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https://www.courtlistener.com/api/rest/v3/opinions/1874348/ | 318 B.R. 300 (2004)
In re Doretha Belinda PERKINS, Debtor.
Doretha Belinda Perkins, Plaintiff,
v.
Pennsylvania Higher Education Assistance Agency, Defendant.
Bankruptcy No. 03-80777C-7D, Adversary No. 03-9075.
United States Bankruptcy Court, M.D. North Carolina, Durham Division.
December 2, 2004.
*301 *302 *303 Doretha Belinda Perkins, Durham, NC, pro se.
MEMORANDUM OPINION
STOCKS, Bankruptcy J.
This adversary proceeding came before the court for trial on September 30, 2004. In this proceeding the Plaintiff, Doretha Perkins, challenges the nondischargeability of her educational loan obligations to the Defendant, Pennsylvania Higher Education Assistance Agency ("PHEAA"), under § 523(a)(8) of the Bankruptcy Code. Because the court previously granted summary judgment for the Defendant on the issues of the existence of an education debt and whether the consolidation loan to plaintiff was made, insured or guaranteed by a governmental unit, the only issue remaining for trial was whether requiring the Plaintiff to repay the loan would impose upon her an undue hardship. When the controlling case law is applied to the facts of the Plaintiff's case, it is clear that the Plaintiff has failed to establish that requiring her to pay her student loans would constitute an undue hardship and therefore under § 523(a)(8), plaintiff is not entitled to a discharge of her educational loans. The following constitutes the court's findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
FACTS
The Plaintiff attended law school at George Mason University from 1991 to 1994 and financed her legal education by taking out a series of Law Access Loans from Society National Bank. After she graduated from law school in May of 1994, the Plaintiff consolidated her student loans through PHEAA's Law Access Federal Loan Consolidation Program, under which PHEAA acted as the servicer and guarantor of a consolidation loan made by Society National Bank to the Plaintiff in the total principal amount of $44,205.46. The Plaintiff chose the "Select/5" repayment alternative, under which she agreed to repay the consolidation loan over a period of 360 months at 8% interest, with 24 monthly payments of $300.45, 36 monthly payments of $318.01, 299 monthly payments of $337.21, and one final payment of $335.71.
The Plaintiff began requesting hardship forbearances on June 20, 1995, shortly after her loan consolidation repayment period began on May 3, 1995. Between 1995 and 2000, the Plaintiff requested and received a total of six forbearances on her educational loans. PHEAA advised the Plaintiff that interest was accruing during these forbearance periods and that any unpaid accrued interest would be capitalized. Plaintiff nevertheless elected to pay none of the interest that was accruing. In fact, during the entire period following her graduation in May of 1994, the Plaintiff has made only a single payment on the loan, that being a $100.00 payment.
Forbearance eventually ceased to be an option for the Plaintiff, and she defaulted on the loan in July of 2001. PHEAA, as guarantor, paid a default claim to Society National Bank and became the legal owner of the consolidation loan. The total amount owed by the Plaintiff to PHEAA on July 17, 2001 was $71,302.00. The total *304 amount owed by the Plaintiff to PHEAA as of September 30, 2004 was $89,564.93.
The Plaintiff is 44 years old with no dependents. She took the North Carolina Bar Examination in February of 1999 but was unsuccessful. Although she has never become a licensed attorney, the Plaintiff's resume reflects that she has been steadily employed in various fields since her graduation from law school in 1994. The Plaintiff has been employed as the lead litigation paralegal at the law firm of Olive & Olive, P.A. in Durham since September of 2001. The Plaintiff's salary at the time of filing of her Chapter 7 petition was $33,000.00. She has received a raise since the filing of her bankruptcy petition based in part on good performance, and has a current annual salary of $37,000.00. Plaintiff's gross monthly salary is $3,083.33 and after deductions for taxes, insurance and a 401(k) contribution, Plaintiff's current net monthly income is $2,022.14. Plaintiff's voluntary 401(k) contribution is $400.00 per month which, in effect, permits her to save that amount each month.
There is some evidence that the Plaintiff suffers from anxiety and depression. Her former psychiatrist, Dr. Jeffrey Chambers, characterized the Plaintiff's mental condition as neurosis, a limiting condition which prevents her from achieving success in high-stakes situations, such as the bar examination. Dr. Chambers also testified that while her neurosis made it unlikely that she would ever pass the bar examination and become a licensed lawyer, it did not prevent her from working full-time as a paralegal or in other gainful employment. Plaintiff also has experienced some tendinitis but was not being treated for that condition at the time of the trial.
Plaintiff filed her Chapter 7 bankruptcy petition with this court On March 4, 2003. Plaintiff listed monthly expenses of $4,198.00 on her Schedule J. At trial, Plaintiff submitted a revised budget (PX-4) in which she listed purported monthly expenses totaling $4,730.00. No explanation was provided as to how Plaintiff is paying expenses of $4,730.00 from a monthly income of $2,022.14. Among the monthly expenses listed on the Plaintiff's budget are $740.00 for rent; a total of $56.00 for home maintenance; $225.00 for food; a total of $517.00 for medical and dental expenses; $250.00 for a car payment, which consists of savings for a new automobile; $30.00 for "recreation"; $200.00 in charitable contributions, which the Plaintiff testified consists of tithes paid to the church at which her father is the pastor; $400.00 for "retirement" and long-term care insurance; $45.00 for basic cable; $20.00 for "special occasions"; $20.00 for "gifts and related travel"; $5.00 for "miscellaneous business services and supplies," which the Plaintiff testified represented costs incurred in connection with the litigation of this adversary proceeding; $100.00 per month for miscellaneous unpredictable expenses; $30.00 for vacations; $125.00 for the care of the Plaintiff's mother, who plaintiff says is ill and living in a nursing home in Virginia; $1,100.00 for another school loan; $100.00 for installment payments to the IRS in back taxes; $40.00 for high-speed internet; $60.00 for "lawsuit related expenses"; $30.00 for inkjet cartridges; $42.00 for savings for a new computer; and $35.00 in savings for a new sewing machine.
LEGAL ANALYSIS
A. Legal Standard for Undue Hardship: The Brunner Test.
Under § 523(a)(8) of the Bankruptcy Code, a discharge granted under § 727 does not discharge a debt for an educational loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by *305 governmental unit unless excepting such debt from discharge will impose an undue hardship on the debtor and the debtor's dependents. The Bankruptcy Code does not define the term "undue hardship," and courts have developed several different standards for undue hardship in the context of § 523(a)(8). The test most frequently applied is that articulated by the Court of Appeals for the Second Circuit in the case of In re Brunner, 831 F.2d 395 (2d Cir.1987). This standard, often referred to as the "Brunner test," requires a plaintiff to make the following three-part showing in order to establish undue hardship under § 523(a)(8): (1) that she cannot maintain, based on current income and expenses, a minimal standard of living for herself and any dependents if forced to repay her loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the loan repayment period; and (3) that the she has made good faith efforts to repay the loan. Brunner, 831 F.2d at 396. The Brunner test has been adopted by the Court of Appeals for the Fourth Circuit. In re Ekenasi, 325 F.3d 541 (4th Cir.2003). Courts of Appeals for the Ninth, Third and Seventh Circuits also have adopted the Brunner test. In re Pena, 155 F.3d 1108 (9th Cir.1998); In re Faish, 72 F.3d 298 (3d Cir.1995); In re Roberson, 999 F.2d 1132 (7th Cir.1993).
The Plaintiff has the burden of establishing each element of the Brunner test by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991) (holding that the standard of proof for all dischargeability exceptions listed in § 523(a) of the Bankruptcy Code is the ordinary preponderance of the evidence standard). See also Faish, 72 F.3d at 306; Roberson, 999 F.2d at 1137. If the Plaintiff fails to meet any one of the three requirements of the Brunner test, the court must enter a finding of nondischargeability. Faish, 72 F.3d at 306.
B. The Plaintiff has failed to minimize her expenses and failed to show inability to maintain a minimal standard of living if required to repay her educational loan.
The first prong of the Brunner test requires a showing that the Plaintiff would be unable to maintain a minimal standard of living if forced to repay her student loan. In order to make this determination, the court must evaluate whether the Plaintiff has maximized her income and minimized her expenses. See In re Murphy, 305 B.R. 780, 793 (Bankr.E.D.Va.2004); In re Sands, 166 B.R. 299, 306-07 (Bankr.W.D.Mich.1994). The latter inquiry requires the court to examine the reasonableness of the expenses listed in the Plaintiff's budget. In re Pincus, 280 B.R. 303, 317 (Bankr.S.D.N.Y.2002); Sands, 166 B.R. at 306-07.
A minimal standard of living does not require a debtor to live in poverty, but it does require her to reduce her expenses to an amount that is minimally necessary to meet her basic needs. See Murphy, 305 B.R. at 793; Pincus, 280 B.R. at 317 ("The minimal standard of living factor has been interpreted to require a showing beyond significant forbearance in personal and financial matters or beyond a restricted budget."). In addressing the first prong of the Brunner test, the court should be sensitive to the individual circumstances of each case. Pincus, 280 B.R. at 317. A review of the cases, however, is instructive regarding the types of expenses which are often found to be inconsistent with a minimal standard of living. For example, courts have found recreational expenses and household or personal expenses such as *306 cable television and home internet service to be unreasonable for purposes of determining whether the debtor can maintain a minimal standard of living under the first element of the Brunner test. See, e.g., Pincus, 280 B.R. at 318 (finding expenses such as $50.00 per month on newspaper and magazine expenses "excessive in light of the sacrifice expected of an individual to repay his student loan obligations"); In re Buchanan, 276 B.R. 744, 751-52 (Bankr.N.D.W.Va.2002) (finding expenses for home internet service and movie rentals unreasonable in the context of § 523(a)(8)); In re East, 270 B.R. 485, 494 (Bankr.E.D.Cal.2001) (observing that basic cable television was not necessary to maintain a minimal standard of living); Commonwealth of Virginia State Education Assistance Authority v. Dillon, 189 B.R. 382 (Bankr.W.D.Va.1995) (finding that debtors failed to meet the first prong of the Brunner test where their budget included expenses such as $35.00 per month for cable television); In re Wardlow, 167 B.R. 148 (Bankr.W.D.Mo.1993) (finding that plaintiffs were maintaining more than a minimal standard of living where their budget included expenses for cable television, recreation and miscellaneous expenses). A debtor seeking to discharge her educational loans under § 523(a)(8) is also not permitted to support emancipated children or other independent family members at the expense of her creditors. See, e.g., Buchanan, 276 B.R. at 751-52 (finding expenses for support of adult children unreasonable in the context of § 523(a)(8); plaintiff "[could not] avoid his obligations toward his creditors by spending his money on an emancipated child"); In re Coveney, 192 B.R. 140 (Bankr.W.D.Tex.1996) (finding that debtor's moral obligation to care for her mother, who was not a dependent, did not take priority over her legal obligation to repay her student loans). But see In re Sequeira, 278 B.R. 861 (Bankr.D.Or.2001) (applying § 1325(b)(5) disposable income standard for dependency and finding Chapter 13 debtor's contributions to the support of her elderly mother to be reasonable expenses for purposes of § 523(a)(8) undue hardship inquiry). There is a split of authority as to whether religious contributions are permissible expenses for purposes of determining undue hardship under § 523(a)(8). In re Savage, 311 B.R. 835, 842 (1st Cir. BAP 2004). See In re Ritchie, 254 B.R. 913, 921 (Bankr.D.Idaho 2000) (construing § 523(a)(8) as excluding religious tithing from plaintiff's budget as an improper expense); In re Lebovits, 223 B.R. 265, 273 (Bankr.E.D.N.Y.1998) (finding that debtors' religious tithes were an appropriate expense in the context of § 523(a)(8)); In re Lynn, 168 B.R. 693 (Bankr.D.Ariz.1994) (holding that plaintiff's religious tithes were an inappropriate expense in the context of § 523(a)(8) where plaintiff received church benefits and services regardless of whether she tithed). Finally, some courts have been reluctant to allow debtors seeking to discharge their educational loans to allocate funds to savings for items such as a new car rather than to student loan payments. See, e.g., In re Faish, 72 F.3d 298 (3d Cir.1995) (observing that the debtor would not be allowed a discharge from her student loan obligations so that she could instead devote her funds to savings for the purchase of a new car). Similarly, 401(k) contributions generally are no@t regarded as reasonably necessary for the support or maintenance of a debtor and thus may be considered as available income from which a debtor seeking a § 523(a)(8) undue hardship discharge could use to repay an educational loan. See In re Pobiner, 309 B.R. 405 (Bankr.E.D.N.Y.2004) (characterizing the voluntary 401(k) contributions of debtor's spouse as one of many "luxuries" which demonstrated that debtor had failed to *307 minimize his expenses for purposes of the § 523(a)(8) undue hardship inquiry); In re Naranjo, 261 B.R. 248 (Bankr.E.D.Cal.2001) (pointing to debtor's monthly retirement contribution of $269.00 as evidence that debtor enjoyed better than the minimal standard of living envisioned under the Brunner test); In re Shirzadi, 269 B.R. 664 (Bankr.S.D.Ind.2001) (citing debtor's voluntary retirement plan contributions of $400.00 per month as evidence of her failure to minimize her expenses as required by Brunner test for undue hardship under § 523(a)(8)); In re Speer, 272 B.R. 186 (Bankr.W.D.Tex.2001) (holding debtor was entitled to discharge of student loans based on undue hardship under § 523(a)(8) but adding debtor's retirement plan contributions back into his income for purposes of analysis and noting that "paying the government back would certainly take priority over saving for retirement under a standard of `undue hardship'"). See also In re Hansen, 244 B.R. 799 (Bankr.N.D.Ill.2000) (holding that voluntary pension contributions are not reasonably necessary expenses under § 1325(b) and thus constitute disposable income that must be devoted to Chapter 13 plan payments); In re Cornelius, 195 B.R. 831 (Bankr.N.D.N.Y.1995) (holding voluntary 401(k) contributions to be disposable income under § 1325(b)); In re Cavanaugh, 175 B.R. 369 (Bankr.D.Idaho 1994) (holding debtor's voluntary 401(k) contributions were not reasonably necessary for debtor's support and maintenance and thus had to be considered as disposable income for purposes of § 1325(b)); In re Fountain, 142 B.R. 135 (Bankr.E.D.Va.1992) (finding voluntary contributions to pension fund should be included in debtor's disposable income for confirmation purposes because they were not reasonably necessary to the support and maintenance of debtor or debtor's dependents).
With respect to whether the Plaintiff has maximized her income, it would seem that the most likely means for a law graduate to maximize income would be to take and pass the bar examination and obtain a law license. Yet, Plaintiff offered no explanation as to why she did not take the bar examination until February of 1999, which was nearly five years after she graduated from law school in May of 1999. This five-year hiatus certainly did not enhance plaintiff's chances of passing the bar examination and thereby qualifying to practice law. However, apart from not pursuing a law license, the Plaintiff has made efforts to obtain other types of employment. Initially, plaintiff obtained employment at an accounting firm and later as a paralegal at various law firms. Plaintiff also has attempted unsuccessfully to publish a novel and operate her own business developing and marketing study software for law students which also was unsuccessful. Considering plaintiff's evidence regarding the limitations that make it questionable whether she can pass the bar examination and practice law, the court finds that plaintiff's history of other employment is sufficient to support a finding that in recent years she has maximized her income through her employment as a paralegal.
The Plaintiff's current budget, however, reflects very clearly that she has failed to minimize her expenses. For example, the Plaintiff pays rent of $740.00 per month to live in a gated apartment complex with a pool and an exercise room, and, despite the myriad housing options in her community, admitted that she had not sought a less expensive place to live. Additionally plaintiff has included numerous items in her alleged budget which should be eliminated either because they are not necessary to maintain a minimal standard of living or because they are expenses not *308 actually being paid by the Plaintiff. Two items can be eliminated from the Plaintiff's budget at the outset: the $1,100.00 allocated to payment on another educational loan and the $400.00 designated as retirement and long-term care insurance. The alleged $1,100.00 student loan payment is not properly included in the Plaintiff's budget because it is not an expense which she is paying or is obligated any longer to pay. The $400.00 retirement expense is in addition to the $400.00 per month which is deducted and paid into her 401(k) account each month. As to the $400.00 purported expense for retirement and long-term care insurance, Plaintiff did not establish by credible evidence that such an expense, in fact, is being paid each month. Moreover, neither the $400.00 shown in Plaintiff's budget as an expense for retirement nor the $400.00 401(k) contribution are required for a minimal standard of living. The elimination of the retirement and educational loan items from the Plaintiff's budget reduces her expenses from $4,730.00 to $3,230.00 per month and the elimination of the 401(k) contribution increases her net monthly income by $400.00 to approximately $2,422.14.
Other expenses can be eliminated from the Plaintiff's budget because the Plaintiff presented insufficient evidence to demonstrate that they are necessary for a minimal standard of living. The most significant of these is the total of $517.00 per month in medical and dental expenses listed in her budget. Although Dr. Jeffrey Chambers testified regarding the cost of psychological treatment, Dr. Chambers is not currently treating the Plaintiff. Nor was there any credible evidence of any other psychological or psychiatric treatment being provided at this time. Hence, the evidence did not substantiate any ongoing medical expenses for such treatment. Similarly, the Plaintiff failed to demonstrate that she currently requires treatment for tendinitis or that she currently is incurring medical expenses related to tendinitis. The Plaintiff presented various receipts for medical treatment and prescription drugs, but she presented no credible, competent evidence regarding the necessity for such expenses or whether such expenses were ongoing. For example, Dr. Barrie actually amended her affidavit to clarify that although the Plaintiff's tendinitis symptoms have recurred in the past, it is possible that they will not return. Although Plaintiff testified regarding various alleged medical problems, including depression and tendinitis, and regarding medical treatment and expenses, her testimony in that regard was unconvincing and not credible and was insufficient to establish that Plaintiff has been paying medical expenses of $517.00 per month or is likely to have that level of medical expenses in the future. Because of the lack of credible evidence as to necessity or amount, the Plaintiff's alleged medical expenses must be eliminated from her budget.
Another expense that can be eliminated from her budget based on insufficient evidence is the $125.00 per month which Plaintiff allocates to the care of her mother. No evidence was presented as to her mother's financial resources or lack thereof nor was it clear exactly how much plaintiff actually has contributed to her mother's care. More importantly, the amounts which Plaintiff voluntarily contributes to her mother are not properly treated as a part of Plaintiff's minimal living expenses in determining whether she has the ability to repay her educational loan for purposes of § 523(a)(8).
Another item which should be eliminated from Plaintiff's budget is the expense of $100.00 per month for "miscellaneous unpredictable expenses." The Plaintiff testified *309 that this item was included as a result of the ice storm of the winter of 2002. Specifically, the Plaintiff apparently incurred the unexpected expenses of staying in a hotel for a week due to a power outage in her home and replacing her television set, which was damaged by an electrical surge. Testimony about events that happened almost two years ago and which are not regularly recurring expenses is not probative of the Plaintiff's current, necessary expenses.
Another alleged expense which must be eliminated from the Plaintiff's budget based on insufficient evidence is the $200.00 per month in charitable contributions to the church at which her father is the pastor. As previously noted, the courts are split as to whether religious contributions are proper expenses in the context of the undue hardship inquiry under § 523(a)(8). Here, however, the court need not reach this substantive issue because the Plaintiff has presented insufficient competent evidence to substantiate a current charitable contribution of $200.00 per month. The Plaintiff presented a computer printout showing that she contributed a total of $1,395.00 to Apex First Baptist Church in 2002, which at best supports a monthly charitable contribution of about $100.00 per month. However, the Plaintiff presented no credible evidence of charitable contributions during 2003 or 2004. Evidence of charitable contributions made during 2002 is not probative of the existence or amount of any current monthly tithe. The charitable contribution item must therefore be eliminated from the Plaintiff's budget in its entirety.
There are several other expenses which must be eliminated from Plaintiff's budget because they are simply inconsistent with a minimal standard of living. Specifically, the Plaintiff's budget includes monthly expenses of $56.00 for "home maintenance" of the apartment in which the Plaintiff lives; $250.00 in savings for a new car; $30.00 for recreation, which the Plaintiff testified consisted of charges for magazine subscriptions and movies; $45.00 for basic cable, which the Plaintiff testified was necessary for a minimal standard of living because of its "calming" effect; $10.00 for hobbies; $20.00 for special occasions, which the Plaintiff testified included purchasing drinks for others; $20.00 for gifts and related travel, which the Plaintiff testified consists of purchasing flowers or other gifts for events such as weddings and funerals and traveling to and from such events; $5.00 in miscellaneous business services and supplies; $30.00 for vacations; $40.00 for high-speed internet, which the Plaintiff testified was necessary to a minimal standard of living to avoid an "unstable connection"; $60.00 in lawsuit related expenses; $30.00 for inkjet cartridges; $42.00 in savings for a new computer; and $35.00 in savings for a new sewing machine. Despite the Plaintiff's insistence to the contrary, these expenses are not necessary in order for the Plaintiff to maintain a minimum standard of living.
The Plaintiff also included a monthly expense of $100.00 for payments to the IRS on outstanding taxes. She admitted, however, that the current balance owed to the IRS is only $425.00. In a few months, the Plaintiff will no longer have this expense. Although the Plaintiff testified that she owed additional taxes to the IRS, she presented no credible evidence to substantiate any additional taxes.
After eliminating the alleged expenses which the Plaintiff failed to substantiate as being necessary for a minimal standard of living, the monthly expenses alleged by Plaintiff go from $4,730.00 to $1,615.00 (which does not reflect any reduction based upon the excessive rent being paid by Plaintiff). Additionally, when the *310 Plaintiff's payment plan with the IRS is complete in four months, her monthly expenses will be further reduced to $1,515.00. As noted earlier, the elimination of Plaintiff's 401(k) contribution increases Plaintiff's net monthly income to $2,422.14. Subtracting the adjusted monthly expenses of $1,515.00 from Plaintiff's net monthly income of $2,422.14 leaves a positive monthly cash flow of $907.14. Thus, according to the greater weight of the evidence in this case, if Plaintiff's expenses are reduced to the expenses actually required to maintain a minimal standard of living, the Plaintiff is left with $907.00 per month of disposable income which is available for the repayment of the PHEAA indebtedness. With this figure in mind, the court must decide whether the Plaintiff has satisfied the first prong of the Brunner test under which she is required to show by a preponderance of the evidence that she would be unable to maintain a minimal standard of living if required to repay the PHEAA indebtedness. Having received and evaluated the credibility and weight of the evidence offered by the parties, the court concludes that the Plaintiff has failed to make such a showing and hence has failed to satisfy the first prong of the Brunner test.
C. Debtor has failed to demonstrate additional circumstances indicating that an inability to pay is likely to persist over a significant portion of the loan repayment period.
The second prong of the Brunner test requires a showing that additional circumstances exist which indicate that an inability to pay is likely to persist over a significant portion of the loan repayment period. A discharge of educational loans under § 523(a)(8) must be based not simply upon a present inability to pay, but rather upon a certainty of hopelessness that the plaintiff will ever be able to pay. In re Goulet, 284 F.3d 773, 778 (7th Cir.2002); In re Brightful, 267 F.3d 324, 328 (3d Cir.2001). In re Roberson, 999 F.2d 1132, 1136 (7th Cir.1993); In re Murphy, 305 B.R. 780, 797 (Bankr.E.D.Va.2004). Examples of "additional circumstances" that sometimes satisfy the second prong of the Brunner test include medical problems, lack of usable job skills or severely limited education, or large numbers of dependents. See Roberson, 999 F.2d at 1137. It is well established, however, that a debtor's medical or psychological condition will not constitute additional circumstances for purposes of the Brunner undue hardship inquiry unless it impairs her ability to work. See Goulet, 284 F.3d at 779 (holding that debtor's substance abuse issues did not constitute additional circumstances under the second prong of the Brunner test where they did not impair his ability to work); Brightful, 267 F.3d at 330 (finding no record basis for the bankruptcy court's conclusion that debtor's psychiatric problems, which included two suicide attempts, constituted additional circumstances under the Brunner test where debtor failed to demonstrate that they impaired her ability to work); In re McClain, 272 B.R. 42, 48 (Bankr.D.N.H.2002) (finding that debtor's depression, which had manifested itself through two suicide attempts, did not satisfy the second element of the Brunner test where he had been steadily employed for the last three years); In re Hatfield, 257 B.R. 575, 582 (Bankr.D.Mont.2000) (holding that debtor's "chronic depression" did not satisfy the second prong of the Brunner test where her doctor also testified that she was functioning well at work); In re Brunner, 46 B.R. 752, 757 (S.D.N.Y.1985) (reversing the bankruptcy court's finding of dischargeability where the record contained no evidence that debtor's depression and anxiety impaired her capacity to work; *311 "[Debtor] has no `impairment' in any relevant sense of the word."). Cf. In re Pena, 155 F.3d 1108, 1113-14 (holding that debtor's mental condition, "variously diagnosed as depression, manic depression (bipolar disorder), schizophrenia and paranoia," which the record demonstrated had prevented her from holding any one job for longer than six months to a year, impaired her ability to work and thus satisfied the second prong of the Brunner test).
As discussed above, the Plaintiff has the present ability to make payments on her educational loans and maintain a minimal standard of living. The record reflects no additional circumstances to suggest that Plaintiff's ability to do so is likely to become unavailable over a significant portion of the loan repayment period. The Plaintiff is single with no dependents. She is well educated, having obtained both an undergraduate degree and a law degree. Although she has never become a licensed attorney, the Plaintiff has amassed several years of experience as a paralegal and therefore does not lack marketable job skills. Most importantly, the Plaintiff has been employed as the lead litigation paralegal at Olive & Olive since September of 2001. Her current annual salary is $37,000.00. The stipulation regarding the trial testimony of her employer, Susan Freya Olive, reflects that the Plaintiff is meeting or exceeding expectations in her current position; indeed, she has received a raise from $33,000.00 to $37,000.00 since the filing of her Chapter 7 petition based at least in part on good performance. There is no evidence in the record to suggest that the Plaintiff will not continue to experience success at her current position and attendant pay raises.
The Plaintiff's anxiety and depression do not impair her ability to work and therefore cannot be considered as additional circumstances for purposes of the second element of the Brunner test. The record reflects that the Plaintiff's mental and emotional conditions will likely prevent her from ever passing the bar exam and becoming an attorney; however, they have clearly not impaired her ability to work and succeed as a paralegal. The Plaintiff presented even less evidence to suggest that her tendinitis impairs her ability to work. Because she not only has failed to establish a present inability to pay, but also has failed to demonstrate any additional circumstances reflecting that an inability to pay is likely to arise in the future and persist over the period of repayment, the Plaintiff has failed to satisfy the second prong of the Brunner test.
D. The Plaintiff has not made a good faith effort to repay her educational loan.
The third and final prong of the Brunner test for undue hardship requires a showing that the Plaintiff has made a good faith effort to repay her student loans. This inquiry, like the determination required under the first prong of the Brunner test, is measured by the debtor's efforts to obtain employment, maximize her income and minimize her expenses. In re Goulet, 284 F.3d 773, 779 (7th Cir.2002); In re Roberson, 999 F.2d 1132 (7th Cir.1993); In re Murphy, 305 B.R. 780, 798 (Bankr.E.D.Va.2004). Another important consideration is "whether the debtor actually made any payments, and if so, the total amount of the payments." Murphy, 305 B.R. at 798-99 (finding that debtor had not made a good faith effort to repay her educational loans where she had negotiated forbearances and deferments but had never a payment). See also In re McClain, 272 B.R. 42, 48-49 (Bankr.D.N.H.2002) (finding that debtor had failed to establish a good faith effort to repay where he had made only three payments totaling $300.00 on his loans). Cf. In re Pincus, 280 B.R. 303, 316-17 (Bankr.S.D.N.Y.2002) (finding a good faith effort *312 to repay where the debtor had made 22 payments totaling $10,000.00 on his student loans and had continued making payments up until one month before he filed his Chapter 7 petition). However, failure to make payments will not preclude a finding of good faith if the debtor had no funds available for payment toward the loan. Murphy, 305 B.R. at 798-99; In re Fuller, 296 B.R. 813, 819 (Bankr.N.D.Cal.2003) (finding that debtor had failed to establish a good faith effort to pay his roughly $240,000.00 in student loan debt where he made only a few payments toward that debt but had the ability to make more, as evidenced by the fact that he continually made payments on his credit card debt).
As discussed above, the Plaintiff has not minimized her expenses. Even more probative of the Plaintiff's lack of good faith effort to repay, however, is the fact that she did not make payments on the loan when she had the ability to do so. The Plaintiff's resume reflects that she has been steadily employed since she graduated from law school.[1] Her income has fluctuated, but the Plaintiff's tax returns reflect income of at least $30,000.00 for five of the last ten years.[2] Throughout the period since her graduation from law school, the Plaintiff has been single and without any dependents to support. Despite her steady employment and ample salary, the Plaintiff has made only one payment of $100.00 in the ten years since she graduated from law school.
The record reflects that the Plaintiff has had the ability over the years to make regular payments on her educational loan indebtedness. Plaintiff simply chose not to do so. By obtaining six forbearances and declining to pay even the interest during such forbearances, the Plaintiff unnecessarily increased her indebtedness. The Plaintiff admitted that she could have made some payments during the forbearance periods but that she chose not to, despite having been advised that any unpaid accrued interest would be capitalized. Plaintiff elected to pay other obligations and expenses rather than make payments on the PHEAA indebtedness. For example, Plaintiff testified that she paid $2,000.00 in order to settle her debts with credit card companies at a time when she was paying nothing to PHEAA. These funds could have been paid toward her educational loan. Plaintiff also testified that she had the ability to make partial payments toward her loan, but that she chose not to because she believed default was inevitable. Plaintiff's correspondence with PHEAA does not reflect a good faith effort to arrive at a repayment arrangement. Instead, it appears that Plaintiff sought to create disputes and excuses for not making payments, that she had no true intentions of repaying her educational loan obligations to the Defendant and that she has taken advantage of every possible opportunity to avoid doing so. Given the Plaintiff's consistent failure to minimize her expenses, her continuing lack of good faith effort to make payments to PHEAA and her record of having made only a single payment of $100.00 over a ten year period during which she had the ability to make regular, substantial payments to PHEAA, the court is satisfied that the Plaintiff has not make a good faith effort to repay her educational loan indebtedness *313 to PHEAA. The Plaintiff thus fails the third prong of the Brunner test.
CONCLUSION
The Plaintiff has failed to meet her burden with respect to all three prongs of the Brunner test and has therefore failed to establish that requiring her to repay her educational loans would impose an undue hardship upon her. The Plaintiff's educational loan indebtedness therefore is nondischargeable under § 523(a)(8) of the Bankruptcy Code. A judgment so providing shall be entered contemporaneously with the filing of this memorandum opinion.
JUDGMENT
In accordance with the memorandum opinion filed contemporaneously herewith, it is ORDERED, ADJUDGED AND DECREED that the indebtedness referred to in Plaintiff's complaint which is owed to the Defendant by the Plaintiff is nondischargeable pursuant to § 523(a)(8) of the Bankruptcy Code.
NOTES
[1] The Plaintiff was not permanently employed from January to March of 2001 or January to March of 1998, but her resume reflects that she worked for temporary agencies during these periods. Thus the only periods of unemployment reflected by the Plaintiff's resume are August and September of 1994.
[2] The Plaintiff reported income of $32,562.30 in 1995; $35,092.62 in 1996; $39,390.71 in 1997; $30,313.76 in 2002; and $31,767.25 in 2003. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3428809/ | This is an appeal from an order of the court appointing a receiver in a mortgage foreclosure proceeding to collect the rents and profits from the mortgaged land after decree but prior to sale and during the year allowed for redemption.
The prominent facts in this case, briefly stated, are that appellee St. Louis Union Trust Company, on June 12, 1925, commenced suit on a note and to foreclose a real-estate mortgage securing the same. The note and mortgage were executed by appellees Reed and Reed, who thereafter, by deed, conveyed the mortgaged premises to appellee Bond, who, prior to this suit, conveyed the land to appellant George T. Miller, present record-title owner. The unverified complaint contained allegations relative to the appointment of a receiver and prayed that one be appointed, but, on motion of appellant George T. Miller, these allegations, on October 6, 1925, the date the foreclosure proceedings were docketed for hearing, were, by the court, stricken out. Immediately following this action of the court, the record discloses what appears to be an explanatory statement as follows: "Plaintiff shows the filing on October 2d 1925, of a verified application for the appointment of a receiver, without notice, in these words, to wit." Then follows a copy of the application, verified by an affiant "as he is informed and verily believes." Its title and docket number are the same as that of the original complaint. There is no order-book entry showing the filing of the application. It was indorsed "Filed Oct. 2, 1925, W.F. Hoover, Clerk, Pulaski Circuit Court." Appellants *Page 691
Miller and Miller then filed a separate and several answer in general denial to the complaint. Thereupon, the pending cause was submitted to the court for trial, which resulted in the usual final decree.
At the time and following the entry of the decree, it appears that, on motion, "plaintiff's application for the appointment of a receiver" was submitted to the court for trial over the objection of appellants, who appeared specially and only for that purpose. The court then proceeded to hear the evidence adduced in support of the application, and, being sufficiently advised, found "that a receiver should be appointed to take charge of the real estate and account for the rents and profits therefrom during the year of redemption," to which appellants reserved an exception, and, over their objection, the court rendered judgment and appointed a receiver, to which action of the court appellants excepted. The second day, October 8, after the trial and the appointment of a receiver, appellants moved the court to modify its finding and judgment appointing a receiver by striking it out and expunging it from the record. Errors are assigned on the overruling of the objections to the submission of the application for trial; the overruling of the "objections to the judgment and order appointing a receiver"; and the overruling of the motion to modify.
The first error is not well assigned, for the reason no cause was suggested to the court for a delay. The second error is subject to criticism for uncertainty, but since the 1, 2. record discloses a proper basis for the conclusion that this assignment was evidently intended to challenge the order of the court appointing a receiver, we may regard it as sufficient to question the proceedings which resulted in the appointment. Sullivan Electric, etc., Co. v. Blue (1895),142 Ind. 407, 409, 41 N.E. 805; Hursh v. Hursh (1884),99 Ind. 500. Inasmuch as we are only concerned with the action of *Page 692
the court in appointing a receiver, and the second assignment questions that action, the third error is unimportant.
When the attention of the court was first called to the application for a receiver, the cause of action to which it was ancillary was still pending, but no steps were taken 3. thereon until immediately after the court had announced its findings and had formally pronounced judgment in the main action. The court was in regular session and appellants had answered the complaint after the allegations relative to a receiver had been stricken out. They appeared specially and objected to the submission of the application for trial, but, at the conclusion of this hearing, for anything appearing, they entered a general appearance and objected to the appointment of a receiver and took an exception to the order of appointment. The mere fact that the application prayed for the appointment of a receiver without notice does not overcome the record-showing that appellants had notice and were actually in court making objections to the proceedings and reserving exceptions to the various judicial steps.
Having determined that appellants were in court upon sufficient notice of the application, this case must be distinguished from that class of cases where the appointment was made without notice. It must be kept in mind that the court found that a receiver should be appointed only for the year of redemption. The judgment was that a receiver be appointed "to receive and account for the rents and profits from said real estate pending sheriff's sale and during the year of redemption." There was no motion to modify the judgment in conformity with the finding. Hence, we have the single question: Was the court justified in making the order appointing a receiver? *Page 693
In this jurisdiction, it is quite well settled that courts of equity may, in proper cases, appoint receivers to secure the application of the rents and profits before and after sale 4. in mortgage foreclosure proceedings. We have a statute giving courts of equity this power when it appears that the mortgaged property "is in danger of being lost, removed or materially injured, or when such property is not sufficient to discharge the mortgage debt," or when it is necessary "to protect or preserve, during the time allowed for redemption, any real estate or interest therein sold on execution or order of sale, and to secure to the person entitled thereto the rents and profits thereof." § 1300 Burns 1926, cls. 4, 6.
It appears from the allegations of the application that neither the mortgagors nor the present owner of the mortgaged land resided thereon; that they were not residents of Pulaski County; that the taxes on the land were permitted to go delinquent and the trust company was required to pay them in order to protect its mortgage security; that the mortgaged premises, describing 200 acres, would not sell for a sufficient sum to satisfy plaintiff's debt; that the improvements on the farm were deteriorating, and, unless a receiver was appointed to take charge of and manage the same, the land would lay idle during the year of redemption and continue to deteriorate until it would be impossible to sell the same for a sufficient sum to pay and discharge the indebtedness due the plaintiff; that all the defendants are insolvent and a deficiency judgment would be uncollectable.
At the trial, October 6, the evidence submitted to obtain a receiver was not contested. The only proven material facts were: That the fair cash market value of the 200 acres of land covered by the mortgage was between $60 and $65 per acre; improvements — fences about all down, posts and wire rotten, and the physical condition of the buildings bad; no one will furnish material *Page 694
to keep them up; barn ready to fall down; taxes unpaid; the crops on the land for the year 1925 were 1,190 bushels of oats, soy beans, amount not stated, and corn 80 to 85 acres in the field; financial condition of Reed, mortgagor, not known; neither he nor the present owner resided on the farm or in the county of Pulaski; the land was occupied by a tenant; on the morning of the day of the trial, the then owner of the land "said he was going to let them foreclose. He was going to get the crops and wanted to know how soon I [the tenant] could haul the oats and start cribbing the corn." To this evidence may be added the facts before the court in the main case, that judgment had been rendered in the sum of $16,257.69 and costs, which included the taxes for the year 1924, payable in 1925, the decree foreclosing the mortgage, and order of sale.
At this point, answering the claim that the application was not properly verified, it is sufficient to say that, while it was not verified in positive terms, and, therefore, of no probative 5. force upon the trial (Hizer v. Hizer [1929], 201 Ind. 406, 169 N.E. 47; Jordan v. Walker [1926],197 Ind. 365, 151 N.E. 2; Ledger Publishing Co. v. Scott [1923],193 Ind. 683, 141 N.E. 609; Kent, etc., Grocery Co. v. George Hitz Co. [1918], 187 Ind. 606, 120 N.E. 659; Mannos v.Bishop-Babcock-Becker Co. [1914], 181 Ind. 343, 104 N.E. 579), and of itself insufficient to sustain the appointment of a receiver, it was nevertheless technically sufficient to invoke the jurisdiction of the court to hear and determine the necessity for such appointment. Supreme Sitting, etc., v. Baker (1893),134 Ind. 293, 314, 33 N.E. 1128, 20 L.R.A. 210.
The facts stated in the application were sufficient to warrant the court in appointing a receiver pending sale *Page 695
under clause 4, supra, for inadequacy of security to pay 6. the mortgage debt, and under clause 6, supra, to protect and preserve the property after sale and during the year of redemption. Harris v. U.S. Sav. Fund, etc., Co. (1896),146 Ind. 265, 269, 45 N.E. 328; Leader Pub. Co. v. Grant Trust,etc., Co. (1915), 182 Ind. 651, 108 N.E. 121; Hursh v. Hursh,supra; Pouder v. Tate (1884), 96 Ind. 330; Main v.Ginthert (1883), 92 Ind. 180, 185.
Appellants challenge the evidence to support the finding of the court. The application will be treated as if there was no attempt to verify it. The market value of the land is shown by 7, 8. the evidence to be less than the judgment in a substantial amount. True, as claimed by appellants, there was no evidence of insolvency on the part of the primary obligor, and hence the insistence of insufficient evidence. We are well aware that, in the appointment of a receiver, the court exercises an extraordinary equitable remedy. Generally speaking, this remedy will be withheld until it is made to appear that the applicant therefor is without a legal remedy "as complete, efficient and effective as that in equity." High, Receivers (4th ed.) § 10; Drew v. Town of Geneva (1898), 150 Ind. 662, 667, 50 N.E. 871, 42 L.R.A. 814. However, in mortgage foreclosure proceedings, as here, this court has construed clauses 4 and 6,supra, as authorizing the appointment of a receiver to collect the rents and profits pending sale and during the year of redemption where the mortgaged property is in the possession of a tenant and is insufficient to discharge the mortgage debt.Pouder v. Tate, supra; Hursh v. Hursh, supra; Leader Pub.Co. v. Grant Trust, etc., Co., supra.
Furthermore, it appears from the evidence that the 1924 taxes were permitted to go delinquent and were *Page 696
paid by appellee trust company; that for aught appearing, 9. and the inference which might be drawn from the expressions of the record-title owner to his tenant, the 1925 taxes, payable during the year of redemption, would not be paid by either the judgment debtor or record owner, and to the extent of delinquent taxes, at least, the mortgage security would be imperiled. Under such circumstances, it would seem that justice between the parties would justify the action of the court in appointing a receiver to collect the rents and profits of the lands during the year of redemption.
