to apply the meaning of such words to the undisputed facts, and that therefore reference to the commission was unnecessary, it clearly annunciated the circumstances under which the construction of the tariff is exclusively for the commission, and when it is a matter for the courts to decide. On page 291 of 259 U. S., 42 S. Ct. 477, 479, 66 L. Ed. 943, the court stated: “But what construction shall be given to a railroad tariff presents ordinarily a question of lav which does not differ in character *363from those presented when the construction of any other document is in dispute. “When the words of a written instrument are used in their ordinary meaning, their construction presents a question solely of law. But words are used sometimes in a peculiar meaning. Then extrinsic evidence may be necessary to determine the meaning of words appearing in the document. This is true where technical words or phrases not commonly understood are employed, or extrinsic evidence may be necessary to establish a usage of trade or locality which attaches provisions not expressed in the language of the instrument. Where such a situation arises, and the peculiar meaning of words, or the existence of a usage, is proved by evidence, the function of construction is necessarily preceded by the determination of the matter of faet. Where the controversy over the writing arises in a case which is being tried before a jury, the decision of the question of faet is left to the jury, with instructions from the court as to how the document shall be construed, if the jury finds that the alleged peculiar meaning or usage is established. But where the document to be construed is a tariff of an interstate carrier, and before it can be construed it is necessary to determine upon evidence the peculiar meaning of words or the existence of incidents alleged to be attached by usage to the transaction, the preliminary determination must be made by the Commission; and not until this determination has been made, can a court take jurisdiction of the controversy. If this were not so, that uniformity which it is the purpose of the Commerce Act to secure could not be attained. For the effect to be given the tariff might depend, not upon construction of the language — a question of law — but upon whether or not a particular judge or jury had found, as a faet, that the words of the document were used in the peculiar sense attributed to them or that a particular usage existed. “It may happen that there is a dispute concerning the meaning of a tariff which does not involve, properly speaking, any question of construction. The dispute may be merely whether words in the tariff were used in their ordinary meaning, or in a peculiar meaning. This was the situation in the American Tie & Timber Co. Case, supra. The legal issue was whether the carrier did or did not have in effect a rate covering oak ties. The only matter really in issue was whether the word ‘lumber’ which was in the tariff, had been used in a peculiar sense. The trial judge charged the jury: ‘If you believe from the evidence that oak railway cross-ties are lumber within the meaning and usage of the lumber and railroad business, then you are charged the defendant had in effect a rate applying on the ties offered for shipment.’ This question was obviously not one of construction; and there is not to be found in the opinion of this court, or in the proceedings in either of the lower courts, a suggestion that the ease involved any disputed question of construction. The only real question in the ease was one of fact; and upon this question of faet ‘the views of men engaged in the lumber and railroad business, as developed in the testimony’ were in ‘irreconcilable conflict.’ 234 U. S. 146, 34 S. Ct. 885, 888, 58 L. Ed. 1255. As that question, unlike one of construction, could not be settled ultimately by this court, preliminary resort to the Commission was necessary to insure uniformity.” On page 294 of 259 U. S., 42 S. Ct. 477, 480, 66 L. Ed. 943, the court said further: “In the ease at bar the situation is entirely different from that presented in the American Tie & Timber Co. Case, or in the Loomis Case [240 U. S. 43, 36 S. Ct. 228, 60 L. Ed. 517], Here no faet, evidential or ultimate, is in controversy, and there is no occasion for the exercise of administrative discretion. The task to be performed is to determine the meaning of words of the tariff which were used in their ordinary sense and to apply that meaning to the undisputed facts. That operation was solely one of construction; and preliminary resort to the Cpmmission was, therefore, unnecessary.” The record before the commission in the instant ease is in evidence, not as evidence of any faet contained therein, but merely as indicative of the conflict and difference of opinion among rate experts and others as to the tariff classification to which Ry-Krisp properly belongs. In fact, a simple recital of the position taken by plaintiff is indicative of the question of fact that necessarily must be presented to any tribunal before it could determine the question involved. Plaintiff’s witnesses before the commission and the evidence before this court went into considerable detail in explaining the methods of manufacture, the ingredients, the basic difference between Ry-Krisp and bakery products, and the types of competitive cereal products that obtained the cooked cereal food preparations tariff. Ry-Krisp is a trade-marked product, and from its name and observation of the product, it would be quite impossible to determine its ingredients, its methods of manufacture, or *364its inherent characteristics. It appears that, originally, products at least similar to ByKrisp were used by the Scandinavians as a substitute for bread. The product gained vogue in this country as a health bread or health food, and was often referred to as “Swedish Health Bread.” Defendant itself on its carton refers to the product as Scandinavian bread. Now, defendant before the commission, and also before this court, contends that this product is not comparable to bread, crackers, or Matzos, which are products of a bakery, and by expert testimony seeks to establish that its product is cooked instead of baked, and by introduction of technical testimony seeks to distinguish its article from those that are included in the bakery goods classification. It is a well-known fact that cereal food preparations are not subject to any exact definition or interpretation, and cereal, generally speaking, is any food-stuff made from grain; but in recent years, since the advent of the so-called dry breakfast foods, it is common knowledge that cereal in a limited sense refers to breakfast food, either hot or cold. If one went into a restaurant and asked for the kind of cereals served, the waiter would undoubtedly mention the usual breakfast foods that are on the menu. Now, does the term in the tariff, “Cooked Cereal Food Preparations compressed in fiat forms,” refer solely to breakfast foods, ol does it refer to any cooked cereal food preparation that may be compressed in a flat form, as certain types of crackers or biscuits? If it is general and all-inclusive in its terms, it may well be that By-Krisp fairly comes within that tariff classification. But reasonable minds may differ as to the terms being used in a general or peculiar sense, and all of the facts and circumstances present a situation that strikingly indicates the desirability of having this question determined by a tribunal that sits as judges of the facts, so that all testimony with respect to the usages and customs of. the.trade, the number of similar articles on the market, the competition that it is subjected to, and the types of similar products in the food market field, may be presented ail'd' duly considered in determining the question involved. In no other way can unifoimiiy be obtained, and needless to say, the Interstate Commerce Commission, with its experts' in rate matters and its knowledge of the basic reasons for the differentiation, in tariff classification, should be far better equipped to determine this question than the various courts throughout the country. At any event, it must be apparent that the matter presented is not a question of law for the court. Before the commission, many products made solely of rye, some with yeast and some without, were introduced in evidence as being available in the various food markets. These products were very similar to defendant’s By-Krisp. Some were imported from Sweden and others were domestic. The commission may well have concluded that these various rye health breads were the actual competitors of By-Krisp, rather than the breakfast food products. Experts before the commission gave their reasons as to why ByKrisp should be classified as a cereal food preparation. Others were just as earnest and sincere in contending that this product was properly classified as a rye cracker, or rye wafer, and consequently was properly allocated to the bakery goods classification. As illustrative of the difference of opinion that exists among persons engaged in different businesses regarding the classification of ByKrisp, the only witness produced by the defendant at this trial before the court testified in cross-examination as follows: “Q. I take it then, from what you say, the term crackers, bread and toast might mean one thing to you as a chemist or manufacturer and might mean something else to your advertising department? A. Exactly. “Q. And may mean something else to the traffic department or to a railroad man who is shipping that product? A. Yes, that is true. “Q. So you have words on that Exhibit there (package of By-Krisp) that different people interpret differently, depending upon what line of business they are in ? A. Yes sir. * » *» The difference between baking and cooking, between flaking, as contradistinguished to the grinding of flour, the purpose of proofing (maintaining the product at a temperature favorable to yeast), the effect of intensive heat in baking, and the effect of yeast upon the product — all enter into the technical picture to substantiate defendant’s position that its product is not bakery goods, and strikingly serve to illustrate the scientific field that must be entered into in order to determine the question presented. The report of the commission indicates that the testimony was in conflict, and on page 436 of its report, it appears that the commission found as a fact: “That the principal competition encountered by By-Krisp is with articles of this nature, which are recognized commercially as bakery goods, rather than with cereal food *365preparations represented and used primarily as breakfast foods, is a reasonable conclusion from the evidence.” Manifestly, therefore, if effect is to be given to the rules as annunciated by the court in the American Tie & Timber Co. Case, the Merchants’ Elevator Co. Case, Standard Oil Co. v. U. S., 283 U. S. 235, 51 S. Ct. 429, 75 L. Ed. 999, and Davis v. Age-Herald Pub. Co., 293 F. 591 (C. C. A. 5), then this court must conclude that the question presented is one peculiarly for the commission to deter-mine preliminarily before this eourt could assume jurisdiction. The commission having determined as a question of fact from the evidence presented to it, that Ry-Krisp should be classified as bakery goods for rate purposes, the court adopts such determination, and the parties having stipulated as to all other facts, it necessarily follows that plaintiff is entitled to the relief it seeks and that the counterclaim must be dismissed. If it should be assumed that, notwithstanding the nature of the question presented and the determination of the commission thereof, the court has jurisdiction, then, upon the evidence presented at this trial, the court would and does find as a fact that Ry-Krisp should be classified as bakery goods for rate purposes. Obviously, however, the determination of such a question would be one of fact, and the court is prompted to such conclusion because it is the court’s view that the terms used in the tariff are used in a peculiar and limited sense, rather than in the ordinary and customary one. Ry-Krisp is not sold as a cereal or as a breakfast food; it is sold and held out to the public as a rye wafer or cracker. True, it may have many other uses, but primarily it is an unleavened bread. The pictures on the carton in which it is packed, and the descriptive statements thereon, indicate its use as a rye wafer or cracker. In the community where the product was originated, and where it is in general use, it is common knowledge that it is generally known and considered as a substitute for bread. Now, of course, the use' of a product is not necessarily controlling, and it may under some circumstances be entirely disregarded, but defendant’s own descriptive terms and statements certainly have some bearing upon the proper tariff classification. In that the court has adopted the findings of the commission with respect to the tariff classification of this product, and in view of the further fact that the court is of the opinion that, as a question of fact and as a question of proper construction of the tariff provisions, Ry-Krisp should he classified as bakery goods, the plaintiff must prevail in this action. It might not be amiss, however, to point out that, in addition to the reasons hereinbefore stated, defendant went before the commission to obtain reparation for the same alleged overcharges as it.has included in its counterclaim. It voluntarily sought the Interstate Commerce Commission as the tribunal to obtain relief for such alleged overcharges, and the commission, after a full and fair hearing, denied it any relief. Even though the rulings of the commission are not conclusive, at least it should be very persuasive upon this eourt in determination of the issues presented. In Standard Oil Co. v. United States, supra, the court stated (page 240 of 283 U. S., 51 S. Ct. 429, 431, 75 L. Ed. 999): “Third. But putting the foregoing grounds entirely aside, and assuming the correctness of appellant’s contentions to the contrary, nevertheless, having regard to the remedy invoked and the relief sought by the petition, we think the district eourt was without jurisdiction. Section 9 of the Interstate Commerce Act, c. 104, 24 Stat. 379, 382 (U. S. C., title 49, § 9 [49 USCA § 9]), provides that a claim for damages against a common carrier may be brought before the Commission by complaint, or by an action in a federal district court of competent jurisdiction, but that the claimant or claimants ‘shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.’ Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision, precluded from seeking reparation upon the same claims by the alternative method of procedure. Compare Geo. A. Hormel & Co. v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 283 F. 915, 918.” The court, upon the evidence and stipulation entered into by and between the parties, adopts the foregoing as its findings of fact, and makes the following conclusions of law: 1. That plaintiff have judgment against the defendant in the sum of $8,868, with interest according to law, and for its costs and disbursements herein. 2. That defendant’s counterclaim be and the same hereby is in all things dismissed. 3. Let judgment be entered accordingly.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218919/

BORAH, District Judge. This proceeding, which involves the condemnation of flowage and levee rights over the property, right of way, and railway line and tracks of the respondent Yazoo & Mississippi Valley Railroad Company et al., was instituted by the United States under the Act of Congress approved May 15, 1928, commonly known as the Flood Control Act, § 4 (33 USCA § 792d). Pursuant to the terms of the statute, and for the purpose of ascertaining the value of the property and assessing the compensation to be paid, three commissioners were appointed and instructed as to their duties. After hearings which consumed many days in the taking of testimony and at which numerous witnesses were examined and exhibits received, the commissioners, under date of March 27,1933, filed their report and award fixing the compensation of this respondent in the amount of $1,386,470.37. To this report the government filed exceptions and objections and, pending a determination of the issues thus raised, requested a rereferenee for the purpose of determining exactly and in detail how the commissioners had reached their award and whether they had followed correct principles in so doing. Failing in this, argument was heard on the exceptions and the cause submitted. In this state of the record the government filed the following motion: “Now into Court comes the United States of America, plaintiff herein, through the United States Attorney in and for the Eastern District of Louisiana, acting under and in accordance with instructions from the Attorney General and in compliance with the request of the Secretary of War, and does declare and aver that it desires to, and does hereby discontinue, dismiss and abandon this said proceeding.” The respondent now moves that the paper or document filed herein purporting to dismiss and abandon this proceeding be dissolved and stricken from the file for the paramount reason that there has been a taking and the right to compensation has become fixed. The government concedes that there can be no dismissal of the proceeding if such be the circumstances. At the inception it is to be observed that the United States in its pleading does not say that the Bonnet Carre Spillway project has been abandoned. That is not and could not be its position, because its creation and operation is statutory, and it does not lie within the power of any individual or group of administrative officers to abandon either the project or its operation when the flood stage at New Orleans has reached twenty on the Carrollton gauge. What it does seek by this pleading is an abandonment of what it has declared necessary and advantageous to acquire by condemnation; namely, the full, complete and perpetual right, power and privilege to enter upon and construct levees on and to overflow the strip of land lying in the floodway and on the sites of the upper and lower guide levees of the spillway in the construction, operation, and maintenance of the said spillway; a proceeding which it was compelled to initiate because the owners and lessees or claimants had not fixed a price for the easement or easements required for the flowage of water through the spillway which was reasonable in the opinion of the Secretary of War. The petition of the government which practically tracks the language of the statute alleges that, in accordance with the provisions of the rivers and harbors act (33 USCA § 591 *367et seq.), which is made applicable to the acquisition of lands, easements, or rights of way needed for works of flood control, certain and adequate provision has been made for the payment of just compensation to the owners, lessees, and claimants of the easement or easements sought to be condemned. And the act in express terms provides that: “The United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress; Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto. * * * ” 33 USCA § 594. The act further provides that: “The respondent or respondents may move at any time in the court to increase or change the amounts or securities, and the court shall make such order as shall be just in the premises and as shall adequately protect the respondents. In every ease the proceedings in condemnation shall be diligently prosecuted on the part of the United States in order that such compensation may be promptly ascertained and paid.” This language would seem to clearly indicate that where there has been a compliance with the condition imposed relative to the payment of just compensation that title passes to the United States upon the filing of the proceedings. For unless the property has been taken, and respondent has a present right in the compensation, it is unreasonable to assume that Congress would give to a litigant the right to demand further security over and above that provided by the United States. However, if there can be any doubt on the subject, this doubt is dispelled by the record which shows a completed taking in fact. The testimony and the exhibits in evidence show that after this proceeding was instituted the government immediately began the construction of the Bonnet Carre Spillway structure and the erection of side levees. The divers progress reports of the Mississippi River Commission show the extent to which this work continued and progressed. The reports for the months of June and October, 1931, contain the following language: “The Bonnet Carre Spillway structure has been completed and the side levees are being raised to final grade. The existing gaps for railroads and bridges can be closed quickly in "time of emergency and the Spillway operated if public necessity should demand.” The progress report of November, 1932, is couched in identical language, save that it recites that the side levees have been raised to final grade. It is unnecessary to bring into review all of the evidence that bears on this factual issue, as same is in complete accord with the reports of progress of the Mississippi River Commission that the work has been completed. The fact that the existing gaps have not been closed, and that the main levee between the spillway and the river has not been cut, is of no material importance, considering the magnitude of the work. For all practical purposes the spillway is, and has been since June, 1931, complete and ready for operation whenever the need therefor shall arise. The United States has acquired and taken every right needed for the spillway project, and the property of the respondent has to all intents and purposes been subjected to every possible use contemplated by the taking. These facts show a taking within the principles of law applicable and give rise to compensation in favor of the respondent. Kincaid v. United States (D. C.) 37 F.(2d) 602. This case was later affirmed by the Circuit Court of Appeals, 49 F.(2d) 768, and thereafter went to the Supreme Court, where it is reported under the title of Hurley v. Kincaid, 285 U. S. 95, 52 S. Ct. 267, 269, 76 L. Ed. 637. In reversing the decision on grounds which had not been considered by the courts below, the court said: “We may assume that, as charged, the mere adoption by Congress of a plan of flood control which involves an intentional, additional, occasional flooding of complainant’s land constitutes a taking of it — as soon as the government begins to carry out the project authorized. Compare United States v. Lynah, 188 U. S. 445, 469, 23 S. Ct. 349, 47 L. Ed. 539; United States v. Cress, 243 U. S. 316, 326, 328, 37 S. Ct. 380, 61 L. Ed. 746; Peabody v. United States, 231 U. S. 530, 538, 34 S. Ct. 159, 58 L. Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U. S. 1, 39 S. Ct. 399, 63 L. Ed. 809; Id., 260 U. S. 327, 329, 43 S. Ct. 135, 67 L. Ed. 287.” While it is true that this language was clearly dictum, the court, nevertheless, enunciated a well-recognized principle of law that has received recognition and been applied in the’ eases which it cited. The motion of the respondent will be allowed, and the document filed herein by the United States purporting to dismiss and abandon this proceeding will be stricken from the record.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218670/

KENNEDY, District Judge. This is a motion for summary judgment. The complaint (in two counts) charges the defendants with infringement of two patents embodying improvements in the making of a doll, and also with unfair competition in respect of the same product. I consider myself bound by a prior decision in the case filed by Chief Judge Inch sustaining the unfair competition count and holding that this claim is, to quote defendants’ brief: “one and the same thing as the patent action, under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148.” The motion for summary judgment is based on the contention that a mere visual examination of the accused product, coupled with analysis of the patents, is enough to warrant a finding and conclusion that the patents are not infringed. There is no occasion for me to discuss generally the question whether the summary judgment rule, Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A., is or is not appropriate in patent cases. The matter has been dealt with before, Weil v. N. J. Richman Co., D.C.S.D.N.Y., 1940, 34 F.Supp. 401; E. W. Bliss Co. v. Cold Metal Process Co., D.C. N.D.Ohio, 142, 47 F.Supp. 897; Millburn Mills, Inc., v. Meister, D.C.S.D.N.Y., 1940, 4 Fed.Rules Service 741; Brown v. Ford Motor Co., D.C.E.D.Mich., 1944, 57 F.Supp. 825; Avrick v. Rockmont Envelope Co., 10 Cir., 1946, 155 F.2d 568; Steigleder v. Eberhard Faber Pencil Co., D.C., 81 F.Supp. 143; Vulcan Corp. v. International Shoe Machine Corp., D.C.Mass., 1946, 68 F.Supp. 990, affirmed 1 Cir., 158 F.2d 520, certiorari denied 330 U.S. 825, 67 S.Ct. 868, 91 L.Ed. 1275. Plaintiff in this case seems to have been reluctant to proceed to trial, and defendants’ argument that there is no possibility of infringement comes close to being persuasive. However, I cannot say that there is lacking a substantial issue because, under the prior ruling of the Chief Judge, jurisdiction to determine the unfair competition claim will survive the disposition of the claim asserted under the letters patent. That being so, it seems clear that any effort to save time by disposing of the infringement issue would be a mistake, cf. Bozant v. Bank of New York, 2 Cir., 1946, 156 F.2d 787. While I feel that I must deny the motion, I suggest to counsel for the plaintiff that the case should be promptly tried.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218672/

KNOUS, District Judge. The plaintiff is a nonresident and the defendant has made a motion that it *230be required to furnish a cost bond. No other ground therefor is asserted in the motion which, as stated in the argument and as appears inferentially from its face, is grounded on Sections 10 and 11, Chapter 43 of Colorado Statutes Annotated 1935. While the Conformity Act, Section 724, Title 28 U.S.C.A., was in force, the defendant’s motion would have been good. Cavicchi v. Mohawk Mfg. Co., D.C., S. D.N.Y., 27 F.Supp. 981; Green v. Me-Tex Supply Co., D.C.S.D.Tex., 29 F.Supp. 851; Silvas v. Arizona Copper Co., 9 Cir., 220 F. 116. However, the Federal Rules of Civil Procedure, 28 U.S.C.A., have repealed the Conformity Act, supra, and state practice in this connection no longer may be invoked under its terms. There is no provision in the Federal Rules of Civil Procedure relative to the giving of security for costs in a case such as the one at bar. Rule 83 of the Federal Rules of Civil Procedure provides that district courts may make suitable rules governing practice not inconsistent with the Federal Rules of Procedure, but no rule providing for the posting of cost bonds or the giving of security for costs has been adopted by the District Court of Colorado. It is conceded by counsel that the 'Court, in the type of case here pending, has the inherent discretionary power to require cost bonds on good cause being shown. It seems to me that authorization therefor also is to be found in the concluding sentence of Rule 83, which states: “In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” Pertinently, it is said in Moore’s Federal Practice, under new Federal rules, page 3444, “The scope of this provision eliminates all necessity to fall back upon the Conformity Act or the Equity Rules. If a procedural detail arises in a case and is not covered by the Federal Rules or by a standing district court rule, the district court may provide therefor in such a manner as will 'facilitate the just determination of the action.” Since the motion under consideration states no reasons why the plaintiff should be required to give bond as security for costs other than the statutory one, it will be denied with leave to the defendant, if he is so advised, to re-present within ten days in a form to properly invoke the discretion of the Court. At the time of filing his motion for cost bond defendant also filed a motion to dismiss the action for the failure of the plaintiff to file a cost bond at the time of the commencement thereof, in accordance with Sections 10 and 11, Chapter 43, Colorado Statutes Annotated 1935. Prior to the 1885 amendment to Section 11, supra, the rulings had been that a nonresident’s failure to file a cost bond at the institution of the action was fatal. Sutro v. Simpson, C.C., 14 F. 370; Edgar Gold and Silver Mining Company v. Taylor, 10 Colo. 110, 14 P. 113. However, since that amendment even under Colorado practice, such result does not attain. See Payton v. M. Spiesberger & Son Co., 40 Colo. 289, 90 P. 605. Hence, defendant’s motion to dismiss is denied. Obviously, this result is also impelled by the circumstance, as has been said, that defendant no longer can invoke the provisions of the Conformity Act, supra, to compel a bond for costs from a nonresident as a matter of course. Notwithstanding the fact that both the motion for the cost bond and the motion to dismiss were filed within the time for pleading allowed by Rule 12(b), the plaintiff claims that neither of them constitutes pleadings permissible under Rule 12 and has asked that the default of the defendant be entered pursuant to the provisions of Rule 55. Whether or not the filing of the motion for cost bond by defendant would alone prevent plaintiff from taking default, it would seem certain that the filing of the motion to dismiss which challenged the jurisdiction of the court to proceed until the cost bond was filed, even though unsuccessfully asserted, should preclude the entry of a default -before its disposition. Such seems to me to be in ac*231cord with liberality toward avoiding the effects of defaults proclaimed by Rules 55(c) and 60(b). The motion of the plaintiff for default is, therefore, denied and defendant is given ten days in which to answer.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218673/

McGRANERY, District Judge. This is an action for damages against the defendant physician, alleging that serious injuries were sustained by the wife plaintiff as a result of the negligent manner in which the defendant is asserted to have performed a “nerve block”. Plaintiffs have filed interrogatories under Rule 33, F.R. C.P., 28 U.S.C.A., and to certain of them defendant objects. Three of the interrogatories seek to require answers as to (1) whether the defendant assured the wife plaintiff that the treatment was without any serious risk, (2) whether he warned her of the possibility of complications, and (3) whether he obtained from either of the plaintiffs any written consent. Objection is taken to these questions on the ground of irrelevance. Rules 33 and 26(b), F.R.C.P. Only if .the cause of action were based upon an assault theory, contends the defendant, would they be relevant. However, it seems to me that the objections are not well taken, and that the interrogatories do go to the issue of negligence. If the answer to the first is in the affirmative, an inference of negligence is possible. If the answer to the second is in the negative, a separate inference of negligence is possible. And the answer to the third question may support an inference which may be drawn from either of the other two answers. *232A fourth interrogatory objected to asks the defendant to state, if he charges contributory negligence, upon what conduct, acts, or omissions of the plaintiffs such charge is based. The plaintiffs urge that the subject matter of the accident involves technical, medical and anatomical data which would be known or should be known to a physician such as the defendant and which obviously would not be within the knowledge of the wife plaintiff, and furthermore, the wife plaintiff was, for the performance of the “nerve block”, exclusively under the control of the defendant. Consequently, it is argued, the plaintiffs are entitled to learn any facts which, for these reasons, are in the knowledge of the defendant. I am in thorough agreement with this contention, but the plaintiffs have asked too much. They have asked for the expression of a conclusion and an opinion, Ryan v. Lehigh Valley R. Co., D.C., 5 F.R.D. 399; Doucette v. Howe, D.C., 1 F.R.D. 18; Doucette v. Eastern State Transportation Co., Inc., D.C., 1 F.R.D. 66; and not merely for the expression of an expert medical opinion, cf. Kendall v. United Air Lines, D.C., 9 F.R.D. 702. I believe that the desired facts can be ascertained by properly phrased interrogatories or requests for admissions. They cannot, however, be required from the defendant under the shotgun query of contributory negligence.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218675/

McGOHEY, District Judge. The defendants -severally and individually object, under Rule 36 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to each of 267 items in plaintiff’s notice of request for admissions. They also move to strike out and dismiss the notice. It is claimed among other things that the notice on its face discloses that the requests are so unduly prolix that neither the defendants nor the court should “be burdened with the task of separating therefrom such items of said notice, if any, as may-be proper.” The defendants’ ¡attorneys have indeed acted on this principle. On argument, as well as in their main memorandum, they made no attempt to reach the merits. They seemed to assume that generalized criticisms, coupled ¡with the number of requests, were enough to relieve them of the duty imposed by the Rule. In a reply memorandum they retreat somewhat from that extreme position 'but not sufficiently to 'be of any substantial ¡aid to the court on the merits. Prior to the amendment which became effective on March 19, 1948, Rule 36 ¡was held ¡by many district courts to be intended to operate extrajudicially, and objections such as here made were ¡accordingly dismissed.1 The provision for filing and hearing objections was certainly not designed to ¡achieve the other extreme urged by defendants here. The number of requests is large, to be sure, but not unreasonably so in the circumstances of this -case. The plaintiff is the trustee in bankruptcy of Clothing Reclamation Services, Inc. which, in an involuntary proceeding, was adjudged -a bankrupt on .October 27, 1947. Its scheduled liabilities amount to $288,-093.26 and its assets, consisting of -accounts receiveable, are $45,551.51.2 This suit was authorized by Referee Kurtz, who is in charge of the proceeding. The defendant Silverman was president, treasurer, a director and sole stockholder of the bankrupt. The remaining defendants, -copartners in ■a moneylending ¡business known as Commercial Trading Co., purchased accounts due the bankrupt and advanced it money thereon. The complaint alleges a conspiratorial juggling of accounts among and by all the defendants, whereby no creditors other than defendant Commercial Trading Co. could be paid -and that it obtained ¡and kept far more money than its due. The complaint -sets forth in detail the various steps of the .alleged conspiracy, and the requested admissions relate to them. Each item is so clearly described that no defendant questioned about it could have any difficulty in ¡answering. Indeed, the reply brief enumerates items which are said to be not within the knowledge of various defendants. These -statements, of course, should *235be made by the several defendants, not by their counsel. And they should be made under oath. I do not agree that all the items objected to as conclusions are such in fact. With exceptions noted hereafter they, too, should be answered. The Rules should he construed liberally in order to facilitate the disposition of cases. An action by a trustee against those having intimate knowledge of a bankrupt’s business and control of its finances is surely not one where delaying technical objections should be permitted. The objections are sustained as to items D(41) and F(100). As to all other items, the objections are overruled. The motion to strike the notice of request for admissions is denied. Defendants may have ten days from the entry of an order in this motion to respond to the requests. Submit order. . Penmac Corporation v. Falcon Pencil Corporation, S.D.N.Y., 2 F.R.D. 492; Modern Food Process Co., Inc., v. Chester Packing & Provision Co., E.D.Pa., 30 F.Supp. 520. . The complaint alleges that these are worthless.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218676/

FOLEY, District Judge. The defendant by notice of motion moves to dismiss the actions set forth in paragraphs 27 through 44 inclusive of the complaint, for failure to state a claim upon which relief can be granted. The particular designated paragraphs embrace the Fifth, Sixth and Seventh causes of action set forth in the complaint. The relief sought must toe determined under the terms of section 12(b)(6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and the *236•previous judicial construction of such terms in that respect. The gravamen of the allegations challenged 'by the defendant are similar in the three causes of action and charge that the defendant “fraudulently used and caused to be used” certain Veterans’ Preference certificates issued to three named veterans for the purpose of purchasing for his own use certain surplus property from the War Assets Administration. Then it is definitely alleged alike in the three causes of action that the defendant herein was not entitled- or validly authorized to use such Veterans’ Preference certificates for the purchase of the described equipment. In my judgment these allegations are a sufficient, adequate and substantial statement of proper claims for relief. It is only necessary that a short and plain statement of the claim showing that the pleader is entitled to relief be present. Dioguardi v. Durning, 2 Cir., 139 F.2d 774. The defendant seeking dismissal as a matter of law places great reliance upon an unreported opinion, U. S. v. Hall, et al., handed down in the United States District Court for the Southern Division, Northern District of California. This authority is clearly distinguishable from the problem presented by this.motion. It is important to note that the opinion was written, judgment of acquittal granted, and the decision made after the proof and evidence was submitted by the government. It must also be remembered that the safeguards of proof beyond a reasonable doubt and presumption of innocence predominate in determination in criminal matters and are not present in civil actions. This same opinion also pointed out that the sale there was in the “regular course of business.” It also notes that thereafter, in August, 1946, there was a substantial change in the regulations governing such transactions. The defendant in this motion emphasizes that two of the certificates were issued previous to that date, but that seems unimportant because it i's only the claim of the government that the defendant is responsible in money damages- for the fraudulent, use for his own purpose of such preference certificates. The government, of course, will be put to its proof of all such allegations. Despite these discussions, the motion cannot be granted because of definite and established legal authority. A complaint should not be dismissed for failure to state a claim unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim; and the complaint will be viewed in the light most favorable to the plaintiff. Continental Collieries, Inc., v. Shober, 3 Cir., 130 F.2d 631; Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 169 F.2d 580. The motion is denied and an order may enter accordingly.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218677/

MEDINA, District Judge. Defendants herein move for an order vacating the notice to take depositions served by the plaintiff on April 24, 1950, or in the alternative, for an order granting the defendants precedence over' the plaintiff in the taking of depositions. This is a triple damage suit brought under the Sherman and Clayton Acts. 15 U. S.C.A. §§ 1 et seq., 12 et seq. It was commenced on March 2, 1950 by the filing of the complaint with the Clerk of this Court. The Marshal served the complaint on the several defendants on March 6, 9 and 17, 1950. On March 24, 1950, at about noon, defendants served upon the plaintiff a joint notice of the taking of plaintiff’s deposition. Four or five hours later on the same day the plaintiff served the attorneys for the defendants with a notice to take the depositions of certain of the defendants. Defendants urge that plaintiff’s notice to take the depositions of the defendants is invalid since plaintiff served the notice without leave of Court, which, defendants argue, was required by Rule 26(a), Federal Rules of Civil Procedure, 28 U.S.C.A. That rule, as amended, provides: “After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within 20 days after commencement of the action.” *238Rule 3, F.R.C.P. provides: “A civil action is commenced by filing a complaint with the court.” Accordingly, plaintiff’s notice was valid, if “commencement of the action” as used in Rule 26 is to be construed in accord with Rule 3. Defendants argue that the language should not be so construed, but this argument must be rejected. The purpose of the 20-day delay required before a plaintiff may notice the taking of defendant’s deposition is undoubtedly to give the defendant time to examine the complaint and secure an attorney. See Note of Advisory Committee on Amendments to Rules, following amended Rule 26. It does not follow that the running of the 20-day period should not start until the complaint is served on the defendant; if the latter were the rule, administrative difficulties would ensue, especially in multidefendant cases where, as here, the complaint was served on different defendants on different days. By selecting the date of the filing of the complaint, the drafters of the rule fixed a readily discernable and easily administered point in time. Moreover, I understand that this problem was anticipated and discussed by the Advisory Committee and for the reasons stated above, among others, the language “commencement of the action” was selected, and was intended to'be construed in accord with Rule 3. It follows that plaintiff’s notice was proper. The next question is whether the plaintiff or the defendants should first proceed with their depositions. The joint notice of defendants was served first and this gives priority in the absence of special circumstances requiring a different order of the taking of depositions. Auburn Capitol Theatre Corp. v. Schine Chain Theatres, D.C.S.D.N.Y.1949, 83 F.Supp. 872; Isbrandtsen v. Moller, D.C.S.D.N.Y.1947, 7 F.R.D. 188; Shamokin Woolen Mills v. Cortille Fabrics, D.C.S. D. N.Y.1941, 2 F.R.D. 25; Baker v. Midtown Bus Terminal of New York, Inc., D.C.S.D.N.Y.1942, 3 F.R.D. 70; Ginsberg v. Railway Express Agency, D.C.S.D.N.Y. 1945, 6 F.R.D. 371; Mutual Finance Corporation v. Sobol, D.C.S.D.N.Y. 1946, 7 F. R.D. 111; Bough v. Lee, D.C.S.D.N.Y. 1939, 28 F.Supp. 673; Grauer v. Schenley Products Co., D.C.S.D.N.Y. 1938, 26 F. Supp. 768. On the papers before me I can find no particular reason why the taking of one set of depositions should precede the other, unless I am arbitrarily to rule that in all triple damage suits under the antitrust laws the plaintiff is entitled to take his depositions first. And if this is to be so in actions of this type, it will be argued that some similar ruling one way or the other should be made in contract actions, negligence actions and so on. The mere type of action should not be so controlling; and I find no special circumstances here to justify changing the normal course of events under the notices as served. The defendants’ motion for an order pursuant to Rules 30(a) and (b) granting the defendants precedence in taking the deposition of plaintiff before the taking of any of defendants’ depositions by the plaintiff is granted. Settle order on notice.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218678/

REEVES, Chief Judge. The several motions of defendant are, (a) to dismiss, because of failure to state a cause of action, and (b) to strike certain averments of the pleadings as splitting causes of action and violative of Rule 10 (b), Federal Rules of Civil Procedure, 28 U.S. C.A. These will be examined. The action is based upon flood damage caused by the maintenance of a dam by plaintiff on White River, a short distance below Hollister, Missouri. The statute under which the defendant operates specifically provides that the defendant would be liable for damages to private property by reason of overflows or otherwise. The averments of the complaint are that due to the presence of the dam in White River, built and maintained by the defendant, properties owned by plaintiff were damaged by an overflow of water held back and retarded by the dam. This states a cause of action. Grace v. Union Electric Company, 239 Mo.App. 1210, 200 S.W.2d 364. It appears from the complaint or petition that the plaintiffs were the owners of considerable property or improvements on Plot 5 of the Second Addition to the Town of Hollister, Missouri; that such improvements consisted of a home occupied by plaintiff, and a camp operated by plaintiffs on another part of said plot; also certain cabins differently located on said plot; and an improvement known as White Head Home on said plot 5; another building located at a different point bn said plot 5 as mentioned in Count 5 of plaintiffs’ petition; and at a different point or place, a four room cottage is mentioned in Count 6. By its motion the defendant seeks to have stricken Counts 3, 4, 5, 6 and 7 for the reason, as it is alleged, that these counts are in their nature “a duplication and a splitting of the cause of action set forth by plaintiffs in Count 2, * * And, again, it is averred that the complaint is drawn in such way as to violate Rule 10(b), Federal Rules of Civil Procedure. An examination of the complaint or petition discloses that plaintiffs claim to have sustained damages by a single overflow. It affected properties, however, differently situated on Plot 5 owned by them. In the briefs it is intimated that the elevation of a portion of the plot was such that legitimate defenses might be interposed by the defendant. It would have been permissible for the plaintiff to have stated a single cause of action with separate paragraphs, as provided by paragraph (b) of said Rule 10. However, it appears that the courts have been tolerant of separate counts and even have encouraged separate counts where it was to the advantage of the defendant to interpose separate defenses. The defendant, therefore, is not injured by the plaintiff stating or alleging different causes of action. In view of the above, the defendant’s motion to dismiss should be and will be overruled, and the defendant’s motion to strike, in like manner, should be and will be overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218679/

MEDINA, District Judge. On February 13, 1948, I was designated by Honorable John C. Knox, now the Chief Judge but then Senior District Judge of this Court, to preside at the trial, to hear and determine all motions and to supervise all pre-trial procedures in this case. There are 130 individual defendants, 7 corporate defendants and one defendant is an unincorporated association. The action involves issues of great extent and complexity, including within its scope, according to the view of the government, practically the entire business of security underwriting carried on in the United States since 1915 by defendants and by others. It was obvious at the outset, and was recognized by all concerned, that it would be impossible to administer the trial without pursuing extensive pre-trial procedures designed to meet the problems and to fit the circumstances of this particular case. Twenty-seven pre-trial hearings have been held. At these hearings some fifteen motions of major import and numerous other motions have been argued and decided; certain depositions have been taken under the supervision of the Court; objections to interrogatories, to demands for admissions, and to responses thereto have been argued and decided; and the machinery for an expeditious and effective pre-trial procedure has been evolved and administered. Pursuant to the provisions of the PreTrial Order No. 1, which I issued on June 10, 1948, ten thousand, six hundred and forty documents have been prepared by the plaintiff for submission at the trial; the procedure followed is roughly as follows: these documents are printed, each one with a caption stating what the parties have called the “authenticating facts”; proofs of the documents are submitted by the printer to the defendants; the defendants then check the “authenticating facts,” making such changes in the body of the documents and in the captions as they deem appropriate; the defendants submit the corrected documents to the plaintiff; the documents are then printed in final form, with such corrections thereon as are agreed to by the government and the defendants and, where they disagree, the substance of the claims of both sides is printed on the documents; each side initials the final printed documents, thereby stipulating the “authenticating facts” printed in the captions; the documents are then arranged in loose-leaf binders, ready for trial. Five thousand, eight hundred and twenty-three documents, totalling twenty-five thousand, three hundred six printed pages are in final form ready for trial. Another eleven thousand, forty-six printed pages have been delivered by the printer to the several defendants for authentication by them. Two thousand, six hundred nine documents are preséntly being processed by the defendants in proof form. A number of other documents have been the subject of negotiations between the parties, and are now all but ready for final printing. In some cases, defendants have failed to authenticate documents, and the Court has heard argument on and decided whether such refusal was justified. One thousand, one hundred and forty-six documents have yet to be delivered to the defendants by the printer. This balance will be delivered on or before June 1, 1950. When this process is completed, the documents upon which the plaintiff bases its case and intends to rely at the trial will be fully disclosed to the defendants, will be in printed form and conveniently arranged for the purposes of the trial, and the authenticity of almost all of them will have been stipulated, so that the trial may proceed expeditiously to the merits without delay caused by purely formal matters. Although the document authentication process is itself an achievement of real significance, the parties have gone much farther and have given the fullest cooperation in complying with a number of suggestions by the Court, which were made in an effort, *243if possible, to confine the duration of the trial to a period of not more than one year and, in any event, to avoid what seemed at the outset to be the likelihood that the trial would continue for several years. For example, early in the course of these proceedings it became apparent that there were no compiled statistics either accurately or adequately covering the flotation of security issues in the United States. Since both sides contemplated the necessity of introducing extensive statistical studies, charts, and compilations at the trial, defendants agreed to prepare and to settle, by negotiation with the government over disputed details, basic statistical data which would form the foundation for the preparation of those charts, compilations and studies. Accordingly, a comprehensive compilation of all relevant facts on security issues of any importance during the period 1935-1949 has been prepared and stipulated. It has been stated on behalf of defendants that the cost to defendants of this single item of preparation for the trial has been not less than $350,000. And the expense to the government must have been very substantial. How long it would have taken to accomplish this work without the earnest efforts of all interested parties and their counsel, I cannot estimate. Thirty-six volumes of issue data sheets, each containing some two hundred pages dealing with the size, nature, offering price, rating and underwriting of security issues, as well as with numerous other facts, are ready for trial. Eleven volumes of issue register lists contain the facts on almost every security issue of over $100,-000 since 1935 and these are also ready for trial. It is a tribute to counsel that they were able to complete this gargantuan task and at the same time to carry out the other pre-trial procedures described herein. Depositions by twenty individuals have been taken. The testimony covers six thousand, eight hundred and fifty-seven printed pages. Twenty-two demands for admissions were also served by plaintiff during this period. These demands cover a multitude of details concerning the activities of the various defendants since 1915. Many objections to these demands were presented to the Court; some of the objections were disposed of by the parties themselves, and others were ruled on by me. The complexity and scope of these demands are exemplified in the most recently negotiated demand, which, after repeated conferences between the parties, and after repeated revision, totals over four hundred separate items of fact as to which admissions are sought. Many stipulations have been entered into by the parties and the approval of the Court is given to the stipulations of the following dates, which are of considerable importance in the trial of this action; July 28, 1949, November 2, 1949, and January 11, 1950 concerning initialling of documents under the committee procedure; September 20, 1949 and March 28, 1950 concerning basic statistical data; March 30, 1950 concerning plaintiff’s answers to interrogatories; April 19, 1950 and May 17, 1950 concerning authenticity of documents from the files of Dillon-Read & Co., Inc.; and May 5, 1950 concerning the plaintiff’s demand for admissions of April 10, 1950. There are other stipulations of a procedural nature which need not be enumerated here, but which are also approved. Not all the pre-trial procedures are completed. Six matters of importance remain to be completed before the pre-trial phase of the case is finished. These are: (1) Authentication by the Committee, in accord with the provisions of Pre-Trial Order No. 1, of documents heretofore delivered to the printer by the plaintiff and not yet delivered to the Committee; and of documents heretofore delivered to the Committee as to which the authentication process is not complete. (2) Responses by defendants to certain amended demands for admissions, which the parties have denominated the “Amended Paragraph 4 demands” (see paragraph 3 of annexed order). (3) Preparation by the respective parties and verification of various statistical charts based on the stipulated “Basic Statistical Data.” *244(4) Taking.on May 22, 1950 of the deposition of Leonhard Keyes by plaintiff. (5) Verification by defendants of the au-tenticity of certain underwriting agreements, heretofore submitted and to be submitted by the plaintiff to defendants. (6) Gathering of statistics and preparation of basic statistical data on Public Sealed Bidding from 1935 to 1949. Since March 1, 1950 pre-trial hearings have been held on March 9, March 16, March 23, March 30, April 13, April 20, May 15, May 16 and May 18, nine hearings in all. It has been the purpose of these-hearings to bring the pre-trial phase of the case to a close. In this endeavor the parties again demonstrated the cooperation which they had previously shown. Numerous disagreements have been negotiated by the parties in an effort to lighten the Court’s burden, and many others in the course of the discussions have disappeared. The remainder have been disposed of by the 'Court. The end result is that, except for the six matters which remain to be completed, the pre-trial proceedings are complete, and the time has come to declare them to be over and to fix a date for the commencement of the trial. This has been done. By September 15, 1950, or thereabouts, the unfinished matters will doubtless have been completely processed in accordance with the elaborate pre-trial procedures adopted herein; and, at that time, further pre-trial hearings will be had in an endeavor to establish, if possible, special trial techniques for use in connection with the introduction of evidence, the argument of objections and so on. This can better be done after the work of preparation has been completed. At the outset it was my intention to make every effort to require, as part of the pretrial procedure, the production and authentication of substantially all the documents to be introduced by any party at the trial. But the vast scope of the issues indicated, not only by the allegations of the complaint, but more particularly by the answers made by plaintiff to interrogatories submitted by defendants and the seemingly unprecedented variety, number and volume of documents tendered by plaintiff, made it clear to me that a duplication of this procedure as to documents to be offered by each of defendants would in all probability consume the greater part of an additional year, which seemed under all the circumstances utterly unreasonable. Accordingly, after much discussion and deliberation it was determined that there be an interval between the conclusion of plaintiff’s case in chief and the submission of proofs by defendants, should the motions to dismiss at the close of plaintiff’s case be denied, and that defendants be required to furnish plaintiff, not later than 60 days before the resumption of the trial, with a list of all documents to be offered in support of defendants’ affirmative case, together with copies thereof. Many considerations seemed to make such a ruling desirable, not the least of which was that the winnowing process of the trial would almost certainly cut down to some and perhaps a great extent the number of plaintiff’s documents actually to be received in evidence and, consequently, reduce the number of documents to be offered by defendants. Indeed, unless some way be found .to confine within reasonable bounds the material to be read and studied by the Court, the determination of the issues by the ordinary process of absorption and ratiocination will be a physical impossibility. Only time will tell whether this device of a divided trial and postponement of delivery of the documents to be offered by defendants shall prove to have been a wise expedient. At best it will result in a great saving of time for all concerned; at worst it will cause some slight delay before the resumption of the trial, in order that plaintiff be fairly and reasonably advised before defendants’ proofs are offered. In conclusion, I desire to express to all the lawyers representing the respective parties, who have accomplished the unique results I have described above, my sincere appreciation of what they have done. Without their cooperation, this case might have become hopelessly bogged down in pre-trial procedures.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218683/

REEVES, Chief Judge. By the above motion the defendant seeks to have the plaintiff state: “(1) At what place he was working * * * as well as the place of the occurrence and the facts surrounding the manner of the collision mentioned in paragraph 3 of the complaint * * * (2) in what way plaintiff was caused to suffer personal injuries; (3) upon what act or acts of omission or commission plaintiff will rely on the trial as constituting negligence of the defendant; (4) that plaintiff set forth the particular nature and extent of injuries claimed received.” These are requested because the defendant believes that the “complaint is so vague, indefinite and uncertain that he is unable to properly plead and prepare his defense.” An inspection of the rules of evidence in the federal court disclose that the motion for a bill of particulars has been deleted. Where a motion for a more definite statement is the exact equivalent of a bill of particulars, then necessarily it should be treated as a motion for a bill of particulars. Rule 8, Federal Rules of Civil Procedure provides, 28 U.S.C.A., among other things, that the complaint shall contain “(2) a short and plain statement of the claim showing that the pleader is entitled to relief, * * This is regarded as entirely sufficient except in cases where there are ambiguities or doubtful averments against which a motion for a more definite statement may he lodged. Turning to the Appendix of Forms to the New Rules, 28 U.S.C.A., in this Appendix the Supreme Court has furnished model pleadings; Form 1^ is a model complaint for negligence under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., and a reading of this form shows that the plaintiff followed it with considerable precision and exactness. It must, therefore, be deemed sufficient. The information sought by the defendant can he obtained under the discovery rules. In view of the above, the motion for a more definite and certain statement should be and will be overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218684/

IRVING R. KAUFMAN, District Judge. Plaintiff brought this action to recover payments of federal gift taxes for each of the years 1939 to 1944 inclusive, alleging that the taxing of the sum of $21,000 paid to plaintiff’s mother, Gloria Morgan Vanderbilt, in each of these years was erroneous, since the payments were made pursuant to three maintenance orders of the Surrogate’s Court of New York County dated January 21, 1938, December 27, 1940 and December 2, 1943. Defendant is the administratrix of the ■ estate of William J. Pedrick, deceased, who was Collector of Internal Revenue in plaintiff’s Collection District at the time the taxes were paid, that is, on January 10, 1945. Defendant has moved to amend its answer to state two additional defenses. Rule 15(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., states that leave to amend shall be freely given when justice so requires. That defendant has not been remiss in proposing the new defenses is not questioned, for the defenses are based on evidence and information revealed in various oral examinations conducted recently by the defendant. Plaintiff’s objections to the defenses are that they are insufficient and contrary to law and hence to allow them would be a nullity and against the interest of justice. The new defenses in the proposed amended complaint are the second and third. The second defense alleges that the various orders of the Surrogate’s Court, after which payments were made out of the estate of the plaintiff, were executed without authority and hence have no weight. It seems clear that this is a valid defense, for plaintiff’s suit is based on the orders of the Surrogate’s Court, and if the Surrogate’s Court lacked jurisdiction, the orders would be invalid. The third defense alleges, that even if the Surrogate’s Court had jurisdiction, there was no factual basis for the orders authorizing payments from the infant’s estate. This, it appears at this time, is a valid defense. Although a state court adjudication of property rights on the merits is considered binding on the Government for taxation purposes, see, e. g. Blair v. Commissioner, 1937, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, the contention in the third defense is that the issuance of the maintenance orders was not contested upon the merits, but rather was the result of an *261arrangement and consent, and therefore is not conclusive against the Government. Cf. Burton v. Bowers, 4 Cir., 1949, 172 F. 2d 429; First-Mechanics Nat. Bank v. Commissioner of Int. Rev., 3 Cir., 1940, 117 F.2d 127; United States v. Mitchell, 7 Cir., 1934, 74 F.2d 571. Plaintiff cites Section 80 of the Surrogate’s Court Act of New York to establish the conclusiveness of the decrees of the Surrogate; however, that Section merely states that a decree is conclusive against persons over whom jurisdiction has been obtained. In no manner would this bind the Government since the Government was not a party before the Surrogate when the orders were issued, nor could it have been properly a party to those maintenance order proceedings. It therefore appears that both defenses are valid and should be allowed. Plaintiff contends however that these defenses, based on the theory of equitable recoupment, relate to a taxable event other than the taxable events alleged in plaintiff’s complaint, which she claims is not permitted under the doctrine oí equitable recoupment. It is alleged that the taxable event referred to by the defenses is the failure of the plaintiff to object to the final accounting of her guardian when she reached her majority. Obviously, a failure to object cannot be taxed. The taxable transactions to which the defendant claims the right to apply the doctrine of equitable recoupment are the same six payments to her mother in her minority referred to in the complaint with her consent and without consideration; the failure to object to the final accounting is merely evidence of consent or ratification. Therefore the defenses relate to the same taxable events upon which the complaint is based. The defendant has submitted a new paragraph “20” to be substituted by consent in the proposed amended answer which clearly indicates that the equitable re-coupment desired relates to the payments during the years 1939 to 1944 inclusive. Motion to amend answer granted.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218685/

REEVES, Chief Judge. By their motion the defendants have asked the court to try the issue of liability separate and apart from that of damages as claimed by the plaintiff. With great commendable frankness, counsel for the movant concedes that the matter is wholly discretionary with the court. While this is true, the court should not abuse its discretion. The motions have been examined in the light of the authorities relied upon by defendants. The plaintiff claims a right of action for damages accruing to him perforce the provisions of Section 16, Title 15 U.S.C.A. and the decision of the Supreme Court in United States v. Socony Vacuum Oil Co., Inc., et al., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. Said Section, supra, provides that: “A final judgment * * * rendered in any criminal prosecution * * * brought by * * * the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment * * * would be an estoppel as between the parties thereto.” The defendants were convicted of violating the antitrust laws, and such conviction was sustained in United States v. Socony Vacuum Oil Co. Inc., supra. In this case, the plaintiff has stated a cause of action for alleged damages claimed to have accrued to him by reason of the conspiracy of the defendants. Federal Rules of Civil Procedure, rule 42(b), 28 U.S.C.A., provides that: “The court in furtherance of convenience * * * may order a separate trial * * * of any separate issue * * *.” By their motion defendants claim that there is a separate issue as to liability wholly apart from the question of damages and they cite the following cases, among others: Twin Ports Oil Co. v. Pure Oil Co., 8 Cir., 119 F.2d 747; Clark Oil Co. v. Phillips Petroleum Co., 8 Cir., 148 F.2d 580; Farmers Co-op Oil Co. v. Socony-Vacuum Oil Co., Inc., et al., 8 Cir., 133 F.2d 101. These cases have been examined. In the Twin Ports Oil Company case, Judge Nordbye sustained a motion and directed verdict for the defendants at the close of plaintiff’s case on the grounds that no damage had been established by the evidence. The Court of Appeals sustained Judge Nordbye and carefully pointed out, as did Judge Nordbye, that the plaintiff had sustained no damages as contended by it for the reason that its margins of profit were not in any way “lessened.” The Court of Appeals, after stating the facts, 119 F.2d loc. cit. 750, said: “Therefore, there was no loss in margins, nor in the sale of appellant’s property that could be attributed to this so-called buying program.” In the other cases, the motions to dismiss were sustained upon the pleadings and the admissions of counsel. In each case it appeared conclusively that the complainants had suffered no damages. In this case the complainant not only states a cause of action but points out in his pleadings as well as in his answer to interrogatories that an actual loss and damage was sustained by reason of the conspiracy and unlawful acts of the defendants. There is, therefore, no issue of liability separate and apart from the claimed damages. It would be repetitious, therefore, to spend one day or two days hearing testimony on the question of damages so that it may be determined whether there was a liability. As in the Twin Ports Oil • Co. case, supra, the defendants will have their opportunity, at the close of the plaintiff’s case, by motion for a directed verdict, if it shall then appear that the plaintiff has established no damages as alleged by him in his complaint. It would follow that the defendants are not entitled to a trial of a separate' issue in accordance with their motion and that same should be overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218686/

SWITZER, District Judge. This matter came on for hearing before the court at Davenport, Iowa, on the motion of the defendant to strike and suppress certain interrogatories which plaintiff had duly served upon the defendant. Argument thereon was had both orally and by written briefs. Interrogatories were propounded by plaintiff, in part to be answered by the defendant, and in part, to be answered by the following: *2641. The engineer and fireman of the engine referred to in paragraph 5 of defendant’s answer. (Interrogatories 1-8.) 2. The engineer and fireman upon the switch engine standing upon the switch track on a side track a short distance from the Schmidt Road at the time of the collision between defendant’s engine and plaintiff’s automobile on or about the 10th day of March, 1949. (Interrogatories 1-6.) .3. The watchman on duty at the Schmidt Road crossing of defendant railroad at the time of the collision on March 10, 1949. (Interrogatories 1-6.) To which the defendant filed its motion to strike and to suppress the interrogatories to be answered by the engineer and fireman of the freight train, the engineer and fireman of the switch engine and by the watchman on the following three grounds: 1. Plaintiff had no right under the Federal Rules of Civil Procedure, 28 U.S.C.A., to propound interrogatories to possible witnesses in a case. 2. That said interrogatories are beyond the scope of those authorized by the Federal Rules. 3. That plaintiff has available to her the right under the Rules to take depositions of said witnesses, which right is the exclusive procedure for discovery of facts within the knowledge of. such witness. The matter was fully argued by counsel for the respective parties and the court has had the befiefit of an exhaustive and well conceived brief and argument on the part of the plaintiff, wherein plaintiff argues earnestly that the engineer and fireman on both the defendant’s freight engine and switch engine, as well as the crossing watchman, are “agents” within the meaning of Rule 33 Federal Rules of Civil Procedure, which provides in part as follows: “Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. * * * “Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as justice may require. * * ^ “The provisions of Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule.” Rule 26(b) of the Federal Rules of Civil Procedure ' provides: “Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” It seems clear as stated in Professor Moore’s Federal Practice, 1948 Cumulative Supplement, p. 114, Section 33.01, and repeated by the court in Munzer v. Swedish American Line, D.C., 35 F.Supp. 493, 497, and in Meyerson v. Southwestern Greyhound Lines, D.C.N.D.Ohio, 4 Federal Rules Service 33.22, that— “Rule 33 merely provides a method of obtaining discovery from an adverse party which may be used in lieu of taking his deposition upon written interrogatories, so that the scope of discovery under Rule *26533 may be as broad as discovery by deposition.” “Thus it would seem that Rule 33 will be utilized chiefly because it is a less expensive method of obtaining discovery from an adverse party than the taking of his deposition upon oral examination or upon written interrogatories.” Rule 33, above quoted, was amended effective March 19, 1948, the clear purpose of which was to prevent a corporate defendant or officer thereof from circumventing the plain import of the discovery mechanism by responding to any given interrogatory to the effect that he had no personal knowledge of the subject matter of the interrogatory. Munzer v. Swedish American Line; Meyerson v. Southwestern Greyhound Lines, Inc.; supra The editorial comment by Professor Moore, under Section 33.04 of the 1948 Supplement, corroborates this point of view, wherein the following appears: “This amendment would make clear that the position of the Treatise is sound, to-wit, that a corporation, like an individual, must disclose information that is available to it. * * * The amendment would require any officer to furnish such information as is available to the corporation. In addition the amendment would require any agent to furnish like information, and thus enlarges the type of .individuals who must disclose corporate information.” If therefore, as contended by the plaintiff, the respective engineer, fireman and crossing watchman could be construed by this court to be agents within the meaning of the rule above quoted, it would not be within the power of this court to strike or suppress the interrogatories in question. I must conclude, however, with due deference to the many cases bearing upon the subject cited in the plaintiff’s brief, that to hold these persons to be “agents” for the purposes now before us would be a strained and unreal interpretation of the commonly accepted definition of the word and would open the door to the perpetration of fraud and prejudice to the end that the suppression of substantial justice might result. If this court were to hold that a crossing watchman or an employee in a comparable station could be directly interrogated under Rule 33 as an “agent” of a corporate party, all sorts of evils could likely result. It is, of course, possible to find respectable authority tending to support the theory that engineers, firemen and even crossing watchmen are agents of their respective employers for certain purposes and under certain specific statutes in the respective jurisdictions. Careful analysis of these decisions however forces the conclusion that the statutory basis and the fact situations distinguish them clearly from the one confronting us here. Despite the exhaustive character of plaintiff’s brief and the court’s independent inquiry, there seems to be no authority directly deciding the point at issue here and it is a case of first impression. The better definition as applicable to the word “agent” under Rule 33 would seem to be the one pronounced in Mechem on Agency, 2d Ed., p. 21: “The characteristic of the agent is that he is a business representative. His function is to bring about, modify, affect, accept performance of, or terminate contractual obligations between his principal and third persons. To the proper performance of his functions therefore, it is absolutely essential that there shall be third persons in contemplation between whom and the principal legal obligations are to be thus created, modified or otherwise affected by the acts of the agent.” Under the law of torts it is immaterial that an employee of another be a servant or an agent, for either creates liability upon the master or principal for torts committed within the scope of their employment or authority under the doctrine of respondeat superior. The cases cited by counsel with reference to this phase of the agency question need not be set forth here, except thus to make mention of them and to observe that no clear cleavage or distinction appears to be drawn in any of them because of the funda*266mental rule relating to liability above enumerated. It is true that the Federal Rules of Civil Procedure should be and are by the courts liberally construed. Beler v. Savarona Ship Corporation, D.C., 26 F. Supp. 599; Michel v. Meier, D.C., 8 F.R.D. 464; Dipson Theatres v. Buffalo Theatres, D.C., 8 F.R.D. 313. It is equally true that by the tenor of recent decisions this liberal trend is continuing; the purpose being to promote the easy and speedy disposition of causes of action, the elimination of surprise to each party and the quest for substantial justice. Chenault v. Nebraska Farm Products, D.C., 9 F. R.D. 529. This view has been heretofore and is now adopted by this court. I must not, however, read into the statute something which is not there. It may well be that in keeping with the broad and liberal treatment given to the Rules that the term “agent” as used in Rule 33 will in the future be further expanded to include “employees.” Such interpretation cannot however be placed upon it by this court at this time. Defendant contends in paragraph 3 of its motion to suppress that the exclusive remedy available to the plaintiff by which to obtain the information sought by the interrogatories, which have in this ruling been suppressed, is by deposition. I cannot concur in this view. Rule 33, Federal Rules of Procedure; Canuso v. City of Niagara Falls, D.C., 4 F.R.D. 362; Hoffman v. Wilson Line, D.C., 7 F.R.D, 73. There is clearly a means by which the information sought by the plaintiff can be obtained short of the discovery deposition method under the Rules. The motion of the defendant should therefore be sustained, and the Clerk will enter the following order: The above entitled matter came on for hearing in open court at Davenport, Iowa, on the motion of the defendant to strike and suppress certain interrogatories propounded by the plaintiff and, the court being duly advised: It is ordered that the motion of the defendant should be, and it is hereby, sustained, and the interrogatories of the plaintiff to the persons enumerated on page 1 of this ruling, be and they are hereby suppressed and quashed. Plaintiff excepts.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218687/

RIFKIND, District Judge. Defendant Stor-Aid of Ohio moves to dismiss the complaint on the grounds that this Court lacks jurisdiction over the subject-matter and that the complaint fails to state a claim upon which relief may be granted. Rule 12(b) (1), (6), Federal Rules of Civil Procedure, 28 U.S.C.A. Defendant Stor-Aid of Ohio also moves for an order to strike paragraphs 17 and 18 of the complaint as immaterial, impertinent and scandalous matter. Rule 12(f), F.R. Civ. P. The same motions are also presented on behalf of defendant Irving Blechman if it be held that he is an indispensable party in this action. Plaintiff having cross-moved that all parties defendant other than Stor-Aid of Ohio, Inc. be dropped, Rule 21, F.R.Civ.P., I shall test the complaint in response to defendants’ motion on the theory that plaintiff’s motion has been granted. 1. While the complaint does not declare that jurisdiction is founded on diersity, it alleges the facts of citizenship and amount in controversy so as to disclose diversity jurisdiction as between plaintiff and defendant Stor-Aid of Ohio. Under such circumstances the complaint need not be dismissed but may be amended to allege diversity jurisdiction. Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815. 2. The complaint, in brief, pleads that plaintiff has been injured through the tor-tious conduct of the original defendants in circulating through the trade, in which plaintiff and defendants were engaged, a notice that plaintiff was infringing defendants’ rights in an invention of a design for which Blechman had filed an application for a design patent. This conduct of the defendants is alleged to be wrongful because the defendants knew that the representations made in the notice were false, and that the design could not have formed the basis for a valid patent, and because defendants circulated the notice with malice, with intent to deceive, and with intent to injure plaintiff. Several types of relief are demanded. *268Such a complaint states a claim upon which relief may be granted. Cf. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866; Kaplan v. Helenhart Novelty Corp., 2 Cir., 1950, 182 F.2d 311. 3. If the complaint is so conceived as hereinabove paraphrased, the gist of the tort lies in defendants’ lack of good faith in making the representations, and does not depend upon the actual validity of Blechman’s claims. That the relief demanded is greater than the complaint supports does not alter the nature of the wrong alleged. Hence, Blechman is a joint tort-feasor and no more. As such he is not an indispensable party. Wells v. Universal Pictures Co., Inc., 2 Cir., 1948, 166 F.2d 690, 692. It is, therefore, permissible to grant plaintiff’s cross motion and drop him as a party defendant. 4. Paragraphs 17 and 18 of the complaint, in effect, allege that if defendant has any patent or property rights to any invention, such rights belong to another corporation, now bankrupt, and that any claims by defendant to such rights are in fraud of creditors of such bankrupt corporation. These allegations are attacked by defendant under Rule 12(f), F.R.Civ.P. as immaterial, impertinent and scandalous. But the criticised allegations are no more than footnotes to the allegation of falsity of the representations. Were they omitted from the complaint they 'could perhaps be proved under the allegation of falsity. They serve, however, to give defendant notice of an issue which might otherwise surprise him. The allegations do not fall within the condemnation of Rule 12(f). However, the 18th paragraph alleges fraud without complying with Rule 9(b) which requires that averments of fraud shall be supported by allegations of the circumstances constituting it with particularity. The motions are therefore disposed of as follows: The plaintiff’s motion to drop all parties defendant except the Ohio corporation is granted; defendant’s motion to dismiss the complaint for want of jurisdiction is denied on condition that plaintiff amend promptly to allege diversity jurisdiction; defendant’s motion to dismiss the complaint for failure to state a claim is denied; defendant’s motion to strike paragraph 17 of the complaint is denied; defendant’s motion to strike paragraph 18 of the complaint is granted and plaintiff is given leave to amend.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218688/

DELEHANT, District Judge. Promptly after the entry of the court’s order of October 26, 1949, 9 F.R.D. 544, the plaintiff served and filed an amended complaint against the sole remaining defendant Robert Stutz, who seasonably tendered a consolidated motion (a) to dismiss, (b) to strike, and (c) for more definite statement. Oral argument has been heard on the motion, and briefs, limited to the motion to dismiss, have been submitted and considered. The motion to dismiss must be denied. Insofar as it is based upon the alleged failure of the amended complaint to state a claim on which relief can 'be granted, and with the exception that the amended complaint wa,s prepared by competent counsel, the discussion contained in the court’s ■earlier memorandum is equally applicable to the amended complaint and need not be repeated. The present motion also offers the suggestion that recovery by the plaintiff is barred by the statute of limitations. That substantive defense, especially in the present context, may much more appropriately be averred by answer, Rule 8(c), Federal Rules of Civil Procedure, 28 U.S.C.A., for not merely calendar intervals but also circumstances tolling the statute may be entitled to consideration in passing upon it. The lapse of time alone does not necessarily and invariably erect an insurmountable bar of limitations. A new ground for dismissal is now urged. It is said that the plaintiff is under fatal disability to prosecute this claim by reason of his status as an imprisoned felon. It may be granted that, in some states by their common law, in others by statute, convicts are unable to institute ordinary civil suits during their imprisonment, in consequence of a local rule that conviction results for the duration of the confinement in the convict’s so-called “civil death” and suspends his civil rights. But it seems clear that Nebraska does not adhere to that rule. No statute of the state explicitly declares or defines the suspension of civil rights contended for. And the only reported decision of its Supreme Court drawn to this court’s *270attention by counsel, or by this court known to have been rendered, argues persuasively for the contrary view. In Bosteder v. Duling, 115 Neb. 557, 564, 565, 213 N.W. 809, 812, citing the provision of Section 15, Article I of the state’s constitution that “no conviction shall work corruption of blood or forfeiture of estate,” the writer of the opinion declared that: “■Civil death, as known to the common law, is without place in our (jurisdiction) ”. Upon that premise, the court held that conviction of a felony and the ensuing imprisonment did not bar a convict from prosecuting an action for physical injuries resulting from another’s tort, 'and that "no consequences follow conviction and sentence by reason thereof, save and except such as are declared by * * * statute.” (Emphasis added.) To be sure, Bosteder v. Duling, supra, was not concerned with a convict’s right to institute a personal civil action during the period of his imprisonment. From the opinion itself, supplemented by an investigation of its record, one gathers that the conviction occurred February 9, 1920, the injury on September 14, 1923, after the full execution of the sentence to imprisonment, and the institution of the suit on April 17, 1924. The Nebraska court was, therefore, confronted with the question whether in the state a conviction on a felony charge with resultant imprisonment results in civil death, sufficiently comprehensive to bar the convict, after the execution of his sentence, from the acquisition and vindication of any personal claim against one who wrongfully injures him. And it 'answered that question negatively. But in its reasoning to that conclusion, it employed the sweeping language already emphasized, reflecting the complete rejection for the state of the doctrine of civil death. Even though that expression insofar as it applies to the period of imprisonment, may be criticised as dictum, this court, in default of contrary Nebraska deliverances, is compelled, under the practice counselled in Yoder v. Nu-Enamel, 8 Cir., 117 F.2d 488, and the cases therein cited and discussed, to accord it the status of controlling authority. And, actually, the quoted and emphasized language is not strictly obiter dictum. It reflects an appropriate and considered step in the Court’s reasoning to its conclusion upon the point which was literally before it. The rejection in Nebraska of the civil death theory becomes presently material in view of the general rule that “in jurisdictions where * * * the convict does not lose his civil rights as a result of his. conviction, it is held that he may sue” in his own name for the redress of injuries personal to him. 18 C.J.S., Convicts, § 7, p. 105, and cases there cited. Unless, therefore, a statute of the state intercepts such suits during the period of imprisonment, the right to sue must be allowed. The defendant, in this connection, points to ’and relies upon Section 25-213, R.S.Neb. 1943, a portion of the state’s statute of limitations, which provides, in part, that: “* * * if a person entitled to bring any action mentioned in this chapter * * * be, at the time the cause of action accrued, within the age of twenty-one years, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability shall be removed.” There is, it will be recognized, an implication from that language that the persons classified in the quoted section are under a temporary disability to sue. Yet, neither in that section nor elsewhere in Nebraska’s statutes, ’ is such disability positively declared. Incidentally, it may be observed that, in other sections the state’s laws provide machinery whereby suits may be instituted during minority or insanity for the assertion of claims in behalf of persons thus ■affected. So, suits for the timely protection of their interests are not inevitably postponed until the removal of disability. And as to imprisoned convicts whom neither statutes nor judicial decisions expressly bar from the courts, it may not unreasonably be supposed that Section 25-213, R.S.Neb. 1943, recognizing the practical difficulty which naturally and necessarily surrounds their intelligent and effective prosecution of civil actions, allows but does not compel, them to abide their release from imprisonment, before the institution of any such suits. At least, that construction is admis*271sible; and it seems even to be suggested by the broad language of Bosteder v. Dul-ing, supra. Saying which, this court is fully aware of the fact that the writer of the opinion in the Bosteder case was not concerned with, and did not consider or mention Section 25-213, R.S.Neb. 1943. He was, however, dealing with the public policy of the state in this general area of reasoning, and on a concrete problem not too remote from the instant one, to allow present significance to his thinking. Upon the several questions presented by the motion to dismiss, it is especially appropriate in this instance to draw the attention of counsel to the suggestion of Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, that the discovery resources of the Federal Rules of Civil Procedure be resorted to in an effort to bring the real, as distinguished from the ostensible, issues clearly before the court. This, too, is a case which obviously invites the employment of those well conceived and fruitful devices. Of the motion to strike, it need only be said that the portions of the complaint at which it is aimed are partly material to the plaintiff’s asserted claim and that the presence of the others of the challenged items in the pleading will result in no injury to the defendant. In this court substantial liberality is 'accorded to a pleader in the assertion of his claim or defense, and it is not the practice to allow a defendant to remould his plaintiff’s pleadings to suit the former’s pleasure or convenience. Matter will ordinarily be stricken only if its presence is likely to work actual harm. That motion is being denied. The defendant is undoubtedly entitled to obtain much, if not all, of the material sought in his motion for more definite statement, and probably many other items of information, but not in anticipation of the preparation of his answer. The complaint is not “so vague or ambiguous that” the defendant “cannot reasonably be required to frame a responsive pleading”. Therefore, it is not vulnerable to a motion within the contemplation of Rule 12(e), Federal Rules of Civil Procedure. The motion for more definite statement is being denied. The denial is necessarily without prejudice to the defendant’s pursuit of the information sought through pretrial dis covery procedure.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218689/

JONES, Chief Judge. This is an action to -recover money due and owing upon a contract. The original defendant, Mohr & Sons, had entered into a contract with the additional third party defendant, Carnegie-Illinois Steel Corporation for the repair and renovation of a blast furnace. Plaintiff was hired as a -sub-contractor to do part of the work and plaintiff did do work valued in excess of $100,000.00. Defendant paid all but $11,568.00 of this sum and refused to pay this balance. Plaintiff sued for this amount and defendant entered a counterclaim asserting that plaintiff, in making the repairs on the furnace, damaged a hearth right by the negligent use of explosives. Defendant under the terms of its original contract with the Steel Company furnished and installed a new hearth ring. The value of these repairs amounted to $11,588.00 and defendant asks that this sum be set off against plaintiff’s -claim. Plaintiff then received leave to bring in the St. Paul Mercury Indemnity Company as a third party defendant alleging that this new defendant by an indemnity contract was liable to plaintiff on all losses suffered by it through its own negligence. The Indemnity Company in turn received leave to bring in the Steel Company as an additional third party defendant alleging (1) that the hearth ring was defective at the time plaintiff did the work on the furnace and it was this defect that caused the damage, and (2) that the Steel Company appropriated the scrap metal from the old ring for its own purposes. Consequently, the Indemnity Company claims that the Steel 'Company had no right to receive a new ring from the original defendant and it is liable to one of the other three parties for its value and that the damages -caused must be reduced by the value of the scrap appropriated by the Steel Company. Both plaintiff and the Steel Company now ask for an order vacating the leave granted the Indemnity Company to make the Steel Company a defendant and for a further order that the Steel Company be dismissed as a defendant. The Indemnity Company opposes this motion on the ground that the Steel Company is or may be liable to one of the other three parties. However, amended Rule 14(a), Federal Rules of Civil Procedure, 28 U.S. C. A., provides that a third party defendant may be brought into the suit by a third party defendant only if the new defendant is liable for all or part of the claim made in the action against the third party defendant. Young v. Atlantic Refining Co. v. Galbreath, D. C., 9 F.R.D. 491, (Judge Jones). The only question to be decided then is whether, under any possible theory, the Steel Company is liable to the Indemnity Company. If it is not, the motion to dismiss must be sustained. The Steel 'Company is not liable to the Indemnity Company. The Indemnity Company’s liability rests solely on the question of whether the plaintiff was negligent in its performance of its contractual duties. If plaintiff was not, then the Indemnity Company is not liable and the Steel Company’s right to receive a new hearth ring becomes an immaterial issue as far as the Indemnity Company is concerned. It makes.no difference that the Steel Company might then be liable to the.original defendant, for the Rule as it now stands gives that defendant, and only that defendant, the right to bring in the party liable to him. Young case, supra. If plaintiff by its negligent -conduct breached its contract with the original de*273fendant to its injury, then the Indemnity Company must reimburse the plaintiff to the extent of the loss. But this means that the original defendant’s conduct in supplying a new ring to the Steel Company was justified. The only effect this transaction has, then, is to measure the damage suffered by the original defendant and it in no way creates a liability on the part of the Steel Company to any of the other parties in this action. Again, if it is found that plaintiff breached its contract, the Indemnity Company will be liable for the damages which resulted. In computing these damages the scrap value of the old ring must be deducted from the cost of the replacement. It may be that the original defendant, in replacing the ring, received no credit from the Steel Company for the scrap value of the old ring, but, if it did not, that loss will fall upon the original defendant and not upon the plaintiff or its insurer. This places no liability upon the Steel Company to make good the Indemnity Company’s loss. The Indemnity Company has no right under Rule 14(a) to bring the Steel Company into the lawsuit as a third party defendant, and the motion to dismiss must be sustained.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218690/

JONES, Chief Judge. This is an action to set aside and recover a preferential transfer. Defendant has retained two firms of attorneys to represent him in this action. One firm is located in Lorain, the other in Cleveland. For some reason unknown to the Court these two firms of attorneys were unable to contact each other as the final date for filing an answer approached. Each firm, therefore, acted independently of the other. The Lo'rain firm filed an answer and the Cleveland firm a motion for a more definite statement. The attorneys for the defendant, having now reached agreement, have filed a motion to withdraw the answer and to have the Court proceed with the motion for a more definite statement. The facts here present a forceful argument for the elimination of Rule 12(e) of the Rules of Civil Procedure, 28 U.S.C.A. Too often such motion is used solely for the purpose of delay, in violation of the mandate found in Rule 1. Its elimination would cause no serious inconvenience to any party. Adequate procedure has been provided *274for discovery of necessary information in Rules 26 to 37. This case is a perfect example of how the motion is continuously misused. If one firm of defendant’s attorneys could file an answer in response to the complaint it would seem to follow without fear of contradiction that the other firm of attorneys could do the same. (We must reach this conclusion or decide that the Cleveland attorneys are incapable of practicing before this Court.) The only purpose then, for filing the motion for a definite statement was delay. The Court cannot condone such conduct although it often must do so because of Rule 12(e), but it should not be forced to consider frivolous motions. It is even more inexcusable for defendant’s attorneys, when faced with the insoluble contradiction of a motion for a more definite statement and an answer to the same complaint, to move to withdraw the answer and to have the Court consider the motion for a more definite statement. A moment’s consideration of the Court’s time on the part of defendant’s attorneys should have produced a motion to withdraw the motion for a more definite statement. The Court can only conclude that this motion is also frivolous and was filed only for the purpose of delay. The motion will be denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218691/

FAKE, Chief Judge. The record in this case presents a confused situation. The complaint alleges that the defendant made rent charges in excess of the legal limitation. Defendant answering admits it and then in the same answer denies it. Defendant was called upon to make certain admissions under Federal Rules of Civil Procedure, rule 36, 28 U.S. C.A. No answers were given within time or otherwise, hence the admissions are conceded. The Government seeks treble damages and also an amount for restitution. The awarding of restitution rests in the discretion of the Court, as pointed out by Mr. Justice Murphy in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332. The court has nothing before it here upon which to predicate the amount thus to be considered save only the cold record above outlined, and the following from defendant’s answer: “Defendant states further that any excess rents as alleged in the complaint was voluntarily paid to the defendant in consideration of the defendant having made extra repairs to the apartment of Russel Burt, at his instance and request.” While it may be true that the foregoing quoted language does not amount to a legal defense, it does raise a question bearing upon the wilfulness of the defendant’s actions and the extent of his culpability. This is, in part, an equity proceeding, and in all equity suits the object of the Chancellor, sitting as a keeper of the Government’s conscience, is to “correct that wherein the law by reason of its universality is deficient.” So here I would like to know exactly what the defendant did in agreement with the tenant; how much it amounted to in money, and whether or not the defendant and the tenant actually knew they were violating the law at the time, and whether or not either of them sought legal advice before entering upon the agreement. Sitting in equity I cannot bring myself to an arbitrary conclusion awarding restitution which, as has been said, rests in the sound discretion of the court. There is nothing before me indicating the total revenues of the property, the carrying charges against it or depreciation. These factors would have a proper bearing in awarding restitution as approached from an equitable standpoint. ' The prayer for an injunction herein is so sweeping as to cover every conceivable violation of the Housing and Rent Act of 1947, 50 U.S.C.A. Appendix, § 1881 et seq., extending from excessive rents to failure to supply heat, light, gas, hot water and janitor services. The only factor here, bearing on all these things, is constructive admission of a rent overcharge because of a failure to answer a demand for admissions. In Woods, Expediter v. Folis, 180 F. 2d 4, in this Circuit, Judge Goodrich points out the impropriety of granting such sweeping relief in the absence of proof. Surely this court must have more proof than appears on this record before granting any equitable relief whatever. The motion for a mandatory judgment is denied and the case will be set down for trial to the end that all pertinent facts be brought to the attention of the Court. In the light thereof the question of treble damages may also be considered.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218692/

JONES, Chief Judge. These are actions for damages for personal injuries. The same question is presented in both actions by defendants’ motions to dismiss the complaints for lack of jurisdiction of the persons of the individual defendants, to dismiss for insufficiency of service of process and to quash the service of process. The Keeshin Company is in receivership and two individual trustees have been appointed by a Federal Court in Illinois. The trustees are residents of Illinois and they have not been personally served in either case. Service in both cases was made on Keeshin on November 16, 1949, by leaving a copy of the summons with its statutory agent, D: M. Donley. These summonses were also directed to the two trustees but the return states that service was made on Donley as agent of Keeshin only. Two letters written by the Secretary of State of Ohio, C. F. Sweeney, have been introduced. One, dated November 22, 1949, states that Donley on November 9, 1949, was appointed statutory agent in accordance with Ohio law for the service of summons on the trustees. The other dated December 15, 1949, states that the State office has no record of such appointment. Since the facts are identical, the following discussion will apply equally to both actions. Proper service was made upon the trustees. Rule 4(d) (1), Federal Rules of Civil Procedure, 28 U.S.C.A., provides for service upon an agent authorized by appointment to receive service of process. “By appointment” means an actual appointment by the defendant, and, if such has been made, service upon the agent gives the court jurisdiction. It is necessary, how*277ever, to prove that the agency existed. Statler v. Babcock, D.C., 7 F.R.D. 57. Proof of this agency is admittedly sketchy but there is at least some evidence that at the time the agent of Keeshin was served that that agent was also authorized to receive service of process for the trustees. I think it fair to conclude that the agency was revoked at some time but there is no showing by the defendants which would indicate that Donley was not the trustees’ agent when service was made. It also may be true that Donley was appointed agent under a mistaken belief that Ohio law required such appointment. Whether or not it does is unimportant for the fact remains that an authorized agent was served with process. Secondly, the case of O’Leary v. Loftin, D.C., 3 F.R.D. 36, furnishes support for the rule that trustees of a corporation undergoing reorganization can be served by service on an agent of the corporation in districts where the corporation is doing business. Such a result would seem just. If, as defendants contend, the trustees are necessary parties and can be made defendants only by personal service, a plaintiff regardless of where he resided in most cases would have to bring his action against the corporation in a district where the trustees resided. This would he so in spite of the fact that the defendant corporation which is the only “person” liable in the action ordinarily could be sued in any district where it does business. 28 U.S.C.A. § 1391(c). Plaintiff also would be prevented from suing in his home district even if the corporation did business there. The only way to prevent such results when a corporation is undergoing reorganization is to hold that the trustees can be served by leaving a copy of the summons which is addressed to them with any statutory agent of the corporation. Defendant also makes a point of the failure of the Marshal to mention iii his return of service that service was made on Donley as agent for the trustees. Under cither of the views expressed above, proper service was made on the trustees and the return is defective insofar as it does not show service on the trustees. Failure of proof of service does not affect the validity of the service, Peoples v. Ramspacher, D.C., 29 F.Supp. 632, and in this action valid service has been made. The motions in both actions must he overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218693/

McGOHEY, District Judge. This is a motion by defendant for an order directing the issuance of letters roga-tory to the Appropriate Judicial Authority in Teheran, Iran, for the examination of a witness on written interrogatories and cross-interrogatories. Defendant’s attorney avers that the Kingdom of Iran will not permit examination by commission, and this is not contraverted by the plaintiffs. Plaintiffs’ attorney objects to interrogatories and suggests the issuance of an open commission providing that defendant pay plaintiffs’ expenses and a reasonable counsel fee. It is claimed that the witness is biased against the plaintiffs. If this be so, there is no reason why it cannot be disclosed by appropriate interrogatories. Justice and the .ocessities of this case require the issuance of letters rogatory, Federal Rules of Civil Procedure, Rule 28 (b), 28 U.S.C.A., but the court is not convinced that the situation is so unusual as to call for oral interrogatories. See De Vil-leneuve v. Morning Journal Ass’n, S.D.N.Y., 206 F. 70. The motion is granted and the trial will be stayed until the due return of the letters and the depositions. The order to be submitted will provide for the filing and service of the direct interrogatories within ten days after the making of the order herein and that cross-interrogatories shall be filed and served within ten days from the service of the direct interrogatories. Objections to interrogatories and cross-interrogatories shall be presented to the court on two days’ notice and within ten days after the filing and service of the matter objected to.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218694/

McGOHEY, District Judge. Defendant moves under Federal Rules of Civil Procedure, Rule 37(d), 28 U.S.C.A., to dismiss the complaint for failure of plaintiff Gholam H. Kiachif to appear for deposition pursuant to notices served on his attorney January 21, 1949 and February 28, 1950. It appears that Gholam H. Kiachif, who is a resident of Iran, was in this country in 1948 but, as the result of a heart attack, *279was in a hospital continuously from the day of his arrival until his departure, which was prior to the service of the notice of January 21, 1949; and that he was in Iran at the time of the service of the second notice. His attorney, upon receipt of the notice of February 28, 1950, informed the defendant’s attorney that ill health and the great distance involved precluded appearance of this plaintiff. There is clearly no showing that the plaintiff’s failure to appear was wilful. Indeed, he was out of the country when the notice was served on his attorney. The defendant urges quite strongly that it must have this plaintiff’s testimony in order to prepare its defense. And plaintiffs’ attorney says that he, too, would like to have it; and that he will gladly “join in an application for the examination of Gholam H. Kiachif by means of letters rogatory.” If the parties agree, this may be considered as a motion under Rule 28(b) for an order directing issuance of letters rogatory to the appropriate judicial authority in Teheran for examination of Gholam H. Kiachif, and they may agree on an appropriate order to he submitted. The defendant, by another motion, decided herewith, 10 F.R.D. 277, seeks letters rogatory to examine a witness in Teheran. That motion is being granted and so both examinations could proceed, if not simultaneously, then in quick succession. This would seem to afford both parties what they want and save time also. The motion to dismiss the complaint, however, is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218922/

McVICAR, District Judge. Rev. St. § 5299 (12 U. S. C. § 592 [12 USCA § 592]), provides: “Any officer, director, * * * of any Federal reserve bank, or of any member bank ® * * who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of such * * * member bank * * * -with intent in any ease to injure or defraud such * '* * member bank, or any other company, body politic or corporate, or any individual person * * * shall be deemed guilty of a misdemeanor.” The defendant was indicted in this ease on nineteen counts, the first seventeen of which charged him, while a director and president of the Ligonier National Bank, a member bank, with the embezzlement of moneys, funds, and credits of said bank. The last two counts charged defendant with the willful misapplication of moneys, funds, and credits of said bank. Count 19 was nol prossed. The jury found the defendant guilty on counts 1, 7, 8, 9, 19, 14, 15, 16, and 17 (all of which were embezzlement counts), and not guilty on counts 2, 3, 4, 5, 6, 11, 12, 13, and 18. This ease is now before us on defendant’s motion for a new trial. He alleges in support thereof that the court erred in receiving evidence of the government to support the counts upon which he was eonrieted to the effect that the moneys, funds, and credits embezzled were bonds of customers of said bank deposited with the bank for safe-keeping (upon which the bank clipped the coupons, collected the interest, and credited the depositors’ accounts with the amount thereof), for the reason that the counts upon which he *374was convicted charged him with the embezzlement of moneys, funds, and credits, which consisted of bonds of said bank, and did not charge him with the embezzlement of the bonds of customers deposited for safe-keeping, and therefore it followed that there could not be a conviction on such evidence. Defendant has not, by motion io quash, demurrer, or by motion in arrest of judgment, or otherwise, questioned the sufficiency of the indictment. Its sufficiency, therefore, should be assumed. Dunn v. U. S., 284 U. S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 A. L. R. 161. In Hagner v. U. S., 285 U. S. 427, 433, 52 S. Ct. 417, 420, 76 L. Ed. 861, it is stated: “Upon a proceeding after verdict at least, no prejudice being shown, it is enough that the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment.” At the trial counsel for defendant contended that Rev. St. § 5209 (12 USCA § 592), did not cover embezzlement of securities deposited with a member bank for safe-keeping. Counsel now admits that the act does cover such transactions. That the act covers such transactions seems to logically follow from the terms of the act, wherein it states that: “Any officer, director * * * who embezzles * * * the moneys, funds, or credits of such * * * bank, with intent “ * * to injure or defraud such * * * member bank, or any other company, body politic or corporate, or any individual person * * * shall be deemed guilty,” etc. This conclusion is also supported by the authorities. First National Bank v. Graham, 100 U. S. 699, 25 L. Ed. 750; U. S. v. Jenks et al. (D. C.) 264 F. 697; U. S. v. U. S. Brokerage & Trading Co. (D. C.) 262 F. 459; Spencer v. U. S., 169 F. 562 (8 C. C. A.) and Bishop v. U. S., 16 F.(2d) 406 (8 C. C. A.). Under the law defendant is presumed to have known, when he was charged with the embezzlement of moneys, funds, and credits of the Ligonier National Bank consisting of designated bonds, that such bonds might consist of bonds held by the bank as bailee, or in which the bank was the absolute owner thereof. The indictment gave him such notice. He had actual notice. His counsel admitted that they were advised by the district attorney some time prior to the trial that the bonds with which defendant was charged with embezzlement were bonds deposited with the bank for safe-keeping by customers. The record discloses that this court, on petition of defendant, made an order directing that he be permitted to examine the books and records of said bank for the purpose of preparing his defense. If further information was desired by defendant as to the ownership of the bonds in order to prepare his defense, he was entitled to a bill of particulars which could have been obtained by making proper application therefor Case v. U. S., 6 F.(2d) 530 (9 C. C. A.); Leverkuhn v. U. S., 297 F. 590 (5 C. C. A.) ; Bartell v. U. S., 227 U. S. 427, 33 S. Ct. 383, 57 L. Ed. 583, and Durland v. U. S., 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709. The indictment is sufficient to protect the defendant against another prosecution for the same offense in the federal courts. The Fifth Amendment does not prevent separate prosecutions for the same act by separate sovereignties. U. S. v. Lanza, 260 U. S. 377, 382, 43 S. Ct. 141, 67 L. Ed. 314. Accused has the right to resort to parol testimony to establish the subject-matter of a former conviction. Bartell v. U. S., 227 U. S. 427, 33 S. Ct. 383, 57 L. Ed. 583. I conclude on the point under consideration that the term “moneys, funds or credits,” as employed in Rev. St. § 5209 (12 USCA § 592), is broad enough to cover bonds' deposited by customers of a member bank for safe-keeping; that the indictment in this ease is broad enough to cover embezzlement by defendant of bonds deposited by customers for safe-keeping; that the proof conforms to the allegations; that the indictment and conviction is sufficient to protect the defendant from another federal prosecution for the same offenses; and that defendant was not prejudiced because the indictment did not name the owners of the bonds who deposited them with the bank for safe-keeping. Counsel for defendant, in their oral and written arguments, contended briefly that there was an inconsistency in the jury’s verdict because the jury found defendant guilty of nine of the seventeen embezzlement counts, and found him not guilty of eight of such counts. We have not been futnished with a transcript of the evidence. The evidence is lengthy. The ease was on trial about two weeks. I am satisfied, however, that there was no inconsistency. Each count was a separate offense. It charged the defendant with the embezzlement of different bonds deposited by different owners from that charged in the other counts. Necessarily the evidence differed as to each count. At any rate, inconsistency in verdict is not of itself a reason for the granting of a new trial. Dunn v. U. S., 284 U. S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356, 80 A. L. R. 161. *375This case was fairly and capably presented by counsel for the government and defendant. I find no error or reason for disturbing the verdict of the jury. The motion for a new trial is refused. And now April 21, 1933, comes George Clifford Frank, defendant, by his attorneys Crowell & Whitehead, and excepts to the judgment or decree of the court refusing the motion for a new trial, and at his request a bill is sealed. Note: — Defendant was sentenced to imprisonment in the federal penitentiary at Lewisburg, Pa., for a term of three years. No appeal was taken, and he is now serving sentence.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218925/