The order appointing a receiver is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428715/ | The material facts, as shown by the record in this case, are not in controversy. They are as follows: that at all times herein mentioned, there has been in Noblesville, Hamilton County, Indiana, a duly organized county hospital organized pursuant to our statutes covering county hospitals; that on September 9, 1947, this hospital, through its trustees, who are among the appellants herein, adopted, among others, the following rules which are pertinent to this decision: *Page 221
"Article V — Medical Staff. Section I. The Hamilton County Hospital Staff as a whole shall be made up of the following groups or divisions: (a) The Active Medical Staff, which shall consist of: (1) The Resident Active Medical Staff, which shall include all the physicians having an unlimited license to practice medicine in the State of Indiana and having membership in Hamilton County professional organization of fully licensed physicians having the largest number of such physicians residing in Hamilton County. . . ." (Our italics.)
"(d) 2. All appointments to the Staff and assignments to services shall be made by the Board of Trustees but only upon the recommendation of the Active Medical Staff. (Our italics.) The Board of Trustees will either accept the recommendation of the medical staff or refer it back for further consideration with a statement of its reasons for such action. When final action has been taken by the governing body the superintendent will be authorized to transmit its decision to the candidate and to the chief of staff. . . ."
"Article VII — Choice of Physician or Surgeon — Section 1. Patients entering the hospital shall have the right to employ the physician or surgeon of their choice; Provided, that such physician or surgeon satisfies the standards of preparation herein stated for the service he is employed to render, and conforms to the following requirements and conditions. (1) He must have an unlimited license to practice medicine in Indiana. . . . (3) He must be a member of the Hamilton County Hospital Medical Staff, hereinafter generally referred to as the staff, as constituted under these rules and regulations; or if he is not a member he shall comply with the following provisions: (a) He is required to have with him in the treatment of his case a physician who is a member of the staff and who satisfies the rules and regulations as to qualifications to perform the services appropriate to the care and treatment of the patient. (b) He must, in arranging for admission of his patient, submit to the Superintendent, a written statement of the diagnosis he has made and the service he intends to render. (c) Upon receipt of such written statement, *Page 222
the Superintendent shall call in a member of the staff qualified to render the service mentioned in the written statement, which staff member shall have the right and duty to check the diagnosis and the services the non-staff physician proposes to render; and in event such staff member believes that said diagnosis to be incorrect the proposed treatment to be against the best interest of the patient, he shall so report to the Superintendent who shall transmit and explain to the patient such report. (d) The staff member called pursuant to (c) shall attend and be ready to assist in the rendering of any surgical or other services; and he shall be entitled to receive the same pay as he would receive for rendering the services himself which the patient receives from a non-staff physician and oversees. (e) The patient or the person responsible for the care of the patient who is admitted to the hospital with a non-staff physician attending him, shall be advised by the non-staff physician of all these requirements, including the obligation of the patient to pay the staff member; and the Superintendent shall have authority to make inquiries to determine whether or not such advice has been given and if she finds that it has not, then to give such advice herself. 4. A surgeon desiring to practice surgery who was not a member of the surgical staff of the hospital according to the records of the hospital on March 1, 1947, shall possess the following qualifications, in addition to those mentioned under 1 and 2: (a) He shall be a member of the staff. (b) He shall have a certificate of interneship showing one year service as an interne in hospital approved by the Council of Medical Education and Hospitals of the American Medical Association. (c) In addition to interne training required under (b) he shall have had not less than three years of surgical training which meets the approval of the American College of Surgeons."
The facts further reveal that the appellee was at all times referred to herein, duly licensed to practice medicine, surgery and obstetrics in Hamilton County, this state, but has not served an internship or had the required *Page 223
surgical training as required by the rules as a condition precedent to the practice of surgery in this hospital; that he became a resident of Noblesville, Indiana, about January 1, 1947; that shortly thereafter, he applied for membership in the Hamilton County Medical Society which is the "professional organization of fully licensed physicians having the largest number of . . . physicians residing in Hamilton County," as referred to in the above rules; that this application was denied; that the hospital thereupon, in accordance with the above rules, refused to permit the appellee to treat his patients in the hospital unless accompanied by a member of the staff; and finally, that at the time of appellee's application for membership in the medical society he was, and still is, practicing his profession at Noblesville, Indiana.
Appellee brought this action to enjoin the appellants, who are the board of trustees of said hospital and the superintendent of the same, from preventing him from practicing in, and using the hospital. He also named as defendant the Hamilton County Hospital as a legal entity. It has also been named as a party appellant to this appeal. No objection having been made to this irregularity, we will ignore the same. His complaint, based upon the admitted facts, is on the theory that the involved rules are arbitrary, discriminatory, unreasonable, monopolistic in their nature, and in restraint of trade.
The trial resulted in a finding and judgment in favor of the appellee against the appellants, enjoining them as prayed. It is from this judgment this appeal was taken.
Appellants have assigned as errors the overruling of their demurrer to the complaint, and the overruling of their motion for a new trial. *Page 224
One ground of demurrer was for defect of parties claiming that appellee's patients were necessary parties plaintiff. The other ground for demurrer was for insufficient facts for the reason that the trustees had the right to adopt rules, and that the above set out rules are reasonable. The motion for a new trial assigns as reasons therefor, that the decision is not sustained by sufficient evidence and is contrary to law.
There is no defect of parties plaintiff. No reputable physician residing in a county of this state having a county hospital, can be discriminated against by such hospital. This is a 1, 2. right which belongs to him and not his patients. Regularly licensed physicians have a right to practice in public hospitals of this state so long as they stay within the law and conform to all reasonable rules and regulations of the institutions. 25 Am. Jur., Hospitals and Asylums, § 9, p. 592;Henderson v. Knoxville (1928), 157 Tenn. 477, 9 S.W.2d 697. In fact the first act which empowered a county of this state to establish a hospital contains the following provision:
"Any reputable physician residing in any county in this state so establishing or requiring (acquiring) a hospital under this act may have his private patients cared for at such hospital, under the same conditions and upon the same terms that other pay patients are cared for at such hospital, and such physician shall be permitted to attend and in all things treat his said patients in the manner that to him seems best: Provided, however, That all physicians shall be subject to the rules and regulations of said hospital, and said rules and regulations shall be the same to all physicians by this act authorized to have their patients cared for at said hospital." Section 22-3208, Burns' 1933 (Acts 1903, ch. 86, § 8, p. 167.) *Page 225
The rulings of the trial court in overruling the second ground for demurrer, and overruling the motion for a new trial, present the same questions, as the facts proved in support of the complaint are admitted to be true and are the same facts as alleged in the complaint. We will therefore consider these rulings together.
To require membership of the appellee in the resident active medical staff before permitting him to practice in the hospital, would be a reasonable requirement if such staff were 3, 4. provided for by reasonable rules of the hospital, or the Board of Health through its council, as provided for by our statutes. Sections 42-1607 et seq., Burns' 1940 Replacement (1947 Supp.), (Acts 1945, ch. 346, p. 1639). We say this in the face of § 22-3232, Burns' 1933 (Acts 1917, ch. 144, § 13, p. 527), which among other things provides: "The patient shall have the absolute right to employ at his or her own expense, his or her own physician, and when acting for any patient in such hospital, the physician employed by such patient shall have exclusive charge of the care and treatment of such patient . . . subject always to such general rules and regulations as shall be established by the board of trustees under the provisions of this act." It is our opinion that requiring membership in the staff is such a general rule as is contemplated by the foregoing quoted statute. The present rules, however, provide that the hospital can appoint new members to its staff only upon recommendation of its staff. It would seem by this rule, recommendation to membership may be rejected by the board, but that no one shall be made a member of the staff without such recommendation. This is an unreasonable requirement, as by it the hospital delegates to its staff a virtual veto of its right to perform one of its duties. By this arrangement the staff dictates what physicians may *Page 226
practice in the hospital. In so holding we are aware that courts of at least one other jurisdiction have approved of staff selection in public hospitals by invitation from their staff. SeeSelden v. City of Sterling (1942), 316 Ill. App. 455,45 N.E.2d 329. With this holding we cannot agree.
It will be further noted that by the involved rules, appellee's right to practice in the hospital is not only conditioned on his being a member of the staff, but also on his being a member 5. of the Hamilton County Medical Society, an extra governmental agency. His admission to this society depends entirely upon the sole determination of the society. MedicalSoc. of Mobile County v. Walker (1944), 245 Ala. 135,16 So. 2d 321; Harris v. Thomas (1920) (Tex. Civ. App.), 217 S.W. 1068; McKane v. Adams (1890), 123 N.Y. 609, 25 N.E. 1057; 4 Am. Jur., Associations and Clubs, § 11, p. 462. Whether he could ever become a member depends upon conditions beyond his control. By this rule the hospital again delegates its power to determine what physicians may use its facilities. It amounts to a preference in favor of the society and a discrimination against those physicians who by choice or otherwise, are not members of same.
The rule in question relating to surgery which requires a surgeon who was not a member of the staff on March 1, 1947, not only to be a physician licensed by the state, but to have 6-9. had one year service as an interne in an approved hospital, and three years of surgical training which meets the approval of the American College of Surgeons, as applied to a public hospital such as here involved, is reasonable. We recognize the right of public hospitals to make and enforce reasonable rules for the protection of its patients. In fact such power is expressly conferred by the *Page 227
sections of our statutes above quoted. We judicially know, and the testimony in this case amply illustrates, that a license to practice medicine does not guarantee that the holder thereof is capable of doing surgery. See Green v. City of St. Petersburg
(1944), 154 Fla. 339, 17 So. 2d 517 wherein reasons in defense of this proposition are well stated. It is true that part of what was said in the last cited case seems to have been said on the assumption that the maintenance of a public hospital by a municipality is not a governmental function which is contrary to the law of this state. Board of Comrs. of Greene County v.Usrey (1943), 221 Ind. 197, 46 N.E.2d 823. Nevertheless without this assumption, the reasoning in the Florida case is sound. In oral argument it was also suggested that this rule as to surgery is discriminatory, as it does not apply to those physicians who were members of the staff prior to March 1, 1947. With this we cannot agree. Similar classifications have been upheld for legislative purposes. Bolivar Twp. Bd. of Fin. ofBenton Co. v. Hawkins (1934), 207 Ind. 171, 191 N.E. 158;Perry Twp. v. Indianapolis Power and Light Co. (1946),224 Ind. 59, 64 N.E.2d 296.
It is our conclusion the complaint states facts which entitle the appellee to some relief; namely, the right to practice general medicine, excluding surgery, in the hospital, 10, 11. without being a member of the staff as here constituted, as membership on this staff can only be increased upon recommendation of the staff and is limited to members of the Hamilton County Medical Society. The demurrer for insufficient facts was therefore properly overruled. As to the sufficiency of the evidence to support the finding, it is our opinion that the appellee is not qualified, under the valid portions of *Page 228
the rules now in force, to perform surgery in the hospital.
We, therefore, reverse that portion of the judgment of the trial court which enjoins the appellants from preventing the appellee from doing surgery in the hospital, and affirm that portion of the judgment which enjoins the appellants from preventing the appellee under the present rules from practicing medicine in the hospital other than surgery.
As the evidence in this case is not in controversy and will not change, we instruct the trial court to enter its finding and judgment in accordance with this opinion.
NOTE. — Reported in 84 N.E.2d 469. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428776/ | DISSENTING OPINION.
This was an action brought in the name of the State of Indiana, on the relation of the Attorney General, upon the official bond of Louis Middleton, former clerk of the Howard Circuit Court, to recover from the defendants the unpaid balance of all funds, including costs, fees, and trust funds, which said defendant Middleton *Page 233
had collected and received as said clerk, and which at the expiration of his term and ever since, he has failed to pay over to his duly elected and qualified successor in office. By this suit recovery was sought for the total sum of $4,775.54, of which $4,476.46 is the balance charged to the defendant Middleton as such clerk, at the expiration of his term of office, as shown by the records of said office and at the time of trial remaining unpaid to his successor. The balance of said total amount ($299.08) was alleged to be money received by defendant Middleton as such clerk, as costs in certain proceedings, with which the defendant did not charge himself upon the records of said office, and did not account for or pay over to his successor.
Appellees answered the complaint by general denial, and by a second paragraph of answer wherein it was stated that defendant Middleton had paid over to his successor in office all money with which he was chargeable at the end of his term except $4,476.46; that he had deposited the funds coming into his hands as clerk in certain banks which had been designated public depositories by the board of finance of Howard County, but that said money was not deposited under the terms of the depository act because said act was not applicable to a clerk of the circuit court; that said banks failed before the expiration of said Middleton's term; that at the expiration of his term he had $18,011.25 on deposit in said banks, of which $13,534.79 had been paid to his successor and that the balance of $4,476.46 is the money described in plaintiff's complaint, except the items in Exhibit D, which was the sum of $299.08 mentioned above. Appellees further alleged that the defendant Middleton was relieved of liability for said sum of $4,476.46 by the virtue of the provisions of ch. 121, p. 697, Acts 1937, section 61-664 Burns' Supp. 1938, § 13844-85, Baldwin's Supp. 1937. *Page 234
Plaintiffs filed a demurrer to the second paragraph of answer for insufficient facts to constitute a defense to the complaint. The memorandum attached to the demurrer in effect alleged that said ch. 121, of the Acts 1937 was ineffective to release the defendants or either of them from the liability claimed because said act contravenes Art. 1, section 23, of the constitution of Indiana, and section 1, of the Fourteenth Amendment to the Constitution of the United States in that said act attempted to grant to certain citizens privileges and immunities which upon the same terms belong equally to all citizens and has attempted to abridge the privileges and immunities to the citizens of the United States. That said act contravenes Art. 1, section 24, of the Constitution of Indiana, in that it impairs the obligation of contract.
The court overruled appellant's demurrer to the second paragraph of answer. There was a third paragraph of answer filed by the defendants which we need not consider in this opinion. The decision of this case depends upon the constitutionality of ch. 121, of the Acts of 1937. Sections 1, 2, and 3 of the above entitled act read as follows:
"Section 1. Be it enacted by the General Assembly of the State of Indiana, That every officer and former officer of and in any municipal corporation in this state who, in his official capacity, deposited any funds payable to any municipal corporation, or who deposited any public funds or any trust funds received by or coming into the possession of such officer, by virtue of his office, in any bank or trust company which had been designated, as provided by law, as a depository of public funds, and which at such time was a depository, but when such funds could not be deposited under the terms and provisions of the depository act, be and is hereby relieved, released and discharged from any and all personal liability on account of the loss of any such money caused by the failure or insolvency of any such bank or trust company, and such liability shall be *Page 235
assumed by the municipal corporation for or in which such officer served or is serving in an official capacity. Such municipal corporation shall have the right to receive any dividends arising from the liquidation of such bank or trust company, to the extent of its interest.
"Sec. 2. That the legal claim of any officer or former officer contemplated in section 1 of this act to any funds on deposit in any such bank or trust company shall inure to the municipal corporation for, in and on behalf of which such officer has officially served or is serving, and such municipal corporation shall be charged with full liability for the proper distribution of all such fees and funds so deposited by such officer. Any person or any municipal corporation to whom or to which such funds, or any part thereof, may be due and owing, is hereby authorized to prosecute his or its claim for the recovery of such funds, in his name or its corporate name, or otherwise, against such municipal corporation charged with the liability for such funds, and which is hereby declared to be fully subrogated to all of the rights which such officer or former officer would have had if this act had not been passed.
"Sec. 3. Any person who may have any money due and owing to him from such fund may file his claim therefore (therefor) with such municipal corporation taking over such deposits, as provided herein, and such claim, if found correct, shall be approved and shall be paid out of the general fund of such county, township, city or town with appropriation therefor."
Sections 4 and 5 of said act defines the meaning of municipal corporations and other terms used in said act; section 6 is the emergency clause.
Before the passage of ch. 30, Acts 1937, the clerks of circuit courts of the various counties in Indiana were not required to deposit the funds coming into his hands as such clerk in a public depository, but was governed by section 49-2719 Burns' Ind. Statutes Ann. 1933, § 1438 Baldwin's 1934, ch. 24, § 1, p. 37, Acts 1875, which provides: *Page 236
"The clerks of the several courts throughout this state are hereby authorized to receive money in payment of all judgments, dues and demands of record in their respective offices and all such funds as may be ordered to be paid into the respective courts of which they are clerks by the Judges thereof; and said clerks with their sureties shall be liable on their official bonds for all monies so received by said clerks and so paid into such courts under the order of the Judges thereof, to any person who may be entitled to demand and receive such money or funds from them."
By article 6, § 2, of the constitution of the State of Indiana the office of clerk of the circuit court is created by the constitution of the State of Indiana. Prior to the enactment of the depository law in Indiana all public officials in the state were held as insurers of the funds in their custody. Holbert v.State ex rel. (1864), 22 Ind. 125; Inglis v. State (1878),61 Ind. 212; Mount v. State (1883), 90 Ind. 29; McClelland
v. State (1894), 138 Ind. 321, 37 N.E. 1089; and under this rule, which is known as the insurance rule and which was adopted in this state, such officer was absolutely liable for the loss of said funds whatever the cause of such loss might have been, with one exception, that exception being when such loss was occasioned by what was designated as the Act of God or the Public Enemy. SeeInglis v. State, supra; Mount v. State (1883), 90 Ind. 29;McClelland v. State, supra. In the first above cited cases the loss was occasioned through the failure of the bank in which the deposits had been made and such deposit was made without knowledge on the part of the officer that such bank was in failing circumstances, and it was not contended or charged that the deposit was made without diligence or care on the part of the officer making such deposits.
After the depository act was passed it was held that any officer coming within the provisions of the depository *Page 237
act and who deposited funds as designated would be relieved from liability for the loss of such funds caused by the failure of the bank in which such funds were so deposited, and it might be noted that there is no provision made by such depository laws for the reimbursement to the party suffering loss.
By section 49-2703 Burns 1933, § 1430 Baldwin's 1934, the clerks of the circuit courts of this state were required to give bond conditioned for the faithful discharge of the duties of his office and the payment to the proper person or persons of all monies that may come into his hands as such clerk. This statute provides:
"The respective boards of commissioners of the several counties throughout the state shall, at their first regular meeting after the taking effect of this act, determine the amount of bond which shall be required to be given by the respective clerks of the counties for which they are acting respectively, and every clerk shall give bond with surety as is now required by law, in the penal sum fixed by the board of commissioners of the county of which he is clerk, to be approved by said board, conditioned for the faithful discharge of the duties of his office, and the payment to the proper person or persons of all monies that may come into his hand as such clerk . . ."
Section 49-2704 Burns' Indiana Statutes 1933, § 1431 Baldwin's 1934, provides:
"All clerks hereafter elected shall give bond as is required in the foregoing section."
It is urged by appellant that ch. 121, Acts 1937, supra, is unconstitutional for the reason that the classification therein made is unauthorized and that it discriminates in favor of a certain class of citizens and against another class of citizens in a like situation and with the same inherent needs and qualifications as the favored class. In order to determine whether or not the *Page 238
classification made by the legislature in the enactment of a statute is a constitutional classification, the purpose of the act is important to consider.
We take as fundamental the proposition that the taxing power of a state can only be exercised to affect a public interest and a legislative act requiring tax for a private purpose is unconstitutional because it amounts to taking property without due process of law in violation of the fourteenth amendment of the United States Constitution. The learned author Grey in his work entitled "Limitation of Taxing Power" (sections 169 and 170) says:
"In all the definitions of tax and taxes one element appears most prominently, to-wit, the necessity for a public purpose to justify the exercise of the taxing power. No principle of law is better established than this: That taxes can only be laid for public purposes; and that a tax laid for a private purpose, or to bestow some private benefits upon some individual or individuals is void regardless of the absence of express constitutional prohibitions . . .
"This limitation upon the taxing power is based upon and derived from the inherent purpose of the state as a social organization."
Cooley on taxation, Volume 1, § 174, 4th edition, says:
"It is implied in all definitions of taxation that taxes can be levied for public purposes only; and the rule that taxes can be levied only for public purposes is so well settled that a lengthy citation of decisions so holding is unnecessary. This is said to be `an underlying principle of our government.' Differences of opinion frequently arise concerning the power to impose taxation in particular cases, but all writers who treat the subject theoretically and all jurists agree in the fundamental requirement that the purpose shall be public, and they differ, when they differ at all, upon the question whether the particular purpose proposed is within the requirement, i.e., is a public purpose."
So the first question to determine is whether or not *Page 239
we can find in this act a public purpose that would justify a levy of tax by the county to discharge the obligation imposed upon them by this act. If the clerk and his bondsmen are relieved from liability and such liability is assumed by the county then in order to discharge the liability and to secure funds with which to pay the different ones having claims against the clerk by reason of money having been deposited with the clerk or by reason of having deposited money with the clerk for their benefit, it goes without argument that a general tax must be levied upon the people and property of the county by the authorized officer, to raise such funds. The "public purpose" as pointed out in the majority opinion in the latter part thereof is found in these words (p. 231):
"Much might be said in support of the moral responsibility resting upon the state to make good the loss of funds in the hands of circuit clerks. The judiciary is one of the co-ordinate branches of government; circuit courts are an integral part of the judicial system of the state; clerks of such courts are very important officers thereof; and monies placed in the hands of such clerks, pursuant to judgments and court orders are regarded as in custodia legis. Notwithstanding the fiduciary character of the authority under which clerks received and held monies of private citizens the state failed until after the passage of the act here complained of to provide a public depository law applicable to these officers although it had done so with respect to the custodian of its own funds.
"We are not at liberty to say that the General Assembly abused its power when it recognized a moral responsibility on the part of the state to make good the losses suffered by persons whose funds were on deposit to the credit of circuit clerks in closed banks. . . . It may have reasoned that the burden placed upon the taxpayers was necessary and proper to the end that confidence in the government and respect for its courts should not be materially weakened." *Page 240
If the purpose of the act is to maintain public confidence in the courts, then to justify a classification, made by the legislature, we must be able to point out a substantial difference in the different classes that would necessitate different legislation for the different classes. In DavisConstruction Company v. Board, etc. (1921), 192 Ind. 144, 150, 132 N.E. 629, this court very clearly stated the rule governing class legislation as follows:
". . . while some classification of the subjects of legislative action is necessary, and a reasonable classification based upon actual differences which inhere in the different subjects and embrace all within the class and the reason for the classification will be upheld, a classification, to be valid, must be based on substantial distinctions which make one class so different from another as to suggest the necessity for different legislation with respect thereto. An artificial, arbitrary, and unreasonable classification, as by designating certain individuals by name or description out of a larger number whose situation and needs do not differ from theirs, is forbidden by the constitution."
Let us keep in mind the public purpose of the act above pointed out. Only one way can this be accomplished, and that is by the state paying the creditors of the clerk. By paying in full those who were entitled to recover money deposited with the clerk, so no one would lose by reason of the failure of the bank. This result is accomplished by the provisions of the act, in that it provides for full payment by the state; but payment by the state is limited, by the classification made in the statute, to those where the clerk had deposited the funds in a public depository and withheld the benefits of the act from another class of citizens, namely all those who had money due them from the clerk in counties where the clerk did not deposit the funds in a bank that had been designated a public depository.
The real beneficiaries of the act are the creditors of *Page 241
the clerk; those who were entitled to receive funds that had been paid to the clerk as such, and which he held for them. While it is true the clerk is a beneficiary of the questioned legislation, yet it will be seen that he was not the beneficiary the legislature really intended to protect. So I think it is clear that the legislature had in mind two classes of citizens; one class, namely, those persons who are creditors of the clerk in counties who had deposited the funds in a bank that had been designated a public depository, and those that are creditors of clerks, who did not deposit the funds in a bank that had been so designated. Now, what justification exists that would justify such a classification? Just how is the one class different from the other that would reasonably justify different legislation for each? Isn't it just as important to the state in order to maintain respect and confidence in the court, or in other words to accomplish the public purpose designed by the act, for the state to assume and pay those persons who had funds deposited with the clerk in counties that did not deposit the fund in a bank or other depository, that were not designated a public depository, as it is to pay those persons who had funds deposited with the clerk, that perchance had deposited such funds in a bank that had been designated a public depository? It seems to me that it is just as important to the state, that it maintain the respect and confidence of one of the classes as the other, and if the public purpose of the act be to maintain the respect and confidence of the public in our courts, then no classification should be made at all but the state should assume and pay all persons who were entitled to receive funds held by the clerk for their benefit, and not classify them, and make the classification depend upon what the clerk did, over whom they had no control, or had no voice in determining where the funds should be deposited. Such a classification *Page 242
in my judgment does not meet the constitutional requirements and is void. Fountain Park Co. v. Hensler (1927), 199 Ind. 95,155 N.E. 465.
It may also be noted that in this case the record affirmatively shows that the bond given by the clerk is altogether sufficient to pay all creditors of the clerk and that if the conditions of the bond are enforced there will be no loss whatever to any individual by reason of the failure of the banks of Howard County.
If the purpose of the legislation is construed to be to relieve the individual clerks and their bondsmen from liability another serious question is presented, namely, whether or not the legislature has authority to relieve such clerks and their bondsmen and to impose upon the local taxing districts, which is the county in this case, the burden of raising by taxation funds to reimburse and to pay the liabilities of such clerk. The funds in the hands of the clerk were not raised by general taxation. In other words, the question would be presented as to whether or not the taxing power can be exercised for the benefit of a private individual to relieve him from individual obligation which he voluntarily assumed. The rule is stated in Carmichael v.Southern Coal Coke Co. (1937), 301 U.S. 495, 57 S.Ct. 868, 109 A.L.R. 1327-1336, as follows (p. 514):
". . . since the adoption of the Fourteenth Amendment, state taxing power can be exerted only to effect a public purpose and does not embrace the raising of revenue for private purposes. See Green
v. Frazier, 253 U.S. 233, 238, 64 L.Ed. 878, 881, 40 S.Ct. 499; Milheim v. Moffat Improv. Dist., 262 U.S. 710, 717, 67 L.Ed. 1194, 1199, 43 S.Ct. 694; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 158, 41 L.Ed. 369, 388, 17 S.Ct. 56; Jones v. Portland, 245 U.S. 217, 221, 62 L.Ed. 252, 255, 38 S.Ct. 112, L.R.A. 1918C 765, Ann. Cas. 1918E 660."
The majority opinion attempts to justify the act on *Page 243
the theory that the purpose of the act was to discharge a moral duty owing to the clerks, because the legislature was negligent and derelict in its duty in that when they enacted the depository law covering county officers, they did not include the clerks of the circuit courts, and that because some of the clerks of the state attempted to follow the depository law by depositing the funds placed in their hands, in banks that had been designated public depositories for other public officials, they thereby created a situation that would justify the legislature in considering such fact, to determine that an obligation rested upon them to pass an act which would relieve such clerks of the legal liability imposed by § 49-2703 Burns (§ 1430 Baldwin's),supra, provided the funds were lost by failure of such public depository. The act here in question not only relieves certain clerks of such legal liability imposed by § 49-2703 Burns (§ 1430 Baldwin's), supra, but transfers such liability to the taxpayers of the local county, and compels them to pay by the exercise of the taxing power the obligation theretofore resting upon the clerk. The majority opinion, as I interpret it, in effect, holds that the moral obligation created by the several clerks, in attempting to follow the public depository act as above pointed out, was sufficient to meet all constitutional objections urged against it.
I am unable to follow the reasoning of the majority opinion. It is my judgment that no such moral obligation was created, nor that the legislature was derelict in not including the clerks of circuit courts in the provisions of the public depository law at the time such law was enacted.
The clerks of circuit courts are elected by the legal votes of the county, and when they voluntarily assumed the responsibilities that accompanied the office and gave bond to secure that obligation there could be nothing *Page 244
immoral in enforcing the liability thus assumed. By § 49-116 Burns 1933, § 13059 Baldwin's 1934, Acts 1925, ch. 30, p. 80, the cost of such bond is paid for out of the general fund of the county. It seems to me that the state would not be under any moral obligation to relieve such clerks of any liability which might be incurred during their terms of office and the clerks could not by any act of their own, in attempting to comply with some statute that had no application to them whatever, create a moral obligation on the part of the state to relieve them of such responsibility. It is not contended that the state or citizens of Howard County have done anything in the instant case that was wrong, or that by any imagination could be construed as creating a moral obligation to come to the rescue of such clerk and his compensated surety.
The decided cases involving the question of the constitutionality of statutes relieving public officers from liability where public funds are involved, or funds raised by taxation are clearly distinguishable from the case at bar, and have no decisive effect upon the question here involved except that such decisions clearly point out that the taxing power can only be exercised in the interest of the public, and not for private purpose.
How could there be any public interest here involved? Only the clerk and his bondsman are benefited. The record clearly shows that no creditor of the clerk would lose one penny. Every person who had a claim against the clerk would be paid in full. The bond was more than sufficient to cover the liability of the clerk. Who, then, other than the clerk and his compensated surety could be the beneficiary of such an act? Where is the public interest served by the enforcement of this law? What would justify the classification made by the statute? What public interest is protected and what benefit will inure to the state by compelling the taxpayers of Howard *Page 245
County to assume and pay the obligations the clerk voluntarily assumed? I can see none whatever.
It is my opinion that the above statute is clearly unconstitutional on the ground that there is no justifiable basis for the classification made by the statute, and that it is an unjustifiable exercise of the taxing power in that it is used for a private and not a public purpose.
It is my opinion that the judgment of the trial court should be reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428717/ | Action by appellant to recover on a contract for the construction of a silo, and to foreclose a mechanic's lien therefor.
In the first paragraph of complaint, appellant alleged, in substance, that it and appellee Robert A. Huber entered into a written contract by which appellant agreed to furnish the material for and perform labor necessary to erect a concrete stave silo on real estate in Decatur *Page 653
county, Indiana, therein described, and owned by appellee; that appellant performed said contract; that there was due thereon $348.75. There were averments as to a mechanic's lien and as to attorney's fees. It appears by the contract of purchase that there was no express warranty of the silo. It is averred in the fourth paragraph of answer, so far as here involved, that, at the time of purchase of the silo, appellee was engaged in farming in Decatur county, Indiana, and in raising live stock upon said farm; that, at that time, he desired to have erected upon his farm a silo for the purpose of holding ensilage to be fed to his live stock; that, with full knowledge of the use for which appellee desired said silo and knowing that he was purchasing it and was having it erected for the sole and only purpose of holding and preserving ensilage to be fed to his live stock, appellant did, upon said date, agree with appellee to erect upon his said farm a silo suitable for said purpose and entered into the contract sued upon well knowing that appellee desired to have said silo erected for that purpose and no other; that, knowing all of said facts, appellant impliedly warranted to appellee that it was able to and would erect a silo suitable for such purpose. But appellant wholly failed and neglected to erect said silo in such manner as to hold and preserve ensilage, but erected the same in a negligent and faulty manner and used defective, rotten and unfit material in the construction of the same; that the cement staves were rotten and broken, and at the time appellant announced that it had completed the construction of said silo, there were sixty-four broken concrete staves therein; that more than forty of said broken staves were on one side of said silo, and eleven in a continuous row were broken; the effect of which rotten and broken concrete staves was to render said silo unfit for holding and preserving ensilage as food for live stock, and said silo was *Page 654
and is at this time unfit to be used for said purpose; that said concrete staves are broken and cracked in such manner as to render said silo wholly worthless for the purpose for which it was intended and for the purpose which appellant impliedly warranted said silo to be useful.
There was a finding against the appellant. Judgment was rendered accordingly that appellant take nothing and appellee recover costs.
The error relied upon is that the court erred in overruling appellant's motion for a new trial, upon the ground that the decision of the court is contrary to law and not supported by sufficient evidence.
We have carefully examined the evidence in this case as it appears in appellant's brief, supplemented by appellee in his brief, and we have no hesitation in saying that there is 1, 2. ample evidence to sustain the decision of the court, and that it is not contrary to law. Appellant confuses the rule that prevails where there is a written contract and there is an attempt to prove by parol and express warranty, with the rule that prevails when there is an implied warranty. Where the principal contract is in writing, an express agreement constituting a warranty cannot be shown by parol. Such is the holding of Michigan Pipe Co. v. Sullivan County Water Co.
(1920), 190 Ind. 14, 127 N.E. 768, relied upon with so much confidence by appellant; but, in this case, appellee does not attempt to rely upon an express warranty, and has offered no evidence of such a warranty. But appellee does rely upon an implied warranty as to quality and fitness, as is revealed in his fourth paragraph of answer. All his evidence tended to support the averments of that paragraph of answer, and there was certainly some evidence to sustain it. As was said in IndianaSilo Co. v. Harris (1918), 134 Ark. 218, 203 S.W. 58: "In the absence *Page 655
of an express warranty the seller of a silo was liable on an implied warranty that it would preserve ensilage and was fit for the purpose for which it was manufactured and sold." Indiana authorities that sustain this principle are: Oil-Well SupplyCo. v. Watson (1907), 168 Ind. 603, 80 N.E. 157, 15 L.R.A. (N.S.) 868; Hart-Kraft Motor Co. v. Indianapolis Motor CarCo. (1915), 183 Ind. 311, 109 N.E. 39; Zimmerman v. Druecker
(1896), 15 Ind. App. 512, 44 N.E. 557; J.C. Smith Shoe Co. v.Curme-Feltman Shoe Co. (1918), 71 Ind. App. 401, 118 N.E. 360.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073714/ | ACCEPTED
03-15-00210-CR
7101393
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/25/2015 11:50:34 AM
JEFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
9/25/2015 11:50:34 AM
JEFFREY D. KYLE
Clerk | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073719/ | September 25, 2015
Re: Court of Appeals Number: 03-15-00251-CV
Trial Court Case Number: C-1-CV-14-010888
Mr. Kyle,
I was not aware this case was on appeal. On Thursday, September 17, 2015, counsel for Onabajo
emailed me inquiring about the reporter’s record. Counsel also informed me that an appeal and
affidavit of indigency was filed on April 30, 2015. I also was not aware that an affidavit of indigency had
been filed.
I can have the reporter’s record filed by Monday, October 12, 2015. The estimated cost for the
reporter’s record is $319.00.
Thank you.
Cathy Mata, CSR
County Court at Law No. 1
Heman Marion Sweatt Courthouse
1000 Guadalupe Street, Room 206
Austin, Texas 78701
Cathy.Mata@co.travis.tx.us
512-854-9252 | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428773/ | DISSENTING OPINION.
The questions involved are so important and have such a far-reaching effect that I deem it necessary to give my reasons for withholding my assent to the views of the majority of the court. *Page 206
By his petition, Lemuel S. Todd seeks admission to the practice of law at the bar of this court upon establishing that he is of good moral character and a voter of this state. A constitutional amendment, changing the original provision of the Constitution concerning admission to practice, was submitted to the people at a general election. It received a majority of the votes of those voting upon the question of the amendment, but less than a majority of those voting at the general election. It is contended that the amendment was adopted.
It is also asserted by those opposing the petition that if the amendment was not adopted there is still inherent power in the court, over and above the Constitution, to prescribe rules for admission to practice, and that the original constitutional clause does not have the effect of limiting the court's inherent power. It is further asserted that, even though the court's power is limited by Constitution, good moral character may be defined by the court, and that term may be interpreted as requiring that one who seeks to practice have a legal education before he can be deemed to be of good moral character.
Section 1 of Article 16 of the Constitution of Indiana provides that if an amendment to the Constitution proposed in the General Assembly shall be agreed to by a majority of all the members elected to two consecutive Assemblies, it shall be the duty of the General Assembly to submit such amendment "to the electors of the state; and if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this constitution." The question presented is, whether the language of the Constitution requires that "a majority of said electors shall ratify," or that a majority of said electors voting upon thequestion shall ratify. *Page 207
In other words, does the language of the Constitution mean exactly what it says, or something else which requires that additional words be supplied to make the meaning clear?
In Greencastle Twp., etc., et al. v. Black (1854),5 Ind. 566, 570, Stuart, J., speaking for this court in a learned opinion, said:
". . . the discretion of Courts is more restricted in applying the rules of construction to a plan of government contained in a written constitution, than in the construction of statutes. And the reason is conclusive. Statutes are often hastily and unskilfully drawn, and thus need construction to make them sensible. But constitutions import the utmost discrimination in the use of language."
Then he quotes:
"`They are the permanent will of the people, intended for the guidance of posterity.' Thus, Marshall, C.J., in relation to the Constitution of the United States: `The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said.' Gibbons v. Ogden,
9 Wheat. 188."
This court said in the case of Lafayette, etc., R. Co. v.Geiger (1870), 34 Ind. 185, 202:
"We recognize as correct the doctrine so repeatedly enunciated by the highest courts and ablest lawyers, that constitutions are to receive a strict construction, . . ."
It is disclosed by the Convention Journal that Mr. Read, a member of the Constitutional Convention, offered a resolution directing the committee on future amendments to insert a clause providing "that such proposed amendment or amendments shall be submitted to the people at said election, and if a majority of the qualified electors shall approve and ratify such amendment or amendments, the same shall become a part of the constitution." When Mr. Read's resolution was taken up for consideration, Mr. Stevenson moved to *Page 208
strike out "a majority of the qualified voters," and to insert "a majority of all the votes cast for and against the same." Mr. Read expressed his willingness to accept the amendment with the remark: "It is precisely what I intended." It is not clear whether Mr. Read meant that the amendment was what he intended to suggest, or whether he thought the amended language was identical in meaning with the language of his resolution, which it clearly is not. But in any event it appears that Mr. Stevenson saw the distinction. The two clauses being before the convention at once, the members of the convention must have clearly discerned the difference. What discussion occurred in committees or among the members privately upon the subject, we do not know, but when the constitution was finally adopted it contained the words of Mr. Read's original resolution in substance. From this we must conclude that the convention considered the proposal to amend, either by ratification by a majority of all of the electors of the state, or ratification by a majority of the votes for and against the same, and rejected the latter and adopted the former. No other conclusion is logically possible if we adhere to the rule that "constitutions import the utmost discrimination in the use of language."
Three times the identical question has been before this court. In the first case, State v. Swift (1880), 69 Ind. 505, it was decided by a divided court that the clause means a majority of all the electors. The majority opinion was written by Judge Biddle, who was a member of the constitutional convention. In reDenny (1901), 156 Ind. 104, 59 N.E. 359, this court reached the same conclusion, again by a divided court. In re Boswell
(1913), 179 Ind. 292, 100 N.E. 833, the former cases were sustained by the entire court. In the latter case, Cox, J., speaking for this court concerning the cases cited, said (p. 296): *Page 209
"To that holding we adhere. It has been considered by this court in the cases cited that the provision is too plain to carry more than one meaning and that the question in any case is not one of construction but of evidence to determine the number of electors in the State and whether an amendment has received a majority of them."
In this latest case the court seems to have treated the question as settled by the prior adjudication. The writers of the dissenting opinions in the first two cases leaned heavily upon the proposition that "it is a fundamental principle under our government, as the authorities assert, which must have been understood by the framers and ratifiers of our Constitution, that a majority of those who exercise the right of suffrage shall control in its affairs."
In re Denny, supra.
But it can hardly be said that the framers of the Constitution intended the clause which they adopted to mean exactly what was proposed to them in open session as a substitute and rejected. Much of the difference of opinion apparent in the two earlier cases involved the method of determining the whole number of electors, ratification by a majority of which was necessary to amend the Constitution. But that question was not before the court in either case, since both cases involved a proposed amendment voted for at a general election, and, although it received a majority of the votes cast for and against, it received less than one-half of the total number of votes cast at the election. It is obvious that, upon such a state of facts, it is not necessary to determine the whole number of electors in the state, since it is clear that, even though there may have been more electors than those voting at the election, the amendment, not having been ratified by one-half of those voting, clearly could not have been ratified by a majority of all of the electors. *Page 210
But even though the question was not presented by the records, those cases seem to have been treated as laying down a rule which has since been generally accepted and acquiesced in to the effect that, as a practical matter, the whole number of voters voting at a general or special election may be taken as the whole number of electors of the state. No argument is necessary to convince that, in strictness, this cannot be true; but it is obvious that great difficulties are involved in determining accurately the entire number of electors in the state, a consideration which, no doubt, prompted the announcement of the practical rule.
Unless we overthrow the rule established under the cases referred to, and overrule those cases upon the theory that the words "a majority of said electors" mean a majority of saidelectors voting upon the question, the proposed amendment in question cannot be deemed to have been adopted without further extending the questionable rule of evidence referred to. To so extend that rule, admittedly inaccurate in its inception, we must go a step further and say that, since the total of electors voting for and against a constitutional amendment at a special election may be treated as the whole number of electors in the state, then the adoption of an amendment submitted at a general election is to be determined by a majority of the electors voting for and against said amendment regardless of the fact that the number of those voting to adopt the amendment be less than one-half of the whole number of electors voting at said election.
The rule that the number of electors voting at an election may, as a matter of evidence, be treated as the whole number of voters of the state, was announced out of the apparent necessity of having some practical method of establishing the facts. But there is no sound reason for extending the rule, even though regard for *Page 211
precedent may dictate that it should not be overturned.
For more than fifty years the amendment section of the Constitution has been interpreted as requiring a ratification of an amendment by a majority of the electors of the state. The interpretation is supported by three decisions of this court, the last one a unanimous decision which treats the question as settled. Even if not convinced upon the merits of the question, and there has been much difference of opinion, these precedents should be given great weight and force in deciding the issue.