HAYES, District Judge. On September 23, 1927, the defendant executed a fidelity bond in the penal sum of $25,000, to indemnify the People’s Bank of Sanford, N. C., against loss caused by any act of fraud, embezzlement, wrongful abstraction, or misapplication of the bank’s assets by H. C. Newbold, its cashier, and the bond was continued in force until the discharge of the cashier on April 7, 1930. On April 5, 1930, the cashier' met the officials of the bank to prepare a financial statement to the state banking authorities, and confessed to the officers that he had taken *380$44,480 of the bank’s.property, that no one else had anything to do with it, and that he had placed that day his note in the bank in a like sum to cover his shortage. The loss necessitated the closing of the bank by the directors on April 7. They also indicted the cashier, on that date, for embezzlement. He was tried, convicted, and sent to the penitentiary. The bank brought a civil action against him to recover $44,480 damages sustained by his embezzlement of the bank’s assets, alleged to have occurred on or about April 5, 1930, and at September term, 1930, on issues joined, jury returned a verdict in accordance with the complaint, and judgment was accordingly entered for the bank. In May of the same year the directors and stockholders executed their note to the bank to restore the cashier’s shortage, and the bond in suit was treated as additional collateral to the note. Thereupon the Corporation Commission entered an order permitting the bank to reopen and resume business. Notice of the default of the cashier was given by the Corporation Commission and the bank, and due proof of loss was filed within the time and manner required by the bond, and the action commenced within twelve months from discovery of the loss. Defendant refused payment, and the bank brought this action in the state court to recover the penalty of the bond. Defendant moved it to the federal court on the diversity of citizenship, and defendant had the case docketed on the equity docket. It denied liability, demanded an accounting, and asked for rescission and cancellation of the bond on the ground that the bank knew of a dishonest act of the cashier six years prior to the execution of the bond, which it wrongfully withheld from the surety. On the report of the master, the plaintiff moved- to docket the ease on the law docket, and demanded a jury trial, but defendant objected on the ground that an accounting and the prayer for rescission gave a court of equity jurisdiction, and the plaintiff, by not moving until the report of the master, had waived his rights. The cause was retained on the equity docket. The defendant insisted that it could not be liable on the bond, as the bank had been paid the shortage by the stockholders and difeetors; that the bank had no legal capacity to sue, and that the action could be maintained only by the state banking authorities; that the state commissioner could not be mad.e a party to the pending suit, and, if he was made a party, the ease would be dismissed as to the bank, and that the commissioner could not recover because he had not brought the suit or been made a party within twelve months of the discovery of the loss. "When the bank closed, its affairs were placed in the possession of the Corporation Commission for liquidation, but during May the commission reopened the bank and permitted it to resume business upon the execution of a note by the directors and stockholders to pay the cashier’s shortage. The bank was reopened and resumed business for some time, during which it brought this action on the bond, but its inability to collect the bond promptly, and to realize on its other assets, forced it back into the hands of Gurney P. Hood, state banking commissioner, who has been made a party and adopted the status and pleadings of the bank. The defendant is not entitled to rescind and have canceled the fidelity bond. No application was required. The cashier was required to furnish bond. He was the principal stockholder and managed the corporation which represented the defendant and wrote the bond. It was delivered by him to the bank. It contained this clause: “No preliminary application by the employer for this bond is necessary. This contract incorporates the entire agreement between the surety and employer and no statement of fact in any application or other outside writing which might be claimed to be the inducement for making this bond shall be allowed in any way to affect its validity.” The contract is a printed form prepared by the surety for hire. The construction of the contract is governed by the same rules applicable to insurance companies, to wit, most strongly against the insurer in case of ambiguity. American Surety Co. v. Pauly, 170 U. S. 136, 18 S. Ct. 552, 42 L. Ed. 977. Since the insured was not asked for a statement, the bond should not be invalidated, if at all, in the absence of allegation and proof that insured intentionally or fraudulently concealed material facts. General Reinsurance Corporation v. Southern Surety Co. (C. C. A.) 27 F.(2d) 265. The evidence in the record fails to prove it. A loan of $6,000 was made in 1921 by the cashier to his brother H. L. Newbold and indorsed by H. C. Newbold. H. L. Newbold was probably an accommodation maker. The directors later approved it, and repeatedly approved the renewals. It was reduced until the balance was $4,000, when H. C. Newbold took it out of the bank immediately before his discharge, and the note has been fully paid *381since this action was commenced. The transaction at the inception was at least a technical violation of the banking law of the state, but it does not appear that he intended to injure the bank in any way. Evidently the officers of the bank believed the note was good; that his intentions were free from wrong, for they retained him and trusted him without question from that time until April 5,1930. The defendant would have the worst construction put on that transaction and conclude therefrom that the cashier was dishonest and unworthy of confidence or trust; that the bank had actual knowledge thereof, and fraudulently withheld the information from the innocent surety, which amounted to a fraud on it, warranting the court in canceling the bond. It is unreasonable to conclude that the bank would have retained him as cashier from 1921 to 1927 and clothed him with the full control of the bank if it thought he was unworthy of trust. The facts not only do not raise the presumption that the bank had such knowledge and belief, but conclusively create the contrary presumption. Next, the court is urged to presume that the bank, when not asked for a statement, kept silent with intent to defraud. Then the court is asked to presume the bond would not have been executed if the surety had known this fact. There is no fact upon which to base any presumption except the facts and circumstances surrounding the initial loan in 1921. The other presumptions would arise on presumptions, not facts. The rule is well established that a natural and logical presumption may, and often does, arise upon proof of a given state of facts, but another presumption cannot arise from the first presumption in the absence of evidence to support it. General Reinsurance Corporation v. Southern Surety Co., 27 F.(2d) 265, 272 (C. C. A. 8). The rule is fully stated in United States v. Ross, 92 U. S. 281, 283, 284, 23 L. Ed. 707: “No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. * * The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. * * * A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption.” The defendant relies on National Bank v. Fidelity & Casualty Co., 89 F. 819 (C. C. A. 4). This case has no application to the facts here. The facts in the instant case are governed by Citizens’ Trust & Guaranty Co. v. Globe & Rutgers Fire Insurance Co., 229 F. 326, 330, Ann. Cas. 1917C, 416 (C. C. A. 4), and Magee v. Manhattan Life Insurance Co., 92 U. S. 93, 23 L. Ed. 699. By its contract the surety dispensed with application, and in its own language made the bond the entire contract between them, and expressly provided that no written statement of fact should affect the validity of the bond. The bank, under the conditions here, was not asked for information concerning the cashier, and its failure to volunteer a statement cannot be the basis, under all the facts disclosed here, for the cancellation of the bond. The defendant objects to the competency of the evidence of the vice president, who testified that the cashier admitted to him, while in the performance of his duties, that he had taken the assets of the bank and substituted his note to cover the shortage. It is well settled that an admission by the principal in an employee’s bond in respect of the performance of the duties guaranteed, if made before termination of employment and while engaged in their discharge, is competent against the surety. The precise question was presented in Guarantee Co. of North America v. Phenix Insurance Co., 124 F. 170 (C. C. A. 8), and numerous authorities are cited in support of the rule. United States v. American Surety Co., 56 F.(2d) 734 (C. C. A. 2). This circuit approves the rule. Fidelity & Deposit Co. v. United States (C. C. A.) 55 F.(2d) 100. It was approved by the Supreme Court in United States v. Gaussen, 86 U. S. (19 Wall.) 198, 213, 22 L. Ed. 41. Objection was made by the defendant to the introduction of the judgment. A judgment against the principal is, at least, prima facie a breach of the bond, and, unexplained, is sufficient evidence of the breach of condition. United States v. American Surety Co. (C. C. A.) 56 F.(2d) 734, 735; Equitable Surety Co. v. Board of Commissioners, 256 F. 773 (C. C. A. 5); Moses v. United States, 166 U. S. 571, 600, 17 S. Ct. 682, 41 L. Ed. 1119. Again the defendant insists that the amendment to the original complaint and attaching the second audit to the amendment *382restricted the plaintiff to proof of facts only alleged in the amendment. But this contention is contrary to the plain language of the amendment. It was filed as a part of, and supplemental and in addition to, the proof of loss and allegations of the original complaint. The bank supplied the surety in minutest detail all available information it had or could obtain as to the items embezzled and misapplied. It called attention to the placing of the cashier’s notes and the depletion of its assets. It furnished the surety with every audit made of the books and records of the bank. The fraudulent acts of the cashier in falsifying the records of the bank in his handwriting in such a skillful way as to deceive the officers of the bank and the state bank examiner made it impossible for the bank to be more explicit as to the items. A bank with $25,000 capital wakes up when its cashier admits he has made away with $44,480 of its assets. There is abundant evidence to show that practically all of this occurred within the last few months of employment. Defendant moved for a bill of particulars, but never brought the motion to the attention of the court. No order was entered thereon, and the amendment to the complaint is not a bill of particulars. We are not unmindful that mere proof of shortage is not sufficient to justify a recovery on a fidelity bond such as this. The shortage might arise from causes other than acts of fraud, embezzlement, misapplication, or wrongful abstraction. Here we have uneontradieted proof that the cashier took the assets constituting the shortage, executed his note in payment therefor, judgment was recovered against him for the amount, and he was convicted for embezzlement of the funds and served his term in the penitentiary. The defendant, instead of checking the records and producing proof to show that, when the cashier placed his serial notes in the bank within a few months before it closed, true assets of the bank did not disappear to offset these items, sought to show what its auditor concluded was the condition of the bank in 1926 and prior to the execution of the bond in 19-27. The evidence was plenary to show the bank lost more than $25,-000 by the cashier’s acts of fraud, embezzlement, .wrongful abstraction, and misapplication of the bank’s assets during the term of the bond. The bond was intended to cover losses such as these, and it is hard to conceive how the facts could be made stronger to entitle the plaintiff to relief. It is urged that the North Carolina Corporation Commission alone had the legal capacity to sue on this bond after the bank closed in 1930. The commission expressly ordered the bank to reopen and to resume banking business. It was made solvent when the note of the directors and stockholders was placed in the bank to make up the cashier’s shortage. The bank, then solvent; and authorized to carry on banking business, had authority to sue the surety on the cashier’s bond for losses it sustained by the embezzlement of its cashier, as the statute of the state not only authorizes, but requires, all actions prosecuted by the real party in interest. It was the bank that sustained the loss. The recovery was for its benefit. The ultimate beneficiaries were its creditors and stockholders. The action was begun in the state court, and C. S. § 446, requires every action to be prosecuted by the real party in interest. Equity Rule 37 (28 USCA § 723) also requires it. Code 1931, § 218 (b), subsec. 9, confers the right on the state banking authorities to permit closed banks to resume business on such terms and conditions as they may approve. This court will not indulge the presumption that the commission acted without authority, or illegally, in permitting the bank to resume business. Having been made solvent by the secured note, the presumption should be indulged that the bank complied with ah prerequisites before resuming operation. At any rate, the bank had sufficient interest in this bond to permit it to prosecute the action against the defendant. It is urged that the bank was reimbursed by the directors and stockholders for the shortage of the cashier, and that it therefore sustained no loss and could not maintain the action. Under the law of this state, in case of insolvency, the stockholders in banks are liable to an assessment in a sum equal to the par value of their stock. Where, as here, stockholders and directors gave their note to the bank for the amount of the shortage to prevent liquidation, and the bank neither surrenders nor assigns the fidelity bond of the defaulting cashier, the bank is the real party in interest and entitled to maintain the action. 25 C. J. 1110 and 1112. The bank never parted with the possession of the bond. It was retained as collateral to the note. The stockholders and directors have interposed no objection to the bank’s action. Should it collect the bond, the note would be credited therewith and the liability of the stockholders correspondingly reduced. If the bank lost $25,000 through embezzlement and misappli*383cation of the cashier, the restoration of these assets until the bank collects on the bond should not be a defense for the surety. The bond is in evidence and will be canceled upon payment. No injury can result to the surety. The commissioner of banks is clothed with the power to liquidate the assets of an insolvent bank. Code 1931, § 221 (p), gives him, in addition to express and enumerated powers, “such other powers and rights as may be necessary or incident to the proper discharge of his duties.” Code 1931, § 221 (q), provides: “He is émpowered to sue and prosecute or defend in any action or proceeding in any courts of this State or any other state and in any court of the United States for the enforcement or protection of any right or pursuit of any remedy necessary or proper in connection with the subjects committed to him for administration or in connection with any bank or the rights, liabilities, property or assets thereof, under his supervision.” Code 1931, § 218 (e), subsec. 3, provides: “And the commissioner of banks shall be submitted in place of the bank in all actions in the State or Federal Courts, pending at the time of the exercise of such authority.” Code 1931, § 218 (e), subsec. 7, among other things, provides: “The commissioner of banks, or the duly appointed agent, shall collect all debts due and claims belonging to such bank, by suit, if necessary; and, by motion in the pending action.” In 1931, ch. 243, the commissioner of banks was substituted for Corporation Commission. The Supreme Court in Taylor v. Everett, 188 N. C. 247, 124 S. E. 316, held, in construing the statutes relating to the powers of the Corporation Commission, that the commission may, without taking possession of the business and property of a state bank, where imminent danger of insolvency exists, direct upon what conditions its officers may continue in its management and control. The aetion of the Corporation Commission in 1930 was in accord with this decision. It is to he observed that the bank as a legal entity is not dissolved and does not cease to exist, but its powers are exercised by the commissioner (formerly the Corporation Commission) for the purpose of converting the assets, paying its liabilities, and distributing the surplus, if any, among the stockholders. Where a bank is rendered insolvent by the embezzlement of its cashier who is under a fidelity bond, and its directors and stockholders execute a note for the shortage, the fidelity bond being still in the bank’s possession as collateral to the note, and thereby restore it to solvency, and the bank, being authorized by the Corporation Commission to resume business, brings an aetion in the state court to recover on the fidelity bond, and thereafter the assets of the bank are taken over by the commissioner of banks, but before the final termination of the aetion on the bond, upon the commissioner being made a party to the aetion, in no sense is a new cause of action created, but, in reality, the same cause continues. C. S. § 461, provides: “No action abates by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of aetion survives, or continues.” It therefore follows that the statute of limitation and the provision in the bond requiring suit to be brought within twelve months from the discovery of loss has no application here, for the suit, in the name of the bank, was instituted within that time, and the commissioner is merely a statutory liquidating agent of the bank, authorized to become a party in any pending aetion of the bank, and to prosecute it to finality. 37 C. J. 1064, 1065, and 1067. It would be a needless waste of time and expense if this action had to be dismissed and traversed again by the liquidating agent of the bank. National Electric Signaling Co. v. Telefunken Wireless Telegraph Co., 208 F. 679-697 (C. C. A. 3) ; Hines v. Smith (C. C. A.) 270 F. 132.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218926/

LETTS, District Judge. This matter is before the court on a motion to dismiss the bill of complaint. The motion is based upon the contention that the same subject-matter and issues involved in this bill are embraced in an action now pending before the probate court of Barnstable county, Mass. The action involves more than $3,000, and all of the plaintiffs are residents of states other than Massachusetts wherein the defendants reside. In 1915 one Elizabeth G. Parke of Ealmouth, Mass., died leaving a will wherein appeared the following provision: “I give, devise and bequeath as follows: * * * To the Oak Grove Cemetery the sum of four thousand (4000) dollars with which to build a small chapel of-concrete which will hold at least fifty people and with dressing or toilet rooms, said chapel to be located near the Parke lot. * * * All the rest and residue and remainder of my estate, both real and personal, wherever situated, of which I may die seized or possessed, I bequeath, to be equally divided between the relatives of my late husband.” This will was duly admitted to probate, and in 1916 the executor paid to the Oak Grove Cemetery Association, which was and is a voluntary association of which the defendants are trustees, the sum of $3,800, having deducted $200 from the amount of the legacy in payment of an inheritance tax. After receiving this fund, the trustees of the cemetery association continued to retain it, but took no steps to apply the same for the construction of a chapel, as provided in the decedent’s will. In August, 1930, the trustees filed a petition in the probate court for Barnstable county, Mass., asking permission to receive and add to the original fund bequeathed by Elizabeth G. Parke, and that they be authorized to use the legacy and accruals thereon, together with other contributions, for the purpose of building a small chapel of stone or granite. Under date of March 15,1932, the defendants filed in said probate court a second or substitute petition in which, among other things, they alleged “that no chapel of the kind specified in said will could possibly be constructed for said sum of $3,800, but that in order to construct such a chapel a much larger sum would be required.” They further alleged that additional voluntary contributions had been received by the trustees, and that in their opinion these contributions, together with the legacy and accruals thereon, would be sufficient to carry out the construction specified in said will. The trustees ask in the petition for authority to so proceed. To this petition all of the plaintiffs in the present action made answer, denying the right of the trustees to make use of the fund in their possession on the ground that the legacy had lapsed and should be paid over to the residuary legatees under the will of said Elizabeth G. Parke. The action thus instituted in the probate court for Barnstable county is still pending. An examination of the petition and answer filed thereto leaves no room to doubt that it involves the same subject-matter as that of the bill in equity now *385before this court, which was filed September 8, 1932. The only question involved in both actions is whether the legacy to the cemetery association lapsed as a result of the failure of the trustees over a period of sixteen years to apply it to the purpose designated in the will, together with the acknowledgment of the trustees in the petition filed that no chapel of the character outlined in the will could be constructed from the fund left by Mrs. Parke. The plaintiffs, both in their answer to the petition in the probate court and in the present bill, ask for a determination that the legacy has lapsed and that it be now distributed to them as residuary beneficiaries under the will. It seems clear that the probate court for Barnstable county, Mass., has jurisdiction to determine and pass upon the issue involved. The plaintiffs, by their answer and appearance, have submitted, although nonresidents, to that jurisdiction. Massachusetts General Laws, c. 215, § 3, provides: “Probate courts shall have jurisdiction of probate of wills * * * of all matters relative to the estates of such deceased persons. * * * ” Chapter 215, § 6, provides: “Probate courts shall have jurisdiction in equity, concurrent with the supreme judicial and superi- or courts, of all cases and matters relative to the administration of the estates of deceased persons, to wills, including questions arising under sections twenty and twenty-one of chapter one hundred and ninety-one, or to trusts created by will or other written instrument, of all matters relative to guardianship and conservatorship and of all other matters of which they now have or may hereafter be given jurisdiction. Such jurisdiction may be exercised upon petition according to the usual course of procedure in probate courts.” Chapter 197, § 19, provides: “A legatee may recover his legacy and enforce all rights in respect to the same by proceedings in equity in the probate court in which the will was proved. Nothing in this chapter shall be construed to limit the time within which such proceedings may be brought. No action at law shall be brought against the estate of the testator for such recovery.” [S] Where, as here, a state tribunal has jurisdiction to pass upon an issue, and all parties concerned, even though residents of other states, have voluntarily appeared and submitted to that jurisdiction, I know of no authority, and none has been cited, which would justify this court in taking jurisdiction of the same subject-matter and same parties. In fact, the contrary, in eases of concurrent or conflicting jurisdiction, appears to be so well settled as to be almost a maxim. McCauley et al. v. McCauley (D. C.) 202 F. 280; In re Johnson, 167 U. S. 120, 125. The bill of complaint is dismissed, with costs.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218695/

FAKE, Chief Judge. This is a motion for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. The motion is a written motion and reads as follows: “ * * * attorney for plaintiff, * * * will apply * * * for the entry of a judgment for the plaintiff for the relief demanded in the complaint, on the basis of the complaint, plaintiff’s further statement, affidavit with exhibits hereto, and defendants’ answer, upon the ground that no material issue of fact is raised by said pleadings and no legal defense is alleged in the answer, the defenses alleged therein being sham.” This court is wholly without power to read an affidavit or statement against a well-pleaded allegation in an answer for the purpose of ascertaining the truth on a motion such as this. See Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 169 F.2d 580; Reynolds Metals Co. v. Metals Disintegrating Co., D.C., 8 F.R.D. 349, affirmed 3 Cir., 176 F.2d 90. The motion is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218696/

DELEHANT, District Judge. The court has carefully examined the exhaustive and excellent briefs of counsel submitted upon the defendant’s consolidated motion. It has concluded that, solely upon procedural considerations, the motion must be denied and overruled. In the light of that ruling, the action will remain for the making up of the issues and disposition on its merits. Accordingly, it is inappropriate that the explanation of the ruling discuss at *281length the points and authorities responsive chiefly to the ultimate merits of the action set out in the briefs. They remain for resolution in the final submission of the case and ought not to be tentatively passed upon now. Of the three subdivisions of part I of the motion, each of which, in relation to a separate phase of the prayer of the complaint, demands, under Rule 10 (b), Federal Rules of Civil Procedure, 28 U.S.C.A., a separate statement of the facts on which the plaintiff relies for the allowance of that phase of the prayer, it may be observed, first, that they seem to treat the complaint as if it were laid in several separate and distinct counts. That, as the court is persuaded, is not true. It reflects a single claim, only one count. The separate identification and numbering, in the prayer, of the particulars in which the plaintiff conceives it may be entitled to relief does not nullify the unity of the complaint’s claim. And of the demand for “facts” it may also be said that the court considers the plaintiff to have pleaded the facts as it understands them to exist, at least so far as is required under the rules of pleading administrable in this court. Part II of the motion, also in three subdivisions, moves, contingent on, and to the extent of, the denial of Parí I, for the dismissal of the parts of the complaint relating to the three separate phases of its prayer, (recognizing that there are four features of the prayer, of which certain items are in the alternative, although whether in the manner of their regrouping in the motion need not be affirmed). Exceptionally competent arguments have been made by counsel upon the several aspects of this part of the motion. But, especially in actions equitable in their nature, motions to dismiss either portions of a complaint’s prayer or portions of the complaint to which individual aspects of its prayer are responsive should rarely, if ever, be granted. That is not an appropriate manner of making disposition of a tendered issue. The prayer does not control the vitality of a complaint or even the course of a court’s decree, if upon trial, the plaintiff prevails. And in the present federal practice the chiseling away of individual issues and the consequent denuding of the entire complaint is not favored. Notice is taken of the fact that in their total reach the several subdivisions of Part II of the motion seek the dismissal of the entire complaint. Considered as making such a request, that part of the motion is not well taken, because the court can not say at this time that under no factual situation which might be 'established within the framework of the complaint, liberally construed, could any relief be granted the plaintiff. And that test obtains in the decision upon a motion to dismiss for failure to state a claim supporting allowable relief. Cool v. International Shoe Co., 8 Cir., 142 F.2d 318; Publicity Building Realty Corp. v. Hannegan, 8 Cir., 139 F.2d 583; United States v. Arkansas Power & Light Co., 8 Cir., 165 F.2d 354; Leimer v. State Mutual Assurance Co., 8 Cir., 108 F.2d 302; Musteen v. Johnson, 8 Cir., 133 F.2d 106; Sparks v. England, 8 Cir., 113 F.2d 579; and Louisiana Farmers Protective Union v. Great Atlantic & Pacific Tea Co., 8 Cir., 131 F.2d 419. In certain aspects of Part II, in the alternatively tendered Part III, and in Part V of the consolidated motion, the contention is urged that in respect of the several portions of the complaint’s prayer at which they are respectively aimed, this court is without jurisdiction, because of a primary jurisdiction over the matter in issue said to be vested in the Federal Power Commission. And Part III of the motion asks the staying of proceedings upon those features of possible relief pending their submission to and determination by the commission; and Part V asks leave for the defendant’s filing of a complaint before the commission to obtain a determination of the validity of the provisions of the rate schedule set out in paragraph 5 of the complaint. If, upon the submission of the case, it is determined that, by reason of the commissioner’s primary jurisdiction, the court is without present authority to pass upon any matter requisite to the allowance of complete relief, an appropriate order may be made upon the subj ect. The challenge now made to *282its jurisdiction clearly does not validly lie against the whole action. Therefore, the court will not preliminarily disclaim jurisdiction of any phase of it or facilitate its partial submission to the commission while retaining and seasonably acting on the rest. Finally, in Part IV the defendant seeks a clarification of the period of time during which the plaintiff prays that it be adjudged to be entitled to compensation for natural gas at a rate determined according to “the rate therefor prevailing in similar circumstances in the state for sale of natural gas by the plaintiff to other similar industrial users”. Such limiting or clarifying modification of the prayer is quite unnecessary. Again, the request for a particular item of relief in a complaint of this character is only suggestive of what the plaintiff asks. It is no measure of, or limitation upon the relief, if any, which, in ruling upon the merits of the case, the court may grant. The court may well conclude that there is no merit at all in the basis of compensation which the plaintiff proposes, in which event the duration of the requested period of such payment will be quite irrelevant. And, however long or briefly the plaintiff may think, and pray that any allowable 'basis of compensation should continue, its prayer is not a restriction upon the length of time for which the court may direct such compensation, if any, as it may order to be effective.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218697/

CONGER, District Judge. Motion by the defendant for an order (1) dismissing the complaint on the principle of forumi non conveniens; (2) dismissing the complaint for failure to set forth an action arising under the Acts of Congress relating to trademarks; (3) dismissing the complaint for lack of jurisdiction over plaintiff’s claim for unfair compe*283tition; and (4) dismissing the complaint,, for failure to state a claim upon which relief can be granted. Motion by the plaintiff for an order (a) directing defendant to accept service of the amended complaint and to make answer thereto; or (b) in the alternative that plaintiff he granted leave to file an amended complaint and to extend plaintiff’s time to serve the summons and amended complaint upon the defendant. The defendant has withdrawn its request for relief under the principle of forum non conveniens, and, in view of my disposition of this matter, its remaining requests need not be considered. It is conceded that the summons and complaint were not served in accordance with the Federal Rules of Civil Procedure, 28 U.S.C.A. See Rule 4(c). The person who served the process was not a United States marshal, nor his deputy; nor was he specially appointed by the Court for such purpose. I am of the opinion, however, that the defendant has waived such defect. Rule 12(h) of the Federal Rules provides for waiver of all defenses and objections which are not presented by motion nor in the answer or reply, with certain exceptions. “If a party makes a motion under Rule 12 and omits therefrom some defense or objection which could have been included, he may not thereafter make a motion based on such defense or objection * * *; nor, under subdivision (h), may he raise the defense in his answer, unless it comes within one of the exceptions in (h).” Moore’s Federal Practice, 2d Ed., p. 2327. After the summons and complaint had been served in the defective method mentioned, the defendant noticed the instant motion without any objection to the service of process, although the facts with respect thereto were alluded to in an affidavit accompanying the motion papers. At the time of the argument he raised the point. But this was long after the time for which the motion was originally noticed and after the plaintiff had served an amended complaint purporting to correct the defects suggested by the defendant’s motion with respect to the original complaint. Under Local Rule 2 of the Southern District of New York, an appearance is made by the service of any motion affecting the •complaint. Defendant’s motion was an appearance and constituted a waiver of the defective service. The plaintiff’s request designated “a” is granted. It is unnecessary to decide the relief asked for in the alternative. The defendant shall answer or move within 10 days after service of the order on this decision with notice of entry on defendant’s attorneys. Settle order.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218700/

SMITH, District Judge. This action is before the Court at this time on the motion of the defendants to dismiss the complaint for “failure to state a claim upon which relief can be granted.” The complaint meets the requirements of Rule 8(a) (2) of the Rules of Civil Procedure, 28 U.S.C.A., and is therefore sufficient. The ground urged by the defendants in their brief is without merit. The case of Frederick Hart & Co. v. Recordgraph Corporation, 3 Cir., 169 F. 2d 580, is dispositive of the only question raised by the motion. It was therein held, 169 F.2d at page 581, that on a motion to dismiss a complaint for failure to state a claim “the complaint must be viewed in the light most favorable to the plaintiff and that the complaint should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim; further, no matter how likely it may seem that the pleader [may] be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it.” See, also, Continental Collieries v. Shober, 3 Cir., 130 F.2d 631, 635; Manosky v. Bethlehem-Hingham Shipyard, 1 Cir., 177 F.2d 529, 531; Asher v. Ruppa, 7 Cir., 173 F.2d 10, 12; Mullen v. Fitz Simons & Connell Dredge & Dock Co., 7 Cir., 172 F.2d 601, 603; Carroll v. Morrison Hotel Corporation, 7 Cir., 149 F.2d 404, 407; Cool v. International Shoe Co., 8 Cir., 142 F.2d 318, 320; Garbutt v. Blanding Mines Co., 10 Cir., 141 F.2d 679; Musteen v. Johnson, 8 Cir., 133 F.2d 106, 108; Leimer v. State Mut. Life Assur. Co., 8 Cir., 108 F.2d 302, 305, 306. There can be no doubt that the law is now well settled. There are three additional grounds stated in the defendants’ Notice of Motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; and (3) improper venue. These grounds have apparently been abandoned by the defendants, but notwithstanding this abandonment, we have considered them and find them to be without merit. An examination of the complaint discloses that the jurisdictional allegations are defective in that there is an averment of a “diversity of residence,” as distinguished from a “diversity of citizenship.” This defect is not fatal if “diversity of citizenship” actually exists. 28 U.S.C.A. § 1653. The plaintiff will be granted leave to amend the jurisdictional allegations. The motion to dismiss the complaint is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218701/

CONGER, District Judge. Motion by plaintiff to discontinue this action pursuant to Rule 41 of the Federal Rules of Civil Procedure, 28 U.S.C.A. There are two actions pending between these parties for the same relief; one in the Supreme Court of the State of New York and the other (this action) in this Court. Issue has been joined in each action. The actions are identical. Ordinarily, this motion might very well be granted. It does appear that the action in the State Court may be reached for trial much quicker than the action here. In the State Court a preference may be had because of the nature of the action find the trial could be had in June of this year. In this Court the trial could not be had until probably next fall or winter. However, in this court complications have arisen. To grant the motion at this time would greatly prejudice the defendant. At the present time pursuant to orders of Judge Irving Kaufman and Judge Sidney Sugarman defendant is in the midst of taking the examination of one of the partners of plaintiff. • In connection with this examination, defendant’s attorney intends to apply for an inspection of documents, pursuant to Rule 34 of the F.R.C.P. to effectuate and complete the examination. In addition .there is pending in this Court a motion made by defendant to punish plaintiff’s attorney for contempt. Under the circumstances I feel that this motion should not be granted until those matters are disposed of. .When this motion was argued before me I expressed my opinion to the attorneys involved that this whole problem could be settled easily and all the difficulties ironed out. I spent considerable time with them discussing the situation and finally suggested to them a plan whereby by stipulation their difficulties could be resolved. It was agreed that such a stipulation would be prepared and signed. Apparently, however, the attorneys have reached a stage where they cannot agree. I still think my plan was a good one. The stipulation [annexed hereto] follows generally but not fully my suggestion. I annex hereto the letters of the attorneys concerning the stipulation. Under the circumstances I feel there is only one thing for me to do. The motion is denied without prejudice to a renewal thereof at an appropriate time. Settle order on notice.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218929/

REEVES, District Judge. Under its bill of interpleader, the plaintiff deposited with the clerk of this court $8,-782.38. Thereupon it asked to be discharged with its costs. Such an order was made. There remained in the fund after the payment of costs $8,150.01. Leo E. Haskett and Tidewater Oil Sales Corporation, as intervener and defendant, are contesting for the fund. On the 3d day of February, 1926, Emmet E. Haskett was an officer (president) of Independent Oil Company, a Missouri corporation. For its protection said company caused a policy of life insurance in the sum of $10,-000 to be issued upon the life of said Emmet E. Haskett. The following language was used in designating the beneficiary: “The Northwest Mutual Life Insurance Company * * * promises to pay at its Home Office the sum of Ten Thousand Dollars * * * to Independent Oil Company, the beneficiary, its successors or assigns.” Admittedly the face amount of the policy was diminished by loans, automatic or otherwise, so as to reduce the amount to. the sum deposited. The premiums on the policy were paid for the years 1926,1927, and 1928. Subsequent premiums were paid under a provision of the policy which permitted the company to charge the premium as a loan against it. The insured died January 27, 1931. At the time of his death the insured had retired as an officer (president) of Independent Oil Company. Leo E. Haskett was the son of Emmet E. Haskett, the insured. They owned and controlled a major part of the stock of the Independent Oil Company. On January 25, 1929, the Ozark Oil Company, an Oklahoma corporation, was a subsidiary of the defendant Tidewater Oil Sales Corporation. On that date, it entered into two contracts with Leo E. Haskett in respect to the stock of Independent Oil Company. By the first contract the said Haskett, as the owner of fifty *390shares of stock, agreed to obtain control of all of the issued and outstanding capital stock of said company, and that for a consideration stipulated therein he agreed to transfer said stock to the said Ozark Oil Company. It was stipulated that certain of the assets of Independent Oil Company should be transferred to the said Haskett upon his agreement to assume the debts of the company. The following is the agreement for the transfer of assets to him: “All moneys and bank balances of the Independent Oil Company, and all notes and accounts owing the Independent Oil Company up to the date of the completion of the inventory.” The cither contract embodied an agreement not to enter into competitive business, and there'was a further agreement in the nature of a guaranty signed by both Leo E. Haskett and E. E. Haskett. On February 6,1929, the contract between the parties was consummated. Leo E. Haskett delivered the stock of Independent Oil Company to the Ozark Oil Company, and, in accordance with the agreement, the board of directors authorized the transfer of assets mentioned in the contract of January 25th. All of the members of the board were present, and “The Chairman explained that the purpose of the meeting was to take the necessary action with reference to transferring the notes and accounts to Leo E. Haskett, in consideration of which Mr. Haskett had agreed to assume and pay all the debts of the Independent Oil Company that have accrued up to the 1st day of February, 1929, in accordance with the contract that he had previously made with the purchasers of the shares of stock in the Independent Oil Company.” Thereupon the board ordered a transfer to the said Haskett of “all moneys and bank balances of the Independent Oil Company and all the notes and accounts of the Independent Oil Company up to the 1st day of February, 1929.” The president and secretary were then fully authorized to prepare and execute for and on behalf of the Independent Oil Company a complete assignment to the said Leo E. Haskett of “all moneys, bank balances of the Independent Oil Company and all notes and accounts owing the Independent Oil Company up to the 1st day of February, 1929.” Concurrently, and in accordance with the order of the board, an instrument entitled “Bill of Sale” was executed. To this bill of sale were attached, as exhibits, schedules of both notes and accounts. The aggregate of accounts and notes was $19,371.50. Variation from these figures was provided for in the contract. By this bill of sale there was transferred to Leo E. Haskett “all bank balances belonging to said company on said date, (January 31, 1929) * * * and the Independent Oil Company does further assign and convey to said Leo E. Haskett all notes and accounts receivable, owing to the Independent Oil Company as at the close of business on the 31st day of January, 1929.” The policy of insurance then in force was not specifically mentioned, but Leo E. Haskett claims the benefits of said policy in virtue of the foregoing and a conversation had with an officer and agent of Ozark Oil Company with specific reference to said policy. The conversation mentioned occurred during the negotiations for the purchase of the stock of the Independent Oil Company by the Ozark Oil Company. The policy was then among the papers of the Independent Oil Company, and the agent for Ozark Oil Company at the time asserted that the premiums on the policy involved too great an expense and outlay to continue the insurance, and that his company was no longer interested. In making up inventories, the policy was not specifically mentioned. Thereafter it was not considered as an asset of the company, and premium notices were disregarded. After the Ozark Oil Company acquired all of the stoek of Independent Oil Company, the board of directors of the latter ordered the execution of an instrument entitled “sale and transfer of assets” to the defendant Tidewater Oil Sales Corporation. This instrument was dated April 1,1929. The transfer was authorized at a special meeting of the stockholders of Independent Oil Company held on March 30, 1929. The resolution then adopted “authorized and directed” the officers of the company to “take such steps as may be necessary, or proper, to properly assign, transfer, and convey to Tidewater Oil Sate Corporation all of the assets of this company as at the close of business on March 31st, 1929.” The defendant Tidewater Oil Sales Corporation claims the benefits of the insurance upon this assignment. 1. As postulates to a consideration of the foregoing facts, it should be stated that the policy of insurance was a contract whereby the plaintiff for a stipulated consideration agreed to indemnify the beneficiary, the Independent Oil Company, against loss occasioned by the death of its president, the insured. While the contract contained provisions for loan and surrender values at all of *391the times in question, these were not made available to the parties, and therefore it stood as a contract of insurance, the maturity of which depended upon the death of the insured. 2. Neither of the parties at that time had an insurable interest in the life of the insured. However, under the authorities, the Independent Oil Company, previously having an insurable interest, could make a valid assignment or transfer to one not having an insurable interest. Grigsby v. Russell, 222 U. S. 149, 32 S. Ct. 58, 56 L. Ed. 133, 36 L. R. A. (N. S.) 642, Ann. Cas. 1913B, 863; Gordon v. Ware National Bank (C. C. A.) 132 F. 444, 67 L. R. A. 550. 3. A life insurance contract may be assigned according to the usual rules of assign-ability of contracts. 32 C. J. § 423, p. 1240. The policy under observation could only be assigned by the Independent Oil Company, and provision was made in said poliey for its transfer to “its successor or assigns.” 4. By the poliey nothing became due thereunder until the death of the insured. When the. above-mentioned contracts were made, the insured was living. The cash surrender provision of the policy is as follows: “Upon receipt of this Policy and a full and valid surrender of all claims hereunder, without the consent or participation of the Insured, the Company will pay its then cash surrender value.” It will be observed that the cash value of the poliey was never made available. 5. The benefit under the policy or the values thereof were not in the form of an account, and, according to the documentary evidence, as well as oral testimony, neither of the claimants considered anything to be due or available at the time of the several transactions mentioned. In fact, according to the evidence, it may be inferred that neither of them considered the policy in force after the default fin payment of premiums. The agent for the Ozark Oil Company did not reject the benefits promised in the policy, but simply indicated that no further premiums would be paid. The transfer of the policy was not an assignment of an account, but the assignment of a benefit that might arise upon a contingency. It was a mere possibility because, if the insured had survived, the policy by its terms would soon have expired. The accounts transferred to Leo E. Haskett, mentioned in the several contracts and resolutions of the board of directors, clearly refer to accounts then due or about to become due. At no time did it refer to the assignment of the benefits of a general contract such as is involved in this case. On the contrary, the resolution-of the stockholders of March 30 authorized the transfer of all of the assets of the Independent Oil Company to the defendant Tidewater Oil Sales Corporation. This was followed by a written transfer executed by Independent Oil Company on April 1, 1929. ' This instrument contained a recital that “the Independent Oil Company has granted, sold, transferred, and assigned unto the said Grantee, (Tidewater Oil Sales Corporation), all of its assets, real, personal, and mixed, and wherever situated, as the same existed on the first day of April, 1929.” The conversation between the defendant Leo E. Haskett and a representative of the Ozark Oil Company with respect to the insurance poliey was by no means contractual. It was not suggested-that the policy be transferred to the defendant Haskett. The agent of the Ozark Oil Company merely expressed an unwillingness to continue the payment of premiums on the insurance. It was indicated that his company did not desire to augment the benefits of the poliey, but at no time did he repudiate for his company the benefits already accrued. Moreover, if the conversation should be given a contractual construction, the parties are bound by the terms of the contract actually entered into as a result of such negotiations. The bill of sale to the defendant Haskett described accurately and clearly all of the assets and things of value transferred to him. The insurance contract was not included, nor, by the most liberal construction, was there any language broad enough to include it. The poliey provisions contemplated that all assignments should be in writing. The assignment from the Independent Oil Company to the Tidewater Oil Sales Corporation was br.pad enough to include the contract of insurance. The defendant Haskett testified that he made no demand upon the plaintiff for the payment of any values under the poliey. Neither did the defendant Tidewater Oil Sales Corporation make such demand. The result was that the company automatically adjusted the terms of the poliey so as to place the contract upon extended insurance. .This meant that the poliey would expire within a limited time. It was a mere contingency or possibility *392that the policy would ever mature for payment. All depended upon the continuing life of Emmet E. Haskett. When he died, the contract matured, and, as the benefits were payable to Independent Oil Company, or its assigns, the defendant Tidewater Oil Sales Corporation, being the assignee of the Independent Oil Company, is clearly entitled to the amount due. By the comprehensive transfer to Tidewater Oil Sales Corporation, the contract of insurance was included. Therefore it must follow that the Tidewater Oil Sales Corporation is entitled to the proceeds of the insurance now in the hands of the clerk of this court. Counsel for said company will prepare an appropriate decree, and upon the presentation of a proper order said fund will be paid over to it.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218930/

LETTS, District Judge. This is an action for damages predicated upon the alleged conversion of 20,009 shares of stock in the Victory Gold Mines, Limited, an Ontario corporation. The defendant trust company was the transfer agent of that corporation, a fact of considerable significance in determining the defendant’s duty, and its ability to discharge that duty, under the rather disordered and confused dealings which underlie this action. Under date of March 30,1928, the defendant entered into an escrow agreement with the Assets & Securities, Limited, of Ontario, Canada. Under this agreement, certificates representing 799,99-3 shares in the Victory Gold Mines, Limited, were deposited with the defendant trust company. These shares were to be held in escrow until March 30,1929, unless one Jarvis should default in his payments under a separate agreement which contemplated the purchase by Jarvis of 200,000 shares of this mining corporation. Apparently, the purpose, in part at least, was to take, by the deposit in escrow, a large block of stock off the market to facilitate some operation by Jarvis in relation to the 200,000 shares which he was buying. The escrow agreement provided that, in event of default by Jarvis, or, if there be no default, then forthwith after March 301, 1929, the escrow shares should be forwarded to Assets & Securities, Limited, at Toronto. This agreement was clear, simple, and defendant’s limited duties plainly apparent. The waters, however, are soon muddied. Under date of November 26,1928, which was about eight months after the escrow agreement was entered into, Assets & Securities *393sold, with the consent of Jarvis, 750,000 of the escrow shares to one McGovern, thereby reducing the res in escrow to 40,903 shares. The plaintiff’s claim relates to the alleged wrongful withholding from him of 20,000 shares of this residue of the escrow. The plaintiff appears upon the scene in the following manner: Under date of November 27, 1928, Assets & Securities, Limited, advised the trust company as follows: “From and out of the Certificate of Shares standing in the name of G. S. Adams, or from any other Certificate of the above Company now in Escrow in your possession, this will be your full and complete authority upon the dissolution of the present existing pool and not later than the 15th day of May, 1929; to deliver to George F. MeNaughton or his Nominee, 20,000 of the shares of the above Company now held in Escrow by you.” This letter to the defendant was forwarded by MeNaughton under a brief covering letter of the same date, requesting the acknowledgment thereof by the trust company. This acknowledgment appears to have been made by the trust company direct to Assets & Securities, Limited, under date of November 30, 1928. The pertinent part of this acknowledgment is the following paragraph: “We also acknowledge receipt of your letter of November 27th authorizing us, at the termination of the existing pool, no later than May 15th, 1929; to deliver to George F. MeNaughton or his nominee, 20,000 shares of the Victory Gold Mines Company, Limited, held by us in escrow.” Under date of February 5, 1929; MeNaughton, in tarn, executed a similar assignment of his 20,000 shares of the escrow deposit to one McKeely. Plff’s Ex. 10. This instrument was, as before, sent to the trust company accompanied by a covering letter of the assignee dated March 28, 1929, embodying instructions in regard to the issuance and delivery of certificates representing the said number of shares. Under date of April 2,1929; the trust company acknowledged to McKeely the receipt of his communication and advised him that the escrow stock had been placed under an attachment by W. L. Jarvis, referred McKeely to Jarvis’ Boston attorneys, and concluded with the following sentence: “Therefore we cannot make the delivery of the stock until the attachment is released.” No other reason for declining to make delivery was advanced. Six days later McKeely wrote the defendant trust company as follows: “I have this day disposed of my 20,000 shares of the Capital Stock of Victory Gold Mines, Limited, to Charles D. Bertram, and this will be your full and complete authority to deliver to C. D. Bertram or his Nominee, the before mentioned 20,000 shares.” This letter, when forwarded to the defendant on April 9; was also accompanied by a communication from Toronto attorneys representing the assignee Bertram, the plaintiff in this case. In this letter the trust company is requested to forward forthwith a certificate issued in the name of Bertram covering 20,000 shares assigned by MeKeely, as well as an additional 5,000 shares, which was referred to as having previously stood in Bertram’s name. The receipt of these communications was acknowledged in a letter to Bertram’s attorneys under date of April 11, in which acknowledgment the trust company refers them to the Boston attorneys for Mr. Jarvis, and refers to the attachment as “making it impossible for us to make delivery.” No other reason was advanced for defendant’s refusal to deliver. During the course of the hearing in this matter it was stipulated by counsel that the purported attachment under the laws of Massachusetts was without any legal effect so far as constituting a legal reason or justifica^ tion for the refusal to make delivery of .the shares in question. It would seem clear that the interest in the escrow deposit to 20,000 shares represented a right capable of assignment: First, from the Assets & Securities, Limited, the original depositor, to MeNaughton; then from MeNaughton to McKeely and from McKeely to Bertram. It is clear, too, that, upon the expiration of the date fixed in the escrow agreement, namely, March 30,1929, the trust company did not endeavor to return forthwith the remaining shares held to Assets & Securities, Limited, as provided in the escrow agreement. Following some conferences or- negotiations with Boston attorneys employed by the plaintiff, hut without any additional documentary evidence of ownership or right in the plaintiff, certificates representing 20;000 sharesNvere delivered on July 8,1929; and accepted on behalf of the plaintiff, “with all rights reserved to proceed against any parties responsible for loss to Bertram because of delay in furnishing him the certificates for said stock.” This case would present no great difficulty if in the beginning certificates representing the escrow deposit had all been properly indorsed in blank or accompanied by *394properly executed blank powers for transfer. It would then seem clear that the defendant trust company, if it continued in possession of the escrow deposit for more than a reasonable time following the date of the expiration of the agreement, could not, being the authorized transfer agent of the corporation, ignore authentic assignments by holders of rights to these shares and refuse to transfer and deliver them. The time would have passed when the trust company could take the position that it had no obligation or duty other than to return the shares to the original depositor. Under these circumstances, the refusal of the trust company, in its combined capacity of transfer agent and possessor or bailee of the certificates evidencing the shares, would, in my opinion, amount to a conversion and'render the. defendant accountable in damages. Handy v. Miner, 258 Mass. 53, 154 N. E. 557, 560. In that ease the court said: “It is settled law in this commonwealth that a business corporation has a duty imposed on it by law to issue new certificates of its stoek to persons entitled to have such certificates upon the transfer or offer to transfer the old certificates to the corporation; and that an implied promise arises from such duty, for the performance of which an action will lie for the benefit of the holder of shares or for the benefit of his assignee, the action to be brought in the name of the assignee where the corporation or its officers wrongfully refuse to issue such certificates.” Again, in the case of McAllister v. Kuhn, 96 U. S. 87, the court said at page 89, 24 L. Ed. 615: “In this case, the complainant alleges a wrongful conversion by McAllister to his own use of certain shares of the capital stock of a foreign corporation owned by Kuhn, which were represented by certificates of stock that had come into the possession of McAllister. There can be no doubt that shares of stock in a corporation may be transferred by means of an assignment and delivery. of certificates. It is true that a certificate of stock is not the stock itself; but it is documentary evidence of title to stock, and may be used for the purposes of symbolical delivery, as the stock itself is incapable of actual delivery. A blank indorsement of a certificate may be filled up by writing an assignment and power of attorney over the signature indorsed, and in this way an actual transfer of the stock on the books of the corporation may be perfected. A wrongful use of such an indorsed certificate for such a purpose may operate as a conversion of the stock;” I perceive no sound distinction between the duty of a corporation under the circumstances dealt with by the court in Handy v. Miner and the duty and responsibility of the transfer agent with authentic and properly indorsed certificates in its possession. Such a situation does not bar an action for conversion merely because the by-laws of the corporation, as has been stressed in this ease, contain a specific provision to the' effect that, until the transfer is recorded upon the books of the company, “the transferor shall be deemed tho holder of- the shares.” A literal application of such a provision of the by-laws may be entirely justified as between the corporation and its stockholders in respeet to the exercise of voting rights or for the disbursement of dividends, and still be wholly unjustified under circumstances as here presented between a transfer agent of the corporation and an assignee of' Shares, the possession of the certificates evidencing which is already with the transfer agent. The principal difficulty in the present controversy arises from the confusion of facts and the disorderly manner in which the several transactions were handled almost from the beginning. Some months after the deposit with the defendant of the original escrow certificates, namely, on November 30, 1928 (Plff’s Ex. 6), the defendant writes its escrow depositor calling attention to the fact that a considerable number of the certificates deposited were not accompanied by stock transfer powers, as well as other certificates which, though properly indorsed, were assigned to certain individuals who,.in turn, had executed no blank power of transfer. This situation existed in respect to certificates representing something over 160,000 shares of the total deposit. Many of these powers were obtained between the fall of 1928 andthe 11th of April, 1929, as of which date demand was made by the plaintiff for his 20,000 shares. At the time of the trial, the testimony presented by Mr. Benson, in charge of the transfer department of the defendant, was so unsatisfactory and confusing that the court requested counsel for the plaintiff and for the defendant to later make a joint investigation of the- facts as to the state of the balance of the certificates held by the defendant as of the time Bertram made his demand. Counsel submitted to the court a joint report which is being treated as a part of the record of this case. This report states that on April 11, 1929, there were still held by the defendant certificates representing 39,992 shares. The defendant, however, held no transfer power *395for two certificates, together representing 6,000 shares. For one certificate of 23,992 shares issued in the name of Assets & Securities, Limited, it held a transfer power which read in part as follows: “To transfer 23,992 shares standing in our name under certificate No. B. A. O. 5340 to H. McGovern or his assigns.” As the record stood, therefore, in respect to these certificates on the date that the plaintiff made his demand, there were, out of a total of 39,992 shares, 29;992 shares represented by certificates either accompanied by no transfer power or -accompanied by a specific power to transfer to McGovern with no blank indorsement by-him. In other words, on April 11 the defendant company could have properly discharged its duties as transfer agent and issued hut 10,000 shares to the plaintiff. It has been urged that this indorsement to McGovern was an error, and that it was later so treated by the defendant. The fact remains, however, that the certificate was not in proper form to justify a transfer agent in issuing shares therefrom until the error was corrected, if error it was. In view of the fact that Bertram’s demand was for the delivery to him of 20,000 shares, it is contended that this demand did not amount to one for the issuance or delivery of a lesser number which the defendant was in a position to transfer. It will be borne in mind, however, that in all the correspondence, to which reference has before been made, the excuse presented for nondelivery by the defendant was the existence of the ineffective attachment. At no time did the defendant advise the plaintiff of the insufficiency of the indorsements or powers held by it. At least, no such excuse was given prior to conferences with Bertram’s counsel at a much later date. I am of the opinion that the defendant cannot now interpose the disclosure of such insufficient powers as a defense for its failure to transfer and deliver to Bertram, or to offer so to do, so many shares, as it was in a position to properly transfer and deliver as transfer agent. The insufficiency of the indorsements upon a portion of the escrow certificates held, and as of a time long after the escrow agreement had terminated, was peculiarly within the knowledge of the agents of the trust company. The extended series of communications and transactions, and protracted holding of the balance of the escrow deposit, had quite altered the simple situation and responsibilities originally set np under the first agreement with Assets & Securities, Limited, in March of 1928. The trust company under the circumstances was justified in declining to transfer and deliver to Bertram any shares from the specifically assigned McGovern certificates and from the Crean and Jamieson certificates representing 6,000 shares. In respect to these, there could be no conversion. Pardee v. Nelson, 59 Utah, 497, 205 P. 332, 21 A. L. R. 385. There was, however, a duty to offer to issue and deliver certificates for 10,000 shares, for which certificates in proper order were held.1 The plaintiff is, therefore, entitled to a judgment for that sum representing the difference between 50 cents a share on 10,000 shares and 26 cents a share, which I find to be the fair market values of the shares-on the respective dates of April 11 and July 8, 1929, together with lawful interest on such sum and costs. Shares of stock are without "earmarks.’’ See Christy’s The Transfer of Stock, § 4, pp. 12, 13. See, also, Bowers’ The Law of Conversion, § 687, and cases cited.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218935/

ANDREW M. J. COCHRAN, District Judge. This action is before me on plaintiff’s motion to remand to the state circuit court from which it was removed. There is no diversity of citizenship between the parties. It was removed on the ground that the action arises under the laws of the United States. The particular law under which it is alleged in the petition for removal that it arises is the Federal Safety Appliance Act (45 USCA § 1 et seq.). It is the position of the plaintiff that it does not so arise, but that it arises under the Federal Employers’ Liability Act (45 USCA §§ 51-59). Of course if such is the case it was not removable and the motion to remand should be sustained. Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599, 35 S. Ct. 844, 59 L. Ed. 1478; Great Northern Ry. Co. v. Alexander, 246 U. S. 280, 38 S. Ct. 237, 62 L. Ed. 713. The plaintiff in her petition expressly alleges that the action is brought “under and by reason of and this case arises under the act of Congress designated and known as the 'Federal Employers’ Liability Act’ as amended, title 45, §§ 51 to 59, inclusive, USCA.” This allegation is not conclusive. Whether such is the ease depends on the facts set forth in plaintiff’s petition. It is an action to recover damages for the death of plaintiff’s intestate. According to such allegations the defendant is engaged in interstate commerce and plaintiff’s intestate, at the time of the receipt of the injury which resulted in his death, was in its employ as a switchman in one of its yards and engaged in interstate commerce. So far the action is brought within the Federal Employers’ Liability Act. The ground upon which defendant claims that the action is not covered by that act is that it appears further from such allegations that the liability of defendant for the death of plaintiff’s intestate is for breach of its absolute duty to provide efficient hand brakes as required by the Safety Appliance Act. It is defendant’s position that no recovery can be had under the Federal Employers’ Liability Act for a breach of such duty. This is so because the recovery authorized by that act is for negligence and where there is a breach of an absolute duty there is no negligence. That act (section 1 [45 USCA § 51]) provides for recovery for an injury or death “resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” The liability imposed on the carrier for a defect or insufficiency in appliances is where it is “due to its negligence.” The plaintiff acquiesces in this position and meets it with the claim that no recovery is sought for a breach of such absolute duty imposed by the Safety Appliance Act, but solely for negligence on the part of defendant’s employees. The manner and cause of the injury and death complained of is thus set forth in the petition: “On the first day of May 1931, the deceased, Carl G. Summers, was employed by and at work for the defendant, as a switchman in said yard, in that part of said yard designated as the hump, and the hand brake on one of the cars then and there so used by the defendant was defective and insufficient to control the movement of such car, and it then and there became and was the duty of the car inspector and inspectors of the defendant, before said car was placed on the hump, where, the decedent, Carl G. Summers, was so at work, to mark the same so as show that said car was marked for the shop, and further, to place on said car marks showing such brake was so defective and insufficient, and said car was moved from that part of such yard of the defendant onto the hump without being so marked, and through and by the negligence and carelessness of the defendant’s agent and employees, said ear inspector and inspectors, whose duty it was to so inspect and mark said ear, the defendant did place said car on said hump, and release and turn the same loose, and said ear was marked for the shop, and was not marked to show that the hand brake was so defective and insufficient, and said inspector or inspectors did and had so negligently and carelessly failed to so mark the same, showing such hand brake was so *412defective and insufficient, and such defect and insufficiency was known to the defendant and such inspector and inspectors and could have been known to them by the exercise of ordinary care, and was not known to the said Carl G. Summers, and could not have been known to him by the exercise of ordinary care, and said car was so turned loose on said hump, and the decedent, Carl G. Summers, while so engaged and at work thereon, did undertake to control the movement of said car with such hand brake, after said inspector and inspectors had so failed to mark the same, and the same could not be controlled, and the said Carl G. Summers then and there in attempting to control the car, and in getting off of such car, did and was required to exert great and extraordinary strength, and force, and was so jarred, strained and injured thereby in his heart, arteries, internal organs, veins and museles, and was thereby killed, all of which injuries and death were the direct and proximate result of and caused wholly by the negligence and carelessness of the defendant’s agents and employees, the ear inspector and inspectors, as above set out, and but for which none of said injuries and death would have been sustained.” According to this the car which the decedent was operating when injured was marked for the shop, i. e. for repairs, and was being moved thereto for such purpose, the hand brake on the ear was defective and insufficient, the decedent attempted to control the car by means of it but could not do so because of this defect and insufficiency, and the inability to control it was the cause of the injury. This makes a dear ease of liability for breach of the duty prescribed by the Safety Appliance Act. But, according further thereto, recovery is not sought on this account. It is sought solely on the ground of the negligence of defendant’s car inspector in not marking the ear so as to show that the hand brake was defective and insufficient. It is alleged that the injury and death “were the direct and proximate result and were caused wholly by the negligence and carelessness of the defendant’s agents and employees, the ear inspector and inspectors, as above set out, and but for which, none of said injuries and death would have been sustained.” There can be no possible question that plaintiff bases her right to recover on such negligence on the part of defendant’s ear inspector. Under the allegations of the petition there can be no recovery unless plaintiff has such right of recovery. There can be no recovery for the breach of the absolute duty to provide an efficient hand brake prescribed by the Safety Appliance Act. That plaintiff recognizes this appears from the grounds of her motion to remand; “(1) The petition alleges as a sole ground of recovery the negligence of defendant’s car inspectors in failing to mark the ear mentioned in the petition so as to show the brake was defective before it was placed upon the hump and this action is brought under title 45, §§ 51 to 59, USCA. “(2) The plaintiff does not rely upon and no recovery could be had because of the insufficiency or defect of the brake on the car mentioned in the petition, and no recovery could be had because of any alleged claim of a violation of the Safety Appliance Act, title 45, sections 11,13 and 14, USCA. “(3) If the petition eould be construed as ■ stating a cause of action under the Federal Employers’ Liability Act, above mentioned, and the Safety Appliance Act, then said case should be remanded to the state court. “(4) There is no allegation or allegations in the petition upon which a recovery could be based upon anything other than the negligence of the defendant’s ear inspectors in failing to so inspect and mark the car mentioned in the petition.” Plaintiff denies that this action arises “under the act of Congress known as the Safety Appliance Act * * * or under any law of the United States except the Federal Employers’ Liability Act, title 45, §§ 51 to 59, inclusive.” This appears also from the repeated statements in her brief on the motion. That plaintiff can recover on no other, theory than that on which she proceeds in her petition is well settled. In the case of Storm Waterproofing Corp. v. L. Sonneborn Sons (D. C.) 28 F.(2d) 115, 117, it is said: “Moreover, the plaintiff must frame his pleading with reference to some particular theory upon which he bases his right to relief. The pleading cannot be made elastic, so as to bend to changing views of counsel as the cause proceeds. It must proceed to the end upon the theory upon which it is constructed. It must be good on the theory upon which it proceeds, or it will not be sufficient, though it states facts enough to be good on some other theory, for the plaintiff can have no relief on a theory different from that disclosed by his pleading.” The defendant urges that the plaintiff has no right to recover on the ground of such negligence on the part of the defendant’s in*413spectors and her sole right of recovery is on the ground of the breach of the absolute duty imposed by the Safety Appliance Act. This is so because the defendant owed no such duty to the decedent. The sole duty which it owed the decedent was the absolute one so imposed. This duty swallowed, as it were, all other duties in relation to the hand brake and its breach and not such negligence was the sole proximate cause of the injury and death complained of. This position would seem to be sound. Had the car been marked as plaintiff claims it should have been it would not have relieved defendant of liability. U. S. v. Southern Ry. Co. (D. C.) 135 F. 122, 123; U. S. v. Chicago, R. I. & P. Ry. Co. (D. C.) 173 F. 684. But that such is the ease is no reason for refusing to remand the action to the state court. It is to be taken that the state court will give such effect to the position as it is entitled to. The plaintiff had the right to make her own bed and has the right to lie in it, and should be required to lie in it in the further progress of the action. That, in disposing of the motion to remand, it is the ease which the plaintiff has made in the state court and not that which he could or should have made which is the determining consideration, I have had occasion to hold in several recent cases. Woods v. Mass. Protective Ass’n (D. C.) 34 F.(2d) 501; Patrick v. Equitable Life Ins. Soc. (D. C.) 2 F. Supp. 762. But defendant’s position that no recovery can be had under the Federal Employers’ Liability Act for a breach of the absolute duty prescribed by the Safety Appliance Act, in which plaintiff acquiesces, is not well taken. Such recovery can be had. That it can has been recognized or held by the Supreme Court of the United States in the following cases, to wit: Southern Ry. Co. v. Crockett, 234 U. S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, 36 S. Ct. 626, 630, 60 L. Ed. 1110; Spokane, etc., Ry. Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 689, 60 L. Ed. 1125; St. Joseph & Grand Island Ry. Co. v. Moore, 243 U. S. 311, 37 S. Ct. 278, 61 L. Ed. 741; Great Northern Ry. Co. v. Donaldson, 246 U. S. 121, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581; Chicago Great Western R. Co. v. Schendel, 267 U. S. 287, 45 S. Ct. 303, 69 L. Ed. 614. The ground of the position against such recovery is that the Federal Employers’ Liability Act authorizes a recovery for defective or insufficient appliance only where such condition thereof is due to negligence and a violation of the Safety Appliance Act is a breach of an absolute duty and not negligence. Such is the provision of the act, but a breach of such duty is negligence. In the case of San Antonio & A. P. B. B. Co. v. Wagner, supra, it was said: “It is argued that in actions based upon the employers’ liability act the defendant cannot be held liable without evidence of negligence; Seaboard Airline Ry. v. Horton, 233 U. S. 492, 501, 34 S. Ct. 635, 58 L. Ed. 1062, 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834, being cited. But in that case, as the opinion shows (page 507 [of 233 U. S., 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475]), there was no question of a violation of any provision of the safety appliance act; and in what was said (page 501 [of 233 U. S., 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475]) respecting the necessity of showing negligence, reference was had to causes of action independent of that act. The employers’ liability act, as its 4th section very clearly shows, recognizes that rights of action may arise out of the violation of the safety appliance act. As was stated in Texas & P. R. R. Co. v. Rigsby, 241 U. S. 33, 39, 36 S. Ct. 482, 484, 60 L. Ed. 874,— ‘A disregard of the command of the statute (safety appliance act) is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied.’ If this act is violated, the question of negligence in the general sense of want of care is immaterial. 241 U. S. 43 [36 S. Ct. 482, 60 L. Ed. 874], and cases there cited. But the two statutes are in pari materia, and where the employers’ liability act refers to ‘any defect or insufficiency, due to its negligence, in its ears, engines, appliances,’ etc., it clearly is the legislative intent to treat a violation of the safety appliance act as ‘negligent,’ — what is sometimes called negligence per se.” To the same effect is the decision in the Spokane & I. E. R. R. Co. v. Campbell, supra. It was there said: “Upon the whole ease, we have no difficulty in sustaining his right of action under the employers’ liability act. That act * * * imposes a liability for injury to an employee ‘resulting in whole or in part from the negligence of any of the officers, agents, or employees of such, carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, * * * or other equipment.’ As was held in San Antonio & A. P. R. Co. v. Wagner, decided June 5, 1916, 241 U. S. 476, 36 S. Ct. 626, 60 L. Ed. 1110, a violation of the safety appliance act is *414‘negligence’ within the meaning of the liability act.” In the case of New York Central R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 250, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, it was said: “The common law bases the employer’s liability for injuries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with corresponding change in the test of negligence.” It is to be noted that, in the Wagner Case, the court refers to the fact that the Federal Employers’ Liability Act in the fourth section recognizes that an action may be brought on it to recover for a violation of the Safety Appliance Act. The reeent decision of the appellate court of the Seventh Circuit in the case of Chesapeake & Ohio Ry. Co. v. Moore, 64 F.(2d) 472, holds, as I construe it, that such recovery cannot be had. This it does upon the reasoning advanced by defendant, that recovery under the Employers’ Liability Act can only be had for negligence and a violation of the Safety Appliance Act is not negligence in that it is a breach of an absolute duty. The matter is not put this clearly in the opinion, but I am unable to make out that it means anything else than this. The Wagner Case is referred to in the opinion and dismissed with the statement that it came to the Supreme Court by writ of error from the Supreme Court of Texas (166 S. W. 24). I do not understand the relevance of this consideration unless the point was that there was no question of jurisdiction in that ease, whereas in the case in hand there was such question. What there was in this distinction to differentiate the ease does not occur to me. The complaint in the case contained two paragraphs; the first being brought under the Federal Employers’ Liability Act, and the second under the Kentucky Employers’ Liability Act (Ky. St. §§ 820b-1- to 820b-3), patterned after the former act, in which state the injury complained of was received. It was held that no recovery could be had on the second paragraph under the latter act for a violation of the Safety Appliance-Act. The grounds of this is not certain. It seems to have been thought that the benefits of the Safety Appliance Act do not extend to intrastate commerce. This was contrary to the decision in the case of Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 484, 60 L. Ed. 874. That recovery can be had under a state employer’s liability act for a violation of the Safety Appliance Act was held in Louisville & Nashville Ry. Co. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931. That ease involved an action on the Employers’ Liability Act of Georgia for such a violation. There is room to think that the position taken by the court was to some extent induced by its thought that an action can be brought under and by virtue of the Safety Appliance Act, thus putting it on the same footing as the Federal Employers’ Liability Act and the Kentucky Employers’ liability Act under and by virtue of which an action can be brought. Such is not the case. The Safety Appliance Act confers no right of action on the employee. The only right of action which it confers is on the United States to recover the penalties which it imposes. So far as the employee is concerned all that it does is to impose an absolute duty on the railroad carrier to take certain precautions in the matter of appliances for his safety — this and nothing more. The right of action must be found elsewhere. Were there no Employers’ Liability Act, federal or state, it would be found in the common law. As it is, it is to be found in those acts. In the case of Texas & Pac. R. R. Co. v. Rigsby, supra, it was said: “None of the acts, indeed, contains express language conferring a right of action for the death or injury of an employee; but the safety of employees and travelers is their principal object, and the right of private action by- an injured employee, even without the employers’ liability act, has never been doubted. * * * A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Comyn’s Dig. title, ‘Action upon Statute’ (F), in these words: ‘So, in every case, where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.’ (Per Holt, Ch. J., Anonymous, 6 Mod. 26, 27.) This is but an application of the maxim, Ubi jus ibi remedium.” It is said in this quotation that “the right to recover the damages from the party in default is implied,” and following it this is said: “The inference of a private right of action in the present instance is rendered irresistible by the provision of § 8 of the act of 1893 that an employee injured by any car, etc., in use contrary to the act, shall not be deemed to *415have assumed the risk, and by the language above cited from the proviso in § 4 of the 1910 act.” These expressions seem to justify the position that the right of action is to some extent dependent on the Safety Appliance Act. It impliedly confers such right on the employee. In the case of Ross v. Schooley (C. C. A.) 257 F. 290, 291, there is an amplification of considerations, justifying such implication. I would submit that an employee’s right of action for a breach of a duty imposed by that act is to no extent dependent thereon. It depends solely on the Employers’ Liability Acts, or, in their absence, on the common law. What the act may be said to do is to take it for granted that the right of action exists. That sueh is the true view of the matter would seem to result from the consideration that where the breach of the statutory duty results in death, in jurisdictions where the common law prevails, no action can be brought for sueh wrongful death in the "absence of a statute conferring it. The case of St. Louis, I. M. & S. R. R. Co. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061, was an action brought in one of the state courts of Arkansas to recover damages for the wrongful death of a brakeman caused by a violation of the Safety Appliance Act which occurred in Indian Territory. This was before the enactment of the Federal Employers’ Liability Act. There was no wrongful death statute in or applicable to Indian Territory. Recovery was sustained on the ground that in Indian Territory, “contrary to the doctrine of the common law, a right of action for death exists.” In the case of Schlemmer v. Buffalo, R. & P. R. R. Co., 205 U. S. 1, 27 S. Ct. 407, 51 L. Ed. 681; Id., 220 U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596, the right to sue for wrongful death caused by a breach of duty imposed by the Safety Appliance Act was not questioned. This was before the enactment of the Employers’ Liability Act and the action must have been brought under the Pennsylvania wrongful death statute. An action can be brought under and by virtue of the Federal Employers’ Liability Act or the Kentucky Employers’ Liability Act. Each confers on the employee a right of action. By this is not meant that if it had not been for sueh acts there would have been no right of action. Sueh right would have existed at common law. What it conferred was a new and distinct right of action which was made subject to certain provisions therein set forth. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176. Hence it is that the Safety Appliance Act is not on the same footing as these two Employers’ Liability Acts. It confers no right of action. Each of them does. An action cannot be brought under and by Virtue of it. An action can be brought under and by virtue of either of them. It is true to say that an action may arise under the Safety Appliance Act or be based upon it, but not that it is brought under and by virtue of it. The appellate court of the First Circuit [Central Vermont Ry. Co. v. Perry, 10 F.(2d) 132, 134] was troubled somewhat in bringing a violation of the Safety Appliance Act within the Federal Employers’ Liability Act, in view of the fact that the latter act authorizes a recovery for negligence only and a violation of the former act is a breach of an absolute duty. It took the word “negligence” in the Federal Employers’ Liability Act to mean “the failure to exercise the care of tha average prudent man.” It solved the difficulty by what it is open to say was judicial legislation. Section 1 of the Federal Employers’ Liability Act (45 USCA § 51) provides for liability “for sueh injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of sueh carrier, or by reason of any defect or insufficiency, due to its negligence, in its ears, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” It would add thereto, “or due to the violation by such common carrier of any statute enacted for the benefit of employees.” There is no reference in the opinion to the Wagner and Campbell Cases. It is likely that the attention of the court was not called to them. Had it taken note of them it is likely that it would have held that the way to solve the difficulty was to enlarge the meaning of the word “negligence” in the Federal Employers’ Liability Act from the limited significance which it attached thereto. It means “the disregard of some duty imposed by law.” This is broad enough to cover a breach of the absolute duty imposed by statute. The court carried its limited conception of the meaning of the word “negligence” into the matter of pleading. It held that an allegation of negligence in the plaintiff’s pleading under the Federal Employers’ Liability Act was not broad enough to cover violation of the Safety Appliance Act. It said: “The plaintiff’s declaration charged negligence only. The ground on which the ease was submitted to the jury was not negligence, but the *416breach of a duty or duties claimed to be imposed upon the carrier by the Safety Appliance Act and its supplements. No objection, however, was taken to the declaration on this account, and it may be regarded as amended to conform to the issue tried.” It took this same position in the later case of American Sugar Refining Co. v. Nassif (C. C. A.) 45 F.(2d) 321, 323. I would submit that the word “negligence” was broad enough to cover a violation of the Safety Appliance Act. The only trouble with it was its generality. It was such as to be subject to a motion to' make more specific. This case, however, is an authority for the position that recovery can be had on the Federal Employers’ Liability Act for a violation of the Safety Appliance Act. It is clear, therefore, that recovery can be had under the Federal Employers’ Liability Act for a breach of the duty prescribed by the Safety Appliance Act. Recovery can be had for such breach where no recovery can be had under the Federal Employers’ Liability Act. Recovery can be so had where the car was at the time of the injury not being used in or the employee engaged in interstate commerce. Southern Ry. Co. v. U. S., 222 U. S. 20, 27, 32 S. Ct. 2, 56 L. Ed. 72. In such a case no recovery can be had under the Federal Employers’ Liability Act. But where the car is being so used and the employee is .so engaged, as was the case here, recovery can be had under the Federal Employers’ Liability Aot for the violation of the Safety Appliance Act. Plaintiff could, therefore, have pitched her case on the violation of the Safety Appliance Act and sought recovery for such violation under the Federal Employers’ Liability Act. That the ear was being moved to the shop for repairs would not have been against her right to recover. Great Northern R. Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 60 L. Ed. 322; Texas & P. R. R. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874. Had she so done the action would not have been removable because of the prohibition in the Federal Employers’ Liability Act. This is an additional reason why defendant’s position is not well taken. The motion to remand is sustained.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218702/

CONGER, District Judge. The third party defendant herein, Todd Shipyards Corporation, has moved for leave to make Lamport & Holt Line, Ltd. a party to this action. Application is made pursuant to rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Motion is denied. This application is within the jurisdiction of the Court. General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671; Moore’s Federal Practice, 2nd Edition, Page 414, Paragraph 14.05. I denied the application because of the laches of the third party defendant. The action arises under the Jones Act, 46 U. S.C.A. § 688. The accident to plaintiff occurred on or about August 14, 1947. The action was commenced against Parry Navigation Company, Inc. on September 15, 1947. The answer was served on October 5, 1947. On or about April, 1949 defendant Parry Navigation Company, Inc. impleaded as third party defendant Todd Shipyards Corporation, by motion. On May 26, 1949 a deposition of an eyewitness to the accident was taken in San Francisco, California. The attorney for the plaintiff, the attorney for the defendant Parry Navigation Company, Inc., and the attorney for Todd Shipyards Corporation were present. On January 11, 1950 depositions of other witnesses were taken on which occasion attorney for Todd Shipyards Corporation was present. This motion was originally returnable on February 14, 1950 but was adjourned until today, February 21, 1950. The case was placed on the calendar on October 5, 1947 and appeared on the reserve calendar in the latter part of the year 1948. On January 23, 1950 the case was on the day calendar, No. 19. During the week of February 6, 1950 the case was near the top of the calendar. On Thursday, February 9, 1950 the case was No. 3 on the day calendar. On February 10, 1950 Todd Shipyards Corporation served the motion papers to implead. The case is now No. 2 on the calendar and is awaiting assignment to a trial part. It may be reached at any time now. The impleading of this third party defendant will greatly delay the trial. For that reason I feel I should not grant the motion.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218704/

SMITH, District Judge. This is a civil action under the False Claims Act, 31 U.S.C.A. § 231, to enforce the liability imposed by the Act upon those guilty of its violation. The action is before the Court at this time on the motion of the defendants, filed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss the complaint and the amended complaint. The motion is resisted by the plaintiff. History of Litigation This action was commenced on March 30, 1943. The complaint then filed alleged that the defendants “did unlawfully, wilfully and feloniously combine, conspire, confederate and agree together and with each other, and with other persons unknown, to defraud the United States of America, by obtaining and aiding to obtain the payment and allowances of false and fraudulent claims.” This allegation followed the language of the Act. The complaint further alleged that the defendants in furtherance of the conspiracy “would submit and cause to be submitted * * * for approval, allowance and payment, billings, vouchers, invoices and claims certified to be genuine, just, true and correct, which, as the defendants well knew, included false and fraudulent vouchers, invoices and claims for the sale of building supplies, materials and tools and for the rental of equipment.” The transactions upon which the claim for relief is based were recited generally but in sufficient detail to apprise the defendants of their nature. A criminal prosecution against several of the present defendants, but not all of them, was instituted on March 30, 1943. The indictments then returned were superseded by indictments which charged the same defendants with violations of Section 35 of the Criminal Code, as amended, 18 U.S.C.A. § 80 [now §§ 287, 1001]; these indictments were returned on' April 26, 1944. The defendants were tried on the latter indictments and acquitted of the charges therein contained. The verdict was returned on February 16, 1946 and a judgment thereon was duly entered. It may be assumed that the criminal charges were based upon substantially the same transactions as the present civil action. The defendants filed motions to dismiss the original complaint and, in the alternative, for a more definite statement. These motions were filed on April 24th, 27th and May 13th, 1943, while the criminal action was still pending. Thereafter the parties to this action executed and filed a formal stipulation by which they .agreed first, that the motions “be removed from the calendar of causes to be argued, subject to being reinstated by consent of the parties;” and second, that “no further proceedings * * be taken * * * until disposition of” the said motions “unless the parties otherwise stipulate.” The motions were “removed from the calendar of causes to be argued” by order of the Court. The present civil action was permitted to remain in abeyance until April 21, 1949, when, the criminal action having been terminated, the plaintiff filed an amended complaint. The present motion, which is addressed to the original complaint and the amended complaint, was filed on May 6, 1949. Statute of Limitations The motion to dismiss the amended complaint is predicated on the ground that the claims therein asserted are barred by the statute of limitations. The defendants rely on 31 U.S.C.A. § 235.1 It is argued that the statutory provision is a limitation not only on the right of the plaintiff to maintain the present action but also on the jurisdiction of this court. We agree with this construction. United States ex rel. Nitkey v. Dawes, 7 Cir., 151 F.2d 639, certiorari denied 327 U.S. 788, 66 S.Ct. 808, 90 L.Ed. 1015; see also Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534, and the cases therein cited; Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 178 F.2d 253. It is further argued that the *326amended complaint introduces additional claims which are not within the scope of the claims stated in the original complaint. We cannot agree with this argument. It is our opinion that the allegations of the amended complaint do not attempt to state additional claims not embraced within the general claim stated in the original complaint. The original complaint states generally a claim for relief under the pertinent provisions of the Act; the general allegations of ultimate facts are sufficient to apprise the defendants of the nature of the claim thus stated. The amended complaint adds nothing to the original complaint except the particularity which was obviously lacking in the latter; the transactions embraced' within the general allegations of the latter are particularized in the allegations of the former. It would appear that the amended complaint has been made to fulfill the purpose of a bill of particulars. The attention of the litigants is directed to the motions addressed to the original complaint and particularly to paragraph (6) of subdivision B. The request for particulars reads as follows: “List all of the claims which the plaintiff alleges these defendants obtained or aided to obtain the payment and allowance of, which claims are alleged to be false and fraudulent and which enabled defendants to obtain secret and unlawful profits, benefits and emoluments, and detail the items- which are alleged to be false and fraudulent.” The claims which the plaintiff alleges were false and fraudulent are listed and adequately identified in paragraphs 6 and 7 of the amended complaint. It is on the allegations of these paragraphs that the defendants rest their argument. The plaintiff had a right to amend the complaint as a matter of course and without leave of the court, no responsive pleading having been filed by the defendants. Rule 15(a) of the Rules of Civil Procedure. We concede that the most liberal construction of this Rule will not permit the introduction of additional claims which have been barred by the statute of limitations, but no such attempt was here made. The transactions particularized in the amended complaint apparently arose out of and were incident to the transaction generally set forth in the original complaint. The amendment therefore “relates back to the date of the original pleading.” Rule 15(c) of the Rules of Civil Procedure. It should be noted that the defense of the statute of limitations may not be raised on a motion to dismiss the complaint. The defense is one which must ordinarily be pleaded in the answer. We have considered it only because it appears to be jurisdictional, as hereinabove stated. It should also be noted that this Court's decision on the question raised by this ground is predicated solely on the pleadings, the complaint and the amended complaint. The defense of the statute of limitations may, therefore, be asserted by the defendants in their answer, notwithstanding this decision. The evidence offered on the trial of the action may disclose that additional claims have been introduced by amendment of the complaint, a fact not apparent on the face of the present record. Defense of Res Adjudicata The defendants move to dismiss the complaint and the amended complaint on the ground that the present civil action is barred by the judgment entered earlier in the criminal action. It is argued that the issues of the present controversy were adjudicated in the criminal proceeding. It seems unnecessary to discuss the question here raised. The arguments advanced by the defendants in the present case were considered and answered by the Supreme Court in Helvering v. Mitchell, 303 U.S. 391, 395, 58 S.Ct. 630, 82 L.Ed. 917, et seq., and United States ex rel. Marcus v. Hess, 317 U.S. 537, 548, 63 S.Ct. 379, 87 L.Ed. 443, et seq. It is further argued that the prosecution of the present civil action will expose the defendants to double jeopardy. This argument was also considered and answered by the Supreme Court in the case of United States ex rel. Marcus, supra, a case directly in point. The defendants attempt in their brief to distin*327guish the cited case from the present civil action; the distinction seems tenuous and we see no reason to discuss it. Stipulation As Discontinuance The defendants contend that the formal stipulation filed on May 19, 1943 should be construed as a dismissal of the present action. This contention is clearly without merit. We are fully aware that Rule 41(a) (1) (ii) permits a voluntary dismissal of a pending action on a “stipulation of dismissal signed by all parties who have appeared in the action.” It is our opinion, however, that a stipulation should not be construed as a “stipulation of dismissal” in the absence of an unequivocal statement by the parties that it was so intended. There is no such unequivocal statement in the stipulation in question; in fact, the word “dismissal” does not appear in either the stipulation or the order entered thereon. The apparent purpose of the stipulation was to hold the civil action in abeyance until after the criminal action had been prosecuted to conclusion; if it had any other purpose, that purpose is not apparent upon the face of the stipulation. The defendants suggest that the filing of the amended complaint violated the terms of the stipulation. This is unimportant at this stage of the proceedings. The case has been pending in this court since 1943 and has been held in abeyance long after the termination of the criminal proceedings in 1946. This Court would have restored the case to the calendar sooner, despite the stipulation, if it had known of the apparent unreasonable delay. Failure of Complaint to State Claim This ground is not argued in the brief submitted by the defendants but it is stated in the motion. We have examined the complaint and the amended complaint and it is our opinion that they meet the requirements of the Rules of Civil Procedure. The requirements of the rules are satisfied by general allegations of ultimate facts sufficient to apprise the defendant of the nature of the claim except where, as here, fraud or similar matter is pleaded; the averments of fraud must particularize the circumstances constituting fraud. The complaint clearly meets these requirements. Rules 8(a) and 9(b) of the Rules of Civil Procedure. Conclusion The motion to dismiss the complaint and the amended complaint is denied. An appropriate order will be prepared by the United States Attorney and submitted to the Court on notice to the defendants. The defendants will have twenty days from the entry of the order within which to file answer, and the order shall so provide. . “Every such suit shall he commenced within six years from the commission of the act, and not afterward.”