In Board of Commissioners of White County v. Gwin, Sheriff,et al. (1894), 136 Ind. 562, 580, 36 N.E. 237, this court said, concerning a non-judicial construction which has been put upon the Constitution and acquiesced in:
"If there were any doubts as to the correctness of this construction, the great length of time it has been received and acted on, according to the principles already laid down, gives to it the force of positive law."
Buskirk, J., in a careful and exhaustive opinion in the case ofLafayette, etc., R. Co. v. Geiger, supra, quotes with approval a rule of construction laid down by the United States Supreme Court, and reaffirmed in many decisions, as follows (p. 203):
"A contemporary exposition of the constitution, practiced and acquiesced in for a period of years, fixes the construction; and the court will not shake or control it."
The application of these rules is, of course, limited to those cases in which the construction to be put upon the language of the Constitution is doubtful or debatable. They do not command or require the perpetuation of a construction that is clearly erroneous. It has been said that:
"Decisions construing the constitution or acts of the legislature should be followed, in the absence *Page 212
of cogent reasons to the contrary, inasmuch as it is of the utmost importance that the organic and statute law be of certain meaning and fixed interpretation." 7 R.C.L., 1002, and cases cited.
The importance of stable and settled rules of law is generally recognized, and strong respect for precedent has become a part of our legal system.
That the rule laid down upon the question of amendment, by the decisions of this court above referred to, has been accepted and acted upon as the settled law, is illustrated by the provision in the legislation submitting the so-called "Lawyer Amendment" and an income tax amendment by the legislature in 1931. Section 8 of chapter 157 of the Acts of 1931 provides:
"If it shall appear that the number of votes cast in the state for any one or more of the proposed amendments was greater than the number of votes cast against such amendment, and equal to or greater than a majority of all of the electors who voted at the election, then each such amendment shall be deemed and taken to have been ratified by the electors of the state, and become a part of the constitution of the state, and shall be so declared by the governor in his proclamation. But if it shall appear that any proposed amendment has received in its favor a number of votes less than a majority of all the electors who voted at the election, then each such amendment shall be deemed and taken to have been rejected by the electors of the state and shall be so declared by the governor in his proclamation."
And this construction and direction to the voters was doubtless acted upon by the voters, and it can not be doubted that many, who would have voted against the amendment had they understood that only those voting for or against would be counted, merely voted at the general election and refrained from voting either way upon the amendment, believing that those thus voting would be counted against it.
This situation illustrates the soundness of the view *Page 213
that an interpretation of our Constitution, repeatedly announced by this court and acquiesced in over a long period of years, should not be overturned on debatable grounds. If the clause in question can be said to be open to construction, the question of whether it means literally what it says, or means a majority of the voters voting upon the question, is at least open to reasonable debate, with so much to be said in favor of the literal construction that, at least, grave doubts must arise as to whether this court has rested in error, and, in the writer's opinion, the established rule should be adhered to.
Section 21 of article 7 of the Constitution of Indiana provides:
"Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice."
That it was the clear constitutional intention that persons without legal training or education be admitted to practice, if they were voters and of good moral character, can not reasonably be doubted after an examination of the constitutional debates and the history of the times. It is urged that one who will undertake to practice law, and hold himself out as competent to do so, without legal training or education, can not be of good moral character. But such argument can not avoid the inescapable fact that the Constitution intends that legal training or education shall not be a necessary requirement. The power of the courts, like the power of the other branches of the government, may be limited by the Constitution, and is limited by this clause. It is true that, as stated by this court in In re McDonald (1928),200 Ind. 424, 164 N.E. 261, "Courts may make reasonable rules and regulations for the admission (to practice law)"; but these rules must be within constitutional limits. The rules may prescribe reasonable practices *Page 214
concerning applications for admission, and the court to which application shall be made, the manner in which proof shall be adduced, etc. In the absence of constitutional restriction, and with or without legislative sanction, the courts might impose educational requirements or legal training, as a condition to admission to practice law; but, in the face of the constitutional provisions, they are limited in fixing qualifications to those provided in the Constitution, or to lesser qualifications. In the case of In re Petition of Leach, Ex Parte (1893), 134 Ind. 665, 34 N.E. 641, it was held that the courts had inherent power to admit a woman to practice, although she was not a voter; but this is not forbidden by the Constitution. The courts have power to provide by rule for the admission of persons who are not of good moral character. But the Constitution fixes, and was intended to fix, the maximum requirements that may be established by the courts. The will of the people, as expressed in the Constitution, is supreme and controls the power of the courts. It may be that educational requirements, as a condition to admission to practice, are highly desirable, and that people generally now recognize such to be the fact, but, until the Constitution is amended, courts are bound by the will of the people as expressed in section 21, article 7.
My views do not permit me to concur in the conclusion that a constitutional amendment has been accepted until it has been ratified by at least a majority of the voters voting at a general election. If the Constitution is to be treated as unamended upon the subject of admission to the bar, the statute, which assumes to give rule-making power to this court, is not necessarily unconstitutional, but is limited in its operation as the court was limited without it, but such rules as to qualifications *Page 215
as are not in conflict with the constitutional provision as originally written.
It would follow that the petitioner should be admitted to practice law upon establishing his good moral character, and that he is a voter, under such reasonable rules as the court has adopted or may adopt. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428779/ | This action was brought by the attorney-general pursuant to § 1, Acts 1917 p. 347, § 12660 Burns 1926, § 7546j1 Burns' Supp. 1921, of the public accounting law, to recover from appellee $180. The pleadings consisted of a complaint in one paragraph, an affirmative answer in two paragraphs, and a demurrer to the complaint and to each paragraph of answer for want of facts. The trial court overruled the demurrer to the complaint and to the first paragraph of answer, and sustained the demurrer to the second paragraph. This latter paragraph challenged the constitutionality of the law upon which this action was predicated. Thereupon, appellant refused to reply or plead further, and judgment was rendered in favor of appellee for costs. The assignments of error and cross-errors challenge the foregoing rulings, but it is only essential to the decision of this case that we give attention to the single question: May a trustee of a township of the seventh or eighth class in this state pay to himself individually rent for the use of a room in his residence as an office for the transaction of all official business of the township, when the advisory board of such township has appropriated money for that purpose and there is no other suitable room available in the township which can be had within the appropriation?
Appellee was the duly elected and acting trustee, for the years 1919 and 1920, of Marion township in Boone county, Indiana, classified by statute as a township of *Page 170
the eighth class. Acts 1917 p. 602, § 4, § 12051 Burns 1-3. 1926, § 9589j Burns' Supp. 1921. This section of the statute repeals by implication all that part of § 4, Acts 1915 p. 131, § 12066 Burns 1926, § 9593 Burns' Supp. 1921, pertaining to clerk hire, office rent and expenses in transacting the official business of the township, and, in so far as it is material at this time, provides that: "In all townships in the state, the township advisory board shall annually appropriate the amount of the estimate of the township trustee for the rent of an office for the trustee; Provided, that the amount so appropriated and allowed for office rent shall not exceed * * * in townships of the seventh class" $120 a year; "in townships of the eighth class," $90 a year; in townships of the ninth and tenth classes, each $60 a year, and the trustee of the two latter classes is allowed not exceeding that amount as rent for an office in his residence. Thus, it appears that the township advisory board is required to appropriate money, not exceeding the amount allowed by law, for the purpose of paying office rent for the township trustee. The proper and lawful expenditure of such appropriation is a duty resting upon the trustee. The mere fact that the advisory board had knowledge of the purpose of the trustee to pay himself rent for the use of a room in his residence as an office for the transaction of the business of the township is immaterial. The advisory board is an administrative body, and its approval of an unlawful expenditure of public funds by the trustee does not give such expenditure the sanction of the law.Miller v. Jackson Tp. (1912), 178 Ind. 503, 99 N.E. 102.
In the instant case, there is no claim of irregularity or illegality in the proceedings, and no charge of fraud on the part of the trustee or advisory board, save and except a misappropriation by the trustee of the item included in the appropriation for rent. Appellee justifies *Page 171
the rent payment to himself on the ground of necessity for an office in which to keep the books and papers of the township, and his inability to procure a room suitable for an office in any other place in his township. He further avers that the room so furnished by him was retained and used as an office for conducting the official business of the township, and that it was of the full rental value paid therefor.
There seems to be no statute expressly authorizing or expressly forbidding a trustee of a township of the seventh or eighth class to pay rent to himself for an office in his own dwelling 4, 5. for the use of the township. Appellant makes the point that mere authority to a trustee to pay office rent cannot be construed as authorizing payment to the officer for the use of his own property, which is forbidden by a positive statute and by public policy. In support of this contention, we are referred to Acts 1905 p. 584, § 517, § 2630 Burns 1926, § 2423 Burns 1914, which, omitting all matters not material to this case, provides that any township trustee who shall, during the time he may occupy such office, be interested, directly or indirectly, in any contract for the construction of any school house, bridge, public building or work of any kind, erected or built for the use of any township in the state in which he exercises any official jurisdiction, or who shall bargain for or receive any percentage, drawback, premium, or profits or money whatever, on any contract, or for the letting of any contract, wherein any township is concerned, on conviction shall be fined and be imprisoned in the state prison. This statutory provision has been in force by re-enactments since December 21, 1872. Acts 1872 (Spec. Sess.) p. 26, § 1, 2 R.S. 1876 p. 454, § 2049 R.S. 1881. A contract within the prohibition of this statute is thereby made a felony and the rule of strict construction applies. The attorney-general is *Page 172
depending, in a large measure, upon the foregoing statute, and has alleged facts showing a contract in violation thereof, which, if true, courts have no power to grant either legal or equitable relief. Moss v. Sugar Ridge Tp. (1903), 161 Ind. 417, 426, 68 N.E. 896.
While it must be conceded that the law is well settled in this state that contracts of a public character, whether express or implied, will be declared void when prohibited by statute (Wingate v. Harrison Tp. [1877], 59 Ind. 520; Case v.Johnson [1883], 91 Ind. 477; Noble v. Davison [1911],177 Ind. 19, 96 N.E. 325, 58 Am. Rep. 400), yet there is a marked distinction between cases in which an act is simply unauthorized, or an unauthorized act is done in an unauthorized manner, and one in which the thing is absolutely prohibited by a positive statute.
In this case, the answer of necessity for an office for the transaction of the official business, and for the keeping of the books and papers of the township, and the inability of 6-8. the trustee to obtain a suitable office room in the township for the money appropriated, presents a question which, in our opinion, is not within the class of contracts enumerated in § 2630 Burns 1926, supra, and therefore appellee would not be subject to the penalty imposed by that statute. Generally speaking, it may be said that the general public policy of this state, as manifested by its legislation and the general trend of its court decisions, forbids officers of public corporations, such as counties and townships, from becoming individually interested, either directly or indirectly, in public contracts. Or, as said in the case of Cheney v. Unroe (1906),166 Ind. 550, 552, 77 N.E. 1041, 117 Am. St. 391, it is that "class of contracts, entered into by officers and agents of the public, which naturally tends to induce the officer, or agent, to become remiss in his duty to the public, that the courts unhesitatingly *Page 173
pronounce illegal and void as being contrary to public policy." See, also, Noble v. Davison, supra, p. 30, and cases there cited. However, the foregoing rules, apparently indelibly fixed, are not without exceptions which courts may enforce in extreme cases. We have already said that the showing made by appellee exonerates him from the rigor of the foregoing penal statute, but, if for any reason, our conclusion in this respect is erroneous, then it is because of some ambiguity in the statute, which, if true, and by its application to the particular facts extremely absurd or manifestly unjust consequences would necessarily result, then the courts would be authorized to meet such an emergency by engrafting upon the statute an exception.McNay v. Town of Lowell (1908), 41 Ind. App. 627, 84 N.E. 778; City of Greenfield v. Black (1907), 42 Ind. App. 645, 82 N.E. 797; Eastman v. State (1887), 109 Ind. 278, 10 N.E. 97, 58 Am. Rep. 400.
But, if there is no statutory mandate against the alleged rent payment, then there is no question in this case involving the authority of the court to declare an exception to the 9. statute, and we so decide. Hence, we reach the proposition, Was the alleged payment of rent contrary to public policy? A township trustee is a public officer and § 4 of the act,supra, indicates a legislative intention that he shall have an office in the township for the transaction of the township business. We judicially know that he has charge of many public records, documents and papers relative to his activities as a public official which are matters of public concern and which the public may seasonably demand the right to inspect. The legislature, acting upon its knowledge as to the probable rental value, and the opportunity of township trustees in the various classes of townships for securing an office in keeping *Page 174
with the demands of the business of the township, suitable and convenient for the public thereof, fixed a maximum amount of rent that the trustee would be allowed to pay for the same, and directed the township advisory board to make an appropriation of money for that purpose upon the estimate of the trustee, thus evincing the further intention of furnishing an office at the expense of the township.
A fair consideration of the foregoing action of the legislature is in opposition to the thought that it intended that a trustee of a township other than townships of the ninth and tenth classes should furnish an office for the transaction of the township business and pay the rent for same out of his individual funds when the amount appropriated therefor was insufficient for that purpose, or that he must furnish an office in his own residence free of rent in case there is no available room suitable for office purposes in the township.
Under the foregoing circumstances appearing by the averments of appellee's first paragraph of answer, the rent payment in question was not prohibited by public policy, as declared and defined by the decisions of the courts of this state. The alleged act of rent payment by appellee, as trustee, to himself under the attendant conditions did not have a natural tendency to be injurious to the public, or against the public good, or to a remission of his duty toward the public, or as showing financial gain, or other preferment through fraudulent motives.
At this point, it may be well to say that we are not unmindful of the general rule that public policy forbids a public officer contracting with himself as an individual, nor does it 10. approve of the payment of public funds to himself unless by statute expressly authorized so to do. But, in our opinion, the particular facts of the instant case take it without the *Page 175
general rule as an exception thereto. Hence, the facts averred in the first paragraph of answer, to which a demurrer for want of facts was overruled, constituted a good defense to appellant's complaint, and the overruling of the demurrer to that answer was not error.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428775/ | From 1928 to 1932 appellee Middleton was clerk of the Howard Circuit Court and appellee The Employers' Liability Assurance Corporation, Ltd., was surety on his official bond. At the expiration of his term Middleton had on deposit in three Kokomo banks, which had been designated as public depositories by the county board of finance, the sum of $18,011.25; said banks failed during the term but the clerk had realized $13,534.79 on his deposits and this sum was turned *Page 222
over to the new clerk, leaving a balance of $4,476.46 unpaid. This action was commenced by the State of Indiana on the relation of the Attorney General to recover said sum of $4,476.46, and the further sum of $299.08, which it was charged that Middleton had collected as clerk and for which he had failed to account.
The appellees answered in general denial and with two affirmative paragraphs. We are only concerned with the second paragraph, which charged that chapter 121, Acts of 1937 (§ 61-664 Burns' Supp. 1938, § 13844-85 Baldwin's Supp. 1937), relieved appellees of all liability for moneys impounded or lost in the closed banks. A demurrer to the second paragraph of answer was overruled. The cause was tried on a stipulation of facts and resulted in a judgment against appellees for $249.33, and no more. Appellant filed a motion for a new trial, which was denied, and this appeal followed.
We are first called upon to consider the appellees' motion to dismiss. It is shown that before the appeal was perfected the appellees paid to the clerk of the Howard Circuit Court the full amount of the judgment of $249.33, with interest and costs; that the clerk issued his usual receipt therefor and entered a memorandum of satisfaction on the proper judgment docket. The present clerk has filed a counter-affidavit admitting the above facts, and further showing that no distribution has been made of the proceeds of said judgment to the county treasurer or anyone else, and that he is holding the same as trust funds, subject to the further orders of the court.
Appellees rely upon chapter 38, Acts of 1881 (Spec. Sess.), § 2-3201 Burns 1933, § 471 Baldwin's 1934, which provides that "the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon," and the rule laid down in the case of State ex rel. Carson, Auditor of Cass County v.Hebel *Page 223 et al. (1880), 70 Ind. 314. That case held that a county treasurer had authority to receive and receipt for, and a county auditor had power to give a quietus for, the amount of a judgment recovered on the bond of a defaulting county treasurer, for moneys due the county; and although such receipt and quietus were given without the sanction of the county commissioners, an appeal by the plaintiff would not afterwards lie to this court from such judgment. Appellees contend that the successor clerk is a real party in interest in this litigation, and that his act of receiving the money paid to him on the judgment had the effect of placing it in the hands of the real plaintiff, and thereby extinguished the right of appeal.
The Attorney General asserts that under section 49-2719 Burns 1933, § 1438 Baldwin's 1934, the present clerk had no discretion to refuse the money tendered him by the appellees in payment of the judgment appealed from; that in receiving same he merely discharged a duty imposed upon him by law, and that this act did not amount to an acceptance of the proceeds by a party to the action, since the funds were undistributed and merely held in trust by a public officer, subject to the further directions of the court having jurisdiction of the case.
The situation with respect to the legal effect of the payment of the judgment is complicated by the fact that the funds sought to be recovered in the action are those which, if realized, 1. would belong to Middleton's successor as clerk, and such successor is the person to whom the judgment was paid, though he did not institute or prosecute the action that resulted in the judgment appealed from. It may be noted that the statute relied upon by the appellees (§ 2-3201 Burns 1933, § 471 Baldwin's 1934) precludes an appeal by a party receiving any money paid or collected. *Page 224
It is therefore pertinent to inquire whether the successor clerk is a party within the meaning of the statute, and whether he received the money in the sense contemplated. In the Carson case,supra, the conclusion of the court appears to be predicated upon the fact that the relator who brought and maintained the action also issued the quietus by means of which the judgment was satisfied. In the present case the successor clerk is a stranger to the record so far as the named parties are concerned. His act in receiving the money, issuing a receipt therefor, and crediting it on the margin of the judgment docket is nothing more than he should and would have done had moneys been paid to him in discharge of any judgment rendered by the court of which he was clerk. The Carson case is, therefore, clearly distinguishable, since we find lacking in the case at bar the element of the voluntary acceptance of benefits by the judgment creditor.
The statute (§ 2-3201 Burns 1933, § 471 Baldwin's 1934) is merely declaratory of the common law rule that a party cannot accept the benefit of an adjudication and yet allege it to be erroneous. 4 C.J.S., p. 416. But, like most general rules, this has its exceptions and it is accordingly recognized that an acceptance of an amount to which the acceptee is entitled in any event does not estop him from appealing from or bringing error to the judgment or decree ordering its payment. City ofIndianapolis v. Stutz Motor Car Co. (1932), 94 Ind. App. 211,180 N.E. 497. The facts upon which the court below rendered judgment against the appellees for $249.33 were stipulated by the parties and are undisputed. The appellant has not challenged the propriety of that part of the judgment by cross-errors and, so far as the motion to dismiss the appeal is concerned, the case comes clearly within the exception to the rule stated above. Appellees' motion to dismiss is therefore denied. *Page 225
The merits of this appeal turn upon the validity of chapter 121, Acts of 1937, § 61-664 Burns Supp. 1938, § 13844-85 Baldwin's Supp. 1937). This act by its terms undertakes to release public officials from personal liability when funds in their custody, trust, and otherwise are lost by reason of the failure or insolvency of banking institutions in which they are deposited. In such event the county, or other political subdivision, is subrogated as to any dividends arising from the liquidation of the bank, and persons entitled to moneys which were so deposited are authorized to make claims against the proper political subdivision or corporation therefor. It is directed that such claims shall be allowed if found correct and paid out of the general fund without an appropriation.
Prior to the passage of chapter 30, Acts of 1937, § 61-673 Burns' Supp. 1938, § 1438-1 Baldwin's Supp. 1937 (which is not the statute here challenged), a clerk of a circuit court 2. did not come within the provisions of any public depository law of the state and was not required to keep the funds received by him by virtue of his office, in any place designated by any other authority than himself. This created a situation of absolute liability for funds coming into the hands of such officer. It was frequently held that, under such circumstances, the official became an insurer of the funds with which he was charged and liable for their loss in the event of the failure of the bank in which they were placed. Inglis et al. v. State exrel. Hughes, Trus. Van Buren T'p., Madison Co. (1878),61 Ind. 212; McClelland, Trustee v. State ex rel. Speer (1894),138 Ind. 321, 37 N.E. 1089. The rule adopted by this state is in harmony with the weight of authority. 93 A.L.R. 819, Ann.
The Attorney General finds himself in a somewhat anomalous situation by urging the unconstitutionality of a statute. It is his contention that the act of 1937 is invalid for three reasons: (1) because it impairs the contractual *Page 226
rights of persons entitled to funds with which the clerk is charged to assert claims therefor against the clerk and his surety; (2) that the act is discriminatory in its classification; and (3) because the General Assembly possesses no power to provide for the payment of private or trust funds out of moneys raised by general taxation.
It appears to have been settled by this court that the release of a public official from liability for funds lost on account of the failure of the bank in which such funds were deposited 3. does not impair the obligation of contracts. Bolivar Twp. Bd. of Fin. of Benton Co. v. Hawkins (1934),207 Ind. 171, 191 N.E. 158, 96 A.L.R. 271. McClelland, Trustee v.State ex rel. Speer, supra, and Johnson v. Board ofCommissioners of Randolph County (1895), 140 Ind. 152, 39 N.E. 311, were, in effect, overruled by the Bolivar case, supra. The decisions of this court now appear to be in accord with the weight of general authority upon the subject. See 38 A.L.R. 1512 and 96 A.L.R. 295.
It is next claimed that the act of 1937 discriminates in favor of clerks and their creditors in those cases where such clerks had the funds in public depositories (at a time they were 4-7. not required so to do), and against clerks and their creditors who did not have the funds in such designated depositories. The contention is that the classification based upon the premise that the clerk had utilized an unrequired depository is arbitrary and unreasonable and violates section 23 of article 1 of the State Constitution, which prohibits the General Assembly from granting to any citizen, or class of citizens, privileges or immunities which, upon the same terms, do not equally belong to all citizens. A statutory classification, in order to be constitutional, must be reasonable and natural, and there must be some inherent and substantial difference *Page 227
germane to the subject and purpose of the Legislature between those included and those excluded. School City of Elwood v.State ex rel. (1932), 203 Ind. 626, 180 N.E. 471. It is within the province of the Legislature, in the first instance, to determine what classification is just and reasonable in view of the purpose to be attained, and the court will not lightly substitute its judgment for that of the Legislature. Martin v.Loula (1935), 208 Ind. 346, 194 N.E. 178, 195 N.E. 881.
It is likewise settled by the decisions of this court already cited, as well as by the weight of authority, that where funds raised by taxation are involved, it is within the purview of the Legislature to relieve the officer for their loss when they have been entrusted by him to a designated depository. This conclusion must be based, in part at least, upon the fact that such officer has acted circumspectly and in such a manner that he should not be called upon to bear the burden. Upon principle, there would not seem to be any reason why the same considerations should not validate legislation to relieve the officer when he has utilized such public depository, though not so required by positive statute. In either event the exercise of sound judgment and prudence on the part of the officer in the handling of public funds must be regarded as a basis for the legislative relief. The legislation here in question may have been prompted by the legislative conclusion that, in permitting officers other than clerks to deposit funds in a public depository, and thus be relieved of responsibility therefor, and denying that privilege to the clerks of the circuit courts, an injustice was done the clerks. It can not be doubted that the clerks might have been included with the other officers, and failing to relieve the clerks by permitting them to take advantage of the depository law, was a legislative error, and that those clerks who did all within their power to come within the depository law, and who deposited their *Page 228
funds in public depositories, were entitled to public consideration; that there is a moral responsibility, a moral obligation, to them that did not exist toward clerks who did not use designated public depositories and made no effort to bring themselves as far as might be within the depository law. With the wisdom of classification, if reason for it may be found, the courts have no concern. We are not at liberty to substitute our judgment for that of the law-making body as to what is or is not a wise classification in a statute. It is enough if, from the terms of the act and the subject upon which it operates, there appears some reasonable justification for the classification.
It seems clear from the provisions of the act of 1937, as well as from the legislative policy as revealed by other similar statutes enacted in this state, that the principal purpose of the act was for the relief of the public officials to which it applied. In that view of the case, the provision for reimbursing persons who had moneys in the hands of the clerks was merely incidental to the main objective, and was necessary to the end that such persons might not be deprived of their rights of redress against the clerks, individually, or upon their official bonds. The validity of the act must therefore be determined in the light of the paramount purpose, rather than from a disassociated consideration of its incidental features. If the situation were reversed, and the prime purpose of the act appeared to be to relieve persons who had moneys in the hands of clerks, a serious situation with respect to classification would be presented by the fact that all similarly situated would not be equally protected.
The Attorney General has pointed out in his brief that in all the cases in which the validity of legislation releasing officers from liability for the loss of public funds has been upheld, the funds lost were the property of or belonged to a governmental subdivision. He recognizes *Page 229
the right of the state to forgive the loss of its own funds, but he urges that the funds lost in the instant case did not belong to the state, but were the property of litigants, witnesses, publishers, heirs, beneficiaries, legatees, minors, and other persons for whose benefit the funds were paid into the hands of the clerk. He denies the right of the Legislature to make good the loss of these funds out of moneys raised by general taxes.
Some of the authorities do make the distinction that statutes which undertake to relieve public officials can not stand when they are applied to funds other than those raised by general taxes. Thus in Mount, Trustee v. State ex rel. Richey (1883),90 Ind. 29, 46 Am. St. Rep. 192, the court said, in quoting fromBoard, etc. v. McLandsborough (1880), 36 Ohio St. 227 (p. 31):
"`Indeed, it is difficult to fix any limit to the power of the General Assembly in this respect, where the funds so lost were raised by taxation, which, as we have said, is clearly a legislative power'" (Our italics.)
And further (p. 31):
"It is, perhaps, true, that the Legislature can not authorize the assessment of a tax for a mere private purpose . . ."
The language quoted was by way of dictum, since the case before the court did not concern funds which were not raised as taxes.
In McClelland, Trustee v. State ex rel. Speer, supra, it was held that the Legislature had no power to impose upon taxpayers of a township the burden of making good the loss of common school funds (not raised by taxation) occasioned by the failure of a bank. The statute there under consideration was held void, however, for other reasons disapproved in the Bolivar case,supra.
The Bolivar case considered the constitutionality of a *Page 230
statute in some respects similar to the one before us (ch. 78, Acts 1933.) In holding the act valid, Hughes, C.J., quoted the following language from McSurely v. McGrew (1908), 140 Iowa 163, 168, 118 N.W. 415, 132 Am. St. Rep. 248 (p. 192):
"`If nothing but private rights were involved, it is manifest that the act could not be sustained.'"
The power of taxation is an essential and inherent attribute of sovereignty, belonging as a matter of right to every independent government. It is a legislative power, and is limited only 8. by the provisions of the constitution. State ex rel. Goodman, Prosecuting Attorney v. Halter (1898),149 Ind. 292, 47 N.E. 665, 49 N.E. 7.
It is implied in all definitions of taxation that taxes can be levied for public purposes only. This doctrine, now so firmly established in our system of constitutional law, is of 9. comparatively recent origin and finds its justification in the due process clause of the Fourteenth Amendment to the Federal Constitution, adopted in 1868. It was nine years later, however, before the United States Supreme Court applied the principle as a matter of substantive law. Davidson v. Board ofAdmrs. of New Orleans (1878), 96 U.S. 97. The exact line of cleavage between what is, and what is not, a public use, is somewhat difficult to mark. Some purposes readily align themselves on one side of the line as being clearly public in their nature, while others as readily fall on the other side as being obviously private, and there is a debatable ground between the two. The courts have never attempted to lay down with minute detail an inexorable rule distinguishing public from private purposes, because it would be impossible to do so. Such determination is primarily one for the legislative branch of the government and it can not be held to any narrow or *Page 231
technical rule of action. Courts will not intervene unless there is a plain departure from every public purpose which could reasonably be conceived. Laughlin v. City of Portland (1914),111 Me. 486, 90 A. 318, 51 L.R.A. (N.S.) 1143; Carmichael v.Southern Coal Coke Co. (1937), 301 U.S. 495, 81 L. Ed. 1245, 57 S. Ct. 868, 109 A.L.R. 1327.
So far as the purposes for which taxes may be imposed, they are identical with the purposes for which the government may contract debts or make appropriations. An exercise of the powers 10-13. of government may cause injury to particular individuals and, under some circumstances, the moral obligation may be such as to justify an exercise of the taxing power in favor of private persons. Such obligations may go beyond the limits of common law liabilities and be such as a just man would recognize in his own affairs, whether by law required to do so or not. Cooley, The Law of Taxation, Vol. 1, 4th Ed., §§ 174, 177, and 194. A moral obligation means that some direct benefit was received by the state as a state, or some direct injury has been suffered by the claimant under circumstances where, in fairness, the state might be asked to respond, and there must be something more than mere gratuity involved. People v. Westchester Nat. Bank
(1921), 231 N.Y. 465, 132 N.E. 241, 15 A.L.R. 1344. Whether the facts existing in any case bring it within the class of claims which the Legislature ought to recognize as founded upon equitable and moral obligations is largely one for the Legislature to decide for itself. United States v. Realty Company
(1896), 163 U.S. 427, 16 S. Ct. 1120, 41 L. Ed. 215.
Much might be said in support of the moral responsibility resting upon the state to make good the loss of funds in the hands of circuit clerks. The judiciary is one of the co-ordinate branches of government; circuit *Page 232
courts are an integral part of the judicial system of the state; clerks of such courts are very important officers thereof; and moneys placed in the hands of such clerks, pursuant to judgments and court orders, are regarded as in custodia legis.
Notwithstanding the fiduciary character of the authority upon which clerks received and held the moneys of private citizens, the state failed, until after the passage of the act here complained of, to provide a public depository law applicable to these officers, although it had done so with respect to the custodians of its own funds.
We are not at liberty to say that the General Assembly abused its power when it recognized a moral responsibility on the part of the state to make good the losses suffered by persons 14. whose funds were on deposit to the credit of circuit clerks in closed banks. Their payment, in accordance with the terms of the act, did not amount to a mere gratuity. The political subdivisions and public corporations required to absorb the losses were subrogated to the rights of the clerk against the closed banks. The Legislature may have reasoned that the burden placed upon the taxpayers was necessary and proper to the end that confidence in the government and respect for its courts should not be materially weakened.
We hold the act valid.
Judgment affirmed.
Roll, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428780/ | Appellee brought this action against one Annie Borenstein, now deceased, to recover a commission alleged to be due him for procuring a tenant for certain real estate then owned by said decedent, and located in the city of Indianapolis, Indiana. The complaint was in ten paragraphs, each paragraph seeking to recover the commission claimed. An answer in three paragraphs was filed, the first paragraph being a general denial; the second alleging in substance that the tenant secured by appellee was a foreign corporation not authorized to transact business in this state, and that the lease procured through the efforts and negotiations of the appellee was "unlawful and void," and that appellee had "a direct pecuniary interest" in its procurement; the third paragraph avers, among other things, that the commission, if any, that appellee was entitled to recover was to be based on the total amount of rents collected, and proceeds upon the theory of a partial failure of consideration in that the lessee did not occupy the premises leased for the full period of time as provided by the lease. A reply in general denial to the second and third paragraphs of answer closed the issues. The cause was submitted for trial to a jury, and at the close of the evidence, appellee dismissed all except the fourth, fifth, sixth and tenth paragraphs of his complaint. The jury returned its *Page 69
verdict in favor of appellee, in the sum of $1500.00. In due course, the said Annie Borenstein filed her motion for a new trial. During its pendency she died, and thereafter Louis J. Borenstein, administrator of her estate, was substituted as party defendant. The motion for a new trial was overruled, judgment was rendered on the verdict, and this appeal perfected. The error assigned is the overruling of the motion for a new trial.
The causes assigned for a new trial, and presented on appeal are: That the verdict of the jury is not sustained by sufficient evidence; that said verdict is contrary to law; error in the giving of instruction numbered five, tendered by appellee, and in refusing to give instruction numbered six, tendered by appellant's decedent.
The four paragraphs of complaint remaining in the record when the jury was instructed contained similar allegations concerning the services rendered by appellee to appellant's decedent, but differ in that the fourth paragraph avers that said decedent agreed to pay a reasonable compensation for the services rendered; the fifth paragraph that said decedent agreed to pay the regular fixed commission adopted by the Indianapolis Real Estate Board, in force and effect at the time of the rendition of such services and applicable thereto; the sixth paragraph that the commission to be paid under the agreement was the "usual commission obtaining in the city of Indianapolis and vicinity;" while the tenth paragraph sought recovery for "work, labor and services rendered by the plaintiff to the defendant, at the defendant's special instance and request, in procuring a tenant for real estate owned by the defendant in the city of Indianapolis."
The verdict returned was a general verdict, and *Page 70
it is not possible to determine from the verdict upon which paragraph of complaint it was awarded. Under such 1. circumstances, if there be sufficient evidence to sustain the verdict upon either of the four paragraphs of complaint, the judgment rendered on the verdict will not be disturbed, even though there may not be sufficient evidence to justify a verdict upon some one or more of the other paragraphs of complaint.
In determining the questions before us for consideration, we must keep in mind the issues submitted to the jury for its decision. This is not an action to enforce any term or provision of the lease contract entered into between appellant's decedent and the Kirk Property Company, but to the contrary, is one to recover an amount alleged to be due for services rendered by appellee for said decedent, three paragraphs of the complaint alleging rendition of services under an agreement as to the amount of the commission to be paid, while the tenth paragraph avers services were rendered at the special instance and request of said decedent, and seeks recovery of the reasonable value thereof.
Upon reading the evidence, we find it to be exceedingly conflicting as to many material facts provable under the issues. There seems to be a lack of evidence to sustain all the material allegations of either the fourth, fifth or sixth paragraphs of complaint. Each of these paragraphs allege, among other facts pleaded, that the tenant procured by appellee was the Kirk Property Company, and the appellee himself at the trial of the cause testified that he had never heard of The Kirk Property Company prior to the time the lease was executed, and first learned of the existence of such corporation through his attorney.
On appeal from a judgment rendered on a general *Page 71
verdict where issues were joined and submitted to a jury for decision upon more than one paragraph of complaint, it will 2. be presumed that such verdict was rendered upon that paragraph of the complaint, if any, under which the evidence is sufficient to sustain said verdict. See CitizensSavings Bank v. Halstead (1908), 42 Ind. App. 79, 81, 84 N.E. 1098. This necessitates our consideration of the sufficiency of the evidence to sustain this verdict under the issues joined on the tenth paragraph of complaint.
This record discloses evidence to establish facts which may be summarized as follows: Appellee during the months of September and October, 1931, and for many years prior thereto, was engaged in the real estate business in the city of Indianapolis, Indiana; Annie Borenstein owned a business property located on South Meridian Street in said city, and Louis J. Borenstein during said months of September and October was her duly authorized agent in charge of said property for rental purposes; a corporation, spoken of as The Kirk Furniture Company and as The Kirk Company by some of the witnesses testifying, had been operating a furniture store in the Lombard building in said city, and appellee, having knowledge of the fact that a different location was desired by said company, made inquiry by telephone of the agent in charge of the Borenstein building as to its availability, and whether a commission would be paid if he procured a tenant for said building, and was informed that the building was for rent and that a commission would be paid. Later appellee in a personal interview disclosed to said agent that it was "the Kirk people who were occupying the Lombard building at that time" whom he had in view as a prospective tenant. Negotiations concerning *Page 72
the rental of the Borenstein building, participated in by appellee, the rental agent, and representatives of the prospective tenant, were had at different times during said months of September and October, said negotiations eventually resulting in the execution of a written lease between Annie Borenstein and The Kirk Property Company for the rental of said building for a term of three years, at the price of twelve thousand dollars for the first year, thirteen thousand dollars for the second year, and fifteen thousand dollars for the third year. When this written lease was prepared by the rental agent, the name of the lessee originally inserted therein was The Kirk Company of Indiana, an Indiana corporation which had purchased at a receiver's sale the assets of The Kirk Company which had previously operated a furniture store in the said Lombard building, but on the day the lease was finally executed by both parties thereto, the name was changed, and The Kirk Property Company, a foreign corporation not authorized in accordance with the laws of this state to transact business in Indiana, was named as lessee. Afterwards the stock of merchandise previously located in the Lombard building was moved to the Borenstein building, and a "furniture store" operated therein for a period of approximately eighteen months by The Kirk Company of Indiana, for which occupancy a rental to the amount of $18,199.98 was paid. Appellee, prior to the execution of the lease, had no knowledge concerning The Kirk Property Company, incorporated in Ohio in September of 1931, nor that it was substituted as lessee, until after this substitution had been made. The same individuals who were purportedly acting for the "Kirk people" continued to act throughout the entire transaction. *Page 73
There was also evidence introduced from which the jury could determine what the amount of any recovery by appellee should be, but since there is no contention made concerning the amount of the recovery being too large, we refrain from detailing such evidence.
There is no evidence that appellee, in performing the services for which he seeks to recover, did any wrongful or illegal act, and there is evidence from which the jury may have reasonably arrived at the conclusion that due to his efforts and solicitations appellant's decedent procured a tenant which occupied the building leased, and from which occupancy she, or her estate, derived the benefits of the rental paid.
Instruction five, tendered by appellee, and given by the court, is as follows:
If you should find from the evidence that defendant was employed by plaintiff and procured a tenant for defendant's property, as alleged in the complaint, the fact, if it be a 3. fact, that such tenant was a foreign corporation not authorized to do business in Indiana, would not render any lease entered into with such tenant void or unenforceable, and would not be a defense to this suit if, under the other issues and evidence, you should find that plaintiff is entitled to recover."
Instruction numbered six, tendered by appellant, and refused by the court, requested that the jury be instructed that its verdict should be for the defendant, if it found that The Kirk Property Company was a foreign corporation, organized under the laws of Ohio, and had not qualified as a foreign corporation to transact business in Indiana. It contained other elements not necessary to be set forth here inasmuch as appellant states that identical questions *Page 74
of law are presented by the claimed error in the giving of instruction five, and the refusal to give of said instruction six.
Under the issues and evidence in the instant case, we are of the opinion that neither the giving of the one, nor the refusal to give the other of the two instructions in question constituted reversible error. As heretofore stated, this action is not to enforce any term or provision of the lease, and there is evidence at least tending to prove that appellee procured as a tenant for the Borenstein building The Kirk Company of Indiana, which actually occupied said premises under the lease, and that after the rendition of this service, the same individuals who acted for said Kirk Company of Indiana, together with the agents of the decedent in charge of the rental of the building, struck from the lease originally prepared the name of the said Kirk Company of Indiana, and inserted as Lessee the Kirk Property Company. This action on their part would not result in destroying appellee's right to recover a commission if he was otherwise entitled to do so.
In the summary of the evidence heretofore given, we have considered only the evidence favorable to appellee. From evidence disclosed by the record many different inferences as to 4-6. the facts might reasonably be drawn. It was the province of the jury to weigh the evidence in the first instance, and thereafter, upon the filing of a motion for a new trial and before any ruling thereon, this duty was imposed by law upon the trial court. On appeal this court is not permitted to weigh the evidence, but we determine only if there be competent evidence to sustain the verdict rendered, and in the instant case we find evidence sufficient for that purpose, upon the issues *Page 75
submitted for decision under the tenth paragraph of complaint.
We do not deem it either necessary or desirable that this opinion be lengthened by a discussion of the question as to whether the lease here involved was void, or, under the evidence, an enforceable contract between the immediate parties thereto. For cases bearing upon this subject-matter, see: Peter Burghard Stone Co. v. Carper (1933), 96 Ind. App. 554,172 N.E. 319; Selph v. Illinois Pipe Line Co. (1934),206 Ind. 490, 190 N.E. 191; Barricklow v. Stewart (1903),31 Ind. App. 446, 450, 68 N.E. 316; Phenix Ins. Co. v. Penn. R.R. Co.
(1893), 134 Ind. 215, 220, 33 N.E. 970. For cases discussing the right to recover a commission where there has been a failure to comply with statutory requirements, or where illegality of the contract is interposed as a defense, see: Pape v. Wright
(1889), 116 Ind. 502, 19 N.E. 459; Wright v. Crabbs (1881),78 Ind. 487; Whitesides v. Hunt (1884), 97 Ind. 191.
Finding no reversible error, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428805/ | Appellant and appellee were candidates on the Democratic ticket for the nomination of township trustee of Barr Township, Daviess County, Indiana, at the primary election held on May 3, 1938. That at this election the precinct election board received and counted for appellee two hundred and fifty-five votes and received and counted for appellant two hundred and fifty-five votes. That on the 6th day of May, 1938, appellant and appellee having received an equal number of votes the county board of canvassers determined by lot as provided by statute, Sec. 29-1903 Burns' Ann. St. 1933, § 7252 Baldwin's 1934, that Joseph H. Craney, appellant, herein had been duly nominated. Thereafter this contest was instituted and submitted to the court and the court found and determined that the appellee herein had received two hundred fifty-one votes and that appellant received two hundred fifty votes, and that the contestor, appellee herein, was entitled to be declared nominated for such trustee and judgment was so entered.
Appellant challenges the ruling of the court in counting for contestor over his objections ballots marked exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, and X, and also in refusing to count ballots marked exhibits 1, 3, 18, 19, 22, 35, and 36.
Appellee assigns cross-errors and complains of the court's ruling in counting ballots marked exhibits 2, 4, 5, 7, 9, 10, 12, 20, 23, 27, 28, 31, 33, 37, and 39, counted for appellant.
The only question therefore presented by this appeal *Page 545
is the correctness of the court's ruling on the challenged ballots.
Contestee challenges the ballot marked contestor's exhibit A. This ballot has a curved mark about one and one-half inches long made by a black lead pencil in the upper center of the 1. ballot in the space for County Surveyor. Appellant relies upon the statement made by this court in the case ofBorders v. Williams (1900), 155 Ind. 36, 42, 57 N.E. 527, wherein the following language is used:
". . .; and, if the elector desires to vote a mixed ticket, he shall omit the mark from the circle inclosing the party device, and indicate his choice of candidates by making a cross in the square immediately preceding their names; and a mark upon the ballot in violation of these provisions shall be treated as a distinguishing mark."
But the court followed this statement by the following observation:
"These provisions of the statute must be construed together in determining when the character provided by law shall be regarded such a distinguishing mark as to invalidate the ballot. It is clear from the law itself that the legislature intended it should be so regarded only when its position upon the ballot makes doubtful the intention of the voter, or casts suspicion upon the integrity of the vote."
There is nothing in the evidence that discloses who or in what manner the curved black pencil mark was placed upon the ballot. It seems clear that there is nothing about this mark that would in any way cast a suspicion upon the integrity of the voter. The voter clearly indicated by a blue cross mark his choice of candidates. We hold that this ballot was properly counted for the contestor.
Appellant next questions contestor's exhibit C, on the ground that this ballot has a distinguishing mark which *Page 546
invalidates it, and therefore it should not have been 2. counted. The alleged distinguishing mark is a blue mark in the space marked "For Justice of the Peace," at the lower right of the ballot. This mark is a broken line about 3/8 of an inch long and resembles an obtuse angle with the vertex pointing upward. It is not in any voting space. This ballot, we think is controlled by the statement made in the case of Nicely v.Wildey (1936), 210 Ind. 640, 645, 5 N.E.2d 111, in which the court said:
". . .; exhibit 23 has a small blue line drawn across the square opposite the name of Morris Wildey, and it appears that these lines were made accidentally with no design to distinguish the ballots."
So with exhibit C, and this ballot was rightfully counted for contestor.
Contestor's exhibit D has at the top of the ballot a design made with ink. This mark consists of a rectangle about 1/2-inch long and 1/4-inch wide with the base line extended about 1 3. 1/2 inches to the right, and the right end of the rectangle extended downward beyond the base about 1/2-inch in a wavy design. This mark could not have been made by accident, and constitutes a distinguishing mark that invalidates the ballot. Section 29-1301, Burns' Ann. St. 1933; Borders v. Williams,supra, p. 42.
Objections to contestor's exhibits E and F, are waived.
Exhibit G is objected to because of alleged improper marking. In the space opposite the name of Charles A. Kidwell there is a small blue mark instead of a cross. An examination of this 4. mark, shows that the mark is a small slanting line from the upper left to the lower right but no line at all across this slanting line. While the statute requires an x after the name *Page 547
voted for, the voter of this ballot marked the ballot with an exceedingly small x. Some of the lines making the cross being less than one-eighth of an inch long. It is evident from the face of the ballot, and from the manner employed by the voter that in making the very small x that he failed to make the cross opposite this one candidate. But it is of such a character as not to invalidate the ballot. This ballot was rightfully counted for the appellee.
Exhibit H should not have been counted. The marking for the last candidate in the lower right hand corner consists of one slanting line from the upper left to the lower right and 5. crossed by two separate parallel lines from the upper right to the lower left. This is in accord with our holding in the case of Nicely v. Wildey, supra.
Exhibits I, K, L, O, and W, are marked similar to exhibit H, and for the same reason should not have been counted for contestee.
Objections to exhibit J, are waived.
Exhibit M is marked at number 12 with a check mark with a slanting line crossing the vertical line of the check mark. The small prong attached to the lower end of the vertical line 6. of the check mark can easily be accounted for by a slight scraping of the pencil and does not exhibit any evidence of wrong doing on the part of the voter. This ballot was properly counted.
In exhibit N, the voter, in voting for members of the Advisory Board, three in number, marked with a large x covering the entire space of the three names, instead of making a small x after 7. each candidate's name. This is a distinguishing mark and invalidated the ballot.
Exhibits P and Q are marked with a check mark and *Page 548
are clearly bad under the authority of Conley v. Hile
8. (1934), 207 Ind. 488, 510, 193 N.E. 95. But the appellant in his brief waived any question as to these exhibits.
Exhibits R, at 32-44 and 46, is marked with what resembles a letter y but upon examination it appears that the x was completed and from all the other markings on the ballot it appears 9. clear that the failure to make a more complete x was due to carelessness and not with any intention of distinguishing his ballot. This ballot was properly counted.
Exhibit S, at candidate No. 30, is marked with an x but one of the lines has a spur, which could reasonably be accounted for by either an accident or an attempt to retrace the line which 10. was rather dim. We think this ballot was properly counted.
Any question with reference to exhibit T is waived by appellant.
Exhibit U was marked opposite candidate No. 44 with an x. This mark, while rather dim and irregular, due, no doubt, to the roughness of the table underneath the ballot at the time 11. it was marked, nevertheless conforms to the requirements of the statute, and was properly counted.
Exhibit V, is bad for the same reason that exhibits I, K, L, O, and W were held bad, but appellant expressly waived any question as to this ballot.
Exhibit X is clearly irregular and should not have been counted. This ballot was marked with an x but the two top points and the two lower points of the x were each connected with 12. a horizontal bar. But any question as to this ballot is expressly waived by appellant.
Appellants second reason for a new trial is that the court erred in refusing to count for appellant (contestee) *Page 549
the following exhibits: ballots Nos. 1, 3, 18, 19, 22, 35, and 36.
Appellant's exhibits Nos. 1, 3, 18, and 36 are clearly mutilated ballots. In each instance the voter attempted to vote either for the wrong party or in the wrong place, and then 13. attempted to erase the mark and then remarked the ballot. These were rightfully rejected.
Contestee's exhibit 19 is marked with an x immediately before the name of the candidate instead of in the space to the right of the name. This is not in conformity with the statute and 14. constitutes a distinguishing mark and was properly rejected.
On contestee's exhibit 22, the voter marked with an x immediately below the name of the candidate for County Councilman, third district. This mark is not in conformity with the statute and constitutes a distinguishing mark and was properly rejected.
Contestee's exhibit No. 35 is marked with an x opposite the candidate's name. It appears that the voter attempted to make the x so that the x would cross on the line, but in some instances the lines would intersect slightly above the line and others the intersection would be slightly below the line. Taking the manner in which the ballots were printed, the intention of this elector is clear. The markings themselves testify to the honest intention of the voter. This ballot should have been counted.
Appellee by cross-errors questions certain ballots counted for appellant (contestee).
Exhibits Nos. 2, 20, and 37 counted for contestee are bad for the same reason as given for holding bad exhibits K, L, O, and W. In exhibit No. 20, opposite the name of Charles Kidwell, 15. candidate for County Treasurer, the mark is a letter v upside down which also invalidates this ballot. *Page 550
Exhibit No. 4, counted for contestee, is bad. In the space opposite the name of the candidate for Congress is an x and immediately under the x is one straight slanting line. 16. This constitutes a distinguishing mark and invalidates this ballot.
Exhibit No. 5, counted for appellee, is a legal ballot. While the x marks are not perfect yet the imperfections are clearly due to inadvertence or carelessness in completing the x. We think this ballot was properly counted.
Exhibit No. 7, counted for contestee, is not good. In the space opposite the name of a candidate for Advisory Board, the lower points of the x are connected with a horizontal line, 12, 17. and in the space immediately below is a mark like the figure 4. These marks could not be the result of bad eye sight, or made by accident, and they constitute distinguishing marks and should not have been counted.
Exhibits Nos. 9, 10, 12, 23, 27, 31, 33, and 39 counted for appellant are challenged by cross-errors. We have examined these ballots and find no substantial reasons for not counting these ballots. We think they were properly counted.
Exhibit No. 28 should not have been counted. The ballot shows an attempted erasure as in Exhibits Nos. 1, 3, 18, and 36. 13. This ballot should not have been counted.
To summarize our efforts, we find of the ballots challenged by contestee and counted for contestor, eight were counted that should have been rejected.
Of the exhibits offered by contestee and rejected by the court, one of such ballots should have been counted for contestee.
Of the exhibits that were counted for contestee, and objected to by contestor, we find that six of such ballots should not have been counted. *Page 551
The result is that contestee received 245 legal votes and contestor received 243 legal votes.
Judgment reversed with instructions to the trial court to enter judgment for appellant and to certify the name of Joseph H. Craney to the election commissioners as the duly nominated candidate for township trustee of Barr Township, Daviess County, Indiana. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428806/ | On and prior to May 6th, 1919, appellee, Murray J. Scherer, was engaged in business in the City of Decatur, Indiana, conducting an undertaking establishment and also selling musical instruments, using two rooms of the same building, in one of which was kept his musical instruments, and in the other the caskets and other merchandise used in connection with a general undertaking business. On said date he sold to appellees Samuel Black and Charles Oetting his undertaking business and all merchandise on hand for use in connection therewith for cash, and the purchasers took possession thereof on the day of sale. No notice was given to the creditors of said Scherer of said sale. At the time of sale Scherer was indebted to the appellant for merchandise sold to him in connection with his musical instrument business and after the said sale he continued to buy pianos from appellant until the total amount of his indebtedness to appellant was $1,355.76. On August 29th, 1919, appellee Scherer executed his negotiable promissory note to appellant covering the indebtedness owing, including the amount owed at the time of sale to appellees Black and Oetting as well as the amount owing because of subsequent purchases by Scherer, which note appellant accepted and retained, and thereafter, on the 29th day of January. *Page 79
1920, said Scherer executed and delivered to appellant his check drawn on the First National Bank of Decatur. Indiana, in the sum of $1,509.55 in payment of said note. This check was not paid and appellant brought an action against appellee Scherer on said check in the Adams Circuit Court. Appellees Black and Oetting were made defendants to said action and such further proceedings were had that on October 18th, 1921, a judgment was rendered in said cause in favor of appellant and against Scherer for $1,698.64 and it was further ordered that Black and Oetting be appointed as receivers and that "they make and pay out of the business and assets of the property held by them as receivers plaintiff's (appellant's) claim in full together with the costs and charges in this behalf laid out and expended." No appeal was taken from this judgment and it has never been paid, nor have Black and Oetting been discharged as receivers, but are continuing to act as such under authority of said Adams Circuit Court where such receivership has remained pending since October 18th, 1921. On the 18th day of December, 1925, the said Adams Circuit Court entered of record an order and decree vacating andsetting aside that part of its judgment entered on October 18th, 1921, which provided that the receivers "make and pay out of the business and assets of the property held by them as receivers plaintiff's claim in full together with the costs and charges in this behalf laid out and expended." In the judgment rendered December 18th, 1925, it was also ordered that the receivers "make out and file a full and complete inventory and statement in affidavit form of the assets and property they received from the defendant, Murray J. Scherer, from the sale of merchandise to them in bulk as alleged in the second paragraph of complaint, and file the same in open court or with the Clerk of this court," and further that "all claimants *Page 80
and creditors claiming to have and hold any debt or liability owing by said Murray J. Scherer, at the time said transfer of merchandise was made by him to said Samuel Black and Charles Oetting, are ordered to file such debts or liabilities as claims duly verified with said receivers within thirty days from this date, and said receivers are ordered to file said claims with the clerk of this court." No appeal was taken from this judgment, and, pursuant to the order made, appellant filed its claim in the said Adams Circuit Court and by medium of changes of venue taken by the parties it reached the Huntington Circuit Court where it was heard and determined and it is from the judgment rendered on this claim by said court, that this appeal is prosecuted.
Appellant's claim is in two paragraphs. The first paragraph alleges in substance that at the time of the sale of the assets involved in the receivership proceeding by Scherer to Black and Oetting, that Scherer was indebted to appellant in the sum of $1,511.44 for goods, wares and merchandise sold and delivered to Scherer by appellant, which amount is due and unpaid. An itemized account of the merchandise sold was attached to and made a part of the claim. The second paragraph alleges that at the time of the sale by Scherer to Black and Oetting the said Scherer was indebted to appellant in the sum of $1,509.58; that on January 29th, 1920, said Scherer executed and delivered to claimant (appellant) his check in payment of said indebtedness, which check was duly presented to the bank upon which it was drawn and payment thereof refused; that afterwards, on February 18th, 1920, claimant brought suit on said check in the Adams Circuit Court against said Scherer, and thereafter on September 24th, 1920, claimant filed its second paragraph of complaint to which Black and Oetting were made defendants and that on October *Page 81
18th, 1921, judgment was entered in said cause in its favor against said Scherer for $1,698.64 and costs and further "that Samuel Black and Charles Oetting, defendants herein, be and they are hereby appointed receivers herein and said receivers are hereby orderd to make and pay out of the business and assets of the property held by them as receivers, plaintiff's said claim in full together with the costs and charges in this behalf laid out and expended." The affidavit constituting a part of this paragraph of claim avers that said sum of $1,698.64 is due, owing and unpaid.
Appellees Samuel Black and Charles Oetting, as receivers, filed answer in five paragraphs, summarized as follows: (1) A general denial. (2) That the goods, wares and merchandise for which claim is filed were all purchased subsequent to the sale of assets of Scherer to Black and Oetting. (3) That on the — day of May, 1919, they, Black and Oetting, purchased from their co-defendant Scherer a certain stock of merchandise in bulk; that thereafter said Scherer executed to the Starr Piano Company a certain promissory note for the sum of $1,353.76 and delivered said note to the said company as payment in full of all claims and demands which said Scherer owed to claimant for goods, wares and merchandise, which goods, etc., were purchased both prior and subsequent to the sale in bulk by Scherer to Black and Oetting, and that at the time of the filing of the claim herein, the said receivers were not indebted to the Starr Piano Company in any amount; that the sums set out in the claim and alleged to be due for merchandise sold to Scherer had been paid and fully discharged by said promissory note. It also averred that on the 18th day of February, 1920, the claimant brought suit on said note against the said Scherer, in the Adams Circuit Court, and that said suit is now pending. (4) That on the — day of May, 1919, Black and Oetting *Page 82
purchased from Scherer the undertaking business in bulk, and nothing more; that at the time of the sale Scherer was also engaged in the business of selling musical instruments, in a room separate and apart from said undertaking business, and as an independent business; that no part of the merchandise used in the musical instrument business was sold in bulk, or otherwise, to said Black and Oetting; that after the sale of said undertaking business said Scherer continued to conduct said musical instrument business and contracted the indebtedness for which claim is filed; that after the sale to Black and Oetting the said Scherer, on August 29, 1919, executed and delivered to the Starr Piano Company his promissory note for $1,353.76 in payment of all sum due at that time from the said Scherer to said company for merchandise theretofore purchased; that on the 18th day of February, 1920, the said Starr Piano Company filed a complaint on said note in the Adams Circuit Court which suit is still pending; that afterwards said Scherer executed and delivered to said company a check in the sum of $1,509.55 in payment of said note; that the Starr Piano Company filed a complaint in the Adams Circuit Court on said check and, on October 18th, 1921, judgment was rendered in favor of said plaintiff and against said Scherer, and in said judgment an interlocutory order was made declaring said Black and Oetting receivers, and that they make and pay out of the business and assets of the property held by them as receivers the claim of the Starr Piano Company in full, with the costs and charges laid out and expended; that thereafter on December 18th, 1925, said interlocutory order was vacated, set aside and held for naught by the said Adams Circuit Court; that the only claims which the Starr Piano Company have against the said Scherer is the note dated August 29th, 1919, upon which suit is pending, and a check under *Page 83
date of January 29th, 1920, both executed subsequent to the sale in bulk by Scherer to Black and Oetting and that the claim filed for goods, wares and merchandise was fully paid and satisfied by the said note and check; that by reason of the facts stated the claimant ought not recover on either paragraph of the claim filed. (5) That the plaintiff's cause of action did not accrue within six years before the filing of the claim. A reply in general denial to the affirmative paragraphs of answer closed the issues.
The cause was submitted to the court for trial and by request the court made its special finding of facts and stated conclusions of law thereon as follows: (1) "That the law is with the defendants, Samuel Black and Charles Oetting, Receivers. (2) That there is nothing due the plaintiff, The Starr Piano Company, from the defendants, Samuel Black and Charles Oetting, receivers, on the claim herein filed, and that said defendants recover their costs." Appellant excepted to each of said conclusions and judgment was rendered in accordance with the conclusions stated. Appellant filed its motion for a new trial alleging as causes therefor that the decision of the court is not sustained by sufficient evidence; that the decision is contrary to law; and, that the court erred in admitting in evidence certain exhibits consisting of letters, invoices, and transcripts of judgments rendered by the Adams Circuit Court. This motion was overruled to which action appellant excepted and thereafter perfected this appeal, the sole error assigned being that the court erred in overruling its motion for a new trial.
There is evidence to establish and the court, in its special finding, found the facts to be as hereinbefore stated in this opinion. In addition to such facts the court further found 1. that the amount of indebtedness owing by said Scherer to appellant at *Page 84
the time of the sale of the undertaking business to Black and Oetting was $400, and that the note given by Scherer to appellant for the sum of $1,355.76 on August 29th, 1919, was payable in bank and was taken and accepted by appellant as payment infull of all accounts due and owing from Scherer to appellant, including the $400 which was due at the time of the sale of the undertaking business on May 6th, 1919, and there is evidence in the record to support the finding of facts in this respect. We therefore conclude that the decision of the court is sustained by sufficient evidence and is not contrary to law.
The admission of certain exhibits in evidence is questioned, but the motion for a new trial fails to state the grounds of any objection made to any one of said admitted exhibits. The 2. objection, or its substance, should be stated in order to present for review the alleged error. Eva v. State
(1932), 203 Ind. 340, 180 N.E. 183; Inter-Ocean Casualty Co. v.Wilkins (1932), 96 Ind. App. 231, 182 N.E. 252; Greer v.State (1929), 201 Ind. 386, 168 N.E. 581; Wabash, PortlandCement Co. v. Stevens (1931), 93 Ind. App. 208, 178 N.E. 5.
Finding no reversible error the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428707/ | Appellant was convicted of having in his possession intoxicating liquor, in violation of § 4 of the act of 1925 (Acts 1925 p. 144, ch. 48, § 2717 Burns 1926).
Overruling motion for new trial is the only alleged error assigned; and the only reasons for new trial presented are that the finding of the court is not sustained by sufficient evidence, and that the court erred in overruling appellant's motion to suppress certain evidence obtained by a search warrant.
In determining, on appeal in a criminal case, whether the evidence is sufficient to sustain the finding of guilty, only the evidence favorable to the State is considered. Hiner v. 1. State (1929), 89 Ind. App. 152, 166 N.E. 20.
It appears from the evidence that appellant and his wife operated a hotel and rooming house occupied exclusively by appellant and his family as their place of residence, being rooms on the main floor adjoining the hotel lobby, which was also known and used as a storeroom; that, on October 6, 1928, police officers, armed with a search warrant, entered that part of the hotel occupied by appellant as his residence, and, while in a room adjoining the kitchen talking with appellant, the wife of appellant came in the room carrying in her hands *Page 99
two glasses of whisky; that, upon seeing the officers, the wife said to her husband, "You are not as good lookout as your daughter"; that, in the kitchen, at the time, were two men, not members of appellant's family, sitting at a table, and in an intoxicated condition; that, upon being discovered by the officers, the two men left the premises.
It is argued by appellant that, under the evidence, the possession of the liquor, if any, was that of his wife, and is, therefore, insufficient to establish his guilt. The 2, 3. contention is without merit. It was in appellant's place of residence and in appellant's presence that the liquor was being carried by his wife. The remark of the wife to appellant, when she saw the officers, that he was not as good a lookout as his daughter was significant, as was also the presence of the two intoxicated men at the table in the adjoining room. The fact that appellant's wife had the actual possession of the whisky did not, under the evidence, render appellant less guilty, for it is well settled that all persons engaged in the commission of a misdemeanor are responsible, and each or all may be charged and convicted as principals. Merrill v. State (1911),175 Ind. 139, 93 N.E. 857, 44 L.R.A. (N.S.) 439. The evidence is sufficient.
The search warrant did not direct a search of the entire hotel or rooming house, but only that part of the building occupied by appellant as his place of residence, which part was 4. accurately described. The description of the premises is sufficiently specific. On the issue presented by the motion to suppress, the evidence showed that, after the filing of the affidavit, which was made on information and belief, and before search warrant was issued, the court heard the oral testimony of the police officer who had made and filed the affidavit, which testimony was, in *Page 100
substance, that the officer had, on several occasions just prior to the time the search warrant was issued, observed appellant's place; that he saw many persons entering and leaving that part of the hotel occupied by appellant as his place of residence; that, on three or four occasions, he looked through the kitchen window and saw appellant's wife serving intoxicating liquor to men; that, on one occasion, he saw three men sitting around the kitchen table with glasses of whisky in front of them. The evidence is sufficient to show reasonable and probable cause for the issuance of the search warrant, and the court did not err in overruling motion to suppress. See Gwinn v. State (1929),201 Ind. 420, 166 N.E. 769.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428708/ | Appellant was charged by affidavit and convicted of maintaining a common nuisance, in violation of § 20 of the act of 1917 (Acts 1917 p. 25), concerning prohibition of intoxicating liquors. The penalty fixed was the minimum fine provided by statute for the offense charged, to which was added a small jail sentence.
The only question presented by this appeal is the sufficiency of the evidence.
In determining, on appeal, the question as to sufficiency of the evidence to sustain a finding or verdict of *Page 20
guilty in a criminal case, only the evidence favorable to 1. the State will be considered. McQueary v. State (1928), 199 Ind. 700, 160 N.E. 291.
It appears from the evidence that on April 13, 1923, appellant leased a building designated as "No. 1109 North Missouri street, Indianapolis, Marion county, Indiana," the premises to be 2. used as a grocerystore and residence. Appellant took possession at the time the lease was executed, and began operation of the grocery; the rent was continuously paid in appellant's name until July 18, 1924, and a receipt showing payment by appellant of the rent for the month of April, 1924, was introduced in evidence. On May 5, 1924, two policemen, armed with a warrant authorizing a search of the premises, appeared at 1109 North Missouri street for that purpose. When they arrived, they found appellant just outside the store. The policemen entered and read the search warrant to a man by the name of Davis who was there making sales. While the search warrant was being read, appellant went into the store and behind the counter, and remained in the store during the search. One of the officers testified that, while they were making the search, "Mr. Gmil went to wait on a customer, and stood behind the counter taking money for goods and putting the money in the drawer," and, when accused by the officer of being in the business of handling liquor, he replied, "Yes, and I have handled more liquor and sold more liquor when you fellows are asleep than you will make in all your lives, and you are not wise enough to catch me." In the search, the officers found some intoxicating liquors, a jug, some whisky bottles, and some broken bottles under the floor in the rear part of the building. A witness for the State by the name of McGlenn testified that he was present at the store when appellant ordered a gallon of whisky, the order being made over telephone, and that he was present when the *Page 21
whisky was delivered to appellant; that it was brought in "in a burlap sack and taken into the back room," and that a bottle of whisky found in the store by the officers when they made the search was filled from the gallon jar which was taken to the back room. The witness further testified that he was in the back room when the officers came to make the search, and that appellant came back there and told him to "scoop the jar in the hole," and that witness, in response, did push the jar of whisky in a hole in the floor. One of the officers testified that, when making the search, they found below the hole in the floor a broken jar, which still contained a small amount of whisky. It also appears from the evidence that, at the time of the search, appellant lived in rooms above the store, and that the only way to get to the living apartment was by a stairway which had to be entered through a door inside the store-room. Without objection, two witnesses testified that the general reputation of the store as a place resorted to for the purpose of buying, selling and drinking intoxicating liquor as a beverage was bad, and that the store was located in Marion county, Indiana.
The record shows that this prosecution was begun in the city court of the city of Indianapolis; that a trial was there had which resulted in a conviction, from which an appeal was taken to the Marion Criminal Court. It appears that appellant has had two fair trials and two appeals. At the trials and on appeal to this court, he was ably defended by competent attorneys.
Affirmed. *Page 22 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428710/ | The State Protective Corporation was an Indiana corporation organized under an act entitled, "An Act for the Incorporation of Societies not for Pecuniary Profit." (Acts 1889, page 141.) Its business consisted in the solicitation and sale of membership certificates issued by the corporation, which certificates provided for benefits to be paid to members in the event of disability or death. The consideration for such certificates was the payment of a membership fee and certain fees or assessments thereafter. *Page 550
On July 3, 1934, the corporation had sold more than 30,000 of these membership certificates and on that day the appellee Louie H. Oberreich was appointed receiver of this corporation. This receiver now has on hand approximately $35,000.00 as assets of this corporation. During the administration of this receivership the appellant herein, on behalf of himself and all other policy holders or membership certificate holders similarly situated, filed a pleading which is designated as a cross-complaint, to which complaint were made cross-defendants the appellee Jesse L. Hart, Executor of the estate of Waxa W. Goodman, deceased, who had a claim filed against the receivership as a policy claimant and all persons similarly situated, and the appellee Oberreich, as receiver. The appellees Andy Chitiea, Sarah Groom, Alice Carmen, and Eleanor L. Campion were permitted to intervene as cross-defendants and filed demurrers to the cross-complaint. The appellees Jesse L. Hart, executor, and Louie H. Oberreich, receiver, also filed separate and several demurrers to the amended cross-complaint. These demurrers challenged the sufficiency of the cross-complaint. The reasons assigned are that the cross-complainant has no such common interest in the relief sought with other policy holders or claimants under policies as would entitle him to maintain a class suit; that the interest of the cross-complainant as a holder of a membership certificate is directly opposed and adverse to the claim of beneficiaries of deceased contract holders and claimants for benefits under contracts issued; and that the cause of action sought to be alleged is not a joint cause of action in favor of all parties similarly situated. The demurrers further present the question as to the right of the corporation to declare void their contracts as against *Page 551
complainants who have fully performed. The court sustained these separate and several demurrers, to which rulings the appellant excepted and refused to plead further. Judgment was entered against him on his cross-complaint and this appeal has been perfected.
The appellant assigns as error in this court the action of the trial court in sustaining the demurrers filed by each of the appellees. For the purposes of this case it is sufficient to say that the cross complaint alleges and the demurrers admit that the State Protective Corporation was engaged in the business of selling policies of life, accident, and disability insurance. This corporation was not licensed under the statutes of Indiana to engage in or transact such business. The cross-complaint further alleged that all of their acts in the sale of membership certificates were void, and concluded with a prayer that all monies received by the corporation from the sale of membership certificates be distributed pro rata to the cross-complainant and to each member who had contributed to such fund, after the payment of its valid indebtedness and expenses of the receivership.
The first question therefore presented for our consideration is whether or not the acts of the corporation in the sale of its membership certificates were void or only contracts ultra vires.
The parties do not contend that the State Protective Corporation had authority under its charter to engage in the insurance business. In fact, our statute expressly forbids 1. such corporation from issuing policies of insurance. § 39-419 Burns' Indiana Statutes 1933, § 9769 Baldwin's 1934. Since our statute expressly prohibits this corporation from making this type of contract, it necessarily follows that such a contract so attempted *Page 552
is void. The general rule has been announced as follows:
"Another principle of general recognition is that a corporation cannot enter into, or bind itself by, a contract which is expressly prohibited by its charter or by statute; and in the application of this principle it is immaterial that the contract, except for the prohibition, would be lawful. No one is permitted to justify an act which the legislature, within its constitutional power, has declared shall not be performed. An illegal contract in the sense of malum in se or malum prohibitum is beyond the power of any one to make, corporation or private individual. It has accordingly been stated that the doctrine of ultra vires has no application to contracts of private corporations the making of which is prohibited by statute." 13 Amer. Jur. 786, § 756.
While it is true that the insurance statutes of this state do not declare that contracts issued by companies not authorized to engage in the insurance business are void, yet the failure of the statute so to declare does not change the rule. Sandage et al.
v. The Studabaker Brothers Manufacturing Co. (1895),142 Ind. 148, 41 N.E. 380; The Bright National Bank of Flora, Indiana v.Hartman et al. (1916), 61 Ind. App. 440, 109 N.E. 846;Beecher v. Peru Trust Company et al. (1912),49 Ind. App. 184, 97 N.E. 23.
"The general rule is that if a statute prohibits a corporation from making a contract of a certain kind, the contract is void, even though not expressly declared to be so in the statute, and it is incapable of ratification. The doctrine of ultra vires has no application in the case of contracts by a private corporation, the making of which is prohibited by statute, or where their enforcement would be against public policy on account of being immoral. The reason given is that the powers delegated by the state to corporations *Page 553
are matters of public law of which no one can plead ignorance." United Order of Good Samaritans v. Meekins (1922), 155 Ark. 407, 411, 244 S.W. 439, 28 A.L.R. 89, 91.
This same principle is announced by our Supreme Court in the following language:
"That there can be no recovery on a contract made in violation of a statute, as between the parties thereto, the violation of which is prohibited by a penalty, is a principle well recognized by the courts. This is true, although the statute does not, in terms, pronounce the contract void nor expressly prohibit the same. This doctrine is well supported by many English and American decisions." Sandage et al.
v. The Studabaker Bros. Mfg. Co. (p. 156), supra.
The appellees contend that even though the contracts made with the State Protective Corporation are forbidden by statute, the company, having accepted premium payments, is estopped to 2. assert the invalidity of such contracts. This contention cannot prevail where the contract is one forbidden by statute. This question was before the Supreme Court of Illinois in the recent case of People ex rel. Nelson v. Wiersema StateBank (1935), 361 Ill. 75, 94, 197 N.E. 537, and was discussed by this court in the following language:
"In this State it is well settled that when a contract of a corporation is ultra vires, that is to say, outside the object of its creation as defined by the law of its organization and therefore beyond the powers conferred by the Legislature, it is not only voidable but wholly void, and of no legal effect. It cannot be ratified, because it could not have been legally made. No performance by the parties can give it validity or become the foundation of any right of action upon it. Neither party is estopped by assenting *Page 554
to it or by acting upon it to show that it was prohibited. The power in controversy having been withheld, its exercise was thereby prohibited. The powers delegated by the state to corporations are matters of public law, of which no one can plead ignorance. Parties dealing with them are chargeable with notice of those powers and their limitations. A contract void because prohibited by law cannot in any manner be enforced. The law does not prohibit and also enforce a contract." 101 A.L.R. 501, 514.
In the light of these authorities it is our opinion that the holders of the certificates issued by the State Protective Corporation acquired no rights thereunder that are 3-5. enforceable as such. Their only remedy is in the nature of a recovery for money received. The law will compel restitution from one who obtains money or property from another fraudulently, unjustly, or without authority. The law creates a duty to return any money which is procured under such circumstances that in equity and good conscience it ought not to be retained. Pink v. Title Guarantee Trust Co. (1937),274 N.Y. 167, 8 N.E.2d 321. See also People's State Bank v.Caterpillar Tractor Co. (1938), 213 Ind. 235, 12 N.E.2d 123. As to such a cause of action all certificate holders stand on the same basis and are entitled to the enforcement of the same right. It follows, therefore, that one such certificate holder may maintain an action to recover the amount contributed by him not only for the benefit of himself but such action may be maintained for the benefit of all similarly situated. Our statute provides that "when the question is one of common or general interest of many persons or it is impractical to bring them all before the court, one or more may sue or defend for *Page 555
the benefit of the whole." § 2-220 Burns' Ind. Statutes 1933, § 35 Baldwin's 1934.
The cross-complaint alleges that more than 30,000 certificate holders have contributed to the money now in the hands of the receiver as the property of the State Protective Corporation. Each of these certificate holders is entitled to a pro rata share of the balance remaining in the hands of the receiver after the payment of certain prior claims. It would certainly be contrary to the intent and purposes of the above statute to hold that each certificate holder must maintain a separate action to recover the amount due him.
Our courts have frequently held that where a liability exists on the part of a corporation to numerous creditors "one action to enforce this liability may be brought by one creditor on behalf of himself and all other creditors." State ex rel. Dept. ofFinancial Institutions v. Sonntag et al. (1936),101 Ind. App. 557, 195 N.E. 601; Gaiser v. Buck (1931), 203 Ind. 9,179 N.E. 1; Hall et al. v. Essner et al. (1935), 208 Ind. 99,193 N.E. 86; Englehart's Estate et al. v. Larimer et al. (1937),211 Ind. 218, 5 N.E.2d 304.
The court was accordingly in error in sustaining the demurrer of each of the appellees to the appellant's cross-complaint. Because of this error, the judgment of the trial court is reversed with instructions to overrule the demurrer of each of the appellees and for further proceedings consistent with this opinion.
Judgment reversed. *Page 556 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428817/ | Action by appellants as partners doing business under the name of "The Bank of Peebles" against Joseph DeTraz, to recover upon a promissory note signed by DeTraz and payable to his order. The complaint alleges the indorsement and delivery of the note by DeTraz to the Indiana Oil Refining Company, and its assignment by indorsement to the plaintiffs. Joseph DeTraz filed answers of (1)non est factum; (2) payment; (3) that the plaintiffs were not the real parties in interest, and that the note was in fact the property of the Indiana Oil Refining Company; (4) that the plaintiffs were not the real parties in interest, but that the refining company was the owner of the note, and that the defendant had paid the refining company the amount due and owing on the note, and also (5) a verified answer denying the indorsement by the refining company. Joseph DeTraz died before trial, and Oda DeTraz, administrator of his estate, was substituted as defendant. A trial by jury resulted in a verdict and judgment for the defendant. The error assigned is the overruling of appellants' motion for a new trial, the specifications of which are that the verdict is not sustained by the evidence, and is contrary to law. *Page 229
The note in question is for $1,800, is dated December 13, 1921, payable to the order of the maker 60 days after date, with seven per cent interest and attorney fees, at the office of the Indiana Oil Refining Company. It is signed by Joseph DeTraz, and indorsed by him in blank. It is also indorsed as follows: "Indiana Oil Refining Co., By O.L. Bartlett, Pres., B.H. Heiner, Treas."; "O.L. Bartlett" and "H.B. Gaffin, Jr." Bartlett and Heiner were president and treasurer, respectively, of the refining company. Gaffin was secretary and director of the company, and the father-in-law of Bartlett. He was also one of the members of the partnership and director of the bank to which he assigned the note, and he is one of the appellants in the instant case. When the note was indorsed by DeTraz, he delivered it to Gaffin, secretary of the refining company. Bartlett, as president of the company, participated in indorsing and assigning the note to himself, and he thereafter indorsed the note and delivered it to his father-in-law, Gaffin, who, in turn, indorsed and delivered the same to the bank, of which he then was and is now a part owner. These indorsements and transfers were all made within eight days after the execution of the note. The evidence does not show the consideration for the execution of the note, or that there was any consideration for any indorsement, except that of Gaffin to the bank. Appellant Wittenmeyer, assistant cashier of the bank, testified that the bank became the owner of the note December 22, 1921; that P.A. Campbell, who was the cashier of the bank, and who is now dead, accepted the note for the bank; and that the bank paid $1,500 for the note. On January 19, 1922, which is about a month after Wittenmeyer said the bank had purchased the note, Gaffin wrote a letter to DeTraz, telling the latter that he, Gaffin, was the owner of the note, and asking that DeTraz make *Page 230
arrangements to take it up when due, and asking whether he should send the note to DeTraz's bank for payment.
On December 16, 1921, three days after the execution of the note, a receiver was appointed for the refining company in an action then pending in the Bartholomew Circuit Court, 1, 2. the complaint in that action having been filed December 10, 1921. There is nothing in the books or records of the refining company showing that the note or any proceeds derived from it ever came into the possession of that company. The evidence is ample to sustain a finding that all of the indorsements on the note and the transfer to appellants were made for the purpose of defrauding the refining company. The evidence does not disclose the date when any of the indorsements were made, except that the note came into the possession of appellants December 22, which was six days after a receiver had been appointed for the refining company. While this court might not be justified in saying as a matter of law that Gaffin's title to the note was defective, the evidence is sufficient to have justified the jury in so finding. Under such state of facts, the burden was on appellants to prove that they, or some one under whom they claimed title, acquired the title as a holder in due course. § 11418 Burns 1926, § 59 Uniform Negotiable Instrument Act, Acts 1913 p. 120. We cannot say as a matter of law that they discharged that burden. Neither Gaffin nor the cashier who accepted the note from him, and who carried on the negotiations leading to the transfer of the note to the bank, testified. The only evidence upon this question is the statement of Wittenmeyer that appellants gave Gaffin, one of its directors, $1,500, for an $1,800 note, bearing seven per cent interest, due and payable in less than 60 days.
The verdict is sustained by the evidence and is not contrary to law.
Affirmed. *Page 231 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428836/ | An affidavit in five counts was filed against appellant, charging in different counts that at a time and place named he manufactured, received from a carrier and transported in an automobile intoxicating liquor, that he maintained a common nuisance by keeping a place where intoxicating liquor was manufactured, sold, etc., in violation of law, and also (by the fourth count) that he unlawfully sold, bartered, exchanged, gave away, furnished and disposed of intoxicating liquor to persons to the affiant unknown. Being arraigned, he pleaded guilty and was sentenced to pay a fine of $200 and to be imprisoned at the Indiana State Farm for six months, which was less than the maximum penalty for the offense charged in the fourth count of the affidavit, alone (§ 1, ch. 23, Acts 1923 p. 70), and was far less than the minimum penalty for transporting such liquor in an automobile (§ 1, ch. 34, Acts 1923 p. 108). Six days later he filed a verified petition asking *Page 605
that the judgment and his plea of guilty be set aside, and that he be permitted to enter a plea of not guilty and have a jury trial. This petition asserted that he was not guilty of manufacturing intoxicating liquor nor "of transporting intoxicating liquor as defined by the laws of this state," nor of receiving such liquor from a carrier, nor of maintaining or assisting to maintain a common nuisance. But it contained no denial of the charge in the fourth count that appellant had unlawfully sold, bartered, exchanged, given away, furnished and disposed of intoxicating liquor. It alleged that when the plea was entered he was not represented by counsel, that he had little education and did not know the meaning of legal terms, nor know the rights guaranteed by the Constitution, and that he had always before the date of his arrest borne a good reputation, and that by reason of an injury to his head he suffered from periods of depression when he was in great fear of danger to himself and family, and "that at the time of his arrest and by reason thereof he was thrown into great fear and distress of mind, was unable to think and act for his own natural interest," and because of those conditions did not advise with his friends nor procure counsel to advise him before the plea of guilty was entered. Supporting affidavits of his wife and his mother testified to his alleged periods of nervousness and fear, and that he appeared to be suffering in that manner on the morning of the day he was arrested, being the day the offenses charged were alleged to have been committed.
The assertion of the legal conclusion that the defendant "is not guilty of transporting intoxicating liquors as defined by the laws of this state," instead of stating just what acts he 1. did and what he did not do with regard to liquor and an automobile, was insufficient to negative that particular count of the *Page 606
affidavit. Temple v. State, ex rel. (1916), 185 Ind. 139, 146, 113 N.E. 233.
But he was not adjudged guilty of a felony, so that charge requires no further notice.
A motion asking leave to withdraw a plea of guilty is addressed to the sound legal discretion of the trial court, and, in the absence of an affirmative showing that its discretion 2, 3. was abused, overruling such a plea is not error. And if appellant was really guilty of unlawfully selling intoxicating liquor, as his plea of guilty admitted and his petition for leave to withdraw the plea did not deny, it was not necessarily an abuse of discretion to refuse to set aside a judgment which imposed less than the maximum penalty fixed by law for that offense. Carr v. State (1924), 194 Ind. 162, 142 N.E. 378, and authorities cited.
The petition having failed to show sufficient cause for insisting that the plea of guilty be withdrawn, the fact 4. that no affidavits were filed in opposition to it was not material.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428763/ | The appellant Columbia Conserve Company, Inc. is an Indiana corporation engaged in the canning business. In 1917 the salaried employees of the company formed an organization which they called a "council." The members of the council, including the appellee, the company, and a majority of its common stockholders entered into a written agreement in 1925 which, as amended in 1926, was as follows:
"Beginning in 1925, the net profits of the Company shall belong to the salaried employees after cumulative dividends at the rate of 10% per annum have been paid on the common stock of said Company, *Page 497
and a 10% bonus paid on salaries and also proper and fair reserves set aside for depreciation and taxes. After the above charges have been deducted from the net profits 1/10 of said remaining sum is to be set aside as a pension fund to be created and controlled by the Council of said The Columbia Conserve Company. All remaining net earnings shall be used by the salaried employees to buy the available outstanding common stock of The Columbia Conserve Company at $150.00 per share. The dividends accruing on the common stock so purchased by the salaried employees must be used toward the purchase of the remaining common stock at the above price, and this process shall be continued until all of the above mentioned common stock has been acquired by the salaried employees.