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218705/

MEDINA, District Judge. ’Defendant Douglas Aircraft Company, Incorporated, moves to strike the cross-claim of defendant United Air Lines, Inc., pursuant to Rule 11, F.R.C.P., 28 U.S.C.A.; to dismiss the cross-claim pursuant to Rule 12(b), F.R.C.P.; for a more definite statement, pursuant to Rule 12(e), F.R.C.P.; and to strike certain paragraphs of the cross-claim pursuant to Rule 12(f), F.R. C.P. • Plaintiff herein states four claims against the defendant United, and two claims against the defendant Douglas. All the claims arise out of an airplane accident in which plaintiff’s decedent was killed. The defendant United was the operator of the airplane involved, and the defendant Doug-, las its manufacturer. The four claims against United are as ' follows: (1) Damages for wrongful death caused by United’s allegedly reckless, careless, and negligent operation of the aircraft; (2) Damages for wrongful death caused by United’s operation of the airplane when it was allegedly in need of repairs, and allegedly in violation of safety regulations promulgated by the United States Civil Aeronautics Authority, by the United States Civil Aeronautics Board, and by the defendant United itself. (3) Damages for the decedent’s pain, suffering, and loss of personal property on. the same grounds as (1) supra. (4) Damages for the decedent’s pain, suffering and loss of personal property on the same grounds as (2) supra. The two claims stated by plaintiff against the defendant Douglas are: (1) For wrongful death; and (2) For the decedent’s pain, suffering and loss of personal property; both on the ground that his death was caused by Douglas’ allegedly careless and negligent construction and design of the airplane involved. The cross-claim recites that the airplane which crashed was purchased by United from Douglas, that Douglas agreed that the airplane would meet all requirements “for Civil Aeronautics Authority certification in air carrier service at the take-off and landing weights and under the conditions set forth in the detailed specifications; Douglas also warranted to United that said airplanes would be free from defects in design and other defects arising from the manufacture thereof, and Douglas agreed with United that it would correct or repair such defects, including defects in design discovered or becoming apparent * * * ” within a specified period. There follow other allegations to the effect, in substance, that a defect was discovered which Douglas undertook to have corrected by making certain modifications in the airplane, specifying the modifications ; the making of the modifications; the return of the airplane to service by United in reliance upon Douglas’ approval and its allegedly superior knowledge and skill in designing, testing, and inspecting airplanes; *329and the subsequent accident in which plaintiff’s decedent was killed. United then sets forth an extract from plaintiff’s complaint against Douglas which alleges in part that “ * * * the said airplane was carelessly and negligently constructed by the defendant, Douglas, * * * ” and continues to specify the particular nature of the alleged negligence. The cross-claim continues: “10. If defective and hazardous conditions existed in said airplane by reason of faults and omissions on the part of Douglas, as alleged by the plaintiff, then Douglas breached its agreements with United * * * ,” specifying the nature of the breach. The first count of the cross-claim concludes: “If by reason of any of the foregoing matters United is liable to plaintiff in any amount, which it denies, then United is entitled to recover the amount of any such judgment from Douglas, together with all expenses incurred by it in defending against such claims.” The second count is identical to the first, except that it is based upon Douglas’ alleged negligence rather than upon a contractual duty. The initial question is whether United has stated a claim upon which relief -may be granted. The sufficiency of the statement of the two cross-claims must be determined without resort to the extensive affidavits and other extrinsic proofs which have been submitted. The language in paragraph 10 of the cross-claim — “defective and hazardous conditions” must be taken to refer to plaintiff’s allegations against United that the accident occurred as a proximate result of the operation of the airplane when it was in need of repairs, set forth in paragraph Twenty-Second of plaintiff’s complaint. Assuming arguendo and inter alia, that the jury finds that the airplane was in need of certain repairs, and that the negligent failure to make those repairs proximately caused the accident, United would be liable to plaintiff. Should the jury so find on the basis of sufficient evidence, there may be other evidence adduced in support of the cross-claim to warrant a finding that the defect or want of repair was primarily due to some breach by Douglas of a contractual or other duty owing to United. It seems to me that the provisions of Rule 13(g), concerning a cross-claim against a co-party, were intended to apply to this very type of situation. It follows that United has stated a good cross-claim against Douglas, since a pleading should not be dismissed for insufficiency “unless it appears to a certainty that [the pleader] * * * is entitled to no relief under any set of facts which could be proved in support of the claim.” Moore’s Federal Practice 2245 (2d Ed. 1948). The same conclusion was reached by Mr. Justice Schreiber of the New York Supreme Court in a case arising out of the same accident, Blue v. United Air Lines, Inc., 98 N.Y.S.2d 272. The complaint in that case differed to some extent from the complaint herein, but in substance both make the same claim: in the Blue case plaintiff’s claim concerning the hazardous condition of the aircraft is set forth with more particularity than it is here, but this is a difference in degree only. The motion to dismiss is denied. The motions to strike pursuant to Rule 11 and Rule 12(f) are denied. Cf. Blue v. United Air Lines, supra. The motion for a more definite statement, pursuant to Rule 12(e) is denied. Defendant Douglas may utilize discovery procedures against the plaintiff and against defendant United to secure whatever information it may require for preparation for trial. The cross-claim is sufficiently precise to enable Douglas to plead to it. Settle order on notice.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218706/

IRVING R. KAUFMAN, District Judge. Plaintiff and the individual additional defendants to the counterclaim of defendant Triangle Publications, Inc. (hereafter called “Triangle”) have moved for an order striking from the counter-claim certain paragraphs purporting to state a claim under the Robinson-Patman Act, 15 U.S.C.A. § 13 et seq. The complaint in the action alleges that the defendant corporations are publishers or national distributors of magazines and other periodicals; that for many years the plaintiff was the wholesale distributor for the defendants in and near New York City; that in or about 1947 the defendants entered into a conspiracy in violation of the Sherman Act, 15 U.S.C.A. § 1, to boycott the plaintiff and otherwise injure it; *331and plaintiff seeks treble damages and in-junctive relief under Sections 4 and 16 of the Clayton Act, 15 U.S.C.A. §§ 15, 26. The counterclaim by Triangle is against the plaintiff and four of its officers. Plaintiff and its officers seek to have stricken all averments relating to the Robinson-Pat-man Act in the following paragraphs on the ground that said averments are immaterial, impertinent and insufficient under Rule 12(f), Federal Rules of Civil Procedure, 28 U.S.C.A. “7. This Counterclaim is authorized by Section 4 of the Clayton Act (15 U.S.C., Sec. 15) for three-fold the damages sustained by the plaintiff for injury to its business and property by reason of the violation by counter-defendants of Secs. 1 and 2 of the Sherman Act (15 U.S.C., Secs. 1 and 2), and for the costs of this Counterclaim, including a reasonable attorney’s fee, and by the Robinson-Patman Act (15 U.S.C., Sec. 13-13c).” ‘ “14. Interborough was enabled thereby to and did discriminate unlawfully against Triangle by demanding and obtaining from Triangle a rebate of 3upon the cost of all magazines sold by Triangle to Inter-borough, which rebate Interborough did not demand or receive from certain other publishers favored by it. “15. Interborough was also thereby enabled to and did unlawfully require Triangle to sell magazines to it at less than the wholesale price paid by other wholesale distributors throughout the country, none of which reduced price was passed on by Interborough to the retail dealers or to the purchasing public, and all of which price differential was retained by Interborough for its own profit and use.” The paragraphs allege, in brief, that In-terborough demanded and obtained from Triangle a rebate of 3j^% of the cost of all magazines sold by Triangle to Inter-borough for distribution. The moving parties assert: (a) That the Robinson-Patman Act is aimed at the discriminating seller and not at one who is a buyer, such as Inter-borough. (b) That the counterclaim under the Robinson-Patman Act, if that Act is applicable, is insufficient for the following reasons: 1) As a condition precedent to a violation of the Act the discrimination in price must be practiced “between different purchasers”, and at least two purchases must have taken place; the counterclaim does not so allege. 2) There is no averment that Interbor-ough knowingly induced or received a discrimination in price. 3) There is no allegation of knowing participation in a price discrimination or that the discrimination in price involved commodities of like grade and quality. 4) There is no averment that there was a discrimination in price between competing buyers. 5) There is no averment in the counterclaim that the effect of such discrimination has been substantially to lessen competition or tend to create a monopoly. (c) If the Robinson-Patman Act is applicable, Triangle, having pleaded complicity, is barred. The first two grounds for the motion can be considered together. Plaintiff and the additional defendants have undoubtedly overlooked the section of the Robinson-Patman Act under which the counterclaim is brought. That section is 1(c) of the Act, 15 U.S.C.A. § 13(c) which provides as follows: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.” *332This section was passed primarily to deal with the situation of a large buyer or groups of buyers exerting pressure to obtain rebates and commissions on their purchases, as is alleged in the counterclaim in this case. See House Report No. 2287, 74th Cong., 2d Sess. (1936). Section 13(c) has been applied primarily to buyers in the cases that have been reported, and in these cases similar contentions to those urged under subdivision (b) above, have all been considered and overruled. Biddle Purchasing Co. v. Federal Trade Commission, 2 Cir., 1938, 96 F.2d 687, certiorari denied 1938, 305 U.S. 634, 59 S.Ct. 101, 83 L.Ed. 407; Oliver Bros., Inc. v. Federal Trade Commission, 4 Cir., 1939, 102 F.2d 763; Great Atlantic & Pacific Tea Co. v. Federal Trade Commission, 3 Cir., 1939, 106 F.2d 667, certiorari denied 1940, 308 U.S. 625, 60 S.Ct. 380, 84 L.Ed. 521; Quality Bakers of America v. Federal Trade Commission, 1 Cir., 1940, 114 F.2d 393; Webb-Crawford Co. v. Federal Trade Commission, 5 Cir,; 1940, 109 F.2d 268, certiorari denied 1940, 310 U.S. 638, 60 S.Ct. 1080, 84 L.Ed. 1406; Kentucky-Tennessee Light & Power Co. v. Nashville Coal Co. et al., D.C.W.D.Ky. 1941, 37 F.Supp. 728, affirmed sub nom. Fitch v. Kentucky-Tennessee Light & Power Co., 6 Cir., 1943, 136 F.2d 12, 149 A.L.R. 650. These contentions need not be further considered. Section 13(c) applies to buyers as well as sellers and the allegations of the counterclaim are sufficient to state a cause of action under that Section. As to the third ground.for the motion, Triangle’s alleged complicity, the Court has considered that contention thoroughly in an opinion handed down this day, Allgair v. Glenmore Distilleries Co., Inc., et al., D.C., 91 F.Supp. 93, and for the reasons stated in that decision is compelled at this time to- overrule the motion to strike based on complicity. This Court cannot lose sight of the fact that this application is addressed to the face of the counterclaim. It is therefore asked upon this application to determine whether on the face of the counterclaim the defendant Triangle is entitled to its day in court on the allegations based on the Robinson-Patman Act. While determination is made upon this motion' that the counterclaim, as challenged, is sufficient, it is apparent to this court that the counterclaiming defendant will encounter much difficulty at the trial in establishing on the merits its right to recover; for there must be established such strong compulsion which motivated the payment by the counterclaiming defendant as to amount to substantial economic coercion. Motion by plaintiff and additional defendants to strike paragraphs of the counterclaim is denied. Settle order in accordance with this decision.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218707/

McLaughlin, Judge. On February 9, 1950, the defendant, represented by two attorneys, Harry Hewitt, Esq., and John Alexander, Esq., of the firm «of Hewitt & Alexander, appeared in Court, and when the Government announced its ■desire to file three felony charges against the defendant in the form of an information the defendant waived his constitutional right and consented to the filing of the charges in that form. Immediately thereafter defense counsel informed the Court that the defendant waived reading of the information, and was ready to plead. (As will appear infra, the defendant and his attorneys had had for some time in advance a copy of the information.) Thereupon the defendant arose and when asked by the presiding judge regarding his plea as to each count, the defendant replied as to each count that he was guilty. The three pleas were recorded and the defendant adjudged guilty on each charge. The Court then called upon the Government for a statement of the facts, after which it gave the defendant an opportunity to be heard. Through his attorney, the defendant stated he had no excuses or explanations to offer. The defendant himself remained silent. A pre-sentence investigation was ordered by the Court, the due date of which was set as February 20, 1950. At the same time the Court stated that the defendant might do well to consider during the interval the matter of discharging his civil liability. The Court admonished the defendant, however, that it should be recognized that this judge usually sent tax dodgers to prison and that payment of the taxes and penalties on the civil side was not to be taken as an assurance that the defendant would not be sentenced to prison. The defense represented that it would, pending the arrival of the date set for sentence, look into the civil tax aspects of the case. Within a few days, the defendant in person, without either of his attorneys, appeared in this Judge’s chambers desirous of seeing the Judge about his case. Ilis request was refused. Still a bit later the Court received a telephone call from a friend who had been requested to see if he could intercede in the defendant’s behalf. The Court refused to listen. Within a day or so the defendant discharged his attorneys, and they were excused by the Court. The Court was then notified that Attorney Peter Lee and Attorney Garner Anthony, of the firm of Robertson, Castle & Anthony, would enter appearances for the defendant, and the Court consented to the new attorneys’ assuming the responsibility for defendant’s presence in Court on the date scheduled for sentence. On that date, February 20, 1950, the new attorneys appeared in Court with the defendant and requested (1) that the defendant be allowed to withdraw his pleas and (2) that since the attorneys had only recently been called into the case, time to check into the matter of the defendant’s civil liability. The first request was denied, while the second was granted to March 13, 1950, and the prior admonition of the Court *334as to its customary type of sentence in a tax case was repeated. Before the arrival of the new date for sentence, the defendant, acting through his attorney, Alfred L. Castle, represented that it was essential that more time be granted as the civil liability question required that the defendant employ an accountant to make an audit, especially since the Government had lost some of defendant’s canceled checks. The United States Attorney consenting, more time was granted to March 27, 1950. Near the expiration of this third period of time to consider payment of the civil liability, Attorneys Anthony and Lee represented that there had been turned up a $23,000 carry back item of loss which might result in there being no tax for the years 1946 and possibly 1945 and 1944, but that the Government would not accept it; hence more time was again needed. Having from the outset directed the Government to cooperate with the defendant if he was disposed to settle his civil liability, the Court stated it would grant more time if the Government agreed. Assistant United States Attorney Ingman, acting in the absence of Assistant Hoddick who handled the case, said he would confer with the Internal Revenue people, and report. This he did, reporting that there was no sense to granting still more time, and its reasons relating to the $23,000 matter, and others, would gladly be recited at a conference with defendant’s counsel. The Court directed that defendant’s counsel Anthony be telephoned and notified of the Government’s report. This was done by Assistant United States Attorney Richardson, to whom Mr. Anthony abruptly stated that there was no point to a conference to hear the Government’s reasons, and that therefore he would proceed to file a motion. The motion turned out to be the one now under consideration, a' motion to withdraw the pleas of guilty and to plead anew as not guilty. The motion was accompanied by an affidavit of the defendant, Attorney Castle, the defendant’s accountant, and Attorney Anthony. The date for hearing the motion was twice changed for cause, first at the Government’s request and then at Attorney Anthony’s request. Finally, the motion came on for hearing on May 16. Though on February 20 an oral motion of like nature had been denied, the proportions of this formal motion dictated that the matter be considered again. The defendant first argued that under Rule 32, Federal Rules of Criminal Procedure, 18 U.S.C.A., the motion must be granted as a matter of right. This the Court denied, holding that disposition of the matter rested in the area of judicial discretion. United States v. Searle, 7 Cir., 1950, 180 F.2d 209. See generally Taylor v. United States, 9 Cir., 1950, 179 F.2d 640, and especially the second petition for rehearing, 182 F.2d 473, May 23, 1950, by the United States Court of Appeals for the Ninth Circuit. Next it was contended the four affidavits should move the Court to grant the motion. The Court pointed out that the only relevant affidavit was the defendant’s, and that stated only conclusions. A recess was taken to allow the defendant to decide if he wished to submit evidence in support of his factual conclusions. After the recess the defendant took the witness stand. He testified on direct examination that he had employed Hewitt & Alexander after receiving a letter from the Department of Justice. This he said was but a few days before pleading on February 9. He further said that he talked to Hewitt several times about his plea and the amount of the tax stated in the information (this, of course, was before it wás filed in Court), and that Hewitt told him, “ * * * I am guilty even if I owed them $1, I am guilty just the same, so it is best to plead guilty”; that Hewitt never talked to defendant’s bookkeeper, nor did he recommend hiring an accountant, and made no investigation prior to the date defendant plead guilty. The defendant said he had never been in Court before; that Hewitt said the information stated all the taxes he owed — but after the plea raid he *335owed more than that (civil liability). Goo said Hewitt advised him to plead guilty, as he said, “I have no other alternative but plead guilty” and that if he argued about entering “a plea” the Court, “ * * * he say he put me a long-term sentence * * * the best for me to do is keep my mouth shut, not to say anything.” The defendant added that after plea, his accountants had discovered errors made by the United States, especially a $23,000 item of which he was ignorant when he plead guilty ; that Hewitt said that could be taken up with the Internal Revenue. Goo restated that he plead guilty because, “Mr. Hewitt told me to plead guilty in this case.” When asked the basis of his “fear, ignorance and confusion” stated in his affidavit, Goo said, “Well, according to my attorney told me that it is best for me to plead guilty rather than saying anything at all. If I do, why I going to be sentenced to a long-term prison.” so he decided to follow his advice. Upon cross-examination Goo admitted that he received the Department of Justice tax letter in January, employed Hewitt & Alexander and took advantage January 19 •of the hearing which the Government •offered. At the administrative hearing, defendant and his counsel were present, were ■given an opportunity to examine Goo’s records which were in the Government’s custody, and did so, the invitation to inspect them being one which continued even after the hearing. When asked if after .the administrative hearing and at a conference in the United States Attorney’s •office Hewitt had not explained to Goo the difference between criminal and civil tax liability, and if he did not recall the Government then and there telling him his civil liability was between thirty five and forty thousand dollars, the defendant testified, “No, I don’t. * * * I don’t remember that, but I asked, * * * ‘Is that all the amount owing in the affidavit?’, he say, ‘Yes, it is plainly written there.’ ” He again denied remembering being told by the Government the amount of his civil liability. Asked if his “fear” did arise after he heard the Court’s statement after he had plead guilty, Goo said — twice breaking into the question, “Before that. * * * Before that. * * * No, the fear was before that when Attorney Hewitt told me best for me to plead guilty. I told him, ‘That is not the amount I am owing, $7,400 or $7,500.’ He told me even if I am owing one dollar, I am guilty just the same, so it is best not to argue about it, that is, to keep my mouth shut.” Goo also denied remembering a second conference with his attorneys and Government counsel before the information was filed, at which again civil liability was distinguished from criminal, and he further denied remembering that at said conference his assets were listed to see if he could pay his civil liability. Goo claimed such occurred after his pleas, and after he discharged Hewitt & Alexander and employed new attorneys. The defense thereupon rested, and the Government called in opposition subpoenaed witness Attorney Harry Hewitt. The defendant promptly claimed that Attorney Hewitt could not testify because the defendant claimed the attorney-client privilege and had not waived it by himself testifying. The Government, relying upon Hunt v. Blackburn, 1888, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488, submitted (1) that the defendant waived his privilege by failing the motion charging his former attorneys with unprofessional conduct, and (2) clearly by testifying. After due consideration of the tense point, the Court, citing Cooper v. United States, 6 Cir., 1925, 5 F.2d 824, ruled (1) it was not satisfied that the defendant’s affidavit explicitly or clearly charged Hewitt and Alexander with unprofessional conduct, but (2) he did so in his testimony and (3) had also waived the privilege by putting in issue the exact nature of his former attorney’s advice. Accordingly, holding that the defendant by his testimony had waived his privilege, the Court allowed Hewitt to testify as to, and only as to, the advice he had given the defendant, excluding any facts coming to his knowledge from the defendant under the attorney-client relationship. Attorney Hewitt testified that he had practiced law for thirty years, had had *336some tax law experience, and had been hired by Goo when the defendant received the Department of Justice letter in January, that an administrative hearing with the tax officials was had, with the defendant and his bookkeeper present, and they had an opportunity to examine defendant’s books. Hewitt testified that after the hearing, at Hewitt’s office, with Attorney Alexander present, he said to Goo, “Alfred, how are you going to explain all of that?” whereupon the defendant threw up his hands and said, “It is no use. I might as well give up.” Hewitt stated he then asked the defendant, “Do you mean plead guilty ?” to which Goo said, “Yes.” That occurred January 20, and at no time thereafter did Goo indicate that he had changed his mind about what he should do; indeed, “it never was discussed again, that is, in the way of any doubt in his mind as to what he should do.” Hewitt stated that the Government gave him an advance copy of the information on February 6, which he at once gave to Goo, who asked to take it overnight and to discuss it with his bookkeeper; that when Goo brought it back he was asked if he had any complaint as to it, or if he had any defense to it, to which he said, “No.” Hewitt also testified that prior to plea there was a discussion of Goo’s civil liability, that Goo when told at the conference that it was thirty five to forty thousand dollars did object that it couldn’t be so high and that then and there Hewitt broke it down for him into tax and penalty and interest for the three years involved, and that Goo’s assets were counted up to see if he could pay the civil bill. Hewitt denied ever telling Goo that if he argued about pleading he would get a long sentence. Upon cross-examination Hewitt was not examined as to his direct testimony, but an endeavor was made to reveal that Hewitt talked to the Government about this motion, before its hearing, without Goo having released him from the bond of the client’s privilege. Hewitt took the position that the affidavits annexed to the motion charged him with unprofessional conduct, and hence the mere filing of such by Goo was a waiver of the privilege. A similar situation arose when subpoenaed witness Alexander was called to testify. The Court ruled the same way, and Alexander also testified. Although an endeavor was made by way of argument to claim Alexander contradicted Hewitt, the argument finds no support in the record unless one, purposely chooses to ignore the time factor or the substance of the testimony of each. Alexander was asked by Government counsel if he or Hewitt recommended to the defendant that he should enter a plea of guilty. Alexander answered, “We did, but if I may — * * * The circumstances were made after we had on several occasions attempted. to elicit from the defendant an explanation of certain matters which appeared to us to be extremely condemning and extremely serious and he had refused, or failed to produce the names of witnesses or any evidence which would enable us to defend him on charges.” Asked if the defendant said anything about pleading, Alexander said, “I don’t recall his exact statement at any time, other than I do recall his saying some words to the effect of: Well, what is the use? Or words to that effect.” Alexander also denied ever telling Goo to keep his mouth shut else he might go to prison for a long term, and in sum clearly described the situation as had Hewitt, especially as to Goo’s knowing the difference between his criminal and civil tax liability. William J. Doherty of the Internal Revenue Intelligence Unit testified corroborating Hewitt and Alexander as to details of the administrative hearing and conferences attended by the defendant. The defendant presented no rebuttal. Thereupon the parties argued the motion. During the argument the Court pointed out to defense counsel that the motion would have at least “smelled sweeter” if defendant had not endeavored to' talk to the Court (supra) or had not had a person try to intercede with the Judge for him (supra). At the end of the argument, passing over much that might have been said, the Court announced its ruling that the defend*337ant had provided no basis upon which the Court could exercise its discretion in favor of the motion; therefore it was denied. June 1 was set for sentence, and the matter of the civil liability referred to again in the same language as had been used twice before — save that June 1 was fixed as the final date.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218708/

McLaughlin, judge. Heretofore on May 31, 1950, a memorandum was filed recording the reasons for denying defendant’s motion under Rule 32 (d), Federal Rules Criminal Procedure, 18 U.S.C.A., for a change of plea. The motion being denied, 10 F.R.D. 332, judgment and sentence followed. Upon giving notice of appeal, the question arose as to whether or not, pending appeal, execution of sentence should be stayed and the defendant admitted to bail. Defendant’s major contention upon appeal is that before sentence he had an unqualified right to change his plea, and hence his motion should have been granted as a matter of course. This Court’s ruling that the grant of such motions, whether made before or after judgment and sentence, rests within the area of judicial discretion' — • despite the inference of Rule 32(d) — is therefore assigned as error. Defendant’s subsidiary contention is that even if the above ruling was right, the Court, upon the evidence, abused its discretion in denying the motion. All of the examined cases upon the point (even before the new rules), including the most recent ones, such as Taylor v. United States, 9 Cir., 1950, 179 F.2d 640; Id., 9 Cir., 182 F.2d 473 and United States v. Searle, 7 Cir., 1950, 180 F.2d 209, are, to be sure, instances of a motion made after sentence, and there is no intimation that the rule is different as to a motion made before sentence. It is because of this lack of unequivocal authority in the before area, plus the possible inference from Rule 32(d), that defendant predicates his basic hopes upon appeal. Of defendant’s right to appeal, there is no question; that is clearly an unqualified right. But should he, having plead guilty, be admitted to bail ? Though “judges are apt to be naive men,” as Circuit Judge Healy attributes to Justice Holmes in Hardyman v. Collins, 9 Cir., 1950, 183 F.2d 308, the transparency of this appeal allows one to see way back into the record to the time the Court first indicated that it usually sent tax evaders to *338prison. I cannot see much merit to the before and after distinction, in,point of substantive law, especially in these days of required pre-sentence reports, Rule 32(c) (1). A defendant may upon seeing the shadow of things to come suddenly, for obvious reasons, wish to change his position before sentence, as well as wish after a disliked sentence to gamble anew in hopes of getting a different and lighter sentence. If a motion to change a plea of guilty to one of not guilty must be granted as of right without any adequate supporting reasons, what is there to prevent a defendant with a gambling instinct from announcing, by way of interruption, as the Court says the first few words of the formula by which defendants are committed to the Attorney General’s custody for imprisonment, that he wishes to change his plea? If there be a right to change a plea before sentence, it must exist even under such circumstances. Then, too, even the Congress in Section 3772 of Title 18 United States Code Annotated, in giving the Supreme Court power to prescribe procedure after verdict, spoke only of preserving the “right * * * to apply for withdrawal of a plea of guilty * * * before sentence * * * ” [italics added], and not of an absolute right. It seems to me that the asserted right must, both before and after sentence, be predicated upon good and sufficient reasons, or it cannot be exercised. However, it is not for me to review my ■own ruling. I well may be in error— again! The spirit of D’Aquino v. United States, 9 Cir., 1950, 180 F.2d 271, 272, by Circuit Justice Douglas prompts me to say that upon an inference from Rule 32(d) and in the absence of decided cases stating clearly the rule by which motion's to change pleas before sentence are to be disposed of, the question is “fairly debatable (i. e. substantial)” under Rule 46(a) (2). In any event I would rather be reversed than take from a man days of freedom which can never be restored to him. By admitting defendant to bail, as I do, he will serve no less time if my ruling be sustained. Bond set in the sum of Five Thousand Dollars ($5,000).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218709/

CONNALLY, District Judge. This is an action for personal injuries allegedly received by the plaintiff, a longshoreman, on August 27, 1948 when he fell through an open hatch on the S. S. Hawaiian, which vessel was being loaded at Houston, Texas. The plaintiff alleges that he was rendered unconscious and received serious injuries which required hospitalization for many weeks. He sues both Is-brandtsen Company, Inc., and American-Hawaiian Steamship Company, Inc., allegedly the operator and owner of the vessel. The plaintiff has filed interrogatories under Rule 33, Federal Rules of Civil Procedure, of a very general character and likewise has filed motion under Rule 34, seeking an order of this Court to require the defendants to produce and permit the in • spection of various instruments and documents as hereinafter set out. The discovery sought by the plaintiff under the two rules is most sweeping, and in a number of instances demand is made for the same data and information under both Rules 33 and 34. The motion under Rules 34 was set for hearing March 24, 1950, and it was agreed by counsel at that time that the objections of the defendants to certain of the interrogatories propounded under Rule 33 might be argued, and the right of the plaintiff to the discovery under either or both rules might be determined. Briefly stated, in the motion under Rule 34 the plaintiff requests the production of and right to inspect and copy the following: (1) Logbook of the S. S. Hawaiian, Aug. 25 to Sept. 1, 1948; (2) “All statements obtained from any and all persons who purported to be witnesses or have any knowledge regarding *340the accident and injury' sustained by Plaintiff herein * * * ”; (3) Inspection and photographing of the ■deck of the vessel where the plaintiff allegedly received his injuries. Among the interrogatories propounded ■under Rule 33 which the defendants have declined to answer are the following: “State all of the facts relating to the injury to plaintiff on said date as to which you, or any of your representatives, have obtained information.” “Attach true copies of all written statements obtained from any and all persons who purport to be witnesses-or have any knowledge regarding the said accident and injuries sustained by said plaintiff, or any matter connected with or related thereto, and true copies or memoranda of any oral statements which you, or your representatives, have obtained or received from such persons. If any of the said statements are alleged to be privileged, state the date and place where taken, the name, address and job classification of the person giving or Tendering the statement or report and the ■name, address and job classification of the person to whom addressed or- taking the ■same.” “State whether plaintiff made any statements or reports to you, or your representatives, orally or in writing, and if so, attach a true copy of the same, or memorandum thereof.” At the time of oral argument, I indicated ■to counsel that the logbook for the dates in ■question should be furnished; that the names and addresses of the members of the ■crew of the S. S. Hawaiian should be furnished; and that the plaintiff or his representatives should be afforded an opportunity to examine, inspect and photograph such portions of the vessel as he desired. I had grave doubt as to whether the defendants should be compelled to produce the statements of witnesses, reports, communications and other such data procured in preparation .for trial and for which demand’was made. In view of the liberal interpretation to •which the rules of discovery are entitled, however, I reserved judgment on the matter •until considering at length the authorities which counsel might submit. I have received lists of authorities from counsel for the parties and have examined them carefully. As in every problem dealing with discovery under the Federal Rules of Civil Procedure, resort must first be had to Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. Many of the questions raised here are answered in that opinion. While some of the data called for may be, the majority of that described in plaintiff's demands is not privileged, Hickman v. Taylor, supra, 329 U.S. at page 508, 67 S.Ct. at page 392. Despite the want of privilege, the production of written statements of witnesses (including the plaintiff), memoran-da of any oral statements procured, or reports made by its employees to the defendants or their attorneys may not be compelled unless good cause is shown therefor. Hickman v. Taylor, supra, 329 U.S. at pages 510-511, 67 S.Ct. at page 393; Martin v. Capital Transit Co., 83 U.S.App.D.C. 239, 170 F.2d 811; Cleary Bros. v. Christie Scow Corp., 2 Cir., 176 F.2d 370. Hence, I shall deny the demand of plaintiff that the defendants answer interrogatories under Rule 33 (which, of course, does not require good cause) wherein such interrogatories make inquiry concerning the existence of, or require the production of statements of witnesses, memoranda of oral statements, reports, communications and similar data which the defendants’ files may contain. Obviously, a party cannot require copy of an instrument by demanding it as answer to an interrogatory under Rule 33 where he would only be entitled to production of the original by proceeding under Rule 34 which requires that good cause be shown for its production. Passing to Rule 34, what good cause does the plaintiff allege which would justify an order for the production of these documents? What compelling reason does he give to warrant deviation from “the public policy underlying the orderly prosecution and defense of legal claims” which protects the work of an attorney from scrutiny by his adversary, Hickman v. Taylor, 329 U.S. at page 510, 67 S.Ct. at page *34139.3 ? Plaintiff alleges that he was working as a longshoreman, employed by Gulf-Tide Stevedores, Inc., of Houston, Texas, in loading the vessel; that he was temporarily rendered unconscious as a result of the accident and was hospitalized for several months thereafter; that by reason thereof he was unable, at least for the period of hospitalization, to contact the longshoremen who were working with him or the members of the crew of the Hawaiian, and that he is unable to locate these witnesses to the accident. He alleges that the names and addresses of these people are known to the defendants, and that the defendants have conducted an investigation and have the results and products of such investigation in their possession; he alleges further that he “is a working man and has no funds with which to conduct an investigation”. No reason is shown here why an investigation made locally through plaintiff’s former employer might not disclose the names of the longshoremen who were working with him. In opposition to plaintiff’s contention, defendants’ counsel attaches an affidavit to the effect that counsel for the plaintiff had stated to him that he (plaintiff’s counsel) had obtained statements from a number, if not from all, longshoremen eyewitnesses to the accident. At any event, the names of the plaintiff’s coemployees are as available to him as to the defendants, and I find no good cause requiring the defendants to procure such information and then furnish it to the plaintiff. As stated above, I have heretofore directed that the defendants furnish plaintiff a list of its own crew members, and the defendants have done so. Plaintiff invites my attention to the fact that the home addresses of such witnesses are outside of the State of Texas, and alleges that reason as good cause requiring the production of their statements. Obviously, it will cause ■some inconvenience to plaintiff or his attorneys to contact such witnesses, but no doubt it has been inconvenient and expensive for his adversaries to do so. No reason is shown why depositions of the absent witnesses may not be procured. In this connection, I might state that it is common ’¡knowledge that insurance companies and other large concerns who frequently are confronted with the defense of litigation often employ investigators and attorneys to conduct such investigation for them; frequently they are promptly and completely made and no doubt result in lightening the burden of their trial attorneys. The Court is not blind to the fact, however, that a laboring man has certain similar advantages at his command. Many competent attorneys with an extensive personal injury practice maintain their own investigators who perform similar functions on behalf of their clients. Through their membership in labor organizations, their hiring halls and other such contacts, frequently the location of witnesses, the procuring of their statements, and other phases of investigation of a personal injury action are handled more speedily and efficiently on behalf of a plaintiff than a defendant. It is my opinion and I hold that the absence of the witnesses from this state is insufficient cause to warrant an order requiring production of the statements of such witnesses, Berger v. Central Vermont R. Co., Inc., D.C., 8 F.R. D. 419; Reeves v. Pennsylvania R. Co., D. C., 8 F.R.D. 616. Obviously, production of copy of the plaintiff’s own statement, if any, made to the defendants is not for the purpose of giving the plaintiff any information as to the facts. As was admitted in Hickman v. Taylor, plaintiff’s counsel here no doubt seeks such copy better to prepare his case for trial; so that he may know what testimony his client heretofore has given, and take care that his testimony at the trial is reasonably consistent therewith. There is no showing that such statement, if any, was procured while the plaintiff was not in full possession of his faculties; nor is any reason given why his present version of the facts should differ from the original. In my opinion, there is no good cause shown for the production of plaintiff’s own statement. I am fully aware of the fact that the District Courts are not in harmony in their decisions upon the matters hereinbefore discussed. No doubt, always a conflict will be found in opinions of the inferior courts where the exercise of wide judicial discre*342tion is required. Counsel for the plaintiff has cited Blank v. Great Northern Ry. Co., D.C., 4 F.R.D. 213; Mulligan v. Eastern S.S. Lines, D.C., 6 F.R.D. 601; Kirshner v. Palmer, D.C., 7 F.R.D. 252; Wild v. Payson, D.C., 7 F.R.D. 495; Newell v. Capital Transit Co., D.C., 7 F.R.D. 732; Lindsay v. Prince, D.C., 8 F.R.D. 233; Hayman v. Pullman Co., D.C., 8 F.R.D. 238; Martin v. N. V. Nederlandsche, etc., D.C., 8 F.RD. 363; Alltmont v. U.S., D.C., 87 F.Supp. 214, 1949 A.M.C., p. 1750; Henz v. U.S., D.C., 9 F.R.D. 291, 1949 A.M.C., p. 1769; O’Neal v. U.S., 79 F.Supp. 827. Most of these cases substantially support the plaintiff’s contention and compel the defendants to open their files, requiring very little, if any, good cause therefor. Notable in this interpretation is the District Court for the Eastern District of Pennsylvania being the Court of origin of Hickman v. Taylor, Alltmont v. U.S., and O’Neal v. U.S., cited above. Reversing the action of the Trial Court in the O’Neal and Alltmont cases, the Court of Appeals for the Third Circuit stated: “At the beginning of our consideration we "note that the court below, the United States District Court for the Eastern District of Pennsylvania, stands almost alone in the construction which it has placed upon these Rules. The many other district courts which have considered the question have, with virtual unanimity, taken the contrary view that the production of copies of statements of witnesses may not be compelled as of right under Admiralty Rule 34 or its counterpart Civil Procedure Rule 33 and that the production of such statements for examination or copying may only be compelled upon a showing of good cause therefor under Admiralty Rule 32 or its counterpart Civil Procedure Rule 34.” Allt-mont v. U.S., 3 Cir., 177 F.2d 971 at page 974. In addition to the cases heretofore cited, others which I consider to constitute the weight of authority and support my holding here are Prelli v. Shepard S. S. Co., D.C., 75 F.Supp. 220; Gill v. Col-Tex Refining Co., D.C., 1 F.R.D. 255; U.S. v. 5 Cases, etc., D.C., F.R.D. 81; Walsh v. Pullman Co., D.C., 9 F.R.D. 107; Safeway Stores, Inc. v. Reynolds, D.C. cir., 176 F.2d 476. The motion under Rule 34 is granted in so far as it demands production of the log of the S. S. Hawaiian from Aug. 25 to Sept. 1, 1948; production of list of crew members of the S. S. Hawaiian; and in so far as it requests the right to inspect and photograph portions of the vessel. If, as I am advised is the case, the vessel has been sold abroad and is not available, plaintiff may have an order requiring that the defendants make available any photographs they may have thereof, with the defendants to have the right to bring to the Court’s attention any objections which they may have to such disclosure of particular photographs prior to entry of the order. Motion will be denied in so far as it demands production of all statements of witnesses and other similar data therein called for. Clerk will notify counsel, and counsel for plaintiff will present decree.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218710/

JONES, Chief Judge. This is an action to set aside and recover a preferential transfer. Defendant previously moved for a more definite statement of the complaint which motion was sustained primarily because plaintiff did not oppose the motion. Plaintiff, pursuant to Federal Rules of Civil Procedure, rule 52(b), 28 U.S.C.A., now moves to vacate the order and to compel the defendant to resort to the rules of discovery for the information desired. It is, I believe, sufficient to point out that the motion for a more definite statement is provided for in the rules. A defendant can still make use of this motion to obtain information necessary for the preparation of his answer. The Court, in granting the motion, acted well within its discretion and no reason has now been given for a reversal of the former ruling except that plaintiff does not wish to amend his complaint. If plaintiffs attorney had spent as much time in opposing the motion as he now does to set the order aside, it is likely that he would not now be faced with the necessity of amending his complaint. A Court is entitled to the aid of attorneys in all its determinations, and an attorney cannot complain when he neglects to give this aid and the resulting decision is unfavorable to his client. The motion will be denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218711/

FAKE, Chief Judge. The issues here arise on motion for summary judgment pursuant to Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. *344The Court is called upon here to pass upon the truth of an affidavit made by a government attorney, the substance of which is in direct conflict with a well-pleaded allegation in the answer. There is nothing in the' affidavit to disclose personal knowledge by the affiant as required by Rule 56(e). It appears to be based largely on hearsay. The courts in this Circuit are stripped of all power so to do. See Hart & Co. v. Recordgraph Corp., 3 Cir., 169 F.2d 580; Reynolds Metals Co. v. Metals Disintegrating Co., D.C., 8 F.R.D. 349; affirmed, 3 Cir., 176 F.2d 90. The issues involved require more than is disclosed by this cold record. See my opinion in U. S. A. v. Sabatino, D.C., 10 F. R.D. 274. Moreover, the admissions demanded here are substantially denied under oath. The motion for summary judgment is, therefore, denied in all things.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218712/

THORNTON, District Judge. The Court has been asked to determine the validity of defendant’s objections to certain of plaintiffs interrogatories and to further determine the validity of the plaintiff’s objections to certain requests set forth in the defendant’s Motion for Production. The plaintiff’s within cause of action involves royalties under license agreements. The relief prayed for includes “a preliminary and final injunction against further infringement of plaintiff’s exclusive field and those controlled by plaintiff; an accounting for profits and damages, and assessment of costs against the defendant.” Interrogatory No. 3 is objected to by the defendant on the ground that it asks for an opinion. The pertinent part of the question reads: “State number of defendant’s owned or controlled patent which covers each type of weight so manufactured and sold by defendant.” This question appears to be propounded for the purpose of eliciting a factual answer rather than an opinion and should, therefore, be answered. Hoak v. Empire Steel Corp., D. C., 5 F.R.D. 330. It is quite apparent that Interrogatory No. 21 is asking for an opinion and the construction of a patent claim, and under the authority of the Hoak case, supra, as well as numerous other cases, should not be answered. Interrogatories Nos. 4, 8, 9, 10 and 13 are all objected to by the defendant as going to the quantum of damages and therefore not proper at this time. The rule here relied upon by defendant in relation to his objection, while applicable in a patent infringement case, has no application to the instant matter. Boysell Co. v. Colonial Coverlet Co., D.C., 29 F.Supp. 122; Unlandherm v. Park Contracting Corp., D.C., 26 F.Supp. 743; Rules 33 and 26(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. Since the information sought is not privileged, and is relevant to the subject matter of plaintiff’s claim, objections to Nos. 4, 8, 9, 10 and 13 of plaintiff’s interrogatories are overruled, and the defendant is required to answer the same. The plaintiff objects to requests No. 1 through 6 of defendant’s Motion for Production on two grounds, which will be given separate consideration. The basis for the first ground of plaintiff’s objection is that since the purpose of the production is to aid the defendant in establishing its affirmative defense of unclean hands, such production should not be compelled because the equitable defense of unclean hands is improperly pleaded in a law action. In view of the relief prayed for by this plaintiff in his Bill of Complaint, we are unable to agree with the plaintiff that his action is one in law rather than in equity. However, Rules 1, 2 and 8(e) (2), 28 U.S.C.A., are controlling and for this reason we hold that the first ground on which plaintiff bases his objection to requests Nos. 1 through 6 is not valid. The second basis of plaintiff’s objection is that of privilege. As to requests Nos. 1 through 4 this objection is overruled and the Motion for Production is held to be proper. As to requests Nos. 5 and 6, it is our opinion that the information sought falls within the class of privileged matter and we, therefore, sustain plaintiff’s objection and will not require the production of the matter set forth in these two paragraphs. Let an Order be prepared in accordance with this memorandum.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218714/

NEVIN, Chief Judge. On May 23, 1949, defendant filed a document in which it submitted sixteen interrogatories to be answered by plaintiff, asserting that the interrogatories were submitted under the authority of Rule 33 of' the Federal Rules of Civil • Procedure, 28; U.S.C.A. On June 2, 1949, plaintiff filed a document entitled “Plaintiff’s Answers and Objections to Interrogatories Propounded by Defendant”. In the document filed on June 2, 1949, plaintiff sets forth its answers to each of the interrogatories respectively, except as to the following numbered interrogatories, as to which it filed its objections either with regard to the interrogatory as a whole or as to a part thereof.. That is to ?ay, defendant objects to Interrogatory No. 6, in its entirety. Having-answered Interrogatories Nos. 10, 11, 12 and 13 in part as to each respectively, it objects to answering certain other portions-of these four interrogatories for the reasons and upon the grounds stated in each-instance with its objection. Briefs have been filed on behalf of the respective parties, by plaintiff in support of its objections and by defendant in opposition thereto. I. Re: Interrogatory No. 6 In the document filed June 2, 1949, plaintiff makes the following statement with regard to Interrogatory No. 6: *349"6. Plaintiff hereby objects to Interrogatory 6 on the grounds that it is irrelevant in that it seeks to elicit details of evidence and not ultimate facts, and is an unreasonable inquiry in that the preparation of a detailed answer will unreasonably annoy, oppress and harass the plaintiff and its officers and employees”. In opposing plaintiff’s objections to Interrogatory No. 6, defendant asserts: “Defendant’s Interrogatory 6 merely requests the facts upon which this allegation is based, such as the persons to whom such replacement handles were allegedly shipped, the time of the shipment, whether the person was a retailer or consumer and the circumstances under which the alleged breakage occurred. * * * Plaintiff’s offer to permit us to examine its records does not relieve it of the obligation under Rule 33 to give a clear and full answer to the interrogatory. Its offer is to produce several cartons of documents that apparently have been removed from their regular files. It does not appear that these documents are in chronological or coherent order, and it would be virtually impossible for defendant to determine from them the necessary facts. * * * The purpose of Rule 33 is to require the production of such evidence before trial so that the trial need not ‘be carried on in the dark’. Hickman v. Taylor, 329 U.S. 495, 501 [67 S.Ct. 385, 91 L.Ed. 451]”. In response to the foregoing, plaintiff states that: “This Interrogatory (No. 6) is comprised of five branches seeking information as to breakage of handles. This information is contained in 5,580 documents and will require the tabulation of nearly 30,000 pieces of information. Defendant’s counsel have made the assumption (Page 4 Memorandum) that these documents have been removed from their regular files and that they are not in chronological or coherent order. Counsel is in error for the reason that first, these documents were never filed in their regular files of this company and were collected in separate containers for the reason that they were treated and handled as received and have been accumulated for examination by the plaintiff or defendant, and secondly they are arranged in such order that any information which defendant desires could be extracted or tabulated. * * * Plaintiff has no objection to the defendant or its representatives examining each and all of such documentary evidence and is perfectly willing to deposit with the clerk of this Court the several cardboard cartons containing such material as exhibits in this case where such documents can be examined by the defendant’s representatives at their leisure. A tabulation as required by interrogatory 6 will disclose to defendant only the same information as has been furnished in this case in another form, i. e., a compilation of the number of handles-broken and in what general category of breakage”. II. Re: Interrogatories 10 and 11 With regard to Interrogatories 10 and. 11, plaintiff states its objection as follows: “Plaintiff hereby objects to Interrogatory 10 in so far as it seeks to require plaintiff to set forth the exact figures relating to gross and net profits as set forth in Interrogatory 10, on the grounds that such facts are irrelevant and constitutes-an inquiry into phases of plaintiff’s business and which are an unreasonable and vexatious annoyance, embarrassment and oppression of the plaintiff. “11. Interrogatory 11 is objected to on the same grounds as stated in connection with Interrogatory 10”. III. Re: Interrogatories 12 and 13 With and as a part of its objection to-Interrogatories 12 and 13, plaintiff makes the following statement: “Plaintiff objects to the last clause of Interrogatories 12 and 13, to-wit, ‘and where shipments were made to the user, state the name and address of the user’ on the grounds that they are irrelevant in that they seek to elicit details of evidence and not ultimate facts and is an unreasonable inquiry in that the preparation of a detailed answer would unreasonably and vexatiously annoy, oppress and harass the plaintiff. As stated in its Memorandum in Support of its Objections to Interrogatory *3506, and the last clauses of 12 and 13, plaintiff has no objection to filing the approximately five thousand five hundred eighty-six (5,586) pieces of documentary evidence relating to the replacement of Thermoplax handles in order that the defendant or its representatives may examine such papers”. With respect to the four foregoing Interrogatories, to-wit: Interrogatories 10-11 and 12-13 plaintiff, in its brief, submits that: "Interrogatories 10 and 11 seek a disclosure of the gross profits and net profits and all other charges reflected on plaintiff’s books which are intimate and confidential information concerning its business. The disclosure of this information would impose upon plaintiff, an onerous, vexatious and extremely damaging disclosure of information to be spread upon the records ■of this Court where it would be available to plaintiff’s competitors in a fiercely competitive line of business and would result in disclosing information from which costs of doing business and profits by which ■competitors would be able to determine margins of selling prices of plaintiff’s •goods that would seriously affect plaintiff’s business. * * * Taking Interrogatories 10 and 11 together, it may be said that they request the disclosure of information of all the financial aspects of plaintiff’s "business. These interrogatories are too “broad and sweeping and thus require the furnishing of information which has no relevance to any matter bearing on the •claimed breach of its contract by the •defendant. * * * Plaintiff has in its answers to Interrogatories 7 and 8, disclosed its dollar and unit volume of the sales of its utensils. In its Complaint, it 'has set 'forth the approximate figures of •its claimed damages. * * * No further comment need be made as to Interrogatories Nos. 12 and 13. The discussion as to Interrogatory 6 in support of the objections is applicable”. Numerous authorities are cited by coun•sel for the respective parties in support of their contentions. In the view of the court, no useful purpose would be served in a ■discussion or analysis of the cases cited. As is usual, while general principles may be laid down, each given case must, to some extent at least, be determined upon the record presented. Upon a consideration of all the information now in the possession of defendant as set out in the pleadings and in the answers already given to such interrogatories as have been answered, and in view of the fact that plaintiff (as above set forth) has no objection to defendant or its representatives examining all the documentary evidence about which defendant inquires, the court is of the opinion and so finds that plaintiff’s objections to Interrogatories Nos. 6, 10, 11, 12 and 13 are well taken and that they should be,' and they are, sustained. Inasmuch as defendant can now examine the documentary evidence to which it refers, it does not seem that it will be required to proceed with the trial “in the dark”. Plaintiff’s objections to Interrogatories 6, 10, 11, 12 and 13 are sustained and plaintiff need not answer such interrogatories. Counsel may prepare and submit an order accordingly.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218718/

FREED, District Judge. The action is for wrongful death arising out of an airplane accident occurring in Wisconsin. Defendant Martin moves to strike certain matter from the complaint, for a statement in separate counts, and for a dismissal of the second cause of action. Assuming, arguendo, that the wrong measure of recovery has been stated, the motion to strike need not be granted. No prejudice to the defendant will result for the jury will be instructed on the correct measure of damages after all the facts are fully developed at trial and the pleadings need not necessarily be sent to the jury. Cf. Plummer v. Glenn L. Martin Co., D.C., 10 F.R.D. 395. The separation of claims into individual counts is mandatory only where separation will facilitate clear presentation. Fed.Rules Civ.Proc. rule 10(b) 28 U.S.C.A. Assuming that the complaint intermingles four separate claims, as defendant contends, the fact that the defendant has been able to ascertain the precise nature of the claims against it demonstrates that little will be gained by requiring a separate statement. The matters raised in defendant’s brief on the present motion can be asserted in its answer. It should be parenthetically noted that a motion for summary judgment on the claim for pain and suffering before death may not be tenable for there may be a genuine issue as to the material fact of the time of decedent’s death which can only be resolved after all the facts are developed at trial. The motion to dismiss is not well taken. If it transpires at trial that there is no cause of action in favor of the estate of the decedent, then the plaintiff is entitled to sue as an individual. It is therefore impossible to hold that the second count fails to state a claim. The cases cited by defendant deal with the requirements of state and not federal pleading.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218720/

SWITZER, District Judge. This matter came on for hearing in open court at Des Moines, Iowa, on the 7th day of July, 1950 upon the objections of the •defendant to the plaintiff’s requests for admissions, and the plaintiff having elected to submit the matter on written brief, argument was had by the defendant in support of its position and the matter duly submitted. Plaintiff on June 8, 1950, served upon the defendant certain requests for admissions of matters of fact by the defendant, pursuant to Rule 36 of the Federal Rules, of Civil Procedure, 28 U.S.C.A. Defendant Railroad Company objects to certain of the requests hereinafter enumerated, which are identical for each case and therefore this ruling applies to both cases alike. I Defendant objects to divisions- 2 and 3 of plaintiff’s requests for admission, reading as follows: “2. The regular scheduled average speed of said train between Muscatine and Davenport, Iowa, was 27.4 miles per hour, *378and the aforesaid train prior to reaching Schmidt Road was traveling within the city-limits of the City of Davenport, Iowa, at a speed of more than 25 -miles per hour and continued at approximately that speed until just before reaching Schmidt Road.” “3. The regular scheduled average speed of said train between Muscatine and Davenport, Iowa, was 27.4 miles per hour, and the aforesaid train prior to reaching Schmidt Road was traveling within the city limits of the City of Davenport, Iowa, at a speed of more than 20 miles per hour and continued at approximately that speed until just .¡before reaching Schmidt Road.” Obviously, the regular scheduled .average speed of defendant’s train between Muscatine and Davenport, Iowa, is irrelevant and immaterial. It is apparent also that an honest response to the remaining -portion of both divisions 2 and 3 is impossible, consistent with relevancy and materiality. Perhaps the speed of defendant’s train at.and immediately prior to the collision complained of would be both material and relevant. The request is not however so confined. II. Defendant objects to division 4 of plaintiff’s requests for admissions, which provides as follows: “4. The regular scheduled average speed of said train between Muscatine and Davenport, Iowa, was 27.4 miles per hour, and the aforesaid train prior to reaching Schmidt Road was traveling within the -city limits of the -City of Davenport, Iowa, at a speed of more than 12 miles per hour and continued at approximately that speed until just before reaching -Schmidt Road.” For the reasons above given the objection made to this request should be sustained. ' III. Defendant objects to divisions 7 and 8 of plaintiff’s requests for admissions, reading as follows: “7. The engineer upon the train in question did not apply the brakes upon said train so as to slow it down to 12 miles per hour after reaching the Davenport city limits and prior to reaching Schmidt Road -and did not attempt to apply them in emergency until the engine was so close to Schmidt Road it could not be stopped mor materially slowed before reaching Schmidt Road.” “8. Said train was equipped with air brakes in good condition and the brakes if applied would ¡have ¡been able to materially slow down the speed of the train within a distance of two or three hundred ■feet or less.” Here again, in the first portion of request No. 7, stating that the engineer in question did not apply the brakes on said train so as to slow it down to 12 miles an hour after reaching the city limits of Davenport, la., and prior to reaching Schmidt Road, seeks an irrelevant and immaterial response, and does not confine the request to that period of time a response to which would be admissible in evidence. The latter portion of request No. 7 seeks to bind defendant by its response, if required, to an opinion and conclusion rather than to a statement of fact based upon the evidence, and it cannot therefore be countenanced. The -first portion o'f division 8, which provides “Said train was equipped with air brakes in good condition * * * ” would be required to be answered if it were not predicated upon the remainder of the request, which clearly calls for an opinion and conclusion. IV. Defendant objects to divisions 11, 12, 13, -14, 15, 17, 18, 18(a), 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29, all of which state certain enumerated rules provided -for by the defendant company and applicable to its personnel on the train in question. I have had the -benefit of a well conceived ¡brief by the plaintiff wherein it is earnestly urged that the rules of the railroad company may be admissible in evidence and have been admitted ¡heretofore in other jurisdictions. *379Defendant contends that said rules are entirely immaterial and irrelevant to the issues set forth in the pleadings of this cause and that no evidence thereof is or will be admissible on the trial of the action; that said matters in no way relate to the duties owing by the defendant to the members of the public or the plaintiff in this action. Considerable confusion has resulted in the cases concerning this question. Many jurisdictions seem to hold that such rules under certain conditions are in fact admissible in evidence at the trial of the cause. Since, however, the decision of the Supreme Court of the United States in Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct 817, 82 L.Ed. 1188, 114 A.L.R. 1487, this court is bound by the law of the State of Iowa as it presently exists for a solution of the question. The law in Iowa thereon seems well settled as announced in the case of Merchants’ Transfer & Storage Co. v. Chicago, R. I. & P. Ry. Co., 170 Iowa 378, at page 383, 150 N.W. 720, at page 722, in which the court said : “These rules were offered as tending to show negligence on the part of the defendant’s employes in the transaction in controversy and as admissions or declarations of the defendant. “This assignment is disposed of by the former holdings of this court. See Hart v. Cedar Rapids & M. C. R. R. Co., 109 Iowa 631, 80 N.W. 662, and cases therein cited; Blumenthal v. Union Electric Co., 129 Iowa [322], at page 324, 105 N.W. 588; and Carter v. Sioux City Service Co., 160 Iowa 78, 141 N.W. 26. These holdings rest on the proposition that the law regulates the duty of the railroad company to the public. The standard of care required is fixed by the law. The railroad company can promulgate no rules for the conduct o'f its servants, whether they require more or less than the law requires, and bind the public by such rules. All negligence rests upon a supposed duty that the party charged owes to the public in cases of this kind, and that is a legal duty, or a duty imposed upon it by law. The standard of care is fixed by the law. The liability rests upon the violation of the legal duty it owes to the public. If the law should require but one lock upon a door, and the one on whom the duty of placing the lock rests should instruct his servant to place two locks, and the servant should only place one lock, the master has violated no duty that the law imposed upon him by failure of his servant to put more than one lock upon the door.” The company rules cannot under any circumstances be admitted into evidence in the trial of this cause. I must therefore sustain the objections made by the defendant to the requests in question. The 'Clerk will therefore enter the following order: This matter coming on for hearing in open court at Des Moines, Iowa, on defendant’s objections to plaintiff’s requests ■for admissions of matters of fact by the defendant, specifically to — 'divisions 2, 3, 4, 7, 8, 11, 12, 13, 14, IS, 17, 18, 18(a), 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29, and the court being advised: It is hereby ordered that said objections to the above numbered requests for admissions be and they are hereby sustained, and said requests for admissions by the plaintiff and each of them as so numbered be and they are hereby quashed, and plaintiff excepts.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224439/

ORDER SUSAN C. BUCKLEW, District Judge. This cause comes before the Court on Ameritox, Ltd.’s Motion for Partial Summary Judgment. (Doc. No. 337-1). Millennium Laboratories, Inc. opposes the motion. (Doc. No. S365). The Court issued an order denying in part and deferring in part this motion. (Doe. No. 397). To the extent that the Court deferred ruling, the Court heard oral argument on May 2, 2014. As explained below, to the extent that the Court deferred ruling, the motion is granted in part and denied in part. I. Standard of Review Summary judgment is appropriate “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). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party’s favor. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir.2006) (citation omitted). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See id. (citation omitted). When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See id. (citation omitted). II. Background Ameritox and Millennium are clinical laboratories that screen urine specimens for the presence of drugs. They are competitors in the industry and have been engaged in extensive litigation for several years. Relevant to this motion are Ameritox’s claims that Millennium engaged in unfair competition based on Millennium’s provision of free point-of-care (“POC”) testing cups (“POCT cups”) to doctors.1 The free POCT cups contain POC test strips inside the cups that detect the presence of certain drugs in the patient’s urine and provide immediate preliminary results to the doctors while the patient is in the doctor’s office. The doctors receiving the free POCT cups from Millennium agree not to bill for the POC testing using POCT cups and agree to return the POCT cups to Millennium for confirmatory testing. Alternatively, doctors can purchase POC test strips and/or POCT cups from Millennium or other suppliers, and then the doctors may be able to bill the patient for the POC testing. Ameritox asserts in a separate filing that whether the doctor can bill for the POC testing using POCT cups when the doctor purchases the POCT cups depends on whether the doctor bills for testing done by using a chemical analyzer. (Doc. No. 429). Furthermore, Ameritox contends that billing for chemical analyzer testing produces a far greater reimbursement than billing for POC testing using a POCT cup. (Doc. No. 429). *1351At issue in the instant case is Millennium’s provision of free POCT cups to doctors who agree that: (1) they will not bill their patients (or their insurance companies) for the POC tests; (2) they will not use the free POCT cups for any reason other than to collect the urine samples, obtain the preliminary results, and then transport the urine samples to Millennium for confirmatory testing; and (3) they will work with Millennium to account for the cups to ensure that none of the cups are used for billable POC testing. (Doc. No. 337-6). Ameritox contends that the provision of free POCT cups violates the Anti-Kickback Statute (“AKS”) and/or the Stark Law. Millennium does not dispute that it gives doctors free POCT cups, but it argues that such conduct, under the facts of this case, does not violate the AKS or Stark Law. If such conduct is found to violate the AKS or Stark Law, then Amer-itox contends that such conduct provides a basis for liability under Ameritox’s unfair competition claims in Counts II through VII. III. Motion for Partial Summary Judgment Ameritox moves for partial summary judgment on the issue of whether Millennium’s provision of free POCT cups to doctors violates the AKS (42 U.S.C. § 1320a-7b(b)(2)) and/or the Stark Law (42 U.S.C. § 1395nn).2 Accordingly, the Court will analyze both statutes. A. Stark Law Ameritox argues that it is entitled to summary judgment on its contentions that Millennium’s provision of free POCT cups violates the Stark Law. The Stark Law prohibits doctors from referring their Medicare and Medicaid patients to business entities with which the doctors have a financial relationship. See U.S. v. Halifax Hospital Medical Center, 2014 WL 68603, at *2 (M.D.Fla. Jan. 8, 2014); 42 U.S.C. § 1395nn(a)(l)(A). One example of a financial relationship is a compensation arrangement. 42 U.S.C. § 1395nn(a)(2)(B). With certain exceptions, a compensation arrangement is an arrangement involving any remuneration — directly or indirectly, overtly or covertly, in cash or in kind— between a doctor and the entity. 42 U.S.C. § 1395nn(h)(l). Thus, the Stark Law prohibits doctors who have a compensation arrangement with an entity from making referrals of Medicare or Medicaid patients for clinical laboratory services to that entity. See Halifax, 2014 WL 68603, at *9; U.S. ex rel. Osheroff v. Tenet Healthcare Corp., 2013 WL 1289260, at *1 (S.D.Fla. Mar. 27, 2013); 42 U.S.C. § 1395nn(a)(l)(A); 42 U.S.C. § 1395nn(a)(2)(B); 42 U.S.C. § 1395nn(h)(6). Remuneration is defined under the statute as “includ[ing] any remuneration, directly or indirectly, overtly or covertly, in cash or in kind.” 42 U.S.C. § 1395nn(h)(l)(B). One exception to the broad definition of remuneration is the provision of items that are used solely to collect, transport, process^ or store specimens for the entity providing the item. 42 U.S.C. § 1395nn(h)(l)(C)(ii)(I). Another exception to the broad definition of remuneration is the provision of items that are used solely to communicate the results of tests for the entity providing the item. 42 U.S.C. § 1395nn(h)(l)(C)(ii)(II). In this *1352case, the parties dispute two things: (1) whether Millennium’s provision of free POCT cups is remuneration, and if so, (2) whether Millennium’s provision of free POCT cups falls within these exceptions to the broad definition of remuneration. 1. Remuneration The parties dispute whether Millennium’s provision of free POCT cups is remuneration. Millennium argues that because it requires that doctors who are given free POCT cups cannot bill the patients or their insurance for the POC testing using POCT cups, Millennium has not given the doctors anything of ñnancial value, and as such, it has not violated the Stark Law. Millennium argues that in such a situation, the doctor’s use of the free POCT cups results in a lost revenue opportunity for the doctors, because they cannot bill for the POC testing using the POCT cups.3 Furthermore, Millennium de-emphasizes the value provided by the POCT cups’ immediate preliminary results by characterizing it the following way: The purpose for the test strips in these cups is to provide a possible deterrent for patients who may consider deviating from their prescribed regimen; any unexpected preliminary results can trigger a conversation "with the patient while still at the office. It also allows the health care provider to write a short (3-5 day) prescription with some confidence until more comprehensive test results are received from the clinical laboratory. (Doc. No. 328-36, p. 10). Thus, Millennium emphasizes that the POCT cups’ immediate preliminary results advance patient eare and do not involve any financial benefit to the doctors. Ameritox, on the other hand, focuses on two primary arguments: (1) the POCT cups’ immediate preliminary results provide a value that the doctor would not have if standard specimen cups were used; and (2) doctors receive a financial benefit from the POCT cups in the form of cost savings due to the doctors not having to buy the POCT cups in order to get immediate preliminary results. Ameritox asserts in a separate filing that doctors who choose to batch-test urine specimens at the end of the day by using an in-office chemical analyzer (and then later submitting the samples to Millennium for confirmatory testing) could not also bill for POC testing the same urine samples using a POCT cup regardless of whether the doctor purchased the POCT cups. (Doc. No. 429). In such a situation, use of Millennium’s free POCT cups provided a cost-savings to doctors who wanted an immediate test result while the patient was in the doctor’s office, because: (1) the POCT cups were provided for free; and (2) the doctors were unable to bill for the POC testing done with a POCT cup because they were instead choosing to bill for the much greater revenue generating chemical analyzer testing.4 (Doc. No. 429). Therefore, in this type of situation, it is clear that the doctors were getting a double benefit from the free POCT cups in the form of (1) valuable preliminary test results (2) from a cup that the doctors did not have to pay for. Furthermore, Ameritox focuses on the fact that the POCT cups’ immediate pre*1353liminary results provide a value that the doctor would not have if standard specimen cups were used. A POCT cup combines a standard specimen cup with test strips that can immediately detect the presence or absence of drugs in a urine sample: [[Image here]] Millennium does not appear to dispute that the provision of free test strips themselves would be remuneration’ under the Stark Law. However, Millennium appears to argue that because the test strips are inserted into a standard specimen cup, the test strips are no longer remuneration because the doctors do not bill for the information that the test strips provide. To the extent that the doctors could bill for the POC testing done using a POCT cup but decline to do so solely because they agreed to Millennium’s requirement not to bill for the POC testing, the Court finds that a genuine issue of material fact exists regarding whether the provision of free POCT cups in this scenario constitutes remuneration. Instead, in such a situation, it appears that the doctors are giving up the ability to bill for POC testing, which is giving up the opportunity to net approximately $15 per specimen. Thus, whether the free POCT cups constitute remuneration in this scenario must be determined by the jury. However, to the extent that the doctors could not bill for the POC testing done using a POCT cup for other reasons (such as, because they were using chemical analyzers to test the specimens), then Millennium’s provision of free POCT cups did provide a valuable benefit to the doctors in the form of the free preliminary test results that the doctors could not have obtained without purchasing a POCT cup. In this situation, the doctors obtained a preliminary test result without having to pay for the POCT cup and without giving up the opportunity to bill for the POC testing done using a POCT cup. Therefore, in this situation, Millennium’s provision of free POCT cups constitutes remuneration under the Stark Law. 2. Exceptions to the Deñnition of Remuneration Because the Court concludes that the provision of free POCT cups may be remuneration under the Stark Law (depending on the circumstances), the Court must consider Millennium’s argument that the POCT cups fall within the exceptions to the definition of remuneration. One exception to the broad definition of remuneration is the provision of items that are used solely to collect, transport, pre*1354cess, or store specimens for the entity providing the item. 42 U.S.C. § 1395nn(h)(l)(C)(ii)(I). Another exception to the broad definition of remuneration is the provision of items that are used solely to communicate the results of tests for the entity providing the item. 42 U.S.C. § 1395nn(h)(1)(C)(ii)(II). The parties dispute whether Millennium’s provision of free POCT cups falls within these exceptions to the broad definition of remuneration. In the Court’s prior summary judgment order in which it deferred ruling (Doc. No. 397), the Court noted that it was persuaded by the fact that Florida’s Agency for Health Care Administration (“AHCA”) contacted Millennium in June of 2012 regarding its provision of free POCT cups and asserted that the free POCT cups were a kickback for patient referrals. (Doc No. 328-36). Millennium responded to AHCA in June of 2012 with its Plan of Correction, stating that the provision of free POCT cups was not a kickback, because the doctors could not bill for the POC testing. (Doc. No. 328-36). Additionally, Millennium asserted that the free POCT cups are used solely for the purpose of collecting, processing, storing and transporting specimens to the laboratory as permitted by AHCA rule 59A-7.020(14)(c).5 (Doc. No. 328-36). It has been almost two years, and AHCA has not responded to Millennium’s Plan of Correction. (Doc. No. 328-36). The Court, however, did not glean the full story from the voluminous filings in this case and did not realize that the AHCA file contained additional information. Specifically, it appears from the AHCA file that AHCA has not determined whether Millennium’s Plan of Correction is acceptable, and instead, on July 23, 2012, AHCA forwarded the case file to the Florida Attorney General for review. (Doc. No. 388). There is no evidence before the Court regarding whether the Florida Attorney General is going to respond to Millennium’s provision of free POCT cups in any way. Given the state of the AHCA proceedings, it is impossible to determine whether an investigation is ongoing or whether the matter is closed. As such, the Court finds that the AHCA evidence does not weigh for or against the argument that Millennium’s provision of free POCT cups falls within the exception to the definition of remuneration. As a result, the Court will have to determine, as a matter of law, what the exceptions encompass and whether the undisputed facts fall within the exceptions. As previously stated, the exceptions apply to: (1) the provision of items that are used solely to collect, transport, process, or store specimens for the entity providing the item; and (2) the provision of items that are used solely to communicate the results of tests for the entity providing the item. The parties do not dispute that the POCT cups are used to collect, transport, and store the specimens for Millennium. However, the parties dispute whether the POCT cups are used solely to do the tasks outlined in the exceptions. First, Millennium argues that the POCT cups are used solely to do the tasks outlined in the exceptions, because the test strips inside the cups are used to process the specimen and communicate the prelim*1355inary results. The Court, however, rejects this argument, because the test strips do not process the specimen for Millennium,6 nor do the test strips communicate the preliminary results for Millennium. Millennium is completely unaware of the test results communicated by the test strips to the doctors when the communication is occurring, and as such, Millennium can hardly argue that the test strips are communicating the test results for Millennium. Second, Millennium argues that the word “solely” in the exceptions actually means “primarily” and argues that a device falls within the exceptions when the device’s primary purpose is to collect a specimen, and the device hhs little or no economic value to a doctor independent of the laboratory testing service that the doctor is ordering. Millennium bases this argument on the Center for Medicare and Medicaid Services’ (“CMS”) comments regarding the exceptions. Specifically, Millennium points to the following 2001 statement: [W]e believe the Congress intended to include in this section items, supplies, and devices of low value, such as single use needles, vials, and specimen cups, that are primarily provided by laboratories to physicians to ensure proper collection of specimens for processing at the laboratory and that have little, if any, independent economic value to the physicians who receive them. (Doc. No. 330-34, p. 93: 66 Fed.Reg. 856, 947). The Court is not persuaded by Millennium’s argument. For example, in 1998, CMS stated the following: In order for ... devices to meet the statutory requirement [the first exception], they must be used solely to collect, transport, process, or store the specimens for the laboratory ... that provided the ... devices. We interpret “solely” in this context to mean that these items are used solely for the purposes listed in the statute... .We do not believe that an item or device meets this requirement if it is used for any purpose besides these. (Doc. No. 330-33, p. 936-37: 63 Fed.Reg. 1659, 1693-94). Thus, because the POCT cups can be used for purposes beyond collecting, transporting, and storing the specimens — because they conduct a preliminary POC test and provide a preliminary result — the POCT cups do not fall within the statutory exceptions. Other statements by CMS in different scenarios support this conclusion. With regard to the provision of free sterile gloves, which CMS characterizes as “essential to the specimen collection process,” CMS has stated that they do not fall within the exception because the gloves’ main function is to prevent infection or contamination. (Doc. No. 330-34, p. 94: 66 Fed.Reg. 856, 948). Likewise, CMS has noted that the Office of Inspector General has stated that while a laboratory’s provision of a free phlebotomist to collect specimens might be permissible, the arrangement would become problematic if the phlebotomist performed any clerical or medical duties that were not directly related to the collection of specimens. (Doc. No. 330-34, p. 94: 66 Fed.Reg. 856, 948). The Court reads these comments as supporting the conclusion that if the provision of the free device provides any additional benefit to the doctor, the device will not fall within the exceptions to the definition *1356of remuneration. In the instant case, the test strips in the POCT cups test the specimen and provide a preliminary test result, which this Court concludes removes the POCT cups from the exceptions to the definition of remuneration. Accordingly, the Court concludes that the POCT cups do not fall within the exceptions to the definition of remuneration under the Stark Law. 3. Conclusion regarding Remuneration Based on the above, the Court concludes that Millennium’s provision of free POCT cups is remuneration under the Stark Law when the doctors could not bill for the POC testing done using a POCT cup for reasons beyond their agreement with Millennium (such as, because they were billing for chemical analyzer testing of the same specimen). However, to the extent that the doctors could bill for the POC testing done using a POCT cup and agreed to forego the opportunity to bill for it, the Court concludes that the jury must determine whether Millennium’s provision of free POCT cups under those circumstances constitutes remuneration under the Stark Law. B. AKS Ameritox also argues that it is entitled to summary judgment on its contention that Millennium’s provision of free POCT cups to doctors violates the AKS. The AKS prohibits healthcare providers from knowingly and willfully offering to pay any remuneration — directly or indirectly, overtly or covertly, in- cash or in kind — to induce a doctor to refer a patient for services covered under Medicare or Medicaid. See Tenet, 2013 WL 1289260, at *1; 42 U.S.C. § 1320a-7b(b)(2). The civil counterpart of the AKS defines remuneration as including “transfers of items or services for free or for other than fair market value.” 42 U.S.C. § 1320a-7a(i)(6). Unlike the Stark Law, the AKS does not contain exceptions to the broad definition of remuneration. The parties dispute whether Millennium’s provision of free POCT cups falls within the broad definition of remuneration under the AKS. The Court concludes that for the same reasons the POCT cups may constitute remuneration under the Stark Law, the cups may constitute remuneration under the AKS. Therefore, Millennium’s provision of free POCT cups is remuneration under the AKS when the doctors could not bill for the POC testing done using a POCT cup for reasons beyond their agreement with Millennium (such as, because they were billing for chemical analyzer testing of the same' specimen). However, to the extent that the doctors could bill for the POC testing done using a POCT cup and agreed to forego the opportunity to bill for it, the Court concludes that the jury must determine whether Millennium’s provision of free POCT cups under those circumstances constitutes remuneration under the AKS. TV. Conclusion Based on the above, it is ORDERED AND ADJUDGED that Ameritox’s Motion for Partial Summary Judgment (Doc. No. 337-1), to the extent that the Court deferred ruling, is GRANTED IN PART AND DENIED IN PART: The motion is GRANTED to the extent that the Court concludes that Millennium’s provision of free POCT cups constitutes remuneration under the Stark Law and AKS when the doctors could not bill for the POC testing done using a POCT cup for reasons beyond their agreement with Millennium (such as, because they were billing for chemical analyzer testing of the same specimen). Otherwise, the motion is DENIED, and the jury will determine wheth*1357er Millennium’s provision of free POCT cups to doctors who could bill for the POC testing done using a POCT cup and agreed not to bill for it constitutes remuneration under the Stark Law and AKS. . Ameritox also contends that Millennium's representations regarding the free POCT cups can form the basis for a Lanham Act claim, but the Court has already rejected this argument when ruling on Millennium's motion for summary judgment. (Doc. No. 398, p. 8-10). . Neither the Stark Law nor the AKS provides a private right of action, and as such, Ameritox is using the alleged violation of the Stark Law and AKS as the basis for its Lan-ham Act and unfair competition claims. See U.S. v. Halifax Hospital Medical Center, 2014 WL 68603, at *4, *4 n. 2 (M.D.Fla. Jan. 8, 2014); U.S. ex rel. Osheroff v. Tenet Healthcare Corp., 2013 WL 1289260, at *1 (S.D.Fla. Mar. 27, 2013). . The POCT cups cost approximately $5, and the doctors can bill approximately $20 for the POC testing. . According to Ameritox, doctors could choose to bill for the POC testing done with a POCT cup (at a reimbursement rate of approximately $20 per specimen) or bill for the chemical analyzer testing (at a reimbursement rate of approximately $180 per specimen), but the doctors could not bill for both types of testing. (Doc. No. 429). . Pursuant to AHCA rule 59A-7.020(14)(c), AHCA recognizes an exception to the definition of a kickback for “items, devices or supplies that are for the sole purpose of” (1) "[c]ollecting, processing, storing and transporting specimens to the laboratory;” or (2) “communicating laboratory tests or results ... between the physician ... and the laboratory.” . In fact, during the hearing, Millennium provided a hand-out to the Court, in which Millennium states on page 26 that “the test strip, without the cup, can never be part of Millenni-urn’s processing of the urine specimen.” Accordingly, Millennium cannot argue that the test strips process the specimen for Millennium.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224440/

ORDER GRANTING PLAINTIFF’S MOTION TO REMAND CASE TO STATE COURT PATRICIA A. SEITZ, District Judge. THIS MATTER is before the Court on Plaintiffs Motion to Remand Case to State Court for Lack of Subject Matter Jurisdiction [DE-12], Plaintiff Jason A. Silverman, a Florida citizen, alleges five state law counts against Defendant Wells Fargo Insurance Services USA, Inc. (“Wells Fargo”), a North Carolina corporation. Two of these counts are also against Defendants Jeffrey Samas and Richard Rodriguez, both Florida citizens.1 Defendants contend that Samas and Rodriguez were fraudulently joined and that their citizenship must therefore be disregarded in assessing this Court’s diversity jurisdiction. The amount in controversy satisfies the jurisdictional threshold. Having reviewed the Complaint [DE-1-1], Wells Fargo’s Notice of Removal [DEI], Defendants’ Motion to Dismiss [DE-9], Defendants’ Removal Status Report [DE-II], Plaintiffs Motion to Remand Case to State Court for Lack of Subject Mattei Jurisdiction, Defendants’ response and Plaintiffs reply thereto [DE-14,16], Plaintiffs two Notices of Supplemental Authority [DE-18, 22], and the applicable case law, the Court cannot find that there is no possibility that Silverman can establish a cause of action against Samas and Rodriguez under the circumstances alleged in the Complaint. Therefore, the Motion to Remand is GRANTED and the case is remanded to the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida for further proceedings. 1. FACTUAL BACKGROUND Wells Fargo is a North Carolina corporation engaged in the insurance business. Silverman, a citizen of Florida, was employed by Wells Fargo in its office in Coconut Grove, Florida as a commercial account executive from approximately 2000 until November 6, 2012. (Compl. ¶¶ 11-12.) Samas was Silverman’s supervisor during this time and is currently a Managing Director in Wells Fargo’s Coconut Grove office. (Id. ¶¶ 4, 16.) Rodriguez was one of Silverman’s coworkers and is currently a Senior Vice President in Wells Fargo’s Coconut Grove office. (Id. ¶¶4, 16.) ■■ Samas and Rodriguez are both citizens of Florida. (Notice of Removal ¶ 15.) According to the Complaint, in or around 2010, Wells Fargo, through Samas, began imposing upon Silverman unrealistic revenue generation requirements that were not imposed upon other account executives. (Compl. ¶¶ 19-26, 37.) Furthermore, he was forbidden from bidding on new accounts already being serviced by other insurance agencies, which rendered these requirements especially unattainable. (Id. ¶¶ 23-26.) In May 2012, he reported “numerous instances of illegal and unethical conduct” to Wells Fargo’s Ethics Department, including non-compete agreements with other insurance agencies and the sharing of commissions with unlicensed third parties such as developers and management companies. (Id. ¶¶ 27-32.) He threatened to report this conduct, which included alleged illegal and ethical conduct by all of the Defendants in this case, to “the appropri*1360ate government and/or law enforcement agencies.” (Id. ¶ 32.) In November 2012, in retaliation for Silverman’s threat to report illegal conduct, Wells Fargo terminated Silverman’s employment and failed to pay him the brokers’ commissions that he was owed. (Id. ¶¶ 36, 46.) Silverman alleges that Wells Fargo, Sa-mas, and Rodriguez all conspired (1) to deprive him of commissions and (2) to cause his wrongful termination in violation of Florida’s Whistleblower Act. (Id. ¶¶ 65-71, 78-85.) He further states that Samas and Rodriguez each had an “independent, personal stake” in the objects of both conspiracies because (1) they each benefitted financially from the money that Wells Fargo would have paid to Silverman (id. ¶¶ 48-49) and (2) they each held personal animus against Silverman due to his negative reaction to their bragging about a “shake-down.” (Id. ¶¶ 40-45.) On August 28, 2013, Silverman filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, captioned Jason A. Silverman v. Wells Fargo Insurance Services USA Inc., Jeffrey Samas, & Richard Rodriguez, Case No. 13-28214-CA-01. Wells Fargo timely removed the case and all Defendants moved to dismiss Counts III and V. Silverman then moved to remand. 2. LEGAL STANDARD A defendant removing a case on the basis of fraudulent Joinder has the burden of proving, by clear and convincing evidence, that either: “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Henderson v. Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997)). As there is no allegation of fraudulently pled facts, the inquiry concerns the first prong. The standard is high. “[I]f there is any possibility that the state law might impose liability on a resident defendant under the circumstances alleged in the complaint, the federal court cannot find that joinder of the resident defendant was fraudulent, and remand is necessary.” Florence v. Crescent Res., LLC, 484 F.3d 1293, 1299 (11th Cir.2007); see also Crowe, 113 F.3d at 1542 (“there need only be a reasonable basis for predicting that the state law might impose liability on the facts involved”) (emphasis in. original). When applying this standard, a court must evaluate factual allegations in the light most favorable to the plaintiff and resolve any uncertainty about the applicable law in the plaintiffs favor. Crowe, 113 F.3d at 1538. A plaintiffs subjective motivation for joining the resident defendant is irrelevant. Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 Fed.Appx. 888, 893 n. 3 (11th Cir.2011). This inquiry precedes any analysis of the sufficiency of the pleadings; if the federal courts lack jurisdiction, then “the decision as to the sufficiency of the pleadings is for the state courts.” Henderson, 454 F.3d at 1284. As such, a complaint need not meet the pleading requirements of the Federal Rules of Civil Procedure in order to defeat a claim of fraudulent joinder. See, e.g., id. (finding no fraudulent joinder even though the complaint did not meet the requirements of Rule 9(b)). 3. ANALYSIS Silverman brings two counts against Sa-mas and Rodriguez. These counts seek, as a remedy, compensation for “the value of the services provided” from Wells Fargo *1361and punitive damages2 against all Defendants. (Compl. ¶¶ 71, 85.) Neither count states a claim on which state law might impose liability. However, evaluating the underlying factual allegations in the light most favorable to the plaintiff and resolving any uncertainty about the applicable law in the plaintiffs favor, the Court cannot conclude that there is no possibility that the factual allegations in the Complaint would not provide a basis for liability under Florida law. Therefore, remand is necessary. 3.1. Count V: “Wrongful Termination / Retalitory [sic] Discharge” Count V alleges that Wells Fargo, Samas, and Rodriguez conspired to terminate Silverman in violation of the Florida Whistleblower Act (“FWA”), which prohibits employers from taking any retaliatory personnel action against an employee because the employee has “threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation.” Fla. Stat. Ann. § 448.102. However, Tracey-Meddoff v. J. Altman Hair & Beauty Ctr., Inc., 899 So.2d 1167 (Fla. 4th DCA 2005) squarely forecloses any claim against individual officers for liability under the FWA, whether through a conspiracy claim or otherwise, because the FWA applies only to employers.3 Samas and Rodriguez are not employers. Therefore, Count V fails to provide a reasonable basis for pre-dieting that the state law might impose liability. 3.2. Count III: “Conspiracy to Deprive Silverman of His Commission” Count III alleges that (1) Wells Fargo failed to pay Silverman his commissions and (2) Samas and Rodriguez played a role in his termination and in the nonpayment of his commissions because (1) of personal animus and (2) they each benefited financially from the money that otherwise would have gone to pay his commissions. Though framed as a “conspiracy to deprive Silverman of his commission,” Count III is thus essentially a terminated employee’s claim for (1) unpaid compensation from his employer and (2) punitive damages against his supervisor and coworker for conspiring with his employer to deny him his compensation. The cause of action for conspiracy to deprive someone of a commission does not apply in this circumstance.4 In every reported Florida case recognizing a cause of action for conspiracy to deprive a plaintiff of a commission, a broker had facilitated a transaction and the transacting parties then allegedly conspired to deprive the broker of a commission for that transaction. See, e.g., Osheroff v. Rauch Weaver Millsaps & Co., 882 So.2d 503 (Fla. 4th DCA 2004) (buyers and sellers had conspired to deprive the brokers of their commission); First Realty Corp. of Boca Raton v. Standard Steel Treating Co., 268 So.2d 410 (Fla. 4th DCA 1972) (suit for “a *1362commission from the seller on both implied contract and quantum meruit, and damages from both defendants for conspiracy to deprive appellant of the commission”); Mead Corp. v. Mason, 191 So.2d 592, 594 (Fla. 3d DCA 1966) (“although a seller may be liable for a commission, the purchaser and the seller may also be jointly liable for conspiring together to deprive the broker of his commission”). Rumbaut & Co., Inc. v. Caribevision Holdings, Inc., No. 10-59892 CA 23 (Fla. 11th Cir.Ct. Mar. 20, 2014) [see DE-18, 22] demonstrates only that a claim for conspiracy to deprive a plaintiff of a commission may lie outside of the real estate context. In that case, a broker was a procuring cause of a joint venture between two media properties, and the media properties were found liable for conspiring to deprive the broker of a brokerage commission. Rumbaut (Dec. 20, 2013) (jury verdict) at 5. However, Silverman is not seeking a commission for procuring a relationship among the Defendants; he is alleging that some of his co-workers conspired with his employer, causing his employer not to pay him his rightful compensation. This is not the sort of conspiracy to which the cause of action for conspiracy to deprive a broker of a commission applies. Therefore, Count III fails to provide any reasonable basis for predicting that the state law might impose liability. 3.3. Tortious Interference However, joinder is fraudulent only if there is “no possibility state law might impose liability on a resident defendant under the circumstances alleged in the complaint.” Henderson, 454 F.3d at 1281. The analysis is therefore not limited to the particular causes of action under which a plaintiff seeks a remedy. Silver-man has alleged facts that might support imposing liability on Samas and Rodriguez under the theory of tortious interference with an advantageous business relationship. To state a claim for tortious interference with an advantageous business relationship under Florida law, a plaintiff must establish five elements: (1) the existence of a business relationship under which the claimant has rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship; (4) by a third party; and (5) damage to the claimant caused by the interference. Sloan v. Sax, 505 So.2d 526, 527-28 (Fla. 3d DCA 1987). In an action by an employee against his supervisor for interfering with the plaintiffs employment relationship, a supervisor generally does not constitute a “third party” and is therefore entitled to interfere. See Doyal v. School Board of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982). However, the privilege to interfere “enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant acts solely with ulterior purposes and the advice to terminate is not in the principal’s best interest.” O.E. Smith’s Sons, Inc. v. George, 545 So.2d 298, 299 (Fla. 1st DCA 1989) (citations omitted).5 Silverman alleges damages resulting from an intentional and unjustified interference by Samas and Rodriguez with his employment relationship, which meets the first, second, third, and fifth elements. Furthermore, he alleges that Samas “mali*1363ciously instructed employees and agents of Wells Fargo” not to pay his commissions and that Rodriguez and Samas together caused Wells Fargo to terminate him because of personal animus and for their own personal financial benefit. (Compl. ¶¶ 68-70.) This may satisfy the fourth element. See Rudnick v. Sears, Roebuck and Co., 358 F.Supp.2d 1201 (S.D.Fla.2005). Therefore, evaluating factual allegations in the light most favorable to the plaintiff and resolving any uncertainty about the applicable law in the plaintiffs favor, the Court cannot conclude that there is no possibility that the allegations in the Complaint would satisfy all five elements of a claim for tortious interference with an advantageous business relationship under Florida law. 4. CONCLUSION For the reasons above, the Defendant has not met its burden of proving, by clear and convincing evidence, that there is no possibility the plaintiff can establish a cause of action against the resident defendant. The Court therefore cannot find that joinder was fraudulent. Accordingly, it is ORDERED that 1. Plaintiffs Motion to Remand Case to State Court for Lack of Subject Matter Jurisdiction [DE-12] is GRANTED. 2. This case is hereby REMANDED to the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida for further proceedings. 3. This case is CLOSED. Any pending deadlines or hearings are CAN-CELLED and any pending motions not otherwise ruled upon are DENIED AS MOOT. . Counts I (Unjust Enrichment), II (Quantum Meruit), and IV (Wrongful Termination / Retaliatory Discharge) are against Wells Fargo only. Counts III (Conspiracy to Deprive Sil-verman of His Commission) and V (Conspiracy towards Wrongful Termination / Retaliatory Discharge) are against all Defendants. .As currently pled, the Complaint seeks no remedy at all from Samas or Rodriguez, but rather seeks leave to amend the Complaint to seek punitive damages upon the proffer of appropriate evidence. .(Compl. ¶¶71, 85.) For purposes of assessing fraudulent joinder, the Court will treat the Complaint as seeking punitive damages from Samas and Rodriguez. . The FWA defines "employer” as "any private individual,, firm, partnership, institution, corporation, or association that employs ten or more persons.” Fla. Stat. Ann. § 448.101. . Count III also fails to allege an agreement among the Defendants. Though typically fatal To a claim of conspiracy, the Court will ignore this omission for purposes of assessing fraudulent joinder. . See also McCurdy v. J.C. Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987) ("A qualified Privilege to interfere is not negated by concomitant evidence of malice. It is only when malice is the sole basis for interference that it will be actionable.”) (emphasis in original) (citation omitted).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224441/

ORDER CECILIA M. ALTONAGA, District Judge. THIS CAUSE came before the Court upon Defendant, Kaizen Medical Services, Inc.’s (“Kaizen[’sj”) Motion to Dismiss (“Motion”) [ECF No. 22], filed February 18, 2014. On March 18, 2014, Plaintiffs, State Farm Mutual Automobile Company and State Farm Fire & Casualty Company (collectively, “State Farm”) submitted their Corrected Response in Opposition ... (“Response”) [ECF No. 45]. Kaizen filed its Reply ... (“Reply”) [ECF No. 48] on March 25, 2014. The Court has carefully considered the parties’ written submissions, the record, and applicable law. *1365I. BACKGROUND1 This matter arises out of an allegedly unlawful auto insurance billing scheme perpetrated by Defendants, A & J Medical Center, Inc. (“A & J”); Julio Andarcio (“Andarcio”), owner of A & J; Carlos Gonzalez, M.D. (“Gonzalez”); and Kaizen. (See generally Compl.). State Farm, as an issuer of automobile insurance policies, provides its insureds with Personal Injury Protection (“PIP”) benefits intended to compensate its insureds for their reasonable medical expenses incurred as a result of a covered automobile incident. (See id. ¶ 1). Pursuant to the Florida Motor Vehicle No-Fault Law, State Farm is obligated to provide up to $10,000.00 in PIP benefits “by paying 80% of all reasonable, medically necessary and related medical bills for services or care that was lawful at the time rendered.” (Id. ¶ 18 (citing FLA. STAT. § 627.736(l)(a))). In 2003, the Florida legislature enacted the Health Care Clinic Act (the “HCCA”) to improve the regulation of health care clinics throughout the state. (See id. ¶ 26). The purpose of the HCCA “is to provide for the licensure, establishment, and enforcement of basic standards for health care clinics and to provide administrative oversight by [the Agency for Health Care Administration (the “AHCA”) ].” (Id. (citing Fla. Stat. § 400.990(2))). As part of this comprehensive plan for oversight and consumer cost reduction, the HCCA requires health care clinics to appoint a medical director. (See id. ¶ 27). The responsibilities of the medical director include the review of patient referral contracts, supervision over and compliance with statutory recordkeeping requirements, and review of clinic billings to ensure they are not fraudulent or unlawful. (See id.). State Farm claims “A & J billed for services/treatments that were allegedly provided to State Farm’s Insureds ... despite not having a ‘Medical Director’ as required by Florida law.” (Id. ¶ 75). According to State Farm, each Defendant played a crucial role in unlawfully obtaining payments from State Farm for medical expenses accrued by State Farm insureds who sought treatment from A & J. (See id. ¶¶ 10-13, 19). A & J acted as the healthcare clinic, providing rehabilitation treatments to individuals injured in automobile accidents. (See id. ¶ 11). “A & J misrepresented that it employed or had under contract a Medical Director who was going to provide day-to-day supervision and perform numerous statutory and administrative duties for A & J as required by Florida law.” (Id.). Andarcio, as owner of A & J, “misrepresented ... that A & J employed or had under contract a Medical Director who was going to provide day-to-day supervision and perform numerous statutory and administrative duties for A & J as required by Florida law.” (Id. ¶ 10). Kaizen, a staffing firm that matches doctors with health care clinics to purportedly work as medical directors, provided inexperienced and unprepared doctors to serve as medical directors for various clinics, including A & J. (See id. ¶ 13). Kaizen placed Gonzalez, who “was wholly unfamiliar with the duties and obligations required of a Medical Director by Florida Statute and Administrative Code,” as the ostensible medical director of A & J. (Id. ¶ 12). State Farm made substantial payments to, or for the benefit of, Defendants “under the [false] belief that the services provided by [A & J] were lawful and ‘lawfully provided’ as required by Florida law.” (Id. ¶ 9 (alterations added)). The Complaint contains four grounds for relief: Count I for unjust enrichment *1366against Andarcio and A & J; Count II for declaratory relief pursuant to 28 U.S.C. section 2201 against Andarcio and A & J; Count III for unjust enrichment against Gonzalez; and Count IV for unjust enrichment against Kaizen. (See generally id.). Kaizen seeks dismissal of Count IV, arguing the Court lacks subject-matter jurisdiction over Kaizen, and, in any event, the Complaint fails to state a cause of action against it.2 (See Mot. 1). II. LEGAL STANDARDS A. Federal Rule of Civil Procedure 12(b)(6) “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.’” 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)). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). To meet this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997). B. Federal Rule of Civil Procedure 12(b)(1) Subject-matter jurisdiction must be established before the case can proceed on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). It is presumed that a federal court lacks jurisdiction in a particular case until the plaintiff demonstrates the court has jurisdiction over the subject matter. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citing Turner v. Bank of N. Am., 4 U.S. 8, 11, 4 Dall. 8, 1 L.Ed. 718 (1799); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182-183, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). Attacks on subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be either facial or factual. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990). Like a Rule 12(b)(6) motion, “[a] ‘facial attack’ on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [the] complaint are taken as true.... ” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980) (citation omitted). In contrast, factual attacks “challenge[ ] the existence of subject matter jurisdiction in fact, ... and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (citation omitted). Kaizen’s Motion presents a facial attack to the Court’s jurisdiction. *1367III. ANALYSIS The Court addresses the issues of subject-matter jurisdiction over Kaizen and whether the Complaint properly'states a claim for unjust enrichment, in turn. A. Subject-Matter Jurisdiction Diversity jurisdiction — the basis for the Court’s exercise of subject matter jurisdiction here (see Compl. ¶ 15) — exists when the parties are citizens of different states, and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). Kaizen argues the Court lacks subject-matter jurisdiction because the facts pleaded in the Complaint demonstrate the amount-in-controversy requirement is not satisfied. (See Mot. 2-3). State Farm relies on Defendants’ joint and several liability for the aggregation of State Farm’s total claim of damages amongst all Defendants, thus satisfying the amount-in-controversy requirement as to Kaizen. (See Resp. 6-9). “A reviewing court should not dismiss an action for failure to satisfy the amount-in-controversy requirement unless it appears to a ‘legal certainty’ that plaintiffs claim is actually for less than the jurisdictional amount.” Wonders Trust v. Deaton, Inc., 200 F.R.D. 473, 478 (M.D.Fla.2000) (citation omitted). The general rule for aggregating claims against multiple defendants to satisfy the amount-in-controversy requirement is that “where a suit is brought against several defendants asserting claims against each of them which are separate and distinct, the test of jurisdiction is the amount of each claim, and not their aggregate.” Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th Cir.1961) (citations and internal quotation marks omitted). “Claims against multiple defendants can only be aggregated when the defendants are jointly liable to the plaintiff.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1263 n. 7 (11th Cir.2000) (citing Jewell, 290 F.2d at 13). Further, State Farm relies on aggregating claims among the Defendants to satisfy the amount-in-controversy requirement, alleging “a scheme jointly perpetrated by all of the Defendants.” (Resp. 7 (citing Compl. ¶¶5, 13, 38-42)). Pursuant to Florida’s Motor Vehicle No-Fault Law, Fla. Stat. § 627.736, automobile insurers are legally obligated to provide PIP benefits up to $10,000.00 for injuries resulting from motor vehicle accidents. See State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Center, Inc., 427 Fed.Appx. 714, 717 (11th Cir.2011), rev’d in part on other grounds, State Farm Mut. Auto. Ins. Co. v. Williams, Nos. 12-11840, 12-15331, 563 Fed.Appx. 665, 671, 2014 WL 1465726, at *5 (11th Cir. Apr. 15, 2014). Under the statute, reimbursement for PIP benefits shall be provided only for “[i]nitial services and care that are lawfully provided, supervised, ordered, or prescribed by a [licensed] physician....” Fla. Stat. § 627.736(l)(a)(l) (alterations added). “An insurer is not required to pay a claim or charges ... [f]or any service or treatment that was not lawful at the time rendered. ...” Id. § 627.736(5)(b)(l)(b) (alterations added). State Farm has alleged “Kaizen and Dr. Gonzalez enabled A & J to operate unlawfully, without the oversight of a Medical Director [as] intended by the [Florida] legislature.” (Compl. ¶ 42 (alterations added)). The Complaint claims “Kaizen served an essential role in the unlawful Medical Director arrangement by exploiting the clinic’s need for a Medical Director by placing unprepared physicians, like Defendant Gonzalez, who lacked functional knowledge of a Medical Director’s statutory obligations and duties.” (Id. ¶ 13). Taking the allegations regarding Defendants’ participation in a scheme to unlaw*1368fully retain PIP benefits as true, State Farm has properly pleaded Kaizen and the other Defendants are jointly liable. See U.S. Commodity Futures Trading Comm’n v. Capital Blu Mgmt., LLC, No. 6:09-cv-508-Orl-28DAB, 2011 WL 2357629, at *6 (M.D.Fla. June 9, 2011) (“The Defendants should be held jointly and severally liable for restitution. Acting in concert with one another, they caused harm to FX Fund Participants and unjustly enriched themselves.”). Nevertheless Kaizen insists there is a reasonable basis for a lesser apportionment of liability. (See Reply 4). Because the Complaint alleges Kaizen was paid $2,000.00 per month to provide A & J with a medical director over a period of nearly eighteen months, Kaizen suggests its maximum apportionment of liability is $85,000.00 ($2,000.00 per month, multiplied by 17.5 months). (See id.). According to State Farm, Kaizen’s participation was a crucial component in the scheme to unlawfully procure PIP benefits from State Farm by knowingly providing A & J (and others) with unqualified medical directors (like Gonzalez) who would not scrutinize A & J’s billing. In total, the scheme cost State Farm approximately $1,140,239.00 in unlawful PIP payments. (See Resp. 9). As it does not appear beyond a legal certainty that Kaizen can avoid joint and several liability for its participation in. the scheme as alleged, the Court is not persuaded to apportion liability in the manner suggested by Kaizen. State Farm’s Complaint satisfies the jurisdictional amount. B. Unjust Enrichment Kaizen also asserts the unjust enrichment claim must be dismissed because State Farm has only alleged Kaizen received indirect and not direct benefits. (See Mot. 6). Additionally, Kaizen argues it could not have had any knowledge of the benefits, and State Farm has failed to plead circumstances indicating it would be inequitable for Kaizen to retain any purported benefits. (See id. 7-12). State Farm insists Kaizen benefitted from its role in the joint scheme to unlawfully acquire PIP benefits from State Farm. (See Resp. 17-19). State Farm further contends it has properly pleaded sufficient facts to state a claim for unjust enrichment against Kaizen. (See id. 16). To state an actionable claim for unjust enrichment, a plaintiff must allege: (1) a benefit bestowed upon a defendant by the plaintiff; (2) the defendant’s appreciation of the benefit; (3) the defendant’s acceptance and retention of the benefit; and (4) circumstances that make it inequitable for the defendant to retain the benefit without compensating the plaintiff for its value. See Alvarez v. Royal Caribbean Cruises, Ltd., 905 F.Supp.2d 1334, 1341 (S.D.Fla.2012) (citation omitted). In Florida, the law of unjust enrichment requires the benefit allegedly conferred by the plaintiff to pass directly to the defendant. See Kopel v. Kopek 117 So.3d 1147, 1153 (Fla. 3d DCA 2013). Yet, unjust enrichment claims are not precluded “merely because the ‘benefit’ passed through an intermediary before being conferred on a defendant.” Williams v. Wells Fargo Bank N.A., No. 11-21233-CIV, 2011 WL 4901346, at *5 (S.D.Fla. Oct. 14, 2011) (footnote call number and citation omitted) (denying motion to dismiss); see also Aceto Corp. v. TherapeuticsMD, Inc., 953 F.Supp.2d 1269, 1288 (S.D.Fla.2013) (“There are several recent cases in this district that permit an unjust enrichment claim to stand where the benefit is conferred through an intermediary, pointing out that direct contact, or privity, is not the equivalent of conferring a direct benefit.” (emphases in original; citations omitted)). *1369Here, the Complaint properly pleads Kaizen received a benefit from State Farm through Kaizen’s knowing participation in the unlawful scheme to recover PIP benefits. The Complaint explains “Kaizen served an essential role in the unlawful Medical Director arrangement by exploiting the clinic’s need for a Medical Director by placing unprepared physicians, like Defendant Gonzalez, who lacked functional knowledge of a Medical Director’s statutory obligations and duties.” (Comply 13). According to State Farm, “Kaizen and Dr. Gonzalez enabled A & J to operate unlawfully, without the oversight of a Medical Director [as] intended by the [Florida] legislature.” (Id. ¶ 42 (alterations added)). State Farm further alleges “A & J passed on to Kaizen a portion of the proceeds paid to [A & J] by State Farm in connection with th[e] improper claims for PIP benefits.” (Id. ¶ 104 (alterations added)). Kaizen accepted these benefits, “despite its knowledge that the services purportedly rendered by A & J were not ‘lawfully provided’ as required by Florida law.” (Id. ¶ 105). State Farm has sufficiently alleged Kaizen unlawfully received benefits from State Farm, through A & J as an intermediary, for Kaizen’s participation in the PIP scheme. See State Farm Fire & Cas. Co. v. Silver Star Health and Rehab Inc., No. 6:10-cv-1103-Orl-31GJK, 2011 WL 6338496, at *5 (M.D.Fla. Dec. 19, 2011) (“Florida law is clear that State Farm can refuse payment under Fla. Stat. § 627.736(5)(b)(l)(b) for services unlawfully rendered. As a result of Defendants’ alleged conduct, State Farm mistakenly paid claims which it was statutorily entitled to deny. Thus, it would be inequitable to allow Defendants to retain those benefits.” (internal citation omitted)). Further, Kaizen’s contention it could not have known of the benefits it was receiving from its involvement in the PIP scheme is insufficient to compel dismissal of Count IV. Kaizen argues the Complaint fails for it does not allege Kaizen had “knowledge of any of the patients’ information, including their insurance information (which would violate [the Health Insurance Portability and Accountability Act, 42 U.S.C. section 1320(d)]).” (Mot. 7). This is a myopic view of the scheme alleged by State Farm. According to the Complaint’s allegations, Defendants (including Kaizen) were involved in a broad scheme to unlawfully obtain PIP benefits from insurance companies (including State Farm) that were obligated to provide those benefits for the reasonable medical expenses incurred by their insureds. The fact Kaizen and the other Defendants reaped the benefits indiscriminately from insurance companies in general does not make their awareness of the benefits conferred any less meaningful, or an action for equitable relief any less appropriate. Cf. Golden v. Woodward, 15 So.3d 664, 670 (Fla. 1st DCA 2009) (“An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity.” (internal quotation marks and citation omitted)). Neither is the Court persuaded by Kaizen’s argument State Farm has failed to plead circumstances showing it would be inequitable to allow Kaizen to retain any benefits conferred upon Kaizen. As previously expressed, Kaizen allegedly played an essential role in staffing A & J by placing Gonzalez at A & J from September 14, 2009 through February 28, 2011. (See Compl. ¶ 39). Kaizen “provided Gonzalez with virtually no training [or] information regarding a Medical Director’s duties and obligations under Florida law.” (Id. ¶40 (alteration added)). The Complaint makes clear Kaizen knowingly participated in a *1370scheme to provide A & J with the means of avoiding the statutory requirement of a proper medical director, thereby depriving State Farm of the assurances intended by the Florida legislature when it enacted the HCCA and established the medical director requirement. Under such circumstances, “it would be inequitable to allow Defendants to retain [the PIP] benefits.” Silver Star Health and Rehab, 2011 WL 6338496, at *5 (alteration added). Consequently, State Farm has adequately pleaded a claim for unjust enrichment against Kaizen. IV. CONCLUSION Based on the foregoing, it is ORDERED AND ADJUDGED that Kaizen’s Motion [ECF No. 22] is DENIED. . The allegations contained in State Farm’s Complaint [ ECF No. 1] are taken as true. . Clerk’s Defaults have been entered against Defendants A & J, Andarcio, and Gonzalez. (See [ECF Nos. 19, 30, and 31]).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218721/