"All stock acquired by the employees shall be held in trust by three Trustees to be elected by the members of the Council qualified to vote thereon as provided in the minutes of the Council, January 5, 1926, for the benefit of the salaried employees. The income on this stock itself shall be under the complete direction and control of the said qualified members of the Council. After stock has been purchased under this proposal at the price of $150.00 per share, any salaried employee leaving the employ of the Company, or being discharged therefrom, and holding stock in said Company at the time of severing his connection, shall be paid for the stock owned by him at the rate of $150.00 per share. Any owner of common stock shall have the right at any time to exchange his common stock, dollar for dollar, for the preferred stock of The Columbia Conserve Company, calling for dividends at the rate of 7% per annum (cumulative).
"Should it become necessary at any time to issue more preferred stock for the financing of said Company, the holders of the common stock agree to consent to such stock issue. The proposal may be withdrawn should it become necessary because of financial difficulties of the Company to sell the *Page 498
business before the salaried employees have acquired 51% of the outstanding common stock.
"This proposal cancels all previous agreements or undertakings between stockholders and salaried employees."
The council elected three trustees who, with funds received pursuant to the contract, acquired by purchase from the common stockholders at $150.00 per share 1,369.78 shares or 63% of the outstanding stock of the company. The appellee continued as a salaried employee and member of the council until 1933 when he was discharged. At that time the company had 84 salaried employees who were members of the council and parties to the foregoing agreement.
After his discharge the appellee brought this action against the company, the trustees, and members of the council. The complaint proceeded upon the theory that by virtue of the foregoing contract the appellee was the owner of 1/84 or 16.3093 shares of the common stock of the company held by the trustees, which the appellants were obligated to purchase from him at $150.00 per share. He alleged a demand and asked for damages for breach of the contract in the sum of $2,460.00 with interest.
The court made a special finding of facts and concluded that the law was with the appellee and that he was entitled to recover $2,446.395 from all the appellants. The only assignment here is that the trial court erred in its conclusions of law.
The pertinent facts found by the court are stated above. In a number of other purported findings the court undertook to interpret the contract. These amounted to conclusions of 1-5. law and have no force as findings of fact. 2 Watson's Works Practice, § 1603. In other findings the court stated that there had been a breach of the appellee's contract of employment *Page 499
and that he had been wrongfully discharged. These must also be disregarded because they were without the issues. Under the contract the appellee's rights would be the same whether he was discharged or voluntarily quit. The complaint is predicated upon a breach of the contract set out therein and not upon a violation of any contract of employment. The appellee must recover upon and according to the theory of his complaint or not at all. Thomaset al. v. Dale et al. (1882), 86 Ind. 435.
In support of the conclusions of law the appellee relies upon the following provision of the contract:
"After stock has been purchased under this proposal at the price of $150.00 per share, any salaried employee leaving the employ of the Company, or being discharged therefrom, and holding stock in said Company at the time of severing his connection, shall be paid for the stock owned by him at the rate of $150.00 per share."
The appellee contends that the above provision requires the appellants to purchase from him 1/84 of the stock held by the trustees at $150.00 per share. The right of the appellee to require that his stock be purchased is conditional rather than absolute, the condition being that there be funds available for that purpose. Where one seeks a recovery of money which is payable only upon the performance of a certain condition or the happening of a certain contingency, he must show that the condition has been performed or that the contingency has happened. Schaefer v. Hines (1914), 56 Ind. App. 17, 102 N.E. 838; Crume v. Brightwell (1919), 69 Ind. App. 404, 122 N.E. 230. According to the contract the only funds that are to be used in the purchase of stock on behalf of the salaried employees, under any circumstances, are net earnings of the company and dividends from stock held by the trustees. There is no *Page 500
obligation on the part of the company to purchase any stock, nor is there any basis, under the facts found, for a personal judgment against any of the appellants. It is not alleged in the complaint nor is it found by the court that the salaried employees or members of the council possess any funds received pursuant to the contract which by its terms they are required to apply to the purchase of the appellee's stock. He must, therefore, fail under the theory which he has adopted as the basis of his action.
The action is for damages for breach of an express contract and the only errors assigned relate to the conclusions of law. Under the issues and upon the record presented to us, we would not be authorized to require the future earnings of the company or the dividends on the stock of the salaried employees to be applied toward the purchase of the appellee's stock nor can we order a new trial.
The judgment is reversed with directions to the Hamilton Circuit Court to restate its conclusions of law in accordance with this opinion and to enter judgment for the appellants.
Richman, J., not participating.
NOTE. — Reported in 39 N.E.2d 740. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428765/ | This was an action to quiet title to real estate instituted by Nellie B. Bowers, trustee, against Grantham Realty Corporation, Joseph P. Grantham, Anna S. Grantham, his wife, Josephine E. Young, Allen DeLoss Gordon and Emmett Dudley Gordon. To the complaint herein the appellant, Grantham Realty Corporation, filed its answers in three paragraphs and also a cross-complaint in two paragraphs, one seeking to quiet title to the real estate in question and the other for ejectment. The defendants Grantham and Grantham filed *Page 674
two paragraphs of answer to the complaint. On the death of Nellie B. Bowers, trustee, John O. Bowers, Jr., trustee, was substituted as plaintiff.
On the issues being closed the cause was submitted to the court for trial. Special findings of fact and conclusions of law were made by the court and judgment was entered for the plaintiff, pursuant to such conclusions of law, quieting his title to said real estate. From this judgment the appellant prosecutes this appeal, assigning as error each of said conclusions of law and the overruling of its motion for new trial.
All of the grounds assigned in its motion for new trial except one were based on questions concerning the evidence and since the evidence is not in the record the questions sought to be 1, 2. presented on such assigned grounds can not be considered by this court. The remaining ground for a new trial was not discussed by the appellant in its brief and, therefore, has been waived by the appellant.
The facts as specially found by the court, in so far as they are material to the decision in this case, are as follows:
On April 1, 1907, and until his death, Henry N. Bancroft was the owner in fee simple of the real estate herein involved. The said Henry N. Bancroft died intestate in 1907 leaving him surviving as his sole and only heirs his two sons Willis C. Bancroft and Edmund H. Bancroft.
On February 14, 1910, the treasurer of Lake County, Indiana, sold said real estate to John O. Bowers for taxes then delinquent for the years 1908 and 1909. On the same day the auditor of said county issued to such purchaser a certificate for such purchase. On July 29, 1912, said Bowers presented said certificate to said auditor of Lake County, Indiana, and received from said auditor a tax deed regular in form and regularly executed, which *Page 675
deed was duly recorded on the same day in the office of the recorder of Lake County, Indiana.
On May 13, 1913, said John O. Bowers, as plaintiff, filed a complaint in the Lake Superior Court, Room 3, to quiet his title to said real estate, together with other real estate, naming and making parties defendant thereto John James, Henry N. Bancroft and many other persons named therein as defendants "and each and all of the heirs, legatees, devisees and distributees, respectively of each, any and all of such of the above named, designated, and described defendants respectively as are dead, if any such there be of said defendants who are dead, the names of which heirs, legatees, devisees and distributees are not known to plaintiff." Said cause was duly entered by the clerk of said court in the entry docket of said court and the title or caption of said cause included the names of the plaintiff and all of the above named defendants. The names of Willis C. Bancroft and Edmund H. Bancroft did not appear in said caption and they were not made defendants to said suit by name. The plaintiff in said action filed an affidavit showing that each and all of said defendants were non-residents of the State of Indiana and the court ordered notice by publication to all defendants of the pendency of said cause. It is not shown that the complaint was verified, nor is it shown that a separate affidavit was filed showing that the names of the heirs of the said Henry N. Bancroft were unknown.
On September 29, 1913, a judgment was entered in said cause. The court found that each and all of the defendants therein had "been duly notified of the filing and pendency of this cause for hearing, as required by law." Said defendants were then defaulted. The court heard evidence and found and adjudged that the plaintiff was the owner in fee simple of said real estate; that the defendants "have not nor has any or either of them any *Page 676
right, title, interest, or claim in and to said real estate or any part thereof, . . . and that the plaintiff's title thereto, as against the claim of each and all of the said defendants be, and the same is hereby forever quieted and set at rest in him." Said judgment was never set aside nor appealed from.
Thereafter on July 1, 1918, said Willis C. Bancroft and Edmund H. Bancroft each filed in cause numbered 10473 in said Lake Superior Court, being the suit to quiet title heretofore mentioned as filed by John O. Bowers on May 13, 1913, his separate verified petition praying the court to vacate, open up, and set aside the default and judgment rendered against them and each of them in said cause numbered 10473 and that they be allowed to appear in said action and make a defense thereto. Each of said petitioners in his verified petition alleged that he had been made a defendant to said action under the name and title of unknown heir of Henry N. Bancroft; that he had obtained only constructive service by publication and that he had no actual notice or knowledge of such suit or any matters pertaining thereto until May, 1918; that the plaintiff in said suit caused said defendants, including petitioners, to be defaulted and judgment rendered therein against said defendants including said petitioners. The plaintiff in said action filed written objections to each of said petitions on the ground, among others, that said petitioners were not parties to said decree as there was no statute authorizing quiet title suits against unknown heirs at that time. On November 17, 1919, the said Willis C. Bancroft and Kate S. Bancroft, his wife, and Edmund H. Bancroft and Laura P. Bancroft, his wife, by quitclaim deed conveyed all their right, title and interest in said real estate to John W. Lyddick, one of the attorneys who had represented them on said petitions.
On October 6, 1930, said Lyddick and his wife by their *Page 677
special warranty deed conveyed "all their right, title and interest" in said real estate to Joseph P. Grantham and Anna S. Grantham, husband and wife, who in turn, by quitclaim deed conveyed said real estate to the appellant, Grantham Realty Corporation, on June 1, 1932. All of said deeds were duly recorded in the office of the recorder of Lake County, Indiana. Said real estate was vacant, unoccupied, unimproved and no one was in the actual possession thereof until the summer of 1933, when said John O. Bowers, Jr., acting under and with the consent of Nellie B. Bowers, trustee, caused said lot 10 of said real estate to be graded and covered with cinders and erected thereon a parking lot, which he has since continued to occupy.
Subsequent to the purchase of said real estate at said tax sale the said John O. Bowers and his successors in interest have paid taxes and special assessments on said real estate in the total sum of $1,767.10. The said John W. Lyddick, on March 19, 1920, paid state and county taxes on said real estate in the sum of $2.73.
Said real estate was never redeemed from the tax sale to the said John O. Bowers and at no time did the said Willis C. Bancroft, Edmund H. Bancroft, John W. Lyddick or anyone claiming under them make any attempt to redeem from said tax sale. Since 1912, when said real estate was conveyed to said Bowers, it has increased in value from $250.00 to $10,000.00.
The court further found that by reason of a slight error in the description under which said real estate was sold at tax sale and conveyed, and by reason of the county auditor failing to comply with the statute in making the sale and in issuing the certificate, said tax sale certificate and deed "were not sufficient to convey absolute title to said real estate to said John O. Bowers, Sr., but could and did only convey the tax lien held by the state at that time." *Page 678
The court also found that plaintiff John O. Bowers, Jr., as trustee, is now the owner in fee simple of said real estate and that the defendants "nor either of them, have or has any right, title or interest in or to said real estate or any part thereof."
On the above facts the court stated the following conclusions of law:
"1. That the law is with the plaintiff. That the plaintiff, as trustee, is the owner in fee simple of the real estate described in his complaint, and that he is entitled to judgment quieting his title thereto as against all defendants to this action.
"2. That the defendant Grantham Realty Corporation take nothing by its cross-complaint filed herein.
"3. That the plaintiff have judgment against the defendant Grantham Realty Corporation for his costs laid out and expended and taxed at $ ____."
In this action both the second and third paragraphs of answer to the complaint set up allegations attempting to show that the tax sale and the tax deed to said Bowers were invalid and gave him only a tax lien which, it is alleged by the appellant, is now barred by the statute of limitations. Neither of said paragraphs of answer make any mention of the 1913 action by Bowers to quiet his title. Neither did the second paragraph of cross-complaint filed by appellant contain any allegation concerning said 1913 action and the judgment based thereon but only alleged that the appellant is the owner of said real estate and that the appellee is claiming title to and holding the possession of said real estate without any right.
There were no allegations either in appellant's answer or in the cross-complaint which could be held to constitute a direct attack on the 1913 judgment quieting title to said real 3, 4. estate in the said John O. Bowers. Said judgment necessarily found that the tax sale and tax deed to Bowers were sufficient to vest in him the *Page 679
fee simple title to said real estate. All persons who were made parties to the action or are in privity with such persons and who failed to appeal or take other proper steps to vacate the judgment, are bound by that finding. No matter how erroneous the finding and the judgment of the court based thereon may have been, such finding and judgment can not be attacked in a collateral proceeding by one who was a party to said judgment or by one in privity with such a party.
The appellant contends on page 49 of his brief, under point 7, that publication in said cause was made pursuant to para. 3, § 338 Burns 1926, § 2-807 Burns 1933 instead of under para. 5 thereof, and further contends that it is only under para. 5 of said section that an unknown defendant can be made a party to an action and service obtained thereunder. There is no affirmative showing in the record of said cause, as set out in the court's findings herein, supporting the contention by appellant that there was no affidavit showing that the name of the defendant was unknown and that he was believed to be a non-resident.
In the instant case the special findings of fact did show a judgment in the 1913 action quieting title to said real estate in John O. Bowers as against Henry N. Bancroft and as 5, 6. against the unknown heirs of Henry N. Bancroft. That judgment by a court of general jurisdiction implies the finding that all defendants to said action had been duly served with notice of the pendency of said action as required by law. It is not necessary that all jurisdictional facts be set out in the judgment. The Evansville Ice, etc., Co. v. Winsor (1897),148 Ind. 682, 48 N.E. 592; Jackson, etc. v. State (1886),104 Ind. 516, 3 N.E. 863. This finding standing alone would preclude the heirs of Henry N. Bancroft and anyone claiming under or through them from questioning in a collateral attack the matters necessarily found by said judgment. *Page 680
While compliance with the statute for making unknown persons parties defendants and publishing notice to them is jurisdictional it has been decided by this court in many cases that where the record is silent on a jurisdictional matter the trial court, if it be a domestic court of general jurisdiction, will be presumed to have possessed the requisite jurisdiction to make its judgment valid as against a collateral attack. Bowser
v. Tobin (1939), ante 99, 18 N.E.2d 773; Friebe v. Elder
(1914), 181 Ind. 597, 105 N.E. 151.
In support of its contention that the Bancroft sons were not properly made parties and served in the 1913 action, the appellant cited the case of The Unknown Heirs of Whitney v.Kimball (1853), 4 Ind. 546, in which case the unknown heirs of one Michael T. Whitney were made parties defendant under the provisions of § 40 of the code of R.S. 1852, Vol. 2, p. 36. In that case the court held that the failure of the plaintiff to file an affidavit with his complaint constituted reversibleerror on appeal.
In the second case cited by the appellant on this point,Johnson et al. v. Patterson et al. (1859), 12 Ind. 471, the unknown heirs of Elizabeth Holliday were proper and necessary parties to a proceeding to quiet the title to certain land. Publication of notice was made as to such heirs without a showing that such heirs were not residents of the state. This case was also under the 1852 statute and again the court held that failure to substantially comply with such statute was reversible erroron appeal. Neither of these cases holds that a faulty affidavit or a negative showing of the absence of such affidavit would render a judgment void and subject to collateral attack.
Under the citation of the above two cases on page 50 of appellant's brief the appellant has the notation "decided *Page 681
under a former statute. There is no statute now on this 7, 8. matter." In its later briefs the appellant contends that it thus raised and properly presented the question of there being no law in 1913 by which the Bancroft sons could have been made parties to said suit as "the unknown heirs of Henry N. Bancroft, deceased," and further contends in such later briefs that the said 1843 statute as amended in 1852 was repealed in 1881 and that in the interim between such repeal and the enactment of the 1915 quiet title act, there was no method of making unknown heirs parties defendant. While this could scarcely be considered a proper presentation of the question, we have considered the question and are of the opinion that the statute providing for publication of notice, which was enacted in 1881, § 2-807 Burns 1933, § 88 Baldwin's 1934, provided a method for making unknown persons parties defendant to an action.
Sec. 14, R.S. 1843, p. 833, which was a part of the chapter concerning suits and proceedings in chancery, provided as follows:
"In cases where it shall be necessary to make any persons defendants to any bill, and the names of all or any of them shall be unknown to the complainant, and he shall annex to his bill an affidavit of his want of knowledge of the names of such persons, and that their residence is, as he verily believes, not in this state, proceedings may be had against them without naming them, and the court shall make such order respecting notice and the publication thereof as they may deem proper."
The 1852 code which abolished the distinction between actions at law and suits in equity re-enacted the above provision as to unknown defendants, making only such changes in the language thereof as to make it applicable to all actions. Section 40, R.S. 1852, Vol. 2, p. 36, Vol. II Gavin Hord, p. 65. As noted above, the *Page 682
two cases cited by the appellant on this point were actions against unknown heirs under the provisions of this 1843 statute, as amended in 1852. The appellant concedes that it was possible to make unknown heirs parties defendant to an action under the provisions of the 1843 and 1852 statutes, but insists that the omission of this particular provision from the 1881 code left no statutory method of making unknown persons parties defendant. With this contention we cannot agree.
Unknown persons, naturally, cannot be served personally — resort must be had to service by publication. The code enacted in 1881, Acts 1881 (Spec. Sess.) ch. 38, § 59, p. 240, 6-9. instead of providing in a separate section for making unknown persons defendants added a provision to the section on the publication of notice providing that notice of the pendency of an action shall be published in cases, shown by affidavit, "Fifth. Where the name of any defendant is unknown and he is believed to be a nonresident." This provision is not limited to any particular class or type of action. It applied to actions to quiet title to real estate in the same manner as the 1843 and 1852 statutes. The fact that the said section of the 1881 code providing for the publication of notice contained a third clause which provided for the publication of notice to known nonresident defendants in certain types of cases, including actions to quiet the title to real estate, does not preclude making unknown persons defendants in actions to quiet title and publishing notice to them under the fifth clause of said section. Since the unknown heirs of Henry N. Bancroft in the 1913 action to quiet title could have been made parties defendant and have been served with notice under the fifth clause of said 1881 act, it will be assumed, in the absence of an affirmative showing to the contrary, that the necessary affidavit was filed to comply with said statute. Said *Page 683
Bancroft heirs and all those claiming under them are therefore bound by the judgment made by the Lake Superior Court in 1913 quieting the title to said real estate in the said John O. Bowers.
We are aware that in the case of Bastin v. Myers (1924),82 Ind. App. 325, 144 N.E. 425, there is obiter dictum to the effect that the purpose of the 1915 quiet title statute 10. was to provide a method by which the unknown husband or wife, widower or widow, heirs or devisees of any and all such persons appearing of record as a former owner or encumbrancer might be made a party defendant and be bound by a decree quieting the plaintiff's title. The act in question, ch. 177, Acts of 1915, p. 649, expressly provided that it was to be "supplemental and additional to existing laws." It purported to furnish a method to quiet title as against the world and required the filing of an affidavit by the plaintiff that he had "named as defendants, all persons within his knowledge through whom any hostile claim might be asserted." The act purported to make any decree or judgment, taken pursuant to its provisions, "binding and conclusive upon all persons whomsoever." The act itself discloses that it was an attempt to provide an additional and more comprehensive remedy for curing defective titles, therefore, the statement in Bastin v. Myers, supra, as to the purpose of the act is not correct.
The appellant also contends that the appellee should fail in this cause because there was no affirmative finding that the two Bancroft heirs were unmarried at the time the 1913 11. judgment was entered. The only mention of the wives of the Bancroft heirs in the special findings was in finding numbered 10 to the effect that on November 17, 1919, more than six years after the said judgment was entered the wives of the said Bancrofts joined in executing a quitclaim *Page 684
deed. The special findings set out the 1913 judgment by which the Lake Superior Court found and adjudged that the said John O. Bowers was the owner in fee simple of said real estate and that none of the defendants (including the two Bancroft sons) had any right, title, interest or claim in or to said real estate or any part thereof. As against that judgment it would be necessary for the appellant to affirmatively show that there were outstanding interests held by persons who were not made parties. Appellant seems to attach much importance to the case of Thompson v.McCorkle (1893), 136 Ind. 484, 36 N.E. 211. In that case the husband, without his wife joining, conveyed the real estate in question prior to his death. After the husband's death and after the wife's interest had become consummate the grantee of a tax deed fraudulently procured a judgment quieting his title to said real estate. The facts of that case present a different question from the question of the instant case.
The other questions presented by appellant are based on the contention that the Bancroft heirs were not parties to the 1913 judgment and that the appellant is not bound by that judgment. In view of our holding on this contention it is unnecessary to further discuss such other questions.
Assuming for the purpose of this paragraph only that appellant was correct in its contentions that the said John O. Bowers did not acquire a fee simple title by his tax deed; that the Bancroft heirs were not parties to the 1913 quiet title action and therefore not bound by the judgment therein; that the Bancroft heirs were married at that time and their wives should have been made parties; that as against the Bancroft heirs and their wives Bowers held only a tax lien on said real estate even after the 1913 judgment was entered; and that said tax lien is now barred by the statute of limitations, *Page 685
the court in the instant case found sufficient facts to warrant it in holding that the Bancroft heirs and their grantees were guilty of such laches as to prevent the appellant from prevailing in this case.
The court found that in May, 1918, the Bancroft heirs knew the facts concerning the tax sale, the tax deed and the quiet title judgment based thereon. Through their attorneys, Sheehan
12. Lyddick, they filed petitions attempting to have the judgment against them vacated. In September, 1919, these petitions were dismissed. A month later the Bancroft sons conveyed by quitclaim deed to John W. Lyddick who, knowing all of the facts of the case and understanding their significance, held whatever title he had acquired by such quitclaim deed for twelve years without making any move to assert his claim or to dispute the title of John O. Bowers to said real estate. During this time the said Bowers was paying taxes and special assessments on said land which was increasing in value. In October, 1930, the said Lyddick by a special warranty deed conveyed to the Granthams who in June, 1932, by quitclaim deed, conveyed to the appellant. Neither the Granthams nor the appellant took any action or made any move to gain possession of said real estate or to dispute the Bowers' title. The said John O. Bowers and his successors in interest have paid taxes and special assessments on said real estate in the total amount of $1,767.10 and appellant insists that the tax lien once held by Bowers is now barred by the statute of limitations and appellee can, therefore, recover none of the taxes so paid. It would be most inequitable to permit the appellant at this late date to prevail on the claim which was formally dismissed and apparently abandoned by the Bancroft heirs in 1919. One having a technical claim on property and who is in possession of all the facts concerning such claim cannot sit idly *Page 686
by and permit another, who believes himself to be the owner of such property, to carry the burden of the property while the owner of the claim by the passage of time makes sure that the property is worth carrying. An owner of a claim so doing is guilty of laches and a court of equity will not then permit him to assert such claim to the injury of the other party. Kroeger
v. Kastner (1937), 212 Ind. 649, 653, 10 N.E.2d 902. As this court said in the case of Ryason v. Dunten (1905),164 Ind. 85, 95, 73 N.E. 74;
"A complainant in equity, who, with full knowledge of his rights, has been guilty of long delay, without legal excuse, where another, as a practical result, has materially altered his position to his prejudice, so that it would be an injustice to render a decree in the complainant's favor, will be denied relief."
If appellant were to prevail in its contentions in this case it would have the fee simple title to said real estate at its present increased value without having paid any taxes since 1920 and without there being any lien for such taxes on said property. There is no fixed or definite rule for the application of the doctrine of laches but this would seem to be a peculiarly fitting case for the application of such doctrine if the appellant were right in his contentions.
The judgment is affirmed. *Page 687 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4058733/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-14-00924-CR
EX PARTE NII-OTABIL NELSON, Appellant
Appeal from the 182nd District Court of Harris County. (Tr. Ct. No. 1372073-A).
This case is an appeal from the order denying habeas relief signed by the trial court on
September 22, 2014. After submitting the case on the appellate record, the Court holds that the
trial court’s order contains no reversible error. Accordingly, the Court affirms the trial court’s
order.
The Court orders that this decision be certified below for observance.
Judgment rendered June 30, 2015.
Panel consists of Chief Justice Radack and Justices Higley and Massengale. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428870/ | Each of these cases is an appeal from an interlocutory order appointing appraisers to assess *Page 427
the damages of landowners by reason of the fee simple title 1. of lands in and near the channel of the Tippecanoe river having been appropriated for the purpose of being overflowed by waters impounded in a dam constructed to produce water power. Appellee, as plaintiff in each case, alleged in its complaint that it was incorporated under the act authorizing the formation of companies for the manufacture and sale of electricity for heating, lighting and power purposes to towns and cities and to the public, defining their powers, approved March 9, 1907, and the various acts amendatory thereof and supplemental thereto (§§ 5533 et seq. Burns 1926, Acts 1907 p. 277). That plaintiff was the owner of a damsite on the Tippecanoe river located on certain described lands, at which place it was proposing to erect a dam across the Tippecanoe river for the purpose of manufacturing electricity to be sold to towns and cities and to the public for heating, lighting and power purposes, and was taking steps toward the erection and completion of a dam and power house there, and intended in good faith to complete the dam and to enter upon the business of manufacturing electricity for said purposes. That the construction and maintenance of said dam would cause the waters of the river to overflow certain described portions of tracts of land which were alleged to belong to the defendants. And that the lands so sought to be appropriated and condemned are necessary and desirable for the carrying out of the said purposes for which plaintiff was organized. Each complaint also alleged that plaintiff, in good faith, had made an attempt to purchase the land in question from the defendant owners, but had failed to agree with them for its purchase, and that a plat of the land of defendants which would be affected was filed with such complaint as an exhibit. *Page 428
Appellants insist that even if the facts alleged be sufficient to establish plaintiff's right to appropriate these lands under the power of eminent domain, they only show it entitled to condemn an easement for purposes of overflowing the lands, and that the court was without jurisdiction to appoint appraisers to assess the damages upon taking a fee simple title. The statute under which plaintiff alleged it was incorporated provides that every corporation organized under its provisions for the purposes for which plaintiff is alleged to have been incorporated, "is hereby fully empowered and authorized to acquire, build, construct, own, maintain and operate all necessary and convenient lands, buildings, structures, dams, machinery, poles, wires and other things and devices, and to this end, to appropriate and condemn lands of individuals and private corporations, or any easement in such land necessary to the carrying out of its objects," etc. And that the appropriation and condemnation of lands and easements as therein authorized should be in the manner prescribed by the Eminent Domain Act of 1905. § 5540 Burns 1926, Acts 1907 p. 277, § 8. And said act of 1905 provides that upon the filing of a complaint in the form substantially as above set out, by any person, corporation or other body having the right to exercise the power of eminent domain for any public use, notice shall issue to the owner of the land sought to be appropriated, after which objections may be filed, that may include objections on the ground that the court has no jurisdiction either of the subject-matter or the person, or that plaintiff has no right to exercise the power of eminent domain for the use sought; and that, if such objections are overruled, the court, or judge, shall appoint appraisers as provided in the act. §§ 7680 etseq. Burns 1926, Acts 1905 pp. 59-62. And it appears from the record in each of these cases that such objections, and *Page 429
also objections on the ground it was not necessary to appropriate the fee simple title, were filed, and after an exhaustive hearing were overruled. Plaintiff being authorized by statute to appropriate and condemn lands "necessary to the carrying out of its objects," and issue having been joined on its authority to take the fee simple title of these lands as being "necessary" for its purposes, the trial court clearly had jurisdiction to decide the issue thus presented. And jurisdiction to decide includes jurisdiction to decide wrong, as well as right, subject only to review on appeal. Appellant's objections to the jurisdiction of the court are not well taken.
Appellants have not set out in their respective briefs a condensed recital in narrative form of the evidence given in the case, as required by the fifth subdivision of Rule 22 in 2. order to present in this court questions relating to the sufficiency of the evidence to sustain the decision, and no question is before us as to whether or not the proof showed the appropriation of the fee not to be necessary, or showed that plaintiff was seeking to condemn more land than was necessary to the carrying out of its objects.
All other questions presented are decided adversely to the contentions of appellant by the case of Lowe v. Indiana, etc.,Power Co. (1926), post 430, 151 N.E. 220. And on the authority of that decision each of these judgments must be affirmed.
The death of Scelnira Pingry, appellant in cause No. 24,418, having been suggested, the judgment in that case is affirmed as of the date of its submission. And the judgment in each of the causes numbered 24,455 and 24,456 is also affirmed. *Page 430 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428824/ | Clare Grubb, appellant herein, brought this action against Auburn Hotel, a corporation, and Rolland Muhn, appellees herein, to recover damages for personal injuries alleged to have been received due to appellees' alleged violation of Section 4441, Burns 1926, ch. 236, Acts 1911, p. 597. The appellant's amended complaint is as follows: "Comes now the plaintiff in the above captioned action, and for amended complaint against the defendants and each of them herein, jointly and severally avers and alleges:
"That on the 24th day of June, 1927, and for a long time prior thereto, and ever since said date, the defendants, Auburn Hotel, was and is a corporation, organized and existing under the laws of the State of Indiana, and as such owns, controls, operates and manages a hotel in Auburn, DeKalb County, Indiana.
"That on the 24th day of June, 1927, the defendant, Rolland Muhn, was and now is engaged in the business of general structural contracting in the State of Indiana and in and about Auburn, DeKalb County, Indiana.
"That at all the times herein mentioned, the plaintiff is and was a married man of the age of twenty-six (26) years and previous to the 24th day of June, 1927, was engaged in the business of electrical contracting in Auburn, DeKalb County, Indiana.
"Plaintiff further alleges that the defendant, Auburn *Page 674
Hotel, owns certain real estate in Auburn, Indiana, upon which it had erected and constructed a building wherein it now operates its said hotel; that some time previous to the 24th day of June, 1927, the date being to plaintiff unknown, said Auburn Hotel was engaged in having erected and constructed, an addition to its said building, said addition being three (3) stories in height above the ground level, and under which said addition there was and is a basement or excavation of said structure and the construction of said addition was done or being done by Rolland Muhn as general contractor for and on behalf of the defendant, Auburn Hotel; that on June 24th, 1927, said excavation had been completed and the framework of said structure or addition including the floor joists and the placing of rafters for the roof of said addition; that said defendants had exclusive management and control of the excavation for and the erection of said addition and all work and repair incident thereto.
"That on or about the 30th day of April, 1927, the defendant, Auburn Hotel, entered into a contract with this plaintiff, under the terms and provisions of which the plaintiff was to do the wiring for electrical fixtures and telephone service in said structure or addition. That the plaintiff had, previous to the 24th day of June, 1927, personally entered upon the performance of the work contemplated by said contract and was on and previous to said day and date engaged in and about his work and labors in said structure, and on each and every floor thereof, including said basement or excavation; that these facts were well known to the defendants and each of them, and could, and in the exercise of care, should have been known to them and each of them; that the defendants and each of them knew, or in the exercise of care could and should have known that plaintiff's labor and work as a workman in and about said *Page 675
structure and the basement thereof, required him to be on the various floors or stories of said addition, and defendants and each of them could and should have provided for staging or other protection for the benefit of the plaintiff, and could or should have required flooring or other protection be furnished and maintained on each and every story of said structure.
"Plaintiff further alleges that on the 24th day of June, 1927, the excavation for said addition had been completed and that a tier of steel beams or joists were placed above said excavation and upon which said tier of steel beams or joists a cement floor had been placed; that said tier of beams constituted the ceiling above said excavation and was the ground level of said structure or addition, and the first story thereof; that on said date there had been placed horizontally above said first story, a second tier of steel beams which were approximately three feet apart and which said second tier of steel beams was the second story of said structure; that on said second tier of steel beams there had been placed a covering known and described as metal lath, which said lath extended over the second floor and was insecurely and negligently attached to said steel trusses or joists on said second story; that said lath was hooked into said joists for the sole and exclusive purpose of pouring concrete or cement in and upon same and furnishing the means of holding and binding said cement or concrete to said trusses or steel beams until said concrete or cement dried and hardened; that said metal lath was light in quality and flimsy, and before being placed on said floor, had been exposed to the elements of weather; that said metal lath would not support the weight of an ordinary or average human body; that at said time and while said second story was prepared as aforesaid and before any cement or concrete was poured thereon, and without *Page 676
any flooring or protection being laid or maintained thereon, the third story of said structure or addition had been completely erected and constructed.
"Plaintiff further alleges that at the time mentioned, no flooring, staging or other protection was laid, maintained or provided on said second tier of beams, floor or story above said excavation as provided by law, except said metal lath, which said metal lath was insufficient as aforesaid; that it was the duty of the defendant, Rolland Muhn, as the general contractor of structure or addition, and required of him by law as such general contractor to provide and maintain flooring, staging or other protection on said second tier of steel beams, floor or story before commencing the erection of said third story; that it was likewise the duty of the defendant, Auburn Hotel, and by law required of it, to see and to require that such flooring, staging or protection be laid, maintained and furnished by its said general contractor, Rolland Muhn, before said general contractor erected or constructed said third story of said structure or addition.
"Plaintiff avers that on the 24th day of June, 1927, and while engaged in his work in said structure or addition, and as aforesaid, it was necessary for him to drill or bore a hole into one of the walls of said structure six feet above the tier of beams forming the second story or floor; that in order to reach the point on said wall where said hole was to be drilled, plaintiff was required to and did employ and use a stepladder for that purpose; that before using said stepladder, and before ascending the same, plaintiff nailed a board approximately three feet long and six inches wide to the front feet of said stepladder, which said board so nailed as aforesaid formed a step at the bottom of said stepladder; that plaintiff then rested said ladder against the wall at an angle of about seventy degrees upon one *Page 677
of the steel beams or joists on the second floor, and over said metal lath and nailed said board onto the wooden plugs placed in said beam to hold and secure the metal lath thereto attached; that plaintiff before using said stepladder tested the same and finding it secure, ascended to the third and fourth step thereof, being three or four feet above the tier of beams forming the second story or floor, and proceeded with his work, and while so engaged the stepladder upon which he was at work slipped backward, throwing plaintiff therefrom and onto the metal lath, which said metal lath tore and split from the weight of plaintiff's body, permitting him to fall through same and to the floor below as a result of which plaintiff sustained injuries to his mind and body, and as hereinafter fully stated.
"Plaintiff alleges that defendant, Rolland Muhn, unlawfully and in violation of law, erected said third story of said structure or addition without placing flooring, staging or other protection on the tier of beams of the second floor or story that no flooring or protection of any kind was placed on said second floor, as by law required; that no flooring, staging or protection of any kind was maintained upon said second story, all of which could and should have been done; that said metal lath was insufficient and unsuitable as a protection or flooring, and was not meant or intended as a floor or protection, but was intended for the use as aforesaid; that the defendant, Auburn Hotel, unlawfully and in violation of law, permitted and allowed its said general contractor, Rolland Muhn, to erect said third story without seeing and without requiring that flooring, staging or other protection be laid and maintained on said second floor or story, and unlawfully and in violation of law permitted and allowed the said contractor, Rolland Muhn, to erect said third story of said addition or structure without maintaining any flooring, *Page 678
staging or protection of any kind on said second story or floor, all of which could and should have been done.
"Plaintiff alleges that as a direct and proximate result of defendant's unlawfulness and violation of law as aforesaid, and without fault or negligence on the part of the plaintiff, he sustained severe, lasting and permanent injuries as follows." Here follows a description of the injuries and the prayer of the complaint, neither of which is necessary to be set out in this opinion.
To this amended complaint each defendant filed a demurrer for want of sufficient facts and each filed a memorandum with said demurrer. The second and third specifications of each memorandum are identical and are as follows: (2) "That facts stated in the amended complaint do not disclose any violation of any statutory duty on the part of this defendant owing by it to the plaintiff. (3) It appears from the allegations in the amended complaint that in the building in which the plaintiff was working at the time of his injury the floor had been constructed and laid one story below where plaintiff was working and that at the place where plaintiff was working there was not below him a height of more than two stories of said building or two tiers of beams which were not protected by flooring. There was therefore no violation of any statutory duty on the part of this defendant toward the plaintiff as the statute for the protection of workmen in dangerous occupations allows two stories or tiers of beams to remain unprotected during the work of construction of buildings. It appears from the allegations of the amended complaint that the fact that said building had a third story in process of construction in no way proximately caused or contributed to plaintiff's injury, it being alleged that he was working in and upon the tiers of beams of the second story of said building and fell *Page 679
from that position only to the floor of the first story."
The court below sustained each demurrer to which appellant excepted and refused to plead further, whereupon the court rendered judgment for appellees. From this judgment, the plaintiff appeals. The errors assigned and relied upon for reversal are: (1) The court erred in sustaining the separate demurrer of appellee, Auburn Hotel, to appellant's amended complaint; (2) the court errer in sustaining the separate demurrer of appellee, Rolland Muhn, to appellant's amended complaint; and (3) the judgment is contrary to law.
It is conceded by appellant that his amended complaint does not make a case entitling him to recover at common law and that it is based entirely upon an alleged violation of § 4441, Burns 1926, Acts 1911, ch. 236, p. 597, and especially an alleged violation of Section 2 thereof. It is also conceded that the appellant was an independent contractor, employed by the owner of the real estate to place wires for electric and telephone service in a three-story building in the course of construction. Appellee Rolland Muhn was the general contractor in the construction of said building, but did not have the contract to do the work which appellant was employed to do.
The sole question presented by the first five specifications in the memorandum filed with each demurrer is whether or not the appellant, an independent contractor, employed by appellee, Auburn Hotel, owner of the building in question, to place wires for electric and telephone service in a three-story building in the course of construction, is entitled, under his amended complaint, to maintain an action and to recover damages from such owner or from the general contractor because of personal injuries sustained by him while engaged in doing such wiring work, as an independent contractor, through the alleged failure of both the *Page 680
owner and the general contractor to obey the provisions of § 4441, supra, and especially Section 2 thereof.
The section in question is as follows: "It shall be unlawful . . . to begin the erection of any floor or story above the secondstory or floor from the ground or excavation until a flooring,staging or protection shall have been laid or placed on thesecond tier of beams or story from the excavation or ground level or to continue the erection or construction of such building more than two stories or tier of beams above such flooring or protection. Flooring, staging or protection shall at all times be laid and maintained to within the second story orfloor below where workmen are engaged, and in no instance, shall workmen be employed more than twenty-five feet above any
flooring, staging or protection." (Our italics.)
It clearly appears from the amended complaint that the appellant at the time of his injury was attempting to bore a hole in the wall about six feet above the floor of the second story of the building under construction and that for the purpose of reaching the point where he was intending to work, he had placed the top of a stepladder against the wall with its feet resting on one of the steel beams or girders which were to carry the floor of the second story and had ascended the ladder to a point three or four feet above the beam or girder when the stepladder slipped and he fell through the opening between the beams to the permanent cement floor of the first story of the building; that the place where the appellant was working and from which he fell was entirely within the second story of the building; that there was no temporary floor in the second story. It is admitted that the distance from the cement floor to the beams or girders above from which appellant fell was much less than twenty-five feet.
Appellant contends that although there was a permanent *Page 681
cement floor immediately above and forming the ceiling of the basement and also the ground floor and first floor, yet the statute required a temporary floor in the second story or the next above such permanent floor. If the statute requires such a temporary floor, then the ruling of the court below is erroneous in sustaining each demurrer, unless the sixth specification in the memorandum of demurrer of appellee, Auburn Hotel Company, which we consider later is availing. We are of the opinion that the ruling of the lower court is correct upon the two specifications in the demurrers above set out.
There may be some ambiguity of expression in Section 2 of the act, but when the entire act is considered, as it must be, it is clear that it requires flooring, staging or protection to 1. be provided at every other floor as the building progresses and permits every other floor to be open, provided, however, the space between such floors does not exceed more than twenty-five feet. If this construction of the act is correct, it necessarily follows that the complaint does not bring the case within the statute since the next story below the one in which appellant was working was floored with a permanent cement floor and he fell, therefore, through only one open floor.
The legislative intention is to be kept in view in construing and applying a statute. This legislative intent, however, is to be ascertained by an examination of the whole, as well as 2-4. the separate parts of the act and when so ascertained, the intention will control the strict letter of the statute or the literal import of particular terms or phrases.Steiert v. Coulter et al. (1913), 54 Ind. App. 643, 102 N.E. 113, 103 N.E. 117.
When all of the provisions of the act are considered, it is manifest that it was the intention of the legislature *Page 682
to require temporary floors or protection at every other floor of the building under construction, and that it is not a violation of the act to leave every other floor open.
The act requires the flooring or protection to be placed on the second tier of beams from the ground level or excavation. The first tier of beams from the ground level would be the 5, 6. beams constituting a part of the floor of the second story and the second tier of beams from the ground level or excavation would be the tier of beams constituting a part of the floor of the third story. We are aware that the word from
may be construed to include the starting point. To hold that it is used in the inclusive sense in this statute would be equivalent to construing the act to require a floor or protection at the floor of the second story of the building, something that is not required anywhere else throughout the construction of the entire building. It cannot be doubted that after the third story is reached, the builder is required to provide protection only at each alternate floor, unless the space between such floor is greater than twenty-five feet. The fair construction of the act upholds the contention that the word from was used in the exclusive sense and that it excluded the starting point, which is the ground floor in the instant case. The word from is a term of exclusion, unless by necessary implication it is used in a different sense. From an object excludes the terminus referred to. That construction is the plain and ordinary use of the word. See State v. Bushey (1892), 84 Me. 497, 24 A. 940; Wells
v. Jackson Iron Mfg. Co. (1869), 48 N.H. 491, 538.
Appellant, in his brief, concedes that the place from which he fell was only about fifteen feet above the permanent cement floor. His amended complaint contains *Page 683
no allegation that he was working more than twenty-five feet above the permanent cement floor upon which he fell.
Having arrived at the conclusion that appellant's complaint fails to state a cause of action against either of the appellees as tested by said specifications numbered 2 and 3, we are not called upon to decide as to its sufficiency as to appellee Auburn Hotel, as tested by the sixth specification of its demurrer.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428826/ | In 1931 the Superior Court of Marion County appointed a receiver for the Pennsylvania Thirteenth Realty Company at the suit of a preferred stockholder, who alleged default in the conditions of the preferred stock agreement. The company has been in the hands of a receiver since that time. It is not insolvent. It seems to have been made to appear to the court that the holders of preferred stock would demand a liquidation of the assets of the realty company and a sale of its property under the terms of the preferred stock agreement. The record shows that the court appointed a reorganization committee to work out a plan for reorganizing the corporation to be submitted to the stockholders for approval. A plan was developed and submitted to the stockholders and approved by more than 75 per cent. of the preferred stockholders. *Page 361
A petition was filed with the court asking approval of this reorganization plan. The appellant, a preferred stockholder, appeared and filed objections to the plan, and a cross-complaint seeking a declaratory judgment, declaring the plan illegal and the court to be without jurisdiction to approve. There was a change of venue, a trial, and judgment approving the plan as fair and equitable and denying relief upon the cross-complaint. From this judgment the appellant has appealed.
Certain of the appellees have moved to dismiss the appeal upon the ground that the order appealed from is not a final judgment, but in oral argument at the bar of this court the appellees have expressed a desire that the case be decided upon the merits.
We know of no authority under which courts in this state have jurisdiction to judicially supervise or approve plans for the reorganization of corporations.
The State and Federal Securities Acts (section 25-833 Burns' 1939 Supp. and 15 U.S.C.A. 1938 Supp., § 77c (a) 10) exempt from filing and registration reorganization plans which have been approved by a "court of competent jurisdiction," or a court "expressly authorized by law to grant such approval." We are not concerned here with whether the Securities Acts attempt to vest courts in this state with ministerial jurisdiction to approve such plans. The approval of the reorganization plan in the case at bar is a merely incidental matter, which does not affect the rights of the appellant, since he seems to have elected not to participate in the reorganization.
The record does not disclose the fact, but we are told at the bar, that a demand for liquidation of the assets of the company was contemplated, and that some of the stockholders, both preferred and common, had indicated a desire to organize a new company and bid *Page 362
upon property of the corporation when it was offered for sale. It seems to have been at their suggestion that the court appointed the committee that worked out the plan. By the terms of the plan, representatives of the stockholders who will become interested in the new corporation will bid upon the property when it is offered for sale in the ordinary manner. If they are the successful bidders it is contemplated that they will pay to the receiver in cash a sufficient sum to pay the court costs and the distributive share of the proceeds of the sale which is allocable to those stockholders who are not participating in the reorganization. It is assumed, of course, that the property will be appraised before sale and that the court will exercise the usual discretion in determining whether the amount offered is a fair and reasonable price for the property. In this there is nothing novel. It is quite common when property is sold in partition proceedings or other judicial proceedings, where some of those who are entitled to the proceeds desire to bid upon the property, to provide by an informal arrangement, which is informally approved by the court, that, in the event interested parties are the successful bidders, they may pay in cash an amount sufficient to pay the costs and the distributive share of those interested parties who are not bidders, and merely receipt for their own distributive share. We see in the proceedings here nothing more than such an informal arrangement in so far as the appellant is concerned. With the effect of the approval of the reorganization plan under the Securities Acts, the appellant has no interest and we have no concern here.
If it is made to appear that there is default in the preferred stock obligation which entitles the stockholders to an order for the sale of the property, and *Page 363
the property is regularly ordered sold after an appraisal, and bids are received, and the high bidder is the group which is reorganizing the corporation, and the amount of the bid is fair and reasonable, and they tender an amount sufficient to pay the distributive share of those who are not participating in the reorganization, together with the costs, we see no reason why their bid should not be approved or why they should not be permitted to become the purchaser. Any question as to the fairness or regularity of such a sale must arise when the sale is attempted.
The order complained of here, although it is in the form of a judgment, does not in any way affect the substantial rights of the appellant. It is not a judgment. The appeal is therefore dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428827/ | The appellee sued appellant and appellee Bankers Life Company of Des Moines, Iowa. The suit grew out of a collision between a "mail truck" driven by appellee Truex and an automobile driven by appellant. At the time of the accident appellant was employed by appellee Bankers Life Company of Des Moines, Iowa. The matter was submitted to a jury who found in favor of Bankers Life Company of Des Moines, Iowa and in favor of appellee as against appellant.
There are but two questions raised by the brief of appellant:
1. That appellee's attorney was guilty of misconduct prejudicial to appellant.
2. That the appellee was guilty of contributory negligence as a matter of law.
During the trial counsel for appellee called appellant to the witness stand and questioned him with reference to his connections with the Bankers Life Company of Des Moines, Iowa. The questions asked pertained to the ownership of the car, by whom payment was made for gasoline, oil and repairs, and whether or not appellant used the car in soliciting insurance and collecting premiums. While the defendants had by answer admitted that the appellant was employed by the Bankers Life Company of Des Moines, Iowa, it was specifically denied that he was acting in the furtherance of the business of the Bankers Life Company of Des Moines, *Page 21
Iowa at the time of the collision. In the course of this examination of appellant this question was asked: "Don't answer this question until they object, if they desire. Mr. Snider, I will ask you whether or not on October 15, 1937, the Bankers Life Company carried a policy insuring against public liability and property damage, the automobile described as the Plymouth which you say you operated both for business and for pleasure." Objection was made and sustained.
The appellant then moved to withdraw the case and discharge the jury for the reason that the asking of the question constituted prejudice which could not be removed by instruction.
From the record we feel that appellee's attorney was attempting to show the relationship of the defendants in order to make a case against the Bankers Life Company of Des Moines, Iowa. 1. If the codefendant carried the insurance on the car, paid for the gasoline and oil that it burned or paid for its repairs, certainly each would have been some evidence that appellant was acting in the furtherance of his master's business at the time of the collision. The authorities cited and relied on by appellant, to-wit: Martin v. Lilly (1919), 188 Ind. 139, 121 N.E. 443, and Helton v. Mann (1942), 111 Ind. App. 487,40 N.E.2d 395, are not controlling. In each of the above cited cases, the record plainly disclosed the misconduct and that it was prejudicial to the complaining party, while in the instant case the inquiry concerned the relationship of the parties. Under appropriate circumstances, this inquiry may be permissible, and in this instance we can see no error. McDonald v. Swanson
(1937), 103 Ind. App. 171, 1 N.E.2d 684.
The remaining question necessitates an examination of the evidence of appellee on cross-examination. The *Page 22
appellant puts stress on the evidence adduced from appellee 2. on cross-examination, wherein the appellee stated that he saw appellant's car coming toward the intersection but that appellant was looking to his right and not ahead toward the intersection and as far as appellee knew the appellant never did look ahead to the intersection. The cross-examination also disclosed that appellee blew his horn once, and kept on with his business of driving, but that he sort of glanced at appellant's car and concluded he had sufficient time to get through the intersection before appellant reached it. The appellant claims that this evidence coming from appellee makes the appellee guilty of contributory negligence as a matter of law. The burden of proving contributory negligence was on appellant. § 2-1025, Burns' 1933, § 129, Baldwin's 1934.
The evidence of appellee on direct and cross-examination contains many conflicts and contradictions, and when you also consider that appellant himself, while testifying, denied 3. that he was looking to the right and away from the intersection, then it is difficult to see how we can say as a matter of law that the appellee was guilty of contributory negligence. In Buehner Chair Co. v. Feulner (1905),164 Ind. 368, 373, 73 N.E. 816, 817, this court said:
"It is only where there is no dispute as to the controlling facts, and no room for different conclusions upon the part of reasonable minds as to the question of contributory negligence, that it becomes a question of law for the court."
In Diamond Block Coal Co. v. Cuthbertson (1906),166 Ind. 290, 299, 76 N.E. 1060, 1062, 1063, the appellant made the same claim as in the instant case, that the evidence of appellee proved contributory negligence as a matter of law, but this court decided against that *Page 23
contention. There this court, paraphrasing their contentions, said:
"They do not ask that we weigh the evidence, but that we consider the testimony given by appellee as a witness on the trial, and then apply the law to the facts sworn to by him, and thereby determine the question of his contributory negligence."
In the case of Lincoln Nat. Bank Trust Co. v. Parker
(1941), 110 Ind. App. 1, 8, 34 N.E.2d 190, 192, 193, that court in discussing a question similar to the one at hand said:
"When this court says that it will not weigh evidence or determine the credibility of witnesses, it does not mean, only, that it will not weigh the testimony of one witness as against the conflicting testimony of another witness. It also means that it will not weigh one portion of the testimony of a witness as against another portion of conflicting testimony of the same witness. If a particular witness, while testifying, makes assertions that are contradictory, this court, on appeal, will not determine which of the assertions are true."
On an appeal, when the sufficiency of the evidence to sustain a verdict is questioned, the court must consider only the evidence most favorable to appellee, excluding all conflicting 4-6. evidence favorable to appellant. It is for the jury to reconcile, to reject, or accept part of disputed or confusing testimony even when made by the same witness and that witness is a party to the action. This court will not weigh the evidence. Monfort v. Indianapolis, etc., Traction Co. (1920),189 Ind. 683, 686, 128 N.E. 842, 843.
Applying these rules of law to the evidence, we feel that appellant has shown no error.
Judgment is affirmed.
NOTE. — Reported in 51 N.E.2d 477. *Page 24 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428829/ | This action was instituted by Theressa Faust, Executrix, against the Baltimore and Ohio Railroad Company to recover damages for the death of John H. Faust, alleged to have been caused by the defendant's negligence.
John H. Faust had been employed by the defendant in its railroad yards at Garrett, Indiana, for several years. In addition to other duties, he was required to assist in icing refrigerator cars. These cars were supplied with ice from an ice-house located in defendant's yards. The work was done by several workmen who dragged the ice out of the ice-house to a platform nearly level with the tracks; thence they moved it up an inclined chute to another platform which was on a level *Page 437
with the top of the cars and from which the ice was placed in the cars through openings in the roof. The workmen pushed the blocks of ice up the chute as far as they could reach by the use of poles or handles, to the ends of which were attached metal hooks; and a man on the elevated platform would pull the ice-blocks the rest of the way with his ice-hook. On the night he received his injury, Faust and his fellow workmen had been ordered to ice a certain car designated as "B. O. No. 14383." In pushing the ice up the chute, two of the workmen stood on the lower platform, one on either side of the chute. Another workman stood on the upper platform and by striking his ice-hook into the top of a cake of ice assisted by pulling it upon the platform. Faust was on one side of the chute at the lower platform. When a cake of ice neared the top of the chute, in some manner, the men lost control of it. It slid back down the chute and struck Faust on the chest, thereby seriously and fatally injuring him.
It is averred in the complaint that the car which Faust was assisting to ice had been selected and assigned by the defendant for use in hauling freight and merchandise originating in the State of Indiana and consigned to and destined for a place in another state of the United States; that the car had been assigned by the defendant, and was then being prepared by it, for use in hauling merchandise and freight as above described; that the car was being iced in order that it might be used as aforesaid; and that therefore the plaintiff's decedent was employed in interstate commerce and traffic by rail.
The complaint also charges that the defendant carelessly and negligently failed to furnish and provide for use in the performance of the work safe, suitable and adequate hooks for handling the blocks of ice; and carelessly and negligently provided, furnished and used in *Page 438
the work hooks of soft metal with dull points and loose and shaky handles, so that it was difficult, if not impossible, to secure a firm hold on the block of ice; and carelessly and negligently failed and neglected to examine, inspect and keep in a reasonably safe and suitable condition the hooks used in the performance of the work; and carelessly and negligently failed to get a secure hold on the heavy block of ice and to hold the block after it had been shoved partially up the inclined way.
The following facts were adduced in evidence in the form of stipulation signed by counsel for each party:
"That on July 21, 1921, George Freese's Sons of Nappanee, Indiana, requested of defendant's station agent at Nappanee, Indiana, an iced refrigerator car to be furnished at Nappanee to be loaded for shipment to Pittsburgh, Pennsylvania; that defendant's agent at Nappanee communicated the request of the defendant's car distributor at Garrett, Indiana; that pursuant to the request refrigerator car No. 14383 was iced at Garrett by the crew of car inspectors in which John Faust was employed; that after being iced it was placed the next morning in a local freight train and billed to the defendant at Nappanee for the purpose of being delivered to George Freese's Sons in compliance with their request; that when the car reached Albion, Indiana, the draw bar broke, making it impossible to move the car further and it was returned to defendant's shops at Garrett next day for repairs; that the car was never delivered to George Freese's Sons but in lieu thereof another car was sent the shipper by extra train; that the substituted car was loaded by George Freese's Sons with butter and eggs and on July 23, 1921, consigned to the customer at Pittsburgh, Pennsylvania, and transferred to its destination."
Nineteen interrogatories were answered by the jury. *Page 439
The first eight relate to Faust's familiarity with the kind of work he was doing at the time of the accident. These answers show that he had been employed as car inspector for several years; that one of his duties was to help ice refrigerator cars; that he had regularly assisted in icing cars at the ice-house; that the ice-house and platforms around it had been in use for several years; that the arrangement of the ice-house and platforms had not changed for several years; that he had helped a great many times to ice cars; that he and other workmen had used the same tools and equipment in icing cars that they were using at the time of the accident; and that the elevated platform was seven feet and seven inches above the lower platform. The remaining interrogatories relate to the ultimate question whether Faust was engaged in interstate commerce and the answers followed the stipulation above set forth.
Trial resulted in a verdict for the plaintiff in the sum of $20,000, on which judgment was rendered. The errors relied on for reversal are (1) overruling the motion for judgment on interrogatories and (2) overruling the motion for a new trial.
Under the first assignment of error, the appellant contends that the answers to the interrogatories show (1) that the workman assumed the risk and (2) that he was not engaged in 1, 2. interstate commerce at the time of the accident. We cannot sustain either contention. The answers to the interrogatories do not show that the workman knew and appreciated the danger and then continued in the dangerous position.Pennsylvania Co. v. Stalker, Admx. (1918), 67 Ind. App. 329. Nor do the answers to the interrogatories preclude the legitimate conclusion that the workman was engaged at the time of the accident in interstate commerce. 18 R.C.L. 850 et seq.; NewYork, etc., R. Co. v. Carr (1915), 238 U.S. 260, *Page 440
59 L. Ed. 1298. The answers to the interrogatories are not in irreconcilable conflict with the verdict.
Under the second assignment of error, the appellant contends that the verdict is not supported by sufficient evidence, that certain instructions given are erroneous, and that certain instructions requested should have been given. We have carefully considered these contentions and we are of the opinion that there is no reversible error presented. The law applicable to the various phases of this case is well settled and a more extended discussion is unnecessary.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428830/ | ON PETITION FOR REHEARING.
Appellant in support of its petition for a rehearing contends that we failed to consider its contention that appellee's decedent at the time of his injury was not engaged in interstate commerce. Having stated the facts as disclosed by the evidence our holding that the answers of the jury to the interrogatories did not preclude the legitimate conclusion that the decedent was engaged in interstate commerce, necessarily was a holding that the evidence was sufficient to sustain the verdict on the theory that he was engaged in interstate commerce, as there could be no recovery except upon that theory.
Appellant in effect concedes that if the car in question had after the decedent's injury been delivered to the shipper at Nappanee and loaded with freight for shipment to another 3. state, the deceased would have been engaged in interstate commerce at the time he was injured. It contends, however, that because the car became disabled and another was substituted in its place, the deceased was not employed in interstate commerce when injured. We cannot agree with this contention. The test to be applied in cases *Page 441
of this kind is, "Was the employee at the time of the injury engaged in interstate transportation, or in a work so closely related to it as to be practically a part of it?" New YorkCentral R. Co. v. White (1917), 243 U.S. 188, 61 L. Ed. 667;Erie R. Co. v. Welsh (1916), 242 U.S. 303, 61 L. Ed. 318.
A switchman who turns the switch that passes a car from the repair shop to the main track to take its place in interstate commerce is engaged in interstate commerce. Suppose such switchman, and the engineer and fireman on the locomotive which was drawing the car and which was on its way from the round-house to draw a train loaded with freight in interstate commerce, should be injured or killed, could the railroad evade liability under the Federal Employers' Liability Act by withdrawing the locomotive from service and substituting another in its place? We think not. The car in question had been set aside for use in interstate transportation. It had been iced and started on its way to be loaded. It was in transit for use in interstate business and the fact that it was later taken out of service and another substituted did not change the character of the work which had theretofore been performed in icing it and getting it ready for the intended use.
Appellant was engaged in interstate commerce. This being true, we are only concerned with the nature of the decedent's work at the time of his injury. The Supreme Court of the United States inPedersen v. Delaware, etc., R. Co. (1913), 229 U.S. 146, 57 L. Ed. 1125, in discussing a similar question, said: "Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in *Page 442
the nature of a duty resting upon the carrier?" And, after calling attention to the contention that interstate commerce can be separated into its several elements, and the nature of each be determined, regardless of its relation to the business as a whole, the court said: "But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"
Appellant, in the instant case, was preparing a car for use in interstate commerce. It had set the particular car aside for use in that business. The decedent was preparing that car for 4. that particular business. The icing of the car was necessary to its use in that business. As was said inLloyd v. Southern R. Co. (1914), 166 N.C. 24, 35,81 S.E. 1003, 7 N.C.C.A. 520: "His work was done in a preparatory stage of interstate commerce, but was none the less part of it." SeeArmbruster v. Chicago, etc., R. Co. (1924), 166 Iowa 155, 147 N.W. 333, where an employee was coaling an engine preparatory for service in hauling freight from one state to another. We hold the decedent at the time of his injury was employed in interstate commerce.
Appellant contends the court erred in giving instruction No. 9. The contention is that this instruction stated that the mere fact that the tools used by the decedent were defective was proof of negligence. But we do not think the instruction is subject to this objection. This instruction told the jury that appellant was only required to exercise ordinary care to furnish tools reasonably safe for the use of which they were intended, and the same idea was expressed in instruction No. 8. When the whole of instructions Nos. 8 and 9 are considered, appellant's contention cannot be sustained.
Appellant says it also "questioned the ruling of the court in allowing the appellee to prove certain issuable *Page 443
facts by the opinion of witnesses." We are of the opinion, however, that no reversible error is shown in the admission of the evidence of which complaint is made.
The decedent had been in appellant's employment a number of years. When injured, he was fifty-one years old, healthy, industrious, and of good habits. He was earning about 5. $2,100 a year, all of which was expended for the support and maintenance of his family, which consisted of himself, his wife and four sons, ranging in ages from twelve to twenty years. While the amount of the verdict is quite substantial, we are not prepared to hold as a matter of law that it is excessive.
Petition for rehearing denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428831/ | The appellant was charged by indictment with a violation of the liquor law. The charging part of the indictment is as follows: "That Henry Slick and Mary Slick, on or about the 27th day of May, 1923, at and in the county of Marion, and State of Indiana, did then and there unlawfully manufacture, transport, sell, barter, exchange, give away, furnish, and otherwise dispose of intoxicating liquor to persons to the grand jury unknown. * * *"
On a plea of not guilty, defendants were tried by the court without a jury. The defendant Mary Slick was acquitted and appellant, Henry Slick, convicted and the court fixed his punishment at a fine of $200 and costs and imprisonment on Indiana state farm for a period of sixty days.
Appellant appeals from this judgment and assigns as error that the court erred in overruling his motion for a new trial. The reasons alleged in said motion for a new trial are: (1) The finding of the court is contrary to law; (2) the finding of the court is not sustained by sufficient evidence. No other question is presented under the assignment of errors. *Page 552
The evidence shows that appellant was arrested on May 25, 1923, by a lieutenant of police at his home on Rural Route E at his farm house, and at the time of the arrest both defendants, Henry and Mary Slick were together in their home. On a search by the officers they found three five-gallon jugs of white mule whisky buried in the ground about forty yards from the house; a quart bottle of white mule whisky upstairs in the house; three empty five-gallon jugs and twelve pints of home-made beer and some wine. The officers testify that the wine was intoxicating; that it contained sixteen and forty-three one-hundredths of alcohol. The ground on which the white mule whisky was found buried was in an open space on vacant land in plowed ground.
The officer testified that Mrs. Slick said she had made the so-called wine containing a little of everything; that he dumped it out of the back door. A quart of white mule was found upstairs in the window of appellant's house. This testimony of the officer who made the arrest was disputed by the defendants, Henry Slick and Mary Slick. The defendant Henry Slick, said that the wine was just oranges and lemons and that was about all you could make out of it; that it had been made only two days and had no yeast and no alcohol in it. But Jones testified that the so-called wine was in a large container and that Mary Slick said she had made it, but didn't know how long it had been made. Jones also testified that the beer was intoxicating. Jones testified that Mrs. Slick said she made the beer, twelve pints and it was home-made beer. Mrs. Slick denied this testimony and said she didn't say so.
It will be observed that the indictment in this case charges the unlawful manufacturing, transporting, selling, bartering, exchanging, giving away, furnishing and otherwise disposing of intoxicating liquor. The evidence shows that Mrs. Slick threw down a bottle said *Page 553
to contain intoxicating liquor and thus broke it. The appellee claims that the destruction thereof is prima facie evidence that the contents of the receptacle consisted of intoxicating liquor intended for unlawful sale.
The state further claims, "that it is not necessary for the state to prove that the liquor was found on premises actually owned by the appellant. If the presence of the whisky, in 1. connection with other circumstances indicating commission of the offense charged was sufficient to support an inference that appellant was in the possession of intoxicating liquor for the purpose of selling it, the judgment of the trial court should not be disturbed." But it must be borne in mind that the indictment in this case does not charge the defendant with being in possession of intoxicating liquor with the intent to sell, barter, exchange, give away, and otherwise dispose of it. It will also be observed that the act under which this prosecution was commenced, being ch. 23, Acts 1923 p. 70, does not make it an offense to have the possession of intoxicating liquor with the intent to sell, barter, exchange, give away and otherwise dispose of the same. Smith v. State (1924),194 Ind. 686. Therefore §§ 28 and 29 of ch. 4 of the Acts of 1917, cannot apply. At the time of this prosecution, the mere possession of intoxicating liquor was not criminal. Crabbs v.State (1923), 193 Ind. 248; Smith v. State, supra.
There is no evidence tending to show that the appellant did sell, barter, exchange, give away, furnish, or otherwise dispose of intoxicating liquor. The act under which this 2, 3. prosecution was brought did make it an offense to manufacture intoxicating liquor. There is no evidence anywhere in the record that the defendants or either of them had in his or her possession any still for manufacturing distilled liquor and no fact or facts are proved from which such *Page 554
manufacture by the appellant could reasonably be inferred. There is some evidence tending to show that appellant had in his possession intoxicating wine and home-made beer and some evidence tending to show that he made the wine or assisted in the manufacture thereof.
In considering whether the evidence sustains the finding of the court, we must consider only the evidence most favorable to the prevailing party. In this case, the prevailing party is the state. While the evidence that the appellant made or assisted in making intoxicating wine is meager, yet, it is some evidence. Under the rule prevailing in this court, it is sufficient evidence. We must therefore hold that there is evidence sufficient to sustain the finding of the court.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428833/ | Appellees are either full brothers and sisters or children of deceased full brothers and sisters, and appellants are half-brothers and half-sisters of Lou M. Gray, deceased.
The questions presented on this appeal are in connection with the following provisions of decedent's will:
"5. I desire that all my other property of every kind and character whatsoever be held by my Executor in trust for the period of five (5) years from the date of my death. He shall collect in all income from such property and at one (1) year periods from the date of my death, shall divide such income equally between the following named persons:
J.M. Sipe, of Chicago, Illinois, D.C. Sipe, of Muncie, Indiana, Edward Sipe, of Muncie, Indiana, Mrs. C.C. Calvert, of St. Joseph, Missouri, Mrs. Anna Cadwallader, of Muncie, Indiana, Mrs. Allie Dragoo, of Muncie, Indiana.
"6. In the event of the death of any of the parties above named during the five-year period, the share of such party of the income above mentioned, shall go to the heirs of such party provided, however, that in the event of the death of D.C. Sipe, during such period, his share shall be equally *Page 569
divided among the other parties mentioned in the above paragraph, rather than go to his heirs.
"7. It is my desire that the expiration of such five (5) year period the Trustee will divide all such property equally among the following named persons:
J.M. Sipe, of Chicago, Illinois, D.C. Sipe, of Muncie, Indiana, Edward Sipe, of Muncie, Indiana, Mrs. C.C. Calvert, of St. Joseph, Missouri, Mrs. Anna Cadwallader, of Muncie, Indiana, Mrs. Allie Dragoo, of Muncie, Indiana.
"And in the event any of such persons has died, his or her share shall go to his or her heirs provided, however, that in the event D.C. Sipe is not living at such time, then his share will be divided equally among the other parties herein named, but no part of such shall go to his heirs."
Appellees are the persons mentioned in the above-quoted provisions of the will who survived the testatrix and the children of those mentioned who died prior to the death of the testatrix. Appellants are not mentioned in the will.
Appellants contend that the above provisions create a trust which suspends the absolute ownership of personal property in violation of § 51-101, Burns' 1933, § 13221, Baldwin's 1934; that these provisions are invalid; that the testatrix died intestate as to all property mentioned in said provisions; and that said property passes by the laws of descent to the heirs of the testatrix including appellants. Personal property only is involved.
Section 51-101, Burns' 1933, § 13221, Baldwin's 1934, reads as follows:
"Suspension of ownership — Limitation. — No limitation or condition shall suspend the absolute ownership of personal property longer than till the termination of lives in being at the time of the *Page 570
execution of the instrument containing such limitation or condition, or, if in a will, of lives in being at the death of the testator."
The trial court decided that the involved provisions of the will are valid. All questions raised by appellants are properly presented under their assignment that the trial court erred in overruling their motion for a new trial.
Since appellants would not be in position to question the validity of any of the provisions of the will unless they are parties in interest, the first vital question presented 1, 2. is whether items 5, 6, and 7 of the will constitute and create such a single, entire, inseparable, and indivisible trust scheme as would invalidate the provisions of item 7 if the trust itself is invalid. Such a result would lapse the bequests so that the property would go to appellants, among others, by the law of descent.
Appellants contend that the duty of the trustee to divide the property at the end of the five-year period of the trust is an inseparable part of the entire trust scheme, and that the persons to whom distribution is to be made cannot be ascertained until the period of five years has expired.
On the other hand, appellees contend that the testatrix intended to give her property to the named brothers and sisters or to their heirs in case of their death, subject only to the postponement of its custody and control for five years; and that if the trust should be invalid, the provisions creating it would be stricken out and the provisions of item 7 would be given effect and would be accelerated into present possession.
In construing a will, the primary rule to which all others must bend is that the testator's intent, as expressed *Page 571
in the will, must prevail, unless it offends against public 3. policy or a positive rule of law. Hutchinson's Estate v. Arnt, Admx. (1936), 210 Ind. 509, 518, 1 N.E.2d 585, 4 N.E.2d 202; Reeder v. Antrim (1917), 64 Ind. App. 83, 110 N.E. 568, 112 N.E. 551.
A will should be construed to prevent intestacy if it can be done without doing violence to the intent of the testator. Swain v. Bowers (1929), 91 Ind. App. 307, 319, 158 N.E. 4. 598; Billings v. Deputy (1926), 85 Ind. App. 248, 146 N.E. 219.
It is the settled rule that when the striking of an invalid part results in defeat of the main and dominant purpose of the testator, incidental provisions, which constitute with it 5. the entire testamentary scheme, must fall with it. Phillips v. Heldt (1904), 33 Ind. App. 388, 71 N.E. 520.
Conversely, it is the settled rule that where the testator's dominant intent is legal and valid, an invalid, separable, incidental provision will be stricken out, and the 6. provisions carrying out the dominant intent of the testator will be sustained. Quilliam v. Union Trust Co. (1924),194 Ind. 521, 528, 142 N.E. 214; Reasoner v. Herman (1922),191 Ind. 642, 134 N.E. 276; Fowler v. Duhme (1895),143 Ind. 248, 42 N.E. 623; Warner, etc., Adms. v. Keiser, etc., Exrs.
(1931), 93 Ind. App. 547, 177 N.E. 369; Vaubel v. Lang
(1924), 81 Ind. App. 96, 103, 140 N.E. 69; Reeder v. Antrim
(1916), 64 Ind. App. 83, 97, 110 N.E. 568, 112 N.E. 551.
Applying the above rules, we think it clear that the testatrix in the present case intended to give the property described to her named brothers and sisters or to the heirs of those 7, 8. named who pre-deceased her. She made her gift subject to a prior five-year *Page 572
trust, but that provision is, we think, incidental to her dominant purpose, that the persons named in item 7 should be the eventual absolute owners of her property.
The words of survivorship in item 7 of the will relate to the date of the death of the testatrix, and the persons referred to were definitely ascertainable at that time. Aldred v.Sylvester (1916), 184 Ind. 542, 111 N.E. 914; Quilliam v.Union Trust Co., supra; O'Brien v. Clarke (1936),102 Ind. App. 421, 200 N.E. 92; Kepert v. Kepert (1923),79 Ind. App. 633, 134 N.E. 297.
The provision creating the trust, if invalid, may be stricken, and the valid provisions left without doing violence to the intent of the testatrix and without offending public policy or any positive rule of law. The mere fact that the executor is charged with the division of the property among the named legatees at the end of the five-year period does not make the provision for final distribution such an inseparable part of the trust scheme as to render it invalid. The duty so placed upon the executor, except as to point of time, is no different than his duty with that provision stricken.
Both this court and our Supreme Court have had presented the question as to the effect of provisions suspending the power of alienation of real estate, invalid under our statute against perpetuities. § 56-142, Burns' 1933, § 14700, Baldwin's 1934. In each of the following cases, wherein the testator sought to suspend the power of alienation for a term of years in violation of our statute, the invalid provisions were stricken and the valid provisions permitted to stand upon the application of the same rules we have here discussed. Quilliam v. Union TrustCo., supra; Fowler v. Duhme, supra; Reeder v. Antrim, supra;Vaubel v. Lang, supra.
We think these rules apply with equal propriety to a provision which violates the statute here involved. Even *Page 573
though the provision in the will before us creating the five-year trust be invalid, the provision for final distribution of the bequeathed property would stand accelerated into present possession; and appellants would not inherit under the laws of descent.
The rule relating to the acceleration of interests in such cases is well expressed in Restatement of The Law of 9. Property, § 236, p. 1003, as follows:
"When an attempted prior interest fails because it is a trust interest limited to last for a duration not permitted by applicable law, then, in the absence of a manifestation of a contrary intent, (a) except as stated in Clause (b) the succeeding interest is accelerated in favor of the person described in the limitation as entitled thereto ascertained in accordance with the facts existing at the time when the attempted prior interest, if valid, would have become a present interest; and (b) if the succeeding interest is otherwise effectively created subject to a condition precedent not fulfilled at the time when the attempted prior interest, if valid, would have become a present interest, the succeeding interest is accelerated as soon as such condition precedent is fulfilled in favor of the person described in the limitation as entitled thereto, ascertained in accordance with the facts then existing.
"a. Rationale. In cases which come within the rule stated in this Section, the conveyor has manifested a plan of disposition which is prevented from complete efficacy by his failure to create a trust with the restricted duration required for it by the applicable law. The inevitable disturbance of the desired plan of disposition normally is kept at a minimum by accelerating the succeeding interests. This acceleration occurs in accordance with what is normally to be inferred as the intent of the conveyor, namely, that as each of the successive interests sought to be created by him ends or becomes impossible, the next in order in the limitation should move up. Since acceleration occurs pursuant to an inferred intent, it is prevented by a *Page 574
manifestation of an intent contrary to what is normally to be inferred.
"d. Immateriality of type of conveyance. The rule stated in this Section applies to an attempted trust included in either a conveyance inter vivos or a will."
Appellants rely strongly on the case of Phillips v. Heldt,supra, and earnestly urge that it is controlling here. We think the rules we have here discussed were properly applied to the facts in that case. However, the facts in that case are quite different and make it clearly distinguishable from the instant case. There the testator attempted to create a trust for thirty years with a great number of provisions as to the application of the general income and the income from specific properties. Provision is finally made for the sale of all the property at the expiration of the thirty-year period and the distribution of the proceeds to an educational institution and to certain designated persons. It is quite clear, in examining the will there involved, that the creation of the trust, and the accomplishments of the purposes of the trust so created, was the dominant purpose of the testator, and that the final disposition at the end of thirty years was incidental. Separation of the item providing for final distribution from the trust provisions and accelerating the interests of the remaindermen could not have been done without doing violence to the dominant intent of the testator.
In view of our conclusion that even though the provisions creating the trust be invalid, the bequests would not lapse so as to make appellants parties in interest as heirs under the laws of descent; it is not necessary to consider the other questions presented in this appeal.
Judgment affirmed.
NOTE. — Reported in 34 N.E.2d 968. *Page 575 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031238/ | NUMBER 13-16-00368-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
KEITH WILEY, Appellant,
v.
HOLLYWOOD KINGLEY II, LLC; LIGHTHOUSE
PROPERTY MANAGEMENT; TROPICANYON II, LLC;
MARQUE AUSTIN COMMONS, LLC; OKUMO
AUSTIN COMMONS, LLC; QUEZ AUSTIN
COMMONS, LLC; AND CAPSTONE REAL ESTATE, Appellees.
____________________________________________________________
On appeal from the 201st District Court
of Travis County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion Per Curiam
Appellant, Keith Wiley, filed an appeal from a judgment rendered against him in
favor of appellees.1 On July 27, 2016, the Clerk of this Court notified appellant that the
1This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
clerk's record in the above cause was originally due on July 22, 2016, and that the deputy
district clerk, Victoria Chambers, had notified this Court that appellant failed to make
arrangements for payment of the clerk's record. The Clerk of this Court notified appellant
of this defect so that steps could be taken to correct the defect, if it could be done. See
TEX. R. APP. P. 37.3, 42.3(b),(c). Appellant was advised that, if the defect was not
corrected within ten days from the date of receipt of this notice, the appeal would be
dismissed for want of prosecution.
On August 8, 2016, the Clerk of the Court notified appellant that he was delinquent
in remitting a $205.00 filing fee. The Clerk of this Court notified appellant that the appeal
was subject to dismissal if the filing fee was not paid within ten days from the date of
receipt of this letter. See id. 42.3(b),(c).
Appellant has failed to respond to this Court’s notices and has failed to pay the
filing fee. Accordingly, the appeal is DISMISSED FOR WANT OF PROSECUTION.
See TEX. R. APP. P. 42.3(b), (c).
PER CURIAM
Delivered and filed the
2nd day of September, 2016.
(West, Westlaw through 2015 R.S.).
2 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428834/ | Appellant sued appellee for damages to his motor truck resulting from a collision upon a public highway in the State of Indiana, with a truck belonging to the appellee.
The complaint is in one paragraph, and alleges in *Page 442
substance that the appellant was the owner of a certain truck; and that, while carefully and lawfully driving the same on a highway in the State of Indiana, the appellee through its agent and employee carelessly and negligently drove and operated its truck at a high and dangerous rate of speed, which was greater than was reasonable having regard for the way, and negligently and carelessly failed to keep a proper lookout, and ran into and against the truck of appellant, thereby damaging it. Then follows a prayer for damages for the use of the truck while the same was being repaired, and for the injury thereto.
To this complaint the appellee filed an answer in two paragraphs: (1) A general denial; (2) an affirmative answer. On account of the question in the case being the sufficiency of the second paragraph of answer, we deem it advisable to set it out in full, which is as follows:
"Paragraph Two. The defendant, for a second and further paragraph of answer, says that this suit is not brought by the real party in interest, and in support of this conclusion alleges that at the time of this accident the plaintiff had a policy of insurance issued by the State Automobile Insurance Association; that said State Automobile Insurance Association is a reciprocal insurance organization whose affairs are handled by an attorney-in-fact and the plaintiff at the time of the accident had a policy which protected it against damages to its truck in such an accident as this, and that thereafter the State Automobile Insurance Association reimbursed the plaintiff for its damages in this accident and as a result of said reimbursement became subrogated to whatever claim the plaintiff might have had on account of said accident, and that so much of the plaintiff's complaint as is based on a claim for lost use of the truck is based on a demand for damages of a speculative character that cannot properly be recovered in this action and that the only damages which are in question are the damages resulting from the cost of repairing plaintiff's truck and that the plaintiff for these damages *Page 443
has been fully reimbursed by the State Automobile Insurance Association and whatever claim ever existed against anyone on account of having contributed to said damages is now by operation of law transferred and assigned to the State Automobile Insurance Association and that said claim is now the property of the various individuals and corporations who composed said Association at the time of the accident, and that this defendant has no way of knowing the names of said individual members, but that their names can be readily ascertained by the plaintiff and that the plaintiff is a member of said Association and entitled to inspect its books and records and discover the names of such individuals, and that this information is available to the plaintiff but not to the defendant, and is also available to the State Automobile Insurance Association and that said State Automobile Insurance Association is the real party in interest on plaintiff's side and the only party in interest.
"Wherefore, this defendant says that the plaintiff should take nothing by its complaint."
To this second paragraph of answer the appellant filed a demurrer alleging insufficiency of facts, with memorandum as follows:
"MEMORANDUM.
"The defendant in its second paragraph of answer attempted to defeat the claim of the plaintiff on the theory that the plaintiff's damage and loss have been fully paid and satisfied by the State Automobile Insurance Association, a company in which plaintiff carried insurance. Admitting this fact to be true, as we must for the purpose of this demurrer, still we do not believe defendant's second paragraph of answer constitutes a good defense to plaintiff's claim because the fact that the plaintiff might have carried insurance and been fully paid for his loss cannot be raised or used as a defense to diminish or defeat a recovery on the part of the plaintiff under his claim or reduce defendant's liability to the plaintiff."
The trial court first sustained this demurrer; later, when appellee filed a motion to reconsider the ruling on *Page 444
the demurrer, the trial court reconsidered the same, and overruled appellant's demurrer, to which ruling appellant excepted.
Upon being ruled to reply to the second paragraph of answer, appellant refused, and abided the ruling of the court on said demurrer. Judgment was rendered thereupon in favor of the appellee, that appellant take nothing, and that appellee recover its costs.
The only error assigned is the action of the court in overruling the demurrer of appellant to the second paragraph of appellee's answer.
The demurrer to the second paragraph of answer presents the only question for review, which is, Does the payment of the loss in full to the insured by the insurance company thereby operate to bar the right of the insured to recover damages from the wrongdoer for the loss?
Appellee contends that when the insurance company reimbursed appellant for its damages in full, it thereby became subrogated to whatever claim appellee might have had; and that by operation of law this transferred and assigned to the insurance company said claim which is now its property; and that such insurance company is the real party in interest, and the only one which could recover damages for the injury.
Appellant contends that such payment by the insurer to the insured does not operate to bar the right of the insured to recover damages from the wrongdoer, and cannot be set up as a defense thereto.
Among the cases cited and relied upon by the appellee are the cases of John A. Boyd Motor Company v. Claffey (1932),94 Ind. App. 492, 165 N.E. 255, and Pittsburgh, etc., R. Company
v. The Home Insurance Company (1915), 183 Ind. 355, 108 N.E. 525. Appellee also cites other cases which we have examined, but they are not in point. The two cases above are the principal cases *Page 445
cited by appellee from our own state which have any direct bearing upon the question.
To sustain his position appellant cites and relies upon the cases of Cunningham et al. v. The Evansville and Terre HauteRailroad Company (1885), 102 Ind. 478, 1 N.E. 800; and The LakeErie and Western Railroad Company v. Griffin (1893),8 Ind. App. 47, 35 N.E. 396.
Appellee contends that the Cunningham and Griffin cases,supra, have been overruled by more recent cases, and especially by the Claffey Case, supra, which was decided by this court February 19, 1929, and transfer denied June 10, 1932. We cannot accept appellee's contention, for the Cunningham and Griffin cases have never been overruled or modified by our courts, and are controlling upon the question herein.