KLOEB, District Judge. There is before the Court the motion of the defendant to dismiss plaintiff’s complaint for the reason that it fails to state a claim upon which relief can be granted, filed under the provisions of Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Briefly and simply stated, the cause of action is based upon injuries claimed to have been sustained by the plaintiff while operating a motor truck of the defendant’s manufacture, when the fly wheel of the truck went to pieces and parts were flung up through the floor boards of the cab and struck the plaintiff. According to the allegations of the complaint, the motor truck in question was a 1946 General Motors truck. It was purchased on or about the 26th day of January, 1949, by the Russell Trucking Line, the employer of plaintiff, from the New Departure Division of the General Motors Corporation at Sandusky, Ohio, and was put in use on or about March 22, 1949. The accident happened April 16, 1949, while the plaintiff was operating the truck on a public highway in Huron County, Ohio. The case is brought under the theory of the well known case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann.Cas. 1916C, 440. Counsel for defendant contend that the complaint is defective because it does not state the respect in which the fly wheel was defective. Under the limited requirements of Rule 84 of the Federal Rules of Civil Procedure and Form 9 of the Appendix to those rules, the allegations in this respect may be sufficient, and if further particularity is desired such information may be obtained under the provisions of Rule 33 of the Federal Rules of Civil Procedure, unless such information is stated in sufficient detail in an amended complaint. Counsel for defendant also urges that the complaint is defective in stating a cause of action because of the lapse of time *381between the original manufacture of the truck and the time of the accident, a period of two to three years. Of course a good many things may happen to a piece of machinery which is given the rigorous and continuous use common to a motor truck in that period of time, and the fact of such use for that period would be some evidence of its inherent soundness and freedom from ascertainable defects. However, the Court cannot say as a matter of law that there could not be a provable defect discoverable by the use of reasonable care in its manufacture and inspection, however unlikely that may seem to be, which might have resulted in the flying apart of the fly wheel at the time of the accident. Apparently the theory of the plaintiff’s cause of action is based upon negligence of the defendant in the manufacture of the fly wheel, the failure to inspect and test the fly wheel before selling the truck to plaintiff’s employer, and the representation to the plaintiff’s employer that the truck was in good condition. The motion will be overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218722/

GALSTON, District Judge. The three motions before the court will be disposed of in this single opinion. The defendants move for a separate trial under Rules 42(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and for a stay of all depositions, interrogatories and other discovery or proceedings in any matter not involved in the license issues until such separate issues have been heard and determined. Defendant’s second motion presents for hearing defendant’s objections to certain interrogatories heretofore propounded by the plaintiff. The third motion is by the plaintiff to compel more complete answers to some of the interrogatories propounded by the plaintiff. The suit is brought pursuant to Title 28 U.S.C.A. § 2201, for a declaratory judgment of invalidity and noninfringement of patent rights, and of the unenforceability of asserted contract rights. From the complaint it appears that the parties entered into a license agreement under which the plaintiff was licensed under more than 550 United States patents, and more than 200 United Stores patent applications owned by the Hazeltine Corporation or owned by others under which the Hazeltine Corporation alleged it had the right to grant such a license. The benefits and obligations of the license agreement were assigned by the Hazeltine Corporation to the defendant. It is alleged that such assignment is invalid for the reason, among others, that the obligations assumed by the Hazeltine Corporation were personal and hence unassignable. For the purposes of determining these motions it is not necessary to state all of the provisions of the license agreement which are set forth in the complaint. It is alleged that the license is oppressive and against public policy; that defendant has misused its patents so as to render the license agreement unenforceable; that the agreement requires the plaintiff to pay patent royalties on devices not covered by its patents or by patents under which the defendant had the right to grant a license, and on devices and parts covered only by invalid patents; that the license, requires the payment of patent royalties upon the entire gross production of home television and radio sets sold by plaintiff without regard to whether defendant owns or controls any patents covering such sets; and for other grounds set forth in Paragraph 17th of the complaint. It is alleged that the plaintiff gave defendant a written notice of repudiation of the license agreement, and that its operations will be conducted in hostility of all of defendant’s asserted patent rights. The complaint also attacks the patents of the defendant as being unenforceable because of alleged misuse by the defendant and defendant’s assignor, the Hazeltine Corporation. In consequence the plaintiff seeks a declaratory judgment: of invalidity of all patents owned or controlled by the defendant ; that plaintiff has not infringed any of defendant’s patents; that plaintiff is not liable for the payment of any royalties under the aforesaid license agreement, and that the Hazeltine Corporátion was without authority, under the lafvs of the State of New York, to enter into the license agreement with the plaintiff; and that the license agreement be declared invalid and unenforceable. *383All the material allegations affecting ultimate issues and the prayer for relief based thereon are denied. For a separate and distinct partial defense the defendant alleges that the plaintiff is estopped from contesting the validity of any of the patents under which it is licensed by said license agreement; that it has violated the provisions of the license agreement, and that such breaches estopped plaintiff from relying thereupon to relieve it from royalty obligations under said license. The answer also contains a counterclaim setting up royalties reported and unpaid in the amount of some $33,000. The first question to be considered is the motion for a separate trial under Rule 42(b) of the validity, enforceability and effect of the license agreement. Generally speaking it may be observed that piecemeal litigation is not to be favored since it may add to the burden not only of litigants but also of the courts. However, in the present action there are ample grounds for first determining the issues presented in respect to the license agreement. The main case attacks the validity of one or all of 550 United States patents, and presents a momentous and prodigious issue. Nevertheless it will have to be met if the issues raised in respect to the license agreement are determined in favor of the plaintiff. On the other hand, if it is determined that the license agreement is valid and enforceable, and that the plaintiff is estopped from contesting the validity and issues of infringement in respect to the 550 patents, economy of all concerned will best be served by the granting of this motion. Nor is authority lacking in support of the practice. See Moore’s Federal Practice, Vol. 3, p. 3051; Woburn Degreasing Co. v. Spencer Kellogg & Sons, D.C., 37 F.Supp. 311; American Machine & Metals, Inc. v. De Bothezat Impeller Co., Inc., D.C., 82 F.Supp. 556; and Collins v. Metro-Goldwyn, 2 Cir., 106 F.2d 83, 87, in which Judge Clark said: “As the opinion points out, the trial judge has a practical discretion to dispose of them together, but when the natural course of trial indicates that one claim can be disposed of quickly and summarily while the other will require a considerable trial, separation should be possible save in cases where the facts are so inextricably interwoven that it is impossible or at least manifestly unfair. At any rate, the new rule is flexible enough to permit a useful adjustment of such a situation, and I concur in the view that the earlier precedents which deserve our approval were to the same effect.” The motion for a separate trial is, therefore, granted. Closer questions are presented in respect to the interrogatories and depositions, if any, which may be sought prior to the trial of the license agreement issues. Again generally speaking, the plaintiff should not be foreclosed from seeking evidence bearing upon the allegations of this complaint in respect to the invalidity, unenforceability and voluntary relinquishment of the license agreement. Such issues doubtless will be in some respects, if not all, controlled by the recent decision of the Supreme Court on June 5, 1950, in Automatic Radio Manufacturing Co., Inc., Petitioner, v. Hazeltine Research, Inc., 70 S.Ct. 894. Whether in that action all of the allegations made by the plaintiff in the case at bar were before the trial court cannot be determined from the opinion of the Supreme Court or of the Court of Appeals for the First Circuit, 176 F.2d 799, or of the trial court, D.C., 77 F.Supp. 493. But the motion of the defendant, so far as it seeks to stay depositions, interrogatories and other discovery or proceedings with relation to any matter not involved in the license issues will be granted. On the other hand, all interrogatories bearing on the license issues to be tried separately are proper. Without analyzing each and every interrogatory and its objection, but on the basis of apparent relevancy to the license issues, the following rulings are made: objections are sustained to interrogatories Nos. 1, 3(c), 3(d), to the extent that such interrogatory requests considerations paid for the assignments and license rights referred to; 9(d); 9(e); 9(f); 10(a); 10(b); 10(c); 10(d); 11(a); 11(b); 12; (13(a); 13(b); 14; 15(b); 15(c); 16(a) to (g), inclusive; 17; 19(b) *384to (m), inclusive; 23(a) to (d), inclusive; 24(a) to (e), inclusive, and 25. Finally to be considered is the motion of the plaintiff for a more complete answer to certain interrogatories. The first of these is the answer to 8(b) : the answer should be amplified by submitting blank forms of the license numbers referred to; as to interrogatory 8(d), there need be no further amplification; as to 8(e) there need be no further amplification; the answers to 20 to 22, inclusive, are sufficient. Settle orders on notice.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218723/

JONES, Chief Judge. This is a breach of warranty action now before the Court on consideration of defendant’s objections to plaintiff’s interrogatories, and of defendant’s motion to compel plaintiff to answer interrogatories. The interrogatories objected to are Nos. 1-5, inclusive, and No. 7. Generally, these interrogatories seek information about the sale of salt to any other Frito company, at any time; the knowledge, if any, that defendant had concerning the use to which the salt was to be put; and the names and addresses of defendant’s salesmen who made the sales to the different Frito companies. The objections raise the issue of relevancy of these interrogatories and the unreasonable burden and expense that answering will place on the defendant. This action will be tried on a theory of implied warranty as set forth in Section 8395 of the Ohio General Code. Under that section an implied warranty arises if, among other things, the buyer makes known to the seller the particular purpose for which the goods are required. At least one Ohio case, however, seems to indicate (although the Court is not now deciding the issue) that if the seller has this knowledge, regardless of the source, an implied warranty exists if the other requirements are met. Sharpsville Boiler Works v. Queen City Pet. Products Co., 23 Ohio App. 319, 156 N.E. 149. If knowledge of the purpose for which the salt was to be used is an important element of plaintiff’s action, and it seems to be, the interrogatories now in question will lead to the discovery of the extent of this knowledge and I must conclude that the objection of lack of relevancy is unfounded. It is evident, however, that the compilation of the answers to these interrogatories will cause great inconvenience and expense to the defendant. Various independent Frito companies, some of which have been in existence for about 20 years, are scattered throughout the United States. Defendant has no central office in which sales records are kept, and the information desired must be obtained from a search of the records of 39 different district sales offices, and inquiries directed to a staff of more than 600 salesmen. Since the interrogatories in no way limit the scope of the information desired, it is conceivable that a search of each district office’s records for the last 20 years must be made. Previous decisions indicate no information on the question of the excessive burden of interrogatories. The various district courts have come to about every imaginable conclusion. Each court must work out an equitable solution from the facts that are presented to it and in this action it will be possible to lessen the burden of answering these interrogatories without limiting the scope of the interrogatories. Plaintiff is in a much better position to learn of the location of the various Frito companies. It, then, should provide defendant with information concerning the number, corporate name, location and the approximate date of the establishment of the various Frito companies.. Such action drastically would limit the search in the various offices of the defendant. If it does not, the plaintiff of its own initiative should offer to limit the search to specific branch offices, and if it still demands that the complete search be made, the Court will entertain a motion pursuant to Fed. Rules Civ.Proc. rule 30(b), 28 U.S.C.A., relative to the apportionment of costs. The objection will be overruled provided plaintiff furnishes defendant the above suggested information. Defendant also contends that the answers given by plaintiff to some of defendant’s interrogatories are incomplete and seek to evade a direct answer concerning the results of tests made by plaintiff on defendant’s product. The answers do not give the information requested by defendant, and as it is now entitled to the actual results of these tests, plaintiff should state the actual results of the tests, including the amounts of chromium, copper or nickel found in the samples tested. Enter order accordingly.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218724/

JONES, Chief Judge. This is an action in which plaintiff seeks to enjoin defendants from disclosing a certain secret recipe. A motion for the taking of defendants’ depositions has been granted and a subpoena duces tecum issued for the production of certain documents including those which will show the recipe now being used by defendants. Defendants have moved under Fed.Rules Civ.Proc. rule 30 (b), 28 U.S.C.A., for an order for protection against unjustified and unwarranted annoyance and oppression. The objections are based primarily on the desire of the defendants to keep certain business information from a competing business. However, the documents probably contain information which will aid the Court in determining issues to be presented to it by a motion for a preliminary injunction. It would seem, therefore, that adequate protection will be afforded by an order that the examination shall be held with no one present except the parties and their officers and counsel, and after the depositions have been taken that they be sealed and opened only on the order of this Court. Since this means that defendants’ secret recipe will be disclosed to plaintiff, it will be ordered that before the depositions are taken, plaintiff must file with the Clerk of this court all documents relating to its secret process in a sealed envelope to be opened only as directed by this Court.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218727/

JONES, Chief Judge. This is a motion to vacate judgment pursuant to Rule 60(b) (6), Fed.Rules Civ. Proc. 28 U.S.C.A. The action, one seeking treble damages for violation of the rent control act, was originally filed March 22, 1946. On January 16, 1947 a default judgment was entered in the sum of $1,608.00 and costs. On March 26, 1949, plaintiff made the judgment a lien upon the real property of the defendants. At the time the action was filed Tony Mante was a patient in a tuberculosis sanatorium and he was not released until October, 1946. His wife was for part of this time supported by relief. However, the defendants did retain an attorney who filed an answer for them. In October, 1946, plaintiff’s attorney sent the defendants’ attorney a card with reference to setting this case for trial. In answer the defendants’ attorney said that he was. no longer retained by defendants and “if you wish to take a default judgment on the matter there is nothing that I can do about it. These people are penniless and unable to pay any attorney fee.” The record does not show that the request for trial card was subsequently sent to the defendants or that they had knowledge of the date of trial, and under this court’s rules the action should not have been placed on the trial calendar. The defendants’ failure to appear and the consequent default judgment were undoubtedly the result of the letter of an attorney who did not represent the defendants, and perhaps the Government’s too eager acquiescence in the suggestion of this attorney. It is true that three years have passed since the judgme'nt was entered. However, the notice of judgment which defendants received probably meant nothing to them, and the Government’s failure to take any steps to enforce the judgment quite likely led defendants to believe that they were not liable in any way. It is also likely that this motion was filed soon after defendants learned of the judgment lien on their land. In any event, it is never too late to set aside an unjust judgment. Defendants have offered to pay the amount of single damages, and the Court is willing to accept such compromise. If, however, plaintiff refuses this offer, the judgment of January 16, 1947 will be set aside. Enter order accordingly.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218728/

JONES, Chief Judge. This is an action brought under favor of the Jones Act, 46 U.S.C.A. § 688. Plaintiff served four interrogatories upon defendant. Defendant objects to Interrogatory No. 1 insofar as it calls for the production of certain reports. The objection is well taken. Fed. Rules Civ.Proc., rule 33, 28 U.S.C.A., does not provide for the production of documents. Plaintiff must make use of Rule 34 with its more stringent requirements if he wishes these reports produced. The objection will be sustained.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218742/

BURNS, District Judge. Both parties agree that this court has discretion to require plaintiff to file a reply to the answer of defendant. The issue is whether the circumstances -alleged in the answer of defendant are such as to warrant the exercise of discretion. It is my belief that, in so far as possible, the development of facts in pretrial proceedings should be accomplished under the provisions of the rules providing for discovery, depositions, interrogatories and the like. Fed.Rules Civ.Proc. rule 26 et seq., 28 U.S.C.A. Even if plaintiff were required to file a reply in the instant case, it may well be doubted whether such reply would eliminate the necessity of, or adequately substitute for, other discovery proceedings. It may also be noted that sparing use of the discretion to require additional pleadings is likely to induce earlier use of discovery -proceedings and the more efficient disposal of cases. And now, September 27, 19S0, the motion to require plaintiff to reply to the answer of defendant is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7219104/

JOHNSON, District Judge. The bill of complaint charges the defendants with infringement of letters patent No. 1,713,726 relating to photographic sound on film recording and reproducing. The plaintiffs in each suit are American Tri-Ergon Corporation, assignee of the patent, and Tri*33Ergon Holding A. G., exclusive licensee for certain purposes. The nominal defendant in the first suit is the Altoona Publix Theaters, Inc., which leases and operates the machine about which complaint is made, known as “P.S.-16.” The nominal defendants in the second suit are Wilmer & Vincent Corporation, which operates the machine of which complaint is made, known as “P.S.-1,” and the Locust Street Real Estate Company, which leases the machine and owns the theater. In each suit the real defendant is R. C. A. Photophone, Inc., a wholly owned subsidiary of Radio Corporation of America, which leases the machines and is defending in the suit. Hans Vogt, Joseph Massolle, and Josef Engl, three German inventors who1 had previously secured patents in Germany for a sound picture machine, made application, as joint inventors, in the United States on March 20, 1922, for the patent in suit, and on May 21,1929, the patent in suit was issued to William Pox, assignee, from whom the plaintiff, American Tri-Ergon Corporation has become assignee of the patent in suit. In their answer the defendants deny the validity of the patent in suit and also deny infringement. On the pleadings and evidence, two main questions arise for disposition : First, the validity of the patent in suit; and, secondly, its infringement by the defendants. First, as to the validity of the patent: The patent' in suit relates to phonographs or sound heads with linear sound records, but more specifically to apparatus and methods whereby sound is translated by light to or from a photographic film strip. The specification and drawings describe and show apparatus and methods involving a film strip with a photographic sound record wherein the sound is translated by acoustically modulated light. The apparatus is especially useful for sound on film sound pictures. The apparatus is directed to a sound on film sound head in an assembly designed for the production of sound on film sound pictures, since the sound track is arranged on the film alongside of the pictures' and the apparatus is so organized that it may be placed above or below the picture projection head and have the film run from one to the other with the protecting loops in the film where it enters and leaves the sound head mechanism. The patent describes several features which co-operate to give high quality sound on film sound reproduction without appreciable sound distortion, in order to attain sound reproduction sufficiently realistic to accompany motion pictures, as follows: First, means for momentarily giving the short active length of film in the sound head the property of a weighty mass in such manner as to obtain a high degree of uniformity of speed at the translation point; secondly, a focused fine line of light known as an “optical slit” for recording and reproducing; thirdly, bending the film areuately at the translation point; fourthly, a photoelectric cell for reproducing the sound. In each of the constructional forms shown in the patent, the film is either wrapped around a substantial portion of the flywheel roller under tension so as to avoid relative slippage one with respect to the other, or is passed over a substantial portion of a flywheel sprocket to insure meshing with a number of the teeth of the sprocket so that in both cases the portion of the film engaging the member secured to the flywheel is definitely harnessed to it to prevent relative movement so that the film moves in exact conformity with the member secured to the flywheel and thus has given to it at the translation point, the property of a weighty mass. The flywheel with its film engaging sprocket or roller is located on a shaft at or adjacent to the translation point and is either isolated by the spring drive from the irregularities of the driving mechanism, or is isolated from the driving mechanism by being driven by the film. The plaintiffs’ patent contains nineteen claims of which seven are in suit, claims 5, 7, 9,13,17, 18, and 19. These seven are directed and limited to the apparatus wherein or methods whereby sound is translated by light to or from a film strip; claims 9, 13, 18, and 19 as granted, and claims 5, 7, and 17 by disclaimer. Claims 5, 7, 13, and 17 are apparatus claims, and 9, 18, and 19 are method claims. These claims describe several features all co-operating to eliminate disturbances and distortions of the sound, giving reproductions sufficiently realistic to accompany motion pictures, a result never previously accomplished with sound on film sound pictures. The patent in suit discloses an apparatus and method which successfully establishes a new and important art, sound on film sound pictures. The evidence shows that the patentees were the first to demonstrate by public exhibition sound on film or sound on film sound pictures in 1920 with one of their machines. Machines built in accordance with the claims of the patent, have been demonstrated and *34used at various times and places down to the trial during which time they were successfully demonstrated in the hearing of the court. The defendants contend that the patent is invalid for the following reasons: First, because the patent is anticipated by the prior art, prior patents, inventions, publications, and uses; secondly, because of a grant of at least one earlier foreign patent to the same patentees for the same alleged invention upon application filed in Germany more than twelve months prior to the filing in this country of the application for the patent in suit; thirdly, because the patent contains insufficient disclosures and is indefinite and inoperative; fourthly, because new matter was introduced into the application while pending in the Patent Office, so that the patent as issued is for a different invention from that originally applied for; fifthly, because the application was unlawfully expanded in the patent office to cover the practical art so developed in the meantime and gone into public use; sixthly, because the disclaimer filed within a few days before the trial is invalid, and, seventhly, because the alleged invention was not a joint invention of the three patentees. First, as to the prior art. The combination and method of the claims at issue are not found in any prior art citations and are new and useful. Anticipation of such claims is not made out by selecting a part from one prior art citation and parts from others or by modification of prior art devices which were not designed, adapted, or actually used for the purpose. Topliff v. Topliff, 145 U. S. 156, 12 S. Ct. 825, 36 L. Ed. 658. None of the defendants’ citations anticipates the claims at issue, since none give, in substance, the same knowledge and the same directions as the specifications of the patent in suit. Skelly Oil Co. v. Universal Oil Products Co. (C. C. A.) 31 F. (2d) 427. It must also be considered that patents whieh are inoperative or useless for the purpose of the patent in, suit are not anticipations. Consolidated Window Glass Co. v. Window Glass Mach. Co. (C. C. A.) 261 F. 362. Anticipations are not made out by the operation of prior devices with important or essential parts omitted. Eck v. Kutz (C. C.) 132 F. 758, at page 779. An unappreciated use does not anticipate. Tilghman v. Proctor, 102 U. S. at page 711, 26 L. Ed. 279. Oral evidence of prior use or discovery must be clear and satisfactory. Eibel Process Case, 261 U. S. 45, 43 S. Ct. 322, 67 L. Ed. 523. In Richmond Screw Anchor Co. v. United States, 275 U. S. 331, 339, 48 S. Ct. 194, 195, 72 L. Ed. 303, it was said: “It is argued, on behalf of the United States, that Lenke’s invention was unpatentable, because it embodied nothing more than a natural and normal modification of existing ideas. Such modifications and their advantage were all very clear after the fact. * * * No one else had foreseen its advantage. Lenke offered it as a solution of the problem at a minimum cost with a maximum efficiency. * * * While thus, in a way, he improved an existing idea, he developed a new idea.” In the case of Hobbs v. Beach, 180 U. S. 392, 21 S. Ct. 409, 413, 45 L. Ed. 586, it is stated: “While none of the elements of the Beach patent — -taken separately or perhaps even in a somewhat similar combination — was new, their -adaptation to this new use and the minor changes required for that purpose resulted in the establishment of practically a new industry, and was a decided step in advance of any that had heretofore been made. * * * “We agree with the courts below that it did involve invention to see that a machine of the Dennis and York type was adaptable to the work of the Beach device, and, second, to malee such changes as were necessary to adapt that device to its new function.” The defense of invalidity on the ground of the prior art is not sustained. Secondly, because of a grant of at least one earlier foreign patent to the same patentees for the same alleged invention upon application filed in Germany more than twelve months prior to the filing in this country of the application for the patent in suit. The evidence shows that the original German patent was inoperative, and that the invention claimed in the foreign patent is not the same invention as claimed in the patent in suit. Leeds & Catlin Case, 213 U. S. 301, 29 S. Ct. 495, 53 L. Ed. 805. The defense of invalidity under Rev. St. § 4887 (35 USCA § 32) puts a heavy burden on the defendants whieh they have not overcome. General Electric Co. v. Alexander (C. C. A.) 280 F. 852. The claim that the patent in suit is invalid under Rev. St. § 4887 (35 USCA § 32) is not sustained. Thirdly, because the patent contains insufficient disclosures and is indefinite and inoperative. The disclosures of the patent are sufficient. The fact that the patent in suit discloses apparatus and methods whieh enable successful establishment of sound on film sound pictures overcomes this contention. *35Fourthly, because new matter was introduced into the application while pending in the Patent Office, so that the patent as issued is for a different invention from that originally applied for. Fifthly, because the application was unlawfully expanded in the Patent Office to cover the practical art so developed in the meantime and gone into public use. The answers to the fourth and fifth claims of invalidity are the same here. The amendments to the claims while pending were related to the original claims and were applicable to the invention and were disclosed in the original drawings and specifications. The patentees were entitled to secure in the patent in suit their actual invention as disclosed in the original drawings and specifications, and were entitled to amend their claims while their application was pending. Heller Bros. Co. v. Crucible Steel Co. (C. C. A.) 297 F. 39. The amendments were properly allowed, and the claim of invalidity on the ground of the amendments cannot be sustained. Sixthly, because the disclaimer filed within a few days before the trial is invalid. The disclaimer limits the patent and does not enlarge it. The subject-matter of the disclaimer is consistent and in accordance with the teachings of the patent. No part of the disclaimer broadens or purports to broaden the scope of the claim of the patent. The presumption of validity of the patent in suit is unaffected by the disclaimer, and the claims in suit here, as modified by the disclaimer, are valid. Carnegie Steel Case, 185 U. S. at page 435, 22 S. Ct. 698, 46 L. Ed. 968. Seventhly, because the alleged invention was not a joint invention of the three patentees. The evidence shows that the patentees worked together and jointly on this invention that the patent in suit is a joint invention of the three patentees within the meaning of the statute, and the burden of proof rests on the defendants to show that the patent in suit was not a joint invention of the three patentees. Thropp & Sons Co. v. DeLaski & Thropp Circular Woven Tire Co. (C. C. A.) 226 F. 941, 949; Hall Signal Co. v. Union Switch & Signal Co. (C. C.) 115 F. 638. The claim of invalidity on the ground that the patent is not a joint patent cannot be sustained. As bearing on all of these claims of invalidity, it must be borne in mind that the grant of a patent carries with it the presumption of validity. “The authorities hold that, to overcome this presumption, the burden of proving want of novelty rests upon him who asserts it, and every reasonable doubt should be resolved against him. The evidence must be exceptionally clear and convincing; as many authorities have said, it must be full, unequivocal, and convincing. Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821.” Window Glass Mach. Co. v. Smethport Window Glass Co. (D. C.) 266 F. 85, at page 93. Under the evidence and legal authorities, all of the defendants’ claims of invalidity of plaintiffs’ patent are overruled, and the patent in suit is sustained as valid. Secondly, as to the infringement. The plaintiffs charge that six of the claims, 5, 7, 9,13,18, and 19, are infringed by defendants’ machine “P.S.-l,” and that five of the claims, 9, 13, 17, 18, and 19, are infringed by defendants’ machine “P.S.-16.” Defendants’ machine “P.S.-l” embodies the invention of claims 5, 7, 9, 13, 18, and 19, and defendants’ machine “P.S.-16” embodies the invention of claims 9, 13, 17, 18, and 19. Claims 5, 7, 9, 13, 18, and 19 were applied by plaintiffs’ expert witness, Ballard, element by element, to defendants’ “P.S.-l” machine, and the same witness applied claims 9,13,17,18, and 19, element by element, to defendants’ “P.S.— 16” machine, and all of the evidence in the case shows that these two machines of defendants infringe plaintiffs’ patent in suit. The plaintiffs and defendants have submitted proposed findings of fact and conclusions of law which have been answered and are filed herewith. In conclusion the court finds that the plaintiffs’ patent, No. 1,713,726, is valid, and that claims 5, 7, 9,13, 18, and 19 of the patent are infringed by defendants’ “P.S.-l” machine, and that claims 9,13,17,18,' and 19 of the patent are infringed by defendants’ machine “P.S.-16.” It follows that plaintiffs are entitled to the usual decree for an injunction, reference, accounting and costs in accordance with this opinion; and it is so ordered. .

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7219105/

KNIGHT, District Judge. Plaintiff has brought action as administratrix of the estate of her husband, to recover damages resulting from negligent acts and omissions of the defendant which caused the death of her husband. Hearing has been had on defendant’s application for a bill of particulars pursuant to consent of the parties in open court. The complaint sets forth that plaintiff’s intestate was employed as a trainman by defendant railroad, and, while plaintiff was engaged in his duties in riding certain coal ears in defendant’s yards, he was suddenly and violently thrown from one of the cars suffering injuries thereby which resulted in his death; that the accident was caused by the negligence of defendant and defendant’s officers, agents, and servants in that the work was not being properly managed, controlled, and operated; that equipment on the ears on which plaintiff’s intestate was riding was defective and out of repair; that defendant failed to promulgate rules reasonably necessary to the proper and safe conduct of the work in which plaintiff’s intestate was engaged; and that the agents and servants of defendant neglected to give such warnings and instructions as were reasonably necessary to protect plaintiff’s intestate. Plaintiff also sets forth the incurring of hospital, medical, surgical, and funeral expenses resulting from the accident. Defendant’s first request is that plaintiff be required to state each and every negligent act of defendant claimed to have caused plaintiff’s intestate to be thrown from the coal ear on which he was riding. The allegations of plaintiff’s complaint are broad and general and do not apprise the defendant of the charges which it must meet. Defendant is *37entitled to know what acts on its part plaintiff claims caused deceased to be thrown from the car. Slocum v. Erie R. Co. (D. C.) 36 F.(2d) 277. Defendant requires a statement of the name of each officer, agent, or servant of defendant who is claimed to have committed an act or omission constituting negligence. If plaintiff has information which will assist defendant to identify the train and crew upon and with which her intestate was working, there is no reason why such information should not be furnished the defendant. Ferris v. Brooklyn Heights R. Co., 116 App. Div. 892, 102 N. Y. S. 463. It is no objection to the grant of the request that plaintiff has not the information for she can so state. Slocum v. Erie R. Co., supra. Nor is it an excuse that defendant is in a position to know-the facts for the defendant is entitled to know what the plaintiff claims are the facts. Slocum v. Erie R. Co., supra, following Higgins v. Erie R. Co., 140 App. Div. 222, 124 N. Y. S. 1082. Defendant is also entitled to know wherein plaintiff claims that the equipment and appliances of defendant were defective and the manner in which said defects contributed to the accident. Zulkowski v. American Mfg. Co. (C. C.) 163 F. 550; Heslin v. Lake Champlain, etc., R. Co., 109 App. Div. 814, 96 N. Y. S. 761. Plaintiff alleges that defendant neglected to provide and enforce rules necessary for the safe conduct of the work in which deceased was engaged. Defendant requests that these rules which plaintiff claims should have been provided be set forth specifically or at least in sufficient detail that preparation for trial will be possible. This request is entirely reasonable and defendant is entitled to know what rules plaintiff claims it should have made. McCarthy v. Lehigh Valley R. Co., 6 Misc. 422, 27 N. Y. S. 295. The same applies to defendant’s request for particulars as to alleged failure to give deceased such instructions and warning as were necessary to provide suitable protection. Higgins v. Erie R. Co., supra. Plaintiff must also be directed to set forth the amount of the bills for hospitalization, medical and surgical treatments and funeral expenses. Greene v. Johnson, 126 App. Div. 33, 110 N. Y. S. 104. An order in accord herewith may be submitted on notice.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218729/

JONES, Chief Judge. This is an action for damages for personal injury brought pursuant to the terms of Sections 51-60, 45 U.S.C.A. Joined as defendants are the Wheeling and Lake Erie Railway Company and the New York, Chicago & St. Louis Railroad Company. The former was the employer of the plaintiff at the time of the accident and the latter since the accident has allegedly acquired all assets and liabilities of the Wheeling. N The New York, Chicago & St. Louis Railroad Company moves to dismiss this action as to it because it was not the employer of the plaintiff at the time of the accident. It cites several Ohio cases which hold that the lessor of a railroad is not liable for injuries to the employees of the lessee. From this it is concluded that the lessee is not liable for the injuries of the employees of the lessor. Assuming it to be true, as alleged by plaintiff, that the New York, Chicago & St. Louis Railroad Company has assumed the liabilities of the Wheeling and Lake Erie Railway Company, it would appear that the plaintiff has stated a cause of action against the New York, Chicago & St. Louis Railroad Company. In effect the complaint sets forth grounds for alternate relief against the defendants. Plaintiff may, by the provisions of Fed.Rules Civ. Proc. rule 20, 28 U.S.C.A. join these defendants if he so wishes. The motion will be denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218730/

JONES, Chief Judge. This is a wrongful death action now before the Court for consideration of defendant’s objections to certain interrogatories. The objections to Interrogatories 8, 9, 10, 11, 17 and 20 must be sustained. Documents and copies thereof cannot be ob*395tained by use of Rule 33, Fed.Rules Civ. Proc., 28 U.S.C.A. Plaintiff must first satisfy the stricter requirements of Rule 34 before this Court can order production. Interrogatory No. 10 asks whether any reports were made by defendant to the Interstate Commerce Commission, any agency of Ohio, or others. Defendant claims that the term “or others” is so comprehensive that it would include reports made by defendant to its own counsel which reports are privileged. Perhaps the contents of such reports to counsel are privileged but I do not believe the privilege extends to the fact that reports were made. Defendant should give plaintiff the names of the others to whom reports were made. This ruling is not a finding that the report must be produced, and the consideration of privilege, if any, must await plaintiff’s motion under Rule 34. Interrogatory No. 19 asks for the contents of reports made by physicians to defendant. The rule that documents may not be discovered by use of Rule 33 has an exception in permitting the discovery of contents of doctors’ reports by use of Rule 33. The objections will be sustained with the one exception noted above.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218731/

JONES, Chief Judge. This is a wrongful death action arising out of an airplane accident in the State of Wisconsin. Defendants are the corporation which manufactured the plane and the corporation which owned and operated it at the time of the accident. The Martin Company moves to strike from the complaint certain allegations relating (1) to the Wisconsin statute applicable to this action, (2) to the negligent manufacture of other planes and (3) to the right of a brother of the decedent to recover damages for his death. Defendant objects to the inclusion in the complaint of the Wisconsin wrongful death statute in its entirety. Perhaps it was unnecessary to include the statute in the complaint for the court apparently must take judicial notice of the applicable state law. Inclusion of unnecessary material would seem to violate Rule 8(a), Federal Rules of Civil Procedure, 28 U.S.C.A., which calls for a short and plain statement of the claim. Rule 1, however, calls for a just, speedy and inexpensive determination of every action, and granting of a motion to strike for the sole purpose of making the complaint state a short and concise claim would clearly violate the mandate in Rule 1. The unnecessary allegations, then, must completely confuse the real claims or they must prejudice the other party. Moore v. C. A. Olsen Mfg. Co., D.C., 7 F.R.D. 269. There is no doubt here as to what plaintiff’s claim is and the inclusion of the statute which governs the action cannot in any way prejudice the defendant. However, if at trial defendant can show possible prejudice because of the inclusion of the statute in the complaint, the trial court can remove the same by the simple expedient of withholding the complaint from the jury. There is, therefore, no need to strike the statute from the complaint. The objections to the inclusion of the allegations relating to the negligent manufacture of other airplanes has been considered twice before by this Court. One of the previous decisions allowed the motion to strike because there was no opposition to the motion. Bursycki v. Northwest Airlines, 10 F.R.D. 408. The other case, Wanecke v. Northwest Airlines, 10 F.R.D. 403, states what would ordinarily be the ruling of this Court. The reasons given therein govern this action and are sufficient, in my opinion, to justify the denial of this branch of the motion to strike. The motion to strike all allegations relative to the brother of the decedent and his right to recovery asks this Court to interpret the Wisconsin statute before trial and to hold that the brother has no right to damages. The Federal Courts seem to avoid the determination of legal issufes presented by motions to strike. U. S. v. Bize, D.C., 86 F.Supp. 939; French v. French Paper Co., D.C., 1 F.R.D. 531; Goldwyn Inc. v. United Artists Corp., D. C., 35 F.Supp. 633. The courts apparently do not wish to eliminate any possible grounds for recovery before they have all the facts before them and they do not wish to give advisory opinions on an issue that may never be presented at trial. If it is, there is ample time before, during and after plaintiff’s presentation of his case to decide, and eliminate if necessary, any factual and legal issue upon which plaintiff 1 cannot recover. Such procedure allows plaintiff full opportunity to present all the facts of his case and any possible prejudice to defendant can be eliminated by proper instructions to the jury. The motion to strike will be overruled. The Court would like to be advised as to why it should be burdened with this litigation in view of Section 1404, Title 28 U.S.C.A.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218732/

CONGER, District Judge. Motion for an order directing plaintiff herein (a) to make a more definite statement of its claim pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. and (b) to state the circumstances constituting the fraud alleged in the amended complaint with particularity pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, or in the alternative to strike certain allegations from the amended complaint on the ground that they are immaterial. The action is for fraud in which plaintiff seeks to recover from defendant the sum of $1,440,000. It is essential that this complaint must allege the making of representations on the part of defendant; that the representations were false and that the defendant knew them to be false and made them with the intent to deceive the plaintiff; that *398the plaintiff believed the representations to be true and acted in reliance upon them and was deceived and was damaged thereby. The amended complaint in my opinion sets forth all. of the above essential allegations. The only question is whether they are set forth in such a vague and ambiguous manner that defendant cannot reasonably frame his answer and whether or not the averments of fraud are stated with sufficient particularity. It is extremely difficult on a motion of this kind to lay down arbitrarily a hard and fast rule. Each complaint must more or less be judged by the facts of each case. Other decisions' on the point in issue are of little help except in so far as they state the general rule. The parties here are not in dispute as to the general rule but they differ as to its application. The drafter of a complaint must bear in mind that, in the Federal practice, each averment of a pleading shall be simple, concise and direct; that the pleading must not be so vague and ambiguous that it cannot be reasonably answered and further that in an action of this nature the averments of fraud must be stated with particularity. While Rule 9(b) requires particularization of the circumstances constituting fraud, this rule does not abrogate Rule 8(a) which requires short and plain statements in the pleadings. General allegations of fraud are not sufficient; neither is it required that evidence be pleaded. 'Evidence and proof cannot be made a part of the complaint. Measuring the complaint by the yardstick of the rule above stated, I have come to the conclusion that the amended complaint is sufficient and needs no amplification. Plaintiff has alleged in the complaint that the defendant made certain named false representations with intent that they be acted upon; that plaintiff did rely on them to its damage, being ignorant of their falsity and reasonably believing them to be true. It has set forth the ultimate facts which are the facts which he relies upon and upon which he is seeking relief. I have read and re-read the amended complaint. I do not find its allegation so ambiguous and vague that an answer cannot be drawn to answer it. For the purpose of answering this pleading a more definite statement is not necessary. For the purpose of preparing for trial defendant has other methods for obtaining information provided for in the Federal Rules of Civil Procedure. I am satisfied that the complaint is sufficient as to the allegation of fraud. True, many details are omitted but in my opinion these matters are more in the nature of evidence. The complaint, I believe, conforms to the spirit of the Federal Rules. Perhaps I should refer to one type of request for information that is repeated a number of times in relation to a number of allegations in the amended complaint. A typical example is found in request No. II in respect to paragraph 7 of the amended complaint. Generally, it asks plaintiff to state whether the negotiations mentioned therein refer to negotiations for the stock transaction or the loan transaction mentioned in paragraph 6. Plaintiff contends that it makes no difference as far as an answer is concerned; that statements and misrepresentations, etc. furnished and made in the course of the first portion of the negotiations are deemed to be continuing where they affect the result obtained through the second portion even though not expressly repeated. Whether or not plaintiff will be able .to sustain this premise on the trial is a matter for the trial court. The plaintiff, proceeding on that theory, should not be required to elabo- ■ rate its allegations in this respect at this time. Motions under Rules 12(e) and 9(b) denied. The motion to strike is denied. Settle order.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218733/

SUGARMAN, District Judge. Plaintiff, a seaman suing for negligence and maintenance and cure, excepts to defendant’s interrogatories “on the ground that the defendant has already had an oral examination of the plaintiff before trial, and on the further ground that the defendant has had a doctor examine the plaintiff. Plaintiff excepts on the further ground that said interrogatories are unduly burdensome”. There is no dispute that the defendant’s interrogatories were served upon the plaintiff more than six months after the defendant pursuant to notice had orally examined the plaintiff. The defendant argues that Rule 33, Fed. Rules Civ. Proc. 28 U.S.C.A., in providing “interrogatories may be served after a deposition has been taken, * * * ” disposes of the plaintiff’s contention that the prior deposition and physical examination bar the defendant’s right to propound interrogatories thereafter. Until March 19, 1948, Admiralty Rule 31, 28 U.S.C.A., was identical in language with Fed. Rules Civ. Proc. rule 33. The weight of authority favored uniform construction of both rules. Moore’s Federal Practice, Volume 2, 1948 Supplement, § 33.02, page 118 and cases there cited. McNally v. Simons et al., D.C.S.D.N.Y. 1940, 1 F.R.D. 254, held that a party who had taken the deposition of his adversary might not thereafter serve interrogatories upon him except by leave of court. Of similar import are Howard v. States Marine Corp., D.C.S.D.N.Y. 1940, 1 F.R.D. 499; Currier et al. v. Currier et al., D.C.S.D.N.Y. 1942, 3 F.R.D. 21. This inflexible construction gave rise to the amendment to Fed. Rules Civ. Proc. rule 33, upon which the defendant now relies. No change in language was engrafted upon Admiralty Rule 31 comparable to that amending Fed.Rules Civ.Proc. rule 33, effective March 19, 1948. Thus, Admiralty Rule 31 must be tested by the decisions applicable to its counterpart, Fed. Rules Civ. Proc. rule 33, before the amendment of the latter. As has been indicated, the pertinent cases declare the impropriety of written interrogatories without leave of court subsequent to an oral examination. The foregoing is not affected by the fact that the plaintiff has treated this litigation as one at law by designating himself as “plaintiff” rather than libelant and the defendant as “defendant” rather than respondent, nor does the fact that the clerk assigned a “Civil” rather than “Admiralty” index number to the action. The complaint sets up two causes of action; the first, under the Jones Act, 46 U.S.C.A. § 688, in negligence and the second, in admiralty for maintenance and cure. Even if the sec*400ond cause of action were absent, it appears that admiralty procedure would be, nevertheless, applicable. “There is no dearth of example of the obligation on law courts which attempt to enforce substantive rights arising from admiralty law to do so in a manner conforming to admiralty practice.” Garrett v. Moore-McCormack Co., 317 U.S. 239, at page 243, 63 S.Ct. 246, at page 250, 87 L.Ed. 239. Accordingly, the exceptions are sustained, but without prejudice to a proper application by the defendant for leave to propound interrogatories to the plaintiff. Settle order.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218734/

FAKE, Chief Judge. This is a motion for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. Tjie record here discloses issues of fact controverted by the answer. The affidavits cannot be read as to their truth when directed to the well-pleaded allegations in either the complaint or the answer. See Hart & Co. v. Recordgraph, 3 Cir., 169 F.2d 580; Reynolds Metals v. Metals Disintegrating Co., D. C., 8 F.R.D. 349, affirmed 3 Cir., 176 F.2d 90. As to the alleged admissions the Court is without sufficient proof to function on the subject of restitution. See my opinion in U. S. v. Sabatino, D. C., 10 F.R.D. 274. The motion for summary judgment is in all things denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218737/

NORDBYE, Chief Judge. On or about January 26, 1946, the Swedish Hospital of Minneapolis, hereinafter sometimes called “Swedish”, and the Standard Construction Company, 'hereinafter sometimes called “Standard”, entered into a contract upon a cost plus a fee basis for the construction of certain new floors at the hospital and for certain alterations in the existing hospital structure. The total cost was estimated in the contract at $640,-€00 plus the fee to Standard of five per cent of the final construction figure. On February 16, 1946, Otis Elevator Company, hereinafter sometimes called “Otis”, and Standard Construction Company entered into a contract for installation of two elevators and three dumb waiters in the hospital. The amount of that contract was $76,842. The work both of Standard and Otis eventually was claimed to be completed, and Standard paid Otis approximately $59,215.51 of the elevator contract price. According to Otis, approximately $17,526.49 remains unpaid. This action is brought by Otis to recover that amount. Standard’s answer alleges, among other things, that it acted as the agent of Swedish Hospital when it executed the elevator contract. Swedish Hospital has moved to intervene upon the premise that Standard acted as its agent when Standard executed the elevator contract and therefore that Swedish has an interest which entitles Swedish to intervene as a matter of right pursuant to Rule 24(a). Swedish contends that Standard’s representation of Swedish’s interest is or may be inadequate, that Swedish may be bound by a judgment in favor of Otis against Standard, and that Swed-dish’s interest and the action between Otis and Standard have common questions of law and fact involved. The intervention, Swedish argues, will not delay or prejudice the adjudication of the rights of Otis and Standard. Swedish also seeks to assert a counterclaim against Otis for approximately $250,000 damages. Otis objects to the intervention principally upon the theory that as a matter of law no agency relationship existed between Standard and Swedish in view of their contract for construction of the additional floors and alterations, and that the Court must deny Swedish’s petition to intervene under Rule 24(b) in an action between an independent contractor (Standard) and Otis. Swedish contends that the question of agency cannot be determined on motion to intervene. The contracts between Swedish and Standard and Standard and Otis, together with other written exhibits, are annexed to the pleadings and are a part of the record of this case. The contract between Swedish and Standard provides that Standard will do the construction work in accordance with the plans and specifications of the architects at an estimated cost of $640,000 plus $6,000 for boilers and generator equipment. A five per cent fee based upon the construction cost was to be paid to Standard. Sub-contracts exceeding $500 were to be submitted to the building committee before letting. Standard was to receive, audit, and approve all invoices and to pay them from a special bank account into which Swedish was required to deposit funds weekly in accordance with the rate of completed construction. The authorized signature' of an officer of Swedish Hospital was required, however, on the checks. Payrolls were to be handled by Standard and paid from funds deposited by Swed*406ish. Standard’s compensation insurance policy and public liability and property damage insurance policy was to be operative for the job. Swedish was to be furnished with receipted invoices, etc., and they were subject to verification by Swedish. Materials, tools, and supplies which Standard furnished from its yard were to be figured at cost to Standard. A method for disposing of excess materials at termination of the work also was enunciated. A field office was to be maintained as a part of the construction cost. The contract between Swedish and Standard does not mention elevators specifically. And the architects’ specifications to which the contract refers likewise omit elevators. In fact, they specifically declare that they do not cover elevator and certain other factors in building. Swedish contends, therefore, that the elevator matter was not intended to be included in the written contract with Standard and that the arrangement between Swedish and Standard regarding the elevators was one in parole which created an agency in Standard to contract with Otis on behalf of Swedish for the elevators and dumb waiters. Swedish contends that all the facts and attendant circumstances concerning the written contract and the arrangements for the elevators and the performance of the contract and the elevator arrangement must be considered in determining the existence of an agency between Swedish and Standard for the elevator transaction. Otis, on the other hand, contends that the written contract establishes that as a matter of law the relationship between Standard and Swedish was that of independent contractor and owner during the entire job and with respect to the entire job, including the elevators, and that that contract is exclusive and controlling. The Minnesota law is clear that “The contracts themselves do not necessarily govern the question, and the relation of respondeat superior may depend entirely upon the conduct of the parties.” Anderson v. Foley Bros., 110 Minn. 151, 153, 124 N.W. 987, 988. See also Gill v. Northwest Airlines, 228 Minn. 164, 36 N.W.2d 785; Alansky v. Northwest Airlines, 224 Minn. 138, 28 N.W.2d 181, and cases cited therein. Consequently, it seems clear that the contracts between Standard and Swedish are not conclusive. The conduct of those parties and also of Otis may be considered in determining the existence of an agency relationship with respect to the elevator contract between Standard and Otis. The inquiry is not confined necessarily to the written contracts between Swedish and Standard, and Standard and Otis. All the facts and circumstances, including the conduct of the parties, may be recognized and considered. As Swedish points out, the contract between itself and Standard declares that the work shall be done in accordance with the specifications contained in the architects’ plans for the building. Those plans and specifications specifically omit elevators. Consequently, the contract between Swedish and Standard, even if it seems to create an independent contractor situation with respect to what it covers, is at least sufficiently uncertain that the Court should not hold, on this showing, that the situation will not permit explanation to show what the intent of the parties to the contract actually was. Otis does cite several letters and also some cases in support of its contention that the reference to the specifications should cut no figure. But the effect to be given the letters really goes to the merits of the agency question. And although citations are helpful in many instances, the question here is what was the intention of the parties. To insert into their contract by general rules the terms which they may not have contemplated, violates the rule that every legal contract must be interpreted and enforced according to the intent of the parties in so far as that intent can be determined legally. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at,least in the absence of sham, frivolity, and other similar objections. The contract relationship between Swedish and Stand*407ard is not such that it is necessarily in diametric opposition to the claim of agency, as Otis contends. The cases Otis cites in support of its claim of an independent contractor situation even with respect to the elevators were decisions decided on the merits of those cases. They are in point here only with respect to the facts they indicate are important to determine the existence of an agency or independent contractor relationship. They do not aid here in determining what the facts are, and consequently they do not aid in determining if an agency existed in light of matters not contained in the written contract. Swedish, in its proposed answer in intervention, pleads agency. Although Otis points out that the allegation merely states that the relationship between Swedish and Standard is one of “agency”, without reference to the acts upon which it is based, that objection does not appear fatal. Northwestern Detective Agency, Inc., v. Winona Hotel Co., 1920, 147 Minn. 203, at page 205, 179 N.W. 1001, sustains such an allegation of agency. See also Eisenberg v. Matthews, 1901, 84 Minn. 76, at page 78, 86 N.W. 870. Moreover, such an allegation seems sufficient to claim an interest which requires protection and justifies intervention. Although a valid cause of action or defense must be pleaded, Atlantic Refining Co. v. Port Lobos Petroleum Corp., D.C., 280 F. 934; Continental & Commercial Trust & Savings Bank v. Allis-Chalmers Co., D.C., 200 F. 600, the Court should be as liberal in determining that question of intervention as on dismissal motions. For the ruling in both situations determines if the claim or defense can be litigated and justice sought. The Court of Appeals for this Circuit has held in Dennis v. Village of Tonka Bay, 1945, 151 F.2d 411, 412, that “there is no justification for dismissing a complaint for insufficiency of statement unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.” In view of the Minnesota Supreme Court’s ruling in Northwestern Detective Agency, Inc., v. Winona Hotel Co., supra, and the liberal intent of the Federal rules, Swedish’s allegation of “agency” appears sufficient upon this motion to intervene. Otis recognizes that Swedish may intervene if Standard was its agent. The correctness of this conclusion is apparent from Rule 24(a) of the Civil Rules, which grants the right to intervene to anyone who may be bound by the judgment rendered in the action and when the representation of their interest by the existing parties may be inadequate. Swedish’s counterclaim arises out of the same transactions and occurrences as those upon which Otis bases its cause of action. That one who may intervene as a matter of right should be accorded the right to assert a counterclaim related to the transactions upon which the action is based is within the logic and intent of the Rules 24 and 13, which concern intervention and counterclaims, seems apparent. 2 Moore’s Federal Practice, §§ 24.12, 24.13. Otis’ contention that, in view of the written contract beween Standard and Swedish, evidence of the orally created agency is inadmissible, despite apparent agreement between Standard and Swedish as to the existence of the agency, is not persuasive. Upon all these premises, therefore, Swedish’s motion for the right to intervene and assert its defense and counterclaim against Otis should be, and is, granted. It is so ordered. It is further ordered that the proposed answer and counterclaim of Swedish may stand as its answer and counterclaim herein and that Otis is accorded twenty days after the filing of this order within which to interpose its reply to said counterclaim. An exception is reserved to Otis.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218738/

JONES, Chief Judge. This is a wrongful death action arising out of an air accident in which plaintiff’s' decedent was killed. One defendant operated and owned the plane and the other defendant manufactured it. The allegations to which defendant, Glenn L. Martin Company objects contain reference to the negligent manufacture of twenty-five airplanes. Since only one plane was involved, such allegations are said to be prejudicial, irrelevant and immaterial. There being no opposition to the motion, and since these allegations may be prejudicial, the motion to strike will be sustained. •

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218739/

REEVES, Chief Judge. Counsel for the defendant have filed a motion for a bill of particulars authorized by paragraph (f) Rule 7, Federal Rules of Criminal Procedure, 18 U.S.C.A. This rule provides that: “The court for cause may direct the filing of a bill of particulars. A motion for a bill of particulars may be made only within ten days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order.” Except probably in the case of the first sentence, the law relating to bills of particulars remains as it was at common law. The practice of moving for bills of particulars is not universally recognized. For instance, in Missouri, the practice does not prevail. State v. Quinn, 40 Mo.App. 627; State v. Noell, 220 Mo.App. 883, loc. cit. 887, 295 S.W. 529. It is not a popular practice and is recognized as being particularly addressed to the discretion of the trial court. It partakes of the nature of a motion for a more definite statement and is not properly employed to elicit information that might be evidentiary. The District Court for the Southern District of Iowa in United States v. Adams Express Co., 119 F. 240, 241, aptly and-concisely defined the function of the bill of ■particulars as follows: “And the office of .a bill of particulars is to advise the court, bat more particularly the defendant, of what *416facts, more or less in detail, he will be required to meet.” The definition was approved in Kettenbach v. United States, 202 F. 377, loc. cit. 383, 120 IC.C.A. 505, where the 9th Cir.Ct. of Appeals said in sustaining the trial court in overruling a motion for a bill of particulars: “The allegations of the indictment were not indefinite or vague (emphasis mine) nor does it appear that the plaintiffs in error were entitled as a matter of right to the disclosures of the nature of the oral testimony which the government intended to produce.” The Supreme Court, in Wong Tai v. United States, 273 U.S. 77, loc. cit. 82, 47 S.Ct. 300, 302, 71 L.Ed. 545, intimated the proper office of the bill of particulars in a criminal prosecution, when it said: “This motion * * * was denied on the ground that the indictment was sufficiently definite in view of the unknown matters involved and the motion called ‘for too much details of evidence.’ ” The court approved the action of the trial court in denying the motion by saying that: “The application for the bill of particulars was one addressed to the sound discretion of the court, and, there being no .abuse of this discretion, its action thereon should not be disturbed.” The office of the bill of particulars was well stated by the district judge for the Eastern District of Michigan, in United States v. McKay, 45 F.Supp. 1001, loc. cit. 1004. The court said: “Where the charges in the indictment .are so general that they do not advise the defendant of the specific acts with which he is charged, it is proper for the Court upon motion by the defendant to order the filing ■of a bill of particulars, but it is not the purpose of such procedure to compel the •Government to disclose in detail the evidence upon which it expects to rely.” (Emphasis mine.) Again, in Steffler v. United States, 143 F.2d 772, loc. cit. 773, the Court of Appeals for the 7th Circuit said: “The indictment charged the offense defined by the statute in general terms and no essential element of the offense was omitted. If appellant had any doubt as to the offense, he should have asked for a bill of particulars." (Emphasis mine.) In Norris v. United States, 152 F.2d 808, loc. cit. 811, the 5th Circuit Court of Appeals defined the office of a bill of particulars as follows: “The function of a bill of particulars is to cure omissions of details that might enable the defendant to prepare his defense, and to protect him against a second prosecution for the same offense.” The author of the opinion quoted from Tubbs v. United States, 8 Cir., 105 F. 59, loc. cit. 61, 44 C.C.A. 357: “Defendants in this class of cases commonly affect ignorance of what they are indicted for, and great apprehension lest they shall be indicted a second time for the very same offense, and be unable to prove by the record a former conviction or acquittal. No case of the kind has ever occurred, or is ever likely to occur, but the affected apprehension of each defendant that it may occur in his case is perennial.” In the case of United States v. Wernecke, 138 F.2d 561, loc. cit. 563, the Court of Appeals for the 7th Circuit intimated the function of a bill of particulars to be a more definite statement or for information in the nature of particulars when it said: ■ “an element of the offense is charged by the use of generic terms, such as the word ‘duty’ * * * in which case the indictment must set forth what the ‘duty’ was.” Very concisely, 42 C.J.S., Indictments & Informations, §• 156, p. 1092, defines the functions of a bill of particulars as follows: “The office of a bill of particulars in criminal prosecutions is to give the adverse party information which the pleadings by reason of their generality do not give.” It is obvious from the foregoing that the purpose of a bill of particulars is to define more specifically the offense charged, and according to all of the authorities may not be employed to procure the evidence of the government. *417In this case the defendant is charged in three counts with having failed to meet his income tax obligations for the years 1946, 1947, and 1948. The first count charges that he failed to file a return for the year 1946, and that he thereby concealed his income from government officials. Certainly the charge could not have been more specifically made. The defendant knows whether he filed a return relating to his income for the year 1946. The government charged that he received a net income of about $5,501.65. This is definite and clear enough to inform the defendant of the charge against him. The second count of the indictment was that the defendant attempted to defeat and avoid a large part of his income tax for the year 1947 by filing a return showing a net income of $7,151.53 whereas in truth and in fact his net income was $13,876.37. The defendant knows whether this was a fact or whether it was not a fact. The third count charges in similar language for the year 1948 that the defendant’s net income actually was $16,232.69, whereas he made a return showing a net income of but $6,524.19. These averments are clear enough to protect the defendant against second jeopardy and to inform him precisely of the offense with which he stands charged. In fine, the defendant either failed to make a return on his income for 1946, or he did not. In 1947, he either minimized his income or he did not. In 1948, the same thing may be said. The motion for a bill of particulars should be denied, and it will be so ordered.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218740/

REEVES, Chief Judge. The plaintiff seeks a summary judgment under the provisions of Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. It is provided by said Rule 56 that a summary judgment shall be rendered “if the pleadings * * * and admissions on file * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ■ An inspection of the pleadings shows that the complaint alleged that the defendants had violated the Housing and Rent Act, 50 U.S.C.A.Appendix, § 1881 et seq., by overcharging a tenant as an occupant of a housing accommodation operated by them and located at 4004 Mer-sington Avenue, Kansas City, Missouri; that such overcharges extended from August 14, 1948 up to and including August 14, 1950; and that the maximum legal rent fixed by the Housing Expediter was $15 per month whereas the rental charge was *418$60 per month. This means that an overcharge of $45 per month for 24 months, or a total overcharge of $1,080 was made. Each of the defendants has answered admitting the jurisdiction of the court, and then they each either deny or plead ignorance or lack of information as to other matters alleged in the complaint. The complaint was filed August 2, 1950, and the answers were filed on August 8, 1950. On August 16, 1950 plaintiff filed a request for admissions and, in doing so, counsel for the plaintiff certified “that a copy of the above document was mailed to Robert I. Adelman, 701 Rialto Building, Kansas City, Missouri, Attorney for Defendants, this 15th day of August, 1950.” No answers have been made to the requested admission of facts, and on September 19, 1950, the plaintiff filed its motion for a summary judgment. 1. It is provided by Rule 36, among other things, that: “Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof * * * the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant * * The defendants havé failed to make any reply to the request for admissions. Under the rule such requested admissions must be treated as true, and, ¿f true, then plaintiff is entitled to a summary judgment. 2. An inspection of the request for admissions shows that such requests follow the averments of the complaint and under the rule the averments of the complaint, therefore, stand confessed. Such was the holding in Gilbert v. General Motors Corporation, 2 Cir., 133 F.2d 997. The Clerk of this court will notify counsel for the defendants that unless good cause be shown to the contrary, a summary judgment will be entered on Monday, October 23rd, next, at 10 o’clock a. m., or shortly after the opening of court on that day.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224443/

MEMORANDUM OPINION JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE On September 27, 2013, this Court was presented with an application for a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and (c), to compel Facebook, Inc. to disclose certain records and contents of electronic communications relating to the Facebook account identified by the user name “Aaron.Alexis.” See generally Affidavit in Support of an Application for a Search Warrant [# 1—1].1 This Court did issue a Search and Seizure Warrant Order [#2], but in light of the Court’s determination that the government’s request was “overbroad under the Fourth Amendment because of the unwarranted invasion into the privacy of third parties,” the Court’s Order significantly narrowed the scope of what information Facebook could give the government. Id. *3at 1. That Order also promised that a memorandum opinion would explain the Court’s reasons for issuing the modified search and seizure warrant. I. BACKGROUND As part of its investigation into the September 16, 2013, shooting at the Washington Navy Yard, perpetrated by Aaron Alexis, the government learned that Alexis had a Facebook account where he posted “long statements about his perspectives on life and would write about those things or people who bothered him ... most postings were depressing and negative in nature and could be described as mini-rants.” [# 1-1] at 6. The government subsequently filed with the Court its application for a search warrant, which was intended to operate in a bifurcated manner. First, the government outlined the information that it wanted Facebook to “disclose” to the government: a) All contact and personal identifying information, including full name, user identification number, birth date, gender, contact e-mail addresses, Facebook passwords, Face-book security questions and answers, physical address (including city, state, and zip code), telephone numbers, screen names, websites, and other personal identifiers. b) All activity logs for the account and all other documents showing the user’s posts and other Facebook activities; c) All photos and videos uploaded by that user ID and all photos and videos uploaded by any user that have been tagged in them; d) All profile information; News Feed information; status updates; links to videos, photographs, articles, and other items; Notes; wall postings; friend lists, including the friends’ Facebook user identification numbers; groups and networks of which the user is a member, including -the groups’ Facebook group identification numbers; future and past event postings; rejected “Friend” requests; comments; gifts; pokes; tags; and other information about the user’s access and Use of Face-book applications; e) All other records of communications and messages made or received by the user, including all private messages, chat history, video calling history, and pending “Friend” requests; f) All “check ins” and other location information; g) All IP logs, including all records of the IP addresses that logged into the account; h) All records of the account’s usage of the “Like” feature, including all Fa-cebook posts and non-Facebook webpages and content that the user has “liked”; i) All information about the Facebook pages that the account is or was a “fan” of; j) All past and present lists of friends created by the account; k) All records of Facebook searches performed by the account; l) All information about the user’s access and use of Facebook Marketplace; m) The types of service utilized by the user; n) The length of service (including start date) and the means and source of any payments associated with the service (including any credit card or bank account number); *4o) All privacy settings and other account settings, including privacy set- - tings for individual Facebook posts and activities, and all records showing which Facebook users have been blocked by the account; p) All records pertaining to communications between Facebook and any person regarding the user or the user’s Facebook account, including contacts with support services and records of actions taken. [# 1-1] Attachment B at 1-2.2 Second, the government specified the information that it would “seize”: a. Records and information, and items related to violations of [18 U.S.C. §§ 1111, 1113, and 1114]; b. Records, information, and items related to the identity of Aaron Alexis; c. Records, information, and items related to the Washington Navy Yard or individuals working or present there; d. Records, information, and items related to any targeting of, or planning to attack, the Washington Navy Yard or individuals working or present there, or any records or information related to any past attacks; e. Records, information, and items related to the state of mind of Alexis, or any other individuals seeking to undertake any such attack and/or the motivations for the attack; f. Records, information, and items related to any organization, entity, or individual in any way affiliated with Alexis; g. Records, information, and items related to any associates of Alexis or other individuals he communicated with about his planned violent attacks, including the one perpetrated at the Washington Navy Yard on September 16, 2013; h. Records, information, and items related to Alexis or his associates’ ■ schedule of travel or travel documents; i. Records, information, and items related to any firearms or ammunition; j. Records, information, and items related to any bank records, checks, credit card bills, account information, and other financial records; and k. Records relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts. Id. at 3-4.3 The government did not specify what it would do with the information that was disclosed to it by Facebook but that it would not seek to “seize.” The Court was concerned that the government’s requested warrant was over-broad, evaded the fundamental requirement that a search warrant particularly describe what items are to be seized, and failed the necessity of showing that the items seized were contraband, instruments of committing a crime, or evidence of a crime’s commission. See Fed. R. Crim. P. 41(c). Thus, the search requested by the *5government was the very “general” search that precipitated the enactment of the Fourth Amendment. In response, this Court crafted an Order that limited Facebook’s disclosure to information about Alexis’s account and the content of messages that he sent. [# 2] at 1-2. Facebook was also ordered to disclose records of communications — but not the content of communications — between third parties and Alexis’s account. Id. at 2. The government was permitted to “seize” only information directly related to its investigation, and the Order specified that “[a]ll records and content that the government determines [were] NOT within the scope of the investigation, as described above, must either be returned to Face-book, Inc., or, if copies (physical or electronic), destroyed.” Id. at 3. For the sake of completeness, the relevant portions of the Court’s Order are reproduce below: 1. Facebook, Inc. is instructed to comply strictly with the terms of this Order and to provide only the following materials to the government: a. All contact and personal identifying information related to the Account, including the Account holder’s full name, user identification number, birth date, gender, contact e-mail addresses, Facebook login details, physical addresses (including city, state, and zip code), telephone numbers, screen names, websites, billing information, and other personal identifiers associated with the Account; b. All records relating to use of the Account, including session times, login/logout times, IP addresses from which it was accessed, and the types of services used; c. All records related to the Account’s privacy settings; d. All activity logs for the Account and all other records showing the Account’s posts, messages, and other activities on Facebook; e. All photos and videos uploaded by the Account; f. All records — but not content — relating to the Account’s list .of friends, including any friend requests that were pending or rejected; g. All records of communications— but not content — sent to the Account from another account or group, including the user ID of that account or group and the user name of the account or group, the date and time of the communication, whether attachments existed (subject to the limitations expressed infra); and h. All records — including content— of communications generated by or sent from the Account to any other user or group (including postings). 2. Facebook, Inc. is instructed to comply strictly with the terms of this Order and is PROHIBITED from providing the following materials to the government without an additional Order from this Court: a. The contents of any communications sent to the Account; b. Photos and videos uploaded by other users, even if Aaron Alexis is “tagged” or otherwise mentioned or identified in the photos or videos; and c. Any records or details about any groups of which the Account was a member, including those that were “liked” or of which the Account was a “fan” (or other similar term) *6other than the user ID and name of the user or group. 3. Upon receipt of the above-described records and content, the government will then conduct a search to determine which relate to the following areas of investigation, as identified in the government’s application. These areas are: a. Allegations that Aaron Alexis violated: i. 18 U.S.C. § 1111; ii. 18 U.S.C. § 1113; iii. 18 U.S.C. § 1114; b. Records and content related to the identity of Alexis; c. Records and content related to any targeting of, or plans to attack, the Washington Navy Yard or individuals working or present there; d. Records and content related to any other attacks planned or carried out by Alexis; e. Records and content related to the motive of Alexis for the attack, including evidence of mental illness; f. Records and content related to whether Alexis had any accomplices in planning or carrying out the attack on the Washington Navy Yard or individuals working or present there; 4. All records and content that the government determines are NOT within the scope of the investigation, as described above, must either be returned to Facebook, Inc., or, if copies (physical or electronic), destroyed. Id. at 1-3. II. LEGAL ANALYSIS The Court has two primary concerns about the government’s application: 1) no probable cause existed for the search and seizure of information related to third parties; and 2) the government did not provide any explanation for what it would do with information disclosed by Facebook but deemed irrelevant to this investigation and not “seized.” A. The Government Lacked Probable Cause for Information Relating to Third Parties The Supreme Court has recognized two constitutional protections served by the warrant requirement of the Fourth Amendment. “First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Thus, it is this Court’s duty to reject any applications for search warrants where the strict standard of probable cause has not been met. Second, “those searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Id. These twin inquiries are inseparably intertwined by the text of the Fourth Amendment: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. To follow the dictates of the Fourth Amendment and avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant. *7Here, there was certainly probable cause to search and seize items in Alexis’s Facebook account because there was probable cause to believe that it contained evidence indicating his motive in perpetrating the shooting and whether he conspired with anyone. The government’s application, however, wholly failed to provide any explanation whatsoever for why there was probable cause to search and seize information about third parties. Instead, there were only bare requests, such as for “[rjecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts.” [# 1-1] Attachment B at 4 (emphasis added). Without probable cause to seize this material, this Court cannot issue a warrant authorizing its seizure. In addition to the lack of probable cause, a separate constitutional concern arises from the government’s apparent attempt to obtain information about any Fa-eebook groups that Alexis may have joined. The application requests “[ajll information about the Facebook pages that the account is or was a ‘fan’ of,” as well as “[rjecords, information, and items related to any organization, entity, or individual in any way affiliated with Alexis.” Id. at 2-3. The plain language of this request would require Facebook to turn over membership lists, which implicates the right to free association found in the First Amendment. See NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”). Whether these groups were potentially political advocacy groups is immaterial, as this constitutional protection “pertainfsj to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” Id. at 460-61, 78 S.Ct. 1163. Depending on what the government found after a search of Alexis’s account, probable cause could exist to learn more information about another individual or a group. But no such probable cause existed for the initial foray into Alexis’s Face-book profile, and it was therefore premature for the government to seek so much information about third parties. The Court is particularly concerned because this is the second time this year that it has rejected an overly broad search and seizure warrant application directed to Fa-cebook, at least in part because it unduly invaded the privacy of third parties. In a previous opinion, which remains sealed, the Court noted that the government’s application “casts a remarkable dragnet over communications that surely have nothing to do with this case, including those to and from third parties, who will never know of the government’s seeing their communications with John Doe about unrelated matters.” In the Matter of the Search of Information associated with Facebook Account: http://facebook.com/tJohn.Doe] that is stored at premises controlled by Facebook, Inc., 13-MJ-485, slip op. at 2 (D.D.C. June 14, 2013) (Facciola, M.J.) (sealed). The government should exercise caution and more narrowly tailor future warrant applications directed at Facebook; individuals may voluntarily share their information with Facebook, but the government, by seeking a search warrant, justly reasons that probable cause for searching within a Facebook account is still a constitutional necessity, particularly when it will have to see third party communications that are innocuous and irrelevant and sent by persons who could not possibly have anticipated that the government would see what they have posted. *8B. The Government Failed to Explain What It Would Do with Material Produced by Facebook That Is Irrelevant to Its Investigation and Thus Outside the Scope of the Search and Seizure Warrant I. The Two-Step Process of Rule 41 Necessarily Results in the Government Seizing Information Outside the Scope of the Search Warrant As an initial matter, it may be strange that a court would even need to raise concerns about what the government might do with information that it collects that falls outside the scope of a search and seizure warrant. After all, such collection would appear to be a per se violation of the Fourth Amendment. But due to the current “reality that over-seizing is an inherent part of the electronic search process” that gives the government “access to a larger pool of data that it has no probable cause to collect,” this Court is obliged to create minimization procedures to limit the possibility of abuse by the government. United States v. Schesso, 730 F.3d 1040, 1042 (9th Cir.2013) (citing United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1177 (9th Cir.2010) (en banc) (per curiam)). See also Comprehensive Drug Testing, 621 F.3d at 1178 (Kozinksi, J. concurring) (suggesting procedures magistrate judges should follow to prevent “turning all warrants for digital data into general warrants”). Part of the problem comes from Rule 41, which creates a two-step procedure for the search and seizure of electronic information that necessarily allows seizing far more information than a warrant specifies. See Fed. R. Crim. P. 41(e)(2)(B). Under that Rule, a warrant “may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or other information consistent with the warrant.” Id. According to the 2009 notes from the Advisory Committee, this procedure was codified because “it is often impractical for law enforcement to review all of the [electronic] information during execution of the warrant at the search location .... officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim. P. 41 advisory committee’s notes. It is with the two-step procedure in Rule 41 in mind that the government has created the fiction that, although a great deal of information will be disclosed to it by Face-book, it will only “seize” that which is specified in the warrant. Compare [# 1-1] Attachment B at 1 with [# 1-1] Attachment B at 3; See generally In re Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, Nos. 13-MJ-8163, 13-MJ-8164, 13-MJ-8165, 13-MJ-8166, 13-MJ-8167, 2013 WL 4647554, at *1 (D.Kan. Aug. 27, 2013) (“In re App.”) (the government’s search warrant applications used the same bifurcated distinction between information disclosed and information “seized”). By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to “seize” everything that is given to it. Yet despite this attempted distinction— which has no apparent basis in the Fourth Amendment — even the material that is not within this second “seizure” category will still be turned over to the government, and it will quite clearly be “seized” within the meaning of that term under the Fourth Amendment. See Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (noting that a “seizure” *9occurs when an object is detained or taken). However, other courts to consider this issue have determined that copying electronic data or taking the original hard drives offsite — even if the government knows that the information contained within is beyond the scope of the warrant— does not violate the Fourth Amendment. See, e.g., Quest v. Leis, 255 F.3d 325, 334-35 (6th Cir.2001) (citing cases from the First, Ninth, and Tenth Circuits) (“In the instant cases, when the seizures occurred, defendants were unable to separate relevant files from unrelated files, so they took the computers to be able to sort out the documents off-site. Because of the technical difficulties of conducting a computer search in a suspect’s home, the seizure of the computers, including their content, was reasonable in these cases to allow police to locate the offending files.”). These cases, which all predate the 2009 Amendments to Rule 41, remain persuasive until the Supreme Court or the D.C. Circuit rule otherwise. See United States v. Evers, 669 F.3d 645, 652 (6th Cir.2012); see also United States v. Winther, 2011 WL 5837083, at *11-12 (E.D.Pa. November 18, 2011) (citing cases that have upheld the constitutionality of a two-step procedure even when that procedure takes longer than the time allocated in the warrant for execution). In light of the substantial authority upholding the process authorized by Rule 41, this Court will continue to issue warrants employing the two-step procedure. However, the Court does think it appropriate to incorporate appropriate minimization procedures into the warrants to comply with the Fourth Amendment. 2. In This Case, Minimization Procedures Can Satisfy the Fourth Amendment The Court is aware of the concerns raised by Magistrate Judge David Waxse and others that “the initial section of the warrants authorizing the electronic communications service provider to disclose all email communications (including all content of the communications), and all records and other information regarding the account is too broad and too general.” In re App., 2013 WL 4647554 at *8. The current two-step procedure that has been codified in Rule 41 is born from an attempt to balance the practical needs of the government with the requirements of the Fourth Amendment. Without question, the requirements of the Fourth Amendment are paramount; if the government cannot create a practical way to perform electronic searches and seizures that does not violate the Fourth Amendment, then it is simply not entitled to that information. This is clearly an evolving area of the law, but the Court is not yet prepared to go as far as Magistrate Judge Waxse and conclude that that the two step procedure authorized by Rule 41 — seize all data and segregate what the warrant permits to be seized from what it does not at a later time — is now to be condemned as a violation of the Fourth Amendment. This Court will insist, however, that some safeguards must be put in place to prevent the government from collecting and keeping indefinitely information to which it has no right. As with the decision by Magistrate Judge Rian Owsley in In the Matters of the Search of Cellular Telephone Towers, this Court is satisfied — for the time being — that it can lessen any potential Fourth Amendment violation by enforcing minimization procedures on the government. See 945 F.Supp.2d 769, 771 (S.D.Tex.2013) (requiring the government, which obtained a warrant to “dump” all phone numbers from cell towers, to “return any and all original records and copies, whether hardcopy or in electronic for*10mat or storage, to the Provider, which are determined to be not relevant to the Investigative Agency’s investigation”). With this issue in mind, this Court began issuing, in September 2013, “Secondary Orders” to search and seizure warrants for electronic records. These “Secondary Orders” explicitly require that contents and records of electronic communications that are not relevant to an investigation must be returned or destroyed and cannot be kept by the government. See, e.g., In the Matter of the Search of Information Associated with [Redacted] That is Stored at Premises Controlled by Yahoo! Inc., 13-MJ-728 (D.D.C. September 25, 2013) (sealed) (Facciola, M.J.) (“All contents and records that the United States government determines are not within the scope of Attachment B(II)(A), (B), and (C) shall be either returned to Yahoo!, Inc., or, if copies, destroyed.”). Without such an order, this Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought and whether the warrant authorized its seizure. The basis in the Fourth Amendment for those orders, and the minimization order here, is that the government had not established probable cause for the entirety of Alexis’s Facebook account — which its more narrow “seizure” section of the application tacitly admitted. Thus, it would violate the Fourth Amendment for the government to permanently seize all contents, records, and other data related to the account. The Court’s Order required that “[a]U records and content that the government determines are NOT within the scope of the investigation, as described above, must either be returned to Face-book, Inc., or, if copies (physical or electronic), destroyed.” [# 2] at 3. This minimization procedure was intended to help strike the appropriate balance between the competing interest of the government and the requirements of the Fourth Amendment, and the Court is satisfied, for the moment, with that approach. Minimization procedures may be an appropriate way to protect the purpose of the Fourth Amendment even when changes in technology dramatically change the way in which search and seizures actually occur in the real world. However, it is clear that they are not perfect. While there has never been anything stopping the government from exceeding the scope of an otherwise valid warrant when searching a physical place, it is clearly easier to do so when the government has an identical copy of an entire hard drive or database. Perhaps of even bigger concern is the potential applicability of the “plain view” doctrine with respect to electronic searches, which has been the subject of considerable consternation in the Ninth Circuit. See U.S. v. Comprehensive Drug Testing, 579 F.3d 989, 997-99 (9th Cir.2009) (“the government should, in future warrant applications; forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.”) superseded by 621 F.3d 1162, 1178 (9th Cir.2010) (en banc) (“The process of segregating electronic data that is seiza-ble from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.”). *11Finally, since the 2009 amendment to Rule 41, there has been a sea change in the manner in which computers, which now contain enormous amounts of data, are searched with technology assisted review replacing other forms of searching, including the once thought gold standard of file-by-file and document-by-document review.4 Thus, the premise of the 2009 amendment — that law enforcement had to open every file and folder to search effectively— may simply no longer be true. Indeed, this Court finds it hard to believe that a law enforcement agency of remarkable technical ability such as the FBI is opening every file and folder when it seizes a computer that contains a terabyte of data. The Court cannot imagine that it has the time or personnel to do it, nor see any reason to do it when there are more efficient means to do what its agents have to do. Thus, the boilerplate that has appeared in every search warrant application for as long as law enforcement has been searching computers insisting that the agents must open every file and folder may simply be incorrect and therefore an illegitimate premise for the kind of searching law enforcement will actually do. III. Conclusion The government has once again relied on boilerplate language that is inapposite to the relevant facts. See In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Redacted], 1:13— MC-199, 1:13-MC-1005, 1:13-MC-1006, 20 F.Supp.3d 67, 72 (D.D.C. Oct. 31, 2013) (Facciola, M.J.) (“Generic and inaccurate boilerplate language will only cause this Court to reject future § 2703(d) applications.”). Counsel for the government represented to the Court that the list of requested items in the application was the standard list used by the Department of Justice for search warrants involving Fa-cebook accounts, although the Court notes that this application requested the production of more information than the request that was previously denied in 13-MJ-485. The facts in this case clearly do not warrant such disclosure. This Court is also troubled that its minimization procedure approach — while acceptable in this case — may not be appropriate to curb excessive searches and seizures in the future. Other courts have suggested alternatives, including: 1. Asking the electronic communications service provider to provide specific limited information such as emails or faxes containing certain key words or emails sent to/ from certain recipients; 2. Appointing a special master with authority to hire an independent vendor to use computerized search techniques to review the information for relevance and privilege; 3. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the com- ■ puter personnel will not disclose to the investigators any information other than that which is the target of the warrant; 4. Magistrate judges should insist that the government waive reli-*12anee upon the plain view doctrine in digital evidence cases; and 5. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents See In the Matter of Applications for Search Warrants for Case Nos. 12-MJ-8119-DJW and Information Associated with 12-MJ-9191-DJW Target Email Address, Nos. 12-MJ-8119, 12-MJ-8191, 2012 WL 4383917, at *10 (items 1-2); Comprehensive Drug Testing, 621 F.3d at 1180 (Kozinski, J. concurring) (items 3-5); see also In re Search Warrant, 193 Vt. 51, 71 A.3d 1158, 1186 (2012) (upholding nine ex ante restrictions on a search warrant for electronic data but holding that the issuing officer could not prevent the government from relying on the plain view doctrine). This list is non-exhaustive, and the government should take time to seriously consider how to minimize the amount of information that its search warrant applications seek to be disclosed. There is no doubt that the current state of affairs, as evidenced by the government’s original application for Alexis’s Facebook account, is untenable. If the government cannot adopt stricter search parameters in future applications, it may find this Court unwilling to issue any search and seizure warrants for electronic data that ignore the constitutional obligations to avoid “general” electronic warrants that are as offensive to the Fourth Amendment as the searches that led to its enactment. . The docket in this matter is public, as the government did not request that it be sealed. . Attachment B, which lists the information that is to be disclosed and seized, is an attachment to the government’s application. However, because the Court declined to allow the government access to all of the material in the attachment, the Clerk's office did not scan it and did not place it on ECF. Regardless, the relevant portions are quoted in this Memorandum Opinion, and the Court will request that the Clerk’s office place these pages on ECF contemporaneously with this Memorandum Opinion. . The style of the sequential lettering in the two lists differs in the original and is accurately reproduced here. . For an explanation of the technology and a glossary of the terms used in it, see Maura R. Grossman & Gordon V. Cormack, The Gross-man-Cormack Glossary of Technology-Ássist-ed Review, with a Foreword by John M. Facciola, U.S. Magistrate Judge, 2013 Fed. Cts. L.Rev. 7 (2013).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224444/

MEMORANDUM AND ORDER REGARDING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 41 & 44) PONSOR, District Judge. I. INTRODUCTION Plaintiffs, Jose and Maria Santos, have brought suit under Mass. Gen. Laws ch. 93A against their insurer, Defendant Preferred Mutual Insurance Company. Plaintiffs also assert claims for breach of contract and breach of the implied covenant of good faith and fair dealing. These allegations stem from Defendant’s treatment of Plaintiffs following a 2011 oil tank explosion in their basement. The pending summary judgment motions focus on a narrow question: Have Plaintiffs satisfied the conditions precedent to fifing suit? Defendant contends that it is entitled to judgment in its favor because Plaintiffs failed to refer the matter to an independent board of referees and because they initially failed to attend an examination under oath. However, because Defendant ultimately waived the former requirement and because Plaintiffs did ultimately sit for an examination under oath, the court will deny Defendant’s Second Motion for Summary Judgment (Dkt. No. 41), as well as Defendant’s Supplemental Motion for Summary Judgment (Dkt. No. 44). II. BACKGROUND1 A. The Parties and the Policy Plaintiffs, Jose and Maria Santos, a married couple, owned a home together in Ludlow, Massachusetts. Defendant, a mutual insurance company organized in and operating out of New York, insured Plaintiffs’ residence beginning in 2007. The relevant policy for this litigation, policy No. PH00100761814, covered Plaintiffs for the period of November 1, 2011, to November 1, 2012. The policy, in addition to its substantive provisions, contained a number of procedural requirements in the event of a claim. Two are relevant. First, a claimant, upon request of the insurer, was required to “submit to an examination under oath in matters connected with the loss or claim.” (Policy, Dkt. No. 41, Ex. 2.) Second, the policy stated, “If there is a disagreement as to the dollar amount of the loss ... [t]he dispute wifi be referred to a three member board of referees. Their decision as to the amount of loss will be binding.” (Id.) The policy precluded suit against Defendant unless “all the terms of th[e] policy have been complied with.” (Id.) B. The Explosion and the Immediate Aftermath On November 3, 2011, Alves Fuels delivered heating oil to Plaintiffs’ home. Shortly after the delivery, Mrs. Santos was doing laundry in her basement when the oil tank exploded. The explosion spewed oil into the air, onto the floor, on a number of personal items, and covered Mrs. Santos. The oil quickly spread throughout the basement. *114Mr. Santos immediately called 911, and the Ludlow police and fire departments responded. Mr. Santos then called Joe Salvador, owner of Alves Fuels, and Western Mass Environmental, LLC (“WME”), to assist with the oil spill. Around 11:00 a.m., WME arrived with a vacuum truck and began to suction the oil out of the basement. It also removed sections of the structure of the home and personal property that had been soaked in oil. In total, WME removed nine barrels of oily material and personal property. They then installed a ventilation system in the residence in an attempt to address a significant air quality problem. C. Plaintiffs ’ Dealings with Defendant On the day after the explosion, Mr. Santos notified Defendant of the incident by reporting it to one of Defendant’s local agents, Connie Doughty of Your Choice Insurance. Doughty informed Mr. Santos that his insurance would cover the costs for lodging, food, and other relevant expenses incurred as a result of the accident. Relying on that, Plaintiffs temporarily moved to the Quality Inn & Suites in Ludlow. During the following week, Doughty arranged for Plaintiffs to meet another representative of Defendant, Wade Loud of LaMarche Associates, to discuss the accident. Loud and Doughty instructed Plaintiffs to prepare and submit a list of items that had been damaged by the spill. The two agents also accompanied Plaintiffs to the residence to inspect the damage. They left Plaintiffs with the impression that Defendant would fully compensate them for the accident. On November 12, 2011, Plaintiffs, having received nothing from their insurance carrier and being unable to afford the hotel any longer, moved back into their residence. They provided Loud with documentation of the expenses for the lodging, along with a list of the personal property damaged. Subsequently, Loud, on behalf of Defendant, informed Alves Fuel that Defendant would provide coverage and assume responsibility. Defendant also retained Tighe and Bond of Westfield Massachusetts to study the contamination of the residence. Tighe and Bond removed samples of the basement floor and found them to be severely contaminated. Following this disclosure, Defendant instructed Tighe and Bond to stop its activities and refused to pay for its work. On January 13, 2012, over two months after the explosion, Loud again confirmed, this time in writing, that Defendant would pay for Plaintiffs’ losses. At that point, however, Defendant had still not done so, nor had it taken any other action to aid Plaintiffs. In late January 2012, Plaintiffs continued to smell fumes in their home. In the absence of assistance from Defendant, Plaintiffs contacted Jack Jemsek, a Massachusetts Licensed Site Professional. On January 25, 2012, Jemsek tested the air in the residence and found that it posed an imminent threat to Plaintiffs’ health. Jemsek then told Plaintiffs to vacate the residence and reported the situation to the Massachusetts Department of Environmental Protection. As a result, Plaintiffs moved back to a hotel, and on February 2, 2012, the Department of Environmental Protection issued a “Notice of Noncompliance” to Plaintiffs and Alves Fuels. Meanwhile, on January 27, 2012, Plaintiffs’ counsel wrote to Defendant, pursuant to Mass. Gen. Laws ch. 93A, § 9(3), demanding relief for its unfair business practices and seeking confirmation that Defendant would cover the damages. Defendant failed to respond to this 93A letter. On *115February 8, 2012, Defendant stated that it would continue its investigation into the matter. A few days later, Defendant met with Plaintiffs at their residence to review the list of damaged items. According to Plaintiffs, Defendant’s representative challenged, threatened, and verbally abused Plaintiffs until they were obliged to ask him to leave. On March 2, 2012, Plaintiffs submitted another itemized statement of costs and damages to Defendant. D. Litigation On March 20, 2012, Defendant’s counsel requested that Plaintiffs sit, at a mutually agreeable time, for an examination under oath. At that point, Defendant had not provided any reimbursement to Plaintiffs, nor had it taken any steps to abate the damage at the residence. Defendant, however, had not indicated that it was, in any specific way, contesting coverage and/or the amount of loss. As a result of Defendant’s inaction, six days later, Plaintiffs filed this suit alleging: (I) breach of contract; (II) a violation of the implied covenant of good faith and fair dealing; and (III) a violation of Mass. Gen. Laws ch. 93A. In their complaint, Plaintiffs also included a fourth count seeking a declaratory judgment that Defendant was obligated to provide coverage for Plaintiffs’ personal property, reasonable costs, and attorney’s fees. On May 29, 2012, Defendant sent Plaintiffs a letter informing them that it was continuing to investigate its obligations under the first-party coverage provisions of the policy. However, with respect to the “liability and medical payments to others” provision of the policy, Defendant stated, “Please know that your policy contains a pollution exclusion that was in place at the time of this occurrence. Therefore, [Defendant] is unable to provide you with any coverage for this loss.” (Dkt. No. 21, Ex. 6.) On June 8, 2012, Defendant scheduled an examination under oath for June 21, 2012. Plaintiffs’ counsel informed Defendant that Plaintiffs were unavailable at that time. Plaintiffs’ counsel also requested, to save resources, that the examinations occur simultaneously with the depositions of Plaintiffs in this case. Despite explicit knowledge that Plaintiffs were not able to attend their examination on June 21, 2012, Defendant, without notifying Plaintiffs, convened a pro forma examination on June 21, 2012, at which Plaintiffs were not present. Less than a week later, on June 27, 2012, the parties appeared for a scheduling conference in front of Magistrate Judge Kenneth P. Neiman. Plaintiffs’ counsel argued that Defendant should simultaneously hold the depositions and examinations under oath. The court, however, denied that request. (Dkt. No. 8.) As a result, Defendant conducted the examinations under oath of Mr. Santos on July 17, 2012, and Mrs. Santos on July 19, 2012. Defendant has not raised any objection respecting the adequacy of Plaintiffs’ answers or their conduct at the examinations. On September 25, 2012, more than ten months after the explosion, Defendant finally made some payments to Plaintiffs under the Personal Property and Additional Living Expense provisions of the policy. Then on October 19, 2012, Defendant provided some funds under the Residence Coverage provision. When Defendant made these payments, it included a reference to policy language that required Plaintiffs, if they disagreed with the amount of loss, to refer the matter to a three-member board of referees. Defendant did not, however, specifically indicate that it was contesting any loss claim; rath*116er, it informed Plaintiffs that it was continuing to investigate the matter. Subsequently, Plaintiffs cashed the checks. In February 2013, Defendant filed its first Motion for Summary Judgment, arguing that Plaintiffs had failed to refer the dispute over the amount of loss to a panel of referees and therefore were barred from bringing suit. (Dkt. No. 18.) The court denied that motion without prejudice, but stayed the case pending a referral. (Dkt. No. 28.) That panel commenced its review on June 24, 2013, and found the total amount of loss to be $68,358.31.2 On October 25, 2013, Defendant, still relying on the theory that Plaintiffs had failed to refer their claim to a three-member panel, filed its Second Motion for Summary Judgment. (Dkt. No. 41.) At oral argument, Defendant also insisted that summary judgment was appropriate because Plaintiffs failed to be examined under oath — a point for which the court requested supplemental briefing. (Dkt. No. 43.) The matter was then taken under advisement. III. DISCUSSION Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Critically in this case, the court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party’s favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir.2004). In the absence of a dispute over a genuine issue of material fact, summary judgment is appropriate. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir.1997). Defendant argues that it is entitled to summary judgment based on two theories. First, Plaintiffs failed to refer the dispute over the amount of loss to a board of referees as required under the policy. Second, Plaintiffs failed to sit for an examination under oath. For the reasons discussed below, neither argument comes within shouting distance of being persuasive. A. Referral Under ch. 175, § 99, and Waiver The referral procedure at issue in the policy has its genesis in Mass. Gen. Laws ch. 175, § 99. That section provides the standard language — disturbingly anachronistic — for insurance companies to use. It states, “In the case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men [sic].” Mass. Gen. Laws ch. 175, § 99. The Supreme Judicial Court has interpreted this requirement, “unless waived by the parties, [to be] a condition precedent to recovery upon the policies, if the parties failed to agree upon the amount of loss.” Molea v. Aetna Ins. Co., 326 Mass. 542, 544, 95 N.E.2d 749 (1950); see also Emp’rs’ Liab. Assurance Corp., *117Ltd. v. Traynor, 354 Mass. 763, 237 N.E.2d 34 (1968). Defendant’s contention is relatively simple: this language was in the policy, and Plaintiffs, before bringing suit, failed to refer the matter to a three-person board of referees. They once more failed to refer the matter after Defendant made a partial payment. Though the referral language is a condition precedent to suit, controlling authority makes it clear that the obligation is not sacrosanct. The First Circuit, in McCord v. Horace Mann Insurance Company, 390 F.3d 138 (1st Cir.2004), noted that an insurer could waive the provision. Though the McCord court did not find waiver in that specific case, it still affirmatively cited cases where “an absence of evidence that the insurer disputed the amount of loss” indicated waiver. Id. at 144, citing, Goodman v. Quaker City Fire & Marine Ins. Co., 241 F.2d 432, 436 (1st Cir.1957); Moran v. Phoenix Ins. Co., 7 Mass.App.Ct. 822, 390 N.E.2d 1139 (1979). Indeed, as Massachusetts’ courts have recognized, “the right to reference, like the right to arbitration, may be found to have been waived by the failure to properly and timely assert the right.” Anthony v. Amica Mut. Ins. Co., 10 Mass. L. Rptr. 256, 1999 WL 513958 at *2 (Mass.Super. May 13, 1999). The waiver need not be explicit, Moran v. Phoenix Ins. Co., 7 Mass.App. Ct. 822, 390 N.E.2d 1139 (1979), and the burden of proving waiver is on the party seeking to rely upon it. McCord, 390 F.3d at 143. Here, Plaintiffs have presented undisputed evidence that Defendant did not contest the amount of loss until well after this suit was filed on March 26, 2012. The first indication that Defendant may have been contesting the issue occurred on March 20, 2012, when it requested that Plaintiffs be examined under oath. Even then, however, Defendant did not indicate that it would be disputing Plaintiffs’ stated amount of loss, despite the fact that it had enjoyed more than four months to conduct an investigation. It was not until May 29, 2012, after Plaintiffs filed this suit, that Defendant formally told Plaintiffs that it was disputing some liability. Even at this time, however, Defendant offered no explicit objection to the stated amount of loss and noted that it was continuing to investigate its liability under the first-party coverage provisions of the policy. (Dkt. No. 42, Ex. 11.) It was not until September 2012, six months later, that Defendant impliedly contested the amount of loss when it paid over funds that were less than the amount Plaintiffs claimed. Even at this time, though, Defendant stated that it was still conducting an investigation into the matter and that the payment was not final. (Dkt. No. 42, Ex. 12.) Critically, no evidence in this record suggests that Defendant objected to Plaintiffs’ stated amount of loss prior to that time. Given these facts, Defendant’s argument amounts to a claim that the complaint should be dismissed because Plaintiffs failed to anticipate a dispute over the amount of loss that Defendant itself said nothing about. In failing to object to the amount of Plaintiffs’ claim in a reasonable period of time after it was submitted — or even in a reasonable period of time after this suit was filed — Defendant’s inaction implicitly waived the referral requirement, rendering dismissal inappropriate. See, e.g., Fall River v. Aetna Ins. Co., 219 Mass. 454, 458, 107 N.E. 367 (1914); Lancaster v. Gen. Accident Ins. Co. of Amer., 32 Mass.App.Ct. 925, 926, 587 N.E.2d 246 (1992); Moran, 7 Mass.App.Ct. at 824-25, 390 N.E .2d 1139. *118If it gave credit to Defendant’s argument, the court would be saying that any policyholder making a claim against an insurance company would be required to invoke the three-member review procedure whenever a dispute over the amount of loss was hypothetically possible at some future point, or risk dismissal of any claim. Prudent policy holders would be required to request the referral in every case, and clever insurers would be rewarded for folding their arms and keeping mum about their intentions, as Defendant did for nearly a year here. This is not the law. The other problem with Defendant’s position is that it sweeps too broadly. Only two of Plaintiffs’ claims even relate to the amount of loss — the breach of contract claim and the request for a declaratory judgment. The theory of this case, however, is more fundamentally about the unlawful and abusive process Defendant imposed on Plaintiffs once they submitted a claim— essentially that it left two of its policyholders, people of very modest means, twisting in the wind while it dithered about the amount of the loss and made inconsistent statements about whether it would provide coverage at all. This portion of the complaint, offered primarily under CL 93A, would proceed regardless of the amount of loss. At a minimum then, summary judgment as to the entire complaint would be inappropriate. As a legal matter, Defendant waived the requirement that Plaintiffs refer the matter to a panel of referees before filing suit. As a practical matter, that referral has also now taken place in any event, and the case can continue to move forward. B. Examinations Under Oath Defendant’s second theory, one presented at oral argument and pursued in supplemental memoranda, is that Plaintiffs failed to subject themselves to examinations under oath as required by the insurance policy. It is undisputed that “submission to an examination, if the request is reasonable, is strictly construed as a condition precedent to the insurer’s liability.” Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 337, 656 N.E.2d 1247 (1995). In this case, Defendant asserts, Plaintiffs failed to submit to an examination before they filed suit, despite a request by Defendant on March 20, 2012. Plaintiffs, according to Defendant, failed to attend the examination on the June 21, 2012, date Defendant arranged. Both failures, Defendant insists, represent a breach of a condition precedent to suit, requiring dismissal of this case. At best, the argument runs, Plaintiffs can re-file their case following dismissal. This argument is peculiar. Defendant does not dispute that it provided Plaintiffs the opportunity to be examined at a “mutually convenient date,” (Dkt. No. 41, Ex. 3), and that Plaintiffs notified it that the first date was inconvenient. Moreover, Defendant does not dispute that Plaintiffs did indeed sit for the examinations in July 2012. Given these undisputed facts, two interrelated points resolve the issue. First, the examination under oath is a condition for liability, not a bar to suit. See Mello, 421 Mass, at 336, 656 N.E.2d 1247. The court is not aware of a case that requires the examination to occur before suit is filed. In fact, it appears to only serve as a final bar to liability where the examination does not occur before trial, or where the plaintiff refuses to cooperate during the examination itself. See, e.g., Id. at 336, 656 N.E.2d 1247. With that as a baseline, taking Defendant’s version of events as true, the record undisputedly illustrates that the requirement was complied with fully on July 17 *119and 19, 2012. Notably, Defendant does not contend that Plaintiffs were evasive at the examinations, or that they failed to cooperate in good faith. Contra Hanover Ins. Co. v. Cape Cod Custom Home Theater, Inc., 72 Mass.App.Ct. 331, 891 N.E.2d 703 (2008) (finding that the requirement was not satisfied where the plaintiff refused to answer questions, withheld relevant documents, and subsequently walked out of the examination). Under the circumstances here, no bar to liability emerges, and the case can move forward. IV. CONCLUSION For the foregoing reasons, Defendant’s Second Motion for Summary Judgment (Dkt. No. 41) and Defendant’s Supplemental Motion for Summary Judgment (Dkt. No. 44) are hereby DENIED. Plaintiffs manifestly possess a more than trial-worthy claim. The clerk will now schedule the ease for a final pretrial conference. It is So Ordered. . Unless otherwise noted, the facts are drawn from the parties’ submissions and the exhibits referenced therein. (Dkt. Nos. 41, 42, 44, & 45.) . Though the amount of loss may be under $75,000, the court maintains diversity jurisdiction over the case. First, Plaintiffs have asserted a colorable claim for treble damages under Mass. Gen. Laws ch. 93A, a potential award that can be included in calculating the amount in controversy. See, e.g., Youtsey v. Avibank Mfg., Inc., 734 F.Supp.2d 230 (D.Mass.2010); F.C.I. Realty Trust v. Aetna Cas. & Sur. Co., 906 F.Supp. 30 (D.Mass.1995). Second, the amount in controversy is examined by looking at the facts at the time the complaint was hied — a potential amount Plaintiffs reasonably established to be above $75,000. See Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.2001) (citation omitted).

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EVIDENTIARY ORDER JOSEPH N. LAPLANTE, District Judge. The defendant, Frederick Drane, faces trial on one count of possession of crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), and one count of conspiring to do so with his co-defendant (“HL”), see id. § 846. HL, who has pleaded guilty to the possession count as part of a plea agreement, is expected to testify at trial on behalf of the prosecution. Drane has filed a motion in limine, see L.R.Crim. 12.1(c), seeking a ruling that, at trial, he can cross-examine HL about her arrest on a charge of hindering apprehension in Bid-deford, Maine, “for purposes of attacking [her] credibility,” but that the prosecution cannot ask her about the “extrinsic facts and circumstances surrounding [the] charge.” According to Drane, HL was charged with hindering apprehension because “she lied about [his] whereabouts ... when the Biddeford Police sought to [execute] an arrest warrant for [ ] Drane on an unrelated drug possession charge” in July 2012. After the police showed up at the door of her home — where, it appears, Drane was living at the time — HL falsely told them that Drane was not in, allowing him to try to avoid arrest by jumping out of a window. HL was subsequently arrested on a charge of hindering apprehension under Maine law. See Me.Rev.Stat. Ann. tit. 17, § 753, 1-B. She has yet to be convicted of that charge, which, the prosecution says, Maine authorities have stated they intend to dismiss upon her continued good behavior. As a result, Drane cannot introduce evidence of the hindering apprehension charge under Rule 609 of the Federal Rules of Evidence, which applies only to criminal convictions. The only way Drane can make use of the charge in attacking HL’s credibility is to ask her himself about the underlying facts, i.e., that HL lied to the police, under Rule 608(b) of the Federal Rules of Evidence. While that rule bars “extrinsic evidence ... to prove specific instances of a witness’s conduct in order to support or attack the witness’s character for truthfulness,” the rule also, “on cross-examination, allow[s] them to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness.” *121So Rule 608(b) allows Drane to ask HL, on cross-examination, whether she lied to the Biddeford Police in July 2012. If Drane elects to do so, however, there is nothing in Rule 608(b) that prevents the prosecution, on redirect examination, from eliciting further facts, including what the lie was, i.e., telling the police officers who had arrived at HL’s house to arrest Drane that he was not at home. Cf. United States v. Barnhart, 599 F.3d 737, 747 (7th Cir.2010) (recognizing that Rule 608(b) allows inquiry into the “conduct underlying [a witness’s] convictions,” even though Rule 609 does not). Indeed, the nature of the lie that a witness has told is just as probative of his character for truthfulness, if not more so, than the simple fact that he lied — because some lies reflect more poorly on a witness’s character than others. It is inconceivable, for example, that a witness could be asked on cross-examination whether he had lied to his children during the past December, and, having answered in the affirmative, not be allowed to explain on redirect examination that his lie was about the existence of Santa Claus. The problem here is that the nature of HL’s lie reflects poorly not only on her, but also on Drane, on whom the police were attempting to serve an arrest warrant. Drane calls this “detail[ ] much more prejudicial than probative as the warrant was for conduct unrelated to this case,” invoking Rule 403 of the Federal Rules of Evidence. It is true that, even as to testimony admitted under Rule 608(b), “the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice.” Fed.R.Evid. 608 advisory committee’s note (1972). But, as just discussed, the nature of HL’s lie is probative of her character for truthfulness and, indeed, her mere testimony that she lied to the police in July 2012, without any elaboration, paints an incomplete picture of that subject. Moreover, the court sees little danger of unfair prejudice from the fact that HL lied in an effort to prevent the police from arresting Drane — the jury is unlikely to infer, from that fact alone, that the arrest “was for conduct unrelated to this case,” particularly since, chronologically, the arrest happened between the two traffic stops giving rise to the charges here. Nevertheless, the prosecution shall not elicit the fact that the arrest was premised on unrelated charges. The same goes for the fact that, while HL was waylaying the officers, Drane was jumping out of the window.1 Furthermore, the prosecution argues that, even if it cannot elicit the nature of HL’s lie as a means of rehabilitating her after Drane uses the lie to attack her character for truthfulness under Rule 608(b), that testimony would still be admissible as' evidence of the conspiracy charged in the indictment. On this theory, HL’s lying to prevent Drane’s arrest was an effort to further their conspiracy to possess crack cocaine with the intent to distribute it in the sense that Drane’s detention would have disrupted their distribution efforts. In the court’s view, this suffices to show that the nature of the he has probative value aside from what it says about HL’s character for truthfulness under Rule 608(b) — a rule which, of course, does not prohibit evidence that is admissible on some other basis. See United States v. Cudlitz, 72 F.3d 992, 996 (1st Cir.1996). So evidence that HL lied to try to prevent the police from arresting Drane is admissible to show the existence of the charged conspiracy, regardless of whether that evidence can also be properly consid*122ered on the issue of HL’s character for truthfulness. Accordingly, Drane’s motion in limine (document no. 82) is DENIED. Drane may examine HL about her lie to the Biddeford Police in July 2012, but the prosecution may examine HL about the nature of that lie, including that it was an attempt to prevent the police from arresting Drane (though the prosecution may not elicit the fact that the arrest was premised on unrelated charges or that Drane tried to escape through the window). SO ORDERED. . Of course, as is the case with most eviden-tiary rulings, unforeseen circumstances arising during the trial conceivably could result in the admissibility of these facts.

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BURNS, District Judge. The primary basis of the objections of defendant to the interrogatories propounded by plaintiff is apparently the fear that answers to the questions asked might tend to accentuate what defendant considers to be less important facts. When it is recalled, however, that the function of interrogatories is to inform the parties in advance of trial, and not to serve as a substitute for the trial itself, the disposal of the rule on the instant objections becomes clear. Examination of the interrogatories, as amended, reveals that the information desired in those interrogatories may have relevance to the issues likely to arise at the trial of this case. Defendant has equal opportunity to insure adequate pretrial development of the case by itself resorting to cross-interrogatories and the other pretrial procedure permitted by the Federal Rules of Civil Procedure, 28 U.S.C.A. At the trial, neither party will be foreclosed from a full, developed presentation of its position.

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McGOHEY, District Judge. This is a spurious class action for treble damages under the antitrust laws. Defendants move (1) to dismiss an amended complaint, (2) for summary judgment, and (3) to strike certain allegations. The motion to dismiss is based on two grounds: (a) failure to state a claim on which relief can be granted, (b) the bar of the statute of limitations. The amended complaint pleads no damages suffered by the plaintiff Favorite Launderer, Inc. and so, as to that plaintiff the motion to dismiss is granted, with leave however to amend as to that plaintiff within ten days after entry of the order herein. The complaint as now amended is indeed far from “a short and plain statement of the claim showing that the pleader is entitled to relief”, and its averments are certainly not “simple, concise, and direct.” 1 Considerable study of it, however, discloses that it does state a claim on which, if sustained by proof, relief can be granted against the defendants. Amid the confusion of evidentiary and other unnecessary allegations is pleaded the claim that (1) the defendants, first as individuals from 1937 to November 20, 1943, and thereafter up to the filing of the complaint, as officers and directors of Telecoin, conspired with others to restrict and monopolize the business of selling Bendix washing machines for commercial use, in violation of the Sherman, Clayton and Robinson-Patman *423Price Discrimination Acts; 2 (2) the plaintiffs were thereby severally damaged in the amounts set forth as to each of them. The defendants- urge that it is not alleged that any plaintiff was injured by any acts of the defendants prior to the formation of Telecoin -Corporation -and that only one plaintiff is specifically alleged to have had any ¡business at any time with any defendant. It is true that no injury is alleged prior to the formation of the Telecoin Corporation. But it is alleged that the defendants Percival and Farny, through the Corporation and as officers and directors in control of its business, carried out the alleged conspiracy to the damage of the plaintiffs individually. This is sufficient to charge a violation of the statute,3 and to state a claim on which relief can be granted.4 It is further urged that any claim of the plaintiffs is barred by the statute of limitations. I am unable to agree. The period of limitation in an action such as this is governed by New York Law.5 That period is six years.6 While § 13 of the New York Civil Practice Act calls for the application of a shorter period if the law of the state where the cause arises so provides, defendants do not contend that any such shorter period will apply here. The six year period therefore should he applied. However the operation of the statute of limitations in antitrust actions was suspended from October 10, 1942, to June 30, 1946, by the Act of October 10, 1942, 7 as amended June 30, 1945.8 Therefore, since this action was commenced February 10, 1950, plaintiffs’ claims arising since May 20, 1940, are not barred. The motion to dismiss is therefore denied. The motion for summary judgment is grounded on the assertion “that there is no genuine issue as to- any material fact as more particularly appears from the affidavits of Arthur W. Percival an-d Eugene R. Farny annexed hereto.” The Percival affidavit, however, contradicts some of the allegations of paragraph four of the amended complaint. The resulting issue of fact compels denial of the motion for summary judgment. Paragraph 52 of the amended complaint will be stricken. It would be better procedure to move to amend so as to allege additional items of damage if and at such time as they are discovered. The -first two sentences of paragraph 18 will be stricken. They are prejudicial and violate the clear spirit of the statute if not its strict letter.9 If plaintiffs believe it necessary to allege that Farny or the other defendants had knowledge of the illegality of the so-called franchise agreement as originally drawn, they may do so- by amendment in appropriate language within ten days from the date of entry of the order herein. Settle order on notice. . Fed.Rules Civ.Proc. rule 8(a) (2), (e) (1), 28 U.S.C.A. . 15 U.S.C.A. §§ 1 et seq., 12 et seq., 13, 13a, 13b, 21a. . 15 U.S.C.A. §§ 15. 24. . United States v. New York Great A. & P. Tea Co., Inc., E.D.Ill., 67 F.Supp. 626, 637-638, affirmed 7 Cir., 173 F.2d 79; Kentucky-Tennessee Light & Power Co. v. Nashville Coal Co., W.D.Ky., 37 F.Supp. 728, 738, affirmed Fitch v. Kentucky-Tennessee Light & Power Co., 6 Cir., 136 F.2d 12; United States ex rel. McGrath v. Mathues, E.D.Pa., 6 F. 2d 149, 153; United States v. Winslow, D.Mass., 195 F. 578, 581, affirmed 227 U.S. 202, 33 S.Ct. 253, 57 L.Ed. 481. . Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; Winkler-Koch Engineering Co. v. Universal Oil Products Co., S.D.N.Y., 79 F.Supp. 1013, 1020. . N. Y. Civil Practice Act, § 48, subd. 2; Seaboard Terminals Corporation v. Standard Oil Co. of New Jersey, S.D. N.Y., 24 F.Supp. 1018, 1020, affirmed, 2 Cir., 104 F.2d 659. . c. 589, 56 Stat. 781. . c. 213, 59 Stat. 306. . Alden-Rochelle, Inc., v. American Society of Composers, Authors and Publishers, S.D.N.Y., 3 F.R.D. 157, 159.

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DONOHOE, Chief Judge. The plaintiff, an Iowa banking corporation, brought this action to recover $11,650, the amount of a customer’s draft which was allegedly accepted for payment by the defendant, a Nebraska banking corporation. This court has jurisdiction of the case because there is diversity of citizenship and the amount involved in the controversy exceeds three thousand dollars. 28 U.S.C.A. § 1332. The draft in question was drawn on the account of a depositor in the defendant bank, one Carl E. Wiese, who is seeking to intervene in this action. The defendant bank, in its answer, has offered to pay $11,650 in the registry of the court and has requested the court to discharge it as defendant and interplead the plaintiff and the intervener. The court is called upon to consider two issues at this point in the proceeding. First: Is the defendant bank entitled to interpleader? Second: Is Carl E. Wiese entitled to intervene ? Interpleader The main objection to granting interpleader is that the defendant bank may have incurred an independent liability to both the plaintiff and the intervener. The defendant bank may be liable as the unconditional acceptor of the customer’s draft which the plaintiff claims to hold in due course. Sec. 62-162 and Sec. 62-1,135, R.S. Neb. 1943. The defendant bank may also be liable to the intervener as a depositor if payment of the draft was not authorized by the intervener. 9 C.J.S., Banks and Banking, § 330, p. 673. The old rule that a possible independent liability of the stakeholder to one of the claimants is a bar to interpleader is not mentioned in the Interpleader Act of 1936, 28 U.S.C.A. §§ 1335, 1397, 2361. Some feel the rule has been abandoned. See Beckman, Interpleader, 16 U. of Cin. L.R. 117, 133 (1942); Note 26 Geo. L.J. 1017, 1021 (1938). But the better view seems to follow the ruling in Dee v. Kansas City Life Insurance Co., 7 Cir., 1932, 86 F.2d 813. In that case the company had issued a policy payable to the wife of the insured, who reserved no power to change the beneficiary. After the wife obtained a divorce, the insured sought to change the beneficiary to his son, but the company refused so long as the wife did not consent. After the death of the insured, the son asserted that by state statutes and decisions he was entitled to the insurance as the beneficiary designated by the insured, after the divorce. The company interpleaded the divorced wife and the son. The wife opposed interpleader because of an alleged independent liability of the company to her based on letters and conversations, which were asserted to create an agreement to give her the benefits of the policy if she continued to pay the premiums. Consequently, even if the beneficiary were effectively changed so that the son was entitled under the policy, the company would also have to pay the wife under the agreement, if binding. The district court agreed that such an independent obligation, if existent, would defeat interpleader under the 1926 Act. However, it said that the mere presentation of an issue of independent liability did not automatically throw out the bill of interpleader or deprive the court of the right to ascertain whether such a liability existed. Accordingly the court took evidence on the issue, found that there was no binding agreement in the wife’s favor, and awarded the insurance money to the son. The decision was affirmed on appeal. See Chafee, Federal Interpleader, 49 Yale 377, 412. Though the Dee case arose under the 1926 Act, the same reasoning has been applied under the 1936 Act. In Girard Trust Co. v. Vance, D.C. E.D. Pa. 1946, 5 F.R.D. 109, 114, the court said: “It is well understood that interpleader is an action conducted in two stages. First, the court must take evidence and determine whether the plaintiff is entitled to inter-plead the defendants. This is the issue upon which testimony has been taken and which is now before the Court. .* * * *426“The Court must hear evidence and determine whether there is in fact and substance such a claim, and decide, even in the face of conflicting evidence, whether the basis for interpleader, i. e., a single liability in respect of two claims, exists”. It is a fundamental principle of inter-pleader that its office is not so much to protect a party against a double liability as against double vexation in respect to a single liability. Loew’s Inc, v. Hoyt Management Corp., D.C. S.D.N.Y. 1949, 83 F. Supp. 863, 865. Consequently the court is constrained at this point to take evidence and determine whether or not the defendant bank has incurred a separate and independent liability to both the plaintiff bank and the intervener Wiese. It should be noted that the adversity required by Rule 22(1) of the Federal Rules of Civil Procedure, 28 U.S. C.A., is not apparent at this point in the case. If . the plaintiff and the intervener are both claiming from a particular fund which is equal to only one of the claims, then obviously, adversity is present; per contra: if the parties claim reimbursement only from the general assets of the defendant bank, adversity would seem to be lacking. The requirement of adversity is not satisfied unless the claims in the aggregate exceed the fund that may be made available for their payment. Standard Surety & Casualty Co. v. Baker, 8 Cir., 105 F.2d 578. Intervention If the court finds that interpleader is the proper remedy in this case, then Carl E. Wiese will be entitled as a matter of right to intervene in this action. If the court finds that interpleader is not the proper remedy, then it is doubtful that intervention should be allowed. There would be no right to intervene under Rule 24(a); and in view of the completely different issues raised by the original parties and the intervener, permissive intervention under Rule 24(b) should probably be denied. When a creditor brings an individual action against a debtor, another creditor will not have an absolute right to intervene. To hold otherwise would be to abandon completely the notion that a plaintiff may control his action and that an unrepresented petitioner must show a lien interest to support an absolute right of intervention. See Moore and Levi, 45 Yale L.J. 565. However, the intervener should have the right to appear and show the nature and sufficiency of his interest in the litigation which he contends entitles him to intervention. Conclusion In view of the foregoing comments, the court, at its convenience, will set the date for a hearing and all three parties may appear and present evidence on the issues set out above and in keeping with their individual pleadings.

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07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218746/

NEVIN, Chief Judge. On March 9, 1950, plaintiff herein filed a document entitled Cross-Motion for Summary Judgment. With its “Cross-Motion” and attached thereto, and in support thereof, plaintiff filed two affidavits and certain exhibits. One affidavit was that of Rich-art H. Weis and the other of Bernard J. Gardener. On June 1, 1950, defendants filed a motion wherein they move that the Court “order stricken for non-compliance with Rule 56 (e) Federal Rules of Civil Procedure” (1) the entire affidavit of Richard H. Weis and (2) “certain portions of the affidavit of Bernard J. Gardener, and all attached exhibits”. The cause is presently before the Court on this motion. I. Fed.Rules Civ.Proc. rule 56(e), 28 U.S.C.A. provides (among other things) that “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”. A careful reading of the affidavit of Richard H. Weis shows conclusively that it does not meet these requirements. Upon a review and consideration of the affidavit itself and the applicable rule, the Court is of the opinion and so finds that the first branch of defendants’ motion herein referred to, is well taken, and that it should be, and it is, sustained. The affidavit of Richard H. Weis should be stricken. Plaintiff (in his brief) suggests that defendants’ motion to strike the affidavits should be overruled in its entirety, first, because the motion was not filed within the time prescribed by Rule 12(f) of the Federal Rules of Civil Procedure. As defendants point out, however, and as the rule itself clearly indicates Rule 12(f) is applicable only to motions to strike portions of “pleadings”. It is not applicable to motions to strike affidavits or portions thereof for non-compliance with Rule 56(e). Rule 12(f) has no application here. *428II. In the second branch of its motion, defendants, as already indicated, move that “certain portions” of the affidavit of Bernard J. Gardener and all attached exhibits, be stricken. In their brief, defendants say: “Movants seek to have stricken certain portions of the affidavit of Bernard J. Gardener and all attached exhibits, also for noncompliance with Rule 56(e). Specifically movants seek to strike all those portions of the affidavit and all attached exhibits (a) not made upon personal knowledge (b) inadmissible in evidence or (c) as to which the affiant is not competent to testify”. In their brief defendants further say “examination of the (Gardener) affidavit discloses a total disregard of the requirements of Rule 56(e). Illustrative violations of these requirements are * * * Thereupon defendants set forth a number of “illustrative violations” saying, however, “these illustrations are not exhaustive for compliance with the requirements is the exception rather than the rule”. The second branch of defendants’ motion asking the Court to order stricken “certain portions” of the Gardener affidavit and all attached exhibits, is too general. Defendants must point out in their motion specifically just what language or statements in the Gardener affidavit they seek to have stricken. The Court cannot and should not be expected to go through the Gardener affidavit “with a fine-tooth comb” and pick out the “certain portions” which defendants (from their viewpoint) feel should be stricken. That duty and responsibility‘rests upon the defendants. That defendants apparently believe there are many statements that should be stricken is evidenced by their statement in their 'brief that the “Illustrative violations” there referred to “are not exhaustive”. Because of its general nature and in its present form, the Court is of the opinion and so finds that so much of defendants’ motion as is contained in the second branch thereof, should be, and it is, overruled. Defendants, however, may have leave to amend their present motion, or to file an amendment to their present motion, if they so desire, setting forth specifically such portions of the Gardener affidavit and attached exhibits as they wish to move to have stricken. Counsel may prepare and submit an order in accordance herewith. Defendants may have thirty days from the date of the filing of such order in which to amend their present motion, or file an amendment to their present motion, in accordance with the ruling just above made.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218747/

REEVES, Chief Judge. Counsel for plaintiffs vigorously and earnestly insist that they are entitled to a summary judgment. Rule 56 Federal Rules of Civil Procedure provides, 28 U.S.C.A., among other things: “(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In support of the motion, counsel, therefore, tender depositions taken in another case, but, by stipulation, to be used in these cases and considered as having been taken specifically in these actions. It seems proper to show the attitude of the Appellate Courts toward said Rule 56 and the construction they have placed upon it: 1. The United States Supreme Court, in Sartor v. Arkansas Gas Corp., 321 U.S. 620, 621, loc. cit. 623, 624 and 627, 64 S. Ct. 724, 727, 88 L.Ed. 967, construed Rule 56 relating to Summary Judgment, and, among other things, said: “Where the undisputed facts leave the existence of a cause of action depending on questions of damage which the rule has reserved from the summary judgment process, it is doubtful whether summary, judgment is warranted on any showing. (Emphasis mine.) But at least a summary disposition of issues of damage should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” It will be noted from the foregoing quotation that the Supreme Court was properly doubtful on the question of using the summary judgment process. 321 U.S. loc. cit. 627, 64 S.Ct. loc. cit. 88 L.Ed. 967, the court further said: “The Court of Appeals below heretofore has correctly noted that Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to' try.” (Emphasis mine.) The court then cautioned the trial court: “In the very proper endeavor to terminate a litigation before it for the fourth time, we think it overlooked considerations which make the summary judgment an inappropriate means to that very desirable end.” Adverting to the decisions of the Appellate Courts, note the reasoning in Boro Hall Corp. v. General Motors Corp., 2 Cir., 164 F.2d 779, loc. cit. 772: “Defendant’s right to cancel the contract on three months’ notice is irrelevant; for defendant never gave such a notice; nor does it appear that the conduct which plaintiff assigns as a breach was intended by defendant as a cancellation. Accordingly, there was a triable issue of fact, involving questions of credibility, with respect to the cause of adfion for breach of the contract, and summary judgment to that extent was improper.” (Emphasis mine.) In Clark v. Taylor, 163 F.2d 940, loc. cit. 948, the Court of Appeals for the 2d Circuit paid the following tribute to the summary judgment process: “Of course, expedition should not be the sole aim of procedure. It should never be purchased at the expense of preventing a fair trial. For that reason, this court and others have discountenanced the use of a summary judgment, based on a mere written record, when it deprives \one of the parties of a trial affording him the opportunity to cross-examine important witnesses whose credibility may critically affect decision on issues of fact.” (Emphasis mine.) Again, the 2d Circuit in Bozant v. Bank of New York, 156 F.2d 787, loc. cit. 790, referred to the summary judgment rule as follows: “In conclusion we cannot avoid observing that the case is another mistaken effort to save time by an attempt to dispose of a complicated state of facts on motion for summary judgment. This is especially true when the plaintiff must *430rely for his case on what he can draw out of the defendant. Arnstein v. Porter, 2 Cir., 154 F.2d 464. It appears to be somewhat difficult to persuade the district courts of this; but we are satisfied that it is true.” 2. Earnest counsel for the plaintiffs suggest in support of their motions an adverse decision to the defendant in the Appellate Court in a companion case: In Arnstein v. Porter, 154 F.2d 464, loc. cit. 468, 475, the court said, loe. cit. 468: “The principal question on this appeal is whether the lower court, under Rule 56, properly deprived plaintiff of. a trial of his copyright infringement action. The answer depends on whether ‘there is the slightest doubt as to the facts.'" (Emphasis mine.) And, then, 154 F.2d loc. cit. 475: “We decide against summary judgment here because we consider it improper in this case. Our decision to that effect will have precedential significance only to the extent that, in any future case, summary judgment is sought when the facts are not beyond the range of actual dispute. "But, in the spirit of that suggestion, we regard it as entirely improper to give any weight to other actions lost by plaintiff. (Emphasis mine.) * * * Absent the factors which make up res judicata (not present here), each case must stand on its own bottom, subject, of course, to the doctrine of stare decisis. (Emphasis mine.) Succumbing to the temptation to consider other defeats suffered by a party may lead a court astray; * . * *.” 3. The Court of Appeals, Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, loc. cit. 571, quoted approvingly from an opinion by Judge Huxman of that court in Schreffler v. Bowles, 10 Cir., 153 F.2d 1, loc. cit. 3: “The salutary purpose of Rule 56 is to permit speedy and expeditious disposal of cases where the pleadings do not as a matter of fact present any substantial question for determination.” In the case under consideration it is to be noted that the answer of the defendant denied categorically and very specifically practically everything alleged in the complaint. The court quoted further: “ ‘The purpose of the rule is to permit the trier to pierce formal allegations of facts in pleadings and grant relief by summary judgment when it appears from uncontroverted facts set forth in affidavits, depositions or admissions on file that there are as a matter of fact no genuine issues for trial.3 33 (Emphasis mine.) 4. The District Court for the Western District of Pennsylvania, in Michel v. Meier, 8 F.R.D. 464, loc. cit. 471, succinctly stated the law relating to summary judgments under Rule 56: “* * * the federal rule providing for summary judgment should be temperately and cautiously used lest abuse reap nullification. * * * “Under Rue 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides for summary judgment, it was not intended to deprive litigants of a right to full hearing on the merits if any issue of fact exists. (Emphasis mine.) The procedure was not intended to be used as a substitute for regular trial where the outcome of the litigation depends upon disputed questions of fact. * * * “In passing upon a motion for a summary judgment, it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. * * * “All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.” In Harris v. Railway Express Agency, 178 F.2d 8, loc. cit. 9, the Court of Appeals, 10 Cir., announced this admirable rule: “On a motion for summary judgment, all facts of the complaint well pleaded stand admitted. On a consideration of such a motion, the court not only considers the allegations of the complaint but also, all facts shown by depositions and affidavits concerning which there can be no dispute" (Emphasis mine.) 5. It is to be noted from the pleadings that the issue is joined on practically every averment of the plaintiff. The defendant admits nothing. Counsel believe that the court should grant their motions because they have tendered or *431proffered depositions of witnesses who presumably would testify at the trial for the defendant. The rule with respect to witnesses and the credit to be given them is well stated in the very recent case of Steckdaub v. Sparks, Mo.Sup., 231 S.W. 2d 160 loc. cit. 161-162. The Supreme Court of Missouri in upholding a verdict for the defendant said: “But here a wholly different situation obtains for the jury’s verdict was for the defendant. * * * Even though plaintiff introduces evidence which would warrant a verdict in his favor, he must further persuade the jury to return a verdict for him.” And, then, again, 231 S.W.2d loc. cit. 162: “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. (Emphasis mine.) The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight .and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.” This latter doctrine aptly and precisely .applies to the situation here. 6. It is not surprising that the Supreme Court was dubitante about a summary judgment ever being granted in a case of this kind. Conceivably, it could be granted against a personal defendant in favor of a plaintiff where the defendant in open ■court admits liability or admits the existence of facts from which liability would or must inevitably follow. It would be different and even more difficult in the case of a corporate defendant. Some one having the authority of the corporate defendant to do so must, in open court, either acknowledge liability, or, as in the case of a personal defendant, admit the existence of facts from which liability would inevitably follow. The only person having authority in this case to acknowledge liability or admit facts fixing liability would be the attorney for defendant. Under all the authorities and upon sound reasoning and logic plaintiffs’ motions should not be granted. Accordingly said motions will be overruled.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218748/

REEVES, Chief Judge. The defendant has filed one motion to dismiss the indictment, another for a bill of particulars, and a third “For Bill of Discovery and Inspection.” These several motions have been examined and will be considered in their order. 1. The indictment conforms to Rule 7, Federal Rules of Criminal Procedure, 18 U. S.C.A. It is provided by paragraph (c) of said Rule 7 that: “The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The indictment in this case charges the defendant with violating Section 145, Title 26 U.S.C.A., relating to the general subject of Income Tax. Each count of the indictment charges the defendant with a willful attempt to evade and defeat the tax imposed by the Chapter of which said section is a part. The three counts of the indictment cover the years 1946, 1947 and 1948. The indictment cited Section 145 (b) of said Title 26, as required by said Rule 7, and the particular statute which the defendant is alleged to have violated. An examination of the section or paragraph shows that some of the language of the indictment is precisely drawn in conformity with the provision. Other language of the indictment might be found in paragraph (a) of said Section 145. However, it is specifically provided by said Rule 7(c) that: “Error in the citation or its omission shall not be ground for dismissal of the indictment * * The indictment is not vague or indefinite but it informs the defendant that *433his income tax returns for the years mentioned were less than his actual income and the indictment informs him what his actual income was for each year. The defendant, of course, is familiar with his actual return and by this indictment and in each count thereof he is informed or advised what his actual return should have been. As a further ground for the dismissal, the defendant asserts that he was subpoenaed before the grand jury returning the indictment and that he was then and there interrogated regarding his income for the years set out in the indictment. He invokes the provisions of the Fifth Amendment to the national Constitution. It does not appear that he stood on his constitutional rights, and, as said in United States v. Johnson, D. C., 76 F.Supp. 538, loc. cit. 540: “The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It cannot be claimed by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person.” See also memorandum opinion filed in this court on August 2, 1950, in the case of United States v. Mangiaracina, 92 F.Supp. 96, and the cases therein cited. The motion to dismiss should be and will be overruled. 2. The motion of the defendant for a bill of particulars involves a request for the details of the income which the indictment charges that the defendant actually received. Undoubtedly he is familiar with the income as returned by him for the several years under consideration. As has been repeatedly held, the office of a bill of particulars in criminal prosecutions is to give the adverse party information which the pleadings by reason of their generality do not give. Its purpose is to enable the accused to prepare his defense and to avoid surprise at the trial; to. plead his acquittal or conviction in bar of another prosecution for the same offense, and to compel the prosecution to observe certain limitations in offering evidence. It is not the function of the bill to furnish the accused with the evidence of the prosecution. 42 C.J.S., Indictments and Informations, § 156, p. 1092. It is obvious from a reading of the indictment that the accused would not be imperiled or put in jeopardy by a second prosecution. The indictment is clear and concise and simply charges him with evading his income tax for the years named. The only other question’would be whether 'he might be surprised by evidence offered by the government. In this particular, the burden is upon the government to establish by evidence beyond a reasonable doubt that he actually received an income greater than that claimed on his income tax returns. It is difficult to see wherein the accused would be surprised by such testimony. If he did not receive such income as asserted in the indictment, undoubtedly he could establish that fact and defeat the government’s effort to prove that he did. If any particular item proved by the government as having been received by the accused was not in fact an income to the accused, then it would be a simple matter for him to explain such income if received or to rebut it if he did not receive it. It is held by practically all of the authorities that the granting of a bill of particulars is within the sound discretion of the trial court. See Himmelfarb v. United States, 9 Cir., 175 F.2d 924, loc. cit. 934 and 935. It is to be noted in the Himmelfarb case, supra, the court granted a bill of particulars in certain respects but the implication of the opinion is that the trial court might properly have refused to do so. The accused in that case had asked for “ ‘the items, sums, figures and facts showing the basis of the alleged income and income tax and the sums from which the Government derived such facts, items, and figures from which it made its calculations’ ”. In this case the defendant asks whether the income charged by the government represents a single item of undeclared net income and then the defendant asks for the date, the place, the nature of the transaction, and the source or persons from whom the defendant received the income. This would, of course, be setting forth evidence of the government, and, as stated, it is the rule that “it is not the function of the bill to furnish accused with the evidence of the prosecution.” The *434motion for a bill of particulars, in like manner, should be and will be overruled. 3. The last motion is entitled “Motion of Defendant for Bill of Discovery and Inspection.” It is alleged in the motion that the figures, bills, work sheets and other tangible property in the possession of the government belonged to the defendant and that they were seized by the government and that the use of them would be material in the preparation of his defense. It would appear that if these were in fact books, documents, material or other data taken from the accused, then he should be permitted, through his counsel, to inspect such papers or other tangible objects so seized and be permitted to make photographs of them. An order to that effect will be made, but such order will be limited to material actually taken from the possession of the defendant. Such procedure is authorized by Rule 16, Federal Rules of Criminal Procedure.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218750/

SWITZER, District Judge. The plaintiffs filed and served a complaint charging the defendants with infringement of eight patents, one of these patents appears to be a reissue of another. It appears that in all the said eight patents include fifty-five patent claims. The complaint fails to specify with particularity whether plaintiffs contend that each and every claim under all the pending patents are infringed or whether but a part of them are so infringed. The plaintiffs’ complaint includes only a general statement or allegation as to infringement of the letters patent. Defendants, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., have moved for more definite and certain statement of the complaint and requested the court to require plaintiffs to specify with particularity which of the patent claims have been infringed. *436The plaintiffs urge that to grant this motion would be in effect to compel the plaintiffs to plead evidentiary- matter, which is not contemplated admittedly under Rule 12(e). It seems clear, however, that the general practice in patent infringement suits has been to require the plaintiff to state which claims of a patent he alleges to have been infringed. Smith v. Buckeye Incubator Co., D.C., 33 F.Supp. 71; Be-chik v. Handy Mattress Accessories Corp., D.C., 2 F.R.D. 289; National Nut Co. of California v. Kelling Nut Co., D.C., 61 F. Supp. 76. The rule was applied prior to the adoption of the present rules of civil procedure and has been given approval since their adoption Marvel Slide Fastener Corporation v. Klozo Fastener Corporation, D.C.N.Y.1948, 80 F.Supp. 366. The rule itself was summarized in Bonney Supply Co. v. Heltzel, 6 Cir., 243 F. 399, 404. The court said: “In legal contemplation each separate claim is an independent patent, and the invention thereby covered patentable in and of itself.' In other words, each claim is supposed to mean something different from the others. The patent in this case contains 10 claims. The defendant’s construction may infringe some one or more of these claims, but it is not probable that it infringes all of them. The complainant knows, or should know, which of these separate claims are infringed; and it is therefore proper, in the interest of greater certainty and definite-ness, that it be required to specify which of the ten claims it intends to rely on — in other words, give further and better particulars of the matter of infringement contained in its pleading.” Even though the complaint in the instant case meets the requirements specified in the case of Mumm v. Jacob E. Decker and Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983, its failure to clarify which of the claims plaintiffs contend -have been infringed fails to give sufficient information to the defendants upon which to prepare their responsive pleading. This court, therefore, feels compelled to adopt the general rule as stated above. Defendants also move the court to protect them against the cost of preparation to defend such of the claims on which plaintiffs allege infringement but which, upon the trial of thiá cause, plaintiffs may abandon so far as proof or attempted proof by evidence is concerned. The motion seeks an order in pursuance of Section 1927, Title 28, U.S.C.A., which provides, “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.” To grant this motion at this stage of the proceedings would in effect amount to a predetermination of liability under the statute and would clearly constitute an abuse of judicial discretion. Attorneys at law duly admitted to practice in this court and in good standing are presumed to be acting in good faith and with no intent to knowingly and deliberately increase the costs in any litigation -unless and until the contrary is clearly shown. Whether certain costs should or should not be taxed as provided for in Section 1927, supra, will be determined upon proper motion at the time of the final submission of the cause. This motion must, therefore, at this time be overruled. The Clerk will enter the following order : The above entitled matter came on for hearing in open court at Des Moines, Iowa, on the Motion of the defendants for More Definite and Certain Statement and Regarding Costs. Arguments were had both orally and.by written briefs, and the court ■being fully advised, It Is Ordered that 'the Motion of the defendants for More Definite and Certain Statement be and the same is hereby sustained. It is further Ordered that the Motion Regarding Costs of the defendants be and is hereby overruled. It is further Ordered that plaintiffs be and are hereby granted 20 days from the date of the entry of this order within which to comply therewith. Both parties except.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218752/

REEVES, Chief Judge. The defendant in the first instance challenges the sufficiency of the service in this case and seeks dismissal upon the ground that at the time the summons purportedly was served upon defendant he was a nonresident of the State of Missouri. An examination of the pleadings, including the return of the sheriff, discloses the following return marked as Exhibit “C” to the summons: “Return On Service Of Summons “I hereby certify that I have served the within summons * * * “(2) By leaving on the 15th day of June, 1950 for the within-named defendant “Wilbur K. Shouse a copy of the summons and a copy of the petition at the respective dwelling place or usual place of abode of said defendant with some person of his or her family over the age of 15 years: “(3) By “J. A. Purdome, Sheriff of Jackson County, Mo. “By — R. Hays Deputy.” It will be noted from the foregoing return that it fails to state where the summons was served. In 1943 the General ■ Assembly of the State of Missouri repealed Section 884, R.S.Mo.1939, relating to the subject of Process and Return to be made by the process server. However, it re-enacted the identical requirement which appears as Section 30, p. 368, Laws of Missouri 1943, Mo.R.S.A. § 847.30. The language is that of the former section, or substantially so. The new section provides: “Every officer to whom any writ of process shall be directed and delivered for service shall make return thereof in writing of the time, place and manner of service of such writ, * * *.” (Italics mine.) 1. It will be observed from the above that the place of service was not designated. It purported to be “at the respective dwelling place or usual place of abode of said defendant.” This dwelling place may have been in Houston, Texas, where defendant resides, as asserted by counsel in his affidavit supporting his motion to dismiss. It is the law that the recital in the return must show a place within the county and state where the service is attempted. Taylor v. Helter, 198 Mo.App. 643, loc. cit. 647, 201 S.W. 618. While the caption would be insufficient to show the place of service yet the return in this case did not even contain a caption which would indicate the venue. See also Bedell v. Richardson Lubricating Co., 201 Mo.App. 251, 211 S.W. 104, and Yowell v. Mace, 221 Mo. App. 85, 290 S.W. 96. 2. While counsel has not raised the point above discussed, yet it seems fatal to the service, and, moreover, since a return of the sheriff is conclusive, White v. Hal-John Realty & Inv. Co., 226 Mo.App. 157, loc. cit. 160, 43 S.W.2d 855, and in view of the positive statement under oath that the defendant is >a nonresident of Missouri, it seems better to quash the service than to attempt to sustain it. Particularly is this true in view of the liberality of the Missouri law which permits service of process on nonresidents in cases such as this, which will have the effect of personal service. . 3. Assuming that proper service will be had upon the defendant, it seems proper to consider the motion for a more definite statement. An examination of the complaint shows that negligence in general terms is averred. It has been repeatedly held that this is sufficient under the new rules of civil procedure, and particularly under the provisions-of rule 8, Fed.Rules Civ.Proc. 28 U.S.C.A. This rule, among other things, requires that the pleader shall make “(2) a short and plain statement of the claim showing that the pleader is entitled to relief, * * *.” In the Appendix of Forms submitted with the Rules by the Supreme Court, and particularly form numbered 9, a general averment of negligence is all that is required. Other details may be obtained by interrogatories, request for admissions, by depositions, or other of the apt discovery rules. '[4,5] 4. Moreover, the motion for a more definite statement is .the exact and precise equivalent of the motion for a bill *441of particulars. The motion for a bill of particulars has long since been deleted from the rules. The motion for a more definite statement is only designed to clarify ambiguous and doubtful averments. The averments in this case are not ambiguous or doubtful. See Fleetwood v. Milwaukee Mechanics Ins. Co., D.C., 88 F.Supp. 474; also Continental Collieries v. Shober, 3 Cir., 130 F.2d 631, loc. cit. 635; United States v. Kornfeld, D.C., 9 F.R.D. 675, loc. cit. 676. In view of the above the several motions to dismiss and for a more definite statement will be overruled. However, the service of process and the return of the sheriff should be and will be quashed.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218753/

ATWELL, District Judge. Plaintiff sued on the Stevens patent which covers the patching of a hole in a garment, for alleged infringement, damages and injunction. After pleadings, interrogatories, and admissions by each side, each seeks a summary judgment. One of the issues presented by the defendant for such judgment, is that the plaintiff’s patent, as assignee of Stevens, is void because anticipated by a British patent, No. 8975, in 1897. The patent office refused the patent. The patentee sued in the United States District Court *442for the Washington district, and that court held that the Stevens patent was valid and directed its issuance. It was so issued. The defendant claims that the British patent was not before the district court. Plaintiff contends that an identical patent as to method and process, known as the Johnson patent, was before the court. Federal Rule of Civil Procedure 56, 28 U.S.C.A., with reference to summary judgment, does not permit such a judgment when there is an issue of fact to be tried. Boerner v. United States, D.C., 26 F.Supp. 769. Hazeltine Research, Inc., v. General Electric Co., 7 Cir., 183 F.2d 3. The court should be able to say that there are no current issues of fact, in order to grant a summary judgment. That mental conclusion cannot safely follow in this case. The application of the plaintiff for a summary judgment, as well as the application of the defendant for a summary judgment, must each be denied because of that situation. There are a number of interesting cases that the student may pursue, some of which are: Bridgeport Bracer Company v. Bost-wick Laboratories, 2 Cir., 181 F.2d 315; Brown v. Ford Motor Co., D.C., 57 F. Supp. 825; S. R. Leon, Inc., v. Perfums Schiaparelli, D.C., 35 F.Supp. 641. Such authorities lean toward the proposition that summary judgment may be granted in patent cases the same as in any other litigation. When the court is able to determine the invention claimed, from a mere comparison of such claimed inventions with the accused devices determined, the court may safely make such a determination. So, when the patent is manifestly void, the summary remedy may be applied. Risdon Iron & Locomotive Works v. Medart, 158 U.S. 68, 15 S.Ct. 745, 39 L.Ed. 899; Gray v. Texas Company, 8 Cir., 75 F.2d 606. If there is no expert testimony required to understand the patent and the prior art relied upon, the case of Montmarquet v. Johnson, D.C., 82 F.Supp. 469, supports the dismissal on summary judgment- The pleadings and argument developed that what seems to be a simple and easily understood method of patching a hole in a garment has been so perfected by the art patented to Stevens that it includes a needle with the thread at the point and a hook, as well as a fringing of the patch so that the threads which form the fringe are woven into it from warp and woof of the garment at the exposed edges of the hole which is in the garment. This word description of the process is much more simple than is the method itself, and that method is the value to the art and ought not to be determined upon a directed judgment for either the plaintiff, or, the defendant. The issues of fact are undetermined upon a summary hearing and both motions are overruled*

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841963/

Borden, J. The plaintiff, Richard Lauer, appeals from the trial court’s dismissal of a zoning appeal from a decision of the named defendant, the zoning commission of the town of Redding, granting a special permit to the defendant John Angeloni for a horse riding academy.1 The plaintiff claims that the trial court improperly dismissed his appeal because: (1) the failure of the commission to give notice of the public hearing, on Angeloni’s special permit application, to the adjoining town of Bethel pursuant to General Statutes (Rev. to 1989) § 8-3h2 deprived the commission of sub*457ject matter jurisdiction over the application; (2) the commission’s grant of the special permit allowed an impermissible second principal use on Angeloni’s property, in violation of the Redding zoning regulations; and (3) the trial court made a clearly erroneous finding of fact in its determination that the plaintiff had presented no evidence that two commission members, who were absent during one of the two public hearings on the special permit application, had not sufficiently acquainted themselves with the issues raised at that hearing to make an informed decision on the application. We disagree with the plaintiff’s first two claims, and order a remand for further articulation by the trial court on the third claim. The relevant facts are as follows. Angeloni owns 11.6 acres of land designated as lot 5 of an eleven lot subdivision known as “Huntington Estates” in the town of Redding. He applied to the commission for a special permit to operate a horse riding academy on lot 5 which, at the time of the application, was already improved by a residence. Pursuant to General Statutes *458§ 8-3c (b)3 the commission held public hearings on the application on April 12 and April 26, 1989. Although the town of Bethel adjoins the town of Redding and is in close proximity to Angeloni’s property,4 notice of the hearing was not given to the clerk of the town of Bethel pursuant to § 8-3h. Commission members Charles Beeston, who was eighty-five years old at the time and has since died, and Edwin Gienger were absent during the April 12 session. A tape recording and transcript of the April 12 session were available for their review. Beeston and Gienger were present during the April 26 hearing. On May 24,1989, the commission voted three to two to approve the special permit application subject to certain conditions.5 Beeston and Gienger cast two of the three majority votes. The plaintiff appealed6 to the Superior Court, claiming that: (1) the special permit approval was jurisdictionally defective because the town of Bethel had not been given notice pursuant to § 8-3h; (2) the riding academy constituted an impermissible second principal use-of lot 5; and (3) the votes of Beeston and Gienger, which were necessary for approval, were invalid because Beeston and Gienger had failed properly to inform themselves of the issues raised at the April 12 hearing. The trial court dismissed the plaintiffs appeal. The court determined that: (1) the plaintiff was not entitled to rely on § 8-3h because that statute was *459intended to protect the interests of adjoining municipalities from the impact of neighboring zoning decisions and was not jurisdictional in nature; (2) the riding academy is a permitted special use that can coexist with a principal use; and (3) the plaintiff “has not presented any evidence which would disclose that the two zoning board members who were not present at the April 12, 1989 hearing failed to acquaint themselves with those proceedings.” This appeal followed. I The plaintiff first claims that the failure to give notice to the town of Bethel as required by General Statutes § 8-3h deprived the commission of subject matter jurisdiction over the special permit application. He also claims that the trial court improperly concluded that, although he was aggrieved, he was not entitled to raise the issue of a violation of § 8-3h. He argues that, since he is aggrieved, he can raise any issue of improper conduct by the commission, including a violation of § 8-3h. The defendants concede that the commission did not properly notify the Bethel town clerk pursuant to the statute.7 They argue that compliance with § 8-3h is not a prerequisite for subject matter jurisdiction, and that the plaintiff is not entitled to complain of a failure to give notice to the town of Bethel. We agree with the defendants. “We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and *460giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) . . . .” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The same principle applies to administrative agencies; Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); including zoning authorities. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972).” (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 219 Conn. 352, 358, 593 A.2d 118 (1991). There is no question that, absent § 8-3h, the commission had subject matter jurisdiction to consider the special permit application for the riding academy. See General Statutes § 8-3c (b). The issue presented, therefore, is whether the legislature intended to make § 8-3h notice an additional requirement for subject matter jurisdiction. “That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” LeConche v. Elligers, supra, 709-10. Application of these principles to the present case leads us to conclude that § 8-3h provides for personal notice to an adjoining town and is, therefore, not subject matter jurisdictional. *461We first examine the language of § 8-3h. At the time of the April 12, 1989 hearing, the statute required a zoning commission to notify, by registered mail,8 the clerk of an adjoining town of the pendency of certain applications, within seven days of receiving the application. Thus, the language of this statute provides for notice to a specific recipient, as opposed to published notice to the general public and is, therefore, akin to a personal notice statute. This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals.9 We have long held that failure to give newspaper notice is a subject matter jurisdictional defect; see Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); and that *462“[sjubject matter jurisdiction cannot be waived or conferred by consent.” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989). We have also long held, however, that failure to give personal notice to a specific individual is not a jurisdictional defect; see Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975); Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975); and that “[l]ack of personal notice may be waived by the party entitled to it.” Schwartz v. Hamden, supra, 15. In Schwartz v. Hamden, supra, we discussed the different purposes of published newspaper notice and personal notice. The purpose of a personal notice statute is to “give actual notice to [the person entitled to notice].” (Emphasis added.) Id., 15. Therefore, if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision. Id. The purpose of publishing notice to the general public, however, is to notify, “by means of legal advertisements, as much of the population as possible of contemplated zoning actions.” Id., 14. In the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated. Failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction “even when the complaining party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated.” Id., 15. Thus, what is “required is not actual notice, but, rather, constructive notice.” Jarvis Acres, Inc. v. Zoning Commission, supra, 47. The reasoning in Schwartz is applicable to the present case. The notice requirement of § 8-3h was designed to give a town the opportunity to express its views *463about zoning actions contemplated by a neighboring town. It was not designed to give constructive notice to the general public. This conclusion is bolstered by an examination of the complex factual inquiries that the zoning commission must make within a very brief time period. When the provisions of a statute are subject matter jurisdictional in nature, those provisions must be strictly complied with. See, e.g., Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326, 533 A.2d 852 (1987). Section 8-3h requires the zoning commission, within seven days of receipt of the application, to make detailed factual determinations as to the impact on adjoining towns of traffic, sewer drainage and water runoff. Since such detailed factual determinations are often difficult to make, especially within such a short time period, it is unlikely that the legislature intended the commission to be deprived of subject matter jurisdiction by a failure to comply strictly with § 8-3h. An examination of the purpose of § 8-3h as found in its legislative history also suggests that this statute was not intended by the legislature to create a subject matter jurisdictional requirement. Members of the General Assembly suggested that the purpose of the § 8-3h notice requirement was to allow an adjoining town an opportunity to be heard when a zoning decision in a neighboring town might have an impact on the adjoining town.10 The statute was not enacted to give con*464structive notice, by means of legal advertisement, to as much of the population as possible. The general public would already be on notice by published newspaper notice given pursuant to General Statutes § 8-3c (b). We recognize, as does the dissent, that some language in § 8-3h, namely, that “[n]o hearing may be conducted on any application . . . unless the adjoining municipality has received the notice required under this section,” could, if read literally and out of the context of the entire statute, suggest a contrary result. We conclude, nonetheless, that to give this language subject matter jurisdictional status would require strict compliance; see, e.g., Hillcroft Partners v. Commission on Human Rights & Opportunities, supra, 326; that would, in turn, lead to bizarre results. Under the plaintiffs interpretation, if the town of Bethel, including all its pertinent local government officials, had had actual notice of the hearing—indeed, even if those officials had participated in the hearings but had not received formal notice pursuant to § 8-3h—the town of Bethel could later successfully claim that the failure of the Redding zoning commission to notify the Bethel town clerk by mail had deprived the commission of subject matter jurisdiction. Since “[s]ubject matter jurisdiction cannot be waived or conferred by consent”; Demar v. Open Space & Conservation Commission, supra, 424; the hearing would be null and void despite the fact that Bethel had actual notice. We decline to give § 8-3h such an interpretation. “Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991). We also acknowledge the remarks in the legislative history by Representative Richard Blumenthal that “[cjlerks [of zoning commissions] ought to exercise a great deal of caution . . . but give the benefit of the *465doubt [to the adjoining municipality] whenever there is any question that there may be an impact that would fit the requirements of this bill . . . 30 H.R. Proc., Pt. 16,1987 Sess., p. 6032. We do not read this statement, however, as the dissent apparently does, to require the conclusion that § 8-3h notice was intended to be subject matter jurisdictional. It simply means that when the statute applies, that is, where the predicate facts are likely to exist; see footnote 2, supra; an adjoining town is entitled to personal notice, and if there is any doubt about that applicability, the statute is to be construed liberally. Having concluded that § 8-3h provides for personal notice to adjoining municipalities and is, therefore, not subject matter jurisdictional, we also conclude that the plaintiff was not entitled to raise as an issue the failure to comply with the statute’s terms. This plaintiff was no more entitled to raise noncompliance with § 8-3h than he would have been entitled to complain of a failure to give personal notice to a neighbor of his who also was statutorily aggrieved. Furthermore, we have consistently held that “[l]ack of personal notice may be waived by the party entitled to it.” Schwartz v. Hamden, supra, 15. Since the town of Bethel was the only entity entitled to waive personal notice under § 8-3h, it follows that only the town of Bethel would be entitled to raise noncompliance with § 8-3h as an issue.11 *466II The plaintiff next claims that the granting of the application permitted an illegal second principal use of the property in violation of the Redding zoning regulations. The defendants respond that the riding academy is a permitted special use under the regulations that may coexist with a residence. We agree with the defendants. Sections 4.2 through 4.5 of the Redding zoning regulations categorize the zoning districts for Redding as residential, business, office and research, and light industrial. The regulations state that the permissible uses in residential zones are principal uses, accessory uses and special uses. Section 4.2.3 of the regulations states that a riding academy is a permitted special use in a residential zone.12 The plaintiff does not dispute that a riding academy is a permitted use on residentially zoned property. Instead, he argues that, since there already is a preexisting residence on the property, that residence must be the principal use of the property, and that a riding academy would be an impermissible second principal use in violation of section 3.6 of the Redding zoning regulations. We disagree. Under the circumstances of this case, the commission was entitled to conclude that when the riding academy is constructed on the site it will supplant the residence as the principal use of the property and that the residence will become an accessory use to that of the riding academy. Section 3.6 of the regulations states in pertinent part that “[w]ithin Residential zones there shall not be more *467than one principal use, along with its permitted accessory uses and buildings, on each lot.” (Emphasis in original.) Section 8.1.172 defines “principal use” as “[t]he major or dominant use of the site, in terms of building space, land utilization and character of activities.” There can be no question that, on this record, the riding academy will be the “major or dominant use of the site, in terms of building space, land utilization and character of activities.” Apart from the residence already located on lot 5, virtually the entire balance of the 11.6 acre lot will be devoted to stable space, a riding arena, pasture facilities for the horses and parking. Furthermore, the plaintiff concedes that there was evidence before the commission that Angeloni would continue to live in the residence while operating the riding academy. Such an on-site living arrangement would ordinarily be necessary to care for the horses, and to respond in case of fire, sickness or some other unforeseen emergency. The plaintiff argues, however, that because § 4.2.113 of the regulations specifically permits a residence to operate as a principal use, once a residence is constructed it must continue as the principal use because it was built first.14 The Redding zoning regulations, *468however, do not preclude a permitted principal use from coexisting as an accessory use with a later constructed permitted special use. “ ‘A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . .’ ” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). “ £[T]he courts cannot, by construction, read into statutes provisions which are not clearly stated.’ ” Id. Simply because a residence is a permitted principal use at some time does not mean that it must always remain the principal use when a more dominant use is constructed later. Indeed, the Redding zoning regulations specifically recognize a residence as a use accessory to the permitted special uses of schools and churches.15 We therefore construe the zoning regulations as contemplating that a residence may operate as an accessory use with a permitted special use. The plaintiff concedes that the key to his argument depends on which use first existed on the site. Under his interpretation, if the riding academy had been built first it would be the principal use of the property and a later constructed residence could coexist with it as an accessory use because the academy would remain the principal use, whereas, if the residence had been built first, the riding academy could be constructed only to the extent that it did not dominate the site. Under this argument, therefore, if there were a residence on a site and the owner wished to construct a dominant horse academy, he would be required to raze the residence, erect the riding academy and then rebuild the *469residence as an accessory use. We reject this scenario because “[cjommon sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, supra, 441. Ill The plaintiffs final claim is that the votes of commission members Beeston and Gienger, who were absent during the first of two public hearings on the application, were invalid because Beeston and Gienger did not sufficiently acquaint themselves with the issues raised and the evidence and arguments presented at that hearing to make an informed decision on the application. The trial court found that the “plaintiff [did] not [present] any evidence which would disclose that the two zoning board members who were not present at the April 12, 1989 hearing failed to acquaint themselves with those proceedings,” and, therefore, did not satisfy his burden of proof. Read literally, as the plaintiff suggests, this finding would be clearly erroneous because the plaintiff did present evidence to the trial court that, if believed, could support a finding that Beeston and Gienger did not acquaint themselves with the April 12 hearing. The defendants suggest, however, that in order to make sense of this finding in the absence of a further articulation by the trial court, the court’s language should be read as meaning that the plaintiff had not presented any credible evidence that either Gienger or Beeston had failed to acquaint himself with the April 12 proceedings. Understood in this sense, the defendants argue, the finding is adequately supported by the evidence and is, therefore, not clearly erroneous. We agree with the defendants that we should read the trial court’s determination as meaning that the plaintiff presented no such credible evidence. This com*470ports with our ordinary practice of reading an ambiguous trial court record so as to support, rather than contradict, its judgment. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157 (1991). We also agree with the defendants that the court’s finding, read in this light, was not clearly erroneous with respect to Gienger, but we are sufficiently in doubt about its finding with respect to Beeston that we deem a remand for further articulation to be in order. General Statutes § 8-3c (b) provides in part that “[t]he zoning commission . . . shall hold a public hearing on [a special permit] application . . . .” Although this statute does not require the presence at the public hearing of a zoning commission member as a condition precedent for that member to vote on a special permit application, an absent commission member must at least acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to [make] an informed judgment.” Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971); see also Dana-Robin Corporation v. Common Council, 166 Conn. 207, 217, 348 A.2d 560 (1974). Whether such a member has discharged his obligation to acquaint himself is in the first instance a question of fact for the trial court. See, e.g., Dana-Robin Corporation v. Common Council, supra. The factual finding of the trial court on this issue must stand unless it is clearly erroneous. Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). The party who challenges the action of the commission as illegal in this respect has the burden of proof. Loh v. Town Plan & Zoning Commission, supra. “If, however, the factual or legal basis of a trial court’s decision is unclear, ambiguous, incomplete, or the court has failed to state any basis for its decision, this court has the power to remand the case for further articulation of *471the basis of the trial court’s decision pursuant to Practice Book § 4061.” Rostain v. Rostain, 213 Conn. 686, 694, 569 A.2d 1126 (1990). We first turn to Gienger’s testimony at trial and the trial court’s determination that the plaintiff failed to sustain his burden of proof of illegality with respect to Gienger. We conclude that, because Gienger’s credibility was not in issue, the trial court’s finding is adequately supported by the evidence and is, therefore, not clearly erroneous. Gienger testified at trial that he had read the minutes of the hearing and all other pertinent reports. He also testified that he did not read the transcript of the hearing that was available nor did he listen to the tape. Our review of the record, however, discloses that the other reports that were marked as exhibits contained enough information discussed in the first hearing so that the trial court could reasonably conclude that Gienger did sufficiently acquaint himself with that hearing. Much of the April 12 hearing involved reading to the public the data that was later reviewed by Gienger. The other relevant information discussed in that hearing consisted of general comments that were later adequately discussed in the April 26 hearing and the May 24 deliberations, when Gienger was present. The situation with respect to Beeston is different. We conclude here that because Beeston’s credibility was in issue at trial, the factual basis of the trial court’s decision with respect to him is unclear and that the interests of justice require a remand for further articulation by the trial court.16 *472Beeston did not testify in person in the trial court due to his ill health. The plaintiff, however, introduced into evidence his deposition over the objection of the defendants. The defendants claimed that the deposition was inadmissible because Beeston was incompetent to testify at the time of the deposition and could not remember at all what he had done to compensate for his absence from the April 12 hearing. The trial court stated that it would read the deposition and then determine how much weight it would give to the testimony of Beeston. Given Beeston’s unavailability, the trial court properly considered the contents of his deposition. Nonetheless, the nature of Beeston’s testimony in his deposition leaves us with doubt as to what the trial court meant by its finding with respect to that testimony. Beeston testified that he had not read the transcript or listened to the tape of the April 12 hearing. He also testified that he had reviewed no other documentation submitted at that hearing, and that he had read only newspaper accounts of the commission minutes. He also testified that his memory was good enough to state that he had never reviewed the letters and documents introduced at the April 12 hearing. If this testimony had been credited, the trial court would have been required to conclude, as a matter of law, that Beeston had failed to acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the [April 12] public hearing in order to [make] an informed judgment.” Loh v. Town Plan & Zoning Commission, supra, 42. Beeston also testified, however, that he did not remember at all what he did to familiarize himself with the application. He also stated that he had a terrible memory and that his memory was not good enough to make a statement as to whether he reviewed letters and documents. On the basis of this testimony, the trial *473court could reasonably have concluded that, on the date the deposition was given, Beeston did not remember at all how he familiarized himself with the April 12 hearing and that, therefore, the plaintiff had simply failed to carry his burden of proof with respect to Beeston. Our difficulty is that we cannot discern, from the trial court’s language, which of these two interpretations of its finding comports with the trial court’s intent. Therefore, we remand this case to the trial court for an articulation of the factual conclusions that the court drew from Beeston’s deposition concerning what he remembered at the time of the deposition. If the trial court credited the testimony of Beeston and believed that Beeston only read the newspaper accounts of the minutes of the April 12 hearing, then we order that the trial court’s judgment be reversed and that the plaintiff’s appeal be sustained by the trial court, because in that case the plaintiff would have established that Beeston did not sufficiently acquaint himself with the April 12 hearing. If, however, the trial court determined that, when he gave his deposition, Beeston could not remember at all how he had acquainted himself with the April 12 hearing, then we order that the trial court’s judgment be affirmed, because in that case the plaintiff would have failed to sustain his burden of proving that Beeston had not adequately acquainted himself with the April 12 hearing. The judgment is affirmed in part and the case is remanded for further proceedings in accordance with this opinion.17 In this opinion Peters, C. J., Glass and Covello, Js., concurred. The Appellate Court granted certification from the judgment of the trial court and we transferred the appeal to this court pursuant to Practice Book § 4023. “[General Statutes (Rev. to 1989)] Sec. 8-3h. notice to adjoining municipalities. The zoning commission of any municipality shall notify *457the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which: (1) Any portion of the property affected by a decision of such zoning commission is within five hundred feet of the boundary of the adjoining municipality; (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site; (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the adjoining municipality; or (4) water runoff from the improved site will impact streets or other municipal or private property within the adjoining municipality. Such notice shall be made by registered mail and shall be mailed within seven days of the date of receipt of the application, petition, request or plan. No hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section. Such adjoining municipality may, through a representative, appear and be heard at any hearing on any such application, petition, request or plan.” General Statutes § 8-3c (b) states in relevant part: “The zoning commission . . . of any municipality shall hold a public hearing on an application or request for a special permit . . . .” The riding academy would front on Sunset Hill Road in Redding. Sunset Hill Road continues northward into Bethel. The town of Bethel is approximately 1000 feet north of the riding academy. One condition was that the horse academy post a sign directing exiting traffic to turn right onto Sunset Hill Road. A right turn onto Sunset Hill Road leads north toward the town of Bethel 1000 feet away. The plaintiff owns property at 155 Sunset Hill Road which is within 100 feet of the land involved in the decision and is, therefore, statutorily aggrieved under General Statutes § 8-8 (b) (1). The defendants also claim that the commission was not required to give notice pursuant to General Statutes § 8-3h in this case because a significant portion of the traffic will not use streets “within the adjoining municipality to enter or exit the [horse academy].” They argue that § 8-3h does not apply because the entrance to and exit from the riding academy are not located in or on the border of Bethel. Since we conclude that the plaintiff is not entitled to raise the issue of notice under § 8-3h, we need not consider this argument. By Public Acts 1989, No. 89-175, § 3, the legislature changed the method of notice from registered mail to certified mail, return receipt requested. Compare Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 301 A.2d 244 (1972) (failure to publish notice in newspaper pursuant to General Statutes § 8-3 constitutes jurisdictional defect), Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 291 A.2d 721 (1971) (insufficient published notice to general public constitutes due process violation and, therefore, is jurisdictional defect), Slagle v. Zoning Board of Appeals, 144 Conn. 690, 137 A.2d 542 (1957) (publication of notice in newspaper of hearing constitutes jurisdictional defect when published only three days before hearing), Winslow v. Zoning Board, 143 Conn. 381, 122 A.2d 789 (1956) (inadequate public notice constitutes jurisdictional defect), and Smith v. F. W. Woolworth Co., 142 Conn. 88, 111 A.2d 552 (1955) (inadequate publication of notice of public hearing in newspaper is jurisdictional defect), with Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975) (failure by the zoning commissioner to give written notice of permit application to two city officials was not jurisdictional defect because each official had actual notice and, therefore, waived personal notice), and Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975) (where record owners of land had actual notice, failure to notify them as required by statute was not jurisdictional defect because owners waived personal notice). “[This] bill simply requires that [if] a development project ... is close enough to a neighboring town and has a specific set of impacts . . . the neighboring town, will be notified and, therefore, have an opportunity to appear and make their views known. . . . [The bill] at least make[s] sure a town has an opportunity to comment . . . .” 30 H.R. Proc., Pt. 16,1987 Sess., p. 6031, remarks of Representative Miles S. Rapoport. “[This bill] will allow municipalities which have the potential to be significantly affected by activities in adjoining municipalities, at least a fair opportunity to be heard before the adjoining municipality acts on the zoning matter . . . .” 30 S. Proc., Pt. 9, 1987 Sess., pp. 3290-91, remarks of Senator Thomas J. Sullivan. The dissent argues that our reliance on Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975), and Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975), is misguided. In the present case, the dissent argues, there is nothing in the record to indicate that Bethel had actual notice of the application, unlike the situation in those cases, where persons entitled to statutorily required personal notice had actual notice. The dissent’s argument assumes that the issue of whether Bethel had actual notice is relevant to our holding in this case. It is not. Our holding that General Statutes § 8-3h notice is not jurisdictional depends not on whether Bethel had such notice, but on the terms of the statute. Our citations to Sachem’s Head Assn, and Schwartz are simply for the purpose of demonstrating that compliance with a personal notice statute, unlike a published notice statute, is not a subject matter jurisdictional requirement and, therefore, can be waived. Section 4.2.3 of the Redding zoning regulations states in pertinent part that “[sjubject to a Special Permit granted by the Commission ... the following uses may be authorized . . . (j) Livery stables, riding academies, livestock farms, and forest sawmills . . . .” Section 4.2.1 of the Redding zoning regulations states in pertinent part: “Any of the following [are permitted principal uses]: “(a) A detached single-family dwelling, one per lot. “(b) Public and private open space reservations, where maintained in a natural condition without buildings or activities areas. “(c) Farming, forestry and horticulture, as provided by section 5.14.” A single-family dwelling is defined in § 8.1.230 of the regulations as “[a] detached residence . . . .” The plaintiff also argues that because a residence, once erected, must continue to be the principal use of the property, a riding academy can only be categorized as an accessory use. The plaintiff notes that because a riding academy is not a specifically named accessory use under § 3.7 of the Redding zoning regulations, it cannot be a permitted accessory use. Since, however, in this case the riding academy is a permitted special use, and not an accessory use, this argument is without merit. Section 4.2.3 of the Redding zoning regulations allows as permitted special uses: “(a) Public schools and private schools . . . including customary accessory buildings . . . such as . . . faculty residences .... “(b) Churches . . . including accessory parish house . . . ."(Emphasis added.) Ordinarily the appellant has the responsibility to seek an articulation by the trial court in order to furnish an adequate appellate record. Southington v. State Board of Labor Relations, 210 Conn. 549, 563-64, 556 A.2d 166 (1989). We decline to dispose of the case on this basis, however, because the trial court’s finding, although ambiguous with respect to Beeston on close appellate examination, was sufficiently clear to mislead the plaintiff into believing that it should be addressed on appeal as clearly erroneous. The trial court having returned an articulation finding that Beeston could not remember how he had acquainted himself with the April 12 hearing, that court’s judgment is affirmed.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841964/

Shea, J., dissenting. I disagree with the majority that the failure to notify the town of Bethel of the hearing *474on John Angeloni’s special permit application pursuant to General Statutes § 8-3h did not invalidate the granting of the application by the Redding zoning commission because of a violation of that statute. After specifying the circumstances under which notice to an adjoining municipality is required1 and the procedure for giving such notice, § 8-3h provides: “No hearing may be conducted on any application . . . unless the adjoining municipality has received the notice required under this section.” This prohibition against conducting a hearing on an application in the absence of notice to a municipality entitled thereto plainly deprived the zoning commission of its legal authority to consider the application, thus impairing jurisdiction to grant it. In reaching the contrary conclusion, the majority relies on Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975), in which we held that the receipt of actual notice by a party cured the failure to give it the notice prescribed by statute. The majority also relies on Schwartz v. Hamden, 168 Conn. 8, 13-15, 357 A.2d 488 (1975), in which we concluded that the failure to notify a person of a hearing as statutorily required was waived when that person appeared at the hearing. Nothing in the record of this appeal, however, indicates that Bethel had actual notice of Angeloni’s application before the first hearing or that anyone appeared at the hearing in its behalf. Furthermore, the statutes *475involved in those cases did not contain the unique provision of § 8-3h that expressly prohibits a hearing unless the prescribed notice is given. The majority opinion also claims that its conclusion “is bolstered by an examination of the complex factual inquiries that the zoning commission must make within a very brief time period.” The burden of compliance imposed on a zoning commission by the statute can readily be circumvented at minimal cost by mailing a notice to each adjoining municipality even remotely involved under the statute. The legislators considered this problem when § 8-3h was enacted and they contemplated that zoning commission clerks would “give the benefit of the doubt whenever there is any question that there may be an impact that would fit the requirements of this bill.” 30 H.R. Proc., Pt. 16,1987 Sess., p. 6032. I am not ordinarily inclined to attach jurisdictional consequences to procedural flaws that occur in the course of administrative proceedings or appeals therefrom. See Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring). When, however, the legislature has gone so far as to prohibit a hearing without the notice to an adjoining municipality prescribed by § 8-3h, I believe we have no choice but to implement the statute by invalidating a permit granted as a result of such an illegal hearing. Accordingly, I would sustain the plaintiffs appeal without addressing the other issues. The plaintiff claims that “a significant portion of the traffic to [the riding academy] will use streets within [the town of Bethel] to enter or exit the site.” General Statutes § 8-3h. The basis for this claim is not only that the road providing access to Angeloni’s property crosses the Bethel town line approximately 1000 feet further north, but also that the zoning commission imposed a condition requiring Angeloni to erect a sign directing all traffic exiting the riding academy to turn north toward Bethel. See footnotes 4, 5 and 6 of the majority opinion. The defendants’ claim that § 8-3h does not apply because the entrance and exit do not border on a Bethel street is without merit. See footnote 7 of the majority opinion.

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Borden, J. The dispositive issue of this appeal is whether the plaintiff, Janice Pomazi, established classical aggrievement to appeal from the action of the named defendant, the Redding conservation commission, in failing to revoke the inland wetlands and watercourses license of the defendants Gary R. Michael and Dennis N. Michael. The plaintiff appealed to the trial court from that action,1 naming as defendants the conservation commission, the Michaels, and Luciano and Debra Angeloni,2 who are owners of a portion of the property covered by the license at issue. The defendants moved to dismiss the plaintiffs appeal, claiming that the plaintiff was neither statutorily nor classically aggrieved.3 The court granted the defendants’ motions and rendered judgment dismissing the appeal. *478The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The plaintiff claims that the trial court improperly dismissed her appeal because she established: (1) statutory aggrievement pursuant to General Statutes § 22a-43 (a);4 (2) statutory standing to raise environmental issues pursuant to General Statutes § 22a-19 (a);5 and (3) classical aggrievement under § 22a-43 (a) as a “person aggrieved” by the agency *479action. See footnote 4, supra. Because we conclude that the plaintiff established classical aggrievement, we reverse the judgment of the trial court and find it unnecessary to consider her claims of statutory aggrievement. The relevant facts are undisputed.6 The conservation commission is the municipal inland wetlands and watercourses agency for the town of Redding. In 1987, the Michaels received subdivision approval from the Red-ding planning commission for an eleven lot subdivision known as “Huntington Estates.” In conjunction with their application for subdivision approval, the Michaels also applied to the conservation commission for a license to conduct certain regulated activities on the subdivision, which contains wetlands and a stream. The Michaels represented to the conservation commission that all of the proposed subdivision lots, including lot 5, would be put to residential use. At the time, lot 5 was already devoted to residential use. In response to a letter from a body of technical advisers to the town regarding future development of lot 5, Gary R. Michael informed the planning commission on September 28, 1987, of the “existing and planned uses” of lot 5,7 and that he and Dennis N. Michael “have no intention of extending the existing uses for the property.” In their application to the conservation commission, the Michaels proposed no change in the use of lot 5 and no regulated activities thereon. *480On October 30, 1987, the conservation commission issued a license to the Michaels to conduct certain regulated activities on the subdivision. The license permitted, at specific locations on the subdivision map, a number of activities such as discharge of storm water runoff, development of drainage systems and storm water detention facilities, installation of wells and septic systems, and construction of a residence and driveway. The license did not specify any regulated activities to be permitted on lot 5. The only specific reference in the license to lot 5 was the special condition that a certain declaration of restrictive covenants prohibiting the lot’s subdivision or resubdivision be made part of the license. One of the general conditions of the license was that “[t]he Commission is to be notified in writing of any changes in the permitted activity as soon as such changes are anticipated. The applicant is advised that significant change requires Commission approval.” Another of the general conditions was that the license “shall expire one year from the date of issuance, except on such terms as it may be renewed by the Commission on written application to it prior to expiration.”8 Nine days after the issuance of the license, on November 9,1987, the Michaels entered into a contract to sell lot 5 to Luciano Angeloni, pursuant to which the Michaels agreed to cooperate with Angeloni’s effort to obtain a special permit to use lot 5 as a horse riding academy. The Michaels did not inform the conservation commission of this contract. After subdivision approval by the planning commission and the issuance of the wetlands license by the conservation commission, the Michaels conveyed lot 5 to the Angelonis, who thereafter secured from the Redding zoning commis*481sion a special permit to operate a horse riding academy on lot 5. That permit contemplated fifty horses on the site.9 On or about October 30,1988, the Michaels’ license was renewed by the conservation commission. On November 22, 1989, the conservation commission received a letter from Gary R. Michael, dated November 15,1989, requesting further renewal of the license. On November 21, 1989, the conservation commission renewed the license, and published notice of that action on November 30,1989. In response, on December 11, 1989, the plaintiff requested the conservation commission to revoke the license. The conservation commission considered the plaintiff’s request at its meeting on December 12, 1989. The plaintiff attended that meeting and filed with the conservation commission a verified notice of intervention pursuant to General Statutes § 22a-19 (a); see footnote 5, supra; claiming environmental harm resulting from the horse riding academy on lot 5. The conservation commission did not revoke the license. The plaintiff appealed to the trial court, which granted the defendants’ motions to dismiss for lack of aggrievement. This appeal followed. In her appeal to the trial court, the plaintiff alleged that the development of the horse riding academy involves regulated activities, including construction of storm water runoff and drainage facilities, roof drains and other water diversions, and alterations of drainage patterns, that require licensing by the conservation commission. She also alleged that the riding academy will have an impact on the wetlands, watercourses and groundwater resources of the other lots in the subdivision and of property outside the subdivi*482sion. The plaintiff alleged that the commission acted illegally by, inter alia, renewing an expired license, failing to review whether the conditions of the license had been complied with prior to its renewal, failing to require notification by the Michaels of a substantial change pertaining to lot 5, and failing to regulate activities of the riding academy. The plaintiff’s specific factual allegations of aggrievement, which, as noted above, the defendants conceded for purposes of the motions to dismiss; see footnote 6, supra; are as follows. The plaintiff and her husband own and reside with their family on land located in the vicinity of the Michaels’ subdivision. Their land is traversed by a stream and wetland system that flows through and issues from the subdivision. The stream and wetland system are likely to capture polluted and contaminated water issuing from the horse riding academy, and the operation of the horse riding academy could adversely affect the well on the plaintiff’s property that serves the plaintiff’s home. The plaintiff is interested in the maintenance of the purity and cleanliness of the stream and wetland system that flow across her property. The plaintiff claims that these allegations, taken as true for the purposes of the defendants’ motions to dismiss, establish her classical aggrievement. We agree. General Statutes §§ 22a-36 through 22a-45 constitute the Inland Wetlands and Watercourses Act (the act). General Statutes § 22a-37. Pursuant to General Statutes § 22a-43 (a), “any person aggrieved by any . . . order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by . . . [a] municipality” may appeal to the court. See footnote 4, supra. “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in *483the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. . . . Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987).” (Internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). The parties’ stipulation established a possibility that the stream and wetland system flowing from the subdivision through the plaintiff’s land will be polluted by the horse riding academy. The parties also stipulated that this pollution could adversely affect her well. These facts are sufficient to establish at least a possibility that the plaintiff’s interest in the purity of her well will be adversely affected by the horse riding academy. That adverse effect constitutes “a specific personal and legal interest in the subject matter of the [conservation commission’s] decision” that was “specially and injuriously affected by the decision.” Id. The defendants argue that the plaintiff was not aggrieved because (1) pollution of the stream is a matter of general interest, rather than of personal interest to her, and (2) the source of the pollution of which the plaintiff complains is the riding academy on lot 5, “not any activity which the Michaels’ license permits *484them to conduct on lots 1-4 and 6-11 of the subdivision.” Thus, the defendants argue, since the riding academy was not the subject of the license renewal, the decision of the conservation commission, as opposed to the action of the zoning commission in permitting the riding academy, did not adversely affect the plaintiffs interests. These arguments are without merit. With respect to the defendants’ first argument, we need not decide whether every downstream riparian owner is classically aggrieved by pollution of an upstream watercourse. It is sufficient here that the parties agreed that pollution could adversely affect the plaintiff’s well. The defendants’ second argument rests on an unduly cramped notion of the subject matter of the decision of the conservation commission. General Statutes § 22a-42a (c) provides in pertinent part that “no regulated activity shall be conducted upon any inland wetland and watercourse without a permit.”10 Section *48522a-42a (d) provides in pertinent part that “[t]he agency may suspend or revoke a permit if it finds . . . that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application.”11 *486The decision of the conservation commission not to revoke the license was a “decision or action made pursuant to” the act. General Statutes § 22a-43 (a). The plaintiff’s claims of illegal conduct by the conservation commission—namely, renewing an expired license, failing prior to renewal to determine compliance with its conditions regarding lot 5, failing to require notice of a substantial change in conditions existing on lot 5, and failing to regulate activities on lot 5—at least on their face, fall within the statutory proscriptions of § 22a-42a (c) and (d), and within the municipal regulation cited by the plaintiff. See footnote 8, supra. The plaintiff’s factual claims regarding the wetlands impact of the riding academy—namely, construction of storm water runoff and drainage facilities, alterations of drainage patterns, and impacts on the wetlands and groundwater resources of sites on and off the subdivision—are sufficient to constitute a claim of unlicensed regulated activity pursuant to § 22a-42a (c). Similarly, the allegations regarding the intervention of the horse riding academy and its claimed consequences are sufficient to constitute a claim of a significant change in the activities on the subdivision that required notification to and approval by the conservation commission. The fact that the license was originally silent with respect to lot 5, save for the prohibition against further subdivision, does not mean, as the defendants suggest, that subsequent activity on the lot was ipso facto *487outside the subject matter of the conservation commission’s decision not to revoke the license. Among the plaintiff’s factual allegations that were stipulated as true for purposes of aggrievement was the allegation that the riding academy would impact on the wetlands and groundwater resources of the remaining ten lots of the subdivision, which were plainly within the Michaels’ license. Thus, as the plaintiff argues, when her factual allegations were brought to the attention of the conservation commission upon the request for revocation of the license, the conservation commission could have required the Michaels to adopt additional pollution control measures on those lots for the purpose of safeguarding the stream and wetland system thereon, and could have thereby reduced the likelihood of the enhanced pollution that the plaintiff claimed to be a result of the activities on lot 5. We conclude, therefore, contrary to the defendants’ position, that the activities on lot 5 were within the subject matter of the decision of the conservation commission. The judgment is reversed, and the case is remanded with direction to deny the defendants’ motions to dismiss and for further proceedings according to law. In this opinion the other justices concurred. In a second count of her complaint, the plaintiff also requested declaratory and injunctive relief. The trial court dismissed that count for: (1) failure to exhaust administrative remedies; (2) failure to give proper notice to interested parties; and (3) improper joinder. The plaintiff has not challenged that action of the trial court in this appeal. The commissioner of the department of environmental protection became a party to the trial court proceedings pursuant to General Statutes § 22a-43, but has not participated in this appeal. We refer herein to the conservation commission, the Michaels and the Angelonis as the defendants. The Angelonis also claimed that the appeal should be dismissed as to them for defective process. The trial court found it unnecessary to reach that issue. Since the Angelonis have failed to brief that issue as an alternative ground to support the decision of the trial court; see Practice Book *478§ 4065; we consider it abandoned. State v. Walzer, 208 Conn. 420, 423 n.2, 545 A.2d 559 (1988); Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979). General Statutes § 22a-43 (a) provides: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may appeal to the superior court in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.” The plaintiff claimed statutory aggrievement as an owner of land within ninety feet of the watercourse involved in the agency decision. General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” For the purposes of the motions to dismiss only, in lieu of an evidentiary hearing the defendants expressly conceded all of the factual allegations of the plaintiff’s complaint. Thus, the parties and the trial court treated the issue of aggrievement solely as a question of law: whether the plaintiff had pleaded sufficient facts that, taken as true, established aggrievement as a matter of law. We, therefore, consider the appeal accordingly. The existing uses described by Michael were a residence, an office area, an apartment located above the office area, stables with a capacity of “up to ten horses,” and barns used for storage. This condition tracks § 5.12.b of the town’s inland wetlands and watercourses regulations: “Licenses shall expire one year from the date of issuance, except on such terms as they may be renewed by the Commission on written application to the Commission prior to expiration.” That special permit is the subject of the companion appeal. See Lauer v. Zoning Commission, 220 Conn. 455, 600 A.2d 310 (1991). General Statutes § 22a-42a (c) provides: “On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe. The day of receipt of an application shall be the day of the next regularly scheduled meeting of such inland wetlands agency, immediately following the day of submission to such inland wetlands agency or its agent of such application, provided such meeting is no earlier than three business days after receipt, or thirty-five days after such submission, whichever is sooner. No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located. All applications and maps and documents relating thereto *485shall be open for public inspection. At such hearing any person or persons may appear and be heard. The hearing shall be completed within forty-five days of its commencement. Action shall be taken on such application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of such application. The applicant may consent to one or more extensions of the periods specified in this subsection for the holding of the hearing and for action on such application, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such application. If the inland wetlands agency fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period, the applicant may file such application with the commissioner of environmental protection who shall review and act on such application in accordance with this section. Any costs incurred by the commissioner in reviewing such application for such inland wetlands agency shall be paid by the municipality that established or authorized the agency. Any fees that would have been paid to such municipality if such application had not been filed with the commissioner shall be paid to the state. The failure of the inland wetlands agency or the commissioner to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the application.” General Statutes § 22a-42a (d) provides: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapter 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the per*486mit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency’s decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland and watercourse lies. In any case in which such notice is not published within such fifteen-day period, the applicant may provide for the publication of such notice within ten days thereafter.”