In this case the insured brought the action against the wrongdoer for damages to his truck; and the wrongdoer admits for the purposes of the demurrer that it, the appellee, was negligent, and caused the damage to appellant, but contends that because appellant was paid his damages by an insurance company, the appellant is thereby barred from bringing any action against the wrongdoer. In other words, appellee contends that the payment of the loss by the insurance company is a complete bar to the right of the insured to recover from the wrongdoer because the insurance company was subrogated to the rights of the insured; and that, by reason of the payment of the loss, the law transferred and assigned to the insurance company the exclusive right to bring the action, which, in effect, would amount to an equitable assignment; and that thereby appellee is not the real party in interest, and has no right of action.
The Cunningham Case, supra, was decided by our Supreme Court at the May term in 1885, after the passage of the statute (§ 258, Burns' Ann. St. 1926; § 2-201, Burns 1933, § 16, Baldwin's Ind. St. 1934) providing *Page 446
that every action must be prosecuted in the name of the real party in interest, with certain exceptions therein. The Cunningham case was an action brought by appellants against the appellee railroad company for damages for the loss of their property by fire. The complaint was in several paragraphs, and alleged negligence on the part of the railroad company in emitting sparks to appellants' property. The appellee railroad company filed five paragraphs of answer; the first, in general denial; and the other four being substantially alike, setting up that the appellants were insured against loss by fire in divers insurance companies, and upon proofs of loss had been actually paid and received payment in full for such loss, and that thereby the right of action for the damage due to destruction of the property belonged to the insurance companies by reason of the payment of insurance, and that appellants were not the real parties in interest. In some of the paragraphs of answer, the appellee alleged that the loss was greater than the amount of insurance, and that as to the sum paid by the insurance company, the right of action to recover such sum could not be maintained by appellants. However, the question raised is identical with the question in the instant case. Passing upon this case, the Supreme Court said that the questions involved were: (1) Was the claim of appellants "barred by reason of the fact that they had received from certain insurance companies, in which they had insured such property against loss by fire, certain sums of money, amounting in the aggregate to more than the value of their property so burned and destroyed, and to more than the loss or damages sustained by them"; and (2) was the claim "barred in part as to the amount of the insurance money so received by them for the burning and loss of such property from such insurance companies." The Supreme Court further said (p. 482, Cunningham case): *Page 447
". . . the appellee claims in its answer, that, to the extent the appellants were indemnified for their damages resulting from the destruction of their property by fire by their contracts of insurance against loss by fire, it, the appellee, is exempt from liability to them for such damages, although the destruction of their property by fire was caused by and through its negligence, without their contributory fault. These positions can not be maintained. The contracts of the appellants for the insurance of their property, with the insurance companies, and their subsequent conduct in relation thereto, are matters in which the appellee, as the wrongdoer, had no concern, and which do not affect the measure of its liability. So the law seems to be uniformly settled elsewhere, and we know of no sufficient reason for adopting a different rule of decision in this State . . . (and cases here cited) . . .
"The appellants claimed that their property had been consumed and destroyed by and through the actionable negligence of the appellee. In such a case they would be entitled to recover their entire loss from the appellee; and the fact that the insurance companies, in which their property was insured, had paid them the amount of such insurance, we think, did not constitute any defense whatever to the appellants' action. We are of opinion, therefore, that the trial court erred in overruling the appellants' demurrers to the second, third and fourth paragraphs of appellee's answer."
The question here is not one whether the insurance company had the right to bring the action, for we think under proper pleadings there can be no question but that they would have such right, but, Can the wrongdoer plead the payment of loss by the insurance company and bar the right of the insured to recover?
As has been said by some courts, outside of our own jurisdiction, it is no concern of the wrongdoer (which is the appellee in this case) who gets the money, if he is liable 1. for damages. The only question that concerns him is that he is not cut off from any just set-off or counterclaim, and is fully protected *Page 448
when discharged. As was said in the case of Sturgis v. Baker
(1903), 43 Or. 236, 241, 72 P. 744:
"The statute requiring that every action shall be prosecuted in the name of the real party in interest (B. C. Comp., § 27) was enacted for the benefit of a party defendant, to protect him from being again harassed for the same cause. But if not cut off from any just offset or counterclaim against the demand, and a judgment in behalf of the party suing will fully protect him when discharged, then is his concern at an end. This is the test as to whether such a defense is properly interposed (Giselman v. Starr, 106 Cal. 651, 40 P. 8)."
This doctrine is supported by many authorities which need not be cited here.
Appellee contends that, if appellant would be permitted to prosecute his claim to judgment and should recover, appellee might be subjected to another claim by the insurance 2. company. We think that, if the appellant should prosecute his claim to judgment, and recover of appellee, the payment of the judgment by appellee would fully release it from any further liability, and protect it against any further claim by the insurance company, or anyone else. This doctrine was announced in the case of St. James Co. v. Security Trust,etc., Co. (1903), 81 N.Y. Supp. 739, 741, and affirmed in178 N.Y. 560, 70 N.E. 1108, in which the court said:
". . . the defense sought to be proved would not, if established, be available, because payment of the judgment to the plaintiff will fully protect the defendant against claims by third parties. This, under the authorities, is the test as to whether or not the plaintiff is the real party in interest."
In the Griffin case, supra, this court said (p. 49):
"It is next insisted that the court erred in sustaining appellee's demurrer to the second paragraph of answer. The rule is well settled that where, by the actionable negligence of a railroad company, fire escapes from its right of way to adjoining *Page 449
property, which is thereby consumed, the owner of such property can recover his entire loss from such company without regard to the amount of insurance he may have been paid thereon. Cunningham v. Evansville, etc., R. Co., 102 Ind. 478."
We think the case of Pittsburgh R. Company v. Home InsuranceCompany, supra, cited by appellee, does not sustain appellee's position, nor is it in conflict with the Cunningham or Griffin cases, supra. In that case the insurance company brought an action against the wrongdoer for the loss which under its contract of insurance with the insured it had been obligated to pay. The only real question presented therein was whether or not an insurance company which had paid the loss can bring and maintain an action in its own name against the wrongdoer. It did not decide the question raised in the instant case, nor does the case hold that the wrongdoer can plead the payment of insurance as a bar to the right of the insured to recover. There can be no question but that the insurance company in the instant case could bring the action for the loss it had paid, and that it would be subrogated to the rights of the insured. So, we think that the Home Insurance Company case, supra, does not sustain appellee's position.
The other Indiana cases cited by appellee are not in point, and it would unduly extend this opinion to undertake to analyze them.
However, we will notice the Claffey case, supra, cited by appellee. This case is not out of harmony with the holding in the instant case. In the Claffey case, supra, a demurrer was sustained to the answer, and judgment rendered upon appellant's refusal to plead further, as in the instant case. This judgment was reversed by this court with instructions to the lower court to overrule the demurrer to the answer. The answer in the Claffey *Page 450
case is unlike the one in the instant case, for it first alleges that the appellee (which was the insured) agreed in his contract of insurance that he would assign to the insurance company all claims and causes of action he might have against any third person growing out of, or connected with, or arising from the theft of his automobile. The answer further alleged that the insurance company had paid all the items of loss, and that before the commencement of the action the insured had "assigned to saidassociation and the subscribers thereof all causes of action appellee then had or asserted against any third persons arising out of or connected with the said theft, including the cause of action sued upon against appellant." (Our italics.) So it will readily be seen that the decision in the Claffey case, supra,
rested upon the proposition that the insured, prior to the commencement of the action, had assigned his claim and right of action to the insurance company. Of course, if this were true, certainly the insurance company would be the real party in interest, and the insured could not maintain the action. The question in the Claffey case, raised by the demurrer, being the sufficiency of the answer, was the only question presented to the court for decision. Anything in the Claffey case, supra, which is outside of the question heretofore stated is dictum in that case, and not controlling in the instant case.
The only question decided in the Claffey case that was pertinent to the issue was whether the assignment of the insured's claim and right of action for damages to the insurance company constituted the insurance company the real party in interest, and barred the right of the insured to recover. This the court decided was a good answer, and barred the right of the insured to recover. We reaffirm this holding, for, when the insured has assigned his claim, he loses all further right therein, and the real party in interest would be his assignee. But *Page 451
that is not the question in the instant case, for here there is no assignment, and the right of the appellee to bar appellant's action is based solely and wholly upon the proposition that the appellant had been paid by his insurance company in full, and thereby the insurance company was subrogated to all rights of the appellant, and was the real party in interest, and appellant could not maintain the action.
We hold that the second paragraph of answer in the 3. instant case was not sufficient to bar the right of the appellant to recover.
It might be well in passing to say that, if the insurance company had paid appellant's claim in full, then under the holding in the Home Insurance Company case, supra, it would have the right to maintain the action against appellee, but that is not the question in this case.
The appellant herein also has the right to maintain the action against the appellee, and, as far as appellee is concerned, is the real party in interest. Any judgment obtained by appellant against appellee, and paid by it, would be a complete bar to the right of the insurance company to bring another action for the same claim. Appellee could always protect itself, not only by the payment of the judgment if one was obtained, but could have asked to have the insurance company made a party to the action, and thus have ended the controversy; but it cannot set up by way of defense that appellant has received payment of his claim from someone else, and claim the benefit derived therefrom.
For the error of the court in overruling the demurrer to the second paragraph of answer, the judgment is hereby reversed with directions to the lower court to sustain such demurrer, and for such further proceedings as may be necessary, not inconsistent with this opinion.
Judgment reversed. *Page 452 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428849/ | A rehearing having been granted after a per curiam
affirmance, this case is again before the court.
Suit was brought by the appellant against Anderson Oil Company and William R. Wood to recover for personal injuries arising out of an automobile collision. At the close of the plaintiff's case, appellee Anderson Oil Company filed a motion for an instructed verdict. This motion was sustained and the jury was instructed that at the proper time they would be instructed to return a verdict for Anderson Oil Company. The trial proceeded as to William R. Wood, the jury returning a verdict as against him for $5,500. Motion for a new trial was overruled and judgments entered on the verdicts. Vacation appeal properly assigning as error the action of the trial court in directing a verdict and its refusal to grant a new trial for newly discovered evidence.
Appellant contends that there existed between the appellees the relation of principal and agent, master and *Page 368
servant, employer and employee or that the doctrine ofrespondeat superior applies.
The evidence, as disclosed by appellant's brief, which is unchallenged by the appellee, shows that, immediately after the accident, appellee Wood made a telephone call. That, immediately thereafter, a Mr. Jones of the Anderson Oil Company came to the scene of the accident. The evidence further shows that Mr. Jones was president of the Anderson Oil Company. That the truck had a sign "Anderson Oil Co." on it in several places. Fleischman v.Ice and Fuel Co. (1910), 148 Mo. App. 117, 127 S.W. 660; PolkSanitary Milk Co. v. Qualiza (1930), 92 Ind. App. 72,172 N.E. 576. The name of Wood was not on the truck. Wood said, in answer to a question: "Probably three years, seems to me as though Iworked for them two years." He was there referring to the Anderson Oil Company. The Anderson Oil Company fixed the price at which he (Wood) could sell the gasoline. He could only sell to a territory assigned him by the Anderson Oil Company. He could not sell in any other territory. On the particular trip that this accident occurred, he was delivering an order that had been telephoned to the Anderson Oil Company direct. When a delivery was made, the purchaser did not pay Wood but would pay the Anderson Oil Company. Orders were taken on blanks of the Anderson Oil Company and charges were made on other blanks of theirs.
In the case of Gipe v. Pittsburgh, etc., R. Co. (1907),41 Ind. App. 156, at p. 161, 82 N.E. 471, this court, by Myers, J., said: "On the question we are now considering, the burden of the issue was upon appellant, and, regarding the right of the trial court to direct a verdict, in Westfall v. Wait, supra, it is said: `If the evidence was of such a character as to make it clear to the court that a verdict, if returned for appellant, on whom the burden of the issue rested, could not stand, then it became *Page 369
the duty of the court to direct a verdict for appellees, and there could be no error in so doing,' citing cases. See, also,Goode v. Elwood Lodge, etc. (1903), 160 Ind. 251, 256;Williams v. Resener (1900), 25 Ind. App. 132; Burns v.Smith (1902), 29 Ind. App. 181, 94 Am. St. 268. In respect to the right of the trial judge to direct a verdict against the party on whom the burden rests, the court in Dunnington v.Syfers (1901), 157 Ind. 458, said: `The rule to the effect that where there is a "scintilla" of evidence the trial court must permit the case to be submitted to the jury for their determination does not prevail in this State.' Oleson v. LakeShore, etc., R. Co. (1896), 143 Ind. 405, 32 L.R.A. 149; Meyer
v. Manhattan Life Ins. Co. (1896), 144 Ind. 439; Diezi v.Hammond Co. (1901), 156 Ind. 583."
The Supreme Court, in Davis v. Mercer Lumber Co. (1905),164 Ind. 413, at p. 425, 73 N.E. 899, by Jordan, J., said: "It is a settled rule in this State that the right of the court to direct a verdict, as it did in this case, can only be upheld where, after a consideration of all the evidence most favorable to the plaintiff, together with all the reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to the plaintiff's right of action.Purcell v. English (1882), 86 Ind. 34, 44 Am. Rep. 255;Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385;Wolfe v. McMillan (1889), 117 Ind. 587; Diezi v. HammondCo. (1901), 156 Ind. 583; Wagner v. Weyhe (1905), ante 177, and cases there cited."
This case was cited with approval and followed in the case ofSaylor v. Obendorf (1909), 45 Ind. App. 436, 89 N.E. 600, as follows: "The question is, Did the court err in 1. peremptorily instructing the jury? The answer to this question requires us to consider *Page 370
the evidence, keeping in mind that this particular action of the court `can only be upheld where, after a consideration of all the evidence most favorable to plaintiff, together with all reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to the plaintiff's right of action.' Davis v. Mercer Lumber Co.
(1905), 164 Ind. 413."
The law very zealously protects one against whom a motion for a directed verdict is addressed. After saying that such motion is equivalent to a demurrer to the evidence, our courts have held that, "`if there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn.'" Lorber v. PeoplesMotor Coach Co. (1928), 89 Ind. App. 139, 164 N.E. 859,172 N.E. 526, quoting from Curryer v. Oliver (1901), 27 Ind. App. 424, 60 N.E. 364, 61 N.E. 593, and authorities there cited.
Where all the rights, duties and obligations existing between the parties are couched in a written contract, the construction and meaning of that contract is a question of law for the 2. court and is not a question of fact for a jury to determine. Mondamin, etc., Dairy Co. v. Brudi (1904),163 Ind. 642, 72 N.E. 643; Robbins v. Spencer (1889),121 Ind. 594, 22 N.E. 660.
In case of ambiguity in a written contract, or in case of construction thereof by the parties themselves, disclosed by their actions and conduct in connection therewith, parol 3. proof may be offered explaining the ambiguity, and also establishing such construction, and in such event the question of the meaning of the contract in the light of such parol evidence becomes *Page 371
a question of fact to be determined by a jury. Robbins v.Brazil Syndicate, etc., Co. (1917), 63 Ind. App. 455 at p. 463, 114 N.E. 707; Olds Wagon Works v. Coombs (1890), 124 Ind. 62, 24 N.E. 589.
But our courts have had this to say as to this rule inCleveland, etc., R. Co. v. Gossett (1909), 172 Ind. 525 at p. 546, 87 N.E. 723: "The contention of counsel is that, the rule being a written instrument, it was the province of the court, and not of the jury, to interpret it. We readily concede the general rule to be as affirmed by counsel, but there are exceptions as well founded as the rule itself.
"The exception applicable here is well stated by Woods, J., inReissner v. Oxley (1881), 80 Ind. 580, in these words: `The right of parties to put an interpretation upon their own contracts, even to the extent of doing away, practically, with the ordinary and plain meaning of terms, cannot well be denied, so long as their interpretation does not result in a contract which for some reason is in itself unlawful. And the cases are numerous and consistent, which permit a resort to proof of the circumstances or situation of the parties, when their contract was made, and of their transactions under it, when its terms are of doubtful or ambiguous meaning, for the purpose of arriving at the true intention, and, when this is done, the question must be left to the decision of the jury substantially as was done in this instance.'
"It has repeatedly been held by this court that in cases where the writing is indefinite, or the language ambiguous, or of doubtful application, the practical interpretation given it by the parties themselves may be shown by parol, and that the construction and application given by them should be received with great, if not controlling, weight. Gaylord v. City ofLafayette (1888), 115 Ind. 423; Ralya v. Atkins Co.
(1901), *Page 372 157 Ind. 331; Burk v. Mead (1902), 159 Ind. 252; Ditchey v.Lee (1906), 167 Ind. 267."
In this case the evidence consisted both of a written contract between the appellees and parol evidence of their conduct. Where there is a written contract between the alleged 4, 5. principal and agent, this does not necessarily govern the question, and the relation of respondeat superior
may depend entirely upon the conduct of the parties, for persons cannot be in fact principal and agent or master and servant and the superior escape liability by going through the form of a written contract. So the court here should have considered the entire situation and all the circumstances, including the written contract, and if, from such a consideration, there was any construction which a jury could legitimately have placed thereon which would, under any view of the evidence, have warranted a verdict for the plaintiff, it was error to direct a verdict.
In the case of Anderson v. Foley Bros. (1910), 110 Minn. 151, 124 N.W. 987, the court said: "The trial court was of opinion that upon the face of the contracts Evans should be considered an independent subcontractor, and submitted to the jury the question whether the company had assumed control. The law on this subject is well settled. The contracts themselves do not necessarily govern the question, and the relation ofrespondeat superior may depend upon the conduct of the parties.Rait v. New England F. C. Co., 66 Minn. 76, 68 N.W. 729;Roe v. Winston, 86 Minn. 77, 90 N.W. 122; Clagus v.Gillette-Herzog Mnfg. Co., 86 Minn. 458, 90 N.W. 1116."
See, also, Brodwell v. Webster (1915), 98 Neb. 664, 154 N.W. 229, Ann. Cas. 1918C 624; Dibert v. Giebisch (1914),74 Or. 64, 144 P. 1184. In the latter case, the court stated the following reason for not permitting a principal or master to escape liability by the execution *Page 373
of a written contract attempting to create the relation of independent contractor: "In order that the rule of respondeatsuperior may be invoked, it is important to determine who was in fact the plaintiff's employer and for whom he was laboring when he was hurt.
"If a responsible party, having work to perform, the execution of which is necessarily attended with danger, undertakes to avoid liability for injury to third persons by letting the contract to an irresponsible party, he cannot be permitted thus to take advantage of his own wrong and escape the consequences of his act, because the making of the contract may well be regarded as a fraud on his part. Kellogg v. Payne, 21 Iowa 575. . . .
"In actions to recover damages for injuries caused by the alleged negligence of the master, where the defense is that the carelessness was that of an independent contractor, a court will not hesitate carefully to scrutinize the substance of the contract and all the attending circumstances in order to determine the actual relation which the alleged master sustained to the person employed. The mere fact of nominal employment by an independent contractor will not relieve the master of liability where the servant is in fact in his employ. Nelson v. AmericanCement Plaster Co., 84 Kan. 797 (115 P. 578)."
Appellants have also assigned as error the overruling of the motion for a new trial for newly discovered evidence. Immediately after the trial, the appellant diligently and speedily 6-8. ran down leads disclosed during the trial and discovered much evidence that they believed would be helpful in a new trial. They found, as is set up in the various affidavits, that many persons dealt directly and only with the Anderson Oil Company and that Wood did nothing as far as some customers were concerned but deliver the products. They found that there was on file in a court of an adjoining *Page 374
county a complaint against a man named Hall (presumably a customer of Wood's) in which the complainant, Anderson Oil Company, alleged that gas was "sold and delivered to the defendant by the plaintiff Anderson Oil Co. at the special instance and request of this defendant." They found that the Anderson Oil Company had a mortgage only on the chassis of Wood's truck, and that they (the oil company) owned the tank, buckets and equipment. They found that Wood signed sales tickets of the Anderson Oil Company as "Anderson Oil Co. by W.R.W." That, in exhibits set out in the suit above referred to, the name of W.R. Wood appears under the heading "Driver." Appellees say that appellant did not show diligence in discovering this new evidence and, therefore, it should avail him nothing. It appears that they took an examination of W.R. Wood and that, on the points they later discovered, he could not remember at the time of said examination. Appellant employed local counsel to assist the counsel in chief from adjoining counties, all of whom, it must be presumed, made some preparation for the trial. Let us at least assume that they did not go into court without preparing their case to the best of their ability. Appellees say that this complaint and mortgage were of record and by the exercise of reasonable diligence it could have been discovered. Is it the duty of parties or counsel to examine all the records of a county to see that they disclose something advantageous? This would, in some instances, mean that an abstractor should be hired to ascertain the contents of all the records in the recorder's office. The cases hold that reasonable diligence must be exercised and we hold that that was done here.
Counsel examined the records of the drivers' license department and discovered a statement by Wood that he was the owner of the truck. He also told them this under oath. Counsel say in their affidavit that they *Page 375
have discovered new evidence which they could not, with reasonable diligence, have discovered and produced at the trial. The word new means evidence new to them or their client and implies a prior lack of knowledge. Appellee Anderson Oil Company filed a counter affidavit and alleged that none of the facts discovered by appellant were actively concealed. There are many facts which are known to some people which would be of great benefit to others and could be known if search was made in certain places, but we believe that litigants are not supposed to make an inexhaustible or perfect search before they go into a trial. Reasonable diligence is all that the law requires. True these facts might have been discovered by reasonable diligence, but it is just as true that, by the exercise of reasonable diligence, they were not discovered. By the exercise of reasonable diligence it might have been discovered that the earth was round, but it took a long time for Magellan to prove what reasonable diligence was in such a case. What may appear reasonable at one time may be extremely unreasonable in other circumstances. In the case of State v. Stowe (1891), 3 Wash. 206, 28 P. 337, 14 L.R.A. 609, the court said: "If it is material testimony, it can only be material because it would tend to strengthen the applicant's case, and probably lead to different results; and if it is material, and applicant could not have discovered it with reasonable diligence, common justice demands that he should have the benefit of it. It is true that applications of this kind are directed largely to the discretion of the court, and great weight must be given to the judgment of the court with reference to them. Still, if this court thinks that, under all the circumstances of the case, substantial justice has been denied to the applicant, as we think it has in this case, we will not hesitate to reverse the ruling. No fixed standard can be established for the measurement *Page 376
of every case, no iron-bound rule prescribed, but each case must be governed by the circumstances surrounding it." See, also,Davis v. First Nat. Bank (1924), 100 Okla. 190, 229 P. 228;Railway Co. v. Lovelace (1896), 57 Kan. 195, 45 P. 590;New Amsterdam Casualty Co. v. Beardsley (1924), 123 Misc Rep. 292, 205 N.Y. Supp. 771. The above expression is the best that we have found and fully and completely expresses the law of Indiana and the views of this court.
The evidence as disclosed by the affidavits is material and would probably lead to a different result. Hence, the court erred in refusing to grant a new trial. Simpson v. Wilson
9. (1855), 6 Ind. 474; Sullivan v. O'Connor (1881), 77 Ind. 149; Morrison v. Carey (1891), 129 Ind. 277, 28 N.E. 697; Jackson v. Swope (1893), 134 Ind. 111, 33 N.E. 909;Smith v. State (1896), 143 Ind. 685, 42 N.E. 913; Donahue
v. State (1905), 165 Ind. 148, 74 N.E. 996; Fleming v.McClaflin (1891), 1 Ind. App. 537; 27 N.E. 875; Westbrook v.Aultman, Miller Co. (1891), 3 Ind. App. 83, 28 N.E. 1011;Richter v. Meyers (1892), 5 Ind. App. 33, 31 N.E. 582;Freeman v. Hutchinson (1896), 15 Ind. App. 639, 43 N.E. 16;Martz v. Cook (1900), 24 Ind. App. 432, 56 N.E. 951;Franklin v. Lee (1901), 30 Ind. App. 31, 62 N.E. 78.
For both reasons above discussed, this case is remanded to the trial court, with instructions that a new trial be granted. *Page 377 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428895/ | Appellant and appellee were candidates for the office of township trustee of Center township in Martin county at the general election in November, 1926. The election officers declared appellant elected. Appellee brought an action in the commissioners' court of Martin county to contest the election under § 7612 et seq., Burns 1926, alleging that there were irregularities and malconduct of the members and officers of the election in that certain votes for contestor were counted and accredited to contestee; that illegal votes which should not have been counted were credited to contestee; that legal ballots which were cast for contestor were not counted.
The county commissioners found for the contestee (appellant). The contestor (appellee) appealed. The cause was tried in the circuit court, and there was a finding and judgment for the contestor (appellee) that he was the duly elected trustee.
Appellant's motion for a new trial was overruled, and this ruling is the only error assigned.
Appellant contends that appellee's complaint is a petition for a recount, and not an election contest. It is true that the complaint alleges facts that would make it good as a 1. petition for a recount, but it is also good as a complaint for contest, and the contest *Page 49
procedure was followed. Goecker v. McOsker (1912),177 Ind. 607, 98 N.E. 724.
It appears that certain absent voters' ballots were delivered to the election boards of the two precincts in the township by the clerk of the circuit court within the time provided therefor, but that the packages containing these ballots were not opened, and that the ballots were not voted or counted. The inspector of each precinct testified to these facts, and that because they were occupied with receiving ballots of voters who were present, there was no time between the hours of six o'clock A.M. and six o'clock P.M. on election day to count these ballots. Appellant contends that, since there was not sufficient time to count the ballots on election day, the ballots could not be thereafter counted, since the law provides for challenges when they are offered to be voted.
Section 7508, Burns 1926 provides that between the opening and closing of the polls the inspector, in the presence of the election board, shall open the envelope containing the absent voter's ballot, compare the signature upon the application with the signature upon the affidavit, and if the signatures correspond, and the affidavit is properly attested, and the applicant is a duly qualified elector of the precinct and has not voted in person, shall deliver the ballot to the poll clerks, who shall write their initials thereon; that the ballot will thereupon be deposited in the ballot box, after notifying the challengers so that the vote may be challenged as provided for in the next section. It will be noted that the section provides that the inspector shall do the things referred to, and not that hemay do so if there is time while the polls are open.
It was the clear intention of the legislature that absent voters' ballots, delivered to the inspector in conformity *Page 50
with the statute, must be considered, and that if the 2. statute has been complied with and the voters would be entitled to vote in person, they must be voted. Once they are delivered inside of the voting place, they must be treated in the same manner as a voter who appears in person and is inside the voting booth at the time the polls are closed. Such a voter is permitted to complete his ballot and have it deposited in the ballot box and counted. The same rule must apply to an absent voter's ballot which is delivered to the election inspector at the proper time.
A failure to open the envelopes containing these absent voters' ballots, and to vote them after an opportunity for challenge, constituted an irregularity or malconduct of the 3, 4. election officers. Any candidate for whom such a ballot was marked was entitled to have it voted, and, if in all respects regular, to have it counted for him. When it was made to appear to the court upon the trial of this case that the absent voters' ballots were not taken from the envelopes and voted, and that they were not counted for the candidates for whom they were voted, it was the duty of the court to open and examine said ballots, and to count them for the candidate for whom they were voted if they were legal ballots. The party objecting thereto had the right, at the time they were submitted to the court, to object to the ballot for any reason that would have been available as a cause for challenge if the ballot had been offered at the election polling place. Such an objection would be just as efficient as a challenge in preventing the counting of the ballot because of any lack of qualification of the voter, or irregularity in presenting the ballot, and upon the ballot being offered to be counted there was available as an objection to the counting thereof any objection that might have been urged to its being counted by the election board upon the canvass *Page 51
of the ballots. When these ballots were opened in court, the court required them to be deposited in a ballot box set up in the court room. The object, no doubt, was the preservation of the secrecy of the ballot. This was not improper, nor is it pointed out in what manner it may have prejudiced the rights of appellant.
Notwithstanding the certificate of the judge and the reporter that the bill of exceptions contains all of the evidence introduced at the trial, it is obvious from the recitals in the bill of exceptions itself that it does not contain all of the evidence. Appellee's (plaintiff's) exhibits numbered 1, 2, 3, 4, and 67 are missing. These exhibits were admitted in evidence, and among them were the packages containing the ballots voted and counted for the respective parties by the election boards and returned by them to the clerk's office. These ballots are shown to have been counted by the court without any objection on the ground that the ones counted for appellee were not legal ballots, legally marked, and voted for appellee. None of these ballots are in the bill of exceptions. The ballots voted and counted for the respective parties by the election boards, and counted by the court as above indicated, total 331 for appellee and 294 for appellant, a majority of 37 for appellee. This result is inconsistent with the result of the election as certified by the election officers, and failure to correctly count these ballots constitutes an irregularity or malconduct on their part, either inadvertent or intentional.
More than 60 absent voters' ballots were offered in evidence and deposited in a ballot box by the court. Appellant objected and excepted to the introduction of the application and the 5. affidavit accompanying each absent voter's ballot. The applications and affidavits are in the bill of exceptions, but the ballots are not. Of these 60 ballots, the court *Page 52
counted 40, 37 of which were for appellee and three for appellant. It may be conceded for the purpose of the case that all of the absent voters' ballots were erroneously admitted except the three shown to have been counted for appellant, and, disregarding them, appellee would still have a majority of 34 votes, and, therefore, appellant is not harmed by the conceded error if the other votes were properly admitted in evidence and properly counted.
Appellant's objection, and only objection, to the introduction of the packages containing the ballots voted and counted by the election boards for the respective parties, was that the 6. packages were not shown to have been placed in a proper receptacle supplied with two locks, the key to one of which was retained by the clerk and the other by the member of the board of canvassers of opposite politics, as provided by statute, but that said packages had been deposited loosely in the vault of the clerk's office in an envelope tied with a string; that opportunity had been had by various persons to interfere with, open, inspect, and change the ballots, and that it was not definitely and positively proven by the clerk that the packages were in the same condition as when delivered to him by the inspectors. The clerk testified that the packages were delivered to him by the inspectors; that he had kept them in the vault in his office since that time; that they were in the same condition as when delivered by the inspectors; that other persons had been permitted in the vault in his office where the packages were; that they were tied with a string, and, if they were ever opened, the packages were retied in the same way.
There was no evidence of any kind that the ballots had been tampered with, mutilated or changed, or that they had been improperly counted, or that the number of counted ballots did not correspond with the number *Page 53
shown by the returns or other records to have been counted by the election boards.
The court admitted the packages in evidence upon the evidence of the clerk, and we fail to find any evidence upon which the court might have properly refused to admit them. The fact that the election boards failed to perform their duty and comply with the statute respecting the manner of container in which the counted ballots were returned, does not deprive the court of the right to examine the ballots. The evidence of the clerk was sufficient to show prima facie that the packages contained the ballots voted and counted. If the number of ballots in the packages did not correspond with the number counted by the election boards, evidence of that fact was presumably available and might have been introduced by appellant, but no such evidence was offered. It is true the clerk testified that he could not say positively that no one had access to the ballots, or had changed or otherwise tampered with them, but he must have testified to the same effect had they been double-locked as provided by statute. In such case there might have been duplicate keys.
"The primary object of an election contest is to determine who received the highest number of legal votes. Any question as to the care and custody of that which is evidence of the vote cast, goes rather to the weight of the evidence than to its admissibility." Kensinger v. Schaal (1922), 192 Ind. 307, 310, 135 N.E. 331.
"In the absence of any specific evidence as to their having been tampered with, we are bound to presume that they have been honestly preserved as they came from the hands of the inspectors." State ex rel. v. Thornburg (1912), 177 Ind. 178, 186, 97 N.E. 534.
In the absence of evidence to the contrary, it must be presumed that the election boards counted all of the ballots *Page 54
offered, or that any that were not counted were not legal 7. ballots; and, in the absence of any showing to the contrary, it must be presumed that the ballots in the packages, and which were counted by the court, were all legal ballots and that they were counted by the court for the person for whom they were voted, and that the persons voting the ballots were legal and qualified voters. Insofar as we are able to ascertain from the incomplete bill of exceptions, all of the ballots cast for either party and counted by the election boards were introduced in evidence and counted by the court. This disposes of appellant's contention that appellee was required to introduce all of the ballots voted for each party, and that he failed to do so.
Appellant contends that the ballots themselves were not identified as exhibits, but it is not shown that at the trial he asked that they be identified separately from the package 8. in which they were contained, or objected to their being considered or counted by the court upon that ground; nor is it shown that he objected to the counting or consideration of the individual ballots upon the ground that they had not been voted by qualified voters, or legally marked, or voted for the person for whom they were counted; nor is it shown that he made any effort to in any manner bring the ballots into the record by bill of exceptions or otherwise. We must presume that evidence considered by the court, and not brought into the bill of exceptions, was legal evidence properly considered.
If the objections of appellant to any or all of the absent voters' ballots had been sustained, the decision of the court and the judgment must have been the same, and it must follow 5. that if the admission of any or all of the absent voters' ballots was erroneous, it could not have been prejudicial to the *Page 55
rights of appellant, and that a correct result was reached upon unchallenged evidence.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208998/ | Case: 15-60022 Document: 00513531569 Page: 1 Date Filed: 06/02/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60022 FILED
June 2, 2016
MACY’S, INCORPORATED,
Lyle W. Cayce
Clerk
Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
The National Labor Relations Board (NLRB or the Board) certified a
collective-bargaining unit consisting of all cosmetics and fragrances employees
at the Saugus, Massachusetts, Macy’s department store. After Macy’s refused
to bargain with Local 1445, United Food and Commercial Workers Union (the
Union), which was certified as the unit’s bargaining representative, the Board
filed an unfair labor practices order. Macy’s filed a petition for review with
this court, contending that (1) the Board applied a legal standard that violated
the National Labor Relations Act (NLRA or the Act) and otherwise committed
an abuse of discretion; and (2) under the proper legal standard as well as the
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No. 15-60022
incorrect legal standard upon which the Board relied, all selling employees
must be included in the petitioned-for unit. 1 The Board filed a cross-
application for enforcement of its order. Because the Board did not violate the
NLRA or abuse its discretion in certifying the unit of cosmetics and fragrances
employees, we DENY the petition for review and GRANT the Board’s cross-
petition for enforcement of its order.
I.
A.
Macy’s operates a national chain of department stores, including one in
Saugus, Massachusetts. The Saugus store is divided into eleven primary sales
departments: juniors, ready-to-wear, women’s shoes, handbags, furniture (also
known as big ticket), home (also referred to as housewares), men’s clothing,
bridal, fine jewelry, fashion jewelry, and cosmetics and fragrances. The
petitioned-for unit includes all full-time, part-time, and on-call employees
employed in the Saugus store’s cosmetics and fragrances department,
including counter managers, beauty advisors, and all selling employees in
cosmetics, women’s fragrances, and men’s fragrances.
The cosmetics and fragrances department is located in two areas within
the Saugus store, on the first and second floors; the two areas are connected by
a bank of elevators. Each of the two selling areas is spatially distinct from the
other primary sales departments. Cosmetics beauty advisors are specifically
assigned to one of eight counters in the first floor cosmetics area, each of which
is dedicated to selling products from one of eight primary cosmetics vendors.
Cosmetics beauty advisors typically sell only one vendor’s products, which they
1 Although the underlying conduct occurred within the First Circuit, this court has
jurisdiction because Section 10(f) of the NLRA allows review of Board decisions not only in
the Circuit in which the unfair labor practice was alleged to have occurred, but also in the
Circuit in which the person aggrieved by the Board’s order “resides or transacts business.”
29 U.S.C. § 160(f).
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also use to give customers makeovers. Fragrances beauty advisors are
assigned to either the men’s or the women’s fragrances counter, and they sell
all available men’s or women’s products, regardless of the vendor. Cosmetics
and fragrances beauty advisors keep lists of their regular customers, which
they use to invite customers to product launches or to book appointments to
give customers makeovers. Although cosmetics and fragrances employees
occasionally assist other departments with inventory, the record is clear that
cosmetics and fragrances employees are never asked to sell in other
departments, nor are other selling employees asked to sell in the cosmetics and
fragrances department.
Six of the eight cosmetics counters, the women’s fragrances counter, and
the men’s fragrances counter each have a counter manager who, in addition to
selling products, helps organize promotional events, monitors the counter’s
stock, coaches beauty advisors on customer service and selling technique,
ensures that the counter is properly covered by beauty advisors, and schedules
visits by vendor employees, such as sprayers and makeup artists. Finally, the
department has seven on-call employees who, unlike the beauty advisors, may
work at any of the ten counters. There is no indication that any other primary
sales department has the equivalent of counter managers, and the record is
unclear as to whether the other primary sales departments have the equivalent
of on-call employees.
Outside of the cosmetics and fragrances department the Saugus store
has approximately thirty non-selling employees (a receiving team, a
merchandising team, and staffing employees) and eighty selling employees
organized within the other ten primary sales departments. Most, but not all,
of the other departments have their own sales manager, and at least some of
them are divided into sub-departments. Certain other primary sales
departments have specialist sales employees who, like the cosmetics beauty
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advisors, specialize in selling a particular vendor’s products; in those
departments, vendor representatives monitor stock and train selling
employees on selling technique and product knowledge.
Cosmetics and fragrances employees and other selling employees have
some incidental contact: cosmetics and fragrances employees occasionally
assist in storewide inventory, and all employees whose shifts correspond with
the store’s opening attend brief daily “rallies” at which management reviews
the previous day’s sales figures and any in-store events that are taking place
that day. In addition, all selling employees work shifts during the same time
periods, use the same entrance, have the same clocking system, and use the
same break room. However, the record contains little evidence of temporary
interchange between cosmetics and fragrances employees and other selling
employees.
Although compensation differs, all selling employees enjoy the same
benefits, are subject to the same employee handbook, and have access to the
same in-store dispute resolution program. All selling employees are evaluated
based on the same criteria. Finally, all selling employees are coached through
the same program designed to improve selling techniques and product
knowledge.
B.
In October 2012, the Union filed a petition with the Board seeking a
representation election among all cosmetics and fragrances employees at the
Saugus store. In November 2012, the Board’s Acting Regional Director (ARD)
issued a Decision and Direction of Election in which he found that a petitioned-
for bargaining unit of cosmetics and fragrances employees, including counter
managers, employed by Macy’s at its Saugus store was appropriate.
Thereafter, Macy’s filed a timely request for review. Macy’s contended that
the smallest appropriate unit must include all employees at the Saugus store
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or, in the alternative, all selling employees at the store. The Union filed an
opposition. In December 2012, the Board granted the Employer’s request for
review.
In making a determination as to the appropriateness of the bargaining
unit, the Board applied the “overwhelming community of interest” test set
forth in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB
No. 83, 2011 WL 3916077 (2011), enforced sub nom. Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Board determined that
the cosmetics and fragrances employees share a community of interest, finding
that all of the petitioned-for employees: work in the same department and in
the same two connected, distinct work areas; have common, separate
supervision; work with a shared distinct purpose and functional integration;
have little contact with other selling employees; and are paid on the same
basis, receive the same benefits, and are subject to the same employer policies.
The Board then addressed Macy’s contention that the smallest
appropriate unit must include a wall-to-wall unit of all Saugus store
employees, or, alternatively, all selling employees at the store. The Board
explained that Specialty Healthcare requires an employer to demonstrate that
the excluded employees share an “overwhelming community of interest” with
the employees in the petitioned-for unit, such that their community of interest
factors “overlap almost completely.” While acknowledging that the petitioned-
for unit shared some factors with certain other selling employees, the Board
concluded that a storewide unit was not required.
Finally, the Board addressed Macy’s contention that Specialty
Healthcare deviated from a line of precedent holding that a storewide unit is
“presumptively appropriate” within the retail industry. After considering the
relevant precedent, the Board concluded that it has, “over time, developed and
applied a standard that allows a less-than-storewide unit so long as that unit
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is identifiable, the unit employees share a community of interest, and those
employees are sufficiently distinct from other store employees.” It therefore
found that the petitioned-for unit was appropriate under Board precedent even
without reference to Specialty Healthcare.
After Macy’s refused to bargain with the Union, the Board filed an unfair
labor practices order. Macy’s petitioned for review, arguing that the unit
sanctioned by the Board was clearly not appropriate, that the Board applied a
test that cannot be squared with the NLRA or prior Board precedent governing
initial unit determinations, and that, even under Specialty Healthcare, the
Board approved an inappropriate unit. The Board cross-applied for
enforcement of its order.
II.
Under Section 10(e) of the NLRA, which governs petitions for
enforcement of Board orders, the Board’s factual findings are conclusive if they
are “supported by substantial evidence on the record considered as a whole.”
29 U.S.C. § 160(e). Section 10(f), which governs petitions for review of Board
orders, contains the same standard of review for factual findings. 29 U.S.C.
§ 160(f). As for questions of law, the Supreme Court has repeatedly held that
“the NLRB has the primary responsibility for developing and applying national
labor policy” and that the Board’s rules should therefore be accorded
“considerable deference.” NLRB v. Curtin Matheson Scien., Inc., 494 U.S. 775,
786 (1990).