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Berdon, J., dissenting. I disagree with the majority’s rejection of the defendant’s claim that the trial court erred in refusing to allow him to present evidence in support of a challenge to his jury array. I would find, on the basis of the offer of proof made by the defendant, that he was entitled to an evidentiary hearing to attempt to make a prima facie showing that the jury array was derived in an unconstitutional manner through the adoption of a practice that resulted in the exclusion of minorities, including black persons. Accordingly, I would reverse the judgment in this case and remand the same for a new trial. In this criminal prosecution, the state charged the defendant, James C. Tillman, a black man, with the crimes of sexual assault, kidnapping, robbery, larceny and assault of the victim, a white female. Jury selection began on September 5, 1989, and the first panel was drawn from an array consisting of fifteen persons, all of whom were white except for two black females who were bank employees.1 After the first panel was exhausted at the end of the day on Thursday, September 7, 1989, a second panel of ten persons was drawn, all of whom were white. After one person on the second panel was questioned, *508the defendant objected to its composition because neither of the two panels, both of which contained twenty-five persons, included any black males and because only one person was from Hartford. The defendant requested that the second panel be dismissed and that a new panel be drawn.2 The trial court rejected the request and implicitly invited counsel to ascertain if there was “evidence that the jury clerk is calling in people improperly or excusing them improperly or sending them down other than randomly.” Jury selection continued for part of the day on Friday, September 8, and a total of six white jurors were selected. On Monday, September 11, prior to the selection of the alternates, the defendant renewed his objection to the composition of the jury panel. Counsel read a prepared statement from the defendant objecting that the -composition of the panels failed to include black males and Hartford residents.3 After reading the statement of the defendant, counsel furnished the court with an offer of proof that included the following: “As the court knows, the jurors are selected from a combination of motor vehicle records and voting lists. Also, a factor that is used by the jury clerks in this judicial district, in deciding whether or not to exclude a person from jury duty . . . [is] an economic factor. If the jury clerk for this district, Your Honor, for this building, has documentation that a person called for jury duty who is *509employed somewhere will not be given the balance of his or her pay by his or her employer, and therefore would only be receiving the ten dollars a day that the state provides the jurors, then the jury clerk will excuse that person for an economic hardship. This is a decision that is made by the jury clerk and there are two reasons that the jury clerk gave me for this: One is that it’s economically disadvantageous to that potential juror to have to spend four weeks here making ten dollars a day when he or she—and therefore forfeiting a lot more that they would be paid on their job, if they happen to come from an employer who does not make up the difference. The other reason, Your Honor, is that the clerks feel that a person who is, in effect, forced to sit on jury duty for four weeks for ten dollars a day will not make a good juror. Now, I would submit that . . . this is not to be construed ... as racial discrimination as such, but the fact is, according to the jury clerk here, that very often members of minorities are employed by employers who do not make up the difference in the ten dollar a day—the difference from the ten dollar a day that the state pays the jurors. Therefore, the clerk agreed that there are a disproportionate number of minorities who would be excluded solely by the jury clerk for this economic hardship. She told me, in fact, that on this particular panel, the array that is available upstairs, that in fact there are not many black jurors available.” (Emphasis added.) The trial court again rejected the claim of the defendant giving as his reason “that six jurors were selected prior to the challenge having been made.”4 Thereafter, two white alternates were selected. The defendant was tried and convicted as charged by his all white jury. *510The issues raised by the defendant, which allege the exclusion of persons from jury service on the basis of race, go to the very heart of our system of criminal justice—the impartial jury. “The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). The selection of a petit jury from a representative cross-section of the community is an essential element of the right. Id. There is, however, no constitutional right that the petit jury result in any particular composition. McCray v. Abrams, 750 F.2d 1113, 1128 (2d Cir. 1984), reh. denied, 756 F.2d 277 (2d Cir. 1985) (en banc). Not “every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community . . . .” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). “Indeed the impracticability of attempting to achieve a petit jury composed of a cross section is obvious.” Williams v. Coppola, 41 Conn. Sup. 48, 56, 549 A.2d 1092 (1986). Its composition, from the array to the jury panel, then becomes a question of the luck of the draw. The array, however, from which these panels are drawn must be composed of a representative cross-section of the community in order to allow the defendant a chance to achieve this result. The thrust of the majority opinion denying the defendant’s claim of unconstitutional discrimination in the selection of the jury array is that “[a]ll that this defendant ever offered to the court in support of his request for a new supplemental panel was his counsel’s hearsay representations of a conversation he had had *511with the clerk.” The majority fails to acknowledge the basic trial procedure of an “offer of proof” as utilized by the defendant. Offers of proof are allegations by the attorney in which he represents to the court that he could prove them if granted an evidentiary hearing. See Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979). “ ‘An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.’ ” State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986), quoting Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978). Although counsel for the defendant did not articulate that he was presenting an “offer of proof,” it is apparent from the record that the trial court understood it to be such an offer when it rejected the challenge to the jury array on the ground that six jurors have already been selected—in other words—it was too late to make the claim.5 Accordingly, the defendant’s constitutional challenge to the array must be reviewed as if these allegations of the defendant could had been proven at an evidentiary hearing. The defendant made five basic allegations in his offer of proof and statement to the court. First, the jury clerk, in deciding whether she will excuse a person from jury duty, considers an economic hardship—that is, if the person’s employer would not make up the difference between his or her regular wage and the $10 per *512diem jury fee paid by the state, that person would be excused; second, very often the excuse of persons on this economic criterion results in the exclusion of members of minorities including blacks because they are likely to be employed by those who do not make up the difference; third, this practice results in the exclusion of a disproportionate number of minorities including blacks; fourth, the array from which panels were selected in this case did not include many blacks; and fifth, the defendant claimed that the array from which the defendant’s jury was selected was unconstitutionally constituted. We have long held that “[impartiality as a core requirement of the right to trial by jury is served not only by the sixth amendment, which applies to the states as well as to the federal government . . . but also by the due process and equal protection clauses of the fourteenth amendment.” (Citations omitted.) State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). Under either argument advanced by the defendant in this case6—a sixth amendment violation under Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), or a due process violation under State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980)-the defendant was entitled to an evidentiary hearing in order to prove that the composition of the array violated his constitutional right to select a jury from a representative cross-section of the community. Under Duren, the defendant could have established, on the basis of his offer of proof, a prima facie case7 *513that the array did not satisfy the fair cross-section requirement. This would then have shifted the burden to the state to prove that the selection system furthered significant state interests. Duren v. Missouri, supra, 367-68. The defendant would have satisfied the “distinctive group” requirement by the proof that potential jurors were excluded for the economic reasons, which resulted in the exclusion of minorities including blacks;8 Thiel v. Southern Pacific Co., supra, 222 (intentionally eliminated all those who worked for a daily wage);9 he would have satisfied the “representation of this group ... is not fair and reasonable” requirement by proof that the practice resulted in a disproportionate number of blacks being excluded compared to their number in the community; and the “under-representation is due to systematic exclusion” requirement would have been satisfied by proof that this exclusion was the practice of the clerk in the judicial district of Hartford. Likewise, proof of the defendant’s offer would have established a violation of due process under State v. *514Nims, supra. “ ‘The due process clause does not itself guarantee a defendant a randomly selected jury, but simply a jury drawn from a fair cross section of the community. A claim of denial of this due process right requires a showing that the jury selection process tended to exclude or underrepresent some discernable class of persons and consequently to defeat a fair possibility for obtaining a truly representative cross section.’ ” Id., 595, quoting United States v. Kennedy, 548 F.2d 608, 614 (5th Cir. 1977). Nims, however, makes clear that the practice does not necessarily have to exclude all those in the discernible class; “it is equally offensive to the constitution to limit proportionally the number of an identified group that will serve on a jury array or panel. Cassell v. Texas, [339 U.S. 282, 286-87, 70 S. Ct. 629, 94 L. Ed. 839 (1950)].” State v. Nims, supra, 597. Surely, the imposition of the economic criterion in this case of excusing potential jurors, which results in the exclusion of members of minorities including blacks, satisfies Nims. Underscoring both the Duren and the Nims claims made in this case is the composition of the community. According to the 1990 national census, Hartford, the largest city included in the judicial district, has a total population of 139,739, which includes a black population of 39 percent.10 Considering these statistics makes it even more likely that the practice of the jury clerk had an impact on the underrepresentation of blacks on the array. In our system of justice, not only must the accused be afforded a fair trial, but equally important there must be a perception of fairness by the community and the accused. Anything less not only undermines the *515credibility of this branch of government but also threatens the very fabric of our democracy. And, of course, the perception that the person is being tried before a fair jury drawn from a cross-section of the community is high on the agenda in achieving that goal. When a black man, as in the present case, is accused of serious crimes such as the sexual assault of a white victim, that black defendant—and, indeed, the black community—cannot perceive that he has received a fair trial from a jury that is entirely composed of white persons, drawn from an array made up of very few blacks because of deliberate practices that resulted in their elimination. The defendant in this case forcefully expressed that concern when his attorney read to the court during jury selection the following statement he had prepared. “Your Honor, I object to the jury array. I do not feel that this is a jury of my own peer[s] and therefore it will be impossible for me to have a fair trial. Especially considering the facts of the Danny Webb case which has been in all the news and newspapers.11 And the fact that his case alleges that he [attacked] a middle class white woman from one of the suburban towns, which in fact is what my jury panel was made of. There were only two blacks from the entire panels in which I had to choose from. I’m sure that this [doesn’t] comply with the statistical percentage of blacks for this geographical area. Therefore, this cannot be a jury of my peer[s] and [it] will be impossible for me to have a fair trial. I therefore state for the record at this time, I would like to challenge the jury array and ask the court to order whatever [is] necessary for me to do this.” *516There is a need to preserve public confidence in the fairness of a jury but that perception dissipates when the court, through its clerk, employs selection practices for the array that undermines the defendant’s constitutional right to select a jury from a fair cross-section of the community. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Accordingly, I respectfully dissent. One black female potential juror, a resident of Hartford, was excused as a result of the state exercising a peremptory challenge. The other black female potential juror, a resident of Bloomfield, was excused as a result of the defendant exercising a peremptory challenge after his cause challenge was denied. Mr. Cosgrove, the attorney for the defendant, stated: “[W]e’ve had, two panels, we’ve gone through one completely, 15 people, we just introduced a new panel of 10 people, there hasn’t been a single black male among those 25 people, your Honor. I don’t know if that’s representative of the entire jury pool here but I don’t think it comports with Mr. Tillman’s right to a trial by a jury of his peers and in addition, your Honor, there has been only one Hartford resident from my count on this sheet here and that happened to be a black woman who was excused by the state. I just would request the court to ask the jury clerk to send a new panel down here that might be more representative of Mr. Tillman’s race and place of residence.” See infra, 515. The defendant, after the verdict, renewed his objection to the arrays in a motion for a new trial, which was denied. The court again commented that the challenge was made “after the first six jurors had already been selected.” I agree with the majority that, “fwjhere a constitutional flaw is discovered and brought to the court’s attention before jury selection is complete, and good cause can be shown for the defendant’s failure to mount an earlier challenge, the Practice Book is not a procedural roadblock.” Majority opinion, 494. In this case, as the majority found, the defendant’s objections were timely. Although the defendant appears also to raise state constitutional issues, his failure adequately to brief them by providing reasoned legal argument precludes appellate review. State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987). “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representa*513tion of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). The majority claims the “group is broad enough to include both the day laborers considered in Thiel and highly paid professionals Whether it includes those who are “highly paid” begs the issue. The issue is whether the elimination of the “distinctive group” results in the exclusion of minorities including blacks, which was included in the offer of proof. The United States Supreme Court has struck down jury selection schemes that have; (1) intentionally eliminated a racial group; Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940); (2) deliberately selected jurors from the membership of particular private organizations; Glasser v. United States, 315 U.S. 60, 86, 62 S. Ct. 457, 86 L. Ed. 680 (1942); and (3) intentionally eliminated women. Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 91 L. Ed. 181 (1946). As the defendant aptly noted in his brief, in each case the United States Supreme Court held that these practices were incompatible with the fair cross-section requirement that is the hallmark of trial by an impartial jury. I take judicial notice of the 1990 census figure for the city of Hartford. Nichols v. Nichols, 126 Conn. 614, 621-22, 13 A.2d 591 (1940). The defendant had made reference to a highly publicized case involving the arrest and arraignment of a black man for sexual assault and capital murder of a white female victim who was a downtown Hartford office worker. In the present case, the white female victim was also a downtown Hartford office worker.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841970/

Borden, J. The principal issue of this appeal is whether the trial court exceeded the proper scope of review of the decision of the named defendant, the *529Hamden planning and zoning commission (commission), in amending the Hamden zoning regulations regarding the development of shopping centers. The defendants1 appeal2 from the judgment of the court sustaining the zoning appeal of the plaintiffs3 that challenged the decision of the commission. The defendants claim that: (1) the court employed an improper scope of review and, therefore, improperly concluded that the commission’s decision was not supported by the record; (2) the court relied on improper evidence; and (3) the court improperly concluded that the plaintiffs had been denied due process of law by the commission’s hearing procedure. We conclude that: (1) the court exceeded the applicable scope of review of the commission’s decision and that the commission’s decision was adequately supported by the record; and (2) the court improperly concluded that the plaintiffs’ due process rights were violated.4 Accordingly, we reverse the judgment. *530The following facts are undisputed. In July, 1988, Pellegrino, Homart and Fusco/Gottlieb filed an application with the commission to amend the Hamden zoning regulations for all fifteen Business B-2 and CDD-1 districts located in Hamden.5 The proposed amendments would apply to numerous sites in these districts. The stated purpose of the application was “[t]o permit existing zoning regulations to be more compatible with the development of a Shopping Center.” It sought five amendments6 that are pertinent here: (1) an increase in the permissible gross floor area of a shopping center from 250,000 square feet to 784,000 square feet; (2) the exclusion of enclosed interior walkways from the definition of gross floor area; (3) the aggregation of lots within a shopping center for certain area, yard and frontage requirements; (4) the fulfilling of nonresidential front landscaping requirements by substituting such landscaping in other locations; and (5) the exclusion of underground or covered parking spaces from the computation of the required landscaping area and the number of trees. The application did not seek a change of zone with respect to any particular parcel or parcels of property. The Hamden zoning regulations require a special permit for the construction of a mall or shopping center. Hamden Zoning Regs. § 512.3. On its face, the application did not seek approval for any construction or refer to any particular site, nor did it include any site plans or traffic or drainage information. The commission referred the application to its planning section, which, after a meeting, recommended approval of the amendments. *531It is also undisputed, however, that the commission was aware that the purpose of the applicants in seeking the amendments was to enable them ultimately to develop a commercial shopping mall, to be known as Hamden Court, on a thirty-three acre site located at the corner of Dixwell Avenue and Skiff Street (site). On that site were various commercial buildings, including a department store, a car dealership, a burnt-out cement factory, a fast food outlet, and an abandoned railroad line. The town planner, who acted as the clerk of the commission, knew that these amendments were necessary before the applicants could obtain a special permit for the mall they intended to propose later. At the meeting of the planning section, Pellegrino had stated that the owners wanted to demolish the existing buildings on the site and construct Hamden Court. In a letter dated September 29,1988, to the residents of Hamden, Homart had stated, inter alia, that it was “proposing to build Hamden Court Shopping Center at the intersection of Dixwell Avenue and Skiff Street,” and that “[i]n order to develop Hamden Court as proposed by Homart Development Co. and Fusco/Gottlieb Associates, zoning ordinance changes are essential.” Furthermore, in 1987, Homart had filed an application for certain other amendments to the zoning regulations in order to permit it to build a larger mall on the site. The commission had denied that application. At a special meeting of the commission on January 5, 1989, after considerable discussion, it voted three to two to adopt the amendments to the zoning regulations. According to the minutes of that meeting, upon a request by the town attorney that the reasons for the action be stated for the record, one of the commissioners who had voted for the amendments stated that “he voted his conscience and said the amendments fall within the Town Plan; more specifically, it addresses the interrogatories and the response from the Town *532Planner which should be made part of the record. He said he felt this was not a departure from the Town Plan. He said tonight the Commission was supposed to limit itself to the zone changes only, which are not a departure from the Town Plan.” When one of the two commissioners who had voted against the amendments “asked the other Commissioners if they were in agreement with [this] statement,” another of the three commissioners voting in favor of the amendments “said he spoke to no one and based his decision on the fact that he thought this is a viable application.” The third commissioner voting in favor of the amendments did not, after the vote, state his reasons, although he had participated in the discussion that preceded the vote. The plaintiffs appealed to the Superior Court. The court viewed the appeal as involving the issue of whether the commission had acted within its discretion in amending the regulations so as to permit the Ham-den Court mall. In that posture, the court subjected the regulations to a two part test: (1) whether they were in accord with the town’s comprehensive plan; and (2) whether they were reasonably related to the police power purposes enumerated in General Statutes § 8-2.7 *533The court concluded that the commission had not abused its legislative discretion in determining that a regional shopping mall of 784,000 square feet was within Hamden’s comprehensive plan for a site that already permitted three separate shopping centers of 250,000 square feet each. Nonetheless, the court concluded that the appeal must be sustained because the amendments were not shown to be reasonably related to any one of the police power purposes contained in §8-2. The court concluded from the record that “the majority of the Commission who voted in favor of the *534Amendments not only failed to state on the record the police power purpose or purposes they relied upon to support their decision . . . but they were under the mistaken belief that it was not their concern at that time.” The court read the minutes of the January 5, 1989 special meeting of the commission to indicate that “the majority of the commissioners voted for the Amendments because it was in accordance with the comprehensive town plan and took no other factor into consideration.” The court reasoned that “[t]he Commission’s error is not that they merely failed to make *535necessary findings, but the record patently shows that they acted under the mistaken belief that these police power purposes enumerated in § 8-2 were not appropriately before them when determining whether to amend the regulations,” and, therefore, the commission’s decision must be overturned. The court also reasoned that, even if it were to search the record for a legitimate basis of the commission’s decision, “the decision of the Commission would not meet the requirements of § 8-2 that the Amendments must be reasonably related to one or more of the state police power purposes.” Stating that the only purposes articulated in § 8-2 that could possibly apply to the amendments at issue were that the amendments be “designed to lessen congestion in the streets” and that they “promote health and the general welfare”; General Statutes § 8-2; see footnote 7, supra; the court concluded that there was “no substantial evidence [in the record] which would allow the Commission to find that either of these purposes [is] served by the Amendments.” With respect to congestion in the streets, the court compared the traffic to be generated by the mall to the traffic without the proposed amendments. The court concluded that “[a]ll the evidence in the record pertaining to traffic congestion indicates that a regional shopping mall consisting of 784,000 square feet would generate a substantial increase in traffic congestion.” The court noted the concession by Homart’s expert witness that “substantial improvements would be required to be made by local, state and federal governments in order to accommodate the traffic flow for a regional shopping mall at the Site of Dixwell Avenue and Skiff Streets.” The court also concluded that the commission was not entitled to rely on evidence that traffic congestion would be decreased by these improvements because there was no evidence that such traffic *536improvements were probable. Thus, the court concluded that “the record in this case would not support the Amendments on the basis that it would lessen congestion on the streets. On the contrary, the overwhelming evidence in the record indicates that traffic congestion on the streets would be substantially increased; without the improvements it would result in chaos and with the improvements it may be tolerable.” With respect to the promotion of health and the general welfare, the court concluded that there was no evidence that “the adoption of the Amendments would promote the health and general welfare of the public. Indeed, the record is replete with substantial evidence that a regional shopping mall would cause increased traffic, safety, air pollution, health and refuse problems, and an increase of insurance premiums, and reduce property values.” The court also determined, as an independent ground for sustaining the appeal, that the plaintiffs had been deprived of due process of law under article first, § 10, of the constitution of Connecticut.8 This determination arose out of the following procedural context. Following the receipt of the recommendation of the planning section, the commission held public hearings regarding the application on November 10, December 1, and December 8,1988. At the beginning of the first hearing, the chairman of the commission stated, without objection from any party, that the order for present*537ing testimony would be as follows: the applicants; the named plaintiff herein, Protect; several Hamden councilmen who wished to be heard; those favoring the application; those opposing the application; the town planner; and rebuttal by the applicants, following which the hearings would be closed. This statement of the order of presentation was repeated at the beginning of each of the subsequent hearing dates, and this order was routinely followed by the commission. During their initial presentation on November 10, 1988, the applicants did not present evidence regarding traffic that would be generated by a regional shopping mall.9 In their opposition to the application, the plaintiffs presented substantial evidence that the contemplated Hamden Court mall would generate significant traffic problems. In their reply, on December 8, 1988, the applicants presented substantial evidence regarding the traffic that such a mall would generate, and certain highway modifications and improvements necessary to accommodate the increase in traffic. The court found from the record that, although the applicants’ traffic expert, presented on December 8, “did not testify that the state traffic commission had approved the regional shopping mall, he clearly left the impression that all traffic problems had been resolved and the necessary highway modifications and improvements costing $10,000,000.00 would be made.” The court also found that the attorney for the named plaintiff, Protect, did not know until the evening of December 8 that the applicants were going to present traffic evidence, and that during the intermission of that evening’s hear*538ing he requested that he be given an opportunity to rebut that evidence. The commission’s attorney responded that, although such rebuttal evidence was beyond the commission’s standard procedure, he would advise the commission to permit it if the applicants’ attorney would consent. When no such consent was forthcoming, the commission refused to permit such rebuttal evidence by Protect. The court concluded that this procedure violated the plaintiffs’ due process rights. It reasoned that the refusal of the commission to permit the plaintiffs “to at least rebut [the applicants’ expert’s] testimony by making clear that the state traffic commission had not approved the regional shopping mall, that traffic problems had not been resolved and that the modifications and improvements were not a certainty . . . and [to] present other evidence to the Commission deprived [the plaintiffs] of their constitutional right to due process of law.”10 Accordingly, the court rendered judgment sustaining the plaintiffs’ appeal. The defendants’ appeal to this court followed. I We first consider the plaintiffs’ claim that certain events that took place subsequent to the judgment of the trial court have rendered this appeal moot, and that we are, therefore, without jurisdiction to consider it.11 We disagree. *539Some chronology is in order. The amendments approved by the commission had an effective date of February 1, 1989. On July 3,1990, while the appeal to the trial court was pending but before it had rendered its decision, the court issued a temporary restraining order prohibiting the commission from hearing any special permit applications filed pursuant to the amended regulations. That restraining order was to terminate no later than thirty days after the trial court’s forthcoming decision. The court rendered its decision on August 20,1990, and, therefore, the temporary restraining order terminated on September 19, 1990. Meanwhile, on September 7, 1990, the defendants had filed a petition for certification to appeal the trial court’s judgment to the Appellate Court and, following a grant of that petition on October 24,1990, the defendants filed their appeal on November 13, 1990. In January, 1991, while this appeal was pending, the commission took two actions on which the plaintiffs rely for their mootness claim. First, on January 24, 1991, it decided to deny a proposal, supported by the applicants herein, to reenact provisions increasing the maximum size allowable for a shopping center from 250,000 square feet to 784,000 square feet, and excluding certain areas for calculating required parking for such centers. The effective date of that action, by virtue of its publication, was January 30,1991. Second, on January 26,1991, the commission amended the zoning regulations so as to adopt a 300,000 square foot limit on shopping centers. The effective date of that action was January 31, 1991. Meanwhile, however, on January 25,1991, Pellegrino had filed an application for a special permit pursuant to the regulations as amended by the commission effective February 1, 1989, and before its further amendment of those regulations effective January 31,1991. *540By agreement of the parties, that application is still pending before the commission and awaits the outcome of this appeal. The plaintiffs argue that the subsequent legislative changes by the commission outlined above have rendered this appeal moot. They rely on such cases as McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985) (subsequent regulatory amendments rendered appeal moot), and Rosnick v. Zoning Commission, 172 Conn. 306, 374 A.2d 245 (1977) (expiration of challenged zoning regulations rendered appeal moot). See also Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985) (subsequent amendment of zoning regulations rendered appeal moot). We are unpersuaded. General Statutes § 8-2h (a)12 controls the mootness claim in this case. That statute provides, in pertinent part, that a zoning “application . . . which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations . . . taking effect after the filing of such application.” We agree with the observation of the Appellate Court, in Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 209 n.4, 594 A.2d 9 (1991), that § 8-2h (a), which took effect on October 1,1989, was intended to overrule the principle of such cases as McCallum v. *541Inland Wetlands Commission, supra, and Johnson v. Zoning Board of Appeals, supra. Those cases had determined that certain administrative and zoning appeals had become moot by virtue of subsequent regulatory amendments because “the zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application.” McCallum v. Inland Wetlands Commission, supra, 223.13 Pursuant to § 8-2h (a), Pellegrino’s application for a special permit, filed on January 25,1991, will have to be considered by the commission under the zoning regulations in effect on that date. If the defendants’ appeal is successful, those regulations will include the amendments at issue in this case. Thus, this appeal is not moot because, if successful, it will have the concrete result of requiring consideration of the January 25,1991 special permit application under the regulations in effect on that date, rather than the regulations in effect on January 31, 1991. We reject the plaintiffs’ argument that the January 25, 1991 application did not preserve this appeal because of the trial court’s judgment invalidating the amendments, notwithstanding this appeal.14 The plaintiffs rely on the principle that “[t]he finality of a trial *542court judgment is not directly affected by the fact that an appeal automatically stays the enforcement of a judgment. See Practice Book § 4046 (formerly § 3065). The stay does not vacate the judgment obtained by the successful litigant.” Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 414, 525 A.2d 83 (1987). This reliance, however, ignores the concomitant and overriding principle that “[t]he finality of a judgment may . . . depend upon the outcome of the pending appeal. If the trial court’s judgment is sustained, or the appeal [is] dismissed, the final judgment ordinarily is that of the trial court. If, however, there is reversible error, the final judgment is that of the appellate court.” Id., 415. Thus, if the defendants’ appeal is successful, our judgment sustaining the validity of the amendments will be the operative judgment for purposes of the commission’s consideration of the January 25,1991 application. II The defendants’ first claim is that the trial court employed an improper scope of review of the commission’s decision that permitted the court to substitute its judgment for the broad legislative discretion of the commission, and that, when gauged under the proper scope of review, the amendments must be sustained by the court. We agree. We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations. “[T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments.” D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 450, 585 A.2d 1227 (1991). “In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial *543court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979).” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). “Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. Malafronte v. Planning & Zoning Board, [155 Conn. 205, 209, 230 A.2d 606 (1967)].” (Internal quotation marks omitted.) Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984). This legislative discretion is “wide and liberal,” and must not be disturbed by the courts “unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally.” Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). “Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 [1962]; Clark v. Town Council, 145 Conn. 476, 483, 144 A.2d 327 [1958]. The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the *544action taken is clearly contrary to law or in abuse of discretion.” Malafronte v. Planning & Zoning Board, supra, 209-10. Within these broad parameters, “[t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2, Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 [1962], and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . . .” First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). With this background in mind, we turn to the question of the weight to be given in this case to the “reasons” stated by the commission for its decision. Where a zoning agency has stated its reasons for its actions, the court should determine only “whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The zone change must be sustained if even one of the stated reasons is sufficient to support it.” (Citation omitted.) Id., 543. The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970) (where zoning agency has “formally stated” the reasons for its decisions, court should not go behind such official collective statement to search record for other reasons supporting the decision). We have also stated, however, that the failure of the zoning agency to give such reasons requires the court to “search the entire record to find a basis for the commission’s decision.” Parks v. Planning & Zoning Com*545mission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979); see First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 543.15 In this case, the “reasons” given by certain members of the commission did not amount to a formal, collective, official statement of the commission. See footnote 35, supra. It was, therefore, the obligation of the trial court, and of this court upon review of the trial court’s decision, to search the record for a basis upon which to uphold the commission’s decision. Thus, the amendments must be sustained if the record supports a determination that they (1) conform to the Hamden comprehensive plan, and (2) are reasonably related to the police powers enumerated in § 8-2. First Hartford Realty Corporation v. Plan & Zoning Commission, supra. The defendants argue that it was improper for the trial court, in discharging its obligation to review the *546record, to measure the validity of the proposed regulations solely by the potential impact of the contemplated Hamden Court mall. They also argue that the commission was entitled to await an application for a special permit for a specific project before making its ultimate factual determinations regarding traffic and other relevant matters pertaining to the mall, and that the commission was entitled to compare the potential impact of development under the existing regulations with the potential impact under the regulations as proposed. They contend that under a proper scope of review, the regulations must be upheld because the record is sufficient to establish that the amendments conform to the town’s comprehensive zoning plan, and that the commission’s decision was adequately supported by the record. The plaintiffs respond that it was proper for the trial court to focus on the potential impact of the mall, that it was illegal to postpone consideration *547of the traffic impact to the special permit stage, and that the court properly concluded that there was neither a finding nor evidence that the amendments would carry out any of the police power purposes stated in § 8-2. We agree with the defendants. The proposed amendments did not, by their terms, authorize any specific project on any specific site. They applied, not only to the intersection of Dixwell Avenue and Skiff Street, but to all fifteen Business B-2 and CDD-1 zoning districts in the town. There were numerous properties in these districts to which the amendments would apply. The application for the zoning regulation amendments did not seek approval for construction on any particular site, nor did it include site plans or traffic or drainage information. Although it is undisputed that the applicants’ motivation for proposing the amendments was to build the mall on that site, that motivation could not serve to limit the commission, in the exercise of its legislative discretion, to a consideration of the amendments as if they were site-specific and project-specific. The commission was acting legislatively, and it was entitled to consider the proposed amendments in a context that went beyond that specific site and project. Indeed, we recognize that private applicants for amendments to local zoning regulations usually are motivated by their own economic interests, and that those interests often include an intent to develop a specific site in a specific way. That motivation, however, should not limit the scope of the zoning commission’s consideration of the application and of its ultimate decision thereon more narrowly than is appropriate under § 8-2. See Caserta v. Zoning Board of Appeals, 219 Conn. 352, 361-62, 593 A.2d 118 (1991) (motive of applicant irrelevant to jurisdiction of administrative agency). The appropriate scope extends beyond the limits of the applicant’s immediate economic interest. *548We recognize that, in the exercise of its legislative discretion pursuant to § 8-2, the zoning commission in this case would have been entitled, in the exercise of that discretion, to consider the potential effects on the town of the mall contemplated by the applicants. Certainly a local legislative body may consider the effects that are likely to flow from proposed amendments to its zoning regulations, and may decide, within the proper statutory parameters, that it would be unwise policy for the town to countenance those effects. It was, however, improper for the trial court to override the commission’s decision not to focus solely on those effects at that stage of the proceedings. By confining the essentially legislative judgment of the commission to the potential effects of the proposed Hamden Court mall, to be located on one site within only one of the fifteen districts affected by the amendments, the court improperly substituted its judgment for that of the commission. This conclusion is particularly apt here, because §§ 512.3 and 572.2 of the Hamden zoning regulations require, in Business B-2 and CDD-1 districts respectively, special permits for shopping centers and stores containing more than 20,000 square feet of floor area. Moreover, § 826 of the regulations provides that, in passing on a special permit application, the commission “shall give consideration to, but not be limited by” such factors as: the health, welfare and safety of the public and the immediate neighborhood; compliance with the town’s plan of development; the location, size, nature and intensity of the project; the safety and intensity of traffic generated by the project; the scale of the proposed structure; the harmony of the site design with the general area and adjacent properties; and compliance with the zoning regulations. Furthermore, § 827 of the regulations gives the commission the power to impose “reasonable conditions and safeguards related *549to the factors set forth in Section 826.” Under these circumstances, it was permissible for the commission to view the application, not solely as site-specific and project-specific, but also as a broader matter of policy for the town as a whole and to postpone to the special permit stage the particulars of the Hamden Court mall. Our review of the record leads us to conclude that it adequately establishes that the action of the commission was in accordance with the Hamden comprehensive plan and was reasonably related to the police powers enumerated in § 8-2. One of those powers is that the regulations be “designed to lessen congestion in the streets.” In reaching its decision, the commission was entitled to compare the potential traffic to be generated by development permissible under the previous zoning regulations with the traffic to be generated by development permissible under the proposed amendments, rather than comparing the traffic to be generated by the contemplated mall with the traffic without that mall, as the trial court did. There was evidence before the commission that, under the existing regulations, the site under dispute could accommodate three separate “strip” shopping centers, with a total gross leasable area of 730,000 square feet of space. Under the amendments, the site could accommodate one structure, containing 784,000 square feet and 640,000 of gross leasable square feet. There was also evidence before the commission that three such smaller shopping centers would generate 29 percent more traffic and substantially more traffic congestion than one large, regional shopping mall. This was because three such centers would attract more people from a smaller geographical area than would a regional mall, and these people would be more likely to use local streets for access to shopping than would the people coming to a regional mall, who would be more likely to travel by Interstate 91 or the Wilbur Cross Parkway. Thus, *550under this evidence, the amendments could reasonably be viewed by the commission as being “designed to lessen congestion in the streets,” rather than to increase traffic as the plaintiffs suggest.16 There was other evidence before the commission that the amendments were reasonably related to the police powers enumerated in § 8-2. The disputed site was described by many of the Hamden residents as a blighted area.17 A town councilman and several residents testified that the amendments would permit the improvement of the area and would be of long term economic benefit to the town. The applicants presented evidence that they had nearly thirty years experience in the retail mall development industry and that modern shopping centers not only improve blighted property, but also create jobs for the town’s residents, stimulate private investment in surrounding areas, and increase tax revenues for host towns. From this evidence, the commission reasonably could have found that amending the regulations to allow for the eventual construction of modern shopping centers in Hamden “promote[d] [the] health and . . . general welfare”; General Statutes § 8-2; of the town by improving an unsightly area and by bringing long-term economic benefits to it. Furthermore, as the court concluded, the amendments conformed to the town’s comprehensive plan referred *551to in § 8-2. In the absence of a formally adopted comprehensive plan, a town’s comprehensive plan “ ‘is to be found in the scheme of the zoning regulations themselves.’ ” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 713, 535 A.2d 799 (1988), quoting Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 656, 427 A.2d 1346 (1980). “ ‘A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties.’ Summ v. Zoning Commission, [150 Conn. 79, 87, 186 A.2d 160 (1962)]. The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community.” First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 541. Section 100 of the Hamden zoning regulations provides that the regulations have among their purposes “[promoting the health, safety and general welfare of the community; lessening congestion in the streets; [and] . . . conserving the value of buildings and encouraging the most appropriate use of land throughout the town . . . .” Section 511 of those regulations states as the purpose of a Business B-2 district: “to provide a broad variety of retail stores, service establishments, offices, theaters, motels and public parking designed to serve the Town of Hamden and the region.” Section 571 states as the purpose of the CDD-1 district: “to encourage the appropriate development of land previously designated primarily for industrial use and which areas currently contain substantial vacant or under-utilized land. It is in the Town’s best interest to permit the flexibility necessary to provide for a mixed-use district such as this which would allow manufac*552turing, retail, services, offices, multi-family, and other uses which would be controlled by specific standards and requirements.” The commission could reasonably determine that it was within the town’s comprehensive plan to permit a regional shopping mall of 784,000 square feet on sites where three shopping centers of 250,000 square feet were already permitted. Before the commission were several reports and other documents submitted by the town planner that support the conclusion that the amendments conformed to the comprehensive plan. These documents noted the risks associated with permitting shopping centers under the previous regulations, and the risk of degradation of Hamden’s retail base if a mall were located elsewhere. They also noted that according to a then recent article in the New Haven Register, the General Assembly had appropriated $500,000 for an engineering study of the site in question as a potential location for a regional shopping center and the state and federal government had allocated $2,250,000 for highway improvements in the area. The commission also considered the town planner’s recommendation in 1987 that the zoning regulations be updated to “respond to the updated concept of shopping.” The recommendation further stated that a new shopping center “could be beneficial to the Town . . . if the proper regulations [were] implemented.” Finally, in a 1981 public hearing concerning the adoption of Hamden’s plan of development that was ultimately adopted and in force at the time of consideration of the defendants’ application, the commission noted that “the town of Hamden [is] lacking in a major downtown area . . . [and there is a] need for specialized retail stores Under these circumstances, the record adequately established that the action of the commission was in *553accordance with the comprehensive plan, and was reasonably related to the “normal police power purposes enumerated in § 8-2.” First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 541. Accordingly, it was improper for the trial court to set aside that action. Id., 545. The plaintiffs rely on Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 275, 545 A.2d 530 (1988), for the proposition that “ ‘[t]he power to zone . . . [is] conditioned upon an adherence to the statutory purposes to be served’ ” by § 8-2. They argue that the commission’s action was flawed because the commission “did not find that any of the ‘police powers’ would be furthered by adoption of the developers’ petition to increase [the] maximum allowable size and reduce parking and landscaping for large shopping centers.” The plaintiffs’ reliance on Builders Service Corporation and their argument are unpersuasive. Builders Service Corporation was a declaratory judgment action in which this court, relying upon the specific record produced in the trial court, invalidated certain residential minimum floor space regulations as not rationally related to any legitimate purpose of zoning contained in § 8-2. It did not purport to overrule our well established case law on the proper scope of judicial review, in a zoning appeal, of a local zoning commission’s exercise of its legislative discretion in amending its zoning regulations regarding commercial development. Furthermore, Builders Service Corporation did not purport to permit a trial court, in such an appeal, to undertake its own process of weighing the competing bodies of evidence regarding the factors delineated in § 8-2. Nor is there any requirement that, in exercising its legislative function, a zoning commission make specific *554findings regarding those statutory factors. Such a requirement would be inconsistent with the recognition that “zoning agencies ordinarily conduct their proceedings with some degree of informality”; Caserta v. Zoning Board of Appeals, supra, 362; and that “the reasons given by a zoning authority, presumably composed of lay persons, to justify its action need not be in a form to satisfy the meticulous criterion of a legal expert. DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955).” Daughters of St. Paul v. Zoning Board of Appeals, 17 Conn. App. 53, 68, 549 A.2d 1076 (1988). Although a zoning commission’s overall actions “must conform to the mandates of” § 8-2, those mandates “do not apply to every detail of the commission’s actions.” Pecora v. Zoning Commission, 145 Conn. 435, 440, 144 A.2d 48 (1958). Thus, it was not necessary for the commission’s legislative decision to satisfy each and every factor delineated by § 8-2. If the record establishes, as it did here, that the decision was reasonably related to at least one of those factors that was pertinent to the task before the cómmission, it must be sustained. First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 543. Ill The defendants also claim that the trial court improperly concluded that the plaintiffs had been deprived of their right to due process of law under article first, § 10, of the constitution of Connecticut; see footnote 8, supra; by the refusal of the commission to permit them to respond to the traffic evidence produced by the applicants at the December 8, 1988 hearing. We agree. Our due process clause, like that of the federal constitution, “does not guarantee any particular form of state procedure. Due regard must be had to the nature of the proceeding and the individual right affected by *555it.” Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968). The fact that the proceeding is legislative, rather than adjudicative, in nature plays a role in the determination of what process is due. See id. Moreover, “[cjonstitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and non-repetitive proceedings against the risk of erroneous deprivation of a private interest.” Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 486, 576 A.2d 510 (1990). In this case, the commission was acting in a legislative capacity. Its ultimate determination had town-wide and long-term effects, and was not confined to the property of any particular plaintiff. Furthermore, the commission set out in advance the schedule of proceedings that it would follow. That schedule provided for an orderly, reasonable process by which all interested parties, including the plaintiffs, had ample opportunity to present their evidence and views insofar as they pertained to the legislative task before the commission. The fact that the plaintiffs viewed that task as site-specific and project-specific, and chose accordingly to introduce evidence that called for rebuttal by the applicants, did not create a constitutional right of surrebuttal in the plaintiffs. Under these circumstances, we perceive no violation of the plaintiffs’ rights to due process of law. The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal. In this opinion the other justices concurred. The defendants in this appeal are the commission, Bernard A. Pellegrino, Homart Development Company (Homart), and Fusco/Gottlieb Associates (Fusco/Gottlieb). Pellegrino had signed the application to the commission for the amendments to the zoning regulations, and listed Homart and Fusco/Gottlieb as the applicants. Also named as defendants in the trial court were the Hamden town clerk, and the chairman and clerk of the commission, who are not involved in this appeal. We refer herein to the defendants Pellegrino, Homart and Fusco/Gottlieb as the applicants. The Appellate Court granted certification to appeal from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The plaintiffs are the named plaintiff, Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. (Protect), two other associations, and numerous individuals, all claiming to be aggrieved by the decision of the commission. Since it is undisputed that one of the individual plaintiffs, Ellen Nathanson, is aggrieved because she owns land within one of the districts of Hamden that is affected by the amendments at issue, it is not necessary to resolve whether the other plaintiffs are aggrieved; see Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 479 n.3, 576 A.2d 510 (1990); and we refer herein to all the plaintiffs as the plaintiffs. In view of these conclusions, it is unnecessary to consider the defendants’ claim that the court relied on improper evidence in reaching its conclusion. A Business B-2 district is a business district, and a CDD-1 district is a controlled development district. All five amendments were adopted by the commission. A sixth amendment to the regulations was rejected by the commission and is not involved in this appeal. General Statutes § 8-2 provides: “regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in *533another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations shall be made with reasonable consideration for their impact on agriculture. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1,1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. Such regulations may also encourage energy-efficient patterns of development, the use of solar and other renewable forms of energy, and energy conservation. The regulations may also provide for incentives for developers who use passive solar *534energy techniques, as defined in subsection (b) of section 8-25, in planning a residential subdivision development. The incentives may include, but not be limited to, cluster development, higher density development and performance standards for roads, sidewalks and underground facilities in the subdivision. Such regulations may provide for a municipal system for the creation of development rights and the permanent transfer of such development rights, which may include a system for the variance of density limits in connection with any such transfer. Such regulations may also provide for notice requirements in addition to those required by this chapter. No such regulations shall prohibit the operation of any family day care home or group day care home in a residential zone. Such regulations shall not impose conditions and requirements on manufactured homes having as their narrowest dimension twenty-two feet or more and built in accordance with federal manufactured home construction and safety standards or on lots containing such manufactured homes which are substantially different from conditions and requirements imposed on single-family dwellings and lots containing single-family dwellings. Such regulations shall not impose conditions and requirements on developments to be occupied by manufactured homes having as their narrowest dimension twenty-two feet or more and built in accordance with federal manufactured home construction and safety standards which are substantially different from conditions and requirements imposed on multifamily dwellings, lots containing multifamily dwellings, cluster developments or planned unit developments. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations.” Article first, § 10, of the constitution of Connecticut provides: “Ail courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” In view of this conclusion, the court found it unnecessary to consider a federal constitutional claim of the plaintiffs. Since the plaintiffs have not briefed or argued any such claim in this appeal, we consider it abandoned. Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 343 n.4, 586 A.2d 567 (1991). This was consistent with their position before the commission, and in this court, that, although they intended ultimately to seek a special permit for the mall if the proposed amendments were adopted, the proposed zoning regulation amendments before the commission did not apply solely to the site in question, and that the issue of traffic would be appropriately addressed by the commission upon their site-specific and project-specific special permit application. The court also concluded that the plaintiffs had not waived their due process right by not objecting when the order of proceeding had been announced by the commission and by not objecting on December 8, when the applicants presented their evidence. Because we conclude that the plaintiffs were not deprived of due process by the procedure followed by the commission, we need not address the waiver issue. During the course of this appeal, the plaintiffs moved that we dismiss the appeal as moot, and presented the record that we now consider. We denied that motion without prejudice to the right of the plaintiffs to renew it upon consideration of the merits of the appeal. General Statutes § 8-2h (a) provides: “An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application.” Any doubt about the legislative intent behind General Statutes § 8-2h (a) is dispelled by reference to its legislative history. See 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 10, 595-96, remarks of Representative William L. Wollenberg that No. 89-311 of the 1989 Public Acts, §§ 2 and 3, subsequently codified as General Statutes §§ 8-2h and 22a-42e, was intended to overrule the principle stated in McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985). We also reject the plaintiffs’ argument that the commission’s action in declining to reenact the amendments in issue here somehow legislatively reversed those amendments. Furthermore, even that purported legislative reversal did not take effect until January 30, 1991, after the filing of the special permit application on January 25, 1991. More recently, in Stankiewiez v. Zoning Board of Appeals, 211 Conn. 76, 77-78, 556 A.2d 1024 (1989), we considered upon a grant of certification the following issue: “ ‘Did the Appellate Court err in concluding that if a zoning board gives inadequate reasons for granting a variance, as opposed to giving no reasons whatever, the trial court may search the record to determine whether basis exists for the action taken?’ (Emphasis in original.) Stankiewiez v. Zoning Board of Appeals, 209 Conn. 815, 550 A.2d 1084 (1988).” We affirmed the judgment of the Appellate Court in a per curiam opinion relying on “the thoughtful and comprehensive opinion of the Appellate Court.” Id., 78. In the Appellate Court, the plaintiff had argued that, after the trial court found no basis in the record for the zoning board’s stated reason, it was obligated to sustain the appeal without further examination of the record. Stankiewiez v. Zoning Board of Appeals, 15 Conn. App. 729, 732, 546 A.2d 919 (1988). The Appellate Court rejected that argument, and held that “[i]f the board fails to give the reasons for its actions, or if its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken.” (Emphasis added.) Id. The court stated that “[i]n searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board’s decision should be upheld.” Id., 733. In this case, we need not decide whether, as the trial court suggested, Stankiewiez v. Zoning Board of Appeals, supra, 211 Conn. 76, is inconsistent with First Hartford Realty v. Plan & Zoning Commission, 165 Conn. *546533, 338 A.2d 490 (1973), and DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 271 A.2d 105 (1970), because we do not regard the statement of reasons by the majority of the commission as the kind of formal, official, collective statement of its position contemplated by the rule stated in those cases. Of the three commissioners who voted for the amendments, one stated that the amendments conformed with the town plan, and that the commission was supposed to limit itself to the amendments; the second stated that he thought the application was “viable”; and the third did not state his reasons. Nor is it appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by commission members prior to the commission’s vote. Thus, we regard this case as governed by the well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action. Furthermore, even if we were to regard this as a case in which the commission had stated its reasons, we would reach the same conclusion. One of those reasons was that the amendments conformed to the comprehensive plan of the town. Under First Hartford Realty Corporation v. Plan & Zoning Commission, supra, that reason was sufficient and, as we discuss, infra, was supported by the record, which also supported the determination that the amendments were reasonably related to the police powers enumerated in General Statutes § 8-2. In this connection, we agree with the defendants that the trial court’s rejection of this analysis, on the basis that there was no evidence that any development of three smaller shopping centers was contemplated under the previous regulation, improperly placed on the defendants the burden of proof of the legality of the commission’s decision. The defendants were not obligated to establish that any such development was intended. The plaintiffs were obligated to establish that the commission could not, in exercising its legislative discretion, undertake such an analysis. One resident described the site as “an unsightly hazard. It is an empty lot with a lot of problems.” Another resident stated that the area is “an incredible eyesore . . . [and what] [t]he developers are proposing . . . is clearly a more aesthetically pleasing site plan . . . .”

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841971/

Borden, J. The dispositive issue of this appeal is whether proposed amendments to the Hamden zoning regulations considered by the named defendant, the Hamden planning and zoning commission (commission), “concern[ed] [a] project” within the meaning of General Statutes § 8-3h1 so that the commission was required to give the plaintiff, the adjoining town of North Haven, notice of the proposed amendments pur*558suant to that statute. The defendants2 appeal3 from the judgment of the trial court sustaining the plaintiffs zoning appeal that challenged the decision of the commission. We reverse the judgment. The relevant facts are as follows. In July, 1988, Pellegrino, Homart and Fusco/Gottlieb filed an application with the commission to amend the Hamden zoning regulations for all fifteen Business B-2 and CDD-1 districts located in Hamden.4 The application sought five amendments5 that are pertinent here: (1) an increase in the permissible gross floor area of a shopping center from 250,000 square feet to 784,000 square feet; (2) the exclusion of enclosed interior walkways from the definition of gross floor area; (3) the aggregation of lots within a shopping center for certain area, yard and frontage requirements; (4) the fulfilling of nonresidential front landscaping requirements by substituting such landscaping in other locations; and (5) the exclusion of underground or covered parking spaces from the computation of the required landscaping area and the number of trees. The stated purpose of these proposed amendments was to “permit existing zoning regulations to be more compatible with the development of a Shopping Center.” *559The application, however, did not seek approval for any particular mall or refer to any particular site, nor did it include any site plans or traffic or drainage information. The application did not seek a change of zone with respect to any specific parcel or parcels of property. The Hamden zoning regulations require a special permit for the construction of a mall or shopping center. Hamden Zoning Regs. § 512.3. The commission referred the application to its planning section, which, after a meeting, recommended approval of the five, amendments. It is undisputed, however, that the commission was aware that the applicants sought the amendments to enable them to develop a commercial shopping mall, known as Hamden Court, on a thirty-three acre site located at the corner of Dixwell Avenue and Skiff Street (site). The town planner, who acted as the clerk of the commission, knew that these amendments were necessary before the applicants could obtain a special permit for the mall they intended to propose later. At the meeting of the planning section referred to above, Pellegrino had stated that the owners wanted to demolish the existing buildings on the site and construct Ham-den Court. In a letter dated September 29,1988, to the residents of Hamden, Homart had stated, inter alia, that it was “proposing to build Hamden Court Shopping Center at the intersection of Dixwell Avenue and Skiff Street,” and that “[i]n order to develop Hamden Court as proposed by Homart Development Co. and Fusco/Gottlieb Associates, zoning ordinance changes are essential.” Furthermore, in 1987, Homart had filed an application for certain other amendments to the zoning regulations in order to permit it to build a larger mall on the site. The commission had denied that application. Following the receipt of the recommendation of the planning section, the commission held public hearings *560regarding the application on November 10, December 1, and December 8,1988. At no time either before the hearings or during the proceedings did the commission provide written notice of this application to the town clerk of North Haven. At a special meeting of the commission on January 5,1989, the commission voted three to two to adopt the five amendments to the zoning regulations. The plaintiff appealed to the Superior Court.6 The court preliminarily found that the plaintiff was classically aggrieved and, therefore, had standing to raise noncompliance with § 8-3h as an issue. The court next concluded that § 8-3h applied in this case because the proposed amendments “concerned a project,” namely, the Hamden Court mall, and because a significant portion of the traffic to and from the mall would use the plaintiffs streets. Therefore, the court concluded, the plaintiff was entitled to notice pursuant to § 8-3h. Finally, the court concluded that the failure of the commission to give such notice to the plaintiff deprived the commission of subject matter jurisdiction and, therefore, rendered the commission’s action void. The defendants claim that: (1) the proposed amendments did not concern a project within the meaning of § 8-3h and, therefore, the commission was not required to give notice to the plaintiff; (2) § 8-3h does not apply in this case because the traffic created by the Hamden Court mall will not use the plaintiff’s streets to enter and exit the site; (3) the court relied on evidence outside the record; (4) the court erroneously placed the burden of proof on the defendants; (5) the plaintiff had actual notice of the hearing and, therefore, waived its right to statutory notice; (6) § 8-3h notice is not a prerequisite for subject matter jurisdiction;*5617 and (7) the plaintiff is not aggrieved by the proposed amendments and, therefore, does not have standing to raise noncompliance with § 8-3h. We agree with the defendants’ first claim and, therefore, reverse the judgment.8 The defendants’ first claim is that the trial court improperly interpreted § 8-3h when it concluded that the statute applied to the proposed amendments that were before the commission. The defendants argue that § 8-3h should be interpreted as requiring notice to be given to an adjoining municipality only when an application, petition, request or plan proposes on its face a specific project, rather than when it proposes general amendments to zoning regulations that are not confined to one specific site or project. The plaintiff argues, however, that § 8-3h does apply to general zoning amendments and that, in this case, the proposed amendments concerned a project within the meaning of § 8-3h. We agree with the defendants. Construction of a statute is a question of law for the court. Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). “ ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to *562implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) ....’” Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 589, 522 A.2d 771 (1987). We first examine the language of § 8-3h. The statute requires, in pertinent part, that a zoning commission “notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which . . . (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site . . . (Emphasis added.) Section 8-3h specifically refers to applications concerning a “project.” Since our zoning statutes do not define the word “project,” we must give the word its plain and ordinary meaning. Bolt Technology Corporation v. Commissioner of Revenue Services, 213 Conn. 220, 228, 567 A.2d 371 (1989); Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). When a statute does not define a term, “it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Bolt Technology Corporation v. Commissioner of Revenue Services, supra. Webster’s Third New International Dictionary defines the word “project” as a “specific plan or design.” Other sections of the General Statutes similarly define “project” in relation to a particular building, structure or facility.9 The proposed amendments *563in this case are, on their face, project-neutral. They do not apply to one specific site. Instead, they apply to all fifteen Business B-2 and CDD-1 districts in Ham-den. Further, the proposed amendments, on their face, do not contain any reference to a specific plan or design. The application contained no site plan, traffic studies or blueprints for any particular site or structure, and only proposed certain general dimensional amendments for certain zoning districts. In light of the plain meaning of the statute, we conclude that the legislature intended § 8-3h notice to be given only when the application, petition, request or plan submitted to the commission relates, on its face, to a specific project, and did not intend such notice to apply to a case like this, in which the application on its face proposes zoning regulation amendments that are of general applicability.10 This conclusion is bolstered by an examination of the legislative history of § 8-3h. Section 8-3h was enacted *564after a dispute between the town of West Hartford and the town of Bloomfield over a specific development project. Without giving notice to the adjoining town of West Hartford, Bloomfield's planning and zoning commission had approved a site-specific subdivision project, known as the Cordon Drive development, that had a significant drainage impact on the adjoining town of West Hartford.11 See 30 H.R. Proc., Pt. 16, 1987 Sess., p. 6026, remarks of Representative Richard Blumenthal. Thus, the legislative origin of § 8-3h was a dispute over a specific project, not a proposal for amendments to municipal regulations of general applicability. Furthermore, every example given by the members of the General Assembly who discussed the application of § 8-3h pertained to a specific construction project and not to general amendments to zoning regulations. For example, Representative Miles S. Rapoport noted that “[t]he bill simply requires that in a development project that is close enough to a neighboring town . . . the neighboring town, will be notified . . . ."(Emphasis added.) 30 H.R. Proc., Pt. 16, 1987 Sess., p. 6031, remarks of Representative Miles S. Rapoport. Senator Kevin B. Sullivan remarked that § 8-3h would apply when there are “impacts . . . from a commercial business type of development or from a very large subdivision . . . .” (Emphasis added.) Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 3, 1987 Sess., p. 689, remarks of Senator Kevin B. Sul*565livan. Senator Sullivan also discussed the applicability of § 8-3h to a situation in which “[tjhree office buildings were to be added to the West Farms Mall.” Id., p. 694. Representative Naomi K. Cohen discussed a number of specific projects that may trigger § 8-3h, stating that: “It is very interesting . . . and by no means is this a complete list . . . but, there is a project called Covers Commons in East Windsor and Enfield which would have been [ajffected by this language. In Southington and Cheshire, there is the Appleberry Mall. . . . [I]n Marion and Wallingford, there is the Midway Business Park ... in Orange and Derby, there is a shopping center.” Id., p. 701, remarks of Representative Naomi K. Cohen. None of these comments discussed the applicability of § 8-3h in the context of general zoning amendments. They suggest, on the contrary, that § 8-3h notice is required only when an actual development proposal is before a zoning commission. The plaintiff contends, however, that § 8-3h should be given a broader interpretation. It argues that general amendments to zoning regulations may, in some cases, concern a project and that in this case they do because the proposed amendments were designed for the construction of the Hamden Court mall to be located on a specific site. In support of its position, the plaintiff notes that the legislature included the use of a “petition,” as well as an “application,” “request” or “plan” as a medium for triggering the notice requirement of § 8-3h. See footnote 1, supra. The plaintiff argues that the legislature uses the word “petition” when referring to proposals to amend zoning regulations, but uses the word “application” when referring to proposals for special permits, special exceptions and variances. Therefore, the plaintiff claims, by specifically including the word “petition” in § 8-3h, the legislature intended that proposed general amendments to zoning regulations would be covered by § 8-3h where those *566amendments are in fact aimed at or motivated by a specific project. We are not persuaded by this argument. Statutory words should be interpreted in the context in which they appear. Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988). The use of the word “petition,” when viewed in the context of the entire section, does not support the conclusion that § 8-3h was meant to apply to an application, petition, request or plan for general amendments to zoning regulations that is not, on its face, confined to a specific project. Section 8-3h requires notice when an “application, petition, request or plan concernjs] any project on any site . . . .” (Emphasis added.) The word “project” is used in the same subsection with the word “petition.” A project is ordinarily proposed by a site-specific or structure-specific request, such as a request for a special permit, variance or special exception, and not by general zoning amendments.12 When such a proposal is considered, a commission ordinarily would have access to the kind of information on which § 8-3h focuses. For example, a special permit application in Hamden must include a map of the property, signed by an engineer or architect, illustrating the existing and proposed developments on the property. The map must include the location of all existing and proposed buildings and the location of all entrances to and exits from the property. See Hamden Zoning Regs. §§ 820 through 843.8.13 *567Furthermore, contrary to the plaintiffs position, when referring to proposals to amend zoning regulations the legislature does not use the word “petition” exclusively. It is true that General Statutes § 8-3 (c)14 refers to changing a zoning regulation by means of a petition. Section 8-3 (d), however, provides that if notice of that zoning change is not published by the commission, the “applicant or petitioner” may provide such notice. (Emphasis added.)15 Because, in the context of zoning regulations, the legislature has used the words “petition” and “application” interchangeably, we conclude that it did so in enacting § 8-3h.16 Furthermore, § 8-3h requires a commission, within seven days of receipt of an application, petition, request or plan concerning a project, to make certain detailed factual determinations regarding the specific location *568of a project, and regarding the traffic, drainage and water runoff resulting therefrom. When a commission receives a proposal for general amendments to the zoning regulations that, on its face, is not confined to anyone project, those factual determinations would be very difficult to make, especially within the required seven day period, because such a proposal would not ordinarily include site specific information. The plaintiffs interpretation of § 8-3h would require the commission to look behind the face of the application and inquire into the motives of the applicants in submitting the proposed zoning amendments. We recognize that in this case the applicants, like most private applicants, were motivated by their own economic interests, namely, to build the Hamden Court mall if the proposed amendments were adopted. We do not believe, however, that § 8-3h requires a commission to look behind facially project-neutral proposed zoning regulation amendments in order to discern the specific facts regarding the underlying project that motivated the applicants. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 547, 600 A.2d 757 (1991) (motivation of applicant should not limit scope of zoning commission’s consideration of application more narrowly than appropriate under General Statutes § 8-2); Caserta v. Zoning Board of Appeals, 219 Conn. 352, 361-62, 593 A.2d 118 (1991) (motive of applicant irrelevant to jurisdiction of administrative agency). The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiff’s appeal. In this opinion the other justices concurred. General Statutes § 8-3h provides: “notice to adjoining municipalities. The zoning commission of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which: (1) Any portion of the property affected by a decision of such zoning commission is within five hundred feet of the boundary of the adjoining municipality; (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site; (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the adjoining municipality; or (4) water runoff from the improved site will impact streets or other municipal or private property within the adjoining municipality. Such notice shall be made by certified mail, return receipt requested, and shall be mailed within seven days of the date of receipt of the application, petition, request or plan. No hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section. Such adjoining municipality may, through a representative, appear and be heard at any hearing on any such application, petition, request or plan.” (Emphasis added.) The trial court also concluded that the defendants had not complied with General Statutes § 8-26f. The language of § 8-26f is identical to § 8-3h except that § 8-26f applies to a town’s planning commission. See General Statutes § 8-26f. Therefore, our holding in this case also applies to § 8-26f. The defendants in this appeal are the commission, Bernard A. Pellegrino, Homart Development Company (Homart), and Fusco/Gottlieb Associates (Fusco/Gottlieb). Homart and Fusco/Gottlieb filed an application with the commission for the amendments to the zoning regulations. Also named as defendants in the trial court were the Hamden town clerk, and the chairman and clerk of the commission, who are not involved in this appeal. We refer herein to the defendants Pellegrino, Homart and Fusco/Gottlieb as the applicants. The Appellate Court granted certification to appeal from the judgment of the trial court and we transferred the appeal to this court pursuant to Practice Book § 4023. A Business B-2 district is a business district, and a CDD-1 district is a controlled development district. Hamden Zoning Regs. § 301. All five amendments were adopted by the commission. A sixth amendment to the regulations was rejected by the commission and is not involved in this appeal. This case was tried and argued on appeal simultaneously with Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991). We have recently held that the notice required by General Statutes § 8-3h is not a prerequisite for a zoning commission’s subject matter jurisdiction. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). Since we conclude that the proposed amendments did not concern a project within the meaning of General Statutes § 8-3h, we need not consider the defendants’ other claims. See, e.g., General Statutes § 8-39 (i)(“ ‘Housing project’ means any work or undertaking ... (2) to provide decent, safe and sanitary urban or rural dwellings . . . .”) (emphasis added); General Statutes § 8-119e (b) (“ ‘Congregate housing project’ means the planning of the buildings and improvements ... the construction ... of the improvements or all other work *563performed in connection with a congregate housing program.”) (emphasis added); General Statutes § 10-282 (c) (“ ‘School building project’ . . . means (1) the construction . . . of a building . . . and (4) the lease of a facility . . . .”) (emphasis added); General Statutes § 10-289 (“ ‘school building project’ means (1) the construction . . . of a building to be used for public school purposes . . . .”) (emphasis added); General Statutes § 13a-175p (3) (“ ‘Eligible bridge project’ means the removal, replacement, reconstruction, rehabilitation or improvement of an eligible bridge . . . .”) (emphasis added). The plaintiff claims that a discerning observer would have understood that the application concerned a project because the applicants responded “Yes” to the question, on the application form, “Any previous petition for the same location?” This response, however, did not necessarily refer to the prior special permit application to build the Hamden Court mall, but referred to the applicant’s prior proposal in 1987 to amend the Business B-2 and CDD-1 zones in Hamden. Therefore, this response was correct because the “same location” was the Business B-2 and CDD-1 zones and not the site of the contemplated Hamden Court mall. Furthermore, under the heading, “Property Owners of Subject Change,” on the application, was the legend, “N/A.” Also, the stated purpose of the application was: “To permit existing zoning regulations to be more compatible with the development of a Shopping Center.” Thus, we reject the plaintiff’s argument that the application on its face referred to a specific project. Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 3, 1987 Sess., p. 721, remarks of the mayor of West Hartford, Christopher F. Droney. Although we ordinarily review a statute’s legislative history in light of discussions conducted on the floor of the Senate or House of Representatives, we have also considered discussions before joint standing committees when discerning legislative intent. See Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 695 n.10, 595 A.2d 313 (1991); State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987). We need not decide at this time whether a request for a zone change regarding a specific site or sites would be covered by General Statutes § 8-3h. The plaintiff claims that at the special permit stage the commission would have no discretion to deny the special permit application if it conforms to the Hamden regulations. This claim has no merit under the circumstances of this case. Sections 512.3 and 572.2 of the Hamden zoning regulations require, in Business B-2 and CDD-1 districts respectively, special permits for shopping centers and stores containing more than 20,000 square feet of floor area. Moreover, § 826 of the regulations provides that, in passing on a special permit application, the commission “shall give con*567sideration to, but not be limited by” such factors as: the health, welfare and safety of the public and the immediate neighborhood; compliance with the town’s plan of development; the location, size, nature and intensity of the project; the safety and intensity of traffic generated by the project; the scale of the proposed structure; the harmony of the site design with the general area and adjacent properties; and compliance with the zoning regulations. Furthermore, § 827 gives the commission the power to impose “reasonable conditions and safeguards related to the factors set forth in Section 826.” Under these circumstances, the commission has wide discretion to deny a special permit application. General Statutes § 8-3 (c) states in pertinent part: “All petitions requesting a change in the regulations . . . shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the period of time permitted under section 8-7d.” (Emphasis added.) General Statutes § 8-3 (d) states in pertinent part: “Zoning regulations ... or changes therein shall become effective at such time as is fixed by the zoning commission, provided . . . notice of the decision of such commission shall have been published in a newspaper .... In any case in which such notice is not published . . . any applicant or petitioner may provide for the publication of such notice within ten days thereafter.” (Emphasis added.) Indeed, the form supplied to the applicant by the Hamden zoning commission for the proposed amendment in this case uses both the term “application” and the term “petition.”

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841972/

Peters, C. J. The sole question before us in this certified appeal is whether the provision of the statute of *570frauds, General Statutes § 52-550 (a) (5),1 requiring a writing for an “agreement that is not to be performed within one year from the making thereof,” renders unenforceable an oral contract that fails to specify explicitly the time for performance when performance of that contract within one year of its making is exceedingly unlikely. This case comes to this court upon our grant of an application for certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199a.2 C. R. Klewin, Inc. v. Flagship Properties, Inc., 936 F.2d 684 (2d Cir. 1991). The Second Circuit has provided us with the following facts. See id., 685-86. The plaintiff, C. R. Klewin, Inc. (Klewin), is a Connecticut based corporation that provides general construction contracting and construction management services. The defendants, Flagship Properties and DKM Properties (collectively Flagship), are engaged in the business of real estate development; although located outside Connecticut, they do business together in Connecticut under the trade name Conn-Tech. *571Flagship became the developer of a major project (ConnTech Project) in Mansfield, near the University of Connecticut’s main campus. The master plan for the project included the construction of twenty industrial buildings, a 280 room hotel and convention center, and housing for 592 graduate students and professors. The estimated total cost of the project was $120 million. In March, 1986, Flagship representatives held a dinner meeting with Klewin representatives. Flagship was considering whether to engage Klewin to serve as construction manager on the ConnTech Project. During the discussions, Klewin advised that its fee would be 4 percent of the cost of construction plus 4 percent for its overhead and profit. This fee structure was, however, subject to change depending on when different phases of the project were to be constructed. The meeting ended with Flagship’s representative shaking hands with Klewin’s agent and saying, “You’ve got the job. We’ve got a deal.” No other specific terms or conditions were conclusively established at trial. The parties publicized the fact that an agreement had been reached and held a press conference, which was videotaped. Additionally, they ceremoniously signed, without filling in any of the blanks, an American Institute of Architects Standard Form of Agreement between Owner and Construction Manager. Construction began May 4,1987, on the first phase of the ConnTech Project, called Celeron Square. The parties entered into a written agreement regarding the construction of this one part of the project. Construction was fully completed by the middle of October, 1987. By that time, because Flagship had become dissatisfied with Klewin’s work, it began negotiating with other contractors for the job as construction manager on the next stage of the ConnTech Project. In March, 1988, *572Flagship contracted with another contractor to perform the sitework for Celeron Square II, the next phase of the project. After having been replaced as construction manager, Klewin filed suit in the United States District Court for the District of Connecticut, claiming (1) breach of an oral contract to perform as construction manager on all phases of the project; (2) quantum meruit recovery for services performed in anticipation of future stages of the project; and (3) detrimental reliance on Flagship’s promise to pay for preconstruction services. Flagship moved for summary judgment, claiming, inter alia, that enforcement of the alleged oral contract was barred by the statute of frauds. The district court granted summary judgment, reasoning that (1) “the contract was not of an indefinite duration or open-ended” because full performance would take place when all phases of the ConnTech Project were completed, and (2) the contract “as a matter of law” could not possibly have been performed within one year. In drawing this second conclusion, the court focused on the sheer scope of the project and Klewin’s own admission that the entire project was intended to be constructed in three to ten years. Klewin appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals held that “the issues presented involve substantial legal questions for which there is no clear precedent under the decisions of the Connecticut Supreme Court”; id., 686; and certified to this court the following questions:3 “A. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), an oral contract that fails to specify explicitly the time for per*573formance is a contract of ‘indefinite duration,’ as that term has been used in the applicable Connecticut precedent, and therefore outside of the Statute’s proscriptions? “B. Whether an oral contract is unenforceable when the method of performance called for by the contract contemplates performance to be completed over a period of time that exceeds one year, yet the contract itself does not explicitly negate the possibility of performance within one year?”4 Id., 685. We answer “yes” to the first question, and “no” to the second. I The Connecticut statute of frauds has its origins in a 1677 English statute entitled “An Act for the preven*574tion of Fraud and Perjuries.” See 6 W. Holdsworth, A History of English Law (1927) pp. 379-84. The statute appears to have been enacted in response to developments in the common law arising out of the advent of the writ of assumpsit, which changed the general rule precluding enforcement of oral promises in the King’s courts. Thereafter, perjury and the subornation of perjury became a widespread and serious problem. Furthermore, because juries at that time decided cases on their own personal knowledge of the facts, rather than on the evidence introduced at trial, a requirement, in specified transactions, of “some memorandum or note ... in writing, and signed by the party to be charged” placed a limitation on the uncontrolled discretion of the jury. See 2 A. Corbin, Contracts (1950) § 275, pp. 2-3; 6 W. Holdsworth, supra, pp. 387-89; An Act for Prevention of Fraud and Perjuries, 29 Car. 2, c. 3, § 4 (1677), quoted in J. Perillo, “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form,” 43 Fordham L. Rev. 39, 39 n.2 (1974). Although the British Parliament repealed most provisions of the statute, including the one-year provision, in 1954; see The Law Reform (Enforcement of Contracts) Act, 2 & 3 Eliz. 2, c. 34 (1954); the statute nonetheless remains the law virtually everywhere in the United States.5 Modern scholarly commentary has found much to criticize about the continued viability of the statute of frauds. The statute has been found wanting because it serves none of its purported functions very well; see J. Perillo, supra; and because it permits or compels economically wasteful behavior; seeM. Braunstein, “Remedy, Reason, and the Statute of Frauds: A Critical Economic Analysis,” 1989 Utah L. Rev. 383. It is, however, the one-year provision that is at issue in this case *575that has caused the greatest puzzlement among commentators. As Professor Farnsworth observes, “of all the provisions of the statute, it is the most difficult to rationalize. “If the one-year provision is based on the tendency of memory to fail and of evidence to go stale with the passage of time, it is ill-contrived because the one-year period does not run from the making of the contract to the proof of the making, but from the making of the contract to the completion of performance. If an oral contract that cannot be performed within a year is broken the day after its making, the provision applies though the terms of the contract are fresh in the minds of the parties. But if an oral contract that can be performed within a year is broken and suit is not brought until nearly six years (the usual statute of limitations for contract actions) after the breach, the provision does not apply, even though the terms of the contract are no longer fresh in the minds of the parties. “If the one-year provision is an attempt to separate significant contracts of long duration, for which writings should be required, from less significant contracts of short duration, for which writings are unnecessary, it is equally ill-contrived because the one-year period does not run from the commencement of performance to the completion of performance, but from the making of the contract to the completion of performance. If an oral contract to work for one day, 13 months from now, is broken, the provision applies, even though the duration of performance is only one day. But if an oral contract to work for a year beginning today is broken, the provision does not apply, even though the duration of performance is a full year.” 2 E. Farnsworth, Contracts (2d Ed. 1990) § 6.4, pp. 110-11; see also Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir. 1986); D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 454, 472 N.E.2d 992, *576483 N.Y.S.2d 164 (1984); 1 Restatement (Second), Contracts (1979) § 130, comment a; J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 19-18, p. 807.6 Historians have had difficulty accounting for the original inclusion of the one-year provision.7 Some years after the statute’s enactment, one English judge stated that “the design of the statute was, not to trust to the memory of witnesses for a longer time than one year.” Smith v. Westall, 1 Ld. Raym. 316, 317, 91 Eng. Rep. 1106, 1107 (1697). That explanation is, however, unpersuasive, since, as Farnsworth notes, the language of the statute is ill suited to this purpose. One eminent historian suggested that because such contracts are continuing contracts, it might be very difficult to give evidence of their formation, inasmuch as the rules of evidence of that time prohibited testimony by the parties to an action or any person who had an interest in the litigation. 6 W. Holdsworth, supra, p. 392. That argument, however, proves too much, since it would apply equally to all oral contracts regardless of the duration of their performance. The most extensive recent study of the history of English contract law offers plausible explanations for all of the other provisions, but acknowledges that this one is “curious.” A. Simpson, A History of the Common Law of Contract (1975) p. 612. More recently, it has been suggested that the provision “may have been intended to prevent oral perjury in actions of assumpsit against customers who had *577forgotten the details of their purchases.” P. Hamburger, “The Conveyancing Purposes of the Statute of Frauds,” 27 Am. J. Leg. Hist. 354, 376 n.85 (1983). In any case, the one-year provision no longer seems to serve any purpose very well, and today its only remaining effect is arbitrarily to forestall the adjudication of possibly meritorious claims. For this reason, the courts have for many years looked on the provision with disfavor, and have sought constructions that limited its application. See, e.g., Landes Construction Co. v. Royal Bank of Canada, 833 F.2d 1365, 1370 (9th Cir. 1987) (noting policy of California courts “of restricting the application of the statute to those situations precisely covered by its language”); Cunningham v. Healthco, Inc., 824 F.2d 1448, 1455 (5th Cir. 1987) (one-year provision does not apply if the contract “conceivably” can be performed within one year); Hodge v. Evans Financial Corporation, 823 F.2d 559, 561 (D.C. Cir. 1987) (statute of frauds “has long been construed narrowly and literally”); Goldstick v. ICM Realty, supra, 464 (“Courts tend to take the concept of ‘capable of full performance’ quite literally . . . because they find the one-year limitation irksome.”). II Our case law in Connecticut, like that in other jurisdictions, has taken a narrow view of the one-year provision of the statute of frauds now codified as § 52-550 (a) (5). In Russell v. Slade, 12 Conn. 455, 460 (1838), this court held that “it has been repeatedly adjudged, that unless it appear from the agreement itself, that it is not to be performed within a year, the statute does not apply. . . . The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency. It does not extend to cases *578where the thing only may be performed within the year.” (Emphases in original; citation and internal quotation marks omitted.) A few years later, in Clark v. Pendleton, 20 Conn. 495, 508 (1850), the statute was held not to apply to a contract that was to be performed following a voyage that both parties expected to take one and one-half years. “It is not alleged in any form, that it was made with reference to, or that its performance was to depend on the termination of a voyage which would necessarily occupy that time. It is only alleged, that it was expected by the parties, that the defendant would be absent for the period of eighteen months. But this expectation, which was only an opinion or belief of the parties, and the mental result of their private thoughts, constituted no part of the agreement itself; nor was it connected with it, so as to explain or give a construction to it, although it naturally would, and probably did, form one of the motives which induced them to make the agreement. The thing thus anticipated did not enter into the contract, as one of its terms; and according to it, as stated, the defendant, whenever he should have returned, after having embarked on the voyage, whether before or after the time during which it was thus expected to continue, would be under an obligation to perform his contract with the plaintiff. As it does not therefore appear, by its terms, as stated, that it was not to be performed within a year from the time when it was made, it is not within the statute.” (Emphases added.) In this century, in Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924), this court held that “ ‘[a] contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.’ ” (Emphasis added.) In Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A.2d 698 (1951), we delineated the line that *579separates contracts that are within the one-year provision from those that are excluded from it. “Where the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute. . . . If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute.” (Emphases added; citations omitted.) More recently, in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), we stated that “ ‘[u]nder the prevailing interpretation, the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.’ (Emphasis added.) 1 Restatement (Second), Contracts, [§ 130, comment a] . . . .” In light of this unbroken line of authority, the legislature’s decision repeatedly to reenact the provision in language virtually identical to that of the 1677 statute suggests legislative approval of the restrictive interpretation that this court has given to the one-year provision. “[T]he action of the General Assembly in re-enacting the statute, including the clause in question ... is presumed to have been done in the light of those decisions.” Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959); see also Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439-40, 525 A.2d 91 (1987). Ill Bearing this history in mind, we turn to the questions certified to us by the federal court. Our case law makes no distinction, with respect to exclusion from *580the statute of frauds, between contracts of uncertain or indefinite duration and contracts that contain no express terms defining the time for performance. The two certified questions therefore raise only one substantive issue. That issue can be framed as follows: in the exclusion from the statute of frauds of all contracts except those “whose performance cannot possibly be completed within a year”; (emphasis omitted) Finley v. Aetna Life & Casualty Co., supra, 197; what meaning should be attributed to the word “possibly”? One construction of “possibly” would encompass only contracts whose completion within a year would be inconsistent with the express terms of the contract. An alternate construction would include as well contracts such as the one involved in this case, in which, while no time period is expressly specified, it is (as the district court found) realistically impossible for performance to be completed within a year. We now hold that the former and not the latter is the correct interpretation. “The critical test . . . is whether‘by its terms’ the agreement is not to be performed within a year,” so that the statute will not apply where “the alleged agreement contain[s] [no] provision which directly or indirectly regulated the time for performance.” Freedman v. Chemical Construction Corporation, 43 N.Y.2d 260, 265, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977). “It is the law of this state, as it is elsewhere, that a contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.” (Emphasis added.) Burkle v. Superflow Mfg. Co., supra, 492. Flagship contends, to the contrary, that the possibility to which this court referred in Burkle must be a reasonable possibility rather than a theoretical possibility. It is true that in Burkle this court rejected the argument that “since all the members of a partnership [that was a party to the contract] may possibly die *581within a year, the contract is not within the statute.” We noted that “[n]o case has come to our attention where the rule that the possibility of death within a year removes a contract from the statute has been extended to apply to the possibility of the death of more than one individual.” Id., 494. In Burkle, however, we merely refused to extend further yet another of the rules by which the effect of the provision has been limited. Burkle did not purport to change the well established rule of narrow construction of the underlying one-year provision. Most other jurisdictions follow a similar rule requiring an express contractual provision specifying that performance will extend for more than one year. Only “[a] few jurisdictions, contrary to the great weight of authority . . . hold that the intention of the parties may put their oral agreement within the operation of the Statute.” 3 S. Williston, Contracts (3d Ed. W. Jaeger 1960) § 495, pp. 584-85. In “the leading case on this section of the Statute”; id., p. 578; the Supreme Court of the United States undertook an extensive survey of the case law up to that time and concluded that “[i]t. . . appears to have been the settled construction of this clause of the statute in England, before the Declaration of Independence, that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend, beyond the year. The several States of the Union, in reenacting this provision of the statute of frauds in its original words, must be taken to have adopted the known and settled construction which it had received by judicial decisions in England.” (Emphasis added.) Warner v. Texas & Pacific R. Co., 164 U.S. *582418 422-23, 17 S. Ct. 147, 41 L. Ed. 495 (1896). The agreement at issue was one in which a lumbermill agreed to provide grading and ties and the railway agreed to construct rails and a switch and maintain the switch as long as the lumbermill needed it for shipping purposes. Although the land adjoining the lumbermill contained enough lumber to run a mill for thirty years, and the lumbermill used the switch for thirteen years, the court held that the contract was not within the statute. “The parties may well have expected that the contract would continue in force for more than one year; it may have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year.” (Emphasis added.) Id., 434; see also Walker v. Johnson, 96 U.S. 424, 427, 24 L. Ed. 834 (1877); McPherson v. Cox, 96 U.S. 404, 416-17, 24 L. Ed. 746 (1877). Because the one-year provision “is an anachronism in modern life . . . we are not disposed to expand its destructive force.” Farmer v. Arabian American Oil Co., 277 F.2d 46, 51 (2d Cir. 1960). When a contract contains no express terms about the time for performance, no sound reason of policy commends judicial pursuit of a collateral inquiry into whether, at the time of the making of the contract, it was realistically possible that performance of the contract would be completed within a year.8 Such a collateral inquiry would not only expand the “destructive force” of the statute *583by extending it to contracts not plainly within its terms, but would also inevitably waste judicial resources on the resolution of an issue that has nothing to do with the merits of the case or the attainment of a just outcome.9 See 2 A. Corbin, supra, § 275, p. 14 (the statute “has been in part the cause of an immense amount of litigation as to whether a promise is within the statute or can by any remote possibility be taken out of it. This latter fact is fully evidenced by the space necessary to be devoted to the subject in this volume and by the vast number of cases to be cited”). We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like *584a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take. The first certified question is answered “yes.” The second certified question is answered “no.” No costs will be taxed in this court to either party. In this opinion the other justices concurred. General Statutes § 52-550 provides in pertinent part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (5) upon any agreement that is not to be performed within one year from the making thereof . . . .” General Statutes § 51-199a provides in pertinent part: “(b) The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state. “(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause. “(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.” These certified questions do not involve the question, which these facts raise, of whether the alleged oral contract was too vague to be enforceable. See Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987). Flagship objected to our acceptance of the first question as framed by the Second Circuit, arguing that Connecticut case law does not require that all contracts be for a definite duration in order for the statute of frauds to apply. It cited Burkle v. Superflow Mfg. Co., 137 Conn. 488, 493, 78 A.2d 698 (1951), in which we said that the contract was “for an indefinite and indeterminable time in the future,” yet held it within the statute of frauds. Flagship proposed that the following two questions be substituted for the first: “1. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), an oral contract that fails to specify explicitly the time for performance but would end upon completion of the Project, is a contract of ‘indefinite duration’? “2. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), all oral contracts of indefinite duration are outside of the Statute’s proscriptions or only those oral contracts of indefinite duration for personal services?” We overruled the objection and accepted the questions as framed by the Second Circuit. It will, however, be clear from our opinion that the answer to the first of the questions proposed by Flagship is “yes.” The answer to the second of these questions is that all oral contracts of indefinite duration, whether or not for personal services, are excluded. In Burkle, the defendant agreed to supply plumbing equipment to the plaintiffs and to deliver within thirty days all orders procured by them. Such a contract, we held, “ ‘is presumably intended to be permanent and perpetual in the obligation it imposes.’ ” Id., 496. Notwithstanding the opinion’s use of the word “indefinite,” a perpetual contract is not the same as an indefinite contract. “The one-year provision has been omitted in North Carolina and Pennsylvania.” 2 E. Farnsworth, Contracts (2d Ed. 1990) § 6.4, p. 110 n.5. Even the statute’s most notable defender chose not to mention the one-year provision when he contended that the statute is “in essence better adapted to our needs than when it was first passed.” K. Llewellyn, “What Price Contract? An Essay in Perspective,” 40 Yale L.J. 704, 747 (1931). The language of the original English statute was nearly identical to that of the provision we are now considering, including “any agreement that is not to be performed within the space of one year from the making thereof.” An Act for Prevention of Frauds and Perjuries, 29 Car. 2, c. 3, § 4 (5) (1677), quoted in J. Perillo, “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form,” 43 Fordham L. Rev. 39, 39 n.2 (1974). In this case, one of the issues before the Second Circuit was whether there was a genuine issue of material fact as to whether the oral agreement could have been performed within a year. We recognize, as Flagship observed at oral argument, that comment a to § 130 ol the Restatement (Second) of Contracts (1979), upon which we relied in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), includes an illustration that is inconsistent with the result that we are reaching today. Contrary to illustration 3 (which is drawn from Warner v. Texas & Pacific R. Co., 164 U.S. 418, 17 S. Ct. 147, 41 L. Ed. 495 (1896), the facts of which are summarized in the text above), which supports our bolding, illustration 4 states: “A orally promises B to sell him five crops of potatoes to be grown on a specified farm in Minnesota, and B promises to pay a stated price on delivery. The contract is within the Statute of Frauds. It is impossible in Minnesota for five crops of potatoes to mature in one year.” The illustration is adapted from illustration 11 to § 198 of the Restatement (First) of Contracts (1928), which does not include case citations. The Restatement (Second) supports the illustration by citing Adams v. Big Three Industries, Inc., 549 S.W.2d 411 (Tex. Civ. App. 1977). The Adams court held that “when no time for performance has been specified, a ‘reasonable time’ will be implied, and what is a reasonable time must be determined from all the circumstances, the situation of the parties, and the subject matter of the contract. . . . Where an agreement, by its terms or the nature of the performance required, cannot be performed within one year, it necessarily comes within the purview of the statute. . . . If, as here, the contract is not a written one and depends upon disputed facts, the determination of what constitutes a reasonable time is a question of fact.” (Citations omitted.) Id., 414-15. In our view, illustration 3 more closely represents the law of this state.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841973/

Shea, J. The plaintiffs1 have appealed from the action of the defendant zoning commission of the city of Waterbury in amending several sections of the Water*586bury zoning ordinance, the effect of which is to prohibit multiple family dwellings in certain commercial zones. The trial court upheld the commission’s decision and accordingly dismissed the appeal. After the Appellate Court had granted the plaintiffs’ petition for certification for review pursuant to General Statutes § 8-8 (o), we transferred the appeal to this court pursuant to Practice Book § 4023. The principal issue raised by the plaintiffs is whether the amendments adopted by the zoning commission are invalid because of the involvement of the mayor of Waterbury, Joseph Santopietro, in the amendment process. The plaintiffs also attack the amendments substantively as violating the standards for zoning regulations established by General Statutes § 8-2. We affirm the judgment dismissing the appeal. There is no dispute about the facts. On September 16, 1987, Santopietro, as mayor of the city of Waterbury, submitted an application to the zoning commission for amendments to several sections of the zoning ordinance for the purpose of prohibiting multiple family dwellings in the Commercial Arterial (CA) and Commercial General (CG) districts and also eliminating such a use as a special conditional use in the CA zone. Pursuant to the Waterbury charter, the application was referred to the city plan commission for initial consideration and recommendation. A public hearing on the proposed amendments was held by the city plan commission on November 9,1987. By virtue of a charter provision making the mayor “chairman, ex-officio” of such authorities as the city plan commission, the mayor presided as chairman of the meeting. After the conclusion of the public hearing, the commission voted unanimously to approve the proposed amendments. The mayor did not vote at this meeting, nor does the charter authorize a vote for him, except to break a tie. *587The zoning commission held a public hearing on the proposed amendments on December 16,1987, at which an attorney appeared on behalf of the mayor and spoke in favor of the amendments. The commission did not vote on the proposal until February 17,1988, when the commission members attending voted unanimously to adopt the amendments, deferring their effective date for six months. The plaintiffs, as owners of property within the areas affected by the amendments, appealed to the Superior Court from the action of the zoning commission in adopting the amendments. The trial court rejected the numerous claims of irregularity raised by the plaintiffs and rendered judgment dismissing the appeal. I The plaintiffs claim that the mayor’s involvement in the process of adopting the amendments to the zoning ordinance, as their sponsor, as the presiding officer at the public hearing before the city plan commission and, through the appearance of his attorney, as their principal advocate at the public hearing before the zoning commission, tainted their adoption to such a degree as to require their invalidation. A First, the plaintiffs claim that the mayor violated the doctrine of separation of powers, under which, as provided by our state constitution, “[t]he powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” Conn. Const., art. II. The constitutional provision applies to the state and not to municipalities, which are governed by charters and other statutes enacted by the legislature. Furthermore, another pro*588vision of our state constitution, which requires the governor to “give to the general assembly, information of the state of the government, and recommend to their consideration such measures as he shall deem expedient”; Conn. Const., art. IV, § 11; indicates that the framers of our constitution did not regard the separation of powers principle as compartmentalizing the branches of government so rigidly as to prevent a chief executive officer from proposing modifications of existing laws to a legislative body. We take judicial notice of the uniform practice in this country of mayors and other chief executives, especially when popularly elected, to become the principal proponents for legislative change. The plaintiffs cite no authority even questioning this practice. This court has expressed the view that “[a] mayor as the chief executive officer of the town was in duty bound to express to the public and to local administrative boards what he believed to be in the best interests of the community.” Schwartz v. Hamden, 168 Conn. 8, 16, 357 A.2d 488 (1975); see 3 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 12.43. We conclude that, even if the separation of powers principle were applicable to the mayor of Waterbury, it would not have been violated by his proposing amendments to the zoning regulations. B The plaintiffs next advance the more conventional argument that the mayor exceeded the scope of the powers of his office as delineated in the Waterbury charter. “Public officers . . . can only act within the scope of the powers and duties which the law prescribes for them.” Rogers v. County Commissioners, 141 Conn. 426, 429, 106 A.2d 757 (1954); 63A Am. Jur. 2d § 300. The plaintiffs argue that there is no charter provision *589or other source of authority that would sanction the conduct of the mayor as the petitioner and principal advocate for a zoning amendment. In rejecting this ultra vires claim, the trial court relied on two provisions of the charter: (1) § 2101,2 which designates the mayor as the “chief executive officer of the city” and makes him “chairman, ex-officio” of such agencies as the city plan commission and the zoning commission; and (2) subparagraph (a) thereof, which prescribes, in addition to his obligation “[t]o cause the laws and ordinances to be executed and enforced,” a further duty of the mayoralty “to conserve the peace within the city and to be responsible for the good order and efficient government of the city.” We agree that these sections of the charter provide sufficient authority for the mayor to have acted as a proponent of changes in zoning regulations. The evident purpose of making the mayor chairman ex officio of various boards and commissions in the city pursuant to § 2101 is to allow him to have some input *590into the work of these agencies. Section 2103,3 furthermore, grants to the mayor, when he acts as chairman, “the power to preside at any meeting which he shall attend, to have a voice without a vote, except that he shall have the power to vote in order to break a tie at any such meeting.” In providing the mayor with a “voice,” the charter contemplates that the mayor is to act as an advocate, not simply as a presiding officer. Despite problems that may arise for a mayor attempting to perform both roles simultaneously, it is abundantly clear that the mayor is authorized to express his views on the various issues coming before these agencies in carrying out his general obligation “to be responsible for the good order and efficient government of the city” as prescribed by § 2101 (a). The advocacy role, which we construe the “voice” provision of the charter to confer upon the mayor, must be deemed to include the authority to propose legislative changes because of the duty imposed on the mayor by § 2101 (a) “to be responsible for the good order and efficient government of the city.” Zoning regulations may be regarded as a significant factor in advancing these objectives. Furthermore, we are not aware of any restraint upon the ability of any person to petition the zoning commission for amendments to the text of regulations that apply throughout the city. The plaintiffs suggest that there exists a requirement of standing in the form of having an interest, such as ownership of *591property, in the area to be affected by a proposed amendment. We have indicated that there is a “necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance.” Richards v. Planning & Zoning Commission, 170 Conn. 318, 323, 365 A.2d 1130 (1976). We are not inclined, however, to impose such a requirement for changes in the text of zoning regulations that apply generally throughout the city. Section 7.31-14 of the Waterbury zoning ordinance, which prescribes the requirements for filing an application for a zoning regulation amendment, contains no restriction based upon the interest of a petitioner. Section 7.33,5 by contrast, requires that petitioners for amendments to the zoning map be owners of property seeking a change of zone for their own property or their agents. We conclude that the plaintiffs’ ultra vires claim is without merit. C The plaintiffs next claim that the presence of the mayor as presiding officer at the public hearing held by the city plan commission on his zoning amendment proposals violated the provision of General Statutes § 8-216 that “[n]o member of any planning commission *592. . . shall appear for or represent any person, firm or corporation or other entity in any matter pending before the planning or zoning commission . . . whether or not he is a member of the commission hearing such matter.” They do not claim that the mayor’s conduct of the meeting was other than impartial, that he had any personal financial interest in the amendments, or that he represented anyone other than the city. Since the Waterbury charter provides no vote for the mayor as an ex officio member of the commission, he did not vote on his own proposals, which the commission approved unanimously. In Lurie v. Planning & Zoning Commission, 160 Conn. 295, 310-11, 278 A.2d 799 (1971), we commented with respect to § 8-21 that “it may well be doubted that the [statute was] intended to apply to an appearance by the chief executive official of the community.” We concluded, however, that it was unnecessary to decide that question, “since the plaintiffs raised no objection at the hearing to [the official’s] appearance.” Id., 311. Although this precedent would support a similar disposition of the plaintiffs’ claim on the ground of waiver for failure to object timely to the mayor’s acting as chairman of the public hearing, the resolution of the issue is of public importance because such officials should not be unnecessarily inhibited from appearing at public hearings in order to represent governmental or community interests. *593If the plaintiffs’ position were sound that the provision of § 8-21 relied upon precluded the appearance at a public hearing of a mayor, representing solely the interests of the city, simply because he is an ex officio member of the commission involved, that statute would also appear to disqualify the other commission members, who presumably represent the same interests by virtue of their appointment. Such a result, of course, would be absurd. As the charter provision for a “voice” implies, the mayor should have an opportunity to be heard with respect to the interests of the city upon significant matters affecting the welfare of its residents that come before such agencies as the city plan commission. We resolve the doubt expressed in Lurie as to the applicability of the statute to a chief executive official appearing as the representative of the municipality at a public hearing before a commission of which he is an ex officio member, when it is exercising a legislative function, by holding that this statutory provision does not apply. Accordingly, we reject the plaintiffs’ claim to the contrary. D The plaintiffs also claim a violation of the provision of § 8-21 that “[n]o member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.” They do not claim that the mayor had any pecuniary interest or stood to gain financially from the adoption of the amendments he had proposed. They maintain, however, that the mayor had a “personal” interest in the sense that, as sponsor of the proposals, his self-interest in their adoption as a basis for advancing his political ambitions precluded impartial consideration of the amendments solely on their merits. *594In Low v. Madison, 135 Conn. 1, 60 A.2d 774 (1948), this court rejected the notion that only a pecuniary interest would disqualify a member of a zoning commission from voting on an application for a zone change. We held that the vote by a commission member on the application of his wife was invalid because of his personal interest arising from such a relationship. “Anything which tends to weaken [public] confidence and to undermine the sense of security for individual rights which the citizen is entitled to feel is against public policy. In view of the natural sentiment of the family and the self-interest inherent in human nature, to countenance the action of [the commissioner] in this case would be to open the door to temptations upon which we need not enlarge.” Id., 9. The statutory predecessor of § 8-21, adopted in 1951, endorsed our decision in Low by adopting as a standard for disqualification the existence of an interest “in a personal or financial sense.” In applying the statutory standard of personal interest, we have observed that “[l]ocal governments would . . . be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official.” Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968). We have concluded that a zoning and planning commission member was not necessarily disqualified from voting upon an excavation permit application because of his membership on the town conservation commission and his presence and participation at its meetings, when the application had been discussed. Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186-90, 286 A.2d 299 (1971). “The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true.” Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970). *595We do not believe that, in requiring that commission members have no personal interest in matters coming before them, § 8-21 demands that their motivation in serving in such a capacity be solely and absolutely altruistic. Few people would be found to meet that standard. That the mayor’s involvement in the amendment proceedings may have stemmed from a desire for personal or political aggrandizement would not indicate that he was tainted by the kind of personal interest proscribed by § 8-21. The plaintiffs’ novel claim to the contrary is virtually frivolous. Their claim that the mayor was biased because of his sponsorship of the amendments and thus had a personal interest is similarly lacking in merit. The Waterbury zoning commission is empowered to amend the zoning regulations on its own motion, although the prescribed procedure for a referral to the city plan commission and public hearings must be followed. When the zoning commission acts to propose an amendment formulated by the commission, all of its members could be said to be similarly biased as sponsors of the proposal and, therefore, disqualified from voting on it. Such an inconceivable consequence compels the conclusion that sponsorship of a legislative proposal is not the kind of personal interest the statute was intended to preclude. II In addition to the mayor’s participation in the amendment process as a basis for invalidation, the plaintiffs claim that the amendments are flawed by two other procedural irregularities: (1) the involvement of the Waterbury legal department as legal adviser to the commission while it also allegedly represented the mayor’s interest in the proposal; and (2) the failure to fill a vacancy in the membership of the commission in order to provide a full complement of five commissioners, as provided by the charter and by General Statutes § 8-1. *596A The evidentiary basis for the claim of impropriety against the office of the corporation counsel is a letter addressed to the plaintiffs’ attorney and signed by assistant corporation counsel Vincent Flynn, who represents the defendant in this appeal. The letter indicates that the mayor requested Flynn to respond to a letter of the plaintiff Ghent, written approximately one month after the plan commission hearing and objecting to the mayor’s participation therein and his sponsorship of the zoning amendments, largely on the ground that the mayor had exceeded his authority. The letter rejected these contentions, but also indicated that Flynn had discussed the matter with the chairman of the zoning commission. At a subsequent public hearing on February 10, 1988, the chairman, in responding to the concern of another commissioner over the plaintiffs’ procedural claims, stated that the mayor’s proposal “is on solid legal ground and the Corporation Counsel has attested to that fact.” On the basis of these facts, the plaintiffs claim that the office of the corporation counsel was representing the interests of both the mayor and the zoning commission, thus committing an impropriety tending to undermine public confidence. There is little substance to this claim. The corporation counsel is not the attorney for either the mayor or the commission, but is a legal officer appointed to protect the city’s legal interests. See 3 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 12.52. The evidence indicates no conflict between the mayor and the commission concerning the zoning amendments. It was the duty of the corporation counsel to advise the commission concerning the procedural irregularities claimed by the plaintiffs and also the mayor as an ex officio member thereof. There was nothing improper in the performance of both of *597these functions by the office of the corporation counsel. We have held that a municipal agency is entitled to legal advice in performing its duties. Spero v. Zoning Board of Appeals, 217 Conn. 435, 444-45, 586 A.2d 590 (1991). The plaintiffs’ further claim that the advice given by the corporation counsel’s office to the zoning commission with respect to the claimed procedural irregularities amounted to an ex parte communication on behalf of the mayor is wholly unsupported by the evidence. B Section 30017 of the Waterbury charter provides that the zoning commission “shall consist of five resident electors of this city” in conformity with the provision of § 8-1 (a)8 for “not less than five nor more than nine *598members.” During the period when the zoning amendments were under consideration, only four commissioners were serving because of the failure to fill a vacancy on the commission. At the February 17,1988 meeting of the commission, at which the amendments were adopted, one of the four members of the commission was absent. The three remaining commissioners voted unanimously to approve the amendments. The plaintiffs claim that the existence of a vacancy on the commission, bringing its membership below the number specified in the charter as well as the minimum provided in § 8-1, resulted in the invalidation of the action of the three members of the commission who voted to approve the amendments. “In the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting of which all members have proper notice and at which a majority are present.” Strain v. Mims, 123 Conn. 275, 281, 193 A. 754 (1937). “Words purporting to give a joint authority to several persons shall be construed as giving authority to a majority of them.” General Statutes § 1-1 (h). “[Although vacancies occur by death or resignation, if a majority survives or remains there is a sufficient number to constitute a quorum, otherwise, there is not.” 4E. McQuillin, supra, § 13.30. Applying these principles to the case before us, we conclude that the amendments were legally adopted by the unanimous vote of the three commissioners who attended the meeting, despite the failure to fill the vacancy on the commission. Ill The plaintiffs’ substantive attack on the zoning amendments is based on their contention that they do not “reasonably serve the public health, safety and wel*599fare” and thus violate the requirement of General Statutes § 8-29 that zoning regulations “shall be made in accordance with a comprehensive plan and shall be designed . . . to promote health and the general welfare.” It is undisputed that the effect of the zoning amendments was to eliminate multiple family dwelling uses from those permitted in CG and CA zones. The plaintiffs have not attacked the findings of the trial court, based on the record of the hearing before the zoning commission, that the amendments were “intended to restrict further residential development in both the CA and CG zones”; that concern was expressed that, “because of the incursion of condominiums in these zones . . . little land remained for future *600commercial development”; and that the amendments were proposed “[i]n order to preserve the land for its intended purpose.” In urging his fellow commissioners to approve the proposal, the chairman referred to it as a “visionary one; one that restores predictability and orderliness to our comprehensive plan and one that anticipates future commercial land needs.” The plaintiffs complain that the elimination of multiple family dwelling uses in these zones is inconsistent with the preservation of other kindred uses permitted therein, such as hotels, motels, parks, playgrounds, libraries, community centers, hospitals, and public housing. For a court reviewing the action of a zoning commission in its legislative capacity, however, perfect harmony in zoning classifications is not the applicable criterion. “[E]very line drawn by a legislature leaves some out that might well have been included.” Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). We have applied a two-fold test to the action of a zoning commission: “(1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [General Statutes] § 8-2 . . . .” First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). There is no indication in the record that the elimination of multiple dwelling uses in the two zones affected was designed to advance the interests of any particular individuals or enhance the value of certain parcels of land. The concerns mentioned by the chairman of the commission relating to the scarcity of land for commercial development within those zones involve the broad community welfare. At least in this sense, the requirement that zoning amendments be in accordance with a comprehensive plan has been satisfied, irrespective of the wisdom of the legislative judgment exercised. *601With respect to the fulfillment of any of the purposes for which zoning regulations may be adopted as set forth in § 8-2, the most pertinent provisions of the statute are those declaring that such regulations “shall be designed ... to promote health and the general welfare” and “shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to . . . encouraging the most appropriate use of land throughout [the] municipality.” It is the rare case in which the legislative judgment of what is beneficial to the community can be superseded by that of the judiciary. The plaintiffs rely, however, on Corthouts v. Newington, 140 Conn. 284, 99 A.2d 112 (1953), in which a zoning amendment prohibiting residential uses in an industrial zone as applied to the plaintiffs land was held unconstitutional because it deprived him of any reasonable use of his land and was confiscatory. That case is readily distinguishable, however, because no similar claim of confiscation has been raised in this court. See Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 549-52, 552 A.2d 796 (1989). The plaintiffs have not contested in brief or at oral argument the conclusion of the trial court that no evidence had been presented in support of their claim of confiscation, in contrast to the situation in Corthouts. After reviewing the discussion of the amendments at the public hearing, we conclude that the zoning commission did not exceed its legislative authority in deciding that by “encouraging the most appropriate use of land throughout the municipality” the amendments are reasonably related to the advancement of the public welfare. General Statutes §8-2. The judgment is affirmed. In this opinion the other justices concurred. The plaintiffs are Donald J. Ghent, Joseph Gunterman, Gertrude T. Bergen, and 450 Meriden Road Corporation. The trial court found Ghent and Gunterman to be aggrieved because each of them owned land within the zones affected by the amendments. See General Statutes § 8-8. No aggrievement was found with respect to the other two plaintiffs. Only Ghent and Gunterman have appealed to this court and they are referred to hereinafter as the plaintiffs. Section 2101 of the Waterbury charter provides in part: “The mayor shall be the chief executive officer of the city. He shall have been a legal voter and resident of the city for the five years immediately preceding his election and shall reside in the city during his term of office. The mayor shall be chairman of the board of finance with a voice and a vote. The mayor shall be chairman, ex-officio, as hereinafter defined, of all other boards or commissions or authorities, except the board of tax review, the board of zoning appeals, the civil service commission or any other board whose sole duties are those of reviewing or appeal. The boards or commissions or authorities shall elect from their numbers one who will act as presiding officer in the absence of the mayor. The position and duties of the mayor in relation to each of the aforesaid boards or commissions or authorities shall be effective, any provision of the Charter to the contrary notwithstanding, except that the provisions of the Charter pertaining to the mayor’s powers and duties in connection with the board of aldermen shall not be amended by this section. “It shall further be the duty of the mayor: “(a) To cause the laws and ordinances to be executed and enforced and to conserve the peace within the city and to be responsible for the good order and efficient government of the city.” Section 2103 of the Waterbury charter provides: “The powers and duties of the mayor acting as chairman ex-officio, as hereinbefore provided, shall include the power to preside at any meeting which he shall attend, to have a voice without a vote, except that he shall have the power to vote in order to break a tie at any such meeting. Unless specifically empowered by each particular board or commission or authority, the mayor shall have no power to appoint committees of such bodies, nor to arrange the agenda of the meetings of any such bodies, nor to exercise other plenary powers of a chairman. The mayor’s attendance at any meeting shall be counted for the determination of the existence of a quorum at any such meeting. This amendment shall take effect on January 1, 1968.” Appendix B, § 7.31-1 of the Waterbury zoning ordinance provides: “application. An original and six (6) copies of an application for an amendment to the zoning ordinance must be made to the zoning commission, in letter form, and submitted to the city clerk together with the cost of advertising same which shall be borne by the petitioner.” Appendix B, § 7.33 of the Waterbury zoning ordinance provides: “amendment to zoning map. Any property owner within the City of Waterbury, or his assigned agent, may petition for an amendment to the zoning map, for his own property, subject to the following conditions General Statutes § 8-21 provides: “No member of any planning commission and no member of any municipal agency exercising the powers of any planning commission, whether existing under the general statutes or under any special act, shall appear for or represent any person, firm or corporation or other entity in any matter pending before the planning or *592zoning commission or zoning board of appeals or agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the commission hearing such matter. No member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of the commission and, unless otherwise provided by special act, replacement shall be made from alternate members pursuant to the provisions of section 8-19a, of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose.” Section 3001 of the Waterbury charter provides in part: “Pursuant to Title 8, section 1, of the General Statutes, the zoning commission of the City of Waterbury shall consist of five resident electors of this city, one of whom shall be an alderman, and not more than three of whom shall be members of the same political party. They shall be nominated by the mayor for election by the board of aldermen. The five members of said commission first elected, as provided above, shall be for terms, as follows: One member for a term ending December 31,1967; one member for a term ending December 31,1968; one member for a term ending December 31,1969; one member for a term ending December 31,1970; and the aldermanic member for a term which coincides with his term on the board of aldermen. Subsequent elections shall be terms of four years, with the exception of the aldermanic member, who shall serve during his term on the board of aldermen. Vacancies shall be filled as provided above for the unexpired period of the term. The members of this commission shall elect from among their members a chairman and a secretary. ...” General Statutes § 8-1 (a) provides in relevant part: “Any municipality may, by vote of its legislative body, adopt the provisions of this chapter and exercise through a zoning commission the powers granted hereunder. On and after July 1, 1974, in each municipality, except as otherwise provided by special act or charter provision adopted under chapter 99, the zoning commission shall consist of not less than five nor more than nine members, with minority representation as determined under section 9-167a, who shall be electors of such municipality. The number of such members and the method of selection and removal for cause and terms of office shall be determined by ordinance . . . .” General Statutes § 8-2 provides in pertinent part: “Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity.” (Emphasis added.)

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841974/

Callahan, J. This appeal arises from various rulings made in the course of the criminal trial of the defendant, David Lewis. The defendant was charged with one count of the crime of murder in violation of General Statutes § ñSa-ñAa1 and two counts of the *604crime of conspiracy to commit murder in violation of General Statutes §§ 53a-482 and 53a-54a. He was tried before a jury of twelve. The jury returned a verdict finding the defendant guilty of murder and of one count of conspiracy to commit murder, but acquitting him of the second conspiracy count. The defendant was sentenced to a term of fifty years on the murder count and to a concurrent term of twenty years on the conspiracy count, resulting in a total effective sentence of fifty years imprisonment. The defendant appealed from the judgment of conviction to this court. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. On Sunday evening, September 18, 1988, the defendant and Trevor Pinnock, who were friends, were playing soccer with other participants at a field near Hillhouse High School in New Haven. The victims, Fitzroy “Soup” Pink and Kenneth Pascoe, although not participants in the game, were in the vicinity of the soccer field while the match was being played. At the con*605elusion of the game, the defendant and Pinnock left the soccer field together and walked to the defendant’s car, which was parked on County Street, adjacent to the soccer field. There the two men obtained handguns from inside the vehicle. Thereafter, both armed, they momentarily separated. Pinnock walked over to Pascoe, who was seated in his car, and pointed an automatic handgun at his head. Pinnock told Pascoe, “You’re dead,” and pulled the trigger, but his gun failed to fire. Moments later the defendant aimed his gun at Pink and, at a distance of approximately two car lengths, shot Pink three or four times, killing him. The defendant and Pinnock then ran from the scene together. At the time of the defendant’s arrest nearly one year later, the police discovered an identification card in the defendant’s possession that bore Pinnock’s name and photograph. When questioned about the card, the defendant asserted that he knew no one named Trevor Pinnock. He did, however, admit having shot and killed Pink. On appeal, the defendant claims that his convictions should be set aside because: (1) there was insufficient evidence to support a conviction for the crime of conspiracy to commit murder; (2) the trial court erroneously admitted evidence that was seized in violation of the federal constitution; (3) the trial court improperly failed to suppress his confession obtained in violation of his constitutional rights; (4) the jury venire was provided with erroneous preliminary instructions concerning the reasonable doubt standard and the credibility to be accorded to the testimony of police officers; (5) the trial court failed to instruct the jury on self-defense; (6) the defendant’s right to confront the witnesses against him was violated when his cross-examination of one of the state’s witnesses was improperly limited; and (7) his rights to due process and to confront his *606accusers were violated when the trial court required him to disclose information concerning his anticipated cross-examination of that witness prior to the state’s direct examination. I The defendant first claims that the conviction of conspiracy to murder Pink was unsupported by the evidence. Specifically, he claims that there was insufficient evidence presented by the state to allow the jury to find beyond a reasonable doubt that he and Pinnock agreed to murder Pink. We disagree. The standard of review of an insufficiency claim is clear. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, U.S. , 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Garrison, 203 Conn. 466, 471, 525 A.2d 498 (1987). The defendant was charged with conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. “To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part *607of the accused that conduct constituting a crime be performed. . . .” (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. Id., 4. To convict the defendant of the offense as charged, the jury was required to find that: (1) the defendant agreed with Pinnock to cause the death of another person; (2) at the time of the agreement, the defendant and Pinnock intended that the death be caused; and (3) the defendant or Pinnock committed an overt act in furtherance of the conspiracy by shooting and killing Pink. While the state must prove an agreement, “the existence of a formal agreement between the conspirators need not be proved” because “[i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose.” (Internal quotation marks omitted.) State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986). The defendant asserts that the jury could not have rationally determined that his actions and those of Pinnock were in concert, the result of a conspiracy, rather than separate and distinct events. On the basis of the evidence and the inferences reasonably to be drawn therefrom, however, we conclude that there was sufficient evidence to support the jury’s verdict. The state showed that on September 18,1988, the defendant and Pinnock, who were friends, played soccer together and met with one another immediately after the soccer game. There was also evidence from which the jury could infer that the men did not play soccer while armed with handguns, and that together they obtained guns from the defendant’s car at the conclusion of the game. Further, there was testimony to indicate that immediately after the men acquired the guns, Pinnock *608approached Pascoe, threatened him with death, and pulled the trigger of his weapon, which fortunately-failed to fire, and that within moments the defendant shot and killed Pink. The evidence disclosed that, following those events, the defendant and Pinnock fled the scene together. Further, the defendant’s statement that he was not acquainted with Pinnock, despite the fact that he possessed an identification card bearing Pinnock’s name and photograph, could well have been construed by the jury as a conscious attempt by the defendant to distance himself from his coconspirator. From the manner in which the murder of Pink and the apparent attempted murder of Pascoe were carried out, and from the defendant’s later deception, the jury could have inferred that the crime was planned and agreed upon in advance of its occurrence. Once the jury found the existence of an agreement to kill Pink, the evidence, including the defendant’s confession, clearly supported the finding that Pink was killed in furtherance of that agreement and that the defendant and his coconspirator intended to cause Pink’s death. There was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the defendant committed every element of the offense of conspiracy to commit murder. II The defendant next argues that the identification card bearing the name and photograph of his alleged coconspirator, Pinnock, was seized from his wallet by the New Haven police department in violation of the fourth amendment to the federal constitution.3 In support of his claim, the defendant asserts that he was *609searched pursuant to his arrest on August 15, 1989, and that his wallet was seized and taken into the possession of the police at that time, but that the police did not complete the search of the wallet that revealed the identification card until two days after his arrest. The defendant argues that when the card was later discovered in the wallet, the officers had no search warrant and their conduct failed to satisfy any of the exceptions to the warrant requirement. We conclude that the defendant’s claim has no merit. In order to protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; U.S. Const., amend. IV; the United States constitution ordinarily mandates that the police obtain a search warrant before seizing the possessions of an accused. “[A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) . . . .” (Internal quotation marks omitted.) State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987). One of those exceptions is a search incident to a lawful arrest, which allows the complete search of a suspect at the time of his arrest.4 Id.; see New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990). Sergeant Francisco Ortiz of the New Haven police department testified that he and other officers arrested the defendant pursuant to an arrest warrant on *610August 15,1989. Ortiz testified that at the time of the defendant’s arrest, the defendant was “searched incidental to the arrest.” Further, Ortiz stated that at the time of the defendant’s arrest his wallet was discovered on his person and that Ortiz went through the wallet “[r]ight in front of Mr. Lewis when he was arrested.” Ortiz testified that, while the defendant sat nearby, he discovered the identification card bearing Pinnock’s name and photograph in the wallet. Although the defendant asserts that the wallet was searched “long after the arrest,”5 he never so claimed at trial, and Ortiz’ testimony directly contradicts that claim. Because Ortiz’ testimony, which was apparently credited by the trial court, would render the search of the defendant valid as a search incident to a lawful arrest, we conclude that the trial court properly admitted the evidence. Ill The defendant also claims that inculpatory statements he made to the New Haven police department were elicited in violation of his state and federal constitutional rights to counsel and his federal right against self-incrimination and that they should not have been admitted at trial. The defendant, who at the time of his arrest made such statements to the New Haven police, asserts that although he was properly apprised of his rights prior to the time he made those statements, the circumstances surrounding their elicitation indicate that he did not knowingly and intelligently waive his constitutional rights. Specifically, the defendant states that at the time of his interrogation, he refused to sign a written statement and refused to allow the officers to make tape recordings of the interview. He argues that the fact that he adamantly refused to allow his *611statements to be recorded but willingly provided unrecorded statements manifested a fundamental misunderstanding of his rights, which rendered the waiver of those rights constitutionally ineffective. We disagree. After his arrest, the defendant was brought to the New Haven police department, where he was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Although the defendant orally waived his rights, he refused to sign his name to the waiver form. In the defendant’s presence, two New Haven police officers signed the form and explained to the defendant that they were signing to indicate that the defendant had waived his rights. The defendant informed the officers that he would answer questions orally, but only if no recording of the conversation was made, and no notes were taken. Thereafter, in response to custodial interrogation, he made statements that the officers refrained from recording. Significantly, the defendant confessed that he had killed Pink out of fear because he had been told that Pink was a drug dealer who had threatened to kill him. Later, the defendant stated that weapons, ammunition and narcotics found in his girl friend’s apartment at the time of his arrest belonged to him, and not to her. In order to exonerate his girl friend, he provided a taped interview on that topic but again refused to give a taped statement concerning Pink’s murder. First, the defendant claims that his rights to counsel were violated. “The sixth amendment accords the right of an ‘accused’ to the assistance of counsel in ‘all criminal prosecutions’; this right attaches ‘only at or after the time that adversary judicial proceedings have been initiated . . . .’ Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); United States v. Gouveia, 467 U.S. 180, 190, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984); Brewer v. Williams, 430 U.S. *612387, 401, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); State v. Shifflett, 199 Conn. 718, 726 n.1, 508 A.2d 748 (1986); State v. Falcon, 196 Conn. 557, 560-61, 494 A.2d 1190 (1985); State v. Ferrell, 191 Conn. 37, 44 n.10, 463 A.2d 573 (1983). Tt is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.’ Kirby v. Illinois, supra, 690.” State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987); State v. Birch, 219 Conn. 743, 594 A.2d 972 (1991). The time of the attachment of the right to counsel is no different under article first, § 8, of the constitution of Connecticut. State v. Palmer, 206 Conn. 40, 64, 536 A.2d 936 (1988). The defendant claims that his criminal prosecution had commenced and that his right to counsel had attached when an information was filed in court in September, 1988, long before his arrest and interrogation in August, 1989.6 Even if the defendant is correct and his right to counsel had attached, his ensuing statements would not be rendered inadmissible under the *613sixth and fourteenth amendments unless he had invoked that right. Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). In Patterson, the United States Supreme Court held that the uncounseled postindictment statements of an accused were admissible against him despite the fact that his right to counsel had come into existence. “The fact that petitioner’s Sixth Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned. Had petitioner indicated that he wanted the assistance of counsel, the authorities’ interview with him would have stopped, and further questioning would have been forbidden . . . .’’Id., 290-91.7 Because the defendant had not yet been arraigned and had adequately waived his right to counsel, as he did his Miranda rights, the fact that his rights to counsel existed would not require the suppression of his statements. The defendant’s second claim concerning his interrogation is that his federal right against self-incrimination under the fifth and fourteenth amendments was violated because the police failed to secure a knowing and intelligent waiver of his Miranda rights. As the defendant concedes, however, that issue was squarely addressed by this court in State v. Barrett, 205 Conn. 437, 449-51, 534 A.2d 219 (1987). In Barrett, we held that an accused had knowingly and intelligently waived *614his federal right against self-incrimination despite the fact that he refused to commit anything to writing and would provide only oral statements to the police. While the defendant requested at oral argument that we reconsider our holding in Barrett, he provides us with no reasoned basis upon which to do so. Accordingly, his claimed violations of the fifth and fourteenth amendments to the federal constitution are unavailing. IV The defendant next asserts that the trial court improperly instructed the jury by its preliminary instruction to the veniremen. Specifically, he claims that the jurors were improperly charged on the reasonable doubt standard and on the manner in which they should evaluate the credibility of police officer witnesses. We find no harmful error. Although a judge in a criminal case may, in the exercise of sound discretion, provide a preliminary instruction to the jurors, such an instruction is not mandatory. State v. Woolcock, 201 Conn. 605, 618-28, 518 A.2d 1377 (1986). When preliminary instructions are given, they “do not supersede those given after evidence and arguments under our practice.” Id., 623. In determining that the trial court’s preliminary instructions in Wooleock did not require reversal we found it significant that “the court’s final instructions to the jury fully covered all the applicable legal principles. . . . The jury was fully and properly instructed at the critical time, after all the evidence and after the arguments of counsel.” Id., 627. A The defendant first claims that the trial court improperly provided a preliminary instruction to the jury venire on the definition of reasonable doubt. Although the defendant does not claim that the court misstated *615the law in any way, he claims that the instruction as given was incomplete and misleading.8 The defendant asserts that because the court explained what reasonable doubt is not rather than what it is, the jury was not properly instructed on the definition of reasonable doubt, thus resulting in a violation of his right to a fair trial. The Appellate Court recently considered a similar claim. State v. Kelly, 23 Conn. App. 160, 168-70, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, U.S. , 111 S. Ct. 1635, 113 *616L. Ed. 2d 731 (1991). There, the defendant claimed that during its preliminary instructions to the jury venire, the trial court improperly charged on the reasonable doubt standard. The Appellate Court held: “The challenged remarks were temporally unconnected to the court’s final charge and were totally subsumed by the final charge. It is not even certain that all of the jurors were present when the remarks were made. The remarks, therefore, could not have influenced the jury in its deliberations, nor could they have deprived the defendant of a fair trial.” Id., 170. Similarly, in the instant case, the court explained to the venire that the preliminary instructions would only briefly mention the basic principles of law upon which they would later be instructed in “somewhat more detail.” The defendant concedes that at the close of the case, the jurors were given accurate instructions on the issue of reasonable doubt. Because the preliminary instructions were not inaccurate, and because the jury was fully and correctly instructed prior to deliberating, any tendency on the part of the preliminary instruction to mislead the jurors was sufficiently remedied, and the defendant was not deprived of a fair trial. B The defendant also claims that the trial court’s preliminary instruction concerning the credibility to be accorded the testimony of police officers was improper.9 He asserts that because the trial court improperly *617informed the jurors that they should not find police officers any less credible solely because they are police officers, the defendant was denied his sixth and fourteenth amendment rights to confront his accusers. The instructions provided were preceded by the court’s statement that the instructions were only preliminary, and that the jurors would be instructed in greater detail prior to deliberation. When the jurors were finally instructed, the court again charged on police officer credibility, and the defendant made no objection to the court’s charge.10 While it was not totally accurate for the court to inform the jury that it should not consider the nature of a police officer’s employment when determining credibility, the preliminary instruction in this case did not mislead the jury. State v. Woolcock, supra; State v. Kelly, supra. V Concerning the final instruction to the jury, the defendant claims that the trial court improperly failed *618to instruct on the elements of self-defense.11 He argues that because the issue of self-defense had been raised at trial, his federal constitutional right to due process of law required that the jury be informed of its elements. We disagree and conclude that the trial court properly refused to instruct the jury on self-defense. “If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). The defendant’s right to such an instruction is founded on the principles of due process. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, *61918 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982); State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). Certainly, self-defense is a recognized legal defense. General Statutes § 53a-19; State v. Miller, supra, 661; State v. Rosado, supra, 708. Before an instruction is warranted, however, “[a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case.” State v. Bailey, 209 Conn. 322, 335, 551 A.2d 1206 (1988). To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); State v. Folson, 10 Conn. App. 643, 647, 525 A.2d 126 (1987). Only when the issue has been sufficiently raised does the state “have the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12 (a); State v. Miller, supra, 661; State v. Gelormino, 24 Conn. App. 556, 561, 590 A.2d 476, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991). “When we are reviewing a trial court’s failure to charge as requested, we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). In this case, the evidence adduced at trial was plainly insufficient to support the claim that the defendant acted in self-defense as set forth by § 53a-19. The only evidence that the defendant claims was relevant to the defense of justification was adduced through Ortiz. Ortiz testified that, in response to questioning, the defendant stated that he was afraid of the victim and that he killed the victim “because if he had not [the victim] would have somehow killed him.” Ortiz also stated that the defendant appeared to believe that *620the victim was a dangerous drug dealer, and appeared genuinely to fear the victim. That evidence, if credited, would have allowed the jury to believe that the defendant feared for his life. It would not, however, have allowed them to find that at the time he killed the victim, it was reasonable for him to believe that the victim was about to use deadly physical force or inflict great bodily harm, and that it was necessary to kill the victim to prevent such conduct. Even viewed in the light most favorable to the defendant, this evidence would not support a claim of legal justification under § 53a-19. The defense of self-defense does not encompass a preemptive strike. Accordingly, the trial court properly refused to charge the jury on the elements of justification. VI Next, the defendant asserts that he was denied his federal right to confrontation when his cross-examination of one of the state’s witnesses was improperly limited. He claims that while he was allowed to show bias on the part of Pascoe through evidence that Pascoe had entered into a plea agreement with the state concerning a crime that Pascoe had allegedly committed, he was prevented from asking Pascoe whether the original charge in Pascoe’s case, which was reduced by the plea bargain, was murder. We find no harmful error. The defendant produced evidence that Pascoe, at the time when he was designated as a witness for the state in this case, had been charged by the state with the crime of murder. He argued that he should be allowed to show that, as a result of the plea bargain, Pascoe had the murder charge reduced to conspiracy to commit assault. The defendant claimed that the disclosure that such a serious crime was bargained down to a lesser felony would allow the jury to infer that the witness felt indebted to the state and would testify against *621the defendant with that debt in mind. The state disputed the fact that the witness had ever actually been charged with murder. Further, the state asserted that Pascoe’s plea bargain was not tied to his testimony in the defendant’s case but to another case and that an inquiry into the plea bargain would open this case to a substantial amount of tangential evidence. The trial court held that “the relevance of details of alleged bad act[s] or crimes of Kenneth Pascoe has not been established sufficiently] to get into that collateral type of inquiry.” The federal constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. “[I]n the adversarial setting of a trial, the accused has a right under the confrontation clause ‘to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [State’s] witness.’ Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) . . . .” State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988); State v. Crumble, 24 Conn. App. 57, 65, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). One of the most useful means of effectuating this fundamental right is through the use of cross-examination. Particularly when the accused desires to cross-examine a witness concerning motive, interest, bias or prejudice, his cross-examination “ ‘ “is a matter of right and may not be unduly restricted.” State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).’ State v. Oehman, 212 Conn. 325, 330, 562 A.2d 493 (1989) . . . .” State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990). “The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).” State v. Moye, supra. We have consistently *622held that when an accused has had the opportunity to elicit evidence of bias, not every limitation of the right to cross-examine is of constitutional dimension. The extent of cross-examination beyond that necessitated by the constitution rests within the discretion of the trial court. State v. Jones, 205 Conn. 638, 667-72, 534 A.2d 1199 (1987); State v. Randolph, 190 Conn. 576, 590-93, 462 A.2d 1011 (1983); State v. Wilson, supra, 720-21; State v. Haskins, 188 Conn. 432, 453-55, 430 A.2d 828 (1983); State v. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959). Despite the trial court’s ruling preventing the introduction of the title of the offense with which Pascoe had been charged, and the fact that it carried a life sentence, the defendant was able thoroughly to impeach Pascoe concerning his potential bias in favor of the state. While the name of the crime was not elicited, the fact that Pascoe was charged with a felony and the circumstances of his plea bargain were elicited by the defendant. The jury heard that, in May, 1989, when, at the New Haven police department, Pascoe identified Pinnock as the defendant’s coconspirator, Pascoe was the target of a felony investigation and was awaiting trial. Further, the jury was aware that when he signed a photograph identifying Pinnock, Pascoe was incarcerated at the Whalley Avenue Correctional Center. It was also brought out that as part of his plea bargain with the state, Pascoe agreed to assist the state in an unrelated case in return for leniency in sentencing in his own case, and that at that point Pascoe was a designated witness for the state in its case against the defendant. Pascoe also stated that as a result of his plea, the charges against him were “reduced very substantially.” He further admitted that although he was sentenced to five years, he actually served only eleven months pretrial detention, and served no time at all following the entry of his guilty plea. *623In the light of the foregoing, the defendant was allowed sufficient cross-examination into the areas of prejudice, bias, motive and interest so as to satisfy the requirements of the constitution. Although the defendant was unable to elicit the fact that the original charge against Pascoe was murder, the defendant was able effectively to portray Pascoe as a biased witness. Therefore, the sixth and fourteenth amendments were satisfied. Regarding the defendant’s remaining claim of evidentiary error, we conclude that the trial court’s ruling was improper. If requested cross-examination is not constitutionally mandated, the trial court, in its discretion, may determine the extent to which material can be elicited. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Maye, supra, 94. The trial court’s discretion is not, however, unlimited. A criminal defendant may cross-examine a state’s witness to the extent that his questions are relevant to an issue in the case and are not more prejudicial than they are probative. The defendant requested both to cross-examine Pascoe concerning whether he was originally charged with murder in the case in which he eventually pleaded guilty to conspiracy to commit assault, and to ask Pascoe what he understood to be the maximum sentence to which he would have been exposed on a murder charge. If the jury found that Pascoe believed that he was originally charged with murder and that that charge carried a severe penalty, the jury might have inferred that Pascoe was a biased witness, that he believed that he had received an excellent plea bargain from the state, that he felt indebted to the state, and that he would conform his testimony to serve the state’s purposes. We conclude that the trial court abused its discretion in ruling that the defendant’s proposed cross-examination was improper because it would inject col*624lateral issues into the case. Outside the presence of the jury, the state disputed whether Pascoe had ever actually been charged with murder. It also suggested that, while the police may have originally pursued a murder charge, such a charge was unwarranted for reasons unrelated to any plea bargain. Those circumstances, however, do not warrant limitation of the defendant’s cross-examination. The relevant issue was not the actual circumstances of the plea bargain Pascoe received, but Pascoe’s belief about what those circumstances were. The defendant was entitled to explore the possibility that Pascoe believed that he had a murder charge significantly reduced in exchange for his cooperation with the state in this case. The state could properly have rebutted the defendant’s cross-examination by questioning Pascoe about his knowledge of the original charge against him and his understanding of why it had been reduced. Through such redirect examination, the state might have demonstrated that Pascoe’s testimony was unaffected by the circumstances of his plea bargain. That fact, however, was properly to be determined by the jury. Having determined that the trial court acted improperly, we must determine whether the error was harmful. We conclude that it was not. “Because the defendant’s claim does not involve the violation of a constitutional right, the burden rests upon him to demonstrate the harmfulness of the court’s error.” State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); Chapman v. California, 386 U.S. 18, 24, 26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). To demonstrate harmfulness, the defendant must show that it is more probable than not that the court’s action affected the result of his trial. State v. Payne, 219 Conn. 93, 102-103, 591 A.2d 1246 (1991); State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). Because the jury was pre*625sented with considerable evidence tending to show that Pascoe was biased in favor of the state, the defendant has not demonstrated that the exclusion by the trial court of this limited area of cross-examination probably affected the result of the trial. VII Finally, the defendant claims that his federal rights to due process and to confront the witnesses against him were violated when the trial court required him to reveal the nature of prior bad acts to which he intended to refer in his cross-examination of Pascoe.12 Because this disclosure was required prior to the state’s direct examination, the defendant argues that the state was afforded the opportunity unconstitutionally to mitigate the impact of his cross-examination. We are not persuaded. At trial the state filed a motion in limine requesting, inter alia, that the court order the defendant not to inquire into or present evidence concerning “[t]he names of crimes for which the witness Kenneth Pascoe has been convicted.” Prior to the hearing on the motion, the state was aware that, in December, 1989, Pascoe had pleaded guilty to the felony of conspiracy to commit assault in the second degree and that, in June, 1988, he had been convicted of robbery in the second degree in New York. The state requested that the motion in limine be heard prior to the direct examination of Pascoe; the defendant objected, claiming that the appropriate time to hear the motion would be just prior to the cross-examination. The court in conformance with the state’s request held the hearing prior to direct examination, inquiring of defense counsel *626which prior convictions he planned to use to impeach the witness. As a result, defense counsel was required to reveal to the state that he intended to elicit the name of the robbery offense because it was probative of the witness’ credibility, that he wished to elicit the fact that the conspiracy to commit assault conviction resulted from a plea bargain, and that there was evidence in the latter case that Pascoe had committed a murder. The court ruled that examination mentioning the robbery offense by name would be allowed and that examination pertaining to the fact that there was a plea bargain would be allowed, but that counsel could not question the witness concerning whether he was originally charged with murder in the case in which he pleaded guilty to conspiracy to commit assault. The court, over defense objection, then provided the state with a three minute recess to explain the limits of the ruling to Pascoe. On direct examination the state’s attorney asked Pascoe two questions in relation to this issue. First, he asked if Pascoe had been convicted of robbery in New York in 1988. Second, he asked if Pascoe had been convicted of a felony in 1989 that in part involved a plea bargaining agreement with the state of Connecticut concerning the witness’ cooperation in an unrelated case. The defendant first claims that the trial court’s ruling resulted in skewing the “entire discovery process,” in violation of due process as interpreted by the United States Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). In Wardius, the court struck down the conviction of an Oregon defendant because he was required by statute to inform the state of the place where he claimed to be at the time of the offense and the names and addresses of witnesses he intended to call to support that claim. The state was not required to provide the defense with any reciprocal discovery. The court stated: “We hold that the Due *627Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery-rights are given to criminal defendants.” Id., 472. The instant case differs from the scenario described in Wardius. Here, there was no such systemic bias in favor of the state. The state was aware of both of Pascoe’s felony convictions, and any advantage it may have gained because of its limited preview of the defendant’s cross-examination was inconsequential. While it would have been more proper to hold the hearing on the state’s motion in limine following the state’s direct examination, the resultant prejudice to the defendant did not deprive him of a fair trial. Secondly, the defendant claims that the two questions concerning Pascoe’s convictions asked by the state after previewing the defendant’s anticipated cross-examination sufficiently “took the sting out of” that cross-examination so as to deprive him of his federal constitutional right to confront his accusers. Contrary to that assertion, however, it is evident that the defendant conducted a very thorough and lengthy cross-examination of Pascoe concerning his convictions and his plea bargain with the state. See Part VI, supra. The cross-examination he undertook was sufficient to satisfy the mandates of the federal constitution. Delaware v. Van Arsdall, supra; Davis v. Alaska, supra; State v. Jones, supra. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 58a-54a provides: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonable*604ness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person. “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.” General Statutes § 53a-48 provides: “conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” Although the defendant has framed his claim under both the state and federal constitutions, we do not revjew his state claim because he has not provided an independent analysis under the state constitution. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991); State v. Mooney, 218 Conn. 85, 89 n.5, 588 A.2d 145 (1991). The defendant does not claim that his arrest was unlawful. That claim is apparently based upon the fact that on August 18,1989, the police removed the photographic identification from the wallet and completed a separate evidence inventory form bearing that date. In the appendix to his brief, the defendant has included a copy of an information form and an affidavit that were signed by the state’s attorney and a judge of the Superior Court on September 30, 1988, as part of an application for an arrest warrant. The defendant has also included an attached certification by a clerk of the court attesting that the information and affidavit were true copies of records of the court. That certification is dated February 23, 1989, before the defendant’s arrest. Because there is no provision in our law providing for the filing of an information prior to the arrest of an accused, it is difficult to understand why the information would have been filed at that time. State v. Crawford, 202 Conn. 443, 448-49, 521 A.2d 1034 (1987). It appears that the certification may simply have been an affirmation that the documents were official as a prelude to and part of the process of sending the arrest warrant out of state. There is also an indication, however, that the information was not actually filed in court until August 15,1989, after the defendant had been arrested and interrogated. To the extent that there was confusion concerning the issue, the defendant had the burden of perfecting the record for appeal and it is doubtful that he has met that burden. Practice Book § 4061. We have decided, nonetheless, to reach the merits of his claim. The defendant argues that his state constitutional right to counsel provides broader substantive protection than the federal constitution in situations involving “police interference in the attorney-client relationship.” He does not, however, provide any independent analysis under the state constitution to indicate that his state constitutional right to counsel would require the suppression of his statements notwithstanding the fact that he did not invoke that right. Accordingly, we will confine to the federal law our analysis of whether his right to counsel had become effective. Preliminary instructions, all similar in nature, were given to a number of separate panels. An example is as follows: “The burden of proof in a criminal case is on the state. The state has made these charges against Mr. Lewis. And if one or more of them are to be proven, it’s up to the state to prove them. The burden of proof in a criminal case which is on the state is to convince the jury of the guilt of the defendant beyond a reasonable doubt. You probably heard this morning the burden of proof that is used in a civil case, and it’s referred to as proof by a fair preponderance of the evidence. That means in a civil case, one party suing another usually for money, automobile accident, personal injuries, falldown, products liability, breach of contract, whatever, a person has to prove whatever it is they may be trying to prove in that civil case has to prove it by what’s known as a fair preponderance of the evidence. That generally means in a civil case that the evidence has to tip ever so slightly in favor of the person who’s trying to prove whatever it is they’re trying to prove. Now, that’s the bur - den of proof in a civil case. This is a criminal case. The burden of proof which is on the state is a greater, a heavier burden of proof than the one required in a civil case. And it’s referred to as proof beyond a reasonable doubt. Now, whereas that burden of proof beyond a reasonable doubt is a heavier burden than the one used in a civil case, proof beyond a reasonable doubt does not mean and does not go as far as proof beyond any possible doubt. It doesn’t mean proof beyond a shadow of a doubt. It doesn’t mean proof to a mathematical certainty. As they say, there’s very little in life that can be proven beyond a possible doubt except death and taxes, and the law does not require the state to prove a defendant guilty beyond a possible doubt. What it requires is proof of guilt beyond a reasonable doubt. Now, the trial of a criminal case is not a contest between the state on one hand trying to prove the defendant guilty and the defendant, on the other hand, trying to prove himself innocent. It does not work that way. Half of that is true. The state is trying to prove the defendant guilty. That’s the job of the state in a criminal case. The state has made these charges. If its going to be proven, it’s up to the state to go ahead and prove it.” Although a slightly different instruction was provided to each panel, the following illustrates the trial court’s preliminary charge on police officer credibility: “In connection with credibility of police officers, police officers will probably testify, they usually do in criminal cases. Police officers are usually involved in criminal cases. The fact that a witness is a police officer, that fact in and of itself just because he or she happens to earn their living by being a police officer, does not entitle that witness to any greater credibility in the eyes of the jury or any lesser credibility in the eyes of the jury solely because of what they happen to do for a living. You *617evaluate the testimony of a police officer witness the same way you evaluate the testimony of a doctor, lawyer, indian chief, whatever we might have. Look them over, size them up, decide whether or not you wish to accept the particular witness’ testimony. Now, obviously, if a witness comes in with some particular skill or training and expertise in some field, you think it’s pertinent in evaluating that -witness’ testimony then you’ve got a right to take all of that into consideration but you’re not required to believe anybody’s testimony solely because of what they happen to do for a living.” The court finally instructed: “In this case there were various police officers who testified as witnesses. As I told you earlier, the testimony of a police officer is not clothed with any special sanctity merely because it happens to come from a police officer. A police officer who testifies in a case subjects his testimony to the same examination and the same tests as the testimony of any other -witness. In weighing the testimony of a police officer you should consider his demeanor on the witness stand, his manner of testifying, the substance of his testimony, any interest that he may have in the outcome of the case, and any other factors that come in your mind which may affect the weight which you will accord to that witness’ testimony. You’re not required to believe the testimony of a police officer merely because he happens to be a police officer.” (Emphasis added.) Self-defense is defined in General Statutes § 53a-19, which provides: “(a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.” In regard to Ms right to confrontation, although the defendant claims he is afforded “even greater protection by Article I, Section 8, of the Connecticut Constitution,” he provides no independent analysis under that provision. Accordingly, we do not review that claim.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841975/

Glass, J. After a jury trial, the defendant appealed to the Appellate Court from a judgment of conviction of possession of narcotics in violation of General Stat*629utes § 21a-279 (a).1 On appeal, he claimed that the trial court improperly refused to instruct the jury as to the doctrine of nonexclusive possession of the premises. The Appellate Court concluded that “the instructions as given were accurate and consistent with the evidence, and that the trial court was correct in refusing to give the requested charge.” State v. Nesmith, 24 Conn. App. 158, 163, 586 A.2d 628 (1991). We granted certification limited to the following issue: “In the circumstances of this case, was the defendant entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises?” State v. Nesmith, 218 Conn. 904, 588 A.2d 1383 (1991). We affirm the judgment of the Appellate Court. The state offered evidence to prove the following.2 On May 5,1989, four officers of the Bridgeport police department went to apartment 104 in building 31 of the Father Panik Village housing project in Bridgeport. The Bridgeport housing authority had confirmed that the apartment was vacant. The apartment was well known to the police as a place used for buying, selling and using drugs. There were no locks on the doors of *630the apartment. At approximately 7 p.m., the officers entered the open door of the apartment. Once inside, they observed between six and eleven persons in the front room. They also observed several empty glassine bags, vials and other common drug vessels on the floor, as well as shoe strings that are commonly applied as tourniquets by drug users, cookers that are used for boiling drugs into a liquid form, and lit candles. The apartment contained no furniture other than a sofa and a few other items that were used to sit on. Officer Joseph Sherbo observed in the hallway a man, later identified as the defendant, moving toward the back bedroom. Sherbo had been in the back bedroom before and knew it was an area used “for buying and using drugs.” Sherbo followed the defendant into the room and, from the doorway, saw him walk toward the rear wall and throw a “light colored object” down to the concrete floor. Sherbo instructed the defendant to “freeze,” searched him for weapons, and sent him to the front room to be guarded by the other police officers. Sherbo then examined the area where he had seen the defendant discard the light colored object and retrieved fifty-seven glassine envelopes and twelve plastic vials.3 Sherbo returned to the front room, where the defendant was arrested along with a man whom another police officer had seen discarding drugs from his person. Later testing proved that some of the envelopes retrieved by Sherbo contained heroin and that the vials contained cocaine.4 The defendant’s testimony directly contradicted the state’s version of the facts. According to the defendant, he was waiting for a friend in the hallway outside *631apartment 104 when four Bridgeport police officers entered the building. A police officer grabbed the defendant and brought him inside the apartment. The defendant was then instructed to sit in a circle on the floor of the front room with approximately eleven other detainees. The defendant observed the man next to him drop three or four blue glassine envelopes on the floor.5 *632According to the defendant, the police observed the man’s actions and removed the bags from the floor. A short time later, the defendant was “patted down,” handcuffed and arrested along with one other person.6 It is undisputed that no drugs were found on the person of the defendant. The certified question presented is whether, in the circumstances of this case, the defendant was entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises. We conclude that the evidence did not warrant a jury instruction on the doctrine of nonexclusive possession of the premises, and, therefore, we answer the certified question in the negative. “ When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support. ”. . . ’ State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).” (Citations omitted.) State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). Furthermore, “ ‘[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986).” (Citations omitted.) State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990). The *633defendant requested that the court instruct the jury on the doctrine of nonexclusive possession of the premises.7 See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The trial court refused to give the requested instruction.8 The defendant’s claim that he was entitled to an instruction on the doctrine of nonexclusive possession of the premises is based primarily on State v. Alfonso, supra, 633, where we stated: “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” While the jury instruction on nonexclusive possession of the premises requested by the defendant is accurate as an abstract principle of law; see footnote 7, supra; it is inapplicable to the facts of the present case. If we adopt the version of the facts most favorable to the defendant that the evidence *634would reasonably support, as we must, the jury could have concluded that another detainee discarded the drugs on the floor in the front room, next to the defendant. The evidence thus established possession of the narcotics without requiring that the jury draw an inference based solely on the defendant’s presence on the premises. Under the circumstances of this case, the trial court properly refused to give an instruction on the doctrine of nonexclusive possession of the premises.9 In State v. Alfonso, supra, 627, police searched Alfonso’s apartment when he and a visitor were present. The police discovered cocaine in the living room and marihuana in the kitchen. Alfonso’s two roommates were not present at the time of the search. At the time of his arrest, Alfonso admitted ownership of the cocaine. Neither Alfonso nor his roommates nor the visitor admitted ownership of the marihuana. Id., *635634. We concluded that Alfonso’s admission provided an adequate evidentiary basis for his conviction for possession of cocaine. We reversed Alfonso’s conviction for possession of marihuana, however, on the basis that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” Id., 634-35. Alfonso thus established the principle that a jury may not infer possession of illegal drugs solely from a person’s presence on premises where drugs are found, if the person is not in exclusive possession of such premises.10 In the present case, the apartment in which the narcotics were found was unoccupied on May 5,1989, and, thus, not in the exclusive possession of anyone present at the time the Bridgeport police entered. The defendant testified that the police observed another detainee drop several glassine envelopes on the floor in the front room next to the defendant and then arrested the defendant. According to the state’s evidence, the defendant was seen throwing an object on the floor in a back bedroom where no one else was present and where narcotics were subsequently found. Neither version of the evidence, viewed in the light most favor*636able to the defendant, provides a basis for a charge on the doctrine of nonexclusive possession of the premises because each identifies the person discarding the drugs. Unlike the jury in State v. Alfonso, supra, 633-35, the jury in the present case was not required to draw an inference concerning possession of the narcotics based solely on the defendant’s nonexclusive possession of the premises. Here, the conflicting stories of the defendant and the state’s witnesses both identified a specific person in possession of the drugs: the defendant, who was observed discarding an object later retrieved and identified as narcotics, or another detainee, who, according to the defendant, was observed discarding several glassine envelopes on the floor next to the defendant. The jury, as factfinder, was entitled to disbelieve the defendant’s testimony. See State v. Martin, 189 Conn. 1, 9, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Spates, 176 Conn. 227, 238, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979).11 Under the circumstances of this case, the trial court properly refused to give the defendant’s requested instruction concerning the doctrine of nonexclusive possession of the premises. *637The judgment of the Appellate Court is affirmed. In this opinion Shea, Callahan and Covello, Js., concurred. The defendant was acquitted of the charge of possession with intent to sell a narcotic substance, in violation of General Statutes § 21a-278 (b), and convicted of the lesser included offense of possession of narcotics in violation of General Statutes § 21a-279 (a). General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.” Although the facts are fully set forth in the decision of the Appellate Court, State v. Nesmith, 24 Conn. App. 158, 586 A.2d 628 (1991), we relate those facts that are pertinent to the disposition of the certified issue. Sherbo testified that there was “no question in his mind” that the glassine envelopes had been thrown to the floor by the defendant. He was not sure, however, that the defendant had discarded the plastic vials because he did not hear them strike the concrete floor. The foregoing version of the facts is based primarily on the testimony of Sherbo. Pertinent testimony of the defendant is as follows: Direct examination by Anthony Fusco, special public defender: “Q. I see. Okay. Now did you see anything on the floor other than these people? “A. No. “Q. Were there any narcotics on the floor? “A. No, I didn’t. The guy that was standing next to me—was sitting next to me, he dropped some bags next to me and they seen it and they just picked them up, took them and he was one of the last ones to go and they let him go. They picked up the drugs and let him go. “Q. How do you know they were drugs? “A. It was about three or four of them, those blue bags. “Q. Did you say anything to any of the officers at this time? “A. I was mad because I’m wondering what was I being arrested, because I was the first one being handcuffed. I was wondering why they was arresting me. I guess I started cussing at him because he said you’re not going anywhere.” Cross-examination by John Smriga, assistant state’s attorney: “Q. And you say at some point you saw somebody throw some drugs down on the floor? “A. The guy that was sitting next to me. “Q. What room was that in? “A. In the living room. “Q. And you saw him throw the drugs on the floor; correct? “A. Yeah, because he tried to give them to me and I told him it wasn’t mine. “Q. He threw— “A. He threw it next to me. When he said it wasn’t his, I said it wasn’t mine, the police— “Q. I’m sorry? “A. The police said he saw who threw them down. “Q. Did you testify before that they let that man go? “A. Yes. “Q. And it’s your testimony that the police saw the man throw the drugs down and they arrested another guy in the room for those drugs; is that what you are saying? *632“A. They arrested me. “Q. All right. They arrested you. But did you testify earlier that the police did arrest someone else; correct? “A. Right. “Q. But not the guy that threw the drugs down; correct? “A. No. “Q. That’s your testimony to this jury. “A. Right.” The defendant testified that the other arrestee was not the man whom he had observed discard the glassine envelopes. See footnote 5, supra. The relevant portion of the defendant’s request to charge read as follows: “Where Mr. Nesmith is not in exclusive possession of the place, here the apartment, where the heroin and cocaine is found, you may not conclude that he knew of its presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support a conclusion or buttress such an inference. State v. Hill, 201 Conn. 505, 514-16 [523 A.2d 1252] (1986); State v. Alfonso, 195 Conn. 624, 633 [490 A.2d 75] (1985); Devit & Blackmar, Federal Jury Practice & Instruction, Sections 16.07, pp. 512-13 (3rd Ed. West 1977); Borden & Orland, 5 Connecticut Practice Criminal Jury Instructions, Sections 15.2,15.3, pp. 400-402, 410-13.” The charge as requested fails to conform with the requirement of Practice Book § 854 that a request to charge contain “the evidence to which the proposition [of law] would apply.” We nonetheless review the merits of the defendant’s claim. We uphold this ruling on grounds distinct from those relied upon by the trial court and therefore decline to address the trial court’s rationale. At the time of his arrest, the defendant had on his person neither drugs nor a large amount of money commonly associated with illegal drug transactions. The state’s evidence showed that the defendant was seen discarding from his person an object that was later found to be narcotics. The defendant testified that the police had observed another detainee discard several glassine envelopes on the floor next to the defendant and subsequently had arrested the defendant. The trial court instructed the jury on both actual and constructive possession as follows: “Possession as used in the statute means to have physical possession or otherwise to exercise dominion or control over tangible property. That is, the State must prove beyond a reasonable doubt that the defendant exercised dominion or control over the cocaine and/or heroin, had knowledge of its presence and had knowledge of its character. Possession may be actual or constructive. Possession, whether it is actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of cocaine and/or heroin here and not ownership is all that is required. Actual possession is established if it is shown that the defendant had actual physical possession. Constructive possession is established if it is shown that the defendant exercised dominion and control over the cocaine and/or the heroin, and had actual knowledge of its presence.” See, e.g., State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). Finally, the trial court gave the jury examples of constructive possession similar to those we upheld in State v. Williams, 169 Conn. 322, 334-36, 363 A.2d 72 (1975). In State v. Alfonso, 195 Conn. 624, 490 A.2d 75 (1985), we adopted the principle enunciated in Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958). In Evans, the defendant was a frequent visitor on premises leased by another person. Id., 127-28. Marihuana was found under a carpet when only the defendant and the lessee were present. Id. Although the defendant did not have exclusive possession of the premises, the court affirmed his conviction based on his statement substantiating the lessee’s disclaimer of ownership of the drugs. Id., 128-29. In Alfonso and subsequent Connecticut cases, the principle articulated in Evans v. United States, supra, has been applied to claims of evidentiary insufficiency where a defendant convicted of narcotics possession was not in exclusive possession of the premises. See, e.g., State v. Somerville, 214 Conn. 378, 390-91, 572 A.2d 944 (1990); In re Benjamin C., 22 Conn. App. 458, 461, 577 A.2d 1117 (1990); State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1991); State v. Williams, 12 Conn. App. 225, 235, 530 A.2d 627 (1987). We acknowledge the argument made by the dissent that the defendant was entitled to a jury instruction on the nonexclusive possession of the premises because the defendant did not have exclusive possession of the apartment where the narcotics were found and the narcotics were not found on the defendant’s person. The rule of law invoked by the defendant in support of the requested instruction; State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); was designed to prevent a jury from inferring a defendant’s possession of narcotics solely from the defendant’s nonexclusive possession of the premises where the narcotics are found. In the present case, there was no risk that the jury would infer the defendant’s possession of the drugs from the mere fact that he was in nonexclusive possession of the premises because the evidence established that either the defendant or another detainee identified by the defendant discarded the drugs. The rationale behind the rule set forth in Alfonso is, therefore, inapplicable to the present case.

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Berdon, J., dissenting. The sole issue presented on appeal from the Appellate Court is whether the trial court, in this prosecution for the illegal possession of narcotics with intent to sell, should have instructed the jury on the doctrine of “non-exclusive possession of the premises” in accordance with the defendant’s request to charge.1 The jury returned a verdict of guilty of the lesser included crime of illegal possession of narcotics and the defendant was sentenced to the maximum term of seven years. I find that the instruction should have been given, and would order a new trial on the illegal possession of narcotics. I will not reiterate the detailed facts set forth in the majority opinion which the jury could have found. Nevertheless, some of the evidence will be repeated as it specifically relates to this issue. The state was required to prove for conviction the element that the defendant had “possession” of the narcotics. General Statutes § 21a-279 (a).2 Such possession may be actual or constructive. State v. Williams, 169 *638Conn. 322, 335, 363 A.2d 72 (1975). Constructive possession is when the defendant knows of the character of the substance, knows of its presence and exercises dominion and control over it. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990). In a case of constructive possession of the narcotics, the rule is “[w]here the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). “ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ ” State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990), quoting State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Accordingly, for the defendant to have been entitled to the “non-exclusive premises” instruction, there must have been evidence upon which the jury could find that (1) the defendant did not have exclusive possession of the premises where the narcotics were found, and (2) the state relied upon the defendant having constructive possession of the narcotics because they were not found on the person of the defendant. The first requirement that the defendant did not have exclusive possession of the premises has been met. Although the Appellate Court characterized this case as “not a situation of nonexclusivity” of the premises where the narcotics were found; State v. Nesmith, 24 Conn. App. 158, 162, 586 A.2d 628 (1991); the majority *639of this court concedes that the premises including the back room were not in the exclusive possession of the defendant. Indeed, the apartment was well known to the police as a “shooting gallery” for narcotics, there were no locks on the doors, Bridgeport housing authority, the owner of the building in which the apartment was located, confirmed that it was vacant, and, at the time of the incident, there were between six and eleven persons in the front room. The second requirement that the narcotics were not in the actual possession of the defendant has also been met. The state’s version of the facts confirms this and the trial judge specifically charged the jury on constructive possession.3 Thus, the defendant was entitled to the charge.4 *640The majority seems to justify the refusal to give the charge under either the state’s or the defendant’s version “because each [version] identifies the person discarding the drugs.” In other words, it is their claim that when there is evidence in which to draw an inference that the narcotics were in the possession of someone, the defendant would no longer have the right to the jury instruction. That sets the rule on its head. First, the only way it could be determined under either scenario that the narcotics came from the possession of the person is by drawing an inference. As the majority points out, “[i]t is undisputed that no drugs were found on the person of the defendant.” The rule, however, was designed to prevent the drawing of such an inference unless there were “other incriminating statements or circumstances tending to buttress such an'inference.” Second, as pointed out below, the statements or circumstances that would take it out of the rule and allow for the drawing of such an inference were factual determinations for the jury to make and not for the trial court, the Appellate Court or this court. Third, the majority assumes that the jury was required to believe either the state’s version or the defendant’s version, but that is not the case. The jury *641had a right to determine whether the state’s witness had been telling the truth in whole, or in part, or whether the witness had been merely mistaken. State v. Alfonso, supra, 633-34. For example, it was for the jury to determine whether Officer Joseph Sherbo had been in fact telling the truth when he had testified that he had seen the defendant throw a “light colored object” against the concrete wall. It was also for the jury to determine whether the glassine envelopes Sherbo had found containing the heroin were in fact what the defendant had thrown down in this vacant apartment. It is conceivable that the jury could have determined that the drugs had not come from the person of the defendant, but concluded that he had possession on the basis of the trial court’s instructions on constructive possession. Finally, the defendant was entitled to the instructions because he had also been charged with possession of cocaine, which had been found only in the plastic vials on the floor of the back bedroom.5 Sherbo had conceded that it was possible that these vials had not been thrown there by the defendant because when Sherbo had seen the defendant drop the object against the concrete wall, he had not heard a sound. Thus, the defendant’s only connection to the cocaine had been his presence in the back room where the vials had been found. Because of this alone, the defendant was entitled to the jury instruction on nonexclusive possession of the premises, even under the majority’s application of the rule. It is clear that a defendant is “ ‘ “ ‘entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ” State v. Havi*642can, 213 Conn. 593, 597, 569 A.2d 1089 (1990), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956). The majority attempts to distinguish State v. Alfonso, supra. Alfonso involved a determination of whether “the evidence adduced at trial was insufficient to support a finding of guilty beyond a reasonable doubt.” Id., 633. In order to make that determination, this court applied the “non-exclusive possession of the premises” rule. The majority relies upon the statement in State v. Alfonso, supra, 634-35, that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” This statement in Alfonso, however, had to do with a determination of whether there had been “other incriminating circumstances tending to buttress such an inference” that would have allowed a conviction for possession of narcotics when the defendant had not been in exclusive possession of the premises and the state could have proven only constructive possession of the narcotics. In the present case, we are considering whether the jury instruction should have been given and not whether the substantive rule should be applied in order to determine the sufficiency of the evidence. If the instruction on the rule of the nonexclusive possession of the premises had been given, surely, the jury could have reasonably drawn an inference of possession of the narcotics because it could reasonably have found that the actions of the defendant constituted “other incriminating circumstances tending to buttress such an inference.” That, however, is a jury issue to be determined only after it had the guidance of an instruction on the law of nonexclusive possession of the premises. The failure to give the nonexclusive possession instruction, combined with the court’s instruction on *643constructive possession and the concession that the defendant did not have the exclusive possession of the premises where the narcotics were found, makes it reasonably probable that the error was prejudicial. State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988). Accordingly, I respectfully dissent. The defendant submitted in a timely manner the following request to charge: “In this connection I must explain the rule of law known as the doctrine of non-exclusive possession. That rule is this: “Where Mr. Nesmith is not in exclusive possession of the place, here the apartment, where the heroin and cocaine is found, you may not conclude that he knew of its presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support a conclusion or buttress such an inference. State v. Hill, 201 Conn. 505, 514-16 [523 A.2d 1252] (1986); State v. Alfonso, 195 Conn. 624, 633 [490 A.2d 75] (1985); Devit & Blackmar, Federal Jury Practice & Instruction, Sections 16.07, pp. 512-13 (3rd Ed. West 1977); Borden & Orland, 5 Connecticut Practice Criminal Jury Instructions, Sections 15.2, 15.3, pp. 400-402, 410-13.” See footnote 1 of the majority opinion. The court instructed the jury on constructive possession as follows: “Possession may be actual or constructive. Possession, whether it is actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of cocaine and/or heroin here and not ownership is all that is required. “Actual possession is established if it is shown that the defendant had actual physical possession. Constructive possession is established if it is shown that the defendant exercised dominion and control over the cocaine and/or the heroin and had actual knowledge of its presence. Remember that constructive possession requires a showing of two things: Control and knowledge. “A simple example of constructive possession which is by no means intended as an exclusive example is that for instance, when I arrived here in the courthouse this morning, I came in carrying my briefcase. That briefcase was in my actual possession as I carried it from my car to my chambers. Although I did not carry it here into the courtroom with me, it is still in my constructive possession. It is my property. It is located in my chambers and I continue to exercise dominion and control over it.” An example of a jury charge on nonexclusive possession of the premises is as follows: “Whether the defendant had possession of the substance in this case is a question of fact for you to decide, and you may, as I have told you, draw reasonable and logical inferences from the evidence. “(In this connection, there is another rule of law of which you must be aware. That rule is this: WTiere the defendant is not in exclusive possession of the premises where the narcotics are found, you may not infer that he knew of their presence and that he had control of them, unless he made *640some incriminating statement, or unless there are some other circumstances which tend to support such an inference. “(Therefore, if you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that he knew of their presence, and that he was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference. “(If, however, you find, from all the facts and circumstances, that the defendant was in exclusive possession of the premises where the narcotics were found, you may also infer that he knew of their presence there and that he had control of them. In that situation, in order to infer that he knew of their presence and that he was in control of them, you do not have to find that he made some incriminating statement or that there are other circumstances which support that inference.)” (Emphasis in original.) 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 15.2. The substitute information charged that “at or about 7:15 p.m. at Apartment 104, Building 31, Father Panik Village, Bridgeport, [the defendant] did unlawfully possess ... a certain narcotic substance, to wit: Heroin and Cocaine . . . .” (Emphasis added.)

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Peters, C. J. The principal issue in this appeal is whether a judgment creditor who has foreclosed upon a judgment lien pursuant to General Statutes § 52-380a (c)1 is entitled to a deficiency judgment pursuant to General Statutes § 49-14 (a).2 After concluding that the provisions of § 49-14 (a) concerning deficiency judgments do not apply to judgment lien foreclosure proceedings, the trial court, Jones, J., ruled that the plaintiff, Fairfield Plumbing and Heating Supply Corporation, was not entitled to a deficiency judgment against the defendant, William Kosa. The plaintiff appealed the denial of its motion for a deficiency judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse. On November 22,1988, the plaintiff obtained a judgment against the defendant in connection with an action on an account for plumbing hardware and supplies sold and delivered by the plaintiff to the defendant. Pursuant to § 52-380a (a),3 the plaintiff recorded a judgment lien on the land records of the towns of Fairfield and Easton on December 15, 1988. At that time, the defendant owned a one-half interest in properties *645located in each town. On June 12, 1989, because the judgment debt had not been satisfied, the plaintiff commenced a foreclosure action on both properties in the Superior Court for the judicial district of Fairfield.4 The plaintiff sought relief in the form of strict foreclosure and a deficiency judgment.5 On March 5,1990, the trial court rendered a judgment of strict foreclosure on the Fairfield property. In that proceeding, the trial court, Thim, J., determined that the debt owed to the plaintiff was $152,210.126 and set May 1, 1990, as the law day. When the defendant did not redeem on May 1, the title to the one-half interest in the Fairfield property vested in the plaintiff. The plaintiff took title to the property subject to prior encumbrances. Alleging that the value of the one-half interest in the property minus the encumbrances that were superior in right was less than the value of the judgment, the plaintiff filed a motion for a deficiency judgment pursuant to § 49-14 (a) within thirty days of the vesting of title in the plaintiff. See Practice Book § 528. At the hearing held in conjunction with the motion, the trial *646court, Jones, J., heard extensive testimony from both parties about the value of the subject property7 and the amount of the encumbrances that were superior to the plaintiff’s interest in the property. The court thereafter denied the plaintiff’s motion, not on evidentiary grounds, but because of its conclusion that, as a matter of law, the provisions with respect to deficiency judgments contained in § 49-14 (a) did not apply to the foreclosure of a judgment lien. The court made no findings concerning the amount of the deficiency claimed by the plaintiff. Section 49-14 (a) provides that any party to a mortgage foreclosure may, within thirty days after the time limited for redemption, file a motion seeking a deficiency judgment. The court must then hold a hearing, hear evidence, establish a value for the mortgaged property, and render judgment for the mortgagee for any difference between such value and the mortgagee’s monetary claim.8 In any further action upon the debt, note or obligation, the mortgagee can recover only the amount of such deficiency judgment. The question before us is whether § 52-380a (c), which provides that “[a] judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property,” incorporates by implied reference the deficiency judgment provisions of § 49-14 (a). We agree with the plaintiff that the two statutes must be read *647together to afford the plaintiff access to a proceeding to determine the deficiency remaining after strict foreclosure of a judgment lien. I At common law, a mortgagee was required to elect between a foreclosure action or an action on the underlying debt. In Derby Bank v. Landon, 3 Conn. 62, 63 (1819), this court held that “a foreclosure and consequent possession, is in the nature of satisfaction of a debt secured by mortgage. It is deemed an appropriation of the thing pledged, in payment of the demand, for which it was security.”9 See also Swift v. Edson, 5 Conn. 532, 534-35 (1825). Because the entry of judgment of foreclosure precluded any further common law proceedings upon the note, the legislature, in Public Acts 1833, c. 18, §§ 1, 2, created the remedy of the deficiency judgment as the only available means of satisfying a mortgage debt when the security is inadequate to make the plaintiff whole. D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158. “[A] statute forbidding suit upon the . . . original indebtedness to recover the deficiency, does not operate to prevent suit upon a judgment for deficiency actually obtained in a foreclosure action.” 2 C. Wiltsie, Mortgage Foreclosure (4th Ed. Eager 1927) § 949, p. 1206. Before rendering a deficiency judgment, the court must have a mechanism for establishing the value of the subject property to determine whether and to what extent a deficiency exists. While a foreclosure by sale automatically establishes the value of the property, a strict foreclosure does not have this secondary conse*648quence. Only a proceeding for a deficiency judgment following a strict foreclosure establishes the amount of remaining indebtedness. In 1878, the predecessor to § 49-14 (a) “provide[d] for an appraisal which [was] conclusive as to the value of the property where a deficiency [was] sought by the plaintiff upon a strict foreclosure . . . .” Cronin v. Gager-Crawford, Co., 128 Conn. 688, 694, 25 A.2d 652 (1942). Prior to 1979, the statute required the court presiding over the foreclosure action to appoint three disinterested persons to appraise the property. The appraisers were to submit a written report of their appraisal to the clerk of the court in which the foreclosure was had and the report was to be a part of the file of the foreclosure suit. The appraisal was final and conclusive as to the value of the mortgaged property. Mere subtraction was all that was required to render a deficiency judgment. In 1979, the legislature amended the procedure for calculating a deficiency in a strict foreclosure action in response to a decision by this court holding the existing procedure unconstitutional.10 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 539-52. The only change wrought by the amendment contained in § 49-14 (a) is the procedure by which the valuation of the mortgaged property is accomplished. Following the amendment, if a motion for deficiency judgment is filed within thirty days after the time limited for redemption, the court hears evidence on the value of the property from both parties and then establishes a conclusive valuation of the property. *649II In light of this history, we agree with the defendant’s observation that the remedy of a deficiency judgment is necessary in mortgage foreclosures because a judgment of foreclosure precludes further proceedings on the underlying debt. Concededly, a judgment of foreclosure does not have the same effect on a judgment lien. Foreclosing on a judgment lien does not extinguish the original judgment, which continues to be valid as to any uncollected portion. Cf. Gushee v. Union Knife Co., 54 Conn. 101, 107, 6 A. 192 (1886). The defendant maintains that this distinction in rationale obviates the need for granting a deficiency judgment to the holder of a partially unsatisfied judgment lien. We are unpersuaded. It is true that, unlike a mortgagee, a judgment lienor may pursue a debtor in a separate action, i.e., through execution pursuant to General Statutes § 52-3501 Thus, the process for obtaining a deficiency judgment contained in § 49-14 (a) is not absolutely necessary to a judgment creditor left with a partially unsatisfied judgment following a strict foreclosure. Undoubtedly, however, in a separate action maintained by the judgment creditor, the debtor would raise the claim of whole or partial satisfaction of the debt in a set-off. At that point, in order to calculate the amount of the judgment that had been satisfied through strict foreclosure, the court would be required to determine the value of the property at the time of foreclosure. This becomes increasingly difficult as time passes. Outside of the process prescribed by § 49-14 (a), there is no other procedural framework for establishing the value of the property contemporaneously with a strict foreclosure on a judgment lien.11 Thus, even though the alternative proce*650dure of bringing a separate action may be available to a judgment lienor, it is far more efficient for the parties and the court to have the issue of valuation determined as part of the foreclosure proceeding rather than as part of a subsequent action. We are unpersuaded that the legislature, in enacting the predecessors to both §§ 52-380a (c) and 49-14 (a) in 1878, intended to leave only an inefficient lien enforcement procedure for judgment lienors, while creating such an efficient and logical procedure for mortgagees. Our construction of § 49-14 (a) as applicable both to the strict foreclosure of a mortgage and to the strict foreclosure of a judgment lien finds further support when we consider related rights arising out of a foreclosure by sale proceeding. With regard to such foreclosures, the legislature has not distinguished between mortgagees and judicial lienholders. General Statutes § 49-28 explicitly provides for a deficiency judgment in a foreclosure by sale when “the proceeds of a sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed . . . .” (Emphasis added.) Having afforded a judgment lienor in this state a deficiency judgment in a foreclosure by sale, the legislature probably did not intend to differentiate between mortgages and liens with respect to deficiency judgments in strict foreclosures. We can discern no policy reason why the legislature would have required a judgment lienor to pursue a foreclosure by sale rather than a strict foreclosure in order to obtain a deficiency judgment. “ [Compelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. Sutton v. Lopes, 210 Conn. 115, 121, 513 A.2d *651139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985).” Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991). The predecessor to § 49-14 (a), as originally enacted in 1878, provided that the appraisal report was to be “a part of the files of such foreclosure suit, and such appraisal shall be final and conclusive as to the value of such mortgaged property.” The valuation of the property was, and remains, part of a strict foreclosure action. We are persuaded that when the legislature wrote, in the same year, that “[a] judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property,” it intended precisely that. Every aspect of a mortgage foreclosure applies equally to a foreclosure of a judgment lien, including the right to a deficiency judgment pursuant to § 49-14 (a). Accordingly, we hold that, pursuant to § 52-380a (c), the provisions of § 49-14 (a) concerning deficiency judgments apply to strict foreclosures upon judgment liens.12 *652The judgment is reversed and the case is remanded for further proceedings on the plaintiffs motion for a deficiency judgment. In this opinion the other justices concurred. General Statutes § 52-380a provides in pertinent part: “(e) A judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property.” General Statutes § 49-14 provides in pertinent part: “(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.” General Statutes § 52-380a provides in pertinent part: “(a) A judgment lien, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property by recording, in the town clerk’s office in the town where the real property lies, a judgment lien cer*645tificate, signed by the judgment creditor or his attorney or personal representative, containing: (1) A statement of the names and last-known addresses of the judgment creditor and judgment debtor, the court in which and the date on which the judgment was rendered, and the original amount of the money judgment and the amount due thereon; and (2) a description, which need not be by metes and bounds, of the real property on which a lien is to be placed, and a statement that the lien has been placed on such property.” The plaintiff subsequently learned that the value of the encumbrances that were superior and prior in right to the plaintiffs judgment lien on the Easton property exceeded the fair market value of the premises. Accordingly, the plaintiff withdrew those portions of its complaint that related to the Easton property. The plaintiff also sought monetary damages, possession of the liened premises, reasonable attorney’s fees, interests, costs of suit and such other and further relief available in law or equity. This figure includes the original judgment of $132,482.01 plus costs, interest and attorney’s fees. A basis for the award of attorney’s fees is not disclosed by the record and is not challenged on appeal. The plaintiff presented evidence that the value of the property was $315,000 at the time of foreclosure while the defendant presented evidence that the value was $500,000. This section applies only to deficiency judgments in strict foreclosure actions. When a foreclosure is by sale, the court appoints three disinterested persons to appraise the property and submit a report to the clerk of the court. General Statutes § 49-25. An appraisal upon a foreclosure of this nature is not conclusive as to the value of the property. Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942). Rather, the price realized upon the sale of the property fixes the amount for which a deficiency may be entered pursuant to General Statutes § 49-28. See also D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05B, p. 161. This common law rule is now codified in General Statutes § 49-1, which provides in part that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure.” In Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 576-77, 409 A.2d 1020 (1979), this court held that certain provisions of the former General Statutes § 49-14 violated due process. We concluded that the failure of the statute in effect at the time to mandate a hearing before the trial court where the defendant could present evidence as to value and cross-examine witnesses deprived the defendant of his constitutional right of confrontation. In the present case, in response to the plaintiffs motion for a deficiency judgment pursuant to General Statutes § 49-14 (a), the trial court held a *650hearing to determine the value of the foreclosed upon property and prior encumbrances just three months after the strict foreclosure judgment entered. Similarly, the law in other jurisdictions does not appear to distinguish between mortgages and liens with respect to deficiency judgments. Early cases show that, irrespective of statute, a foreclosure upon a lien was treated like a foreclosure upon a mortgage, including the right to a deficiency judgment. In discussing the foreclosure of a mechanic’s lien, the New York Court of Appeals stated: “To some extent the judgment is thus assimilated in form to a judgment upon the foreclosure of a mortgage, wherein the right to proceed against the land is accompanied by a judgment against the principal debtor for any deficiency. There is nothing . . . which prevents one establishing a lien from obtaining his full relief, which includes Ms right to enforce it, not only out of the property against which the lien is filed, but for any deficiency against the person who for the amount thereof is *652indebted to the claimant.” Ringle v. Wallis Iron Works, 93 N.Y. (86 Hun.) 153, 155-56, 33 N.Y.S. 398 (1895), aff'd, 155 N.Y. 674, 49 N.E. 1103 (1898).

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Berdon, J. The issues raised in this appeal are grounded upon the ruling of the trial court requiring a defense witness, Richard Clark, to invoke his fifth amendment privilege against self-incrimination in the presence of the jury during cross-examination by the state. The Appellate Court refused to consider this claim because it concluded that the defendant, Eddie Dennison, had failed to state “distinctly” the reasons for his objections as required by Practice Book §§ 288 and 4185, and also declared that, even if the claims had been considered, the court “would find them without merit.” State v. Dennison, 24 Conn. App. 27, 31 n.1, 585 A.2d 1240 (1991). The Appellate Court, after consideration of other issues not before this court, affirmed the conviction of attempt to commit robbery in the first degree while armed with a deadly weapon in violation of General Statutes §§ 53a-49 (a) (2)1 and 53a-134 (a) (2).2 The defendant, after this court granted certification of three issues pertaining to the invoca*654tion of the privilege,3 appealed from the Appellate Court’s judgment. We conclude that the claimed error was adequately preserved, that the trial court improperly required the witness Clark to invoke his fifth amendment privilege against self-incrimination in the presence of the jury and that the error was harmful. Accordingly, we reverse the judgment of the Appellate Court. Although the facts that the jury could reasonably have found are set forth in the opinion of the Appellate Court, we summarize those pertinent to the certified issues. Shortly after midnight on January 31,1988, Andre Davis, the victim, and Clark, his friend, drove to Hurlburt Street in New Haven. They exited their vehicle and spoke with another friend. When they started to return to the vehicle, they passed the defendant, who was among a group of other people. The defendant pressed a gun to Davis’ stomach, led him into an alley and attempted to take his wallet. A struggle ensued between Davis and the defendant, and Clark came to Davis’ aid. During this time, a shot was fired from the group of people on the street. Shortly thereafter, the defendant’s gun was also discharged. Clark then fled. While Davis was still struggling with the defendant, Demetrious Woods, a third party, appeared with his gun drawn. As Davis began to run, Woods shot him in the back. *655The defendant elected not to testify, but offered the testimony of Clark, a friend of Davis. At the time he gave his testimony, Clark was an inmate at Manson Youth Institution in Cheshire serving a sixteen year sentence for manslaughter. The trial court appointed Attorney William Tiernan to advise Clark of his constitutional right against self-incrimination.4 Clark testified that although he did not know what initiated the struggle between Davis and the defendant, it was Davis and not the defendant who had the gun. He stated that he had seen a gun in Davis’ possession earlier in the evening, and that he saw Davis with the same gun at the time of the incident. Clark testified that as he attempted to break up the fight, the gun fell from Davis’ hand to the ground. After seeing the gun fall, Clark heard a shot fired from behind him and saw Woods shoot Davis. Clark surmised that it was Woods who had fired the earlier shot. In the presence of the jury, during cross-examination of Clark by the state and over the objections of the defendant, the state asked Clark the following three questions, which are the subject of the defendant’s claims. (1) “[Assistant State’s Attorney David Gold]: Mr. Clark, you indicated earlier that you don’t carry a gun. Isn’t it a fact, sir, that in August of 1985 you had a gun with you, that you got involved in a fight with other people on a basketball court, you threatened all the rest of the people in the fight with the gun? “[William Tiernan]: If your Honor please, I am going to suggest to my client that under the circumstances he avail himself of his fifth amendment privilege and not answer the question which may tend to incriminate him. *656“[Richard Clark]: I will not answer that question, your Honor. “The Court: All right. On the basis of the advice of your attorney. “[Richard Clark]: Yeah. “The Court: All right.” (2) “[David Gold]: And sir, isn’t it also true that on May 7, 1986, you also were involved in an incident in which you produced a handgun in an effort to threaten someone else that was involved in a fight with you on May 7, 1986? “[William Tieman]: I again will advise my client, your Honor, not to answer that question for the reason that the answer may tend to incriminate himself and I advise him to take his fifth amendment privilege. “[Richard Clark]: I will not answer that question either, your Honor, on the advice of my attorney. “The Court: All right.” (3) “[David Gold]: And sir, isn’t it also true that on May 2,1988, at approximately 7 p.m. you were armed with a handgun and used that handgun to take the life of the victim for which you were later convicted of manslaughter? “[William Tiernan]: With respect to that question, your Honor, and the question of the use of a weapon, I again suggest to my client that he not answer that question on the basis of the fact that the answer may tend to incriminate him. “[Richard Clark]: I will not answer that question, your Honor. “The Court: All right.” *657I The first issue presented in this appeal is whether the defendant adequately preserved his claim that the trial court improperly allowed the state to elicit Clark’s invocation of the fifth amendment privilege during cross-examination in the presence of the jury. Practice Book § 288 provides in pertinent part that “[wjhenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had.” Section 4185 provides in part that the Supreme Court is not “bound to consider a claim unless it was distinctly raised at the trial . . . .” We have noted that “[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986). This rule is essential to avoid trial by ambush. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990). The scenario that triggered the issue in this case occurred when the state was cross-examining Clark as to whether he carried a gun on the night of the incident. When Clark answered no, the state asked “[w]hat did you use to shoot the person that [sic] convicted you of manslaughter?” Both defense counsel and Clark’s attorney objected, and the court sustained the objections. The trial court then excused the jury and, in their absence, the state indicated that it intended to ask Clark about several instances in which he carried a weapon, threatened to use a weapon and did use a weapon, all for the purpose of impeaching Clark’s credi*658bility. Tiernan apprised the court that he would advise Clark to refuse to answer any such questions on the ground that it might incriminate his client. Clark indicated to the court he would follow his attorney’s advice. The state then requested that the jury be brought back so that it could resume its cross-examination of Clark. The defendant objected to the state’s request and the following colloquy occurred. “[Assistant State’s Attorney David Gold]: I intend to ask some questions and if Mr. Tiernan wants to on behalf of his client exercise his client’s rights, I suppose that’s what is going to happen. There is no reason then for any offer of proof and we can bring the jury back if that’s the situation then, that’s the decision. “[Defense Counsel James Radda]: I don’t think that is the way it should happen, judge. I don’t think Mr. Gold is entitled to ask questions as they stand now. He knows Mr. Tiernan is going to tell his client not to answer on the grounds that he may incriminate himself. That’s to Mr. Gold’s advantage. I think Mr. Gold should be made now to make his inquiry outside the presence of the jury and let Mr. Tiernan and Mr. Clark decide whether there’s a risk of incrimination.” The court ordered that the state conduct its voir dire of Clark outside the presence of the jury. After each question was asked, Tiernan advised Clark to avail himself of his fifth amendment privilege against self-incrimination. The court then ruled that it would allow the state to ask the questions of Clark in the presence of the jury, thereby compelling Clark to exercise his privilege before the jury. The defendant objected again: “[James Radda]: I object to this same scenario taking place before the jury. It serves absolutely no purpose whatsoever for a question to be asked that now *659the court knows is not going to be answered on the grounds of the fifth amendment. “The Court: I will overrule the objection. I think the way the matter has arisen that it is proper cross-examination. “[James Radda]: Exception please, judge.” The defendant clearly placed his objections on the record. He stated that it “serves . . . no purpose whatsoever,” and that it was to the state’s advantage. In a nutshell, the defendant objected on the ground that, since the questions would remain unanswered, they served no purpose except to prejudice the defendant before the jury. The defendant took an appropriate exception to the court’s ruling. The state argues that the objection was not sufficient because the defendant did not incorporate the explicit language he now uses in his brief to describe the effects of the ruling. This argument is unavailing because the reasons stated by counsel for the defendant were succinct and adequately alerted the trial court to the basis of the defendant’s objection. We conclude that the trial court and the state were fairly put on notice of the basis for the defendant’s objections;5 see State v. Gonzales, 186 Conn. 426, 433, 441 A.2d 852 (1982); and that the Appellate Court improperly concluded that the defendant’s claim had been inadequately preserved. *660II It is firmly established that “ ‘[njeither [the state nor the defendant] has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him.’ ” State v. Bryant, 202 Conn. 676, 683, 523 A.2d 451 (1987), quoting United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), reh. denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S. Ct. 631, 42 L. Ed. 2d 648 (1974); State v. Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987). “The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.” Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971). Accordingly, we have held that a witness may not be called to the stand in the presence of the jury merely for the purpose of invoking his privilege against self-incrimination. State v. Person, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Bryant, supra; State v. Reddick, 197 Conn. 115, 126-28, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Such testimony is not relevant, and could *661be prejudicial. We conclude, therefore, contrary to the determination of the Appellate Court, that the defendant’s claim has merit. Ill We note that the defendant’s claim that the trial court impermissibly required Clark to invoke the fifth amendment privilege against self-incrimination in the presence of the jury does not present a constitutional issue in this case. State v. Person, supra, 659. It is a claim of evidentiary trial error. Id.; see Namet v. United States, 373 U.S. 179, 186, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963). Thus, the claim is reviewable under the standard of harmless error applicable to nonconstitutional claims; State v. Person, supra, 660; and the defendant bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial. State v. Burak, 201 Conn. 517, 527, 518 A.2d 639 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). In Namet, the United States Supreme Court identified two areas where prejudice can occur. “First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, [262 F.2d 535 (2d Cir. 1959)]. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. *662See also United States v. Tucker, 267 F.2d 212 [3d Cir. 1959]. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. [United States v. Maloney, supra,] 536-37.” Namet v. United States, supra, 186-87; State v. Reddick, supra, 126. In the present case, in order to determine whether the ruling of the trial court was prejudicial, we must consider the invocation of the privilege in response to the specific questions in the context of the circumstances of the case. Clark’s testimony and credibility were critical because he was the only eyewitness; he was a friend of the victim and had accompanied him to the area where the incident occurred; and he was the only defense witness who could support the claim that the defendant did not have or use a gun at the time of the incident, a necessary element of the crime charged.6 Clark’s credibility was impaired because the jury knew that at the time of his testimony he was incarcerated for the crime of manslaughter and that he had a previous conviction for carrying a dangerous weapon. The defendant, already having had his witness come to him saddled with heavy baggage, was also required to contend with those inferences that the jury undoubtably drew as a result of Clark’s “taking the fifth.” This case fits the mold of at least the second area of prejudice outlined in Namet, i.e., “inferences from *663a witness’ refusal to answer . . . [which] unfairly prejudiced the defendant.” Namet v. United States, supra, 187. Here, the state made a conscious and flagrant attempt to induce the jury to draw adverse inferences. It was clear, from the voir dire, that the state knew Clark would invoke the privilege for these specific questions. The state pursued the questions in the presence of the jury, thus allowing the jurors to draw highly prejudicial inferences from the witness’ invocation of his “fifth”; there could be no other purpose. It also added critical weight to the state’s position that the defendant used a gun in his attempt to commit robbery. By casting another shadow on Clark’s credibility, the only witness to support the claim that the defendant had no weapon, it unfairly prejudiced the defendant. Finally, the full impact of the prejudice was underscored by the state’s summation: “[Assistant State’s Attorney David Gold]: Now, Richard Clark. I am going to jump ahead for a minute if I can. Richard Clark comes in yesterday. You know what amazed me is he sat up there and he answered the questions and he told you an entire story and then with that same look, the same composure that he answered all of the questions, he told you the story that this was Mr. Davis’s gun. “The same way he looked at you and told you that it was Mr. Davis’s gun is the same way he looked at you and told you he never carries a gun, he never uses a gun. This is from someone who has been convicted of the crime of manslaughter. “And when questions came to Mr. Clark’s attention that he chose not to answer, he exercised his fifth amendment— “[Defense Attorney James Radda]: I object to that, judge. I’m sorry. *664“The Court: Overrule the objection. “[David Gold]: I’m just—I am not suggesting he doesn’t have a constitutional right to exercise his fifth amendment. He did. But it was interesting, I thought, he looked the same way and said no, I don’t carry a gun, I don’t use a gun and then he did, as is his right, exercised the fifth amendment with that same composure.” The state further argued before the jury: “But when Richard Clark comes in here and he looked you dead in the eye and he says to you I don’t carry a gun, I don’t use a gun dead in the eye and then you hear what you hear, you have to shake your head and say what’s going on. And then when he takes, as is his right, he takes his fifth amendment, we know it is his right to do it, but I think that you can assess his credibility by considering that.” These statements make it clear that the state consciously attempted to use Clark’s invocation of his privilege against self-incrimination to entice the jury to draw an inference that was improper and prejudicial.7 *665The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case for a new trial. In this opinion the other justices concurred. General Statutes § 53a-49 (a) (2) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-134 (a) (2) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... is armed with a deadly weapon.” We granted the defendant’s petition for certification limited to the following issues: “1. Did the Appellate Court properly conclude that the defendant’s claim that the trial court was incorrect in permitting defense witness Richard Clark to invoke his fifth amendment privilege in front of the jury was not adequately preserved and thus did not warrant review on appeal? “2. Did the Appellate Court properly conclude that even if it were to consider the defendant’s claim based upon the trial court’s ruling, the claim was without merit? “3. If the trial court’s ruling was incorrect, was the error harmless?” State v. Dennison, 219 Conn. 901, 593 A.2d 132 (1991). The trial court stated that it was appointing Tiernan to advise Clark of his “constitutional rights so that he can make an informed decision as to whether he wishes to testify.” The state’s reliance on State v. Brice, 186 Conn. 449, 452-58, 442 A.2d 906 (1982), is misplaced. In Brice, the defendant’s objection to the constancy of accusation testimony was based solely on the ground of repetitiousness, but was overruled. Id., 455-56. On appeal, the defendant additionally claimed that the constancy of accusation testimony was inadmissible because it was incumbent upon the victim to testify first that she told the witness of the sexual assault, a ground totally unrelated to that relied upon in the trial court. In the present case, the defendant explicitly stated the grounds he now relies upon and went further by pointing out that requiring Clark to invoke his self-incrimination privilege in the presence of the jury was advantageous to the state. See footnote 2, supra. The Appellate Court relied upon its holding in State v. Person, 20 Conn. App. 115, 118-23, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991), to support its conclusion that the defendant’s claim was without merit. State v. Dennison, 24 Conn. App. 27, 31 n.1, 585 A.2d 1240 (1991). Person is inapposite for several reasons. First, unlike the instant case, the witness in Person, after he initially invoked his fifth amendment privilege against self-incrimination regarding his use of marihuana, subsequently waived his privilege and testified that he never smoked marihuana. The Appellate Court found that “[e]ven if the possibility that the jury drew an impermissible inference from the fact of [the witness’] assertion of the privilege could be seen as being of critical weight, any prejudice to the defendant caused thereby was defused by [the witness’] subsequent testimony denying the use of marihuana.” State v. Person, supra, 122. Second, on certification, we found that the witness’ testimony in Person “was remote from the central issue of the case.” State v. Person, 215 Conn. 653, 663, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991). In the instant case, if the jury had believed Clark, it is clear that the state could not have met its burden of proving the necessary element that the *665defendant committed the robbery with a deadly weapon. Third, in Person, the witness “was not a key witness.” State v. Person, supra, 215 Conn. 662. Here, Clark was the sole eyewitness and the only person capable of supporting the defendant’s version of the events. The present case must also be distinguished from those in which such episodes were “no more than minor lapses through a long trial.” United States v. Hiss, 185 F.2d 822, 832 (2d Cir. 1950). In such cases, curative instructions to the jury are usually sufficient to cure the impropriety. United States v. Amadio, 215 F.2d 605, 613-14 (7th Cir.), rev’d on other grounds, 348 U.S. 892, 75 S. Ct. 218, 99 L. Ed. 701 (1954); Weinbaum v. United States, 184 F.2d 330 (9th Cir. 1950).