“This court’s review of the Board’s determination of an appropriate
bargaining unit is exceedingly narrow.” Elec. Data Sys. Corp. v. NLRB, 938
F.2d 570, 572 (5th Cir. 1991) (quoting NLRB v. S. Metal Serv., 606 F.2d 512,
514 (5th Cir. 1979) (internal quotation marks omitted)). This court therefore
reviews unit determinations only to determine “whether the decision is
arbitrary, capricious, an abuse of discretion, or lacking in evidentiary support.”
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Id. at 573. An employer who challenges the Board’s determination has the
burden of establishing “that the designated unit is clearly not appropriate.” Id.
at 574 (quoting NLRB v. Purnell’s Pride, Inc., 609 F.2d 1153, 1155-56 (5th Cir.
1980)).
III.
Section 9(a) of the NLRA provides that a union will be the exclusive
bargaining representative if chosen “by the majority of the employees in a unit
appropriate for” collective bargaining. 29 U.S.C. § 159(a). Section 9(b)
authorizes the Board to “decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights guaranteed by [the Act],
the unit appropriate for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision thereof.” 29 U.S.C.
§ 159(b). The Act does not, however, tell the Board how to determine whether
a bargaining unit is appropriate.
In making its determination, the Board has traditionally looks at the
“community of interest” of the employees involved. Elec. Data Sys., 938 F.2d
at 573. As this court has explained:
Whether employees have a community of interests is determined
by looking at such factors as: similarity in the scale and manner of
determining earnings; similarity in employment benefits, hours of
work and other terms and conditions of employment; similarity in
the kind of work performed; similarity in the qualifications, skills
and training of employees; frequency of contact or interchange
among employees; geographic proximity; continuity or integration
of production processes; common supervision and determination of
labor-relations policy; relationship to the administrative
organization of the employer; history of collective bargaining;
desires of the affected employees; and extent of union organization.
NLRB v. Catalytic Indus. Maint. Co. (CIMCO), 964 F.2d 513, 518 (5th Cir.
1992). This court has made clear that “[t]hese factors have no independent
significance.” Purnell’s Pride, 609 F.2d at 1156. Rather, in assessing the
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employees’ community of interests “[t]he Board must consider the entire
factual situation, and its discretion is not limited by a requirement that its
judgment be supported by all, or even most, of the potentially relevant factors.”
Elec. Data Sys. Corp., 938 F.2d at 573 (quoting NLRB v. DMR Corp., 795 F.2d
472, 475 (5th Cir. 1986)). In addition, the Supreme Court has stated that
“employees may seek to organize ‘a unit’ that is ‘appropriate’—not necessarily
the single most appropriate unit.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610
(1991). Applying this standard, this court has held that where there is
evidence that an alternative unit “might also [be] an appropriate bargaining
unit,” the unit approved by the NLRB will nevertheless be enforced unless it
was “clearly not appropriate.” Elec. Data Sys. Corp., 938 F.2d at 574 (quoting
Purnell’s Pride, 609 F.2d at 1156).
In Specialty Healthcare, the Board clarified the principles that apply in
cases, such as this one, where a party contends that the smallest appropriate
bargaining unit must include additional employees beyond those in the
petitioned-for unit. If the Board determines that the smaller unit is readily
identifiable as a group—based on job classifications, departments, functions,
work locations, skills, or similar factors—and the employees in the smaller unit
share a community of interest according to the traditional criteria,
the Board will find the petitioned-for unit to be an appropriate
unit, despite a contention that employees in the unit could be
placed in a larger unit which would also be appropriate or even
more appropriate, unless the party so contending demonstrates
that employees in the larger unit share an overwhelming
community of interest with those in the petitioned-for unit.
Specialty Healthcare, 357 NLRB No. 83, at *17. Even before the Board decided
Specialty Healthcare, the D.C. Circuit had approved an “overwhelming
community of interest standard, holding that “[i]f the employees in the
proposed unit share a community of interest, then the unit is prima facie
appropriate,” and the employer bears the burden of showing that it is “truly
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inappropriate.” Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir.
2008). As the court explained, this burden is satisfied where there “is no
legitimate basis upon which to exclude certain employees from [the proposed
unit].” Id.; accord Specialty Healthcare, 357 NLRB No. 83, at *16.
A.
Macy’s begins by arguing that the unit approved by the Board was
clearly not appropriate because all sales employees at the Saugus store
represent “a homogenous work force.” Citing to Amalgamated Clothing
Workers, 491 F.2d 595 (5th Cir. 1974), Macy’s argues that a unit limited to
cosmetics and fragrances employees is inappropriate because “there are no
material distinctions among the sales employees in the Saugus store.” In
Amalgamated Clothing Workers, the Board had approved a unit of cutters,
markers, and spreaders solely on the grounds that they were “highly skilled.”
Id. at 598. This court rejected the Board’s unit determination because of “the
complete lack of separate interests in any conditions of employment” that
distinguished the petitioned-for unit from the rest of the employees. Id. at 598.
The Board’s findings in this case, which are supported by substantial
evidence, do not demonstrate a “complete lack of separate interests.” In
making its argument, Macy’s simply ignores or contradicts the Board’s explicit
findings that illustrate the distinct interests of the cosmetics and fragrances
employees. Contrary to Macy’s claim that all employees “collaborate in the
same integrated workplace,” the Board found “little evidence of temporary
interchange between the petitioned-for employees and other selling
employees.” Macy’s & Local 1445, 361 NLRB No. 4, *6 (July 22, 2014).
Specifically, the Board found “no examples of (1) other selling employees
actually assisting the cosmetics and fragrances department, (2) cosmetics and
fragrances employees actually assisting other departments, or (3) a selling
employee from one department picking up shifts in another department.” Id.
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And while Macy’s asserts that “[e]xtensive training and coaching opportunities
are available to all sales employees,” the Board in fact found that much of the
training was department-specific. Id. at *4 (“[S]ales departments hold various
seminars during the year that train employees in their departments in selling
technique, product knowledge, and related topics.”). Even Macy’s assertion
that all selling employees “perform the same basic job function of selling
merchandise to customers” ignores the Board’s finding that cosmetics and
fragrances employees perform a unique function, that of “selling cosmetics and
fragrances.” Id. at *10.
Macy’s concedes that there are distinctions between the cosmetics and
fragrances sales employees and the rest of the selling staff. It acknowledges
that the department is organized as a separate department, supervised by a
separate sales manager, and operated primarily in distinct areas of the store.
But it asserts that the Board failed to explain why these distinctions outweigh
the similarities between the petitioned-for employees and the other selling
employees, and it argues that, under Purnell’s Pride, this “lack of explanation
is fatal to the Board’s decision.” In Purnell’s Pride, the Regional Director had
simply listed the factors that guided his unit determination. 609 F.2d at 1159-
60. Finding that the Board, in upholding the Regional Director’s ruling, had
failed to adequately explain its weighing of the community interest factors, see
id. at 1160, this court remanded the case to allow the Board to disclose the
basis of its order, id. at 1162. Here, the Board satisfied Purnell’s Pride’s
requirements: the decision identified some factors that could weigh against
the petitioned-for unit and explained—with citation to Board precedent—why
these factors did not render the petitioned-for unit inappropriate. Macy’s &
Local 1445, 361 NLRB No. 4, *11.
Finally, Macy’s advances two policy-based arguments. First, it contends
that the petitioned-for unit is inappropriate because its approval by the Board
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will “wreak havoc in the retail industry” by disrupting employer operations
and frustrating customer experience. Next, it contends that the certification
of departmental units will undermine workers’ rights. These arguments are
unsuccessful. Macy’s does not cite to any controlling authority for the
proposition that the effect on an employer’s business is a factor to be considered
in unit determinations. And the Board’s history of approving multiple units in
the retail and other industries suggests that neither workers nor businesses
will suffer grave consequences as a result of the Board’s order. See, e.g.,
Teledyne Economic Dev. v. NLRB, 108 F.3d 56, 57 (4th Cir. 1997) (enforcing
Board’s decision certifying two units at one employer, a Job Corps Center);
Banknote Corp. of Am., Inc. v. NLRB, 84 F.3d 637, 647 (2d Cir. 1996) (enforcing
Board order requiring employer to bargain with three different units at a
printing facility); Stern’s Paramus, 150 N.L.R.B. 799, 802-03, 806 (1965)
(approving separate units of selling, non-selling, and restaurant employees at
a department store; and observing that while the Board has regarded a
storewide unit as the “basically appropriate” or “optimum” unit in retail
establishments, it has approved “a variety” of less-than-storewide units
representing various “occupational groupings” in department stores); I.
Magnin & Co., 119 N.L.R.B. at 643 (1957).
As we noted above, the Board may certify “‘a unit’ that is ‘appropriate’—
not necessarily the single most appropriate unit.” Am. Hosp. Ass’n, 499 U.S. at
610. Although the unit composition argued for by Macy’s may have also been
“an appropriate bargaining unit,” we cannot say that the one approved by the
NLRB was “clearly not appropriate” based on the employees’ “community of
interests.” Elec. Data Sys. Corp. 938 F.2d at 574 (quoting Purnell’s Pride, 609
F.2d at 1156).
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B.
Next, Macy’s contends that the Board’s “overwhelming community of
interest” test cannot be squared with the NLRA or prior Board precedent
governing initial unit determinations. We disagree.
As the Supreme Court has recognized, the Board has the authority to
develop rules, whether through adjudication or by the exercise of its
rulemaking authority, to guide its resolution of unit determinations. Am.
Hosp. Ass’n, 499 U.S. at 611-12. As interpretations of the Act, such rules are
subject to the principles of Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc. 467 U.S. 837, 843 (1984). See NLRB v. UFCW, Local 23, 484 U.S.
112, 123-24 (1987). Under Chevron, where “the statute is silent or ambiguous
with respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” Id., at
843. The courts must “respect the judgment of the agency empowered to apply
the law ‘to varying fact patterns,’ even if the issue ‘with nearly equal reason
[might] be resolved one way rather than another.’” Holly Farms Corp. v. NLRB,
517 U.S. 392, 398-99 (1996) (citation omitted). This court will not disturb the
Board’s reading of the Act if it is “reasonably defensible.” Ford Motor Co. v.
NLRB, 441 U.S. 488, 497 (1979).
Further, the Board has authority to depart from precedent and change
its rules and standards as long as it “set[s] forth clearly the reasons for its new
approach.” NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1160 (5th Cir.
1977). However, where the Board has not departed from a “uniform rule,” the
Board need not give a detailed rationale for its chosen approach. See NLRB v.
H. M. Patterson & Son, Inc., 636 F.2d 1014, 1017 (5th Cir. 1981).
We agree with our sister circuits that in Specialty Healthcare the Board
“clarified—rather than overhauled—its unit-determination analysis.” Nestle
Dreyer’s Ice Cream Co. v. NLRB, No. 14-2222, 2016 WL 1638039 (4th Cir. Apr.
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26, 2016); accord FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 525 (8th Cir.
2016) (“We conclude that the overwhelming community of interest standard
articulated in Specialty Healthcare is not a material departure from past
precedent.”); Kindred, 727 F.3d at 561 (“The Board has used the overwhelming-
community-of-interest standard before, so its adoption in Specialty Healthcare
. . . is not new.”); Blue Man Vegas, 529 F.3d at 421 (the Board’s “consistent
analytic framework” includes the question whether “the excluded employees
share an overwhelming community of interest with the included employees”).
In Specialty Healthcare, the Board laid out the “traditional standard”
applicable when an employer contends that the smallest appropriate unit
contains employees not in the petitioned-for unit. 357 NLRB No. 83, at *15.
Citing its own precedent and decisions of the D.C. Circuit and the Seventh
Circuit, the Board explained: “Given that the statute requires only an
appropriate unit, once the Board has determined that employees in the
proposed unit share a community of interest, it cannot be that the mere fact
that they also share a community of interest with additional employees renders
the smaller unit inappropriate.” Id. (citing Montgomery Ward & Co., 150
N.L.R.B. 598, 601 (1964); Blue Man Vegas, 529 F.3d at 421; Dunbar Armored,
Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999)). In such a situation, the Board
determined that its precedent requires the proponent of the larger unit to
demonstrate that all employees “share ‘an overwhelming community of
interest’ such that there ‘is no legitimate basis upon which to exclude certain
employees from it.’” Id. at *16 (quoting Blue Man Vegas, 529 F.3d at 421). The
Board acknowledged that it “has sometimes used different words to describe
this standard and has sometimes decided cases such as this without
articulating any clear standard,” id. at 17, but an evaluation of the cited cases
reveals that the newly-formulated standard was not a departure from Board
precedent.
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Macy’s urges us to overrule Specialty Healthcare for several reasons.
First, it asserts that the overwhelming community of interest test improperly
affords controlling weight to the extent of union organization, in violation of
Section 9(c)(5) of the NLRA. Second, it argues that the test departs from
established Board precedent. Third, it contends that the test was improperly
taken from the “accretion” context. Fourth, it claims that the Board violated
the Administrative Procedure Act (APA) by promulgating the overwhelming
community of interest test through adjudication rather than rulemaking.
Finally, Macy’s asserts that the test’s application is particularly inappropriate
in the retail context, where it “discard[s] decades of precedent favoring
storewide bargaining units.” Contending that the Board was able to find the
unit of cosmetics and fragrances employees appropriate only by following
Specialty Healthcare, Macy’s argues that this court’s invalidation of the
overwhelming community of interest test—or its determination that the test is
inapplicable in the retail context—would preclude enforcement of the Board’s
order. Each of these arguments is unavailing.
1. The Overwhelming Community of Interest Test and Section 9(c)(5)
Section 9(c)(5) of the Act provides that the Board, in making unit
determinations, shall ensure that “the extent of organization shall not be
controlling.” 29 U.S.C. § 159(c)(5). The Supreme Court has construed this
language to mean that “Congress intended to overrule Board decisions where
the unit determined could only be supported on the basis of extent of
organization,” but that Congress did not preclude the Board from considering
organization “as one factor” in making unit determinations. NLRB v. Metro.
Life Ins. Co., 380 U.S.438, 441-42 (1965).
Citing NLRB v. Lundy Packing Co., 68 F.3d 1577 (4th Cir. 1995), Macy’s
argues that the Board’s overwhelming community of interest test contravenes
Section 9(c) by “accord[ing] controlling weight to the extent of union
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organization” by making union-proposed units presumptively appropriate.
However, the Fourth Circuit has expressly rejected this characterization of its
holding in Lundy. See Dreyer’s, 2016 WL 1638039. In Lundy, the Fourth
Circuit rejected the Board’s use of a standard under which “any union-proposed
unit is presumed appropriate unless an ‘overwhelming community of interest’
exists between the excluded employees and the union-proposed unit.” 68 F.3d
at 1581 (emphasis added). In Dreyer’s, the court explained:
Lundy does not establish that the overwhelming-community-of-
interest test as later applied in Specialty Healthcare fails to
comport with the NLRA. Instead, Lundy prohibits the
overwhelming-community-of-interest test where the Board first
conducts a deficient community-of-interest analysis—that is,
where the first step of the Specialty Healthcare test fails to guard
against arbitrary exclusions.
2016 WL 1638039, at *7. Where the Board “rigorously weigh[s] the traditional
community-of-interest factors to ensure that the proposed unit was proper
under the NLRA,” the Court concluded, the “overwhelming community of
interest” does not conflict with the Act. Id. at *8. That is precisely what the
Board did in the instant case. As a result, the test and its application do not
violate Section 9(c).
2. The Board’s Unit Determination Precedent
Macy’s next argues that the Specialty Healthcare standard departs from
established Board precedent. Macy’s asserts that, contrary to Board
precedent, the Specialty Healthcare analysis looks, “solely and in isolation,” at
“whether the employees in the unit sought have interests in common with one
another.” This argument is unconvincing. The community of interest test
articulated in Specialty Healthcare and applied in this case was taken from the
Board’s 2002 decision in United Operations and was based on Board precedent
going back to 1964. That test does not look only at the commonalities within
the petitioned-for unit. Rather, it asks:
15
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No. 15-60022
whether the employees are organized into a separate department;
have distinct skills and training; have distinct job functions and
perform distinct work, including inquiry into the amount and type
of job overlap between classifications; are functionally integrated
with the Employer’s other employees; have frequent contact with
other employees; interchange with other employees; have distinct
terms and conditions of employment; and are separately
supervised.
Specialty Healthcare, 357 NLRB No. 83, at *14 (emphasis added). The Board’s
initial unit determination in Specialty Healthcare and in this case thus
conformed to established precedent. See, e.g., In re United Operations, Inc.,
338 N.L.R.B. 123; Bartlett Collins Co., 334 N.L.R.B. 484 (2001); The Dahl Oil Co.,
221 N.L.R.B. 1311 (1964). The Board did not abuse its discretion by applying the
traditional community of interest test in its initial unit determination.
3. “Overwhelming Community of Interest” in the Accretion Context
An “accretion” is the addition of a small group of employees to an
established bargaining unit without first holding an election. Michael J.
Frank, Accretion Elections: Making Employee Choice Paramount, 5 U. Pa. J.
Lab. & Emp. L. 101, 102 (2002). Because of accretion’s “interference with the
employees’ freedom to choose their own bargaining agents,” the Board does not
apply the traditional community of interest test to determine whether the
enlarged unit would be appropriate; rather, the Board generally finds that “[a]
group of employees is properly accreted to an existing bargaining unit when
they have such a close community of interests with the existing unit that they
have no true identity distinct from it.” DMR Corp., 795 F.2d at 476 (citation
omitted) (emphasis in original). While the structure and the underlying policy
motivations of this standard resemble those of the Specialty Healthcare
overwhelming community of interest test, Macy’s contention that the latter
was “improperly imported” from the accretion context fails to persuade us. As
an initial matter, as the Fourth Circuit observed in Dreyer’s, “[it is not]
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unreasonable . . . for the Board to use the same overwhelming-community-of-
interest test in this context that it has historically used in the context of
accretions.” 2016 WL 1638039, at *9. Furthermore, the Board has applied the
overwhelming community of interest test in the initial determination context
since at least 1967, when, in Jewish Hospital Association of Cincinnati, it held
that a unit limited to service employees was inappropriate because of their
“overwhelming community of interest” with maintenance employees. 223
N.L.R.B. at 617. Macy’s premise that the overwhelming community of interest
test is inappropriate when applied in an initial unit determination thus falls,
and its related contention that the test is therefore inappropriate necessarily
fails.
4. The NLRB’s Adjudicative Rulemaking Authority
In NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294
(1974), the Supreme Court announced that “the Board is not precluded from
announcing new principles in an adjudicative proceeding and that the choice
between rulemaking and adjudication lies in the first instance within the
Board’s discretion.” Yet Macy’s contends that, because Specialty Healthcare
announced “‘policy-type rules or standards’ to be applied in all future unit
determination cases,” the Board was required by the APA to resort to
rulemaking and the decision should be set aside.
The Supreme Court has previously rejected a claim identical to that
advanced by Macy’s. In SEC v. Chenery Corp., 332 U.S. 194 (1947), the
respondent corporation argued that the Commission was required to resort to
its rulemaking procedures if it desired to promulgate a new standard that
would govern future conduct, rather than applying a general standard that it
had formulated for the first time in that proceeding. The Court rejected this
contention, noting that the Commission had a statutory duty to decide the
issue at hand in light of the proper standards and that this duty remained
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“regardless of whether those standards previously had been spelled out in a
general rule or regulation.” Id. at 201. The Court concluded that “the choice
made between proceeding by general rule or by individual, ad hoc litigation is
one that lies primarily in the informed discretion of the administrative
agency.” Id., at 203. Even accepting the premise that Specialty Healthcare
announced a new standard, the contention that the Board violated the APA is
therefore unavailing.
5. Presumptively Appropriate Units
In early cases dealing with the retail industry, the Board stated that a
storewide unit was “basically appropriate,” I. Magnin, 119 N.L.R.B. at 643, or
was “the optimum unit,” May Department Stores, 97 N.L.R.B. 1007, 1008 (1952).
But even in the cases announcing that “presumption,” the Board recognized
that smaller units can be appropriate. See Allied Store of New York, Inc., 150
N.L.R.B. 799, 803 (1965). This is consistent with the policies underlying the
Board’s general approach to unit determination: recognition that a unit is
presumptively appropriate does not lead to a requirement that only that unit
can be appropriate. As the Board explained in Specialty Healthcare:
the suggestion that there is only one set of appropriate units in an
industry runs counter to the statutory language and the main
corpus of our unit jurisprudence, which holds that the Board need
find only that the proposed unit is an appropriate unit, rather than
the most appropriate unit, and that there may be multiple sets of
appropriate units in any workplace.
357 NLRB No. 83, at *10. Thus, even if a store-wide unit were presumptively
appropriate in the retail industry—a contention to which the Board
strenuously objects, Macy’s & Local 1445, 371 NLRB No. 4, *17-22—the
application of Specialty Healthcare to the retail context would not mark a
deviation from Board precedent.
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No. 15-60022
*
The standard articulated by the Board in Specialty Healthcare does not
violate the NLRA. The Board did not depart from a uniform rule by applying
it, and its basis and application were cogently explained. The standard was
not improperly imported from another context, and it was not adopted in
violation of the APA. Finally, the application of the standard in the retail
context is not inconsistent with prior Board decisions. We therefore decline to
reject the Specialty Healthcare standard and hold that the Board did not abuse
its discretion by articulating and applying this standard in the instant case.
C.
Finally, Macy’s argues that, even under Specialty Healthcare, the Board
approved an inappropriate unit because it carried its burden of showing that
all selling employees within the store share an overwhelming community of
interest. However, as explained in Part III.A, supra, the Board’s factual
findings illustrate numerous distinctions between the cosmetics and
fragrances employees and the other selling employees, such that it cannot be
said that there is “no legitimate basis upon which to exclude [those] employees”
from the unit. Specialty Healthcare, 357 NLRB No. 83, at *15. We therefore
hold that the Board did not abuse its discretion when it determined that the
other selling employees do not share an overwhelming a community of interest
with the petitioned-for employees.
IV.
The Board reasonably concluded the unit of cosmetics and fragrances
employees at the Saugus store was appropriate. Macy’s has failed to establish
that the unit is clearly not appropriate and has failed to demonstrate that the
Board abused its discretion by articulating and applying the overwhelming
community of interest test. The Board’s cross-application for enforcement is
therefore GRANTED and Macy’s petition for review is DENIED.
19 | 01-03-2023 | 06-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428911/ | Appellant filed his amended complaint for replevin in the court below, averring, among *Page 44
other things, that he was arrested by officers of the Indianapolis Police Department and charged with the misdemeanor of "Disorderly Conduct." That upon his arrest the policeman took his fingerprints with ink on white cards, and his signature, and placed one such card on file in the department, and sent one to the F.B.I. That upon trial of the case in a Municipal Court of Marion County he was acquitted. Thereafter he demanded such fingerprint cards and signature, which demand was refused; that he is the owner and entitled to possession of such fingerprints and name; and that the defendants claim a right to detain the same by virtue of Acts of 1945, ch. 334, p. 1622; § 47-846 etseq. Burns' 1940 Repl. Supp., particularly §§ 47-857, 47-858, 47-859, 47-863, 47-865 and 47-866. That so much of this legislation as permits the appellees to retain such fingerprints and signature is unconstitutional being in violation of the Fourteenth Amendment of the Constitution of the United States, and Art. 1, §§ 1 and 21 of the Constitution of Indiana. That the fingerprints and signatures are of the value of $10,000 and their detention is unlawful. He prays judgment for possession, and damages for their detention.
Appellees' general demurrer to the complaint was sustained. Appellant refusing to plead over, judgment was rendered against him, from which this appeal is taken.
Many of appellant's contentions have been determined by this court in the recent case of State ex rel Mavity v. Tyndall
(1946), 224 Ind. 364, 66 N.E.2d 755 and on second appeal (1947)225 Ind. 360, 74 N.E.2d 914.
Appellant bases his claim for possession and damages for detention upon the doctrine of the Right of *Page 45
Privacy. This is a well established doctrine, derived from 1. natural law and guaranteed by both the Federal and State Constitutions. As between man and man it must be respected. Appellant has cited many authorities to that effect.
However, this right has its limitations. Society too, has its rights. Under our form of government citizens have rights — which even the government may not invade and should the government trespass upon such rights the courts should grant redress. But the citizen has obligations and duties to the community, and to the government which he must keep and perform. To preserve rights for himself he must aid in preserving them for all. There must be cooperation, and always the rights of the individual must be balanced with the duties incumbent upon him as a citizen.Barber v. Time Inc. (1942), 348 Mo. 1199, 159 S.W.2d 291;State ex rel Mavity v. Tyndall, supra.
Long before the enactment of the statute complained of 2. and before the value of fingerprints as a means of identification was known, this court had held that:
". . . if, in the discretion of the sheriff he should deem it necessary to the safekeeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph, and a measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, color of his eyes, hair and beard, as was done in this case, he could lawfully do so. . . ." State ex rel. Bruns v. Clausmeier (1900), 154 Ind. 599, 602, 603.
We have heretofore held the statute complained of to be a constitutional exercise of the police power of the state. Stateex rel Mavity v. Tyndall (1947), *Page 46 225 Ind. 360, 74 N.E.2d 914. We adhere to that decision and adopt it as a determination of the constitutional questions presented in this case.
The pertinent question left for determination as between the appellant, an individual citizen, and the appellees, as officers of the City of Indianapolis, in their official and representative capacity, is: Who has a right to the possession of the fingerprints and signature in question?
A bureau of criminal identification and investigation is created and its duties are defined by § 47-857 Burns' 1940 Repl. Supp. By § 47-858 the bureau is authorized to assist chiefs of police and other peace officers in the establishment and operation of local identification systems and it makes it a duty of such chiefs of police and peace officers to cooperate with the bureau in establishing and maintaining an efficient and coordinating system of identification. The duty of chiefs of police and other local officers to make and furnish to the bureau upon request, fingerprints and other identification data is provided for by § 47-863, and § 47-865 provides as follows:
"The members of the department shall have the authority and duty to take fingerprints, and such other identification data as shall be prescribed by the superintendent of all persons taken into custody for offenses other than those arising solely out of violations of fish, game, conservation, traffic laws, or misdemeanors but such members of the department shall have the authority, if they deem it advisable, to take the fingerprints and such other identification data as shall be prescribed by the superintendent, of all persons taken into custody for offenses arising out of violations of fish, game, conservation, traffic laws or misdemeanors and it shall be their duty promptly to transmit and file such fingerprints and other identification data as the superintendent may prescribe." *Page 47
It will be noted that the taking of fingerprints "and such other identification data as shall be prescribed by the superintendent," of all persons taken into custody for misdemeanors is authorized by this statute and it further makes it the duty of the members of the department after taking the same, "promptly to transmit and file such fingerprints and other identification data as the superintendent may prescribe." The fingerprints and signature taken by the members of the department must be filed away in the files of the bureau and transmitted agreeable with the statute to other police departments mentioned therein, for filing away.
What is the legal object of taking identification data and filing it away in the various police departments mentioned? The answer is given in § 47-866 as follows:
"The employees of the department shall cooperate and exchange information with any other department or authority of the state or with other police forces, both within this state and outside it, and with federal police forces, toward the end of achieving greater success in preventing and detecting crimes and apprehending criminals."
The purpose is single, clear and quite salutary — to promote the public safety, by achieving greater success in preventing and detecting crimes and apprehending criminals. The accomplishment of this object has been an important duty of government in all times. Not infrequently a lack of accurate identification has been a serious handicap in clearing up a crime. It is probable that an accurate identification system, faithfully administered may be an assistance not only in finding the guilty criminal, but in clearing an innocent suspect.
Under the facts as set forth in the complaint and the law as we find it, we think the Indianapolis Police Department *Page 48
is lawfully in possession of the identification data 3. described in the complaint and that it is its duty to keep it on file as the statute commands, for the purposes only as provided by the statute, and as defined by §§ 47-865 and 47-866, supra.
Finding no error, the judgment is affirmed.
Note. — Reported in 75 N.E.2d 548. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247136/ | Because exhaustion is jurisdictional, Mr. Brett bears the burden of showing that he raised these allegations at the administrative level. Georgiades , 729 F.2d at 833 n.4. Mr. Brett's opposition does not satisfy this burden. With respect to his claim that Mr. Trent lodged false allegations against him, Mr. Brett's opposition argues that he had a right to raise this claim in administrative proceedings and that he attempted to raise a related claim about being suspended as a result of Mr. Trent's allegations. Opp. to Mot. Dismiss, 29-30. In support of this claim, Mr. Brett cites a letter that he sent to the EEO Contact Center stating that he had made phone calls attempting to complain that he was suspended based on the unsupported allegation that he might be injurious to himself or others. Id. Ex. 30. This does not show that Mr. Brett raised a claim at the administrative level about the complaint Mr. Trent allegedly made about Mr. Brett's workers' compensation claims.4
*71Accordingly, Mr. Brett has failed to demonstrate that he exhausted this claim and has not satisfied his burden of establishing jurisdiction.
Nor has Mr. Brett satisfied his burden of demonstrating that he exhausted his claim that the denial of advance sick leave constituted denial of reasonable accommodation requests. Mr. Brett offers only a citation to his EEO complaint, a citation to an EEO Dispute Resolution Specialist's Inquiry Report, and the conclusory statement, "It cannot be convincingly contested that Mr. Brett lodged complaints under the Rehabilitation Act relating to the denial of leave that put defendant on notice that he was asserting both a disparate treatment and failure to accommodate claim." Id. at 5, 30-31. Mr. Brett's EEO complaint describes itself as a discrimination complaint and makes no reference to reasonable accommodations. Id. at Ex. 7 ("My discrimination complaint is based on the following facts ..."). The Inquiry Report states that Mr. Brett alleged discrimination and not that he alleged failure to accommodate. Mot. Dismiss Ex. A. Since disparate treatment and failure to accommodate are distinct claims under the Rehabilitation Act and Mr. Brett has only demonstrated that he raised disparate treatment claims, his failure to accommodate claims are unexhausted. Accordingly, they must be dismissed.5
B. Mr. Brett Has Adequately Pled a Hostile Work Environment
To state a hostile work environment claim, a plaintiff must allege that his employer subjected him to "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Baloch v. Kempthorne , 550 F.3d 1191, 1201 (D.C. Cir. 2008). The Postmaster General argues that Mr. Brett has failed to state a hostile work environment claim under the Rehabilitation Act because his Amended Complaint only supports the claim with conclusory assertions, "does not allege that any comments or actions directed at Brett expressly focused on his bicep injury," and is "devoid of any indication that Mr. Brett's 'torn right bicep' was the reason why the [Defendant] decided to act." Memo. ISO Mot. Dismiss, 13.6
*72However, Mr. Brett has alleged that a sustained series of surprisingly negative actions was taken against him despite the fact that similar actions were not taken against employees who were similarly situated except for the fact that they did not have disabilities and did not file EEO complaints. Compl. ¶ 63. He has also alleged that Mr. Trent has a record of retaliation against employees who oppose his employment practices and that Mr. Trent took several of the actions Dismiss, 11. However, it is not necessary for me to decide this question. As Mr. Brett notes, he has not asserted any claims for discrete acts that occurred prior to June 27, 2009. Opp. to Mot. in question at times when he was actively working on his response to Mr. Brett's EEO complaint. See, e.g. , Compl. ¶¶ 58, 75-76, 82. Thus the Amended Complaint is not devoid of indications that the USPS's actions were prompted by Mr. Brett's disability or his participation in protected activity. I find these allegations sufficient at this stage in the proceedings and do not believe dismissal to be appropriate.7
C. Mr. Brett Has Adequately Pled Several Discrimination Claims
The essential elements of a discrimination claim under the Rehabilitation Act are: (1) the plaintiff suffered an adverse employment action; and (2) the adverse employment action was taken on account of the plaintiff's protected status. Baloch , 550 F.3d at 1196. In the context of a discrimination claim, an adverse employment action must be a "tangible employment action"-one that constitutes "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Lurensky v. Wellinghoff , 167 F.Supp.3d 1, 15 (D.D.C. 2016) (quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ). The standard of causation for Rehabilitation Act claims is but-for cause, meaning that the adverse employment action would not have taken place if it were not for the plaintiff's protected status. Gard v. Dep't of Educ. , 752 F.Supp.2d 30, 36 (D.C.C. 2010).
Mr. Brett's exhausted discrimination claims are based on the denial of his requests for advance sick leave in July 2009 and in January 2010, on the unwarranted 14-day suspensions imposed on him in July 2009 and in February 2010, and on the citation he received for being AWOL in 2010. See Compl. ¶ 86. According to the Postmaster General, the denial of Mr. Brett's requests for advance sick leave did not effectuate "a significant change in employment status" because Mr. Brett did not ask for a significant period of leave or suffer financial harm, and the suspensions were not adverse employment actions because Mr. Brett retired without ever serving them. Memo. ISO Mot. Dismiss, 15 (citing Baloch , 550 F.3d at 1199 ; Lurensky , 167 F.Supp.3d at 15 ; Bowe-Connor v. Shinseki , 923 F.Supp.2d 1, 8 (D.D.C. 2013) ).8 However, Mr. Brett has alleged *73that his suspensions were used as grounds for approving his termination and that the January 2010 denial of his sick-leave request formed the basis for one of his suspensions.9 See Compl. ¶¶ 59-60, 80. Construing the allegations in the light most favorable to Mr. Brett, as I must, I find that Mr. Brett has adequately alleged that these actions effectuated a significant change in Mr. Brett's employment status and constitute adverse employment actions.10
Mr. Brett has also adequately alleged that the conduct of which he complains was causally connected to his disability. The Postmaster General argues that Mr. Brett's disability has no connection to the denial of his sick-leave requests because the requests were not prompted by his bicep injury and because the injury has no connection to the suspensions or to the AWOL designation, as these were prompted by Mr. Brett hitting his head and having flu symptoms. Memo. ISO Mot. Dismiss, 15. However, the reasons Mr. Brett asked for sick leave do not have any necessary correlation with the reasons sick leave was denied, and the Ms. Brennan has not shown that accidentally hitting one's head or catching the flu are generally sufficient reasons for suspensions and AWOL designations. To the contrary, Mr. Brett has alleged that the treatment he received was inconsistent with the treatment of other employees who were similarly situated but not disabled. Compl. ¶ 63. Although it would be premature to determine that Mr. Brett's disability was a but-for cause of the acts that he complains led to his termination, I am required at this stage in the proceedings to make every reasonable inference in his favor. Covad , 398 F.3d at 671. Thus, I find that Mr. Brett has adequately alleged that he suffered several adverse employment actions because of his disability. More specifically, Mr. Brett has adequately pled his discrimination claims with respect to his two suspensions, his AWOL designation, and the January 2010 denial of his request for sick leave. With respect to these claims, the Postmaster General's motion to dismiss will be denied.11
D. Mr. Brett Has Adequately Pled Several Retaliation Claims
The elements of a retaliation claim under the Rehabilitation Act are: (1) the plaintiff engaged in activity protected by the Act; (2) the plaintiff suffered an adverse employment action; and (3) there was a causal connection between the plaintiff's protected activity and the adverse employment action. Bowe-Connor , 923 F.Supp.2d at 7-8 (citing Burlington , 548 U.S. at 67-69, 126 S.Ct. 2405 ). In the context of a retaliation claim, an adverse employment action is one that is sufficiently harmful that it "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Lurensky , 167 F.Supp.3d at 16 (quoting Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). Although this definition is broader than in the context of discrimination *74claims, it remains necessary to "separate significant from trivial harms" and to identify "material adversity" in order to support a claim. Id. (quoting Burlington , 548 U.S. at 68, 126 S.Ct. 2405 ).
As to the first element, the earliest protected activity that Mr. Brett has alleged is his initiation of EEO counseling on August 11, 2009. See Compl. ¶ 46. Thus, the Postmaster General is correct in arguing that Mr. Brett has failed to state a claim of retaliation on which relief can be granted with respect to any conduct prior to this date. Accordingly, Mr. Brett's retaliation claims related to the July 2009 denial of his sick-leave requests and to the July 2009 suspension will be dismissed.
Mr. Brett's remaining retaliation claims are based on the January 2010 denial of his sick-leave request, the February 2010 suspension, and his designation as AWOL. See Compl. ¶ 90. In light of the fact that adverse employment action is more broadly defined in the retaliation context than in the discrimination context, my earlier determination that these actions constitute adverse employment actions is controlling as to the second element. Turning then to the third element of Mr. Brett's claim, I find that Mr. Brett has adequately pled a causal connection between these actions and his protected activity by alleging that other similarly situated employees who had not initiated EEO complaints were not subjected to similarly adverse actions, that Mr. Trent became aware of his EEO complaint less than three months before engaging in the conduct of which Mr. Brett complains, and that Mr. Trent was actively working on an affidavit in response to his EEO complaint contemporaneously with the conduct of which Mr. Brett complains.12 Compl. ¶¶ 48, 58, 63. Accordingly, Mr. Brett has adequately pled retaliation claims based on the January 2010 denial of sick leave, the February 2010 suspension, and the AWOL designation. The Postmaster General's motion to dismiss these claims will be denied.
IV. CONCLUSION
For the reasons explained above, the Postmaster General's motion to dismiss will be granted in part with respect to Mr. Brett's unexhausted claims, Mr. Brett's claims arising from the July 2009 denial of his sick-leave requests, and Mr. Brett's retaliation claims arising prior to the filing of his EEO complaint, but will be denied in part with respect to Mr. Brett's remaining claims. The Postmaster General's alternative motion for partial summary judgment on Mr. Brett's unexhausted claims will be dismissed as moot in light of the dismissal of these claims. Mr. Brett's motion for discovery will be dismissed as moot to the extent that it responds to the Postmaster General's alternative motion for partial summary judgment, without prejudice to the filing of discovery motions related to Mr. Brett's remaining claims. A separate order will issue.
In addition to citing this letter, Mr. Brett's statement of facts in dispute also cites Exhibit 15 to show that he raised a claim at the administrative level concerning the allegations Mr. Trent made against him to the Postal Inspection Service. Id. at 4-5. Exhibit 15 contains correspondence sent to Mr. Brett by his employer and suggests that there may have been some connection between Mr. Trent's allegations and Mr. Brett's suspension. Id. Ex. 15. However, even considered in light of Mr. Brett's letter to the EEO Contact Center, this correspondence does not show that Mr. Brett raised a claim about Mr. Trent's allegations to the Postal Inspection Service.
The Postmaster General has moved, in the alternative, for summary judgment on Mr. Brett's unexhausted claims. Mot. Dismiss, 1; Memo. ISO Mot. Dismiss, 11. However, summary judgment is unnecessary in light of the dismissal of these claims. She also argues that I should dismiss as unexhausted "any claim based on a discrete act that occurred prior to June 27, 2010 and any claim based on a discrete act that occurred after February 5, 2010." Memo. ISO Mot. Dismiss, 29 n.4. Moreover, the only claim he has asserted for a discrete act that occurred after February 5, 2010 is the claim based on the allegations that Mr. Trent made to the Postal Inspection Service against Mr. Brett, see Compl. ¶¶ 86, 90, and I have already explained that this claim must be dismissed as unexhausted.
The Postmaster General's reply brief attempts to raise additional arguments about whether there was a causal connection between Mr. Brett's EEO complaint and the conduct of which he complains and about whether the conduct of which Mr. Brett complains was sufficiently severe and pervasive to give rise to a hostile work environment claim, see Reply ISO Mot. Dismiss at 8-9, but I do not consider them. See American Wildlands v. Kempthorne , 530 F.3d 991, 998 (D.C. Cir. 2008) (declining to consider argument raised for the first time in a reply brief on grounds of forfeiture).
The Postmaster General also argues that Mr. Brett's hostile work environment claim may be unexhausted to the extent that it could rely entirely on conduct that took place prior to June 27, 2009. Memo. ISO Mot. Dismiss, 13; Reply ISO Mot. Dismiss, 8. However, I find that Mr. Brett has alleged conduct that took place after June 27, 2009 that could form part of the basis for his hostile work environment claim.
Ms. Brennan does not address whether Mr. Brett's citation for being AWOL constitutes an adverse employment action for purposes of discrimination. See Opp. to Mot. Dismiss, 15-16. Although this might not be an adverse employment action in and of itself without a showing of significant collateral consequences, Mr. Brett has alleged that his designation as AWOL was used to justify agency approval for his termination. Compl. ¶ 80.
Mr. Brett's opposition appears to offer the additional claim that he would have had to serve his suspensions if his employment had not come to an end and that his suspensions would have been unpaid, but this allegation is not contained in his Amended Complaint. Opp. to Mot. Dismiss, 34.
Mr. Brett does not meaningfully dispute that the July 2009 denials of sick leave did not rise to the level of adverse employment actions. See Opp. to Mot. Dismiss, 34.
As stated above, Mr. Brett has not adequately alleged an adverse employment action with respect to the July 2009 denial of his sick-leave requests, and the Postmaster General's motion to dismiss this claim will be granted.
The date on which Mr. Trent became aware of the EEO complaint and the time period during which he was actively preparing his response to it are probative circumstantial evidence, notwithstanding the Postmaster General's argument that I should focus on the connection between Mr. Brett's protected activity and the adverse employment action. See Reply ISO Mot. Dismiss, 13. | 01-03-2023 | 07-25-2022 |