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841981/

Callahan, J. During the years 1976 through 1982, the plaintiff, United Technologies Corporation (UTC), was a corporation organized and existing under the laws of the state of Delaware. During those years, UTC did business in Connecticut and, consequently, was subject to the Connecticut corporation business tax embodied in chapter 208 of the General Statutes, Revision of 1958, as amended (corporation business tax).1 The *667defendant was the commissioner of the department of revenue services for the state of Connecticut (commissioner) at the time of the institution of this action and the action was brought against him in his official capacity. For the income years 1976 through and including 1982, UTC was a corporation taxable both within and without Connecticut and therefore subject to the apportionment provisions of General Statutes § 12-218.2 For the years 1976 through 1982, UTC timely filed its Connecticut corporation business tax returns and timely paid in full all taxes and charges that its calculations indicated were due. Thereafter, the commissioner conducted an audit of UTC’s corporation business tax returns for the years 1976 through 1982. As a result, on August 2,1986, the commissioner notified UTC that he had assessed additional corporation business taxes and interest. The disputed portion of the commissioner’s increased assessment was based on his determination that UTC was not allowed to utilize, and should not have utilized operating loss carryovers from 1979 and 1980 in computing its net income for the year 1981. The additional assessment attributable to the commissioner’s disallowance of UTC’s use of its operating loss carryovers in computing its 1981 corporation business tax increased UTC’s corporation business tax liability for that year from $231,316, which UTC had previously acknowledged and paid, to $4,254,897 plus interest. *668Subsequently, UTC paid to the commissioner the amount shown as the total due on the commissioner's notice of additional assessment dated August 2,1986. At the same time, UTC filed a request pursuant to General Statutes § 12-2363 for a hearing and a correction of the amount of the additional taxes and interest assessed by the commissioner. The commissioner denied UTC’s request for a hearing. Thereafter, UTC filed this appeal pursuant to General Statutes § 12-237.4 *669At the request of the parties, the single issue of law in controversy between them was later reserved by the trial court for the advice of the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023. The single issue reserved for the advice of the court is: “For the purposes of the Connecticut corporate business tax, is a taxpayer entitled to utilize its operating loss carryovers from 1979 and 1980 in computing its net income or loss under Connecticut General Statutes § 12-219 (1) (B) (i) for 1981 and 1982?”5 No evidence was taken in the trial court and the parties have filed a stipulation containing the facts necessary for a resolution of the reserved question. In order to answer the reserved question it is necessary to review briefly the relevant history of the corporation business tax. The parties stipulated that prior to the income year 1981, taxpayers subject to the corporation business tax were required to compute their business tax liability using whichever of three methods yielded the highest tax: (a) the “regular tax” imposed by General Statutes § 12-214,6 which was generally *670equal to 10 percent of the net income of the taxpayer; (b) the “alternative tax” imposed by General Statutes *671§ 12-219 (1) (A),7 which was generally equal to 3/10 mills per dollar of average net book value of the taxpayer, up to a maximum tax of $100,000, plus under *672§ 12-219 (1) (A) and General Statutes § 12-223c, the sum of $250 for each company, other than the taxpayer, included in the taxpayer’s combined return; or (c) the “minimum tax” of $250 per corporation included in a *673combined return pursuant to §§ 12-219 (1) (A)8 and 12-223c.9 In January, 1981, however, the legislature amended § 12-219 to provide that in addition to the three bases of computation noted above, corporations would also be required to compute their corporation business tax liability under a fourth measure of the tax popularly known as the “fourth base.” Under the “fourth base,” corporations were required to pay a tax at a rate of 5 percent measured by 50 percent of the net income or loss of the corporation received from business transacted within Connecticut, plus 50 percent of the salaries and other compensation, apportioned to Connecticut, paid to officers of the corporation and certain shareholders. General Statutes § 12-219 (1) (B).10 *674“The new additional tax base embodied in § 12-219 (1) (B) was enacted as a parallel provision to the Unincorporated Business Tax, General Statutes § 12-610 et seq. See 24 S. Proc., Pt. 10,1981 Sess., p. 3308; 24 H.R. Proc., Pt. 15, 1981 Sess., p. 5077. The *675unincorporated business tax, which has since been repealed; see Public Acts, Spec. Sess., November, 1981, No. 81-4, §§ 31, 32 (7); imposed a 5 percent tax on the taxable net income of unincorporated Connecticut businesses whose gross income exceeded $50,000. General Statutes § 12-611. While certain deductions from gross income were allowed in computing taxable net income; see General Statutes §§ 12-612,12-615; a business could not deduct amounts paid to a proprietor or partner for services rendered. See General Statutes § 12-612 (1). “AVhile the legislature was considering passage of the unincorporated business tax, one of its main concerns was whether unincorporated businesses would incorporate in order to avoid the new tax. See 24 S. Proc., Pt. 7,1981 Sess., p. 2118. In other words, an unincorporated business, faced with the prospect of paying the new tax, might well decide to incorporate and then to ‘drain away’ its taxable income by paying it to officers and shareholders in the form of salaries, bonuses and other benefits, those amounts being deductible in computing the net income of a corporation. See General Statutes § 12-217. The new additional tax base of § 12-219 (1) (B) was added to the corporate tax structure to prevent this method of circumventing the unincorporated business tax. 24 S. Proc., Pt. 10,1981 Sess., p. 3308. Under § 12-219 (1) (B) (ii), ‘salaries and other compensation’ paid to officers and 1 percent shareholders, which were deducted in computing the net income of a corporation, were to be added back to net income in calculating the corporation’s tax base.” (Emphasis in original.) George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 205-206, 524 A.2d 603 (1987). For the income years 1979 and 1980, UTC had operating losses apportioned to Connecticut in the amounts of $102,414,410 and $76,596,988, respectively. In computing its tax liability for the year 1981, UTC carried over those operating losses so as to reduce its net *676income to zero for use in computing the amount of corporation business tax that it owed for 1981 for purposes of both the “regular tax” imposed by § 12-214 and the “fourth base” tax imposed by § 12-219 (1) (B).11 Because the “regular tax” was determined simply by multiplying net income by 10 percent under that method of calculation, UTC owed no business tax for 1981. Under the “fourth base” tax of § 12-219 (1) (B), however, although its operating loss carryovers reduced UTC’s net income to zero, it was required to add back salaries and other compensation paid to officers in the amount of $8,532,635. Fifty percent of that amount at a tax rate of 5 percent yielded a tax of $213,316. That being the highest tax payable under the four bases for determining liability, UTC paid that amount of corporation business taxes for the year 1981. The commissioner, however, contends that while UTC correctly deducted its operating loss carryovers in calculating net income and its consequent corporation business tax liability for 1981 under the “regular tax” of § 12-214, it was not allowed to use, and incorrectly used, its operating loss carryovers in determining its net income and consequent corporation business tax liability under the “fourth base” of § 12-219 (1) (B) (i). We disagree. “Net income” under § 12-219 (1) (B) (i) was stated to be: “net income as defined in this chapter.” The sole definition of “net income” in chapter 208, concerning the imposition and payment of the corporation business tax, was contained in § 12-213,12 which defined “net *677income,” in relevant part, as “net earnings received during the income year . . . computed by subtracting from gross income the deductions allowed by the terms of section 12-217 . . . .” In turn, § 12-217 provided in relevant part that “[notwithstanding anything in this section to the contrary, (1) any excess of the deductions provided in this section for any income year commencing on or after January 1,1973, over the gross income for such year or the amount of such excess apportioned to this state under the provisions of section 12-218, shall be an operating loss of such income year and shall be deductible as an operating loss carryover in each of the five income years following such loss year, provided the portion of such operating loss which may be deducted as an operating loss carryover in any income year following such loss year shall be limited to . . . (i) any net income greater than zero of such income year following such loss year, or in the case of a company entitled to apportion its net income under the provisions of section 12-218, the amount of such net income which is apportioned to this state thereto . . . .” (Emphasis added.) As previously noted, the commissioner has stipulated that UTC sustained the operating losses, apportionable to Connecticut, previously indicated for the years 1979 and 1980. It would appear then, that under a plain reading of the pertinent statutes, UTC was entitled to carry over those operating losses to reduce its net income to a number not less than zero, for purposes of § 12-219 (1) (B) (i), until the carryovers were exhausted, for each of the five income years following the loss years. See Murphy v. State Employees Retirement Commission, 218 Conn. 729, 735, 590 A.2d 974 (1991). The commissioner has failed to provide us with *678a compelling reason why that is not so or why the meaning conveyed by the plain reading of the statutes is not the proper one. See Tiernan v. Trustees of California State University & Colleges, 33 Cal. 3d 211, 218-19, 655 P.2d 317, 188 Cal. Rptr. 115 (1982); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 46.01, p. 74.13 The commissioner, moreover, has conceded that UTC properly used its operating loss carryovers to reduce its net income to zero in 1981, under the “regular tax” of § 12-214, with the result that there was no corporation business tax due the commissioner from UTC under that section. He insists, however, that the same operating loss carryovers could not and should not have been used by UTC to reduce its net income under § 12-219 (1) (B) (i). The commissioner’s positions are inconsistent. Both §§ 12-214 and 12-219 (1) (B) (i) provide that “net income” is the “entire net income [as defined in chapter 208] received by such corporation or association from business transacted within the state during the income year . ...” As previously indicated, “net income” is defined in § 12-213 as “net earnings received during the income year . . . computed by subtracting from gross income the deductions allowed by the terms of section 12-217,” and § 12-217 allows the deduction of operating loss carryovers. If we were to conclude that corporate taxpayers were allowed to use operating loss carryovers to arrive at “net income” under § 12-214 but not allowed to use operating loss carryovers to determine “net income” under *679§ 12-219 (1) (B) (i), we would be attributing two different meanings to the same term, “net income,” in the same statutory scheme. Such a result is contrary to both common sense and the rules of statutory construction. Board of Education v. State Board of Labor Relations, 217 Conn. 110, 116, 584 A.2d 1172 (1991); Plasticrete Block & Supply Corporation v. Commissioner, 216 Conn. 17, 27, 579 A.2d 20 (1990); Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 432, 572 A.2d 951 (1990); 73 Am. Jur. 2d, Statutes § 232. Furthermore, we have found nothing in our search of the legislative history of § 12-219 (1) (B), nor has the commissioner called our attention to anything in that history, that would lead us to believe that the legislature intended that operating loss carryovers, while deductible to arrive at net income under § 12-214, were not deductible for that purpose under § 12-219 (1) (B) (i). In summary, there is no indication from any persuasive source that would induce us to conclude that the meanings or interpretations of the term “net income” in §§ 12-214 and 12-219 (1) (B) (i) were to be dissimilar or that “net income” consisted of different components depending on which of the two statutes was applied. An interpretation of § 12-219 (1) (B) (i) that allowed for the use of operating loss carryovers in arriving at net income would also be compatible with the genesis of that section. As we stated in George P. Gustin Associates, Inc. v. Duhno, supra, 205-206, § 12-219 (1) (B) was passed in 1981 in order to foreclose attempts by unincorporated businesses to circumvent the newly enacted unincorporated business tax by incorporating and paying out all their earnings to principals in salaries and other compensation and thus avoiding payment of business taxes altogether.14 Obviously, the elimination of *680operating loss carryovers was not necessary to accomplish the purpose for which the statute was enacted. Taxing the salaries and other compensation paid corporate officers would have achieved the intended purpose. See Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn 529, 536, 494 A.2d 555 (1985). Also if the legislature had intended such a radical departure from the established method of calculating net income, a method that the commissioner concedes is allowed under § 12-214, a statute enacted many years prior to § 12-219 (1) (B), it surely would have manifested clearly its intention to do so. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954); Kinney v. State, 213 Conn. 54, 66, 566 A.2d 670 (1989); Nor’easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 481, 542 A.2d 692 (1988); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979). The commissioner would have us conclude, however, that it was the legislative intent, in order to enforce the new unincorporated business tax, to enact a tax statute that had the potential to raise a taxpayer’s corporation business tax liability astronomically, in this instance from zero under § 12-214 and a maximum of $100,000 under § 12-219 (1) (A), to well over $4,000,000 under § 12-219 (1) (B), without any indication in the newly enacted legislation that it was doing so. The commissioner would have us determine, moreover, that this was done without any discussion or mention of that potential tax increase in either house of the legislature during the debate on the bill embodying the statute. *681Furthermore, as UTC points out in its brief, the purpose of allowing operating loss carryovers is to mitigate the rigidity of the annual accounting period; J. Mertens, Law of Federal Income Taxation (1987) § 29.01, p. 3; and “enable a taxpayer to average income and losses over a period of years to reduce the disparity between the taxation of businesses that have stable income and businesses that experience fluctuations in income.” Williamson, 9-4th T.M., Net Operating Losses—Concepts and Computations, A-l (1988). “An inequitable tax burden would result if companies were taxed during profitable periods without receiving any relief during periods of net operating losses.” D. Kieso & J. Weygandt, Intermediate Accounting (6th Ed. 1989) p. 939. We fail to understand why, if viable under the “regular tax” of § 12-214, the policy of averaging out income and losses is inapplicable to the “fourth base” tax of § 12-219 (1) (B) (i). The policy supporting the use of operating loss carryovers to reduce income is no less compelling under § 12-219 (1) (B) (i) than it is under § 12-214 and we see no justification for disparity in their treatment under the two statutes. We continue to believe, as we stated in George P. Gustin Associates, Inc. v. Dubno, supra, 200, that the first step in ascertaining the corporation business tax under § 12-219 (1) (B) was “to compute the Connecticut net income in the same manner as under the net income base of § 12-214.” (Emphasis added.)15 *682We conclude that by the enactment of § 12-219 (1) (B) the legislature did not intend to prohibit the use of operating loss carryovers to compute net income and consequent corporation business tax liability under that section. The answer to the reserved question is yes. No costs shall be taxed to either party. In this opinion the other justices concurred. “The Connecticut corporation business tax; General Statutes § 12-213 et seq.; is a tax upon the franchise of corporations, whether they be domestic or foreign, ‘for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity . . . .’General Statutes § 12-214; Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 247, 423 A.2d 883 (1979); Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 56, 61 A.2d 89 (1948); Stanley Works v. Hackett, 122 Conn. 547, 551, 190 A. 743 (1937); Underwood Typewriter Co. v. Chamberlain, 94 Conn. 47, 55, 108 A. 154 (1919), aff’d, 254 U.S. 113, 41 S. Ct. 45, 65 L. Ed. 165 (1920).” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 415, 521 A.2d 569 (1987). “[General Statutes (Rev. to 1983)] Sec. 12-218. APPORTIONMENT OF NET income. Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, or if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax. . . .” “[General Statutes (Rev. to 1987)] Sec. 12-236. hearing by commissioner. Any taxpayer, aggrieved by the action of the commissioner or his authorized agent in fixing the amount of any tax, penalty or interest provided for by this part, may apply to the commissioner, in writing, within thirty days after the notice of such action is delivered or mailed to it, for a hearing and a correction of the amount of the tax, penalty or interest so fixed, setting forth the reasons why such hearing should be granted and the amount in which such tax, penalty or interest should be reduced. The commissioner shall promptly consider each such application and may grant or deny the hearing requested. If the hearing is denied, the applicant shall be notified thereof forthwith. If it is granted, the commissioner shall notify the applicant of the time and place fixed for such hearing. After such hearing the commissioner may make such order in the premises as appears to him just and lawful and shall furnish a copy of such order to the applicant. The commissioner may, by notice in writing, at any time within three years after the date when any return of any taxpayer has been due, order a hearing on his own initiative and require the taxpayer or any other individual whom he believes to be in possession of relevant information concerning the taxpayer to appear before him or his authorized agent with any specified books of account, papers or other documents, for examination under oath.” “[General Statutes (Rev. to 1987)] Sec. 12-237. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a com*669mittee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.” The parties have briefed only the question whether UTC was entitled to use its operating loss carryovers from 1979 and 1980 in computing its net income or loss under General Statutes § 12-219 (1) (B) (i) for the year 1981. We will therefore specifically address only that year. Our conclusions, however, as to the application of operating loss carryovers vis-a-vis § 12-219 (1) (B) (i) would also apply to the year 1982. “[General Statutes (Rev. to 1981)] Sec. 12-214. imposition of tax. Every mutual savings bank, savings and loan association and every company engaged in the business of carrying passengers for hire over the highways of this state in common carrier motor vehicles doing business in this state, *670and every other company carrying on, or having the right to carry on, business in this state, including a dissolved corporation which continues to conduct business, except (1) as to income years beginning prior to January 1,1973, insurance companies, and as to income years beginning on or after January 1,1973, insurance companies incorporated or organized under the laws of any other state or foreign government, (2) companies exempt by the federal corporation net income tax law, and any company which qualifies as a Domestic International Sales Corporation (DISC) as defined in Section 992 of the Internal Revenue Code of 1954, as amended, and as to which a valid election under Subsection (b) of said Section 992 to be treated as a DISC is effective, but excluding companies, other than any company which so qualifies as, and so elects to be treated as, a DISC, which elect not to be subject to such tax under any provision of said Internal Revenue Code other than said Subsection (b) of said Section 992, (3) companies subject to gross earnings taxes under chapter 210, (4) companies all of whose properties in this state are operated by companies subject to such gross earnings taxes but not subject to the tax imposed by this part, (5) nonprofit cooperative ownership housing stock and nonstock corporations, when residence in such housing is restricted to members of the corporation and ownership in such corporation is restricted to occupants of such housing, (6) cooperative housing corporations, as defined for federal income tax purposes, where there is no taxable income to the corporation; (7) any organization or association of two or more persons established and operated for the exclusive purpose of promoting the success or defeat of any candidate for public office or of any political party or question or constitutional amendment to be voted upon at any state or national election or for any other political purpose and (8) individually owned companies whose gross annual revenues in the most recently completed year did not exceed one hundred million dollars and who engaged in the research, design, manufacture, sale or installation of alternative energy systems, including their parts and components, where such companies net income is directly attributable to such purposes, shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity or as an unincorporated association taxable as a corporation for federal income tax purposes or maintaining an office within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year and to be assessed for each income year which begins on and after January 1, 1975, at the rate of ten per cent; provided, for income years beginning prior to January 1,1974, the rate applicable to insurance companies subject to tax under this section shall be two per cent. The exemption of companies included in subdivision (8) of this section shall not be allowed after July 1, 1985.” “[General Statutes (Rev. to 1981)] Sec. 12-219. additional tax. (1) For each income year beginning on or after January 1,1973, for which the tax calculated under subdivision (A) of this section exceeds the tax imposed by section 12-214, each company subject to the provisions of this part, except savings banks, Morris plan companies, corporations qualified under the laws of the United States as small business investment companies and state banks and trust companies incorporated under the laws of this state and production credit associations and savings and loan associations and banks incorporated under the laws of the federal government and The Connecticut Development Credit Corporation, shall pay for the privilege of carrying on or doing business within the state, in addition to the tax imposed by section 12-214, an additional tax of the amount by which the tax calculated under subdivision (A) of this section for such income year exceeds the tax imposed by section 12-214. In the case of a company other than a regulated investment company or real estate investment trust, the tax calculated under this section shall be: (A) A tax of thirty-one one hundredths of a mill per dollar for each income year of the amount derived (a) by adding (i) the average value of the issued and outstanding capital stock, including treasury stock at par or face value, fractional shares, script certificates convertible into shares of stock and amounts received on subscriptions to capital stock, computed on the balances at the beginning and end of the taxable year or period, the average value of surplus and undivided profit computed on the balances at the beginning and end of the taxable year or period, and (ii) the average value of all surplus reserves computed on the balances at the beginning and end of the taxable year or period, (b) by subtracting from the sum so calculated (i) the average value of any deficit carried on the balance sheet computed on the balances at the beginning and end of the taxable year or period, and (ii) the average value of any holdings of stock of private corporations including treasury stock shown on the balance sheet computed on the balances at the beginning and end of the taxable year or period, and (c) by apportioning the remainder so derived between this and other states under the provisions of section 12-219a, provided in no event shall the tax so calculated exceed one hundred thousand dollars or be less than fifty dollars. For each income year beginning on or after January 1, 1972, in the case of any regulated investment company or real estate investment trust, which, in arriving at net income as defined in section 12-213, is entitled to a deduction under section 12-217 for dividends paid as defined in the federal corporation income tax law, the tax calculated under this subdivision shall not exceed ten thousand dollars and shall be calculated at the rate of five-tenths of one mill per dollar of the amount derived by adding the average value of the issued and outstanding *672capital stock including treasury stock at par or face value, fractional shares, script certificates convertible into shares of stock and amounts received on subscriptions to capital stock, computed on the balances at the beginning and end of the taxable year or period, and the average value of surplus and undivided profits computed on the balances at the beginning and end of the taxable year or period, provided, where the remainder so derived as aforesaid is apportioned between this state and other states under the provisions of section 12-219a, the tax calculated under this subdivision for any such company shall not exceed the lesser of ten thousand dollars and the tax calculated under this sentence, multiplied, in either case, by a fraction the numerator of which is the additional tax base apportioned to this state under section 12-219a and the denominator of which is the entire additional tax base. The tax shall, in no case, be less than fifty dollars for any income year. For purposes of this subdivision, in the case of a new domestic company, the balances at the beginning of its first fiscal year or period shall be the balances immediately after its organization or immediately after it commences business operations, whichever is earlier; and in the case of a foreign company, the balances at the beginning of its first fiscal year or period in which it becomes liable for the filing of a return in this state shall be the balances as established at the beginning of the fiscal year or period for tax purposes. In the case of a domestic company dissolving or limiting its existence, the balances at the end of the fiscal year or period shall be the balances immediately prior to the final distribution of all its assets; and in the case of a foreign company filing a certificate of withdrawal, the balances at the end of the fiscal year or period shall be the balances immediately prior to the withdrawal of all of its assets. When a taxpayer has carried on or had the right to carry on business within the state for eleven months or less of the income year, the tax calculated under subdivision (A) of this section shall be reduced in proportion to the fractional part of the year during which business was carried on by such taxpayer. The tax calculated under subdivision (A) of this section shall, in no case, be less than fifty dollars for each income year. The taxpayer shall report the items set forth in subdivision (A) of this section at the amounts at which such items appear on its books; provided, when, in the opinion of the commissioner of revenue services, the books of the taxpayer do not disclose a reasonable valuation of such items, the commissioner may require any additional information which may be necessary for a reasonable determination of the tax calculated under subdivision (A) of this section and shall, on the basis of the best information available, calculate such tax and notify the taxpayer thereof.” It appears that the figures stipulated to are not entirely accurate. Prior to the January, 1981 legislative session, the amount paid for each corporation included in a joint return was $50. The revision of General Statutes § 12-219 enacted in that term raised that amount to $250. See General Statutes (Rev. to 1988) § 12-219. For purposes of this opinion, however, the inaccuracy is inconsequential. “[General Statutes (Rev. to 1981)] Sec. 12-223c. minimum tax in combined return. Each corporation included in a combined return, other than the corporation whose tax is computed and paid on the combined basis, shall pay the minimum tax of fifty dollars prescribed under section 12-219.” General Statutes (Rev. to 1983) § 12-219 (1) (B) provides: “additional TAX IN THE AMOUNT BY WHICH ALTERNATIVE COMPUTATIONS EXCEED TAX UNDER SECTION 12-214. MINIMUM TAX. [Text of section applicable to income years of corporations before January 1, 1983\ “(1) For each income year beginning on or after January 1, 1973, for which the tax calculated under subdivision (A) of this section, or subdivision (B) of this section with respect to any company the gross income of which exceeds fifty thousand dollars in such income year, whichever is higher, exceeds the tax imposed by section 12-214, each company subject to the provisions of this part, except savings banks, Morris plan companies, corporations qualified under the laws of the United States as small business investment companies and state banks and trust companies incorporated under the laws of this state and production credit associations and savings and loan associations and banks incorporated under the laws of the federal government and The Connecticut Development Credit Corporation, shall pay for the privilege of carrying on or doing business within *674the state, in addition to the tax imposed by section 12-214, an additional tax of the amount by which the tax calculated under subdivision (A) or subdivision (B) of this section, whichever is higher, for such income year exceeds the tax imposed by section 12-214. In the case of a company other than a regulated investment company or real estate investment trust, the tax calculated under this section shall be ... (B) A tax to be measured by fifty per cent of (i) the net income or loss of such corporation or association but only to the extent that said income or loss is allocated and apportioned to this state, which income is the entire net income as defined in this chapter received by such corporation or association from business transacted within the state during the income year and which loss is the net loss of such corporation or association related to business transacted within the state during the income year, plus (ii) salaries and other compensation paid to the elected or appointed officers of such corporation or association, and to every shareholder owning in excess of one percent of the issued capital stock of such corporation or association, apportioned to this state by means of the apportionment fraction determined under subdivision (3) of section 12-218, at the rate of five per cent. The provisions of section 12-219a shall not apply to this subdivision. For purposes of this subdivision, the term ‘elected or appointed officer’ shall include the chairman, president, vice president, secretary, assistant secretary, treasurer, assistant treasurer, comptroller and any other person, irrespective of his title, who is charged with and performs any of the regular functions of any such officer. A director shall be considered an elected or appointed officer only if he performs duties ordinarily performed by an officer. When a taxpayer has carried on or had the right to carry on business within the state for eleven months or less of the income year, the tax calculated under subdivision (A) of this section shall be reduced in proportion to the fractional part of the year during which business was carried on by such taxpayer. The tax calculated under subdivision (A) or subdivision (B) of this section shall, in no case, be less than two hundred fifty dollars for each income year. The taxpayer shall report the items set forth in subdivision (A) of this section at the amounts at which such items appear upon its books; provided, when, in the opinion of the commissioner of revenue services, the books of the taxpayer do not disclose a reasonable valuation of such items, the commissioner may require any additional information which may be necessary for a reasonable determination of the tax calculated under subdivision (A) of this section and shall, on the basis of the best information available, calculate such tax and notify the taxpayer thereof.” Because the other methods of determining corporation business tax liability did not entail a tax on net income, these two methods are the only ones in issue. Under General Statutes § 12-219 (1) (A), UTC’s corporation business tax liability would have been $100,000, plus $250 for each affiliated company included in its combined return. Under General Statutes §§ 12-219 (1) (A) and 12-223c its corporation business tax liability would have been $5750. “[General Statutes (Rev. to 1983)] Sec. 12-213. definitions. When used in this part, unless the context otherwise requires . . . ‘net income’ means net earnings received during the income year and available for con*677tributors of capital, whether they are creditors or stockholders, computed by subtracting from gross income the deductions allowed by the terms of section 12-217 . . . .” In a case addressing the exact issue found in this case, the Superior Court (Aspell, J.) concluded that a plain reading of the applicable statutes allowed the use of operating loss carryovers as a deduction under General Statutes § 12-219 (1) (B). Distributor Publications v. Commissioner of Revenue Services, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 299080 (October 14, 1987). The unincorporated business tax was repealed for income years commencing on or after January 1,1983. Public Acts, Spec. Sess., November, *6801981, No. 4, §§ 31, 32 (7). Because the repeal of the unincorporated business tax eliminated the need for the “fourth base” of General Statutes § 12-219 (1) (B), it was also repealed at the same time. See id., § 30. Section 12-219 (1) (B) was in existence, therefore, only for the years 1981 and 1982. The commissioner also contends that UTC’s interpretation of General Statutes § 12-219 (1) (B) is incorrect because hypothetically it could result in the double utilization of a deduction. He argues that theoretically a loss could lower the salary component of § 12-219 (1) (B) in the loss year and also be carried over as an operating loss in ensuing years. While that may have been possible, a similar result was also theoretically possible under the unincorporated business tax. Because § 12-219 (1) (B) and the unincorporated business tax were intended to be “parallel taxes,” that argument of the commissioner is unavailing. See George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 206, 524 A.2d 603 (1987). Moreover, in this instance, such a double deduction did not occur and could not have occurred because the operating losses carried over by UTC were incurred in years prior to the effective date of § 12-219 (1) (B) and the utilization of the salary component.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841983/

Berdon, J. The principal issue in this case is whether the plaintiff, Unisys Corporation, is entitled to an evidentiary hearing to determine whether it has standing to enjoin the state from awarding a purchase contract. The plaintiff appeals from the trial court’s decision granting the defendants’ motion to dismiss. We reverse and remand for further proceedings. The relevant facts are as follows. The defendant department of administrative services, on behalf of the named defendant, the department of labor (collectively hereinafter referred to as the state), issued two requests for proposals (RFPs) for the purchase of computer equipment, software and services.1 The plaintiff *691alleges in its complaint that the RFPs were not based upon competitive bidding as required by General Statutes § 4a-572 and that it was prevented from submitting a bid because the RFPs requested “single source” specifications—that is, the RFPs’ specifications were limited to the make, model number and particular equipment and software available only from International Business Machines Corporation (IBM), which was also made a party defendant in this action. The plaintiff further alleges in its complaint that it manufactures and supplies computer equipment and software equivalent to that of IBM, that it currently supplies the state with computer equipment and software, that the RFPs do “not permit proposals based upon equivalent computer equipment or software made by other manufacturers” and, therefore, that it did not submit a bid. The plaintiff also alleges that the state engaged in acts of favoritism to IBM that undermined the object and integrity of the competitive bidding process. Specifically, the plaintiff alleges that the state drafted the RFPs in reliance on information it received from IBM so that it would favor IBM over other vendors. Further, the plaintiff alleges that the state provided information to IBM that was relevant to the RFPs, but that information was not provided to other vendors who received the RFPs. On the basis of these allegations, the plaintiff sought injunctive relief to prevent the state from either opening and examining proposals submitted in response to the RFPs or entering into a contract based on the RFPs. The plaintiff also requested “further relief as is just and proper.” *692The trial court, O’Neill, J., granted the defendants’ motion to dismiss the complaint3 on the grounds that the plaintiff was not aggrieved in a contested case and had “never [been] in a contested case,” and that the plaintiff had not exhausted its administrative remedies under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. In essence, the trial court found that the plaintiff lacked standing because it had not submitted a bid pursuant to the RFPs. The trial court also found that there were no facts to support “favoritism” as alleged in the second count of the complaint. The trial court did not address the taxpayer’s standing issue raised by the plaintiff, or the state’s claim of sovereign immunity. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. We conclude that the plaintiff should have been given an evidentiary hearing to afford it the opportunity to prove that it does have standing. Accordingly, we reverse the judgment of dismissal and remand the case for further proceedings. *693It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. “ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ ” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a ‘personal stake in the outcome of the controversy’; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975) . . . provides the requisite assurance of ‘concrete adverseness’ and diligent advocacy.” (Citations omitted in part.) Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The plaintiff maintains that, in this case, it has sufficiently alleged standing in its pleadings on one of two grounds, either as a potential competitor aggrieved by irregularities in the bidding process, or as a taxpayer. It seeks the opportunity to establish such standing at an evidentiary hearing. We agree that such a hearing should be held. The plaintiff’s standing as a competitor injured by the bidding process flows from our holding in Ardmare *694Construction Co. v. Freedman, supra, 503, where we held that the decision to reject a bid or to award a contract is not a contested case under the Uniform Administrative Procedure Act and, therefore, does not permit a challenge to the state’s decision by way of an administrative appeal. Nevertheless, we went on to reaffirm our holding in Spiniello Construction Co. v. Manchester, 189 Conn. 539, 544, 456 A.2d 1199 (1983), that the “[cjourts will intervene . . . where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of [the] . . . officials.” Ardmare Construction Co. v. Freedman, supra, 504-505. Although in Spinielb Construction Co. the plaintiff who sought the injunction was a bidder, in Ardmare Construction Co. we did not tailor the remedy solely to that class of persons. Indeed, we quoted with approval from Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970), the following: “ ‘[T]he public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a “private attorney general.” ’ ” (Emphasis added.) Ardmare Construction Co. v. Freedman, supra, 504. In Ardmare Construction Co., we pointed out that the scope of our holding in Spinielb Construction Co. was “to strike the proper balance between fulfilling the purposes of the competitive bidding statutes and preventing frequent litigation that might result in extensive delay in the commencement and completion of government projects to the detriment of the public.” Ardmare Construction Co. v. Freedman, supra, 505. In the present case, if the plaintiff establishes that it would have submitted a bid if not *695for the single source specifications, its status would, for purposes of standing, be the equivalent of one who had submitted a bid.4 See Gerzof v. Sweeney, 16 N.Y.2d 206, 211 N.E.2d 826, 264 N.Y.S.2d 376 (1965); 10 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1990) § 29.49. The plaintiff also claims it has standing because it is a taxpayer. See Ardmare Construction Co. v. Freedman, supra, 505 n.12; Austin v. Housing Authority, 143 Conn. 338, 122 A.2d 399 (1956). The plaintiff, however, merely alleges in its complaint and in the affidavit of Robens that it is a federal and state taxpayer, but fails to allege in what manner it is harmed as a taxpayer. “A taxpayer is not entitled to an injunction restraining such illegal conduct as the plaintiff claims unless he has suffered a pecuniary or other direct loss in that capacity.” Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943). Therefore, we do not reach this issue of whether it could have standing as a federal or state taxpayer. Accordingly, we conclude that the plaintiff in this case would have standing if it is able to prove that it would have submitted a bid on the RFPs but for the single source specifications, that its equipment and software is equivalent to that specified in the RFPs and that the restrictions of the single source specifications undermined the object and integrity of the competitive bidding process, or that there was proof of favoritism. With respect to this issue of standing—that is bidder injury—questions of fact were raised and the trial court should have allowed an evidentiary hearing. “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that *696a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. The trial court erred in not holding such a hearing.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). We further note that although the governing statute in this state does not specifically permit single source specifications, it does provide that contracts for purchase “be based, when possible, on competitive bids.” General Statutes § 4a-57.5 Under § 4a-57, RFPs are not necessarily illegal merely because the specifications of the RFPs can be met by only one vendor. As the New York Court of Appeals pointed out in Gerzof, “[m]ore must appear in order to render the specifications and the contract based thereon illegal . . . since a particular product, that is, one marketed by only one manufacturer, may be required in the public interest. However, an objectionable and invalidating element is introduced when specifications are drawn to the advantage of one manufacturer not for any reason in the public interest but, rather, to insure the award of the contract to that particular manufacturer.” (Citations omitted.) Gerzof v. Sweeney, supra, 211. In this case, the plaintiff alleges that it manufactures and supplies computer equipment and software equivalent to those specified in the RFPs and that the RFPs were written in a manner to favor IBM over other vendors. The defendants raise two additional claims pertaining to the jurisdiction of the court. First, the state claims that this court lacks jurisdiction because the appeal is now moot. It argues that “[tjhere has been agreement [between the state and IBM] as to all contracts under which work has been commenced and over one-half of the $5,000,000.00 plus program involving RFP’s . . . has been expended already.” The state *697further argues that because the work has commenced, the injunctive relief that the plaintiff seeks cannot be granted. It relies, for this mootness claim, upon Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293 (1895). We have quoted Mills with approval as follows: “ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect .... It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court ... to grant [the plaintiff] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.’ ” Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 497-98, 522 A.2d 264 (1987). The state’s argument, however, ignores General Statutes § 4a-65, which provides in pertinent part: “When any state agency purchases or contracts for any supplies, materials, equipment or contractual services contrary to the provisions of this chapter or the regulations promulgated in pursuance thereof, such order or contract shall be void and of no effect.” If the plaintiff’s claims in this action are sustained, any contract or other agreement with IBM will be null and void. The plaintiff’s claims are not moot.6 Second, the defendants raise the shield of sovereign immunity. This claim has no merit. Although suits against an officer or a department of the state, as in the present case, are in effect against the state; Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981); sovereign immunity does not bar suits against officials of the state who act in excess of their *698statutory authority, as the plaintiff alleges herein. Savage v. Aronson, 214 Conn. 256, 264, 571 A.2d 696 (1990). The judgment is reversed and the case is remanded for an evidentiary hearing on the defendants’ motion to dismiss. In this opinion the other justices concurred. The plaintiff alleges in its complaint that the two RFPs issued specified the following: RFP 105 sought bids for “the purchase of certain computer equipment, software, system support services and other services described as: ‘the purchase of an IBM 9121-320, related peripherals and software; system support to convert/modify/install GUIDE (Public Domain Software) using DB/2 as the data base platform; system support within the implementation of FARS; system support to convert UNISYS application onto the IBM platform; and other related services.’ ” RFP 110 sought “proposals for some of the services included in RFP 105 in connection with the purchase on installation of IBM equipment and software pursuant to RFP 105.” General Statutes § 4a-57 (a) provides in pertinent part: “All purchases of, and contracts for, supplies, materials, equipment and contractual services, except gas, water and electric light and power services, and purchases and contracts made pursuant to the provisions of subsection (c) of this section shall be based, when possible, on competitive bids.” In conjunction with this action, on November 29, 1990, the plaintiff obtained an ex parte temporary order from the court, Maloney, J., restraining the state from entering into a contract or purchase based upon the RFPs. The court issued an order directing the defendants to appear on December 10,1990, to show cause why a temporary injunction should not issue. On December 7, 1990, the state filed both an objection to the temporary injunction and the motion to dismiss, claiming the plaintiff lacked standing to bring the action. IBM orally joined in this motion. The state also argued that the plaintiffs suit was barred by the doctrine of sovereign immunity. The court, O ’Neill, J., continued the hearing on the temporary injunction to December 18,1990; it also ordered that the temporary restraining order be continued until that date and stated that it would consider the motion to dismiss during the interim. On December 18,1990, the trial court granted the motion to dismiss on the ground that the plaintiff lacked standing, and denied the plaintiff’s request for an evidentiary hearing to prove its allegations of standing. Accordingly, the plaintiff, for the purposes of this appeal, relies on the allegations of its complaint and the affidavit of Joseph M. Robens, its branch manager, which was submitted in support of its request for injunctive relief and in opposition to the motion to dismiss. Robens’ affidavit stated in part that the plaintiff “would submit a proposal in response to RFP 105 and RFP 110 but for the fact that RFP 105 specifies IBM equipment only, by make and model number, and does not permit functionally equivalent products, or even specify what functions are required.” See footnote 2, supra. Although the prayer for relief seeks to enjoin the state from opening and examining bids and entering into a contract pursuant to the RFPs, it also seeks “such other and further relief as is just and proper . . .’’under which appropriate relief can be given.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841984/

Shea, J. After a jury trial the defendant, Robert K. Jeffrey, was convicted of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)1 and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A).2 He was subsequently sentenced to an effective term of twelve years imprisonment, suspended after eight years followed by four years probation. He appeals from that judgment, claiming that the trial court improperly: (1) admitted into evidence a urine stained shirt worn by the complainant on the night of the incident; (2) admitted into evidence a “sex crimes report” prepared by the police; (3) admitted into evidence a certain prior consistent statement made by a witness for the state; (4) failed to instruct the jury on the defendant’s reasonable belief that the complainant had consented; (5) defined a reasonable doubt as a doubt that a juror could explain to the other jurors; and (6) admitted evidence of the defendant’s postarrest silence. We affirm the judgment. The jury reasonably could have found the following facts. On October 12,1988, the defendant and the complainant, previously strangers to each other, met at a bar in Wallingford where the complainant was a regular patron. The defendant introduced himself as “Bob” and mentioned that he owned a nightclub in Old Saybrook. They spent several hours eating, drinking, playing pool and otherwise socializing with each other *701and others in the bar until approximately midnight, when a group of people, including the complainant and the defendant, decided to go to a nearby nightclub for “last call.” The defendant offered the complainant a ride and she accepted. After they had entered the car, the defendant started toward the nightclub, but, when the car reached a certain intersection, he drove straight ahead into a local park instead of turning down the street that would have brought them to the nightclub. He drove to the end of a parking lot in the park and proceeded onto a grassy area where he parked the car. When the complainant asked why they had come to the park, the defendant replied that it was better there and attempted to kiss her. When the complainant refused and tried to push him away, the defendant lifted her shirt and bit her breasts. Next, the defendant exposed his penis, asked the complainant to perform oral sex and, when she refused, forced her to do so. He then pulled the complainant’s pants down and inserted his finger into her vagina. Shortly thereafter, they got out of the defendant’s car, and the complainant attempted to run away. Once the defendant had caught up with her, he grabbed her breasts from behind, swore at her, forced her pants down again and slapped her on the buttocks, repeating his curse.3 He proceeded to remove the complainant’s pants and sneakers and then penetrated her anus with his finger. He then attempted anal intercourse with the complainant. Next, the defendant urinated on the complainant’s stomach and lower abdomen, rubbing the urine around her vaginal area and then inserting his fingers into her mouth. He then forced her to have vaginal intercourse with him until he withdrew and ejaculated into her mouth. After another act of forced vaginal intercourse, during which the defendant repeatedly bit the complainant’s breasts, he urinated on her once again and then got off of her *702and smoked a cigarette. After these events, the defendant drove the complainant back to the bar where they had met. He dropped her off, and the two returned to their respective homes. Several days later, at the behest of a friend to whom she had confided the story, the complainant reported the incident to the police. The next day the police arrested the defendant after the complainant had positively identified him by choosing his picture from a photo array. The jury heard contrary testimony from the defendant, who admitted having engaged in various sexual acts with the complainant, but claimed that he had done so with the complainant’s consent. According to the defendant, sometime between 11 p.m. and midnight, after socializing with the complainant and others for most of the evening, he left the bar alone, but the complainant followed him outside. They kissed for a short while, and then he asked the complainant if she wanted to get into his car. She agreed, and they entered the car and began to kiss more passionately. The complainant stated that they should not persist right in front of the bar, prompting the defendant’s suggestion that they go elsewhere. He then drove to the park and stopped the car in a certain secluded area, which the complainant said was all right. They left the car and engaged in consensual sexual intercourse. Afterwards, they drove back to the bar but, once there, decided to return to the park to resume their sexual activity. They again had intercourse and also engaged in oral sex. The defendant stated that, at a certain point, he did interrupt the sexual activity in order to urinate, but that, when he did so, he purposely turned away from the complainant, so as not to urinate on her or toward her. Presumably, the jury disbelieved the defendant’s version of the facts because it convicted him of both sexual assault and kidnapping. *703I The defendant’s first claim on appeal is that the trial court abused its discretion when it admitted into evidence the urine stained shirt worn by the complainant on the night the alleged sexual assault was committed. Our review of the record satisfies us that the admission of the urine stained shirt was a proper exercise of the trial court’s discretion. Some background information is necessary. The shirt was initially marked for identification during the direct testimony of the complainant, who testified that it was the shirt she was wearing on the night of the incident and, that it had been clean before she put it on that night. The shirt had remained on her throughout the sexual assault, although it had been pushed up at times. According to the complainant, she arrived home after the sexual assault, took off her clothes, including the shirt, and put them on her bedroom floor. The next day she washed other clothing she had been wearing that night, but did not wash the shirt at any time before she handed it over to the police on October 17, 1988. On cross-examination, she stated that, during the time period involved, she owned three pets, one dog and two cats. A hearing was then held, outside the presence of the jury, in which the court heard the testimony of Debra Messina, a criminologist at the state police forensic laboratory, who stated that she had tested a stain on the shirt and found only one substance, creatinine, a chemical found in human and animal urine. The defendant advanced several objections to the admission of the shirt into evidence, but the court overruled them, stating that any weaknesses in the evidence went to its weight and not to its admissibility. Thereafter, Messina repeated her testimony before the jury, adding that *704creatinine is contained in no other substance but urine. The shirt was admitted into evidence as a full exhibit over the defendant’s objection. The defendant contends that the shirt should have been excluded as irrelevant because the state had failed to establish an adequate link between the urine stain and the defendant. He also argues that the shirt should have been excluded because the state had failed to establish that the shirt had not been materially altered or tampered with in any way during the time it lay on the complainant’s bedroom floor until the police seized it several days later. Finally, the defendant maintains that even if the shirt was relevant evidence, the trial court abused its discretion when it admitted it into evidence because its prejudicial effect outweighed any probative value it might have had. We address these claims seriatim. A In considering the defendant’s first argument, we begin by noting that relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). Evidence is irrelevant if there is “such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in proof of the latter.” State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). In this case, the complainant testified that the defendant had urinated on her during the alleged sexual assault. Evidence of a urine stain on the shirt she was wearing would tend to support the conclusion that the defendant had done so. Messina testified that creatinine, a substance found only in the urine of human beings and animals, was detected on the complainant’s shirt. Even though the defendant concedes that the stain contained urine, he argues that *705the shirt should have been excluded as irrelevant because Messina’s testimony did not exclude the possibility that the source of the urine was one of the complainant’s pets while the shirt lay on her bedroom floor rather than the defendant in the course of a sexual assault. He cites our decision in State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), in support of his argument. In Moody, we reversed the defendant’s murder conviction because we concluded that the trial court had abused its discretion when it admitted into evidence the result of a “presumptive test for blood” performed on a stain located on the defendant’s shoe. Although an expert had testified that the stain had produced a positive test result, and he had explained that this meant only that “the stain could be human blood, animal blood or something other than blood,”4 we held that “[t]he test result did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant’s shoe.” (Emphasis added.) Id., 628. We contrast the circumstances in Moody, where it could not be determined whether the stain on the defendant’s shoe contained blood, with those in this case, where the stain on the complainant’s shirt tested positive for creatinine, a substance that conclusively established the presence of urine. The uncontroverted evidence of urine, not just something that might or might not have been urine, distinguishes this case from Moody and leads us to conclude that the shirt and test results were properly admitted into evidence. It is true that evidence of urine on the complainant’s shirt does not, in and of itself, amount to proof that the defendant caused the stain, nor does it rule out other plausible explanations for its presence. These *706challenges to the evidence do not require its exclusion, however, because “evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion, even to a slight degree.” State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991). It was not necessary that the urine stained shirt prove conclusively the truth of the complainant’s testimony in order to be admissible; that it tended to support her testimony to some degree made it relevant and properly admissible. B With respect to the defendant’s claim of material alteration of the shirt, “[t]here is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article . . . has been tampered with . . . ” State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). In each case the trial court must satisfy itself that the evidence offered probably has not been changed in important respects. State v. Conroy, 194 Conn. 623, 625-26, 484 A.2d 448 (1984); State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984). The complainant’s unrebutted testimony that the shirt was clean before the alleged crimes and that, afterwards, it lay on her bedroom floor undisturbed for several days until the police seized it, provided sufficient proof for the trial court to satisfy itself that the condition of the shirt probably had not been changed in any important respect since the events in question. In light of the complainant’s testimony, arguments about the possibility of tampering, unsubstantiated by any affirmative proof, were properly advanced to undermine the weight attributable to the evidence, but not to preclude its admissibility. C We reject the defendant’s final challenge to the admission of the urine stained shirt because we con-*707elude that the trial court properly determined that its probative value outweighed its prejudicial effect. While it is true that this tangible evidence, introduced shortly after the complainant’s direct testimony, had the capacity to strengthen the state’s case by bolstering the credibility of the complainant, it is also significant that the defendant admitted having urinated at the scene of the alleged sexual assault. He also acknowledged during closing argument that the stain on the complainant’s shirt might have contained his urine, not because he had urinated on her, but because, during the course of their consensual sexual activity, she might have inadvertently rolled onto the place where he had urinated. Given the defendant’s testimony and argument in this regard, we fail to perceive how he could have been unfairly prejudiced by the admission of the evidence in question. Even if the jury had concluded that the stain on the complainant’s shirt contained the defendant’s urine, it was free to believe the defendant’s explanation that it was the result of an accident and not the result of an indignity inflicted upon the complainant during a sexual assault. The urine stained shirt could have corroborated the testimony of either the complainant or the defendant; it was the jury’s credibility determination that cast the evidence in a particular light, not the mere presence of urine on the shirt. Accordingly, we conclude that the shirt had probative value and that its admission into evidence was not unduly prejudicial to the defendant and was, consequently, a proper exercise of the trial court’s discretion. II The defendant’s next claim is that the trial court improperly admitted into evidence a “sex crimes report” prepared by Detective Patricia Miranda, the lead investigating officer in the case, after she had interviewed the complainant about the alleged crimes. A sex crimes report is a four page form used by the *708police to compile data concerning sex crimes as required by General Statutes § 29-7a.5 It contains spaces for the officer to fill in general information about the victim and the offender, such as their names, addresses and ages. It also contains a checklist of 573 standardized phrases referring to different aspects of sex crimes6 from which the officer selects those applicable to a particular case. The sex crimes report in this case was admitted into evidence during the direct testimony of Miranda after her statement that, following her interview of the complainant, she had prepared the report in the regular course of business in accordance with her statutory duty to do so. The trial court overruled the defendant’s objection that the report was irrelevant and noted the defendant’s exception to the ruling. On appeal the defendant maintains that the sex crimes report should have been excluded “primarily on *709hearsay but also on relevancy grounds.” Although the relevancy claim was distinctly raised in the trial court, the defendant acknowledges that no hearsay objection was ever made. He therefore seeks “plain error” review of the hearsay claim pursuant to Practice Book § 4185.7 We find the relevancy claim unavailing and decline to consider the hearsay claim because we conclude that the trial court’s admission of the report was not plain error. A In arguing that the sex crimes report should have been excluded by the trial court as irrelevant, the defendant properly notes that there are two components to relevant evidence: materiality and probative value. C. McCormick, Evidence (3d Ed. 1984) § 185, p. 541. He contends that, although the sex crimes report was material to the issues presented in the prosecution, it lacked probative value and was thus irrelevant. We do not agree that the report lacked probative value. The probative value of evidence is its tendency to establish the proposition that it is offered to prove. State v. McClendon, supra; C. McCormick, supra. Miranda’s notations on the sex crimes report clearly tended to establish the proposition that the defendant had kidnapped and sexually assaulted the complainant. Because the sex crimes report essentially catalogued the complainant’s account to Miranda of what had transpired, it was probative of the defendant’s guilt. That this information was admitted into evidence in the form of standardized phrases may have raised ques*710tions about whether it was inadmissible hearsay or cumulative of the complainant’s direct testimony, but it could not have stripped the document of its relevancy. We also reject the argument that the report lacked probative value because it was primarily a mechanism for the compilation of statistical data about sex crimes rather than a document prepared specifically for substantive use in the criminal prosecution. Bills, receipts, records and many other forms of documentary evidence have been routinely admitted into evidence despite the fact that they were not created with courtroom use in mind. See, e.g., Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938) (hospital records); Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 162 A. 4 (1932) (medical bills); Garland v. Gaines, 73 Conn. 662, 49 A. 19 (1901) (letters). In fact, reports prepared specifically for litigation have at times come under attack because such documents present an opportunity for an interested party to falsify or embellish facts to serve his or her own interests. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.14.7, p. 392. We have stated that the “trustworthiness of such documents [business records] comes from their being used for business and not for litigation.” (Emphasis added.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983). Consequently, we see no merit to the contrary claim that the sex crimes report in this case should have been excluded as irrelevant because it had not been prepared for litigation. B The defendant’s claim, raised for the first time on appeal, that the sex crimes report should have been excluded as inadmissible hearsay does not warrant review under the plain error doctrine. “Such review is reserved for truly extraordinary situations where the *711existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We need not consider whether the evidence would have been admissible under the constancy of accusation or the business records exceptions to the hearsay rule. To a great extent the sex crimes report was cumulative of the testimony of Miranda concerning her interview with the complainant. It is unlikely, therefore, that its impact was critical to the outcome of the trial. Accordingly, we decline to find that the trial court’s ruling was plain error. Ill The defendant’s next claim involves the trial court’s admission of certain statements made by D, a rebuttal witness for the state, to the defendant’s parents and to his attorney. D, a friend of the defendant, was a bookkeeper at the nightclub in Old Saybrook that the defendant managed. Her testimony contradicted the defendant’s testimony in several key respects. According to the defendant, D slept at his apartment occasionally, but never lived there. D testified that she slept in his apartment once a week until his roommate moved out in October, 1988. At that time she moved into the apartment and remained there until June, 1989. With respect to the incidents surrounding the alleged commission of the crimes, both D and the defendant testified that, on the night in question, the defendant was driving D’s car, which he had borrowed earlier that day. Both stated that the defendant had arrived home early the next morning and returned the car to her. D further testified that, when he had brought her car back, he appeared frightened and nervous and that she had never seen him look like that before. *712The defendant testified that he went to work at the nightclub as usual on the three days following his encounter with the complainant. He stated that, on the third day, when police arrived at his home to place him under arrest, he had come home from work briefly to take a nap and had asked D to come to his apartment to awaken him so that he could return to work to close the nightclub for the evening. D testified, however, that the defendant did not work on any of those days, that he looked pale and ill, and that he stayed home, complaining of chest pains. She further stated that she had gone to the apartment the night the defendant was arrested not because she had agreed to awaken him, but because she was concerned about his health. The defendant cross-examined D by trying to establish that she was a jilted lover whom he had left in April, 1989.8 On redirect examination, the state sought to elicit the fact that, before April, 1989, when the jilting supposedly occurred, D had made similar statements to the defendant’s parents and to his trial attorney about the defendant’s strange behavior during the *713period following the alleged crimes. Defense counsel objected on the ground that the state was impermissibly offering extrinsic evidence to rehabilitate the witness. He expressed concern about how he, as the defendant’s lawyer, could effectively and ethically rebut D’s testimony about what she had said to him. The trial court overruled the objections because it concluded that the defendant had opened the door to such questioning by attempting to impeach D in the manner that he did. Thereafter, D testified before the jury that in February or March, 1989, she had voiced her concerns to the defendant’s parents and to his trial attorney about the defendant’s peculiar conduct during the days following the commission of the alleged crimes. The defendant again objected and took exception to the court’s ruling. On appeal the defendant makes three challenges to the admission into evidence of D’s statements to defense counsel and to the defendant’s parents. First, he maintains that the trial court’s admission of the statements was improper because the court failed to make a specific finding that the statements were made before D’s alleged bias, interest or motive arose. Second, the defendant claims error in the trial court’s failure to instruct the jury to limit its use of the statements to rehabilitating D’s credibility. Third, the defendant contends that the court’s admission of D’s prior statement to defense counsel unfairly prejudiced him in that it presented inordinate tactical and ethical difficulties for defense counsel to surmount in order to rebut D’s testimony. We find none of these arguments persuasive. A With respect to the first argument, we begin by noting that if a witness has been impeached on the basis of bias, motive or interest, prior consistent statements *714may be admitted to rehabilitate his damaged credibility, if the proponent of the prior consistent statement establishes that it was made before the alleged bias, motive or interest arose. State v. Dolphin, 178 Conn. 564, 570-71, 424 A.2d 266 (1979). This means that it was incumbent upon the state in this case, as the proponent of the evidence of D’s prior consistent statements, to demonstrate to the court’s satisfaction that these statements were made before her motive to falsify would have arisen; that is, before the defendant was said to have jilted her. We conclude that the state met this burden. On cross-examination, the defendant elicited from D that the defendant had “moved out ... on [her]” in April, 1989. Although never explicitly stated, the clear implication of this line of questioning was that the defendant had spurned D when he left the apartment they shared in April, 1989, and that her bias against him had arisen at that time. See footnote 8, supra. D testified that her statements to the defendant’s parents and to defense counsel about the defendant’s odd behavior were made in February or March, 1989. The appropriate sequence was thus established, justifying the admission of the prior consistent statements for the limited purpose of rehabilitating D, whose credibility had been attacked on the basis of bias or motive. It is of no moment that the trial court failed to make a specific finding that the statements in dispute were made before the alleged bias or motive arose because the record positively establishes this sequence. No such finding is required so long as the record establishes the necessary sequence of events. See State v. Parris, 219 Conn. 283, 287-92, 592 A.2d 943 (1991). In this case the record establishes the necessary sequence of events. B The defendant next contends that it was improper for the trial court to fail to instruct the jury that it could *715consider D’s prior consistent statements solely for the purpose of assessing her credibility and not for the purpose of determining the substantive truth of the statements. The defendant’s failure to request such a limiting instruction or to take exception to the charge, on this basis, makes this claim unreviewable. Practice Book § 852.9 We also decline to afford plain error review to this claim, as sought by the defendant, because the trial court’s failure to give a limiting instruction did not constitute “error ... so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, supra; Practice Book § 4185. C The defendant further argues that, even if the court properly admitted D’s prior consistent statement to his parents, it abused its discretion when it allowed her to testify about her prior consistent statement to defense counsel. He claims that the court’s admission of the statement “put counsel in an untenable and unfair position, one fraught with ethical and tactical difficulties.” We conclude that the trial court acted properly in admitting the statement. As discussed earlier, D’s statement to defense counsel was relevant evidence that came within the prior consistent statement exception to the hearsay rule. As such, it was properly admitted regardless of whether it posed strategic or ethical dilemmas for defense counsel. Defense counsel knew what D had said to him and knew that the state had listed her as a possible witness. *716If he was concerned that his client would be prejudiced if D’s statement to him were admitted into evidence, he could have either avoided altogether the line of cross-examination that he pursued, to ensure that the hearsay statement would not be admitted into evidence, or, if he was determined to attack D’s credibility in the manner that he did, he could have made a motion in limine to ascertain whether the court would allow D’s statement to him into evidence. We note that defense counsel’s failure to take either of these measures contributed to placing him in what he now deems an impossible situation. We decline to find error in a proper evidentiary ruling merely because defense counsel’s strategy might have been upset by it. We hasten to add that we are not convinced that defense counsel’s ethical quandary was as desperate as he now portrays it to have been. The only reason he might have appeared as a witness in the case was for the purpose of rebutting D’s testimony that she had spoken to him of the defendant’s peculiar behavior around the time the alleged crimes were committed. Defense counsel represented to the court that his response to D’s testimony would have been, not that she had not made such a statement to him months earlier, but that he had not believed her when she made the statement.10 Testimony about whether defense counsel believed D’s statement to be true would have been properly excluded as immaterial since her prior consistent statement was offered for the limited purpose of rehabilitating her credibility and not to prove its substantive truth. Consequently, such testimony by defense counsel would have confirmed, not rebutted, D’s testimony that she had made the statement to him. *717Under these circumstances, an ethical question about defense counsel’s appearance as a witness in the case was not likely to have arisen.11 IV Next the defendant claims that his state and federal constitutional rights to present a defense and to due process of law were violated when the trial court failed to instruct the jury that it could not convict the defendant of sexual assault if the conduct of the complainant under all the circumstances would have justified a reasonable belief that she had consented. Because the defendant failed to request such an instruction or to take exception to the court’s failure to include it in the charge given, he can prevail on his unpreserved claims of constitutional error only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the first two conditions are met, the third condition is not because the trial court’s failure to give the “reasonable belief” instruction did not deprive the defendant of any constitutional right. *718Our conclusion that no constitutional violation occurred in this case is founded upon our decision in State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989). In Smith, we rejected the defendant’s claim that a specific intent to have intercourse without the consent of the victim is an essential element of first degree sexual assault. We adhered to our long held view, shared by a majority of courts in this country, that first degree sexual assault, as defined in our state penal code, requires proof of only a general intent to perform the physical acts that constitute the crime. We noted, however, in language relied upon by the defendant in this case, that whether the defendant had forced or compelled the complainant within the meaning of the first degree sexual assault statute depended not upon the complainant’s subjective state of mind about whether she had consented, but upon “her manifestations of such consent as reasonably construed.” Id., 140. We further stated that, although we doubted that “jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent . . . a defendant . . . concerned about such a possibility . . . would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.” Id., 141. The defendant urges us to convert that language in Smith into a constitutional requirement that a court give such an instruction, even in the absence of a proper request to charge, whenever any sort of consent defense is interposed in a sexual assault case. We need not decide that question, however, because the defendant in this case never advanced a theory of defense that put into issue the reasonableness of his belief that the complainant had consented. Nowhere in the record of *719this case, either in evidence or argument, was any suggestion made to the jury that it should acquit the defendant because he reasonably interpreted ambiguous conduct by the complainant to indicate her consent.12 The theory of defense actually argued to the jury was that it should acquit the defendant because the complainant had fabricated all her testimony about being forced against her will to engage in sexual acts. Because the issue of the reasonableness of the defendant’s belief regarding the complainant’s consent was never made a theory of defense in this case, we conclude that it would have been inappropriate for the trial court to instruct the jury on that theory, at least in the absence of a proper request on such an alternate ground of defense. V The defendant also contends that he was deprived of his state and federal constitutional right to due process of law when the trial court instructed the jury that a reasonable doubt is “a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room . . . .” He took no exception to the charge given. We recently rejected an identical claim in State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991), because we concluded that such an articulation requirement, although improper, did not render an otherwise adequate instruction on reasonable doubt constitutionally defective. Upon review of the entire charge in this case, we arrive at the same conclusion, that the instruction given did not violate the defendant’s constitutional right to due process, and, therefore, reject this claim. See State v. Golding, supra. *720YI The defendant’s final challenge to his conviction is that the trial court’s admission of evidence of his post-arrest silence violated his state and federal constitutional privilege against self-incrimination and his right to due process of law. We conclude that no such violations occurred. During the state’s cross-examination of the defendant, he was questioned about what had transpired when the police arrived at his home, before they placed him under arrest. He testified that the police had informed him that they were investigating an incident that had occurred in Wallingford and that he had told them he would cooperate with them. He stated that he had admitted being in the Wallingford bar on the night in question and, when asked what he had done after he left the bar that night, he had responded that he went right home. The state’s attorney then attempted to impeach the defendant’s credibility by reminding him that he had testified on direct that he had had a consensual sexual encounter with the complainant when he left the bar and had not gone directly home. The state’s attorney then asked, “Because you didn’t tell any of this to the police officers, did you?” to which the defendant responded, “No, I did not.” The state’s attorney then began to ask another question, “You never told the police officers at any time that this was—,” but was interrupted by defense counsel’s objection to the question. The trial court sustained the objection on grounds of relevancy and the prohibition announced in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), against the use of postarrest silence to impeach a criminal defendant’s credibility. *721On appeal, the defendant maintains that the first question should also have been excluded as an impermissible use of the defendant’s postarrest silence. Although he acknowledges that it is not clear from the question whether the state’s attorney was referring to the defendant’s silence before or after he was arrested, he contends that the question reasonably could have been understood by the jury to encompass the defendant’s postarrest silence. We agree that the question was ambiguous but believe that, given the context in which it was asked, it is more probable that it would have been understood to refer to the defendant’s prearrest silence. The state’s line of inquiry leading up to this question concerned the defendant’s conduct when the police arrived at his home before they placed him under arrest. We conclude, therefore, that the defendant cannot prevail on this unpreserved claim of constitutional error because he has failed to demonstrate that the alleged constitutional violation clearly existed. State v. Golding, supra. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.” General Statutes § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when . . . he restrains the person abducted with intent to . . . inflict physical injury upon him or violate or abuse him sexually.” In both instances the defendant said, “You like this, Bitch.” The stain on the shoe was too small for administration of a definitive blood test. State v. Moody, 214 Conn. 616, 628, 573 A.2d 716 (1990). General Statutes § 29-7a provides: “The community relations unit of the division of state police within the department of public safety shall study and plan for the establishment and funding of a sex crimes analysis unit which shall be operative on or before October 1, 1976. Said unit shall be responsible for (1) the coordination and analysis of all data regarding complaints and arrests for sex crimes; (2) the development of recommendations from such data concerning the nature, extent and pattern of sex crimes in the state; (3) recommendations with regard to new approaches in law enforcement to improve enforcement in the area of sex crimes to the division of state police, local departments and the public; (4) working with local police departments and rape crisis centers to improve law enforcement of sex crimes and methods of data gathering and (5) the development of education courses for law enforcement officials, judicial personnel and the public concerning preventive measures against sexual assaults, procedures for reporting sex crimes and community resources which are available to combat sex crimes. Each local police department, rape crisis center and any member of the public who deals with data concerning sex crimes shall submit such data to the sex crimes analysis unit in accordance with procedures established by said unit.” Some of the categories included are: physical descriptions of the offender; the offender’s method of approaching the victim; the nature of the assault; the victim’s method of resistance; the relationship of the offender to the victim; the place where the assault was committed; and the nature of the victim’s injuries. Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.” The following are relevant portions of the defendant’s cross-examination of D: “[Defense Counsel]: And you were in love with Mr. Jeffrey, weren’t you? “[D]: No, I was not. “[Defense Counsel]: Didn’t you call Mr. Jeffrey’s father and mother down in Florida and tell them you were in love with Robert Jeffrey and that you would always be in love with him? “[D]: I care about him as a friend. I love him as a friend. “[Defense Counsel]: But you didn’t say that to Mr. and Mrs. Jeffrey. You said you loved him, didn’t you? “[D]: It could be taken that way, I suppose, but that’s—I loved him as a friend. • “[Defense Counsel]: And he didn’t love you back, did he? “[D]: I don’t know. “[Defense Counsel]: And he moved out of the apartment on you, didn’t he? “[D]: He moved out— “[Defense Counsel]: In June? “[D]: No. He moved out, I believe it was April. He was there off and on. “[Defense Counsel]: I have no further questions, your Honor.” Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.” Defense counsel asked the court, “Can I get up in—I mean, in final examination do I get to say, ‘I didn’t believe her?’ ” Even if defense counsel could have provided relevant testimony as a witness in the case, disqualification of him might not have been required under the third exception listed in Rule 3.7 of the Rules of Professional Conduct. Rule 3.7 provides in pertinent part: “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client.” (Emphasis added.) That was precisely the theory of defense in Smith, wherein the defendant based this defense on the complainant’s testimony that, after a certain point, she ceased resisting and decided to “give in” and to act as if she were “going to go along with him and enjoy it.” State v. Smith, 210 Conn. 132, 137, 554 A.2d 713 (1989).

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09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841985/

Peters, C. J. The dispositive issue in this administrative appeal is whether injured state employees may elect to calculate their benefits in accordance with the traditional workers’ compensation benefits established by General Statutes § 31-307 rather than by the special duty benefits established by General Statutes § 5-142 (a).1 A workers’ compensation commissioner *723determined that the plaintiff, Mary A. Jones (claimant), had suffered a compensable work related injury in the course of her state duty that would have entitled her to receive her full salary under § 5-142 (a). Because an alternate calculation of her benefits for her temporary total incapacity in accordance with § 31-307 would allow her a substantially higher compensation rate, the commissioner held that she could recover this larger amount. On appeal by the defendant, Mansfield Training School (state), the compensation review division concluded, to the contrary, that the remedy provided by § 5-142 (a) was exclusive and precluded the recovery of any other workers’ compensation benefits. The *724claimant appealed to the Appellate Court, and we transferred her appeal to this court in accordance with Practice Book § 4023. We reverse. The facts were stipulated. As a result of an attack by one of the residents of the Mansfield Training School, the claimant, an employee of the school, sustained an injury to her right knee and left thumb that left her temporarily totally incapacitated. If calculated in accordance with § 5-142 (a), her weekly compensation rate would be $310.15, because that was her full weekly salary at the time of her injury. If calculated in accordance with § 31-307, her weekly compensation rate would be $462.86, because she had performed substantial overtime work increasing her average weekly earnings to $694.26 during the twenty-six weeks prior to her injury.2 The claimant appeals from the determination of the compensation review division limiting her compensation benefit to that established by § 5-142 (a). Her principal argument is that she has a statutory right to elect benefits pursuant to § 31-307.3 Alternatively, she con*725tends that her § 5-142 (a) benefits should be construed to include overtime income. Because we accept the first of these arguments, we do not reach the second one. As the compensation review division noted in its opinion, our legislature enacted the predecessor statute to § 5-142 (a) in 1939 in order to provide enhanced benefits by way of disability compensation for employees injured while engaged in special state service.4 The class of employees eligible for these benefits is those who “in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence.” Lucarelli v. State, 16 Conn. App. 65, 69, 546 A.2d 940 (1988). If injured under the circumstances prescribed in the statute, this class of state employees is entitled to disability compensation based upon the employee’s full salary, rather than upon a percentage of his or her weekly earnings, the normal workers’ compensation standard. Ordinarily, therefore, the remedy provided by § 5-142 (a) will be advantageous to the injured employee. The legislature, in its various reenactments of General Statutes (Sup. 1939) § 78e, has steadfastly manifested its intention to make these benefits a generous source of compensation for its designated beneficiaries. *726The issue before us is whether the legislature intended to make the special benefit conferred by § 5-142 (a) the exclusive remedy for an injured worker even in the unusual situation in which an alternate calculation of workers’ compensation benefits would provide greater financial relief. “In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).” Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990). In implementing the purpose of the statute, “[w]e must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable. State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988); State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991); Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991). The state points to three statutory provisions as indicative of a legislative intent to require injured employees to look to § 5-142 (a) in lieu of all other possible workers’ compensation benefits. Section 5-142 (a) itself states that a covered employee who has become totally incapacitated “shall continue to receive the full salary which he was receiving at the time of injury . . . .” (Emphasis added.) The subsection also states: “All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indem*727nities and provisions for hearing and appeal, shall be available to any such state employee . . . .’’(Emphasis added.) Finally, General Statutes (Rev. to 1991) § 5-143 states: “Each state employee who sustains an injury arising out of and in the course of his employment, except as provided in section 5-142, shall be paid compensation in accordance with the provisions of the workers’ compensation act. . . .” (Emphasis added.) We are not persuaded that the legislature’s use of the word “shall” demonstrates that the salary benefit provided by § 5-142 (a) precludes an injured worker from recourse to another workers’ compensation remedy. “[I]n the interpretation of statutes the word ‘shall’ may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969). Fidelity Trust Co. v. BVD Associates, supra, 278.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, *728219 Conn. 473, 480-81, 595 A.2d 819 (1991); see also Beccia v. Waterbury, 185 Conn. 445, 460-61, 441 A.2d 131 (1981). The essence of § 5-142 (a) is to provide the enhanced benefit of a full salary to a state employee who has been injured within its purview. Without more, the legislature should not be deemed to have made that right exclusive. The state buttresses its argument for exclusivity by pointing to the legislature’s express preservation, for injured § 5-142 (a) state employees, of only those “other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal . . . .” This proviso fails, however, to define what the legislature deems “inconsistent.” The possibility that access to “specific indemnities” may afford further relief to injured state employees; see General Statutes § 31-308 (b); suggests that the legislature recognized that payment of a salary might not make an injured employee whole. In light of that recognition, we are not persuaded that the legislature, in assigning priority to § 5-142 (a) entitlements, manifested its intent to preclude an employee from recourse to § 31-307. The same ambiguity inheres in the clause in § 5-143 entitling injured state employees to workers’ compensation benefits “except as provided in section 5-142.” Because this statute’s predecessor was enacted conjointly with the predecessor of § 5-142; see General Statutes (Sup. 1939) §§ 79e and 78e; and hence relates to the same area of the law, the two statutes necessarily must be interpreted as a unitary whole. “We are obligated ... to read statutes together when they relate to the same subject matter. Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); In re Ralph M., 211 Conn. 289, 304-305, 559 A.2d 179 (1989).” Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990); *729see also State v. Carroll, 97 Conn. 598, 604, 117 A. 694 (1922). The “except” clause in § 5-143 therefore provides no specific enlightenment about legislative intent other than that contained in § 5-142 (a). What is notable about the text of both §§ 5-142 (a) and 5-143 is that the legislature has repeatedly had the opportunity expressly to designate § 5-142 (a) benefits as an exclusive remedy. It has not chosen to do so. It did not use the express language of “exclusive remedy,” which appears elsewhere in our workers’ compensation law, for example in General Statutes § 31-293a, which provides that a right to workers’ compensation benefits for an injury caused by a negligent fellow worker “shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.” See also General Statutes §§ 33-373 (f), 38a-148 (b). It did not, in the alternative, provide that, for state workers covered by § 5-142 (a), the state would not be otherwise liable to pay benefits. A similar formulation, in General Statutes § 31-284 (a),5 has been uniformly construed to make workers’ compensation the exclusive remedy and thereby to insulate employers from suits *730for damages by their employees for job related death or injury. See Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). Our reluctance to infer exclusivity of remedy from the ambiguous provisions of a remedial statute finds support, furthermore, in another case in which we concluded that workers are entitled to choose between different statutory measures providing compensation for on-the-job injuries. In Bakelaar v. West Haven, 193 Conn. 59, 66-69, 475 A.2d 283 (1984), we concluded that a municipal firefighter or police officer suffering from hypertension or heart disease could elect whether to proceed under General Statutes § 7-433c, which specifically addresses such a claim for benefits, or under chapter 568, the traditional workers’ compensation law. We there rejected the contention of the defendant city that the workers’ compensation statutes furnished the exclusive remedy for injuries arising out of and in the course of employment, even if the injuries claimed were compensable under § 7-433c. We concluded that the defendant city’s contention was inconsistent with the beneficial purpose of § 7-433c to provide enhanced eligibility for benefits to firefighters and police officers, “[notwithstanding any provision of chapter 568.” Concededly, the governing statutes in Bakelaar were clearer than they are in this case. We are nonetheless persuaded that the legislature did not intend, sub silentio, to convert the special benefits conferred by § 5-142 (a) into an obstacle to the greater recovery under § 31-307 to which the claimant would otherwise be entitled because of her long record of overtime work. We may presume that the claimant worked overtime because such overtime service enabled her to increase her take-home pay and because the state, as her employer, determined that her overtime work benefit-ted the operations of the Mansfield Training School. Having acquiesced in this arrangement, the state would *731require strong justification now to deprive the claimant of benefits that she has earned. We conclude that the legislature has manifested no intent to visit such an injustice on this claimant. The judgment is reversed and the case is remanded to the compensation review division with direction to reinstate the finding and award of the compensation commissioner. In this opinion Shea and Callahan, Js., concurred. General Statutes (Rev. to 1991) § 31-307 provides in relevant part: “compensation for total incapacity. If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred .... No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided *723such minimum payment shall not exceed eighty per cent of the employee’s average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity. ...” This statute was amended by Public Acts 1991, No. 91-32, §§ 23, 41, effective July 1, 1991, and by No. 91-339, §§ 26, 55, effective October 1, 1991. General Statutes (Rev. to 1991) § 5-142 provides in relevant part: “disability compensation, (a) If any member of . . . any correctional institution . . . or any employee of any juvenile detention home . . . sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or . . . while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled .... All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee. . . .” This statute was amended, effective October 1, 1991, by Public Acts 1991, No. 91-339, §§ 40, 55. Under General Statutes (Rev. to 1991) § 31-310, for the purposes of General Statutes § 31-307, “the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, such worker was actually employed by such employer . . . .” This statute was amended, effective July 1, 1991, by Public Acts 1991, No. 91-32, §§ 28, 41, and No. 91-339, §§ 30, 55. The claimant’s contention that she has a statutory right to election of remedies is buttressed by her assertion that a contrary construction of General Statutes § 5-142 (a) would violate her constitutional rights to equal protection of the laws under the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. Although the claimant briefed this issue in response to the state’s appeal to the compensation review division, the review division did not address it. The record does not indicate whether the claimant actively pursued her constitutional claim before the review division. In view of our disposition of the claimant’s appeal, we need not decide whether this issue is properly before us. As enacted in 1939, General Statutes § 78e provided in relevant part: “DISABILITY COMPENSATION TO EMPLOYEES OF STATE POLICE AND STATE institutions. Each employee of the state police department or of any correctional or penal institution or of any institution for the care of persons afflicted with a mental disorder or a mental defect, in case of injury sustained while making an arrest or in pursuit of such purpose, or while attending or restraining an inmate of any such institution or sustained as a result of being assaulted while in the performance of his duty, shall not be removed from the payroll, except that, in the event of total disability, he shall be continued on the payroll for two hundred and sixty weeks and thereafter shall receive compensation at the rate of one-half the salary he was receiving at the time of the injury . . . .” General Statutes (Rev. to 1991) § 31-284 (a) provides in relevant part: “BASIC RIGHTS AND LIABILITIES. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM ENTERING EMPLOYMENT CONTRACTS, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.” This statute was amended by Public Acts 1991, No. 91-32, §§ 7, 41, effective July 1, 1991, and No. 91-339, §§ 11, 55, effective January 1, 1992.

01-04-2023

09-08-2022

https://www.courtlistener.com/api/rest/v3/opinions/7841987/

Berdon, J., dissenting. The majority, through statutory construction, grants certain state employees an election to receive for total incapacity either their “full salary” under General Statutes § 5-142 (a)1 or “sixty-six and two-thirds per cent of [their] average weekly earnings” under General Statutes § 31-3072 of the Workers’ Compensation Act.3 In doing so, the majority ignores the cardinal rule of statutory construction that “[w]hen the language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.” Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Section 5-142 (a) provides in pertinent part that if certain state employees sustain an injury arising out of and in the course of specific employment and total incapacity results, the injured employee “shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active *734employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled .... All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee. . . .” (Emphasis added.) General Statutes (Rev. to 1991) § 5-143, the companion to § 5-142, provides in relevant part that “[e]ach state employee who sustains an injury arising out of and in the course of his employment, except as provided in section 5-1J+2, shall be paid compensation in accordance with the provisions of the workers’ compensation act . . . .” (Emphasis added.) Simply put, the Workers’ Compensation Act applies to all state employees, except certain designated employees identified in § 5-142 (a) who become totally incapacitated during the course of performing the specified duties of such employment. The employees covered under § 5-142 (a) continue on the payroll and receive “full salary” for five years thereby making them ineligible for weekly benefits under the Workers’ Compensation Act. There is no provision for an election, and the reading of one into the clear and unambiguous language of the statute just won’t wash. There is no dispute that, in the present case, the claimant falls within a category of those state employees covered by § 5-142 (a). To reach its result that the claimant may elect coverage under either § 5-142 (a) or § 31-307, the majority construes the word “shall” *735as being “directory” and not “mandatory” in the sentence of § 5-142 that those covered state employees “shall continue to receive the full salary . . . .’’Furthermore, the majority chooses to ignore the “shalls” in that part of the statute providing that after five years, such person “shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary . . . .” This language makes clear that for those specific state employees who are covered by § 5-142 (a), the legislature established, outside the scope of the Workers’ Compensation Act, a separate, distinct and exclusive statutory scheme for the weekly compensation for total incapacity. In the concurring opinion, it is stated that the word “shall” pertains to a matter of substance and as a result is mandatory. I agree; this time, “shall” means “shall.” The concurring opinion, however, seeks to reach the majority’s result by pointing out that § 5-142 (a) states that all other provisions of the Workers’ Compensation Act, including § 31-307, shall be available to any state employee when “not inconsistent” with § 5-142 (a). The concurring opinion claims that the statutes are not inconsistent in this case simply because the claimant will receive a larger benefit under § 31-307 than she would have received under § 5-142 (a). The simple answer is that the right to receive “full salary” as a state employee is inconsistent with the right to receive compensation based on “sixty-six and two-thirds per cent of his average weekly earnings” under the Workers’ Compensation Act. Put another way, the fact that the claimant will receive more compensation under § 31-307 in this particular case does not make the language of that statute consistent with § 5-142 (a). Matters are inconsistent if they are “ [contradictory of one another.” Ballentine’s Law Dictionary (3d Ed. 1969). *736The majority further ignores the plain language of § 5-143, which provides that state employees are to be paid compensation in accordance with the provisions of the Workers’ Compensation Act “except as provided in section 5-142.” They claim that this statute is ambiguous merely because it was originally enacted “conjointly with § 5-142.” Courts cannot “torture words to import ambiguity where the ordinary meaning leaves no room for it . . . . ” Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980). Finally, for at least two reasons, there is no basis for the majority’s conclusion that the legislature intended an election because it failed to amend § 5-142 expressly to describe it as an “exclusive remedy.” First, there has never been a prior decision, either administrative or judicial, before the present one rendered by the majority that construes the unequivocal language of § 5-142 (a) as providing for an election. The statute, on its face, clearly does not import such a construction. Second, the legislature recently adopted Public Acts 1991, No. 91-339,4 amending § 5-142 (a) when it already had the benefit of the compensation review division’s decision in the present case, which explicitly held there was no right to an election.5 It is presumed that the legislature was aware of this interpretation of § 5-142 when it amended the statute for other reasons and its failure to provide for an election was a validation of the compensation review division’s interpretation. *737“[T]he inference of legislative concurrence with the agency’s interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute.” Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978); see Wilson v. Security Ins. Co., 213 Conn. 532, 539, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987). I am mindful of the remedial purposes of the Workers’ Compensation Act and “ ‘that it should be broadly construed to accomplish its humanitarian purposes.’ ” Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988). Nevertheless, the legislature in adopting § 5-142 (a), provided state employees falling within the ambit of the statute a generous compensation package. It is reasonable to believe that the legislature did not accidentally omit language that would allow for an election between “full salary” and “average weekly earnings.” If the statute needs repairing, it is for the legislature to do and not this court. “ ‘We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.’ . . . Nor can we engraft language not clearly intended by its enactment onto legislation.” Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988), quoting Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982). Although this court has the final word on the interpretation of our state statutes, there is a “higher authority”—that is, the constitution of the state of Connecticut. Article second of the Connecticut constitution provides in part: “The powers of government shall be *738divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” By placing a construction on this statute that is contrary to its plain and unambiguous text, the majority encroaches on that which is solely reserved to the legislative branch of our government. “In the field of legislation, the legislature is supreme. Courts must apply legislative enactments according to their plain terms.” State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956). I would affirm the decision of the workers’ compensation review division.6 Accordingly, I respectfully dissent. General Statutes § 5-142 was recently amended by Public Acts 1991, No. 91-339, §§ 40, 55, which added the requirement that the injury be the “direct result of the special hazards inherent in such duties.” See footnote 1 of the majority opinion for the pertinent parts of the text of § 5-142 (a) prior to the amendment, and which governs this case. General Statutes § 31-307 was recently amended by Public Acts 1991, No. 91-339, §§ 26, 55, which increased the award for total incapacity to 80 percent of the average weekly wage, but reduced the same to take into account federal income taxes and other adjustments. See footnote 1 of the majority opinion for the pertinent parts of the text of § 31-307 prior to amendment. General Statutes § 31-275 et seq. See footnote 1, supra. The workers’ compensation review division found that “Sec. 5-142 (a) after the sentences creating full salary benefits contains the following: ‘All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal shall be available to any such state employee or the dependents of such deceased employee.’ We think Sec. 31-307 defining compensation as equal to sixty-six and two-thirds per cent of average weekly earnings is inconsistent with the full salary definition of benefits provided in Sec. 5-142 (a). We therefore conclude that the claimant’s] election of benefits argument cannot apply.” The claimant also argues that the “full salary” should also include “average weekly wage.” There is no basis for the argument. The plaintiff concedes that the commissioner has, without exception, calculated the “full salary” under General Statutes § 5-142 without including overtime. Great deference must be shown to the statutory construction given by the agency. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173, 479 A.2d 1191 (1984). Likewise, the claimant’s equal protection claim is without merit. The standard of review in this case is that of rational relationship—that is, whether the classification bears a rational relationship to a legitimate state interest. Faraci v. Connecticut Light & Power Co., 211 Conn. 166, 168-69, 558 A.2d 234 (1987). The claimant concedes that under this minimal level of review the statute passes constitutional muster. Her complaint is that the result does not work out well for her. When, however, “the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern.” Eielson v. Parker, 179 Conn. 552, 565, 427 A.2d 814 (1988).

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